7/15/2016 10:28:59 PM
Chris Daniel - District Clerk Harris County
Envelope No. 11669153
By: bradley darnell
Filed: 7/15/2016 10:28:59 PM

NO. 2016-642848
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V.
JEFFREY BROWN, M.D.
Respondent.

IN THE DISTRICT COURT

129TH JUDICIAL DISTRICT

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UNITED STATES ANTI DOPING
AGENCY
Petitioner,

OF HARRIS COUNTY, TEXAS

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RESPONDENT JEFFREY BROWN M.D.’S OBJECTIONS TO AND
MOTION TO STRIKE PETITIONER UNITED STATES ANTI DOPING
AGENCY’S RESPONSE BRIEF DATED JULY 13, 2016 AND,
IN THE ALTERNATIVE, MOTION FOR SUR-REPLY AND SUR-REPLY

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TO THE HONORABLE JUDGE OF SAID COURT:

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NOW COMES Jeffrey Brown, M.D., Respondent herein, and files these Objections and

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Motion to Strike the brief filed by Petitioner United States Anti Doping Agency (“USADA”) on

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July 13, 2016 (“July 13 Brief”) and, in the alternative, Motion for Sur-Reply and Sur-Reply.

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Although styled as a “Response” to Dr. Brown’s “Motion to Dismiss and Alternatively, Opposition

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to Petitioner’s Rule 202 Petition” (“Motion to Dismiss and Opposition Brief”), USADA’s July 13

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Brief instead constitutes a wholesale re-brief and re-position of its Petition, in violation of Texas

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procedural rules and this Court’s instructions regarding post-hearing briefs. In the alternative, Dr.

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Brown requests that he be permitted to submit the below Sur-Reply to USADA’s July 13 Brief in

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order to correct the material, knowingly false statements in USADA’s brief and to rebut the new
arguments raised by USADA.
I. OBJECTIONS AND MOTION TO STRIKE
Although the Court permitted the parties to submit post-hearing briefs following the July
11, 2011 hearing (“July 11 Hearing”), those briefs were supposed to respond to issues already
raised in the parties’ briefing or to address questions posed by the Court. (See July 11, 2016 Hr’g
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 Tr. at 15:9-16:3, 42:12-43:3, 43:5-19, 47:10-17.) USADA’s July 13 Brief goes far beyond this
instruction. In an apparent “do-over” by USADA to address its groundless Petition, the July 13
Brief injects new arguments and factual allegations against Dr. Brown – some supported, some
not – and a new and self-serving hearsay affidavit from its general counsel Mr. William Bock, III

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and new exhibits. All this material is in excess of seventy-plus pages. But the fact remains that
USADA’s petition fails to satisfy Rule 202’s requirements on many levels, which will not be
rebriefed here.

(See Dr. Brown’s Motion to Dismiss and Response to Rule 202 Petition,

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Supplemental Response to Rule 202 Petition, and July 13, 2013 Post Submission Letter Brief. This

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Court may not grant relief if the Petition does not state a ripe potential claim in the “right court”.

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In other words, in the Court where the Rule 202 deposition is sought. Rule 202.2; Id.

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USADA attempts to bolster its defective petition by casting additional false allegations in

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an affidavit that obviously goes beyond the personal knowledge of the affiant. This it may not do.

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See The University of Texas at Austin v. Kearney, __ S.W.3d __, No. 03-14-00500-CV (Tex. App.

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– Austin May 3,2016, no pet hist.) (“merely pleading more facts in support of her [defective] claim

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will not cure her pleading defects.”). Kearney relies on Texas A&M Univ. Sys. v. Koseoglu, 233

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S.W.3d 835, 839–40 (Tex. 2007) (merely pleading more facts in support of breach of contract

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claim against university would not overcome university's immunity from breach of contract suit

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absent statutory waiver). The purpose of pleading is to give the adversary party notice of each

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party's claims and defenses as well as the relief sought. See Perez v. Briercroft Services Inc., 809
S.W.2d 216, 218 (Tex. 1991). Here USADA has utilized what was supposed to be a reply brief to
completely change its allegations and its prayer for relief. See July 13 Brief at 12. The Court
should reject this procedurally improper “moving target” approach that deprives Dr. Brown of a
full and fair opportunity to respond prior to the Court’s reset hearing on Monday, July 18, 2016.

