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KENTUCKY: FRIED Part 13 - DUE DILIGENCE

BY Charles Jay ON July 22, 2003
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The 72nd Round

(NOTE: The "Q & A" passages in these reports, as well as the direct quotes, are a product of a deposition taken from Jack Kerns, dated December 10, 2002)

As we've seen, Nancy Black is really not clear on how Dr. Manuel Mediodia wound up as a ringside physician for the Greg Page-Dale Crowe fight.

Mediodia himself isn't quite certain how he wound up getting the call, though he thinks it was through promoter Terry O'Brien.

O'Brien doesn't think he made that decision, but he's not sure about it.

Jack Kerns came to the rescue with a solution to this "Moe, Larry & Curly" quandary. Kerns asserts that HE'S the guy who knows how it happened. But after reviewing his testimony, we are left with the question of not HOW, but WHY?

"Q: What about ringside physicians? Who picks the ringside physicians?

A: I do.

Q: And how do you go about selecting a ringside physician?

A: I try to get someone that knows something about boxing."

It's quite obvious he failed on that account.

Now let the waffling begin.

"Q: Are ringside physicians required to be licensed by the Kentucky Athletic Commission?

A: They're required to be licensed.

Q: Is it your understanding as commissioner of the Kentucky Athletic Commission, that ringside physicians are not required to be licensed by the Kentucky Athletic Commission?

A: We've discussed this here at a meeting. It's my understanding that they have to be licensed.

Q: Well, have you ever reviewed the regulations of the Kentucky Athletic Commission?

A: Yes.

Q: And I would assume as the chairman of the athletic commission you're expected to be familiar with those regulations, correct? Is that correct?

A: Yes, sir.

Q: Because you're required to administer those regulations, correct?

A: Yes, sir.

Q: And if there's a violation of those regulations, you're required to deal with that violation, correct?

A: Yes.

Q: And if you are at a fight as a representative of the commission and you observed a violation, it would be your duty to see to it that the violation was corrected before the fight proceeded?

MR. GUILFOYLE (Kerns' attorney): I'm going to object to that. That's getting real close to calling for a legal conclusion.

Q: I'm asking you about your understanding of your job, sir. Is it your understanding of your job as chairman of the Kentucky Athletic Commission that if you're at a fight as a representative of the Kentucky Athletic Commission, and you see a violation of the rules and regulations of the Kentucky Athletic Commission, that it's your responsibility to see to it that that violation is corrected before the fight proceeds?

A: When something happens like that - anytime that we have a dispute over anything, I would call the commissioners together, and we would make a judgment call of what we should do."

Morris continued with his examination, in which he seemed not only to be probing at Kerns' standards when it came to the appointment of his key officials, but foreshadowing Kerns' action - or inaction, as it were - on the evening of the fight.

"Q: And if you believe that the safety of a fighter is jeopardized by a violation, would it be your obligation to see to it that the fight does not proceed?

A: There again, sir, I would bring it up to my commissioners there with me, and we would have a discussion on this here, and whatever the judgment call came out, that's what we would do. I would ask each commissioner their opinion, we would discuss it, and we would make a judgment call on it.

Q: Yes, sir. And if you as a group determined that whatever violation you found jeopardizes the safety of a fighter, would it be your obligation as a group to exercise your judgment in such a way to protect the safety of the fighter?

A: Yes, sir. That's our main point is to protect the fighters.

Q: That's your whole reason for existence, isn't it, sir?

MR. GUILFOYLE: Objection.

Q: Isn't that true, that's your whole reason for existence to protect the safety of the fighters?

A: That's one of ours.

Q: Would you agree that's your main objective?

A: It's one of the main objectives, yes sir. There's a lot of reasons we're there, and that's one of them.

Q: Yes, sir. To protect the safety of the fighter and the integrity of the match?

A: Yes, sir."

It's clear throughout this proceeding that Jack Kerns never undertook any definitive steps to find out whether the doctor (a) has to be licensed by his own athletic commission, or (b) whether he fulfilled the requirement of being licensed by the state of Kentucky. It is obvious that he appointed Mediodia to work a fight without having any compelling evidence that he was in fact a doctor at all.

"Q: Have you ever read 201 KAR 27, Code 055, physicians?

A: I'm sure I have sir. I read the whole book.

Q: Have you ever read section six of that that says the physicians shall be licensed pursuant to KRS Chapter 311 as a physician?

A: Yes, sir.

Q: Have you ever read KRS Chapter 311?

A: I think that should be an opinion of an attorney, and I asked for an opinion at our meeting we talked about.

Q: Have you ever yourself undertaken to ask for a copy of or obtained a copy of KRS 311?

A: No, sir.

Q: Have you ever read KRS 311.560, prohibition against practice of medicine or osteopathy without a license?

A: No sir.

Q: Have you ever read section one of that which says that you're required to have a license by the state of Kentucky in order to practice in the state of Kentucky unless you meet certain exceptions?

MR. GUILFOYLE: I'm going to object. You're asking him to -

Q: Have you ever read -

MR. GUILFOYLE: That's fair, Doug, but again, he's not a lawyer, and if you want to ask him if he's read something, that's fair. But if you ant to ask him what it means, I'm going to object. You're asking for a legal conclusion.

Q: Have you ever read that chapter, sir?

A: No.

Morris gave Kerns a few minutes to read it, then......

"Q: After having read that statute, do you agree that in order for a physician to serve as a physician within the state of Kentucky, they're required to be licensed by the state unless they're a member of the military or a member of a training program or called in for a special consultation in service to another physician?

