naval a IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIAL COUNTY DEPARTMENT, LAW DIVISION .. CHRISTOPHER M. AMANN, 45?, o6 6 Plaintiff, @de 0? 4-6203,5 6* v, Case No.: 2015 001752 cg?, 000:}, . PHILLIP JACK BROOKS a/k/a Punk?' [?00 and SCOTT COLTON a/k/a/ Cabana,? Defendants. DEFENDANT PHILLIP JACK ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT AHWJ $8 r: ?if: 533 3i Defendant Phillip Jack Brooks, a/k/a Punk? (?Brooks?), by and throgigl?his 33b 2 undersigned counsel, Loeb Loeb LLP, hereby answers the Complaint of plaintiff Chri??ph??f ml? :13 i 3 M. Amann (?Plaintiff? or ?Amann?) and asserts his af?rmative defenses as follo?iivszzi, 6% *4 COMMON ALLEGATIONS 5:3 1. Plaintiff, Christopher M. Amann ?Amann? is a resident of Will County, Illinois: Amann is a licensed medical doctor of good standing in [the?State of Illinois. Amann concentrates his medical practice in the areas of sports medicine and orthopedics. From 2010 through the present time, Amann has practiced medicine as the Senior Ringside Physician for World Wrestling Entertainment, Inc. and in this capacity has provided and continues to provide medical care and treatment to professional athletes af?liated with WWE. ANSWER: Brooks admits that, to the best of his knowledge and information, Plaintiff is a resident of Will County, Illinois. Brooks further admits that, to the best of his knowledge and information, Plaintiff is a doctor. Brooks admits that Amann has provided and continues to provide medical care to professional wrestlers af?liated with the WWE. Brooks is without knowledge or suf?cient information to form a belief as to the truth of the remaining allegations contained in Paragraph 1 and so denies them. 2. Defendant, Phillip Jack Brooks (?Brooks?) is a Cook County resident, who, at times relevant to this Complaint, worked as a professional wrestler with WWE as Punk.? ANSWER: Brooks admits the allegations in Paragraph 2. 3. Defendant, Scott Colton (?Colton?) is a professional wrestler formerly af?liated with WWE, whose af?liation was terminated by WWE in 2009. In addition to working as a professional wrestler as ?Colt Cabana,? Colton hosts and distributes a weekly podcast entitled ?The Art of Wrestling? in which, among other things, he interviews professional wrestlers. ?The Art of Wrestling? is published world-wide by Colton, including through a link on his website (accessible through the URLs and and through iTunes. Colton also publishes his ?The Art of Wrestling? podcasts via streaming services at and on YouTube. On information and belief, Colton resides in Cook County, Illinois. ANSWER: Brooks admits that Colton is a professional wrestler formerly af?liated with WWE, whose af?liation was terminated by WWE in 2009. Brooks admits that in addition to working as a professional wrestler known as ?Colt Cabana,? Colton hosts and distributes a weekly podcast entitled ?The Art of Wrestling,? in which, among other things, he speaks with professional wrestlers. Brooks admits that Colton has made ?The Art of Wrestling? available for streaming and downloading Via the internet, including through a link on Colton?s website (accessible through the URLs and and through iTunes and via streaming services. Brooks admits that Colton resides in Cook County, Illinois. Except as expressly admitted, Brooks denies the remaining allegations in Paragraph 3. 4. On or about November 26, 2014, Colton ?rst published ?The Art of Wrestling,? episode No. 226, featuring his interview with Brooks (?the Podcast?). (A transcript of the Podcast is attached as Exhibit A). Since November 26, 2014, the Podcast has been available on the internet for streaming and download through the date of this Complaint?s ?ling. On information and belief, as of this Complaint?s ?ling, the Podcast has been streamed in excess of 1,000,000 times on YouTube and more than 10,000 times on SoundCloud.com in addition to downloads through iTunes and streaming through other websites. ANSWER: Brooks admits that Exhibit A purports to be a transcript of the Podcast but does not admit the accuracy of the transcription. Brooks admits that Colton made the Podcast available on or around November 26, 2014, and that it is available for streaming on YouTube and SoundCloud.com and can be downloaded on iTunes and other websites. Brooks is without knowledge or suf?cient information to form a belief as to the truth of the remaining allegations contained in Paragraph 4 and so denies them. 5. In the Podcast, Brooks repeatedly and falsely impugned the integrity of Amann as a medical doctor, stating in substance that: Amann misdiagnosed a growth on Brooks? back as a harmless ?fatty deposit?; (ii) Amann willfully disregarded Brooks? repeated requests over time that Amann excise the growth; and due to Amann?s professional negligence and failure to adequately treat Brooks, the lump grew to the size of a baseball, was purple, and morphed into a life-threatening, ?full-blown? MRSA staph infection. Brooks also stated that despite his complaints to Amann of pain and discomfort from the growing baseball-sized purple lump, Amann continued to allow Brooks to wrestle and refused to excise the growth. In addition, Brooks stated in substance that Amann lacked professional competence to properly treat a concussion, prescribed antibiotics for a concussion (Transcript p. 80), and subjected Brooks to unnecessary tests when it was ?pretty goddamn obvious? Brooks had a concussion. (Transcript pp. 39-40). Brooks further stated that when he told Amann, in the midst of his ?Royal Rumble? match, that he had a concussion after being struck by an opponent, Amann asked Brooks what he should do, to which Brooks ?started laughing and I was just like, 5? ?Doctor, you are the most worthless piece of shit I?ve ever met. (Transcript pp. 84-85). In the course of the Podcast, Colton af?rmed Brooks? statements and assisted Brooks in depicting Amann as a doctor who negligently did not excise the alleged growth because he was ?lazy,? to the point where the growth became so large and dangerous, ?it had teeth.? Colton urged listeners to ?hear the struggle? and ?hear the heartache? in Brook?s statements in which he was telling ?the whole story? so listeners would ?understand what [Brooks] was going through and why the decisions were made.? (Transcript pp. 4-5, 7). ANSWER: Brooks admits that, in the course of the Podcast, he discussed various medical issues that he experienced during his wrestling career, among other subjects. Brooks speci?cally denies that he falsely impugned the integrity of Plaintiff as a medical doctor. Brooks further states that the Podcast speaks for itself and denies the characterizations of various statements set forth in the referenced paragraph of the Complaint. Except as expressly admitted, Brooks denies the remaining allegations of Paragraph 5. 