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 The Court should strike USADA’s July 13 Brief in its entirety.
II. MOTION FOR SUR-REPLY AND SUR-REPLY
If USADA’s July 13 Brief is not stricken, Dr. Brown should be permitted to submit the
below Sur-Reply because USADA has injected new arguments and allegations against Dr. Brown.

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Nothing in USADA’s July 13 Brief supports denying Dr. Brown’s Motion to Dismiss or granting
USADA’s Petition.

A. USADA’s Contention That There Is Subject Matter Jurisdiction Is Patently
Frivolous. (July 13 Brief at 3, 7-9.)

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All questions relating to USADA’s enforcement of anti-doping policies are subject to the

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Ted Stevens Olympic and Amateur Sports Act (“Sports Act”). The Sports Act mandates

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arbitration, and this requirement deprives the Court of subject matter jurisdiction.1 USADA’s

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contention that this action is not preempted by the Sports Act because the action does not involve

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questions of sports eligibility (July 13 Brief at 8-9) is contradicted by USADA’s own Petition and

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its prior statements and positions. The first paragraph of the Petition states that USADA seeks a

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Rule 202 deposition of Dr. Brown for the express purpose of “investigat[ing] whether Dr. Brown

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and others violated USADA’s anti-doping rules,” a question that only involves sports eligibility

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and a potential sanction under the arbitral scheme set forth by the Sports Act. USADA admitted

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during the July 11, 2013 hearing that this is the only “potential claim” it is purportedly

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"investigating”. Indeed, Mr. Bock has in the past stated that “it is clear in Olympic and Paralympic
sports that the exclusive means of addressing eligibility questions arising from USADA drug
testing is through arbitration under the USADA Protocol and not through state or federal court

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See Armstrong v. Tygart, 886 F. Supp. 2d 572, 580 (W.D. Tex. 2012) ; Graham v. U.S. Anti-Doping Agncy, No.
5:10–CV–194–F, 2011 WL 1261321, at *1 (E.D.N.C. Mar. 31, 2011); William Bock, III, The Role of
Arbitration in Resolving U.S. Olympic Sport Doping Disputes, Sept.30, 2009, available at
http://www.americanbar.org/content/dam/aba/administrative/laborlaw/meetings/2009/ac2009/154.authcheckda
m.pdf.

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 litigation or resort to state law statutory claims.”2 USADA’s assertions as to Dr. Brown’s status
as athlete support personnel are a red herring. It is USADA itself that claims that Dr. Brown or his
athlete patients may have violated anti-doping policies, thusany “potential claim” or
“investigation” of a potential claim relates solely to sports eligibility that must be arbitrated.

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B. USADA’s Contention That It Has Received Consents Is Misleading and
Irrelevant.
Nothing in federal or state medical privacy law requires a doctor to submit to a deposition
simply because a patient submitted a medical consent. USADA’s contention that it has received

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all necessary consents is contradicted by its Petition and its own documents. The Petition stated

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that USADA only had “received consents from many of these individuals”—and not all of the

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individuals. See Petition at 3. And the seven purported medical consents attached as Exhibits D-

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1 to D-4 to the July 13 Brief themselves demonstrate USADA’s intent to question Dr. Brown about

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individuals other than those submitting medical consents—each and every one of the consents

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purport to allow USADA to question Dr. Brown “about the care and services given to me and

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others.” See July 13 Brief at Ex. 1 at Exs. D-1 to D-7. Moreover, USADA falsely suggests that

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it “tendered” the medical consents attached as Exhibits D-1 to D-4 to Dr. Brown previously. July

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13 Brief at 1. This is false, as evidenced by the fact that every one of the purported releases is

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dated June 2016, the same month that USADA filed its petition. Id. at Ex. 1 at Exs. D-1 to D-7.

