marvelous marv wrote: ↑31 Dec 2017, 04:50
It says he was prescibed it by a doctor in the transcript so none of that has any validity. Stop fabricating stories.
This is copy pasted from the lawsuit:
The testimony was:
Q. This is a document where you signed a document saying that there were certain mistakes in the deposition transcript, correct?[objection overruled]
A. I did not really understand the question.
Q. Well, you signed this document, correct?
A. Yes, my signature is there. I saw it.
Q. And you signed it on February 5th, the night before this trial started, correct?
A. Yes, it turns out like that.
Q. Do you remember signing this document?
A. I don't really remember for sure. I signed a lot of papers.
Q. Do you remember that you told someone that when you said all the vitamins were given to me in a transparent box by the doctor, that there had been a mistake in translation, and what you had meant to say was everything was given to you in a transparent box
by your trainer? Do you remember saying that the word “doctor” had been mistranslated and you had actually said “trainer”?
A. So, you know, the doctor just recommends. When somebody recommends something, a medication, it's not like it's being given to me by my relative, my grandmother or my mother. The doctor is the onewho recommends, and he hands them over and then they are given to me, and the one who gives them to me is my physical fitness trainer.
Q. But that's not what you said under oath during your deposition. You said your doctor gave it to you?
A. Yes.
Q. And then you claimed that you hadn't said the word “doctor” in Russian, you had said the word “trainer” in Russian, and that there had been a mistake in the translation, right?
A. This, I can’t remember.[sidebar]
Q. Mr. Povetkin— THE COURT: Go ahead, counsel.
Q. —recently you reviewed your deposition with someone who translated it for you, correct?
A. I don't understand “reviewed.”
Q. Well, did somebody go—have you read your—translate your deposition for you to see if there were any errors in it?
A. It was translated.
Q. And you said that there were some errors in it, correct?
A. Probably. I don't remember exactly.
Q. But one of the errors that you said was that you had said the word “trainer”in Russian when, in fact, the transcript said that youhad said “doctor;”isn't that so?
A. I don't really remember that.
Q. Well, let's just try one more time. Look at the bottom of the first page— MS. KALIVAS: Objection.
Q. —of the sheet?
THE COURT: Sustained to that.
MR. BURSTEIN: Okay. I'll move on.
Hon. Andrew L. Carter, Jr.February 12, 2017Page 5Tr. 152-53 (emphasis added). Thus, counsel’s statement accusing Mr. Povetkin of “changing his story” in response to deposition testimony of Dr. Krasavin was not only unsupported by the evidence, but was actually false, as plaintiffs’ counsel had acknowledged on the record.
B.Counsel Improperly Stated His Personal Opinion of Mr. Povetkin’s Honestyand Disregarded the Court’s Rulings By Linking Honesty and Motive
After his improper account of Mr. Povetkin’s supposed attempt to alter his deposition testimony, counsel compounded the prejudice by improperly expressing his opinion of Mr.Povetkin’s truthfulness and ascribing motive in violation of the Court’s earlier ruling barring that issue from this trial: I don’t blame him. This is an important case to him. I blame him for not, respectfully, not being honest, but Idon’t do it, there’s nothing else, those are the facts of life. (Tr. 777)Counsel’s personal opinion that Mr. Povetkin was “not being honest” was highly improper. A lawyer may not express his or her personal opinion as to the truth or falsity of any testimony or evidence.
See Bellows v. Dainack
, 555 F.2d 1105, 1108 (2d Cir. 1977) (Where Plaintiff’s counsel expressed personal opinions at summation about the credibility of defendants, the court found “the summation . . . sought to arouse undue passion and prejudice on the part of the jury and clearly exceeded the bounds of propriety”);
Smith v. Piedmont Airlines, Inc
., 728 F. Supp. 914, 919 (S.D.N.Y. 1989) (finding it improper “that counsel for plaintiff impermissibly vouched for the credibility of plaintiff’s physician when he expressed to the jury his personal opinion about her character”); N.Y. Rule of Professional Conduct 3.4(e) (A lawyer shall not “state a personal opinion as to the . . . the credibility of a witness”). Moreover, counsel’s argument that Mr. Povetkin was not being honestbecause “this is an important case to him” was in direct violation of the Court’s earlier rulings on this topic that “motive to falsify” would not be allowed: MR. BURSTEIN: * * * His motive to falsify is so overwhelming and to come up with a story, I should be allowed to impeach him on the theory that he knows the consequences of what will happen if heloses here.
THE COURT: I'm inclined to say no to that. It seems that it might be appropriate for you to—again, I don't wantto get into all of this in terms of his credibility and bias and motive to testify. I'm inclined to say no to that. It seems that it might be appropriate for you to—again, I don't wantto get into all of this in terms of his credibility and biasand motive to testify.* * *MR. BURSTEIN: It's his motive to testify falsely. Right now, I mean, it's true that we're in a vacuum, but ifawitness has a desire to— THE COURT: But I believe that you were the person whowas objecting to any notion that the defendants wanted to putout anything like he wouldn't risk his career by micro-dosingat this small level because that small level thatwould beshowing up there wouldn't give him any benefit, and he wouldn'trisk his career by micro-dosing at this level. Wouldn't thatbe fair comment to start re-going down this road? And that'ssomething that you very strenuously didn't want to get into.MR. BURSTEIN: You know what, I have to give it toyou, Judge. I'll give you that one. So I have to back off. * * * (Tr. 515, 517.)
C.CounselImproperly Referred to The Trainer as a Missing WitnessesAfter Blocking His Testimony
Counselaccused Defendants of failingto present Mr. Povetkin’s traineras a witness, when in fact Defendants attempted to present his testimony, and Plaintiffs blocked it. During summation, counsel began to assert his “missing witness” theory: “The people who supposedly had provided the vitamins or whatever it was—”. Tr. 777. Following objection, counsel admitted at sidebar that he was about to ask the jury “Where’s the trainer and where’s the manager.” Tr. 778. The Court forbade it. Tr. 778-82. Then, in defiance of theCourt’s order, counsel put a board only a few feet from the jury with the question typed out in capital letters: “WHERE IS MR. POVETKIN’S TRAINER?”
See
Tr. 788 (“But here’s other questions you should ask yourselves”). (A photograph of the board is included as an Addendum at the end of this letter.)
