By Zach Arnold | April 12, 2012
If you have not kept up with the details & statements made in the legal battle between Keith Kizer & the Nevada State Athletic Commission vs. Nick Diaz & his lawyer Ross Goodman, here are the necessary primers;
- Nick Diaz’s attorney uses Jonathan Tweedale’s marijuana defense
- Nevada amends complaint against Nick Diaz, shift strategy
- Keith Kizer: Sensitive, sanctimonous speech
The second link is the filing that Team Diaz responded to you yesterday with the following text.
The first document text here is an attached exhibit filing from Nick Diaz’s doctor.
Date: April 6, 2012
To: Nevada State Athletic Commission
Re: Nickolas R. Diaz
I am a board-certified physician in good standing continuously licensed to practice medicine, in California for the past 40 yeas. During the previous nine (9) years! have primarily performed medical cannabis evaluations in accordance with the California Health & Safety Code 11362.5. After reviewing medical records, which reveal a diagnosis of attention deficit hyperactivity disorder (“ADHI ”), taking a patient history and performing an examination, I have approved Mr. Diaz’s use of medical marijuana. this approval to use medical marijuana is not a prescription. In addition, medical marijuana is not an “over the counter medication” or “over the counter product” in California,
Further, pursuant to the Code, I issued a Physician’s Statement dated June 25, 2009, which states that “[Diaz) has a serious medical condition which in my professional opinion may benefit from the use of medical cannabis." The statutory definition of what constitutes a 'serious medical condition" under this regulation is a physician's responsibility and not the patient's. The term is not part of my discussions with my patients. Instead, I focus on their particular medical problems, the benefits from use of medical marijuana, what effects a patient may experience, how to use it safely, etc. Even though the Physician's Statement does not expire, Mr, Dlaz's ADHD remained unchanged and after my examination of Mr. Diaz I issued another Physician's Statement dated February 28, 2012.
As a physician, ADHD is a persistent condition that qualifies under the California statutory definition of "serious medical condition". I believe most lay people would consider "serious" medical conditions to include cancer, heart attacks, strokes, a broken neck, AIDS, etc, but would not include ADFFID on that list.
Robert E. Sullivan, MD
In addition to this letter, there are several footnotes that Ross Goodman put in the appeal filing that I've decided to separate from the filing text. Here is the text of said footnotes:
If Diaz had tested for marijuana, which is not the case and which is not alleged in the FAC, the NSAC would be required to interpret its regulations in the absence of any regulations addressing the legal use of medical marijuana that reflect the intent of Nevada's legislators to exempt medical marijuana from the class of "prohibited substances". The issues engaged by such a hypothetical case do not arise here.
2 In Dr. Sullivan's professional opinion, based upon review of medical records, patient history and an
examination, Diaz is a qualified patient pursuant to the California Health & Safety Code to legally use medical marijuana.
3 Dr. Hiatt explained that the trace amount of inactive metabolite (10 ng/mL above the cut off level) is consistent with marijuana use eight (8) days before competition. The new physiological factors resulting from a longer fight coupled with significant weight loss may have contributed to the elevated levels of inactive marijuana metabolites detected slightly above the cut-off levels.
4 WADA also promulgates a Code — not adopted by the NSAC in whole or in part — pursuant to which a sample containing metabolites of a prohibited substance may be deemed an anti-doping violation under WADA's rules (at section 2.1.2). The Court of Arbitration for Sport has not had occasion to consider the argument that under WADA's Code, an in-competition sample containing non-active marijuana metabolite does not constitute a violation of the prohibition on in-competition marijuana use. The Commission may confront an analogous question if, in the future it elects to revise its regulations to include metabolites as a basis for disciplinary action (if, in fact, it has any jurisdiction to do so). However, this issue does not arise in this case as NAC 467.850 presently has no analogous provision to section 2.1.2 of the Code.
5. ADHD falls under the catch all provision which provides for "any other chronic or persistent medical symptom." See Calif. Health & Safety Code § 11362.7(h)(12). The medical marijuana laws plainly provides for "any other illness for which marijuana provides relief." See Calif Health & Safety Code § 11362.5(b)(1)(A).
