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by Shane Stokes
August 11, 2015
Photography by Cor Vos
Lawyers acting for the federal government have explained the reasons why they are seeking Lance Armstrong’s medical records, stating that it is crucial to understand if the doctor treating the rider for his cancer may have helped conceal his doping.
Last week it emerged that the government had subpoenaed the Indiana University School of Medicine, seeking to compel it to provide records of Armstrong’s treatments plus donations he later made to the school.
The tactic is part of a major Qui Tam lawsuit between the federal government plus former US Postal rider Floyd Landis on one side and Lance Armstrong on the other.
Government agency the US Postal Service sponsored the team for many years, and claims that fraud was committed when the squad undertook to race clean but did not do so.
Armstrong admitted long term doping in January 2013, having denied drug use for many years. If he is found guilty of fraud in the Qui Tam case, he could be liable to damages close to $100 million.
The current aspect of the long-running legal case relates to claims made on October 25 2005 by former Armstrong team-mate Frankie Andreu and his wife Betsy.
They said that they had been present at the hospital in 1996 when Armstrong was being treated for testicular cancer, and that the rider admitted to doctors that he had used a cluster of banned substances prior to becoming ill.
He later denied this under oath, saying that the Andreus were liars. After finally admitting drug use in January 2013, he said that he couldn’t remember the incident and so couldn’t say if the Andreus were telling the truth or not.
Fascinating details have now emerged in the government’s response to the motion to quash the hospital subpoena.
In it lawyers explain precisely why they believe determining the truth about the hospital room is crucial.
“Perhaps the most significant evidence supporting Armstrong’s defense of the hospital room incident was the affidavit of Dr. Craig Nichols, the Indiana University physician responsible for the majority of Armstrong’s cancer treatment,” the lawyers state.
“Dr. Nichols stated he had reviewed Armstrong’s medical file and that Armstrong’s medical records did not reflect Armstrong’s use of PEDs. In particular, Dr. Nichols swore that Armstrong’s medical file did not contain “any evidence, from [Dr. Nichols] or any other doctor, that indicates Lance Armstrong admitted, suggested or indicated that he has ever taken performance-enhancing drugs.”
“Dr. Nichols’ affidavit went beyond rebutting the allegations at the center of the hospital room incident, adding that he had monitored Armstrong’s blood levels from 1997 to 2001, following Armstrong’s successful treatment for cancer, and found “nothing irregular” during that period.
“Dr. Nichols stated that Armstrong’s blood cell levels indicated to him that “Lance Armstrong was not administering EPO between January 1997 and October 2001.”
“Armstrong has since admitted that he did use EPO in 1998, 1999, 2000, and 2001.”
In addition to seeking to discovery if Nichols may have deliberately covered up Armstrong’s actions, the lawyers also float the possibility that a significant donation made to the hospital could have been connected to the doctor’s testimony.
“On October 25, 2005, the two aforementioned witnesses testified under oath that they heard Armstrong disclose to his doctors that he had used PEDs. Just two days later, on October 27, 2005, Armstrong’s foundation donated $1.5 million to the Indiana University School of Medicine.
“Six weeks after Armstrong’s donation, on December 8, 2005, Dr. Nichols signed his declaration. Armstrong claimed, and continues to maintain to this day, that he made the 2005 donation “in recognition of Dr. [Lawrence] Einhorn’s treatment of Armstrong” in 1997.”
The 2005 testimonies were part of a bitter battle between Armstrong and the SCA Insurances company, which had undertaken to pay millions of dollars of bonuses in the event that he won editions of the Tour.
The company initially resisted payment on the grounds that it suspected he had broken the rules in winning the Tour. However it ultimately had to settle as the original contract didn’t stipulate that the victories had to be won clean.
The rider received a settlement of $7.5 million from SCA.
Armstrong’s lawyers are fighting the subpoena request, describing it as an invasion of privacy. They have asked the judge to block the release of the information.
In the documents, The US government dismisses their reasons for doing so.
“Lance Armstrong’s motion to quash the government’s subpoena to the Indiana University School of Medicine rests entirely on his conclusory claim that the subpoena will “cause unnecessary delay, and needlessly increase the cost of this litigation.”
“The subpoena at issue is directed to a third-party for a limited set of records, and Armstrong does not explain how production of the documents will result in undue delay or costs to anyone, let alone to Armstrong. Similarly, he offers no explanation as to why he believes the government’s subpoena amounts to “harassment.”
The government also argues that the hospital room disclosure is significant because his dismissal of claims about it helped to fight off allegations of PED use.
“Armstrong’s efforts to blunt this allegation, including his selective release of medical information to the media through Dr. Nichols’ affidavit, were critical to hiding the truth of his doping from, among others, the United States Postal Service,” the lawyers reason.
“The United States is entitled to explore whether Armstrong’s aggressive denials, procurement and release of Dr. Nichols’ affidavit, attacks on witnesses, and litigation against members of the media had the purpose and effect of suppressing the truth of the allegation that he disclosed his PED use to his doctors. The medical records sought by the government are likely to contain probative evidence on that subject.”
Armstrong Qui Tam case: subpoena seeks to determine truth about alleged hospital confession
Andreu: Uncovering the truth about the hospital room is crucial