MR. GUILFOYLE: I'm going to object. You're asking him to paraphrase and give a legal opinion. Go ahead and do your best, Jack.

A: I've never read this here before. I've never discussed this with anybody before.

Q: Do you know whether Dr. Manuel Mediodia was licensed by the state of Kentucky in March of 2001?

A: I thought he was.

Q: Do you know whether he is or not?

A: No, sir.

Q: Have you made any effort to make a determination as we sit here today as to whether or not Dr. Manuel Mediodia was licensed by the state of Kentucky in March of 2001?

A: After this fight you're talking about?

Q: At anytime, before or after.

A: No."

According to Kerns, the person who informed him that Mediodia was licensed and in good standing in Kentucky, believe it or not, was a Cincinnati amateur boxing official named Marty (it's a woman, so it's probably "Marti") Smith. Kerns' testimony was that Smith had used him in both Ohio and Kentucky for amateur events, and that this more or less satisfied him. That may or may not be a commentary on the state of amateur boxing, but that's another discussion for another time.

Interestingly enough, Kerns admits that the same Marty Smith he had relied on in the rationale behind his appointment of Mediodia also had knowledge of the fact that Mediodia was subject to a suspension:

"Q: If you were present at a fight where he was serving as ringside physician, would you make any inquiry of him now as to whether he was licensed by the state of Kentucky?

A: I wouldn't use him now.

Q: Excuse me?

A: I wouldn't use him now.

Q: Why not?

A: Because since then, like Marty Smith and everyone has told me that he was suspended and things like that that I didn't know, and so - of course, if I know that's someone's got something in their background that shouldn't be, I'm not going to use them.

Q: Do you know how he has come to be a ringside physician in some five or six fights since March 9, 2001 without your knowledge?

A: In Kentucky?

Q: Yes, sir.

A: Professional?

Q: That's what he testified to under oath in his deposition.

A: That's not true. He's only judged one - he's only been a doctor one time in Kentucky. Now, he might be in amateurs, sir."

So whose version is accurate - Mediodia's or Kerns'? Well, if the "good" doctor is telling the truth, Kerns was either lying blatantly or still didn't understand what was going on in his own commission. If Kerns' version of events is correct, then Mediodia STILL can't make the distinction between what is or isn't a professional fight sanctioned by the Kentucky Athletic Commission.

Can I take the option of not believing either one?

If it seems like I am belaboring the point, that's because I am. There is an obvious liability issue for a commission when it authorizes someone without a license to perform medical services on a fighter who's been injured. For legal purposes, the individual may as well be a plumber.

If we're stipulating that fighter safety is an important concern (is there any reasonable person who doesn't?), this would have to be considered the most critical area for the commission to have its shit together. Kerns was even forced to admit as much.

Kentucky is by no means the only commission in the country to have been derelict in this regard. But remember - the Page-Crowe fight was on March 9, 2001. My story which revealed Mediodia was not licensed to practiced was originally published in September of 2001. Kerns' deposition was taken on December 10, 2002. And NOWHERE can anyone tell from Kerns' testimony that he has, during all this time, ever advanced any effort to ascertain exactly what his responsibility in the area of due diligence was - not just as concerned Mediodia, but ANY physician he appointed:

"Q: So did you ever check with Dr. Mediodia or any other ringside physician to ask them if they were licensed in the state of Kentucky?

A: No, sir."

Despite what might have been considered an earlier answer to the contrary, Kerns' basic contention was that he didn't necessarily need a doctor who was licensed by his own athletic commission, but rather, someone licensed by the state of Kentucky itself. He came to that conclusion, he said, from the opinion rendered by the attorney who was working with the commission at the time - someone whose name he couldn't even remember.

Not that Mediodia was licensed by ANY relevant entity. But Morris walked Kerns through a series of requirements, set forth in KRS 229.081, that any hands-on commissioner should have been expected to know:

"Q: Well, this is the section that says no person shall participate in a professional match in any of the following enumerated capacities without holding a license issued by the commission and meeting all eligibility requirements as established by the commission by promulgation of administrative regulations. Number one, a contestant. You agree that a contestant has to be licensed by the state, correct?

A: Yes.

Q: Number two, a judge. You agree that a judge has to be licensed, correct?

A: Yes.

Q: Number three, a manager. You agree a manager has to be licensed by the commission, correct?

A: Right.

Q: Number four, a physician. Is it your testimony a physician doesn't have to be licensed?

A: It was my understanding that he had to be licensed, yes.

Q: By the commission, sir. My question is by the commission.

A: No, I was told as long as I got a licensed doctor.

Q: Number five, a referee. You agree that a referee has to be licensed by the commission?

A: Yes.

Q: Number six is a timekeeper. You agree they have to be licensed by the commission?

A: Yes.

Q: Number seven is a trainer. You agree they have to be licensed by the commission?

A: There's - yeah. A trainer, yeah.

Q: And there's nothing in here that you read that provides any exception to a physician under KRS 229.081, is there, sir?

A: No. I can only tell you what the attorney said at our meetings, sir.

Q: And I want to know, who is the attorney who told you that?

A: I'm trying to think. He was only with us so long. He's with wildlife now. I'll think of it before we're over.

MR. GUILFOYLE: Do you want me to suggest a name, Doug?

MR. MORRIS: Sure.

MR. GUILFOYLE: Scott Porter?

KERNS: Yes.

Q: Scott Porter?

A: Yes."

Porter's purported opinion on another commission topic figures into our next story, and could very well play a critical part in the eventual trial.

That's up next.

fightpage@totalaction.com

Copyright 2003 Total Action Inc.

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