By: Peter J. Sacopulos, JD
The Horse Racing Integrity and Safety Act (HISA) has been in place since May 2023, and a stark difference in the manner in which horsemen are able to defend themselves under the new regime became evident with the first case. The proof of a violation remains largely the same, and is based on 2 premises: (1) an Adverse Analytical Finding (AAF) from an official laboratory (aka “a positive test”) is prima facia evidence that a violation has taken place, and (2) the trainer has strict liability (similar, but not identical to the absolute insurer rule) for the presence of the substance in the horse.
Unbeknownst to covered persons, and unwritten in the regulations, was the set of rules of evidence upon which the cases were to be adjudicated. In one of the first cases adjudicated under HISA’s rules, Alan Pincus, counsel for covered person Mario Dominguez, whose horse had a cobalt overage only two days into the new regulations. He received communication from Canadian Barrister James Bunting as counsel for the Horse Racing Integrity and Welfare Unit (HIWU, or the Agency). This was a curious turn of events, because a lawyer unadmitted to the Bar in any jurisdiction in the United States could hardly be well versed in American Law. A book of evidence was provided to Mr. Pincus, which included exclusively cases that had been decided before the Court of Arbitration for Sport (CAS).
The casual reader’s first knowledge of the CAS has likely occurred recently. In the Paris Olympics, Jordan Chiles was awarded, and subsequently stripped of the bronze medal in the floor exercise in women’s gymnastics, the final decision being handed down by the CAS. The first time that the American Horse Racing Industry became aware that adjudication of their sport were based on the CAS rules was AFTER the regulations had been implemented. Further, the results of any hearing would NOT be appealed to the CAS, as in the case of Jordan Chiles, but rather to the FTC and subsequently to the US Court of Appeals. The adjudication process is based on a set of rules of evidence but cannot even be appealed to the organization that came up with those rules. It’s no wonder that the 5th Circuit Court of Appeals thought this process was unconstitutional.
Regulation 3120 covers the Proof of Violations. The Agency must only have a positive test or AAF to establish a violation. All Laboratory methods, limits, requirements are presumed to be valid. Laboratories are presumed to have conducted analysis and chain of custody according to their standards. In several cases, the horseman has been unable to question anything done by or in the Laboratory that led to the AAF is limited. This is particularly concerning when cases already heard have shown one laboratory failing to meet minimum standards for producing a laboratory report and another losing their accreditation and their HIWU contract. More concerning is the fact that this privately crafted rule results in the covered person being prohibited from mounting a viable defense, which is a clear violation of the covered person’s constitutionally guaranteed right of due process.
Isoxsuprine:
Just over a week after the HISA regulations went into effect, John Brown received an AAF (positive) for isoxsuprine. His pony, Bucky, had been housed in the barn for five years and had been administered isoxsuprine daily for navicular disease for that entire span of time. Isoxsuprine has a long history of causing environmental-based positive tests, starting in the 1990’s. In 2000, the International Conference of Racing Analysts and Veterinarians (ICRAV) had a series of studies presented on the topic of environmental contamination, and one of the papers included Isoxsuprine. In that study, it was noted that even the cobwebs in the rafters of the stall where a horse was treated with isoxsuprine tested positive for the drug.
The classification of Isoxsuprine as an S0, Banned Substance is based on its lack of FDA Approval. Despite this lack of approval, Isoxsuprine is expressly permitted by the FDA as a component of a compounded formulation for horses, making its use perfectly legal. This violation for Mr. Brown resulted in an 18-month suspension and a fine of $12,500. Being financially unable to retain counsel to mount and prepare a defense, Mr. Brown accepted the penalty.
After Mr. Brown’s race, but before the AAF notification, on June 7th, Dennis Van Meter shipped his horse Templement to the Racetrack. This trainer is a disabled Vietnam War veteran. Given these circumstances and the one-mile distance at Thistledown between the receiving barn and the paddock, this trainer routinely shipped his horses to the stalls of his friend, Mr. Brown, whose stalls were much closer to the paddock. In his usual custom for his friend, Mr. Brown moved his pony, removed the feed and water buckets and cleaned the stall before his friend shipped in. Templement entered his “ship-in” stall soon after his 9:15 AM or so arrival at Thistledown Racetrack and remained there until leaving at about 3:45 PM for pre-race related activities, a total of six and a half hours, more or less, in the apparently Isoxsuprine contaminated stall.
Templement was selected for post-race drug testing after his last place finish and tested “positive” for Isoxsuprine at an estimated 471 ng/ml in urine, an unusual “call” for HISA/HIWU, which generally reports plasma identifications. Ohio had an in-place threshold of 1000 ng/mL in urine only 17 days earlier. The test results for Templement were a “clear” blood sample and a urinary concentration below the pre-HISA Ohio regulatory threshold for Isoxsuprine and a pharmacologically irrelevant trace level identification.
