The supplement company that UFC fighter Lyman Good has sued for allegedly causing him to fail a USADA drug test is now moving for his case to be dismissed because the evidence is no longer available.
Defendatns Gaspari Nutrition, Inc. and Hi-Tech Pharmaceuticals filed the Motion to Dismiss on December 14th claiming that Good or his lawyer intentionally destroyed the supplement that was the cause of his flagged drug test. Good faced a two-year ban for violation of the UFC Anti-Doping Policy but it was reduced to six months as he was able to pinpoint the source of the failed test.
Good tested positive for a banned substance in an October 14, 2016 out-of-competition test.
According to legal filings, Good was able to deduce that he had added two supplements since his last USADA test which came up negative for any banned substances. One of these was Anavite sold by Gaspari Nutrition and made for Gaspari Nutrition by Hi-Tech.
Attorneys for Gaspari Nutrition and Hi-Tech Pharmaceuticals claim that Good did not name Anavite as one of the thirteen substances that he was ingesting at the time of his failed USADA test. They also cite that the bottle of Anavite that he used which failed the drug test is gone. He first claimed he gave it to his attorney but his attorney later denied this.
Dismissing the case is a sanction premised upon the spoliation of evidence. It is not a necessity that the Court dismiss the case, but it’s the defendant’s contention that either Good knowingly destroyed the bottle of Anavite, gave it to his attorney who claims he no longer has it and/or misplaced the evidence.
Defendants identify issues with Good’s previous Complaints which had factual errors as reasons which bring his reputation and veracity into question. They note that after he failed the October 2016 USADA test, he had a duty to preserve the bottle of Anavite as evidence.
Payout Perspective:
In Good’s Opposition Brief due January 18, 2019, his attorney (and manager) David Fish, will have to address why he should not be disqualified as Good’s lawyer in this case. Fish represented Good when working with USADA to determine the reasons for the flagged drug test. Since Good indicated that he gave the bottle to his attorney but he stated he does not have it, the question of what happened to it is being raised by Defendants. While this is a clear case of shifting the blame and issue, Defendants may have a viable argument since the attorney might have to be called as a witness. As an attorney and officer of the court, if he had the bottle, he would have to provide it to the other side. Good states that the bottle of Anavite was tainted with the banned substance. Defendants want to access the bottle to determine for themselves.
The Court does not have to dismiss the case if the bottle of Anavite is not present, but they could choose another sanction in lieu of this if it is determined that the destruction was done on purpose or negligently.
MMA Payout will keep you updated.
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