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C. USADA Cannot Compel a Deposition in Arbitration.
USADA falsely claims in its brief that it is “not making an end-run around arbitration rules”
and that if it pursues arbitration “USADA will have the ability to compel Dr. Brown’s testimony
through subpoena just as it seeks to do here.” That statement is false. USADA is investigating

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See Bock, supra, at 13.

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 Dr. Brown. An accused party has a right not to testify in arbitration proceedings. Under the
applicable anti-doping rules and related case law it is well settled – and has been for more than a
decade - that arbitration panel lacks the authority to compel a charged party to testify.

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also is well aware of this fact. It has attempted repeatedly to force charged parties to testify at

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hearings and has been scolded by arbitration panels for doing so. For example, in USADA v.
Hellebuyck,3 USADA filed a Motion for a subpoena to compel Mr. Hellebuyck to testify.
Hellebuyck at ¶6.15. The arbitration panel denied USADA’s motion stating:

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The motion to compel the attendance, participation and testimony of Mr. Hellebuyck at the
hearing in this matter is denied….the Panel is without the power to compel the
participation of a charged party at the hearing. Not only do the applicable arbitration
rules not provide for requiring the attendance of a party at hearing, but the applicable
arbitration rules, incorporating provisions of the World Anti-Doping Code including
Article 3.2.4, as well as prior Court of Arbitration for Sport cases …provide that the
[charged party] has a right to decide whether to testify or not and that the Panel may draw
an adverse inference from the non-participation of the charged party in the hearing.

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Id. at ¶6.21 (emphasis added). Then after having had its motion denied, USADA attempted again

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at the hearing to argue that the arbitration panel should compel Mr. Hellebuyck to testify against

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himself – much to the dismay of the arbitration panel which stated:

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Id. at ¶6.29.

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Further, in disregard of the Panel’s prior ruling regarding compulsory testimony of
Hellebuyck, USADA again took substantial time arguing that the Panel should order
Hellebuyck to testify, which the Panel declined in light of the provisions of World AntiDoping Code section 3.2.4.

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Thus it is clear that USADA does not have the ability to compel Dr. Brown to testify in the
mandatory arbitration system created by the anti-doping rules. USADA’s assertion to the contrary
in its brief is a material knowingly false statement which clearly demonstrates USADA’s bad faith

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In the Matter of the Arbitration between United States Anti-Doping Agency, and Eddy Hellebuyck, AAA Case
No. 77 190 168 11 JENF (January 30, 2012), available at http://www.usada.org/wpcontent/uploads/hellebuyckaaaruling.pdf

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 in filing the Rule 202 petition.
D. USADA’s Interpretation of Rule 202 is Wrong.
USADA contends in its July 13 Brief that Rule 202 allows depositions even if there is no
possibility that a “suit” in court will be filed. July 13 Brief at 4-5. This is a total reversal from

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USADA’s Original Petition. In the Petition, USADA acknowledged that Texas Rule of Civil
Procedure 202 assumes that the petitioner may at some point file a “suit” in court and, on that
basis, contended that it was “investigating potential claims or suit.” Petition at 2 (emphasis added).

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Specifically, Rule 202.2 requires a petition to “be filed in a proper court of any county: (1) where

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venue of the anticipated suit may lie, if suit is anticipated; or (2) where the witness resides, if no

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suit is yet anticipated.” (Emphasis added.) There is no provision for the filing of a Petition when

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no suit is anticipated at all as USADA has judicially admitted.

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E. There Is No Reason to Compel Arbitration Because there is No Potential Claim.