The case went to a hearing, where evidence was presented that Mr. Van Meter did not and could not have possibly known that the horse previously occupying his “ship-in” stall had been treated with isoxsuprine. The Judge agreed that Mr. Van Meter bore no fault and issued no penalty for the trainer. The horse was ineligible to race for 60 days for a pharmacologically insignificant amount of a drug transferred from a stall he occupied for only 6 hours. After managing to prove no fault of his own for the positive test for Templement, Mr. Van Meter had a horse he could not race for 60 days and the legal bills from defending himself. There was no Burden of Proof for HIWU other than a report from the laboratory.
Mepivacaine:
The bar for providing proof that a horseman is not responsible for a positive test from stall contamination is high under the HIWU regime. Ron Moquett’s story is an unusual variation on this theme involving the local anesthetic mepivacaine. On October 20th 2023, the colt named Atomic, was surgically castrated standing under sedation in an assigned racetrack stall using Mepivacaine as the local anesthetic. Castrating a colt is non-trivial procedure, so the dose of Mepivacaine was generous, 400 mg subcutaneously over the surgical area and 300 mg injected directly into each testicle, a 1,000 mg or so total dose of Mepivacaine. During the surgical procedure blood from the surgical site and also the mepivacaine containing testicles themselves came into significant contact with the floor of the stall and possibly other areas of the stall.
Atomic occupied the stall for three days until October 23, 2023. On October 25th, a second horse named World Fair was placed in the same stall. He raced the following day, finishing fourth and was not selected for drug testing. On October 28th the stall was cleaned and the hay remaining in the stall removed and replaced with fresh hay. On October 28th, World Fair left the stall and the stall was thoroughly cleaned with Pine-Sol®, an all-purpose cleaner, and the walls and floor of the stall carefully scrubbed. These spraying processes were performed twice, and the stall was then allowed to dry and fresh bedding placed in the stall.
On the morning October 28th, a full eight days after the castration surgical event, the horse Speed Bias occupied the same stall prior to his running in the Grade 2 Hagyard Fayette Stakes. Given the fact that eight days had elapsed since the surgical procedure and the particularly thorough cleaning that the stall had undergone prior to the shipping-in of Speed Bias, the possibility of a Mepivacaine or other contamination events was not even considered by the connections of Speed Bias.
Speed Bias arrived at Keeneland racetrack and entered the stall at about 10:AM on the morning of October 28th. Speed Bias was held in the stall except for the required Veterinary checks and pre-race evaluations. Speed Bias would have left the stall about 45 minutes prior to 5:18 PM post-time, for a total time in or around the stall in question of about six and a half hours.
Speed Bias raced and finished third in the Hagyard Fayette Stakes at 5:18 PM on October 28th and post-race urine (6:00) PM) and post-raceblood (6:04 PM) were taken. To the best of our knowledge the blood sample tested “negative”, a critical piece of exculpatory information, but the post-race urine sample tested positive for 3-Hydroxymepivacaine. 3-Hydroxymepivacaine is the Phase-1 metabolite portion of the 3-Hydroxymepivacaine glucuronide molecule, the major Phase-2 urinary Mepivacaine metabolite detected in horse urine post exposure to Mepivacaine. The HIWU medication rule lists 10 ng/ml of 3-Hydroxymepivacaine in urine as the regulatory threshold for Mepivacaine. The sample in question tested at 84 ng/ml.
The split sample analysis confirmed the primary analytical report and Trainer Moquett was offered a “smaller” fine and a “shorter” period of suspension in exchange for his admitting fault and “wrongdoing”. Trainer Moquett declined this offer and elected to defend his integrity and make clear the unexpected environmental origins of this chemical identification. Basically, Moquett had very carefully cleaned the stall prior to putting Speed Bias in the stall and “he never imagined that there was a possibility for contamination positive from that”. Because the racetrack had cameras installed, Mr. Moquett was able to obtain video evidence of the series of events surrounding the stall in question, including the thorough cleaning of the stall.
At the hearing before HISA's Internal Adjudication Panel Trainer Moquett’s counsel presented testimony from an expert veterinary toxicologist. Scientific questions presented to this expert concerned whether or not the Mepivacaine metabolite concentrations detected were pharmacologically significant, to which the expert’s answer was no. The expert further testified that the concentration was consistent with inadvertent environmental exposure and it was also made clear that this reported identification could have resulted from Mepivacaine contamination of the stall transferring to the horse in question. It was further presented that the mepivacaine metabolite identification was in no way evidence that the horse had been administered mepivacaine for a competitive benefit. The expert’s evaluations were all accepted by the HIWU adjudicators.
The HIWU authority opted not to fine or suspend Trainer Moquett, although Speed Bias was disqualified from his third-place finish in the Grade 2 Hagyard Fayette Stakes and the purse money was ordered returned. The HIWU ruling also noted that “the stall mats used at Keeneland are constructed in a manner that is conducive to trapping and retaining dirt from the stall floor, even when subjected to normal cleaning practices.”
Not every racetrack has cameras that can be used to prove one's innocence. Not every circumstance is amenable to such thorough cleaning by the horseman. In many cases, a horse is standing on a horse van while the stall is being prepared. If the considerable effort put forth by Mr. Moquett and his staff to avoid contamination is not enough to prevent a positive test, and the proof must be provided by video documentation, then this could happen to anyone. And without the video, the consequences would most likely have been much worse. And what about the horseman that ships into a stall without full knowledge of what has happened there before he ships in?
