The Absolute Insurer Rule - repercussions for trainers of a positive drug test

T’S known as the “absolute insurer rule” and has been part of national horse racing law for decades. Though racing commissions long have agreed that implementation of the rule denies trainers the concept of due process as spelled out in the U.S. Constitution, acceptance of the rule remains a condition for licensing of trainers. “Whether or not you agree with it, you have to accept it,” said Ron Ellis, who has trained Thoroughbreds in Southern California since 1980, when he was 22 years old, and was the conditioner of 2004 two- year-old champion Declan’s Moon and recent Grade 1 Hollywood Gold Cup winner Rail Trip. “That’s not entirely a bad thing. Without the rule, there would be chaos every time a horse tested positive for anything. There’d be denials and people pointing fingers and things could drag on and on.” Four-time Eclipse Award-winning trainer Todd Pletcher, who won the 2007 Belmont Stakes with the filly Rags to Riches, has strings of horses all over the country. “I accept the rule even if it means I might get charged with a positive test on a horse that’s in New York and I’m in California,” Pletcher said. “Ultimately, someone has to be responsible for every horse under his care and I expect it to be me.” The absolute insurer rule presumes guilt and makes a trainer prove innocence, a reversal of the generally accepted canon of justice that holds an individual innocent until proven guilty. There are precedents for conferring liability without proof of individual fault, points out Robert Forgnone, a semi-retired Los Angeles attorney and former Thoroughbred owner who for at least 30 years represented several trainers in absolute insurer cases. “In a seminal 1948 case, the California Supreme Court noted several analogous situations, such as railroad liability for fires, liability for damages by mobs or riots, and injuries to workmen on the job. The manufacturers of food and pharmaceutical products are also liable for contamination in those products. “The classic example is blasting. While the activity has social utility, it is dangerous and some might be injured. If they are, the blaster is liable even in the absence of any evidence of culpability.” In the past few years, modifications in the absolute insurer rule have been proposed in several major racing states, including California. Instead of a trainer having absolute liability in all cases, there has been a move toward “strict liability” with mitigating circumstances affecting penalties in cases involving positive tests for drugs.  A February meeting in Las Vegas between the Racing Medication and Testing Consortium (RMTC) and several racing bodies, including California Thoroughbred Trainers (CTT), and Dr. Rick Arthur, longtime practising veterinarian and now California’s equine medical director, was a major step toward revising penalties for trainers. “Assistant trainers, grooms, other stable personnel, as well as owners and veterinarians, may now be held liable in drug positive cases,” said Dr. Scot Waterman, the executive director of the RMTC, based in Lexington, Kentucky. “There was a case in Kentucky several years ago, when an owner, who also was a medical doctor, gave Prozac to one of his horses, without the trainer’s knowledge. He thought it would calm the horse down. “Though Prozac isn’t known to have any performance-enhancing qualities, it’s not upposed to be in a horse’s system. The trainer was suspended for a short time, but under the old guidelines, a trainer might have a stricter penalty. If new guidelines are used, there might not be any penalties for a trainer in a case like that.” Darrell Vienna, who has trained on the Southern California circuit since 1976 and won the 1992 Breeders’ Cup Juvenile at Gulfstream Park with Gilded Time, also has a law degree from Loyola School of Law in Los Angeles. He researched the history of the absolute trainer rule in California and wrote a paper on the subject in 1992 for his law school project. In the paper, he wrote, “The state, as the beneficiary of millions of dollars provided by horse racing, has a duty to actively supervise and police activities at the race track. The passing of this burden through the trainer insurer rule constitutes a breach of the state’s duty to maintain the integrity of horse racing.” Vienna practiced law from 1994-1997 while also training horses. Though he no longer has an active practice, he continues to follow trainer liability issues and for several months worked as a consultant for the California Horse Racing Board (CHRB), suggesting possible revisions in the their rules of racing. He views as significant the move toward “strict liability” from “absolute liability” in interpreting drug violation cases. “For a long time the states have had the mentality of winning these cases, even when there is sufficient proof there is no case, or not as big a case as it looks,” Vienna said. “If it can be proved right away that a trainer can’t be liable, a case shouldn’t have to go to a hearing. A few years ago I went to Boston to help some trainers at Suffolk Downs who had horses test positive for Lidocaine. It turns out they had given the horses a drug whose manufacturer said had no Lidocaine. Is a trainer liable when the d rug in question is marketed wrong?” HE concept of mitigating circumstances has existed in California racing rules for 19 years. Section 1887 of the California racing rules requires that a trainer be notified of a positive drug test within 18 days of the race. Otherwise the trainer is deemed not responsible for the positive test. Section 1888 further guarantees the due process rights to notice, representation of counsel and the introduction of evidence. Additionally, the section provides that the trainer may “defend, mitigate or appeal the charge if he shows, by a preponderance of the evidence, that he made every reasonable effort to protect the horses in his care from tampering by unauthorized persons.” Until 1995, however, California stewards had minimal guidance in interpreting the trainer insurer rule or the defenses to it. Even when trainer liability could be strongly placed in doubt, there was little recourse. Bob Hess Jr., the son of a trainer, who has had his own stable since 1987, was charged with a morphine positive in 1995. “It turned out that a groom, who had a history of drug addiction and was later barred from the tracks, had been eating poppy seed muffins,” recalled Hess, who has won such races as the Hollywood Futurity (River Special, 