6. In the Podcast, Brooks and Colton made and published the following statements with regard to Amann?s purported misdiagnosis, failure to adequately treat Brooks, and lack of competence and ability as a medical doctor who placed his employer?s business interests above his patient?s medical needs: Brooks: The big thing that led to my decision [to leave was my health. 1 {Transcript p. 19). Doc was leaning on me going ?Do you want the Podcast, Amann is initially identi?ed as ?Doc.? Reasonable listeners would identify ?Doc? as Dr. Amann because in the Podcast Brooks speci?cally names Dr. Amann (Transcript p. 45) and Amann was the ?Doc? (doctor) on duty at the ?Royal Rumble? referred to by Brooks in the Podcast. have a concussion or can you go to Europe,? kind of thing. And I was just like you fuckin? you pigs, I?ll go to Europe, whatever. After the European tour, the whole European tour I?m dry heaving after every on all fours after every match and I?m either puking for real or I?m just dry heaving because I don?t having anything in my stomach. I have no appetite. I don?t know what is up and what is down. I can?t sleep, I can?t fuckin? train. (Transcript pp. 73-74). Doc -- Doc is giving me -- Doe?s like, ?Oh you?re sick, here?s a Z- Pak.? They Z?Pakked me to death, so much that in December I shit my pants on a Smack Down because that?s what antibiotics do to you, right? (Transcript p. 74). Somewhere along the way I get this fucking lump on my fuckin? back. This is where it gets goodgo, ?fucking look at this, this wasn?t here last week, what is that?? Oh it looks like a -- a -- a -- what did he call it, not a hematoma, a fatty, I don?t know, he said it was like a fatty deposit. He asked me if it hurt, I said no, I said, but it wasn?t there last week, and it?s been a long tradition in the WWE locker rooms, when somebody has something like that Doc cuts it out, everybody watches it, people ?lm it, it?s the weirdest fuckin? thing. Colton: Yeah. (Transcript pp. 78-79). Brooks: So they they tell me no, we?re not going to do anything about it because it?s just it?s just like a fatty deposit, whatever, it?s like a calcium deposit, whatever, so I fuckin?, I let it go, ?ne. It gets bigger. A couple months later, I?m like, ?This things got fuckin? bigger.? ?Does it hurt?? ?Well, then, let?s just leave it.? ?Let me ask you something, Doc, are you just -- is that like your - medical opinion or are you just a lazy piece of shit and don?t want to fuckin? do it, because I?ve seen you cut a million of these things out of somebody.? ?Well, you got to wrestle tonight,? and blah, blah, blah, ?and it might need like a stitch.? I?m like, ?So fucking what? You?ve put 14 staples in my forehead and then I?ve had to go out that same night and wrestle again. What is preventing you from -- from -- from helping me?? ?Well, it?s it?s,? blah, blah, blah. Colton: Did you have like a theory or -- Brooks: Did I have a theory? Colton: Yeah. Brooks: No, I was just like what the fuck is this, it wasn?t here yesterday, get rid of it. Colton: No, a theory on why he?s not cutting. Brooks: Nah, he?s lazy. Colton: Just lazy. Brooks: He?s lazy. Colton: Crazy. Brooks: I mean, and that?s the thing, guys, I really feel like fuckin? shit, I have broken ribs and I have a fuckin? concussion and they?re like, ?Here?s a Z-Pak, Phil,? and I?m like fuck, okay, I take the Z- Pak, I can?t sleep, here?s another Z-Pak, I take the Z-Pak, I shit my pants in the ring. I?m like what the fuck, you know, and then after all that they gave me an even stronger antibiotic, and I?m like all right, I?ll take this, maybe it?ll make me feel better. It made me feel worse. I had fuckin? goddamn diarrhea for like three weeks. (Transcript So I mean, everything fuckin? comes to a head and I?m still motivated. It?s Royal Rumble season and I know Batista?s coming back and I know the Main Event [of WrestleMania] is Batista versus Randy Orton, but I?m still, I?m still that kid that was in the car with you driving to fuckin? Pittsburgh and Philly and IWA and Pm like I?m going to change their minds, I?m going to -- I?m going to have this awesome Royal Rumble and they?re going to be like goddamn, all right, Punk needs to be in the Main Event, he hasn?t been in the Main Event. You know, I remember watching Foley?s DVD and they interview Vince and Vince was like I thought it was a shame that he didn?t have his WrestleMania moment before he retired, so I coaxed him out of retirement and put him in the Main Event, and so I saw that and I?m like well, motherfucker, I?m still here, I?m not retired yet. Well, my hard work?s going to shine through and I?m going to wow them with my fuckin?, my fancy pro wrestling skills and they?ll realize that Randy Orton versus Batista would be a big awesome stinker of a fucking match for a Main Event of Wrestle Mania and I -- I wrestle -- that day I showed Doc that thing on my back, which was now purple and the size of a fuckin? baseball. Colton: It had teeth. Brooks: And he went, ?Does it hurt,? and I went, ?Yeah, actually, it hurts like a motherfucker,? and like the waistband of my tights was like right on it, so like I was aware of it constantly and it was so big that I felt like if I bumped on it it would bust like, you know, I can?t pop it, it?s not like a fuckin? zit of anything, and he?s like ?Well, I?d cut it out now, but you know, you got wrestle in the Rumble, I?d probably want to put you on some antibiotics before I put,? and I went ?Motherfucker, I?ve been on antibiotics since November, what are you doing? Just cut it, cut it right now.? He won?t do it. He just wouldn?t do it. I didnthis shit, I?ve got to wrestle in the Rumble, I?m number one and I?m getting thrown out right at the (Transcript pp. 81 82). So I ?at back and I?m just fuckin? rocked, I?m out of it. Colton: Number 12, 13? Brooks: So I roll under the fuckin? corner and I motion to Doc and I go, have a concussion,? and he was like, ?What do you want me to do?? And I just started laughing and I was like, ?Doctor, you are one of the most worthless piece of shit I?ve ever met.? -- Colton: Well, hold on. Brooks: -- ?in my entire life.? Colton: I agree, but I don?t agree. Brooks: Right. Colton: But what does he do? Brooks: This is -- this is miserable fucking Phil Brooks you?re talking about. Colton: Okay. Brooks: So he goes, ?Do you want me to tell somebody?? I go, ?No, I?m just going to sit here for a minute, I?m going to collect my wits and then I?ll go do my shit.? Next thing I know one