NEW ORLEANS -- Roger Clemens' lawyers asked a federal appeals court Wednesday to revive a defamation lawsuit he filed against his former personal trainer, Brian McNamee, who claims he injected the ex-major leaguer with steroids and human growth hormone more than a dozen times.
Clemens appealed after a federal judge in Houston dismissed most of his claims against McNamee in February 2009. A three-judge panel from the 5th U.S. Circuit Court of Appeals in New Orleans heard the case Wednesday but didn't indicate when it will rule. Neither Clemens nor McNamee were in court Wednesday.
Clemens' attorneys argue that U.S. District Judge Keith Ellison erred when he ruled McNamee is entitled to immunity for statements he made to baseball investigator George Mitchell. They claim the protection doesn't extend to the Mitchell commission, even though McNamee spoke to the panel as part of his cooperation with federal investigators.
"Former Sen. Mitchell was a private individual doing a private investigation for a private entity," said Lara Hollingsworth, one of Clemens' lawyers. "At most, there is a qualified privilege, not an absolute privilege."
Hollingsworth said McNamee spoke to the commission "to save his own skin." The trainer's lawyer, Richard Emery, said his client was forced to tell his story under threat of prosecution.
"He did everything he could to avoid making these comments," Emery told the judges. "If there was ever a situation where immunity was required, it's this one."
Clemens denied ever using performance-enhancing drugs when he testified under oath to Congress in 2008, but he is under investigation for possible perjury charges.
McNamee met with federal investigators in New York and said he had injected Clemens with steroids and HGH in New York, but never in Texas, where the pitcher lived and trained during the offseason. After the Mitchell report's release, McNamee repeated those allegations during an interview at his New York home with Jon Heyman, a writer for SI.com.
Ellison ruled the Houston court didn't have jurisdiction over Clemens' claims involving statements McNamee made in New York.
"The geographic focus of McNamee's statements to Mitchell and Heyman was undoubtedly New York," the judge wrote.
Clemens' attorneys, however, say the case can be tried in Houston because McNamee had visited Clemens in Texas dozens of times and knew that his statements would harm his reputation in his home state.
"His reputation was centered in Texas. Brian McNamee knew that," said Clemens attorney Joe Roden.
Emery said McNamee's Texas visits "had absolutely nothing to do with injecting steroids," but 5th Circuit Judge Catharina Haynes said she doesn't think the visits are irrelevant. McNamee was willing to travel to Texas to work for Clemens "but doesn't want to come (there) and litigate whether he's telling the truth about this," the judge noted.
"He has no connections to Texas," Emery responded. "He has no connections that would allow him to come here and defend himself."