1992) and Hollywood Park’s Californian (River Keen, 1997). “There’s morphine in that. The case eventually was settled, and I was fined and suspended. But it cost me $40,000 in legal fees. What was worse was the loss of business. I started with 70 horses and within weeks I was down to 28. Some big owners took their horses away because they thought I was giving horses morphine. “Even when it could be proved I wasn’t doing that, I was still guilty. The groom involved was also working for other trainers and was on the verge of being fired. The whole thing could have been an attempt by him to sabotage people’s barns in retaliation. We’ll never know.” The year 1995 also saw a landmark in the history of trainer liability regulations. Under new provisions developed by the CHRB, three trainers were exonerated by the stewards, but only after the trainers and their attorneys endured lengthy legal proceedings. The first was Vladimir Cerin, who had five horses – two of them twice – test positive for caffeine. Cerin, who won the 2008 Breeders’ Cup Dirt Mile with Albertu  Maximus, still bristles when he discusses the case. “I was giving the horses Cytomax, a herbal supplement I had used for two years,” he recalled. “We ordered a new shipment from the manufacturer and it came with the label saying that no caffeine had been added. It turned out that, despite the label, there WAS caffeine. The fault was with the factory, but it took 40 hours of testimony to get it settled.” Gary Jones, who won two runnings of the Santa Anita Handicap (Best Pal, 1992, and Stuka, 1994) and is now retired, also was exonerated in 1995 after a filly he trained tested positive for phenylpropanolamine, an over-the-counter decongestant, prohibited for racehorses. It later was discovered that the legal food supplement Spinach Octocosanol, which he had fed to his horses, had been contaminated with the prohibited substance at the factory. Hall of Fame member Bobby Frankel was the third trainer exonerated in 1995 after he and his counsel proved a positive morphine test could have been the result of poppy seed contamination from pastry consumed by a groom. Frankel’s case was bolstered when a study conducted at his request at the University of Davis veterinary laboratory – one of the most respected in the world – found scientific grounds backing his claim of possible contamination. The adjudications of the Cerin, Jones and Frankel cases remain relatively rare. In 2006, a Texas circuit court upheld rulings by stewards at Lone Star Park and the Texas Racing Commission that owner-trainer James Hudson had given a winning horse a prohibited substance – despite evidence that Hudson could not have administered the drug. Among the mitigating circumstances adopted in strict liability guidelines is the question of a trainer’s prior record. “If a trainer has no history of drug positives, that should be taken into consideration,” said John Shirreffs, the trainer of Zenyatta, winner of a 2008 Eclipse Award as North America’s outstanding older filly or mare. Vienna is not so sure. “A trainer with a clean record could use that as an excuse to do something against the rules,” he said. “The question of a trainer’s record should only come into play after a case has moved forward, not as a reason for a case not moving forward.” He also cites the ongoing controversy involved in excessive allowable medication such as furosemide (Salix) and phenylbutazone (Bute). “Like humans, different horses have different metabolisms,” Vienna pointed out. “Some horses are high- Bute, meaning the drug is in their systems much longer than it is with other horses. Maybe if a guy has 23 Bute overages, that’s a problem. But if there’s one and the horse is a high-Bute horse, that should b he testing laboratories, are a major aspect of the evolution of liability rules. “More and more sophisticated drugs come on the market all the time, like synthetic drugs which change molecular content and for which there are no existing tests,” Vienna said. As executive director of the CTT, Ed Halpern, a trainer who also is an attorney, spends much of his time investigating ways to modernise liability rules in this era of rapidly growing testing technology. “Drugs can be detected in smaller and smaller traces all the time,” Halpern said. “Withdrawal times even for permitted drugs are a big issue. We ask our members to use a withdrawal period longer than required – 45 days, instead of 30, 60 days instead of 45.” Scott Chaney is a state steward at California tracks who once was an assistant trainer to Vienna. Like Vienna, he has a law degree – from the University of Southern California – and also like his mentor, he chose a study of the absolute insurer rule as the subject for his required law school paper, in 1997. “The earliest reported case involving a positive drug test in California was in 1937, when the winner of a race at Santa Anita was found by the state chemist to have an alkaloid in his system which resembled strychnine,” Chaney said. “Only saliva samples were taken in those days and the rules in those days were that the owner, trainer and horse be ruled off for life. That didn’t happen. And the rules have changed a lot since then and probably will keep changing.” March of 2009 provided a timely example of how much things are changing. In what is believed to be a precedent-setting use of the new RMTC guidelines, Southern California trainer Mike Mitchell was fined $500 and Joseph Dowd, Edwin Simpson and Jennifer Finley, who jointly operate the veterinary practice Equine Medical and Surgery Group, were fined $4,500 for a procaine positive in Scat Thief at Del Mar on August 3, 2008. “Under the old rules, Mitchell could have been fined $5,000 or more,” Dr. Arthur said. The Scat Thief positive was the result of one of the veterinarians giving the wrong horse the medication. The procaine was supposed to be administered to Specalist Morgen J, a chesnut horse occupying the stall next to Scat Thief, also a chesnut. “He was a pretty sick horse who needed penicillin,” Mitchell said of Specalist Morgen J, “but they gave it by mistake to Scat Thief, who wasn’t supposed to have it. “At the hearing they admitted it was their mistake. It was very fair. They found me responsible for not paying better attention, which was probably true.” Arthur said Mitchell would not be cited for the positive test on Scat Thief.

CLICK ON IMAGE TO READ ARTICLE

(European Trainer - issue 27 - Autumn 2009) (American Trainer - issue 12 - Spring 2009)

BUSINESSWebmaster28 August 2009American Trainer, US, Rules