of the refs is like, ?Kane?s out here, he?s going to pull you out early,? and my knee-jerk reaction from 15 plus years of being a pro wrestler was fuck you, I?m ?nishing this match. If Kane touches me I?m going to fuckin? quit, you know, so then poor Glen?s out there, he?s like shirtless wearing like business slacks. Colton: Corporate Brooks: And he?s crouching down and the camera?s trying not to shoot him and it was like chaos, but then eventually we did the angle, he choke slammed me through the fuckin? thing and I walked in back and Doc was there and he was like, ?Are you okay? and I was like, ?Cut this fuckin? thing out of me right now, like, whatever the fuck it is, cut it out of me, like I -- I feel like fuckin? shit, I?ve had a fever for weeks, I?m fuckin? green when I look at myself on television,? and he won?t do it because now he?s like, ?Oh, it?s the concussion,? it?s this, it?s that, blah blah bla (Transcript pp. 86-87). Brooks: And then they?re like, ?We need you to Sign this Visa for this country because we?re going on this tour,? and I was like, ?Right now, me, right now, in Cleveland, Ohio take fucking care of me right ?icking now. Don?t worry about where I?m supposed to be tomorrow, don?t worry about what segment I?m supposed to be, fucking ?x me. My fuckin? rib?s broken, my knee is fucking torn up, I am fucking sick, fucking help me,? and they were like, ?No, you have to sign this, you have to piss in this, you have to fucking go take this concussion test.? (Transcript pp. 88-89). Colton: And I think that?s the line, fucking help me. Brooks: My -- my -- my lovely wife convinced me to go to her doctor in Tampa. I went to her doctor in Tampa. I walked in, I?ve never met this guy, all I walked in, I never seen him before, he?s got no idea who I am, he?s like, ?Okay, so what?s the problem?? And I fucking yanked my shorts down and I show him this fuckin? thing on my back. Colton: What kind of doc oh, okay. Brooks: Yeah, yeah, yeah. And he looks right at it, he doesn?t touch it, he just looked at it, cooks his head sideways and he goes, ?That?s a full-blown staph infection.? Colton: Full blown. Brooks: Yeah, and I looked at him and I laughed, and you were there when the doctor told me I had a fractured skull, same laugh, I just went ha ha ha ha, like yeah, of course it is, I have a staph infection because of course I do. Colton: Right. Brooks: Why not? And I'was like, ?All right, what are you going to do?? And he was like, mean, that?s -- he?s like that?s like he?s like, can tell right now like that?s -- the thing?s like purple and green.? He?s like, can cut it out and you need to go to a hospital and get like an antibiotic IV drip.? And I was like, ?Well, let?s say we didn?t have time for that,? you know, he just loaded me up with antibiotics. He cut the thing, he squeezed it, shit shot onto the ceiling. I?ve had tattoos in some of the most painful places, I?ve fractured my skull, Ryback has broken my ribs, a kick on purpose, I?ve wrestled three weeks after knee surgery, this was the most painful experience of my entire life. Colton: Wow. Brooks: And I don?t know why it hurt so bad. Colton: Did it get videotaped? Brooks: No. Colton: Ooh. Brooks: But I sweat like I was in the fucking Sahara desert, like I was clutching the table and this doc was just squeezing this shit and he kept squeezing this shit and then he fuckin?, he patched it up, put a Band-Aid on it, and he gave me three months of antibiotics and I was like ?great.? And so I asked him, I was like ?I?ve been on antibiotics for a long time, like why wouldn?t it do this?? He is like ?Unless you?re on speci?c antibiotics to kill a MRSA infection, he?s like a Z-Pak?s not going to do anything.? Colton: And he?s like ?you?ve been working on this thing?? Brooks: Yeah. Colton: Did he say it was like possible to? Brooks: He said ?how long?? And I was like don?t know, at least three months.? And he was like ?You should be dead. You could have died,? because you know, look up staph infections, people, they?re nothing to fuck with. So I get that taken care of All of a sudden, I can sleep. And I slept, for a long fucking time. (Transcript pp. 97-99). ANSWER: Brooks admits that Colton made the Podcast available for streaming and downloading via the internet. Brooks admits that, in the course of the Podcast, he discussed various medical issues he endured duringihis wrestling career among other subjects. Brooks further states that the Podcast speaks for itself and denies the characterizations of various statements set forth in the referenced paragraph of the Complaint. Except as expressly admitted, Brooks denies the remaining allegations of Paragraph 6, including the allegations in footnote 1. 7. The statements of Brooks and Colton concerning Amann are false, both literally and in their implications. Speci?cally: (A) Amann was not requested by Brooks to treat and/or excise a lump, let alone a purple, baseball-sized lump. Indeed, Brooks never advised Amann of any lump on his back, let alone sought treatment from Amann for a lump on his back. He also never showed a lump on his back to Amann for a medical diagnosis or treatment. (B) Amann did not refuse to treat Brooks for a lump or growth of any kind. (C) Amann did not prescribe antibiotics to Brooks for a lump on his back, broken ribs or a concussion. (D) Amann, upon preliminary diagnosis of a possible concussion, directed that Brooks leave the wrestling ring to avoid further injury and followed proper protocol, including but not limited to attempting to remove him immediately from further contact activity and requesting further evaluation and treatment of Brooks in the training room. He at no time advised Brooks or suggested to him that the course of treatment for a concussion, if any, was up to Brooks? discretion. ANSWER: Brooks generally denies the allegations contained in Paragraph 7, and specifically 10 denies that the alleged statements at issue were false. Additionally, Brooks states that the Podcast speaks for itself and denies the characterizations of various statements set forth in the referenced paragraph of the Complaint. 8. Brooks and Colton published their statements of and concerning Amann with the foreseeable expectation that they would be repeated by third persons, including through print and on-line media, given Brooks? celebrity status as Punk? and Colton?s marketing of the Podcast. ANSWER: Brooks denies that he published any statements. Brooks admits it was a possibility that the Podcast could be discussed by third parties, but denies that the extent to which the Podcast would be reported was foreseeable or reasonably foreseeable, and further denies that it was foreseeable or reasonably foreseeable what speci?c content in the Podcast would be reported. Brooks further states that the Podcast speaks for itself and denies the characterizations of various statements set forth in the referenced paragraph of the Complaint. Except as expressly admitted, Brooks denies the remaining allegations in Paragraph 8. 