eprex injection subcutaneous dermasone cream side effects cost of colcrys medication canadian health care pharmacy tinazol cream of wheat augmentin and alcohol consumption effexor side effects effexor withdrawal plavix side effects plavix medication pharmacy technician salary in illinois furosemide 40 mg canadian pharmacy aldactone spironolactone side effects baytril for cats with bladder infection prescription dilantin buy liquid viagra discount online stores cialis soft tabs 20mg canadian seroflo inhalers nexium coupons cialis daily 5 mg online valacyclovir hcl 1 gram tablet lamictal and alcohol use aviane side effects purchasing flagyl over the counter doxycycline overnight delivery generic viagra on line arthritis gloves amitripyline online pharmacy usa direct pharmacy neurontin gabapentin side effects weight gain where to buy cheap metformin sildegra 100mg zoloft voveran sr overnight cialis goldshield eltroxin orlistat 60 mg side effects duloxetine cymbalta zyvox antibiotic price donormyl ingredients in marshmallows lasuna other namens glyprin aspirin 81mg free viagra samples moneyback digoxina in english what is an article insurance institute for highway safety 2015 order meds no acript flagyl forte 500mg obat apa types of cialis therapy 2000 san antonio viagra samples by mail generic cialis without prescriptions prednisone without prescription in uk lamisil tabs 250mg biaxin antibiotic dose diclofenac without perscription imigran gelap di cianjur no prescription cialis online vips pharmacy midamor diuretic pills mirapex side effects mirapex restless leg syndrome estrace without prescription haldol decanoate injection dosage lortab hydrocodone 7.5 purchase condyline pdf viewer amlodipine besylate norvasc lantus insulin price at walmart amermycin capsule aprovel irbesartan medicine buy bupropion next day cealis 5mg universal drugstore lotemax 0.5 eye drops dosing wholesale cost of cialis cialis 5mg dose propecia hair loss treatment in women epanutin phenytoin levels ampicillin with out perscription us pharmacies for lasix non presription meds on line no prescribtion viagra brand name only low cost vardenafil shop provera propranolol dosage for migraine prevention maxifort tomato seroxat cr 12 5mg percocet diovan blood pressure medicine valsartan vimax detox and raspberry ketones mifepristona costo en mexico rimadyl 100mg chewable 60ct epogen dosing chart microcidal molecules and compounds ocean fitness walmart pharmacy viagra pricing cheapest sildalis 120 mg vyvanse colchicine perscription on line binotal 500 mg garlic butter sauce for musselsgarrigue latisse md discount code levaquin side effects lawsuit texas amoxil 500mg capsule cyclidox tablets for sale algodones pharmacy online what is betnesol tablets kamagra with paypal provera to start period risk aldara side effects hair loss laxifen tablets at walmart citrate of magnesia vermox no prescription how much do gabapentin sell for dopareel 10mg methadonedostinex cheap viagra for sale cialis generic overnight shipping levobiotic 500 mg androgel testosterone gel price rizatriptan benzoate 10 mg side effects buy atarax no script fosamax side effects bisphosphonates sunrise cialis vidalista 60 reviews reaction to flonase nasal spray side effects buy viagra in poland what is the price for cialis c r walgreen prostitute filitra 20 subutex treatment doctors prednisone 5mg dose pack directions erythromycin in pregnancy cicloferon aciclovir cream 5 nasonex nasal spray side effects spiriva side effects if swallowed orlistat delivry leconfield restaurant budesonide side effects medication and alcohol requip restless leg syndrome symptoms mavidol sl 30 mg oxycodone paypal no prescription pharmacy price of abilify at costco topical minoxidil for women side effects indomethacin 50 mg for gout meclizine 12.5 mg for vertigo generic diovan release date viagra south africa cheao non generic viagra swiss medico sinequanone definition of socialism omeprazole 40 mg capsule cost carbimazole 5mg yasminelle tablets at walmart efectos secundarios de lisinopril vantin antibiotic drug tadalafil vs tadacip trimox 500mg capsule picture mirtazapine 30 mg remeron for sleep losartan 50 mg allopurinol 300 mg tablets salazopyrin medications fosamax osteoporosis side effects decadron effets secondaires sevrage unisom for morning sickness safe cost for cialis from walmart 165 prescription viagra from canada cyclidox tablets sale l arginine and cialis ciprobay ciprofloxacin classification doxycycline for cheap procalisx reviewed financial statement depakote toxicity icd 9 code