6 Under the Statute, Diaz' s physician makes the determination whether his medical condition qualifies as an "approved condition." See Calif. Health & Safety Code § 11362.5(b)(l)(A). In order to comply with the medical marijuana laws, Diaz is only required to provide written documentation from his physician who determined that the use of medical marijuana was an appropriate treatment.
I decided to put the footnotes here for easier reference as you read the filing text. Now, here's the text of the latest appealing filing.
Ross C. Goodman
Nevada Bar No. 7722
GOODMAN LAW GROUP, P.C.
520 S. Fourth St., 2" Floor
Las Vegas, Nevada 89101
Telephone: (702) 383-5088
Facsimile: (702) 385-5088
Attorneys for Respondent Nick Diaz
BEFORE THE NEVADA STATE ATHLETIC COMMISSION
IN THE MATTER OF: RESPONSE TO FIRST AMENDED COMPLAINT
COMES NOW, Respondent NICK DIAZ, by and through its attorney of record, ROSS C. GOODMAN, ESQ., of the Goodman Law Group, P.C., and submits this Response to the First Amended Complaint ("FAC").
I. THE FIRST AMENDED COMPLAINT DOES NOT ALLEGE ANY FACTS SUPPORTING THAT DIAZ VIOLATED A RULE
A. Marijuana Metabolite Is Not a Drug Prohibited by NAG 467 850.
The after-the-fact allegations impugning Diaz's character serve to distract from the core issue that Nevada does not prohibit inactive marijuana metabolites. The applicable rule cited in P18 of the FAC provides against:
1. The administration of or use of any:
b. Stimulant; or
c. Drug or injection that has not been approved by the commission, including, but not limited to, the drugs or injection listed in subsection 2, in any part of the body, either before or during a contest or exhibition, to or by any unarmed combatant, is prohibited.
See NAC 467.850(1) (emphasis added).
NAC 467.850 prohibits the use of marijuana before or during a contest or exhibition where the psychoactive and/or physiological effects of the drug are active during the contest or exhibition. The FAC does not make any such allegation against Diaz and does not include reference to any evidence that could assist in proving such a violation against Diaz (of which here is none).
The FAC does not allege a violation of this rule by claiming Diaz "used" a drug, such as marijuana, but incorrectly relies on the false premise that "marijuana metabolite" is itself an unapproved "drug [or injection]“.’ (FAC ¶ 20). However, marijuana metabolite is clearly not a `drug or injection that has not been approved by the commission” under NAC 467.850(1) and neither is it included either expressly or by reference under NAC 467.850(2). Metabolite is not a ‘drug”. Furthermore, metabolites are neither “administered” nor “used” (as required for a contravention of NAC467.850(1)), and hence clearly fall outside the intended scope of the rule. Diaz neither “used” metabolites nor were metabolites “administered” to him either before or luring a contest or exhibition. Furthermore, and independently from the preceding, interpreting inactive metabolity as an unapproved “drug” has no rational basis in the principles underlying Nevada’s anti-doping regime.
Indeed, neither this Rule nor the Prohibited List published by the World-Anti Doping agency (“WADA”) and adopted by the NSAC, prohibit marijuana metabolite. The NSAC is not in the business of regulating inactive metabolized substances legally consumed outside of competition especially when such metabolites have no psychoactive ingredient that would represent a safety risk to a fighter during competition.2 See Letter from Robert Sullivan, M.D. attached as Exhibit “A”.
In short, the NSAC does not have a Rule (or a rule incorporated by reference) which prohibits inactive marijuana metabolite. Consequently, the trace amounts of inactive metabolite detected after the fight cannot constitute a violation of NAC 467.850.3
B. Marijuana Metabolite Is Also Not Prohibited by NSAC’s Adoption of the Prohibited List Published by the World-Anti Doping Agency.
Subsection 2 of the above Rule permits marijuana use outside of competition:
(f) Any drug identified on the most current edition of the Prohibited List published by the World Anti-Doping Agency, which is hereby adopted by reference.
See NAC 467.850(2)(f).
The Prohibited List separates marijuana use into two (2) categories, permitting such use `out-of-competition” while prohibiting such use “in-competition.” See Prohibited List. The policy underlying this distinction recognizes that the psychoactive and physiological effects of marijuana (“THC”) taken before competition subside within a couple hours and would have no impact on a fighter’s safety at a later point in time. This policy is also consistent with NSAC’s stated goal to ensure that each “fighter’s health is not compromised.” See Memorandum May ?4, 2008. In complying with Nevada’s regulation, Diaz followed a pre-fight protocol of stopping use of medical marijuana eight (8) days before the competition. This general practice eliminated any possibility of a potential safety concern in-competition even though inactive metabolite may be stored in fat tissues for weeks to months after use.