9. As a foreseeable consequence of the publication of the statements in the Podcast by Brooks and Colton, articles were published in various media, reporting on Brooks? false statements of and concerning Amann, as published by Colton in the Podcast, including but not limited to: (A) The Washington Post, on November 28, 2014: ?But perhaps the most damning story Punk told about health and wellness policy was about the time the company allegedly gave him bad antibiotics, which led to a in his back to become a life-threatening MRSA staph infection. Deadspin summarizes it pretty well. Starting at around 1:13:00 in the video, Punk say the traveling doctor [Dr. Amann] 11 neglected a growth on his back that eventually became very painful. The doctor, he says, would only prescribe generic antibiotics that only caused more issues. Near 1:30:00, Punk says he visited a doctor in Tampa who told him that the was in fact a full- blown staph (Exhibit B). (B) On November 27, 2014, the internet publication, lmaniacom? reported on the Podcast as follows:. ?Punk went off on a WWE doctor named Chris says he found a lump on his back, which Amann said was just a fat deposit. Punk asked Amann to cut it out several times but Amann refused. The lump got bigger and turned purple and painful. Punk told Amann again before the Royal Rumble to cut it out but Amann refused, saying Punk had to Punk left, he went to another doctor that Lee found for him, and that doctor diagnosed the lump as MRSA staph infection and immediately drained pus out of it. Punk said the doctor was stunned that he had been wrestling with the infection for?months and said Punk ?should be dead.? Punk blasted WWE for misdiagnosing and ignoring his infection which he worked with for months.? (Exhibit C). (C) On December 4, 2014, The Washington Post again reported on the Podcast, stating, ?Punk alleged ringside doctor Chris Amann ignored a on Punk?s back that ended up being diagnosed by another doctor as a life-threatening MRSA infection.? (Exhibit D). (D) On November 27, 2014, the on-line publication ?buzzfeed.com? reported that in the Podcast it was stated that ?Punk had been wrestling with an ?odd lump in his lower back that kept increasing in size and pain. WWE doctor Chris Amann [sic] called it a ?fatty deposit? and issued a Z-Pak (antibiotics). Aman [sic] l2 consistently cleared him for action despite Punk?s complaints that the lump was getting bigger and painful and the antibiotics weren?t effective. Punk eventually confronted the doctor after nothing was being done to treat the lump and said, ?Let me ask you, Doc: Is that your medical opinion or are you just a lazy piece of shit?? Another doctor eventually diagnosed Punk with MRSA staph infection, to which he said to Punk, ?You should be dead. You could have died!? (Exhibit E). (E) On November 27, 2014, the on-line publication ?mindofcarnage.com? reported on the Podcast published by Colton as follows: Punk was particularly critical of WWE doctor Chris Amann in his appearance on the Colt Cabana podcast. In it, Punk said Amann misdiagnosed and ignored a MERSA [sic] staph infection on his back for months and that the first doctor Punk went to after leaving WWE was stunned to hear that Punk wrestled with the infection for months, going as far as to say he could have died from it.? (Exhibit F). (F) In its November 27, 2014 edition, ?sportingnews.com? reported that in the Podcast, ?Punk? stated that he noticed a lump in his back in November, 2013 and that ?[w]hen he asked Dr. Chris Amann (the of?cial WWE, doctor) about it, he said it was just a ?fatty deposit? but he refused to cut it out despite Punk?s request because it wasn?t causing him any pain. Over time, it got bigger and turned purple and was not [sic] causing him some pain. Earlier in the day before the 2014 Royal Rumble, Punk again asked the doctor to cut it out who said he couldn?t because Punk was wrestling that night and he had to be on antibiotics for it. This upset Punk even more because he had been on antibiotics for the past three months to deal with his sickness.? The article also included a link to the Podcast. (Exhibit G). 13 (G) In its November, 2014 edition, ?Cool Wrestling News? reported that in the Podcast, ?Punk was particularly critical of Chris Amann, Senior Ringside Physician. Punk said that Amann misdiagnosed and ignored a MRSA infection on his back for months and that the ?rst doctor he went to after leaving WWE was stunned to hear that he wrestled with it. The doctor said he could have died from it.? (Exhibit H). (H) On November 27, 2014, the on-line publication ?Wrestling Rumors? reported on the Podcast as follows: ?Punk worked several months with MRSA, a very serious staph infection. It?s resistant to common antibiotics, so it needs a very speci?c kind of medicine to treat and to Punk, Chris ?Doc? Amann primary physician who he refers to by name) avoided the issue and prescribed broad- spectrum antibiotics to tide him over. The gigantic lump which grew on his waistline was causing him an immense amount of discomfort, yet Amann always found a way to avoid cutting it was only when Lee (his future wife) told Punk to visit her doctor in Tampa Bay that the correct diagnosis was made. If he had waited any longer, there is a very good chance that it could have killed it?s negligence or sheer laziness, not treating Punk?s with the utmost of care is unacceptable no matter which way you look at doctor had to do was stare at the lump to tell how serious the matter was. That?s scary.? (Exhibit 1). ANSWER: Brooks admits that some articles discussing the Podcast or aspects thereof were published by third parties. Brooks admits that there was a possibility that the Podcast could be discussed by third parties, but denies that the extent to which the Podcast was reported was foreseeable or reasonably foreseeable, and further denies that it was foreseeable or reasonably l4 foreseeable what speci?c content in the Podcast would be reported. Brooks further states that the articles referenced in Paragraph 9 speak for themselves and denies the characterizations of such articles set forth in the referenced paragraph of the Complaint. Except as expressly admitted, Brooks denies the allegations in Paragraph 9. COUNT I - DEFAMATION PER SE AGAINST BROOKS AND COL TON 10. Amann restates and incorporates paragraphs 1-9 of the Common Allegations, including each of their respective subparts, as though they were fully stated in Count I. ANSWER: Brooks restates and incorporates herein Paragraphs l-9 of his answers to the Common Allegations set forth above. 