medazole 500 internal server cvs pharmacy cost for 50 mg viagra nuvigil medication side effects free viagra by mail american discount pharmacy restonite ambien overdose dapoxetine review romanian pharmacy online selling cytotec antibiotics for sinus infection while pregnant cholesterol medications with least side effects avodart 0.5 mg results buy viagra in egypt risperdal medication for children natural cialis substitutes viagra in canada for sale samonas sound therapy in georgia joint pain birth control pills prednisone dog purchase levothyroxine 125mcg cheap cialis online usa extenze free sample packs pfizer viagra discount lexapro weight loss drug roxifen gelato amerimedrx pharmacy nimesulide and paracetamol tabletsnisoprostolnitrazepam generic viagra india 100mg baby motrin recall 2015 misoprostol abortion pill online is prinivil generic for lisinopril evista generic levitra prices at walmart lidocaine powder medrol 4mg dosepak 21s side effects over counter erectile dysfuntion xenical de rocher peru penegra india pills elifemeds reviews on vigrxenalapril order free birth control pills online sialis tablets side effects prednisone 20 mg ramipril 10mg capsules hong kong viagra zyvox linezolid 600 mg tenormin medications kosovarja numri me i rise sinequanone 2015 toyota sureway henderson ky store hours order accutane overnight buy soloxine no rx needed best place to order generic cialis vpxl cheap maxalt mlt 10 mg od tablets bactrim side effects rash canadian overnight clopidogrel 75mg tablets pics leponex tabletennis11 norvasc amlodipine side effects viagra commercial actress generic levitra paypal buy viagra online in canada online pharma 24h anxiety medication lists diamox side effects acetazolamide 500 fluconazole 150mg requip side effects gambling buy clomid online with fast shipping atorlip 20mg ambien phexin bd 750mg test cheap nizagara universal pharmacy online sominex side effects vimax patch scam viagra mercado libre filagra paypal il viagra puo essere mutuabile best drugstore powder foundation crestor medication generic equivalent erythromycin dosage for sinus infection abortion pill online cheap orderpharma coupon database levamisole wormer viasek 50mg prednisone medicstar online medicines from mexico how does cialis work for bph cockapoo puppies for sale available in virginia cardura for sale finasteride deutschland amoxicillin for sinus infection deliver mercilon amerimedrx discount tire haldol for nausea and vomiting buying roaccutane online whats in fake accutane bought online salbutamol ventolin 2mg/5ml syrup strattera vs adderall for adults extenze side effects side effect of zentel worm medicine cheapest no prescription prozac herbal viagra australia bactrim without a percription cheap cialis for sale furosemide over the counter substitute over the counter testosterone cream diclofenac sodium side effects bactroban ointment uses ringworm north harbour pharmacy propecia red bull with viagra ospamox 500mg sirup no presciption drug store doxycap dosage calculator buy cheap tetracycline online pills antifungal for people tylenol dosage for infants bystolic package insert buying viagra online doha cialis professional online telefoane si tablete de vanzaretadacip yasmine akram images best erection pills for men xatral 10mg medication claravis side effects changes in eye color sildenafil spray buy cephalexin capsule 500mg alzytec 10 mg melatonin classification of blopress buy pills online with no prescription temovate ointment and cream generic cialis from mubai metformin and pregnancy rates digoxina presentacion diamox altitude sickness prevention levitra duration of action regenon romania pharmacy fluconazole 200mg pravastatin sodium 10 mg side effects cefixime 400 mg brand names and prices sibutramine hydrochloride monohydrate capsules 10mg confidex silverline resort buy cialis asia viagra for sale cannada mirtazapine 30 mg side effects when taken with trazodone alzytec medicine cabinets apertium uoc domperidom without perscription levamisole hydrochloride for dogs natural dapoxetine online does cialis have a shelf life salbutamol information dose buy cialis and pay whit paypall 200mg cialis motrin 800 ibuprofen prescription insurance marketplace cialis daily for sale cyrux medicine wheel buy cialis 20mg australia advair by mail coumadin diet content marketing strategy non generic cialis estrofem 2mg prices amiloride diuretics avalide side effects irbesartan avapro lergigan miteqlesofat viagra online stores ebay cialis levitra bestellen where to buy clomid online bodybuilding benazepril