The NSAC has not adopted any rule, effected any amendment to an existing rule, or adopted by reference any WADA regulation, that could arguably prohibit inactive metabolites resulting from marijuana use outside of competition.4 As a result, a violation under the current regulation only applies where marijuana was used immediately prior to or during the fight. However, such claim is not even alleged in the FAC and had it been alleged, would be unsupported by any evidence, as Diaz did not test positive for the active ingredient of marijuana.
II. DIAZ MET THE REQUIRED STANDARD: REASONABLE INTERPRETATION OF COMMONLY UNDERSTOOD PHRASES TO THE BEST OF HIS KNOWLEDGE.
The FAC alleges that “By answering “No” to one or more of the questions referenced in paragraph six, DIAZ provided false or misleading information to the Commission…” (FAC ¶ 8.)
All of the answers Diaz provided to the Commission on the Pre-Fight Questionnaire (“Questionnaire”) were expressly qualified as “true and accurate to the best of [Diaz's] knowledge.” In other words, in drafting the Questionnaire, the NSAC expressly imposes only a standard of good faith (and not, e.g., a physician’s standard) on unarmed combatants.
The FAC alleges no facts upon which a finding could be made that Diaz provided anything other than good faith responses to each of the questions on the Questionnaire. Absent a finding that Diaz intended to deceive the Commission in providing the answers he did, it is not open to the Commission to find that Diaz provided “false or misleading” information. Diaz makes no representation on the Questionnaire beyond the representation that each answer provided is true and accurate “to the best of his knowledge” — and hence it is only an attack of Diaz’s bona fides that could form a potential basis for proceeding under this sub-rule (if there was some factual basis for doing so).
Not only does the FAC allege no facts which could tend to establish Diaz’s bad faith in filling out the Questionnaire, but the answers Diaz provided are precisely those that the NSAC should have expected where it elected not to provide definitions of any potential technical terminology on the Questionnaire.
In the absence of prescribed definitions, Diaz relied on the general understanding of the terms “prescribed medications”, “over the counter medication” and “serious medical illness.” The lack of any other information or guidance from the NSAC makes it difficult to know what the NSAC actually intended especially if, in fact, the drafters of the Questionnaire intended to rely on specialized terms defined in out-of-state regulations (which is not conceded and is expressly denied).
Before providing Diaz an opportunity to even respond to such allegations, the Attorney General’s Office uncharacteristically attacked Diaz in the media:
“Not only did Nick Diaz violate the law by testing positive for marijuana metabolites, but he also lied to the Commission on his Pre-Fight Questionnaire when he swore that he had not used any prescribed medications in two weeks before the fight.”
See Sports.Yahoo.com, Nick Diaz’s Attorney Doesn’t Take Kindly to Calling His Client a Liar, by Kevin Iole, March 15, 2012 attached as Exhibit `B”.
These after-the-fact allegations only surfaced after Diaz responded to the initial Complaint pointing out that the NSAC does not prohibit marijuana use outside of competition (or inactive marijuana metabolites).
The Questionnaire at issue is a one page pre-printed form given at weigh-ins lacking any definitions, examples or other information suggesting a specific meaning of a phrase. In the absence of additional information, the Commission could have had no reasonable expectation other than that fighters interpret such phrases by their common meanings. While other interpretations may be possible, there is no evidence (or facts even alleged in the FAC) to suggest that Diaz knowingly provided false information. See Barmettler v. Reno Air, Inc., 114 Nev. 441, 956 P.2d 1382 (1998) (misrepresentation generally requires one to have communicated information knowing its falsity); see also BLACK’S LAW DICTIONARY 416 (6 ed. 1992) (“false” is defined as “deliberately and knowingly False … willfully and intentionally untrue … a thing is called “false” when it is done, or made, with knowledge, actual or constructive, that it is untrue or illegal”). This is consistent with the Commission’s admission that it expected nothing further from Diaz than for him to provide responses on the Questionnaire to the “best of [his] knowledge.”
