Judge studying whether to dismiss Clemens lawsuit vs. McNamee

Updated: November 3, 2008, 5:00 PM ET
Associated Press

HOUSTON -- A federal judge said Monday he is "agonizing" over the status of a defamation lawsuit Roger Clemens filed against his former personal trainer, who accused the pitcher of using performance-enhancing drugs.

Roger Clemens
Clemens

U.S. District Judge Keith P. Ellison made the comment after a nearly two-hour hearing in which attorneys for both sides reiterated arguments they had already briefed in court filings over the last few months.

The issues before Ellison are whether he should throw out the lawsuit and, if he doesn't, whether it should stay in Texas.

"I really have been agonizing over these claims," Ellison said.

Clemens sued Brian McNamee in January after the pitcher's former trainer told baseball investigator and former Senate Majority Leader George Mitchell that the seven-time Cy Young Award winner used steroids and human growth hormone.

Clemens' attorney, Joe Roden, said his client had agreed to drop one claim against McNamee, for intentional infliction of emotional distress, because it was covered in other parts of the lawsuit.

A 354-game winner, Clemens is under investigation by the FBI after denying McNamee's claims while under oath during a deposition and public testimony before a congressional committee.

Richard Emery, one of McNamee's attorneys, said the lawsuit should be dismissed on the grounds that his client's statements to Mitchell were protected by privilege through a deal McNamee struck with federal prosecutors.

Emery also argued the lawsuit should not stay in Texas because many of the allegations McNamee made against Clemens relate to things that happened in Toronto, Florida and New York. McNamee's attorneys want the case moved to New York, where he lives. Clemens lives in Houston.

"The only person who ruined Roger Clemens' life is Roger Clemens by not admitting the truth," Emery said.

But Clemens' attorneys argued McNamee's statements are not protected because he made them to a private individual, Mitchell, who was part of a private investigation and that they were not part of a judicial proceeding or a federal probe.

Mitchell was hired by Major League Baseball commissioner Bud Selig to examine steroid use in baseball.

"You do not get to trash somebody's name without having to pay a price," Roden said.

Roden also said the lawsuit should stay in Texas because McNamee did business in Texas and because McNamee's statements against Clemens have done him the most harm in Texas.

Ellison called the issue about whether McNamee's statements were part of a government investigation and therefore privileged the possible "lynchpin of the whole case."

The judge gave no timeline about when he would issue a ruling in the case.

Clemens originally filed the suit in Texas state court, but McNamee had it removed to the federal system.


Copyright 2008 by The Associated Press

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