Case 1:16-cv-04423-ALC-GWG Document 263 Filed 05/09/17 Page 1 of 3

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

May 9, 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 in response to the letter filed by Deontay Wilder, Lou DiBella, and DiBella
Entertainment (Plaintiffs) requesting that the Court strike the report by Dr. Hans Geyer. See
DE-262.

Plaintiffs arguments belie their desperation to avoid the truth. Dr. Geyers report is
highly relevant to the core issue on the present motionwhether the new Grgens study is of
such a character that on a new trial it will probably produce a different result. Ope Shipping,
Ltd. v. Underwriters at Lloyds, 100 F.R.D. 428, 432 (S.D.N.Y. 1983) (internal quotation marks
omitted).

1. Defendants Do Not Offer Dr. Geyers Report As Newly Discovered Evidence

Plaintiffs argue that the Geyer report should be struck because it does not qualify as
newly discovered evidence. But Defendants have not claimed that Dr. Geyers report is newly
discovered evidence. Instead, Defendants submitted Dr. Geyers report to show that the new
Grgens study is not only material to the question in this case, but is of such a character that on
a new trial it will probably produce a different result. See Reply Mem. 11, 15 (Unlike Dr.
Butch, one of the leading experts on Meldonium in the world concludes from the most recent
study that it is very likely that Mr. Povetkin took Meldonium in 2015, and not in 2016.).
Dr. Geyers report also confirms Dr. de Boers testimony at trial that the truncated peak of the
147.11 ion in Mr. Povetkins April 7, 8, and 11 samples demonstrates non-classical ion
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
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Hon. Andrew L. Carter, Jr.

May 9, 2017
Page 2

suppression and should not be used in identifying Meldonium in those samples. Reply Mem. 7-
8; Geyer Report at 3-4.

Ironically, Plaintiffs themselves have filed multiple expert declarations in the course of
briefing on the current motion. First, Plaintiffs filed declarations from Drs. Butch and Eichner in
support of their April 3, 2017 letter arguing that the new Grgens study is not newly discovered
evidence. See DE-255, DE-255-3, DE-255-4. Second, Plaintiffs filed another declaration by Dr.
Butch in support of their Opposition Memorandum that argued, inter alia, that non-classical ion
suppression does not exist. See DE-256-1 3-6. Plaintiffs cannot seriously contend that they
are entitled to submit multiple expert declarations in support of their arguments during post-trial
briefing but Defendants cannot respond in kind.

2. The Court Absolutely Should Consider Dr. Geyers Report

It is no wonder that Plaintiffs want the Court to turn a blind eye to Dr. Geyers reportit
is a profound repudiation of the expert testimony of Drs. Butch and Eichner and reveals that they
were, in the end, prepared to say pretty much anything to defend the conclusions they jumped to
before studying the facts. In contrast, Dr. Geyer looked at all the facts before reaching a
conclusion. He is far more qualified to opine about Meldonium than Drs. Butch and Eichner
and, unlike them, he was not pre-committed to a position. His opinion became relevant and
useful after Dr. Geyer and his colleagues published the new Grgens study.

The Court has broad discretion to allow disclosure of expert opinions outside the original
discovery period. See, e.g., Regalado v. Ecolab, 14-cv-6020, 2016 WL 94139, at *3 (S.D.N.Y.
Jan. 7, 2016) (denying motion to strike expert report disclosed after the close of expert
discovery); White v. McDermott, 3:08-cv-634, 2010 WL 4876025, at *1 (D. Conn. Nov. 19,
2010) (permitting disclosure of a new expert prior to a retrial in the interest of fairness and
justice to all parties). The Court previously exercised this discretion in permitting Dr. Butch to
offer rebuttal expert testimony at trialeven though Dr. Butchs opinions were never disclosed
and appear contrary to the published literature. The Court would be well within its discretion to
permit Defendants disclosure of Dr. Geyers report in response to the late-breaking testimony
and disclosures of Drs. Butch and Eichner filed by Plaintiffs.

3. Dr. Geyers Report Is Not An Improper New Argument

Plaintiffs also contend that Dr. Geyers report represents an improper new argument.
Plaintiffs point to three cases in which the court disregarded a new legal theory raised by a party
in a reply memorandum. See Simon v. City of New York, No. 14-cv-8391, 2015 WL 2069436, at
*2 n.4 (S.D.N.Y. May 4, 2015) (defendants argument that one of plaintiffs claims failed for
lack of legal authority improperly raised for the first time in reply memorandum on motion to
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Hon. Andrew L. Carter, Jr.

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dismiss); Blalock v. Jacobsen, No. 13-cv-8332, 2014 WL 5324326, at *6 (S.D.N.Y. Oct. 20,
2014) (declining to consider argument by defendants on motion to dismiss that plaintiff in a civil
rights action was afforded due process); Nwankwo v. Williams, No. 07-cv-364, 2008 WL
4190640, at *3 (E.D.N.Y. Sep. 10, 2008) (declining to consider summary judgment argument
that defendant fully complied with obligations under an international treaty). These cases are
inapposite. Defendants do not offer Dr. Geyers report in support of new theorieslegal or
factual. Rather, Dr. Geyers report supports arguments that were timely raised.

Most important, Dr. Geyers report confirms the importance of the new Grgens study.
See, e.g., Reply Mem. 2, 4, 11, 15. This is not a new argument on reply. To the contrary,
Defendants brought the Grgens study to the Courts attention on March 27, 2017before
Plaintiffs opposition to the motion was filed. Plaintiffs responded to that argument both in their
April 3 letter and in declarations of Drs. Butch and Eichner. DE-255, DE-255-3, DE-255-4.
Defendants, in turn, responded to Plaintiffs argument in their Reply and, like Plaintiffs,
submitted an expert opinion on the implications of the new Grgens study for this case.

Plaintiffs have not been blindsided by a new argument or denied the opportunity to
respond. To the contrary, it is Plaintiffs who have pushed the envelope, addressing Defendants
argument on reply concerning the new Grgens study and essentially attempting to put in an
unauthorized sur-reply.

The Court should deny the request to strike.

Respectfully,

cc: ECF Counsel