Case 1:16-cv-04423-ALC-GWG Document 264 Filed 06/21/17 Page 1 of 3

Kent A. Yalowitz
+1 212.836.8344 Direct
Kent.Yalowitz@apks.com

June 21, 2017

VIA ECF AND EMAIL

The Honorable Andrew L. Carter, Jr.
United States District Judge
United States District Court
Southern District of New York
40 Foley Square, Room 435
New York, NY 10007

Re: World of Boxing LLC et al. v. Wilder et al., No. 16-cv-04870 (ALC) (GWG)
Wilder et al. v. World of Boxing LLC et al., No. 16-cv-04423 (ALC) (GWG)

Dear Judge Carter:

This firm represents the World of Boxing Parties in the above-referenced actions
(“Defendants”).1

I write to bring to the Court's attention two important new facts, described below, that
strongly support the pending motion under Rules 50 and 59.

Both facts further reveal the miscarriage of justice that will occur if the jury’s verdict is
allowed to stand. As noted in Defendants’ Memorandum of Law, the Court should exercise its
discretion to grant a new trial where “‘the jury has reached a seriously erroneous result or. . . the
verdict is a miscarriage of justice.’” Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992)
(omission in original). In a similar context, other members of this and other courts have stated
that “‘where a party timely presents a previously undisclosed fact so central to the litigation that
it shows the initial judgment to have been manifestly unjust,’ reconsideration, even of a final
judgment, is appropriate.” Floyd v. City of N.Y., 813 F. Supp. 2d 457, 470 n.116 (S.D.N.Y.
2011) (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980))
(Granting motion for reconsideration of summary judgment on the basis of newly submitted
evidence). Here, consideration of the new information is absolutely necessary to prevent a
miscarriage of justice.

1
All defendants in No. 16 Civ. 4423 and all plaintiffs in No. 16 Civ. 4870.

Arnold & Porter Kaye Scholer LLP
250 West 55th Street | New York, NY 10019-9710 | www.apks.com
Case 1:16-cv-04423-ALC-GWG Document 264 Filed 06/21/17 Page 2 of 3

Hon. Andrew L. Carter, Jr.
June 21, 2017
Page 2

1. WADA Has Instructed That Meldonium Concentrations Below 100 ng/mL Do Not
Constitute Adverse Analytical Findings

On May 17, 2017, the World Anti-Doping Agency (WADA) published Technical
Document—TD2017MRPL, which is attached as Exhibit A. Among other things, WADA has
definitively directed that urinary concentrations of Meldonium below 100 ng/mL “should not be
reported ” “as an Adverse Analytical Finding.” Ex. A at 5.

As the Court will recall, Mr. Povetkin’s April 27, 2016 sample was reported by the
UCLA Olympic Analytical Laboratory as containing Meldonium at a concentration of 70 ng/mL.
Defendants’ Trial Exhibit (“Defs. Ex.”) M.

Dr. Butch opined that this was an adverse finding. The new Technical Document directly
contradicts this position. Moreover, Dr. Butch testified at trial that he is bound to comply with
WADA technical documents:

Q. You must follow WADA?

A. I must.

Q. In all circumstances.

A. For a technical document, yes. Tr. 413.

In other words, Dr. Butch definitively admitted that he must follow techical documents such as
this one—and under this technical document Dr. Butch could not have opined that Mr.
Povetkin's April 27, 2016 sample was adverse.

WADA’s conclusion that Meldonium concentrations below 100 ng/mL cannot constitute
an adverse result definitively and entirely undermines Plaintiffs’ position that the UCLA
laboratory’s detection of Meldonium at 70 ng/mL represents reliable evidence of Mr. Povetkin’s
use of Meldonium after April 11, 2016.

Indeed, had the trial occurred today rather than in February, the case could not have been
submitted to the jury, because Dr. Butch would have to admit that the April 27 sample was “not
adverse.” This document—like the new Görgens Study—demonstrates that the jury’s verdict
rested on Plaintiffs’ attempt to take opportunistic advantage of a knowledge gap that has since
been filled. To allow this verdict to stand in the face of technical and scientific evidence that
Case 1:16-cv-04423-ALC-GWG Document 264 Filed 06/21/17 Page 3 of 3

Hon. Andrew L. Carter, Jr.
June 21, 2017
Page 3

would change the outcome of the trial would be a blatant miscarriage of justice. The truth
matters, and in this case the technical and scientific evidence cannot be squared with the verdict.

2. WADA Has Partially Suspended The UCLA Laboratory’s Accreditation

On June 20, 2017, WADA announced that it has partially suspended the UCLA
laboratory’s accreditation on the basis of “WADA’s quality assessment procedures that
identified non-conformities with best practice.” Press Release, WADA, WADA suspends UCLA
Laboratory accreditation for specific prohibited substances (June 20, 2017), attached as Exhibit
B.

The suspension of the UCLA laboratory’s accreditation goes to the heart of this litgation.
Plaintiffs’ case depends almost exclusively on the testimony of Dr. Butch—even Dr. Eichner
appeared merely to vouch for Dr. Butch. Both of these experts touted the UCLA laboratory’s
purportedly perfect accreditation record to establish the reliability of Dr. Butch’s opinion that
Mr. Povetkin’s April 7, 8, and 11 samples were negative and his April 27 sample was adverse.
Tr. 199-200; 427-28 (Dr. Butch explains the process by which a laboratory can lose WADA
accreditation and confirms that UCLA has not lost accreditation); 454 (Dr. Eichner describes the
reputation of UCLA as “world-class” and “distinguished”). Indeed, Plaintiffs considered
UCLA’s record so important that counsel emphasized it in his opening remarks and implied, in
closing, that Dr. Butch’s credibility is tied to the reputation of the UCLA laboratory. Tr. 169;
770; 788.

The WADA suspension severely undermines this essential aspect of Plaintiffs’ case and
also raises questions about whether Dr. Butch knew of the impending suspension during his
testimony at trial and thus misled the jury on this point as well. If nothing else, the suspension
highlights yet again the need to reopen discovery and give the Defendants a fair opportunity to
obtain Dr. Butch’s actual personal knowledge.

Respectfully yours,

cc: ECF Counsel