7/18/2016 10:39:27 AM
Chris Daniel - District Clerk Harris County
Envelope No. 11677394
By: JONATHAN PATTON
Filed: 7/18/2016 10:39:27 AM

NO. 2016-642848
§
§
§
§
§
§
§
§

V.
JEFFREY BROWN, M.D.
Respondent.

IN THE DISTRICT COURT

129TH JUDICIAL DISTRICT

ist
ric
t C
ler
k

UNITED STATES ANTI DOPING
AGENCY
Petitioner,

OF HARRIS COUNTY, TEXAS

nie

TO THE HONORABLE JUDGE OF SAID COURT:

l D

RESPONDENT JEFFREY BROWN M.D.’S OBJECTIONS TO AND
MOTION TO STRIKE AFFIDAVIT OF WILLIAM BOCK III

Da

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

is 

Motion to Strike the affidavit of William Bock III submitted as purported evidence in support of

 C

hr

Petitioner, USADA’s Petition for a Rule 202 deposition, filed and offered herein by USADA as

of

Exhibit 1 to its Response to Dr. Brown’s Motion to Dismiss on July 13, 2016. Dr. Brown would

ffic

e 

show that the affidavit is defective because it does not set forth facts that would be admissible in

 O

evidence. It is the affidavit of an interested witness, but does not assert clear, positive and direct

op
y

statements; rather it contains self-serving generalizations and conclusory opinions of fact and law.

ial
fic

hearsay.

 C

Furthermore, as set forth below, the affidavit is defective in numerous respects and is riddled with

Un
of

I.
The Standards of TRCP 166a(f) Apply Because Bock Is An Interested Witness.
Although Rule 166a(f) of the Texas Rules of Civil Procedure sets forth the prerequisites of
a valid affidavit in the summary judgment context, Courts routinely apply the same standards to
affidavits offered by an interested witness. [cite]. Here the analogous purpose of the affidavit is
clear. Petitioner has offered the Affidavit of William Bock as “evidence” to support its Petition

 on which it bears the burden of proof. Evidence submitted in affidavit form must comply with the
rules of evidence and in the case of an interested witness, meet the standards of Rule 166a(f). Id.
In general, Respondent avers that the affidavit of William Bock III (Bock affidavit) is not

a.

it is not based on personal knowledge;

b. it is not within the competence of the affiant;
c. it is not clear, positive and direct;

ist
ric
t C
ler
k

proper or admissible evidence as more specifically set forth below because:

l D

d. it is not free from contradiction and inconsistency;

nie

e. it is not readily controvertible;

Da

f. it contains unsubstantiated legal conclusions;

hr

is 

g. it contains unsubstantiated factual conclusions;

 C

h. it does not lay the proper predicate;

e 

of

i. it violates the parol evidence rule;

ffic

j. it refers to exhibits not attached to said affidavit; and

op
y

 O

k. it is not the "best evidence" of documents to which it refers.

 C

II.
Specific Objections to Bock Affidavit

fic

ial

The Bock affidavit is not proper or admissible evidence in this cause and is defective in the

Un
of

following respects:

1. Respondent Objects to the second and third sentences of Paragraph 5 of the affidavit,
because the affiant has failed to demonstrate personal knowledge and competence for
the statements contained therein. Additionally, neither statement meets the requirement
that the affidavit of an interested witness contain only statements of fact that are clear,
positive, direct and easily controvertible. Further, any statement about the purpose for

 which USADA was created necessarily is based upon hearsay, it is factually
conclusory, does not lay the proper predicate. The legislative history and enabling
statute are the best evidence of the purpose for which USADA was created, its role and
and authority.
Petitioner Objects to Paragraph 6 of the affidavit, because the affiant has failed to

ist
ric
t C
ler
k

2.

demonstrate personal knowledge for the statements contained therein. Additionally,
the assertions in paragraph 6 are irrelevant, intended to be prejudicial and constitute

l D

mere unsubstantiated legal and factual conclusions. Paragraph 6 in its entirety fails to

nie

meets the requirement that the affidavit of an interested witness contain only statements

Da

of fact that are clear, positive, direct and easily controvertible. Instead Paragraph 6

hr

is 

offers only conclusory statements and generalizations which represent the affiant’s
Further, the affidavit fails to demonstrate any personal knowledge of the

 C

opinion.

e 

of

assertions in paragraph 6, and is based upon hearsay. Therefore, there is no predicate.

ffic

3. Respondent objects to the first sentence of Paragraph 9 of the Bock affidavit as it is

op
y

 O

based upon hearsay and an unauthenticated email, it is not free from contradiction, it is

 C

inconsistent, there is no proper predicate.

ial

4. Respondent objects to the second and third sentences of Paragraph 9 of the Bock

fic

affidavit because the affiant has failed to demonstrate personal knowledge for the

Un
of

statements contained therein. Additionally, the assertion that “Dr. Brown has provided
services as an athlete support person to a significant number of elite U.S. athletes”
represents a legal conclusion without the underlying factual support that is required to
make that determination on a case by case basis. As such it is an improper self-serving
conclusory statement, unsupported by the prerequisite factual allegations.