11. The statements of Brooks and Colton, and published by Colton, are false and defamatory per se in that they impute a lack of integrity in the performance of Amann?s professional duties as a medical doctor and/or an inability or lack of competence to perform his professional duties as a medical doctor. ANSWER: Brooks denies the allegations in Paragraph 11. 12. Further, Colton af?rmed and ampli?ed Brooks? false and disparaging comments and that Amann did not remove the lump because he was ?lazy,? thus allowing the growth to grow to the size of a baseball, turn purple and blue and was so apparent and obviously dangerous that ?it had teeth.? Colton further assured listeners that Brooks was disclosing ?all that he?s wanted to get off his chest and now he has the opportunity to do it in a safe place with his friend in his own house on a podcast that he trusts has no ulterior motives or you guys give it a real in depth listen, you hear it, you hear the story, you hear the struggle, you hear the heartache. There?s so much to it.? (Transcript p. 4). Colton also told listeners that Brooks was telling ?the whole story? without charge ?to get as 15 many ears as possible to hear this to understand what this man was going through and why the decisions were made.? (Transcript pp. 4-5, 7). Through his participation in Brooks? false statements, Colton af?rmed the statements and communicated to listeners that the statements in the Podcast were truthful and substantive. ANSWER: Brooks denies the allegations in Paragraph 12, and speci?cally denies that the alleged statements at issue were false. Additionally, Brooks states that the Podcast speaks for itself and denies the characterizations of various statements set forth in the referenced paragraph of the Complaint. 13. Defendants knowingly fabricated the false and disparaging statements of and concerning Amann. ANSWER: Brooks denies the allegations in Paragraph 13. 14. Brooks and Colton published the statements with negligence, in that they knew or should have known that the disparaging statements of and concerning Dr. Amann were false and/or failed to investigate the veracity of those statements. ANSWER: Brooks denies the allegations in Paragraph 14. 15. In the alternative, Brooks and Colton published the statements with knowledge that they were false and/or with reckless disregard as to the truth of the statements. ANSWER: Brooks denies the allegations in Paragraph 15. 16. As a consequence of Defendants? defamatory publication, Amann suffered injury to his reputation as a medical doctor. ANSWER: Brooks denies the allegations in Paragraph 16. WHEREFORE, Plaintiff Christopher M. Amann respectfully requests that this Court enter judgment in his favor and against Defendants Phillip Jack Brooks and Scott Colton, 16 award him compensatory damages in an amount in excess of $1,000,000, punitive damages in an amount to be determine at trial, and such other relief that this Court deems just and appropriate. ANSWER: The above prayer for relief does not require a response, as it is not an allegation. If and to the extent that an answer is deemed required, however, Brooks denies the allegations in the prayer for relief, and speci?cally denies that Plaintiff is entitled to the relief sought or to any relief whatsoever. COUNT II - FALSE LIGHT INVASION OF PRIVACY AGAINST BROOKS AND COLTON 17. Amann restates and incorporates paragraphs 1-9 of the Common Allegations, including each of their respective subparts, as though they were fully stated in Count II. ANSWER: Brooks restates and incorporates herein paragraphs 1-9 of his answers to the Common Allegations. l8. Defendants publicized the statements contained in the Podcast by marketing the Podcast, offering it and making it available for streaming and/or downloading and disseminating the Podcast to the public at large throughout the world. ANSWER: Brooks admits that Colton made the Podcast available for streaming and/or downloading. Except as expressly admitted, Brooks denies the allegations in Paragraph 18. 19. The false statements and implications concerning Amann in the Podcast are highly offensive in that they accuse Amann of a gross lack of integrity as a medical doctor, an inability to perform his professional duties as a medical doctor, and in placing the ?nancial interest of his employer above life?threatening health conditions of his patients. ANSWER: Brooks denies the allegations in Paragraph 19. Additionally, Brooks states that the Podcast speaks for itself and denies the characterizations of various statements set forth in the 17 Complaint. 20. The publication of such falsehoods by Defendants was willful and wanton, and was calculated to cause and did cause damage to Amann, causing Amann to suffer injury to his reputation as a medical doctor. ANSWER: Brooks denies the allegations in Paragraph 20. 21. Brooks and Colton published the statements with knowledge that they were false and/or with reckless disregard as to the truth of the statements: Defendants knowingly fabricated the disparaging statements of and concerning Dr. Amann. ANSWER: Brooks denies the allegations in Paragraph 21. WHEREFORE, Plaintiff Christopher M. Amann respectfully requests that this Court enter judgment in his favor and against Defendants Phillip Jack Brooks and Scott Colton, award him compensatory damages in an amount in excess of $1,000,000, punitive damages in an amount to be determine at trial, and such other relief that this Court deems just and appropriate. ANSWER: The above prayer for relief does not require a response, as it is not an allegation. If and to the extent that a further response is deemed required, however, Brooks denies the allegations in the prayer for relief, and speci?cally denies that Plaintiff is entitled to the relief sought or to any relief whatsoever. AFFIRMATIVE DEFENSES T0 BOTH CLAIMS Brooks asserts the following af?rmative defenses to Plaintiff?s claims, without admitting the validity of any of Plaintiffs claims or allegations, without intending any alteration of any applicable burden, without assuming any burden of producing evidence, any burden of proof or any burden of persuasion with respect to any claims or issues as to which the applicable burden is or would otherwise be placed on Plaintiff or any other party. 