hydrochloride side effects in dogs levothroid side effects levothyroxine 100 pfizer viagra brand viagra generic for sale mobicox 15 mg indicaciones geograficas levitra orosolubile zantac side effects zantac 150 buy tamoxifen no prescription uk levitra forum al femminile metoprolol side effects metoprolol tartrate citalopram online obat motilium rxdrugstore medicines that cause diclofenac sodium 75mg ec tablets kwikmed viagra without a doctor prescription buy bactrim online will viagra work after you ejaculate cheap brand name levitra tadalafil kaufen in deutschland best online pharmacy cialis depakote er 500mg medication side effects can you inject buspirone atlas rx cialis clomid 100mg online canadian pharmacy nootropil 800 information numbers viagra without prescription canada starcef cefixime dosage acnelyse cream cheap wellbutrin xl no prescription minocycline uses for acne treatment cialis dailey drugs from canada super kamagra london awc drugstore effexor withdrawal symptoms duration cialis gereric usa sildenafil cheapest price order neurontine overnight cipla eas do generic cialis pills work purchase doxycycl hyc 50 mg allopurinol 300 mg espanol cefaclor 250 mg capsule side effects qsymia price at walmartqualityrx eulexin and pcos symptoms angela ginseng for women where to buy alli cheap priligy dapoxetine online drugstore cost of crestor at walgreens caffeine withdrawal symptoms duration how to buy cipla online albuterol online no prescription canadian price cialis 20mg rhinathiol expectorant carbocisteine sifrol pramipexole tremor bystolic cost without insurance healthy man viagra reviews accutane buy pharma penegra xpress 50 where can i buy cytotec to induce labor how much does viagra cost per pill 337 best meds online astelin pediatric dosage kemadrin drug interaction wife took cialis stieva a review buy albendazol without prescrition meprate 2.5 haldol elderly dose stanozolol for sale online mens health viagra quetiapine online will augmentin treat ringworm viagra best prices aleve vs ibuprofen for headaches shop prozac 20 mg non prescription ceftin comprar doxciclinas entocort medication budesonide tramadol online next day benicar medication zentel medicine albendazole cheap cialis canada pharmacy price increase on doxycycline levitra canada pharmacy online comprare cialis generico in italia generic viagra online reviews cialis mexican pharmacy no imatation ebay precio de la ciales bactrim antibiotic overnight clotrimazole solution for pets plendil side effects felodipine celexa canada no prescription canadian drugstore no prescription hydrocone no prescption canada hydroxyzine side effects atarax restonite 10 mg overnight online pharmacy viagrageneric viagrageneric cialis trileptal 300mg 5ml lortab 10 mg picture clomiphene citrate side effects on men tibolone livial 2.5mg tablets exelon corp stock value best place to buy generic viagra uk tapiales hoyt diltiazem hydrochloride tablets nolvadex dosages purchasing ranitidine reputable suppliers of generic viagra suprax in canada buying wellbutrin from mexico lipitor generic sifrol pramipexole treatment for bronchitis metrogel vaginal gel and pregnancy pyridium 200mg dose haloperidol 5mg injection cafergot medications doxycycline without a prescription berifen medicina alternativa venlafaxine hcl er 37.5mg cp24 albendazole dosage for pinworms paracetamol in pregnancy natural viagra foods finasteride 1 mg cheap buy oral jelly xeloda 500mg cost astelin nasal spray azelastine hcl cymbalta side effects cymbalta and weight gain generic viagra combo yasmin le bon and simonyasmine permethrin 10 mixing instructions for horses list of pharmacy in india entocort colitis still flare anastrozole 1 mg men what is betagesic gpchealth coupons for pizza orlistat vente libre aciphex medication information prednisone for dogs side effects urination lotrisone lotion clotrimazole lexapro withdrawal symptoms side effects forum schwarzmarkt viagra cialis keftab 500 lortab 5/325 street value content management system pulmicort respules coupons cefaclor 250mg side effects northern pharmacy canada commander du cialis professionnel garlic butter sauce for pasta 200mg viagra malegra fxt mestinon timespan 180 decadron dosage for brain tumors pulmicort respules dosage order oxybutynine uk canadian viagra 100mg online alli 120 remeron canada levitra sales online longterm use of baclofen oracea side effects capsule kamatra sumatra volcano ventolin inhaler coupons 2014 vytorin 10/40 cholesterol drug
Home All Articles The Clemens Defamation Lawsuit: Proving the Case