The

 assertion that “Dr. Brown’s activities as an athlete support person are well-known” and
that “he actively promotes his services to athletes” is also nothing more than a selfserving generalization unsupported by any fact. Therefore, the second and third
sentence of Paragraph 9 fail to meets the requirement that the affidavit of an interested

ist
ric
t C
ler
k

witness contain only statements of fact that are clear, positive, direct and easily
controvertible. Instead Paragraph 9 offers only conclusory statements and
generalizations which represent the affiant’s opinion.

Further, the affidavit fails to

l D

demonstrate any personal knowledge of the assertions in paragraph, and those

nie

assertions are based upon hearsay.

Da

5. Respondent objects to Paragraph 11 of the Bock affidavit because it offers only

hr

is 

generalizations and legal and factual conclusions unsupported by any facts. Therefore,

 C

it fails to meet the requirement that the affidavit of an interested witness contain only

e 

of

statements of fact that are clear, positive, direct and easily controvertible.

ffic

6. Respondent objects to paragraph 12 of the Bock affidavit because it is entirely based

op
y

 O

on hearsay and hearsay within hearsay. The affidavit offers no foundation, specific

 C

allegation or basis of personal knowledge of the affiant nor is it within the competence

ial

of the affiant. Again this paragraph is merely vague conclusory statements without any

fic

specifics or factual support. Therefore, it fails to meet the requirement that the affidavit

Un
of

of an interested witness contain only statements of fact that are clear, positive, direct
and easily controvertible. Furthermore, the assertion that “at least one athlete was asked
to transport testosterone, which is a banned substance, from Dr. Brown to a coach” is
patently false, unsupported by any evidence, highly prejudicial and clearly an attempt
to inflame the Court. There is no proper predicate, the purported source of the allegation

 is not identified, so it is impossible to controvert. Given USADA’s history of making
unfounded accusations and leaking them to the press, this statement should not only be
stricken, but removed from public record.
7. Respondent Objects to the first two sentences of Paragraph 13 of the Bock affidavit

ist
ric
t C
ler
k

because it is again hearsay within hearsay. The affidavit offers no foundation, specific
factual or legal allegation or basis of personal knowledge of the affiant. Again this
paragraph is merely vague conclusory statements without any specifics or factual

l D

support. Therefore, it fails to meet the requirement that the affidavit of an interested

nie

witness contain only statements of fact that are clear, positive, direct and easily

Da

controvertible.

hr

is 

8. Respondent Objects to the last two sentences of Paragraph 13 because it is an attempt

 C

by Mr. Bock to summarize and testify about documents that are not before the Court,

e 

of

it violates the parol evidence rule and there is no proper predicate. The Releases

ffic

referred to that were previously provided to Dr. Brown speak for themselves.

op
y

 O

Furthermore, the legal adequacy of such a release must be based on the release itself,

 C

not Mr. Bock’s self-serving opinions and conclusions of law which are intended to

ial

inflame the Court.

fic

9. Respondent objects to Paragraph 14 of the Bock affidavit for the same reasons

Un
of

Respondent objected to Paragraph 13 which are adopted and incorporated herein. In
addition, Mr. Bock’s characterization of the condition of records produced by Dr.
Brown is merely an assertion of opinion unsupported by any evidence. Furthermore,
Mr. Bock’s assertion that forcing Dr. Brown to answer questions “is a necessary
component of our investigation” is self- serving, conclusory, unsupported by any real

 facts and an attempt to force Dr. Brown to do something he has no legal obligation to
do.
10. Respondent objects to Paragraph 15 of the affidavit as containing a false
characterization of the attached document. Specifically, the use of the term “directives”

ist
ric
t C
ler
k

in Paragraph 15 of the Bock affidavit. There is no legal authority for a patient or
participant in a research study to “direct” a physician to give a deposition. Further, the
Releases are hearsay, not properly authenticated, and not properly before the Court.

l D

11. Respondent Objects to Paragraph 16 to the extent that it misrepresents that the

Da

proper authentication or proper predicate.

nie

purported releases are “certified” when they are not. They are pure hearsay without

hr

is 

12. Respondent objects to Paragraph 18 of the affidavit because it fails to meet the

 C

requirement that the affidavit of an interested witness contain only statements of fact

e 

of

that are clear, positive, direct and easily controvertible. Instead Paragraph18 offers only

ffic

self-serving conclusory statements and generalizations which represent the affiant’s

op
y

 O

opinion, speculation, and conjecture. Additionally the assertions in Paragraph 18 are

 C

contrary to USADA’s pleadings and even the specific terms of the purported releases

ial

themselves. As such it is improper argument of counsel, and not the proper subject of

fic

an affidavit.