18 First Af?rmative Defense (Opinion) 1. Brooks incorporates herein the factual allegations set forth in the Second and Third Af?rmative Defenses below. 2. The allegedly false and defamatory statements are constitutionally protected expressions of opinion and are therefore nonactionable under the First Amendment to the US. Constitution. 3. The statements challenged by the Complaint, including without limitation the statements made by Brooks of which Plaintiff complains, do not have a precise and readily understood factual meaning. Brooks? challenged statements may not be reasonably construed as statements of fact in the context in which they were made and the overall context of the Podcast. For instance, such terms and phrases as ?lazy,? and ?worthless piece of shit,? as used by Brooks, consist of loose, ?gurative, rhetorical and/or hyperbolic language constituting nonactionable opinion. Brooks? challenged statements may not be reasonably construed as statements of objectively veri?able fact in the context in which they were made and the overall context of the Podcast. As such, Brooks? challenged statements constitute nonactionable expressions of opinion. 4. Additionally, several of Brooks? challenged statements lack a readily understood meaning, are broad in scope, and can be attributed multiple meanings by different listeners. By way of example, whereas Plaintiff (in paragraph of his Complaint purports to construe a certain statement by Brooks (which purportedly is transcribed on page 79-80 of the transcript attached to the Complaint) as indicating that Plaintiff prescribed a Z-Pak ?r a concussion and broken ribs, a more reasonable and accurate interpretation would be and listeners could reasonably understand Brooks to be saying that Brooks had suffered a concussion and broken l9 ribs, but was not treated for those maladies in any manner. Further, such statements also constitute opinion due to the imprecision and subjective nature of the terms. Indeed, many of Brooks? challenged statements are not objectively veri?able, and are hyperbolic or express other forms of opinion. Accordingly, these challenged statements by Brooks are protected and nonactionable under the First Amendment. Second Affirmative Defense (Rhetorical Hyperbole and Imaginative Expression) 5. Brooks incorporates herein the factual allegations set forth in the First Af?rmative Defense above and the Third Af?rmative Defense below. 6. The allegedly false and defamatory statements are protected by the First Amendment and nonactionable as rhetorical hyperbole and imaginative expression. The challenged statements, including without limitation the challenged statements made by Brooks during the Podcast, consist of and contain loose, ?gurative language not capable or having a precise literal de?nition; do not have precise and readily understood factual meanings; are not objectively veri?able; and may not reasonably be understood as stating actual facts. Further, the context of the challenged statements signals and indicates that the statements are hyperbolic and not intended to be taken literally. Third Affirmative Defense (Innocent Construction) 7. Brooks incorporates herein the factual allegations set forth in the First and Second Af?rrnative Defenses above. 8. The allegedly false and defamatory statements challenged by the Complaint are reasonably capable of innocent and/or nondefamatory constructions and interpretations. 9. Among other reasons, the challenged statements are reasonably capable of being interpreted as referring to a person or persons other than Plaintiff. None of the challenged 20 statements refers to Plaintiff. Moreover, listeners could have reasonably construed various ?9 ?6 references by Brooks to ?Doc, they? and ?they?re? as referring to a person or persons other than Plaintiff. Nowhere in the Podcast is it stated by Brooks or Colton that Plaintiff was the WWE doctor on duty during the ?Royal Rumble,? or that Plaintiff is the ?Doc? referenced in other portions of the Podcast, or that all of the references to ?Doc? are to the same individual, or that any of the references to the plural ?they? or they?re? are references to Plaintiff. The statements about which Plaintiff complains did not refer to Plaintiff by name and could be reasonably construed to refer to persons other than Plaintiff. During the relevant time period, there were multiple physicians, as well as other medical and training staff, engaged by WWE to provide medical services to wrestlers. 10. Further, the challenged statements are reasonably capable of innocent and/or nondefamatory interpretations for other reasons and in other respects. Various of the challenged statements made by Brooks may be reasonably interpreted as conveying his intention to share his subjective views about his experiences; as expressing his subjective opinions; as rhetorically hyperbolic; and/or as fair comment. Additionally, the challenged statements made by Brooks of which Plaintiff complains are reasonably capable of innocent constructions as hyperbolic, expressions of opinions, fair comment, and/or in other respects. When the challenged statements are construed in their proper context, and when the challenged statements are given their natural and obvious meanings, they are reasonably capable of non-defamatory meanings and interpretations. Fourth Affirmative Defense (No Actual Malice or Fault) 11. Brooks did not act with any sort of malice or fault when he made the alleged statements challenged by the Complaint in the course of the Podcast. 21 12. Plaintiff is a public ?gure for all purposes or, at a minimum, a limited purpose public ?gure. Plaintiff has willingly been employed in a very public role as a doctor for or af?liated with WWE, a professional sports organization and entertainment conglomerate that is the subject of widespread public interest, attention, concern and controversy, including, but not limited to, with respect to the medical treatment, health and safety of the wrestlers whom Plaintiff is charged with treating. 