Like Shoot to Thrill - An AC/DC Tribute on Facebook!

An authentic tribute of AC/DC that covers the best of the Bon Scott era and the best of Brian Johnson's material

Who's Online?

We have 907 guests online

Atom RSS

The Clemens Defamation Lawsuit: Proving the Case PDF Print E-mail
User Rating: / 16
PoorBest 
Articles & Opinion
Written by Patrick K. Thornton   
Wednesday, 09 January 2008 07:03

A Biz of Baseball OriginalContrary to what most legal experts believed, Roger Clemens has now filed a defamation lawsuit against his former trainer and friend Brian McNamee.  Lawyers for both sides had been posturing for weeks with McNamee’s lawyers stating several times that McNamee was actually contemplating suing Clemens for defamation.  McNamee’s lawyers have already indicated they will object to jurisdiction in the recent lawsuit filed by Clemens and will attempt to move the case to federal court in Brooklyn.  Where the trial is actually held could prove the deciding factor if the case ever makes it to a jury.

Clemens has repeatedly denied steroid use.  He appeared on 60 Minutes the same day the lawsuit was filed and denied that he has ever used steroids.  The next day he held a press conference where he once again angrily denied any steroid use.  Clemens’s preemptive act of filing a defamation lawsuit has clearly shown he is not going to sit idly by and wait for this matter to resolve itself. He clearly drew a line in the sand when he filed the lawsuit.  McNamee will now have to answer the Clemens lawsuit and will most likely fill a counter-claim against Clemens alleging Clemens defamed him.  Once the parties have filed the initial pleadings McNamee’s lawyer will attempt to have the case moved to New York to be heard by a New York jury.  The discovery phase of the lawsuit should produce some interesting results.  Both parties to the litigation will have to give a deposition which is sworn testimony but not in the presence of a jury or judge.  Deposition testimony is treated just as the same if the witness is testifying in front of a judge or jury.  Clemens will be questioned by the lawyers for McNamee and Clemens’s lawyers will question McNamee.  Both parties to the lawsuit will certainly be subject to hours of intense questioning by opposing lawyers in the lawsuit.   

A trial may be more than two years away and they are many possible land mines for both parties along the way. Litigation always has surprises for the parties in the form of a new found witness or document.  Whatever court the case ends up in will certainly require the parties to attempt to mediate their dispute and try to settle the case.  Most plaintiffs in a defamation case seek damages to recover for loss of reputation but it is uncertain and probably doubtful if McNamee is a collectable defendant if the matter ever ended in a verdict for Clemens for money damages.  If McNamee files a counter-claim and a jury finds in his favor then he might be able to collect damages from Clemens.  Other likely deponents during discovery could include former Yankees manager Joe Torre, Andy Pettitte, former Clemens’s teammates and anyone who may have knowledge about whether Clemens allegedly used steroids.  Former Senator George Mitchell might even be required to give a deposition if the matter is not settled prior to the discovery phase of the lawsuit. 

(Select Read More to see the rest of this original article on The Biz of Baseball)

Richard Emery, one of McNamee’s lawyers, has clearly stated he thinks the lawsuit has no merit:

"I think it's dismissible on its face. I think it's a press release for Clemens and his career.  The case is shoddy at best. The prosecutors acted completely professionally in this case…”

It is strategic that Clemens filed the lawsuit on the same day he appeared on 60 Minutes.  Filing a lawsuit does not necessarily mean however, that he will pursue it to a jury verdict.  He could always agree to dismiss the lawsuit at later date or the parties could settle their dispute and agree that the terms of any agreement be kept confidential.  Interestedly, Clemens did not sue Major League Baseball only McNamee.  He might have argued that MLB published the report and therefore, damaged his reputation as well.  Maybe Clemens’s thought better of it.  Clemens’s lawyer Rusty Hardin was very clear in stating in the press conference on January 7, 2007 that the lawsuit in no way reflected poorly on George Mitchell or his investigation.  He stated several times that the former Senator’s credibility and character was impeccable. 

The fourteen page lawsuit alleges that McNamee’s statements that he injected Clements with steroids are “false and defamatory per se because they are not true, and they injured Clemens’s reputation and exposed him to public hatred, contempt, ridicule, and financial injury.  McNamee made the allegations with actual malice, knowing they were false.”  (Plaintiff’s Petition Paragraph 34). 

The Clemens lawsuit has summarily stated:

“Though McNamee’s allegations comprise only eight pages of a 409-page report, they captured the attention of the nation, fueled rampant speculation, and irreparably tainted the reputation of one of baseball’s hardest working and most talented pitchers.” (Plaintiff's Petition Paragraph 7).

The lawsuit lists fifteen alleged statements made by McNamee to federal investigators all of which Clements claims are “untrue and defamatory.”  The lawsuit alleges that during an interrogation by federal law enforcement authorities in June 2007, “McNamee told others that he repeatedly denied that Clemens had used steroids or HGH.”  (Plaintiff's Petition Paragraph 26).  The lawsuit further alleges that McNamee was facing the threat of federal prosecution so he agreed to speak with the Mitchell Commission.  He then stated he injected Clemens with steroids.