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USADA’s argument that Dr. Brown has not filed a motion to compel a sports arbitration

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is irrelevant—as the Court observed, because any claim brought by USADA would be filed in

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arbitration, a “motion to compel is kind of unnecessary [because] no one is ever going to file a

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claim in state court.” July 11, 2016 Hr’g Tr. at 40:2-7. In addition, a motion to compel under

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these circumstances would be ludicrous. USADA is essentially arguing that Dr. Brown should

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“compel” USADA to prosecute him when it admits that it has no evidence to support a claim

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against him. Further, any claim brought in arbitration would not permit forcing Dr. Brown to
testify, and therefore, USADA is simply trying to obtain in Texas court that which it would
expressly not be entitled to in the only forum that exists for this “potential claim.”

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 F. USADA’s Speculative “Potential Claim” Is Precisely the Reason the Rule 202
Petition Should Be Denied.
USADA admits that a petitioner cannot use Rule 202 “to investigate future, speculative

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events that by his own admission may or may not come to pass.” July 13 Brief at 11. That is
precisely what USADA seeks to do here. As USADA states in its July 13 Brief, it is “investigating
past occurrences which may give rise to a claim against Dr. Brown” but it currently does not have

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a claim and may never have a claim. Id. at 2, 5-6, 11-12.

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G. The Bock Affidavit Should Be Stricken.

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USADA’s submission of a nine-page affidavit from its general counsel, William Bock III,

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is procedurally improper. See July 13 Brief at Ex. 1. The affidavit makes new and self-serving

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hearsay allegations regarding USADA and its investigation of Dr. Brown, including, but not

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limited to, an entirely new and baseless contention that an athlete “was asked by Dr. Brown to

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transport testosterone from Texas to Oregon.” Id. ¶ 19(b). Such statement is purely hearsay, and

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not true. USADA’s tactic of throwing mud -- by making unfounded false and spurious allegations

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-- to see if something sticks should not be tolerated by this Court, particularly where as here, the

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victim can do little to defend himself because of strict medical privacy laws. Mr. Bock’s affidavit

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should be rejected because it fails to meet the requirements that an affidavit be based upon personal

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knowledge. Because Mr. Bock is an interested party, the affidavit must also meet more stringent
requirements which it completely fails to do.
CONCLUSION
USADA’s ever-shifting positions raise grave concerns about its credibility and true
purposes in seeking a Rule 202 deposition of Dr. Brown. Moreover, USADA’s improper conduct
in effectively re-briefing its Petition deprives Dr. Brown of a full and fair opportunity to respond.
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 Had USADA asserted these new arguments and purported evidence in its Petition, Dr. Brown
would have had several weeks to investigate and prepare a response. However, Dr. Brown now
has no automatic right to a sur-reply and, moreover, the Court reset the hearing for Monday, July
18, 2016. It is precisely because of this unfairness that the rule against injecting new issues in a

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reply brief exists. The Court should strike USADA’s July 13 Brief. In the alternative, the Court
should permit Dr. Brown to submit the above Sur-Reply.

Respectfully submitted,

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BAIN & BAIN PLLC

/s/ J Lucci Bain

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By:

CERTIFICATE OF SERVICE

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Joan Lucci Bain
Texas Bar No. 01548020
Email: JBain@BainandBainlaw.net
Bruce W. Bain
Texas Bar No. 01549700
Email: BBain@BainandBainLaw.net
10810 Katy Freeway, Suite 102
Houston, Texas 77043
Tel. (713)629-6222
Fax (713)629-6226
Attorney for Respondent
Jeffrey Brown, M.D.

This Respondent’s Objections to and Motion to Strike Petitioner’s July 13, 2016 Response
Brief and, in the Alternative, Motion for Sur-Reply and Sur-Reply, was served on the appropriate
parties in accordance with Rule 202.3 of the Texas Rules of Civil Procedure on July 15, 2016.

/s/ J Lucci Bain
Joan Lucci Bain
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