13. Further, Plaintiff has voluntarily become a public ?gure in his own right by engaging in numerous actions and a course of conduct that were designed to call and had the effect of calling public attention to himself and elevating his pro?le and status in the public eye. Plaintiff has frequently appeared in televised and live WWE performances as part of the shows and performances. Plaintiff has intentionally and willingly appeared on a popular podcast promoted by the WWE and has given numerous interviews to members of the media regarding numerous subjects, including, without limitation, concerning the alleged health and treatment of WWE-af?liated personnel. Plaintiff has a Twitter handle (@WWEDocAmann) with thousands of followers that he has used as a public platform to send out Tweets that, among other things, deliberately raise his public pro?le and persona, promote himself and his role with the WWE, and publicize himself, the WWE, WWE wrestlers and other personnel, and other subjects. Indeed, as of the date of this ?ling, the background picture selected by Plaintiff on his Twitter page is a photo of Plaintiff appearing in the ring in WWE apparel during a WWE performance. Additionally, Plaintiff has intentionally injected himself into the public and into one or more public controversies regarding the health, safety and/or medical treatment of athletes by, among other roles, agreeing to serve and serving as the team physician for the United States Olympic Committee and the United States Soccer Women?s National Team, by serving as the ringside 22 doctor for the United States Professional Boxing Association, and by working in various roles and capacities with other professional, semiprofessional and amateur sports teams and organizations that are in the public eye, and the health, safety and medical care of whose athletes are matters of public concern and controversy. Through these and other voluntary acts, Plaintiff has become a public ?gure and has injected himself voluntarily into one or more public controversies, including, without limitation, relating to the health, safety and/or medical treatment of wrestlers and other athletes. 14. Brooks did not make any statement challenged by Plaintiff?s Complaint with the knowledge that such statements were false or misleading. Brooks did not believe or understand any of his statements in the Podcast to be false or misleading, nor did he make any of his challenged statements with reckless disregard of whether the statements were false, without a reasonable basis for believing the statements to be true, or with serious doubts as to the truth of those statements. In fact, Brooks reasonably believed and understood that the statements challenged by Plaintiff? Complaint were true. Fifth Af?rmative Defense (Substantial Truth) 15. Brooks incorporates herein the factual allegations set forth in the Seventh and Eighth Af?rmative Defenses below. 16. The statements challenged by Plaintiff?s Complaint were substantially true, in that, among other reasons, the ?gist? and ?sting? of the allegedly defamatory statements and/or material were truthful, and the statements in question caused no incremental harm to Plaintiff. 17. Further, even if and to the extent that the statements at issue were not technically or literally accurate in every detail, no reasonable jury could ?nd that the statements were not substantially true. 23 18. Brooks made his challenged statements with good motives and for justi?able ends. Sixth Af?rmative Defense (Fair Comment) 19. Brooks incorporates herein the factual allegations set forth in the First, Second, Third and Fourth Af?rmative Defenses above and the Seventh Af?rmative Defense below. 20. Plaintiff?s claims are barred by the fair comment and criticism privilege. 21. The statements were made on a podcast whose subject matter contained and consisted of the opinions and commentary of the host and guests. The challenged statements were fair commentary concerning legitimate subjects of comment and criticism on matters of public interest and concern, including topics related to the health and safety of professional athletes and the treatment of concussions. 22. The challenged statements represent the actual opinions of Brooks and/or Colton. Alternatively, to the extent that the challenged statements relate to actual events, they constitute fair commentary and criticism concerning Brooks? experiences. The challenged statements were made with an honest purpose and were not made solely for the purpose of causing harm. Seventh Af?rmative Defense (Unclean Hands) 23. Plaintiff?s claims and damages, including without limitation, Plaintiff?s requests and prayers for punitive damages, and Plaintiffs request and prayer for relief within the Court?s discretion other than and in addition to the purported damages that are sought by the Complaint, are barred and precluded because Plaintiff has engaged in misconduct and acted in bad faith with respect to the subject matter of this litigation. 24. In his role and capacity as a purported physician for the WWE, Plaintiff has 24 repeatedly placed the interests of the WWE over the medical interests of Brooks and other patients, and has prioritized the interests of the WWE over the health and safety of Brooks and other WWE wrestlers. Further, Plaintiff, during his tenure with the WWE, has engaged in unprofessional, incompetent and/or dishonest conduct in furtherance of the entertainment and/or business interests that compromised and tarnished his reputation, professionalism and/or integrity. 25. Additionally, Plaintiff violated his duty of physician-patient con?dentiality to Brooks, and invaded Brooks? rights of privacy, by improperly including and disclosing in Plaintiff?s Complaint private, privileged and con?dential information and allegations concerning Brooks? health and the medical treatment that Brooks received from Plaintiff and/or other WWE doctors. Additionally, Colton is informed and believes, and based thereon alleges, that Plaintiff violated his duty of physician?patient con?dentiality to Brooks, and invaded Birooks? rights of privacy, by improperly including and disclosing in the Complaint private, privileged and con?dential information concerning Plaintiff?s c0nversations with Brooks regarding Brooks? medical treatment, without ?rst obtaining any permission or waiver by Brooks. 