Interestedly, Clemens also notes in his lawsuit that McNamee was once a suspect in a rape investigation in Florida.  (Plaintiff’s Petition Paragraph 20). This will certainly present itself as a credibility problem for McNamee in the Clemens lawsuit.  Lawyers for Clemens will clearly want to note that McNamee has difficulty telling the truth during that investigation. Clemens says he stopped training with McNamee after the 2001 season when he learned McNamee was a suspect.  No formal charges were ever brought against McNamee although Clemens alleged in his lawsuit that McNamee lied to the police in Florida and “refused their requests for evidence in a situation when he denied any wrong-doing…” (Plaintiff’s Petition Paragraph 20).  Sports Illustrated has reported that the St. Petersburg Police has stated McNamee lied to them during the rape investigation.  Sports Illustrated, Police say McNamee lied in 2001, January 8, 2008.  Clemens states that McNamee’s dismissal from the Yankees organization and from Clemens as well left him “embittered”.  (Plaintiff’s Petition Paragraph 20).  Clemens further alleges in his lawsuit that although “McNamee’s explanation was totally at odds with the conclusion of the police officers conducts the investigation,” {sic} Clemens did not know any of these facts so he re-hired McNamee once again. (Plaintiff’s Petition Paragraph 21).

The tort of defamation consists of both libel, defamation by words written or print, or slander, communication by spoken words.  Defamation of character involves wrongfully hurting a person’s good reputation.  The law does improve a general duty on all persons to refrain from making false, defamatory statement of facts about others.  In Texas, where the case is currently pending, to prove a case for defamation a plaintiff must prove:

  1. That the defendant published a statement.  In this case publication would mean communication to a person other than the defamed party.
  2. That the statement was defamatory.
  3. That the defendant acted with “actual malice.”

An individual who is deemed a “public figure” under the law must prove “actual malice” to prevail in a defamation lawsuit.  Public figures generally have some access to a public medium for responding to defeat false statements; private individuals generally do not have such access.  Clemens would most certainly be considered a public figure under the law. To prevail he will have to prove that McNamee “acted with a knowledge of falsity or with a high degree of awareness of probable falsity of the publication at issue”, to prevail on his claim.  New York Times, Inc v. Isaacks, 146 S.W. 3d 144, 165 (Tex. 2004).  It will be a difficult burden for Clemens to prove.  McNamee’s defense will be that he is telling the truth.  If a jury believed he was telling the truth then Clemens’s lawsuit against him will fail. 

In a rather odd twist between the two old friends and new litigants, a seventeen minute phone conversation occurred between Clemens and McNamee on Friday, January 4, 2007.  During the rather emotional conversation McNamee asks Clemens several times “what do you want me to do.”  Clemens noted during the guarded conversation between the two that he just wanted the truth to come out.  Clemens’s lawyers were in the room during the conversation and he was being very careful not to tell McNamee what to say. 

The Mitchell Report was a bombshell and linked many baseball stars to steroid use.  Some stepped forward and admitted use including Clemens’s good friend and teammate Andy Pettitte.  Clemens chose to take the offensive and file a lawsuit.  He has demanded he is innocent and says he should get the benefit of the doubt.  Clemens has now become the face of the Mitchell Report.  Add to the Mitchell Report and the lawsuit a congressional investigation.  Clemens has said he will voluntarily testify in front of Congress.  Andy Pettitte’s lawyer, Jay Reisinger recently said it is “premature” to say whether Pettitte will testify in front of Congress.  McNamee has also said he will testify before Congress as well.

Where does this existing lawsuit go from here?  Could the lawsuit actually end in a jury trial with a parade of star witnesses such as Clemens, Pettitte, George Mitchell, and Barry Bonds testifying?  It is highly improbable that the lawyers or the parties to the lawsuit desire such an outcome.  Lawsuits however have ways of getting a life of their own and when pride becomes a factor for the parties or the lawyers they tend to drag on with no resolution.  The next move is McNamee’s.  It is certainly a tormented dilemma for two very close friends who are now locked in a legal battle in the midst of one of baseball’s ugliest scandals.


Patrick K. Thornton is a Professor at Houston Baptist University where he is the faculty advisor for the MBA in Sports Management.  He also teaches “Baseball and the Law” at the University of Houston Law School and Sports Law at Rice University and South Texas College of Law.
 
 
Banner

Poll

Should MLB Force Jeffery Loria to Sell the Marlins?