By Antonio Gallegos, for VeloNews.com
Editor’s Note: Denver-based attorney Antonio Gallegos is in Malibu, California, this week to observe the Floyd Landis arbitration hearing. Gallegos works for the firm of Holland and Hart, concentrating in commercial litigation and government investigation. He is also an avid cyclist and is developing a sports law practice. At the end of each day Gallegos will be providing VeloNews.com with analysis on what happened and why. Here’s his take key moments from the fifth day on the Pepperdine University Campus.
Today’s evidence was pivotal for both USADA and Landis as testimony from USADA witness Professor Christiane Ayotte, Director of the WADA-accredited lab in Montreal, bumped up against the testimony of Landis expert witness, Bruce Goldberger, Director and Professor of Toxicology at the University of Florida.
Cross examination of Ayotte highlighted several concerns she had about procedure at LNDD, including its accreditation documents, certain aspects of LNDD’s test results, its overwriting of data and the sequence LNDD used in the reprocessing of electronic data. Quite, thoughtful and very professional, Ayotte also explained why she thought none of those concerns affect the scientific validity of Landis’s test results, noting that her laboratory uses some of the same methods.
Landis’s team tried to capitalize on this last point, arguing that if Ayotte criticized the LNDD, she would also be criticizing her own lab. Ayotte conceded that at least some of the chromatographs (graphs that plot the ratio of testosterone to epitestoeterone) used by the LNDD represented poor chromatography, despite having previously testified that good chromatography is important for obtaining accurate results.
Later in the day, Goldberger highlighted numerous procedural errors in LNDD documents. More importantly, Goldberger offered his opinion, also quite professionally, as to why these errors cast doubt on the validity LNDD’s testing. According to Goldberger, a lab’s record keeping is strong indicator of the quality of its work.
In Goldberger’s opinion, LNDD’s chain of custody documentation and procedure for documenting errors calls into question the reliability of LNDD’s lab work. He further testified that the poor quality of the chromatographs LNDD prepared and used to analyze at least one Landis’s samples also call into question LNDD’s work.
On cross examination, USADA highlighted that Goldberger does not do testosterone analysis at his lab, but instead sends it out. However, any black mark Goldberger’s qualifications was neutralized when he produced a letter offering him a position as head of the WADA-accredited lab at UCLA.
With the conclusion of Ayotte’s and Goldberger’s testimony, we have seen the USADA and Landis lawyers hit each aspect of the shifting burden of proof in this case. USADA has presented loads of evidence to support the scientific validity of Landis’s positive test results in support of its burden of proving a doping offense. Landis’s team has hammered away at improper laboratory procedures in support of its burden to rebut the presumption that LNDD used proper procedure.
Now USADA, primarily through Ayotte, has introduced evidence to support its burden of proving that the alleged irregularities in lab procedures did not cause Landis’s positive test results. While Landis’s team, through Goldberger, has challenged that testimony. The arbitrator’s final decision could rest heavily on the weight they give to these two very qualified and credible witnesses.
USADA introduced some intriguing evidence through the testimony of former professional cyclist, Joseph Papp. Papp discussed his own experience with doping, most significantly his use of testosterone as method to help him recover during multi-day stage races. Just Thursday, Papp agreed to a two-year suspension stemming from a positive test result for testosterone.
In opening statements, Landis’s attorneys argued that it would have made no sense for Landis to have used testosterone prior to his dramatic stage 17 victory, because testosterone is used to increase power, and there was not enough time for his alleged use of testosterone to have that effect. Mr. Papp’s testimony directly challenges this argument.
On cross examination, Landis’s lawyers highlighted Papp’s lack of scientific expertise. They also emphasized that Papp does not know Landis, nor any of Landis’s former teammates, and never raced at the same elite level. The Landis side’s biggest attack, however, went to Papp’s credibility and motivation for testifying. Several questions from Landis’s lawyers seemed designed to make the arbitrators wonder whether Papp was testifying in exchange for leniency on other doping violations, to which he admitted while on the witness stand, or in a U.S. Attorney’s Office investigation to which Papp referred in his direct examination.
USADA presented Papp’s testimony as if he were an expert witness, even though Papp admitted that he is not. At best his testimony seems indirectly relevant. But it is also the sort that could stay lodged in the back of the arbitrators’ minds and subconsciously nudge them in one direction or the other.