26. Additionally, Brooks is informed and believes that Plaintiff collaborated, coordinated and conspired with the WWE in bad faith to prepare, bring and pursue this lawsuit in retaliation against Brooks and Colton for the embarrassment that the Podcast caused the WWE through and as a result of Brooks? candid and truthful discussion of various of his experiences as a WWE wrestler, despite the fact that Plaintiff knows full well that the statements about which he complains are true and/or substantially true. Further, Brooks is informed and believes that Plaintiff cooperated with the WWE in the preparation and improper release of the alleged results of a supposed investigation concerning Brooks? con?dential and private medical information on 25 the day after the Plaintiff ?led this Complaint, which purported to support certain allegations in Plaintiff?s Complaint and to dispute and contest certain statements made by Brooks in the course of the Podcast. Upon information and belief, Plaintiff cooperated and conspired with the WWE to prepare and coordinate the preparation of the supposed investigation report whose alleged results were released to the public and publicized widely very shortly after Plaintiff ?led his Complaint herein. Eighth Affirmative Defense (Absence of Damages Presumed Damages Excessive) 27. Plaintiff has not alleged and cannot prove any actual or special damages, and Plaintiff has not suffered any damages as a result of the challenged statements. Plaintiff continues to be engaged by the WWE, and the WWE has publicly defended Plaintiff with respect to the challenged statements made on the Podcast. Moreover, the challenged statements were not the actual, proximate or legal cause of any economic injury to Plaintiff, any actual or cognizable injury to Plaintiff?s reputation, or any other concrete loss. Under these circumstances, any award of damages, including but not limited to an award of presumed damages, would be excessive, would be based purely on speculation, and would not serve a valid compensatory function. Ninth Af?rmative Defense (Presumed Damages Violative of Due Process) 28. Further, to the extent that the Complaint seeks presumed damages, it violates Brooks? rights to procedural and substantive due process because of, among other things, the vagueness and uncertainty of the criteria for the imposition of presumed damages and/or the calculation of presumed damages. Plaintiff has not alleged and cannot prove any actual or special damages, and Plaintiff has not suffered any damages as a result of the challenged statements. Plaintiff continues to be engaged by the WWE, and the WWE has publicly defended Plaintiff with respect to the challenged statements made on the Podcast. Moreover, the challenged statements were not the 26 actual, proximate or legal cause of any economic injury to Plaintiff, any actual or cognizable injury to Plaintiff?s reputation, or any other concrete loss. Under these circumstances, any award of presumed damages would violate Colton?s rights of due process. Tenth Af?rmative Defense (Punitive Damages Excessive) 29. Any award of punitive damages would be excessive and unlawful under Illinois common law. Colton conducted the interview with Brooks at issue in good faith without any sort of malice or other degree of fault. Further, Plaintiff suffered no actual or concrete harm whatsoever. No award of punitive damages is necessary or appropriate to punish Colton or deter him or others from any unlawful conduct in the future, and Colton?s alleged conduct does notjustify or warrant the imposition of sanctions to achieve any valid aims of punishment or deterrence. Moreover, any award of punitive damages would have a dangerous and substantial chilling effect on protected speech. Accordingly, the matters at issue cannot provide a basis for a claim of punitive or presumed damages, and any award of punitive damages would be excessive. Eleventh Affirmative Defense (Punitive Damages Violative of Due Process) 30. Any award of punitive damages would be violative of due process. Colton conducted the interview with Brooks at issue in good faith without any sort of malice or other degree of fault. Plaintiff suffered no actual or concrete harm whatsoever. No award of punitive damages is necessary or appropriate to punish Colton or deter him or others from any unlawful conduct in the future, and Colton?s alleged conduct does notjustify or warrant the imposition of sanctions to achieve any valid aims of punishment or deterrence. Any award of punitive damages would have a dangerous and substantial chilling effect on protected speech, and would be grossly excessive and disproportionate to any supposed actual injury, which Plaintiff has not alleged and the existence of which is denied. Under these circumstances, any award of punitive damages would violate Colton?s rights of due 27 process. 31. Additionally, to the extent that the Complaint seeks punitive damages, it violates Colton?s right to procedural and substantive due process because of, among other things, the vagueness and uncertainty of the criteria for the imposition of punitive damages and for the calculation ofthe amount of punitive damages. RESERVATION OF RIGHTS TO ASSERT ADDITIONAL DEFENSES Brooks has not knowingly or intentionally waived any applicable defenses, and reserves the right to assert and rely upon other applicable defenses that may become available or apparent during discovery or through the trial in this matter. JURY DEMAND Brooks demands a trial by jury of all defenses upon which he is entitled to a jury trial. PRAYER FOR RELIEF WHEREFORE, Defendant Phillip Jack Brooks a/k/a Punk? requests that the Court ?nd that Plaintiff is not entitled to any judgment or relief, that the Court shall enter judgment in favor of Brooks and Colton, and that the Court grant any such further relief to Brooks as the Court deems equitable and just. 28 Dated: August 24, 2015 PHILLIP JACK BROOKS Defendant By: Saul Daniel Brenner kw Loeb Loeb LLP One of His Attorneys 10100 Santa Monica Boulevard Suite 2200 Los Angeles, CA 90067 310.282.2284 sbrenner@loeb.com Atty. No.: 6318911 Laura McNally Emily Stone Loeb Loeb LLP 321 N. Clark Street Suite 2300 Chicago, Illinois 60654 312.464.3100 lmcnally@loeb.com estonegagloebeom Firm. No.: 44491 29 AFFIDAVIT OF INSUFFICIENT KNOWLEDGE STATE OF ILLINOIS ss. COUNTY OF COOK Laura McNally on oath deposes and says: 1. That he is the attorney representing the party on whose behalf this answer was prepared. 2. That this answer contains certain statements of insuf?cient knowledge on which to base a belief as to the truth or falsity of the allegations contained in the complaint. 3. That those allegations of insuf?cient knowledge are true and correct. SUBSCRIBED AND SWORN before me thisQ? _day of 2015 Wow Notary Puhlic ANGELA 0 PROVENCIO 2 OFFICIAL SEAL 3 Notary Public State My Commassron Expires November 21, 2017 30 CERTIFICATE OF SERVICE The undersigned certi?es that a true and correct copy of the foregoing PHILLIP JACK ANSWER AND AFFIRMATIVE DEFENSES TO THE COMPLAINT was served upon: Phillip J. Zisook Brian D. Saucier Deutsch, Levy Engel, Chartered 225 West Washington Street Suite 1700 Chicago, Illinois 60606 T: (312) 346.1460 F: (312) 346.1859 Atty No. 90235 Attorneys for Plaintiff this 24th day of August, 2015, via ?rst class mail. 04% 713M .1 Art Attorney for the Def ants Saul Daniel Brenner Loeb Loeb LLP 10100 Santa Monica Boulevard Suite 2200 Los Angeles, CA 90067 310.282.2284 sbrenner@loeb.com Laura McNally Emily Stone Loeb Loeb LLP 321 N. Clark Street Suite 2300 Chicago, Illinois 60654 312.464.3100 lmcnally@loeb.com estone@loeb.com 31