Un
of

13. Respondent Objects to Paragraph 19(a) of the Bock affidavit because it fails to meet
the requirement that the affidavit of an interested witness contain only statements of
fact that are clear, positive, direct and easily controvertible. Instead Paragraph 19(a)
offers only self-serving conclusory statements and generalizations which represent the
affiant’s opinion and speculation.

There are no admissible facts to support the

 allegations made, only the unsupported allegation itself. Furthermore, Mr. Bock’s
affidavit suggests that other athletes received the alleged infusions who have not
provided releases, who are not parties to this matter.

If that is true, then it will be

impossible for Dr. Brown to answer such questions without violating medical privacy

ist
ric
t C
ler
k

laws. Further this paragraph in its entirety is based upon hearsay.

14. Respondent Objects to Paragraph 19(b) of the Bock affidavit because it fails to meet
the requirement that the affidavit of an interested witness contain only statements of

l D

fact that are clear, positive, direct and easily controvertible. Furthermore, it is founded

nie

entirely on hearsay within hearsay, and offers only self-serving conclusory statements

Da

and generalizations which represent the affiant’s opinion. There are no facts to support

hr

is 

the blatantly false allegations made, only the unsupported allegation itself.

 C

Furthermore, the assertion that “One of the seven athletes from whom we have consents

e 

of

was asked by Dr. Brown to transport testosterone….” is patently false, unsupported by

ffic

any evidence, highly prejudicial and clearly an attempt to inflame the Court. It is pure

op
y

 O

hearsay, there is no proper predicate, it is factually unsubstantiated, and not free from

 C

contradiction and its inconsistent with the true facts. Given USADA’s history of

ial

making unfounded accusations and leaking them to the press, this statement should not

fic

only be stricken, but removed from public record.

Un
of

15. Respondent objects to Paragraph 20 of Bock’s affidavit to the extent it offers legal
conclusions, and fails to meet the requirement that the affidavit of an interested witness
contain only statements of fact that are clear, positive, direct and easily controvertible.
Bock’s reference to other cases “successfully prosecuted” is irrelevant, conclusory, and
hearsay. Such paragraph violates best evidence rule.

 16. Respondent objects to Paragraph 21 of Bock’s affidavit to the extent it offers legal
conclusions, and fails to meet the requirement that the affidavit of an interested witness
contain only statements of fact that are clear, positive, direct and easily controvertible.
Further it is an attempt by Mr. Bock to usurp the Court’s role and offer legal opinions

ist
ric
t C
ler
k

on the issues before the court, rather than facts. Such self-serving legal opinions and
legal argument are not the proper subject of an affidavit, and particularly not of an
affidavit of an interested witness such as Pro Hoc Vice lawyer.

l D

17. Respondent objects to the Paragraph 22 of the Bock affidavit because it fails to meet

nie

the requirement that the affidavit of an interested witness contain only statements of

Da

fact that are clear, positive, direct and easily controvertible. Furthermore, offers only

hr

is 

self-serving conclusory statements and generalizations which represent the affiant’s

 C

opinion and conflict with Petitioner’s pleadings before the Court. Such self-serving

e 

of

legal opinions and legal argument are not the proper subject of an affidavit, and

ffic

particularly not of an affidavit of an interested witness such as Pro Hoc Vice lawyer.

op
y

 O

18. Respondent objects to Paragraph 23 of Bock’s affidavit to the extent it offers legal

 C

conclusions, and fails to meet the requirement that the affidavit of an interested witness

ial

contain only statements of fact that are clear, positive, direct and easily controvertible.

fic

Further it is an attempt by Mr. Bock to usurp the Court’s role and offer legal opinions

Un
of

on the issues before the court, rather than facts. Such self-serving legal opinions and
legal argument are not the proper subject of an affidavit, and particularly not of an
affidavit of an interested witness such as Pro Hoc Vice lawyer.
PRAYER

WHEREFORE, PREMISES CONSIDERED, Respondent, Dr. Jeffrey Brown requests

 that the Court sustain the above-described objections to the Bock affidavit, that the affidavit be
stricken, or, alternatively, that the portions of said affidavits objected to be stricken, and for such
other and further relief that may be awarded at law or in equity.
Respectfully submitted,

ist
ric
t C
ler
k

BAIN & BAIN PLLC

/s/ J Lucci Bain
By:

ffic

e 

of

 C

hr

is 

Da

nie

l D

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.

 O

CERTIFICATE OF SERVICE

op
y

This Respondent’s Objections to and Motion to Strike Affidavit of William Bock III, was

ial

 C

served on the appropriate parties in accordance with Rule 202.3 of the Texas Rules of Civil

Un
of

fic

Procedure on July 18, 2016.

/s/ J Lucci Bain
Joan Lucci Bain