Mr. Moquett was not penalized, although Speed Bias was disqualified from the race. One would think that a simple presentation of the facts to HIWU could have resulted in a similar outcome without the high price tag of the legal fees and expert costs associated with going to the hearing. One would think that, with all of the authority given to HIWU to conduct their own investigation, they could have readily come to the same conclusion.
Sotalol:
Jessica Howell works on a private farm, where she trains and races her only horse, Levanter. On March 16, 2024, Levanter had his first start at Turfway Park, where he finished 4th in a Maiden Special Weight. On April 16, 2024, Ms. Howell was notified of an AAF for Sotalol. The laboratory detected 750 pg/mL of Sotalol in his blood. Trainer Howell qualified for and was appointed a pro bono attorney. No expert was consulted on her behalf.
Sotalol is a Beta-blocker used in horses and humans. Atrial Fibrillation is the most common cardiac arrythmia in racehorses, and Sotalol is part of the current standard of care for treatment of this condition. Sotalol is reasonably well absorbed orally in both humans and horses, having close to 50% oral bioavailability in horses. Following oral administration to horses, sotalol has a mean plasma half-life of about 15 hours, and no adverse effects have been noted following 1 mg/kg oral doses. Oral doses from 2 to 4 mg/kg/day twice daily are used, expected to produce blood concentrations of sotalol varying between 1,000 nanograms/ml concentrations and 500 nanogram/ml trough concentrations, concentrations in the range of what is known to be therapeutically effective in humans. Blood concentrations below 1 ng/mL can easily be considered irrelevant.
While atrial fibrillation is common in horses, and Sotalol is commonly used in these horses, Levanter did not suffer from atrial fibrillation. However, a horse in the adjoining stall was on layup for this condition and was being treated. Based on what we know about isoxsuprine, orally administered drugs can present a high risk for inadvertent environmental transfer.
The expert for HIWU stated in a report that, because the horse that had been treated for atrial fibrillation had left the barn 60 days before Levanter’s race, there was no risk of contamination from that source. So, coincidentally, the only HIWU AAF for Sotalol, a beta-blocker with minimal chance of affecting racing performance, happened in a horse stabled next to a horse taking Sotalol, and HIWU concluded that contamination could not possibly be the source. The facts argue against the HIWU expert. Sotalol has been widely detected in surface water such as lakes and streams, and in soil and sludge in worldwide sources. Degradation of Sotalol in the environment is mostly by photodegradation, or breakdown by UV light from the sun, a fact overlooked by the HIWU expert. Since stalls are not subjected to sunlight, the degradation of Sotalol would be slower than in typical environments such as surface water and soil.
Ms. Howell elected to take the penalty. She was already unable to hire her own attorney, she was unable to hire an expert.
She was unable to mount a defense. And she was unable to pursue an appeal to the FTC or a US Federal Circuit Court of Appeal. In short, Ms. Howell was unable to produce a ticket to enter the “Due Process Room.” In the words of the famous Soup Nazi from a Seinfeld episode…”No soup (in this case, due process) for you!”
Integrity:
HISA and HIWU have taken their mandate very seriously, identifying and penalizing horses and horsemen for even the slightest infraction. What they have missed is that Integrity is about more than penalizing picogram quantities of environmental substances transferred to horses. Integrity is about justice and a level playing field, not about random identification and penalization of environmental contamination. Investigations should be directed at determining the facts surrounding AAF, and where the investigation leads the investigators to exoneration of the horsemen, then the evidence should be followed. The requirement is that the horseman must investigate the positive test and provide evidence to exonerate themselves when it is HIWU that has the power of investigation, the power of subpoena, and all of the information about what goes on in the laboratories. In each of the cases outlined above, and many others, the positive tests were beyond the control of the horsemen, and the levels found in the horses were consistent with inadvertent transfer from the environment. It’s time that HIWU works for the entire Industry and conduct good faith investigations that include all the evidence surrounding an AAF. It should be just as important to prove a horseman’s innocence as it is to prove their guilt.
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Peter Sacopulos is a graduate of Tulane University where he earned a Bachelor of Arts with Distinction. He also holds a Doctor of Jurisprudence from Indiana University Robert H. McKinney School of Law-Indianapolis. He is admitted to practice in both Indiana and Illinois.
After graduating from law school, he joined former United States Supreme Court Justice Abraham Fortas’ law firm, Fortas, Prokop and Hardman, in Washington, D.C. For more than 30 years, he has practiced law before administrative agencies, and in both state and federal courts. He is a senior partner in the law firm of Sacopulos Johnson & Sacopulos located in Terre Haute, Indiana.
Mr. Sacopulos is both a registered civil mediator and a family law mediator. He has represented both Plaintiffs and Defendants in mediations and arbitrations as well as served as a selected and court-appointed mediator in hundreds of mediations.
Pete has represented clients in both state and federal court civil litigation on matters including personal injury claims, contract disputes, commercial transactions, and general litigation. He has done so in trial courts in Indiana and Illinois and before the Indiana Court of Appeals and the Indiana Supreme Court as well as in federal district courts.
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