Some of McNamee's claims against Clemens survive

BY foxsports • February 4, 2011

A federal judge has allowed some of ex-trainer Brian McNamee's defamation claims against Roger Clemens to move toward trial, while throwing out accusations of malicious prosecution and intentional infliction of emotional distress.

In a decision Thursday that both sides said they were happy with, U.S. District Judge Sterling Johnson Jr. in Brooklyn dismissed McNamee's defamation claims based on statements that McNamee has a mental disorder and that McNamee was extorting the seven-time Cy Young Award winner.

But the judge allowed McNamee's claims that he was defamed by statements from Clemens' side accusing the former personal trainer of lying and of manufacturing evidence, such as bloodied syringes, vials and gauze pads.

The civil suit will not move forward until after Clemens' criminal trial on charges he lied to a congressional committee, which is scheduled to start this July in federal court in Washington.

''Obviously we're very pleased,'' McNamee's lawyer, Richard Emery, said in a telephone interview with The Associated Press. ''The defamation case goes forward and depending on what happens in Washington, D.C., it will either be a case that will be quite easy to win or it might be a little tougher to win.''

Clemens was indicted last August on six counts charging him with obstruction of Congress, making false statements and perjury for his February 2008 testimony to the House Oversight and Government Reform Committee in which he forcefully denied using performance-enhancing drugs. McNamee was his chief accuser at the hearing on Capitol Hill.

Clemens told The Associated Press at a baseball banquet in Corpus Christi, Texas, Wednesday night that he couldn't comment about the case, but said the allegations haven't made him want to become more private or turn down public appearances.

''I'm just as busy, if not more busier, than before the garbage came out,'' Clemens said. ''I'm not going to change my life because of someone else. I've always been an outgoing person off the field and I'll never change.''

The next status conference in the civil suit is scheduled for Sept. 22. Emery said discovery will not begin until after the criminal trial.

''We are very pleased with Judge Johnson's decision to throw out the vast majority of McNamee's lawsuit,'' Joe Roden, one of Clemens' lawyers, said in an e-mail to the AP. ''McNamee's primary defamation claim that remains is illogical and lacks merit. It asserts that McNamee's reputation was harmed by Clemens's denials that McNamee injected him with steroids and HGH. A person's reputation is not harmed by a denial that he was a source of illegal drugs.''

McNamee told federal investigators he injected Clemens with steroids and human growth hormone during the 1998, 2000, and 2001 seasons, accusations he repeated to lawyers for baseball investigator George Mitchell and that Mitchell made public in a December 2007 report to Commissioner Bud Selig.

Clemens sued McNamee in Texas, a case later dismissed, and McNamee sued Clemens in New York State Supreme Court in December 2008, a case later moved to federal court in Brooklyn.

Johnson ruled New York was a proper jurisdiction for the lawsuit because McNamee worked for Clemens in New York while Clemens pitched for the Yankees. Clemens lives in Texas.

''The contract was allegedly made while Clemens was employed by a New York sports team and was performed in part in New York,'' the judge wrote in a 56-page order.

That decision means the civil suit will be fought on McNamee's home turf.

''It certainly shows that this is the right place for these claims to be heard and not Texas,'' Emery said.

Johnson rejected Clemens' argument that the statements alleged to defame McNamee were made years after McNamee stopped working for him.

''The alleged contract was part of a long relationship between the parties,'' he said.

The judge threw out the count dealing with an alleged mental disorder, saying the statements ''are rhetorical hyperbole and thus non-actionable.'' The intentional infliction of emotional distress count was dismissed because McNamee ''fails to allege the extreme and outrageous conduct necessary to support such a claim.''

Johnson also dismissed a claim involving Clemens' lawyer playing a secretly recorded conversation in which the medical condition of McNamee's son was discussed.

''While the revelation of private medical information about McNamee's son was certainly malapropos, it cannot be said to shock the conscience of humankind,'' the judge wrote.


Associated Press Writer Paul J. Weber in Corpus Christi, Texas, contributed to this report.

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