A. Medical Marijuana Is Not a Prescription or Over-the-Counter Medication.
Diaz is accused of knowingly providing false information by denying that medical marijuana is a “prescribed medication.” However, Diaz interpreted this phrase with the commonly understood meaning for a “prescription” when a physician orders medication from a pharmacy. See NRS 453.128 (a prescription is “an order.. . directly from a physician.. . to a pharmacist). In Diaz’s experience, marijuana is not legal to prescribe. See Calif. Health & Safety Code § 11362.5(b)(1)(A) (registration laws provide for a physician to “recommend” the use medical marijuana).
Diaz’s interpretation comports with state registration regulations for medical marijuana and federal law making it illegal for a physician to “prescribe” marijuana.
In the same way, Diaz commonly understands the term “over the counter medication or product” to mean medications typically sold or dispensed for sale at a retail store such as a CVS or Walgreens pharmacy. Diaz reasonably interpreted the phrase to mean products pharmacists commonly stock on shelves to treat symptoms for pain relief, allergies, cold/flu, etc. In absence of any interpretive guidance that the NSAC could have provided — but did not — or the specific question “Are you a medical marijuana user,” which the NSAC could have asked — but did not — Diaz responded by attributing the common meaning for “prescribed” and “over-the-counter” medications. At a minimum, there are no facts even alleged in the FAC to suggest Diaz knowingly provided false information.
B. Diaz Does Not Consider Attention Deficit Disorder Analogous to a “Serious” Medical Condition Such As AIDS, Cancer and Other Life-Threatening or Incapacitating Conditions.
Diaz has lived with attention deficit disorder for the majority of his life and does not consider this condition “serious.” Diaz believes medical conditions are “serious” if they are incapacitating, life-threatening or results in emergency treatment or hospitalization. See generally Perry v. Jaguar of Troy, 353 F.3d 510 (6th Cir. 2003) (held that attention deficit disorder is not a serious medical condition because it is not incapacitating); see also NRS 687B.450 (Nevada defines a medical conditions as serious if they are life threatening).
However, to suggest that Diaz should have construed this phrase to mean “as defined by the California Health & Safety Code” on a Nevada form the day before competing in the welterweight championship is unreasonable. Further, to impose a duty on Diaz to have construed the phrase to mean “as defined by the California Health & Safety Code” in such circumstances is an error of law. The statutory definition at issue (buried deep inside the Calif. Health & Safety Code) is imputed to the physician, not Diaz, based on the physician’s “professional opinion”.
See Calif. Health & Safety Code § 11362.7(h); see also Exh. “A”. The statutory definition lists ten conditions (including AIDS, cancers, migraines, and severe nausea) but does not specifically identify attention deficit disorder as a “serious medical condition.” (5) Id.
Diaz reasonably believed from his physician that attention deficit disorder is an “approved condition” qualifying him to legally use medical marijuana.6 Id. Diaz is a public advocate of medical marijuana and has given multiple public interviews about using medical marijuana. It is reasonable to assume that Diaz certainly would have acknowledged such use had he believed such information was contemplated. It is fundamentally unfair, arbitrary and capricious to suggest that Diaz “lied” on the form when the NSAC failed to define such phrases and only now assert that they intended a precise meaning pursuant to a California regulation intended for physicians. Diaz, in good faith, does not consider his persistent condition of attention deficit order as a “serious medical illness”, especially in the context of responding to questions that a reasonable and objective person would see as relevant to one’s fitness to compete in less than 24 hours for the UFC interim welter weight championship.
Absent proof that Diaz intended to deceive the Commission — i.e. by providing responses other than information that was true “to the best of his knowledge” — the Commission cannot find that Diaz violated NAC 467.885(3). Unless Diaz’s interpretations of “serious medical illness”, “prescribed medication”, and “over the counter medication or product” are so clearly wrong as to constitute sufficient proof of a bad faith intent to deceive, the Commission must dismiss the allegations at paragraphs 8 and 23 of the FAC.
Dated this 11th day of April, 2012.
GOODMAN LAW GROUP, P.C.
Nevada Bar No. 7722
520 South Fourth Street, 2nd Floor
Las Vegas, Nevada 89101
Attorneys for Respondent Nick Diaz