Dr. Steven Barker | Horse Racing Free Tips

The Schenectady Supreme Court issued a temporary restraining order Thursday that put a halt on the New York Gaming Commission's efforts to disqualify Forte (Violence) from his win in the 2022 GI Hopeful S. at Saratoga and suspend trainer Todd Pletcher.

Acting on behalf of Pletcher and owners Mike Repole and Vinnie Viola, attorney Drew Mollica filed an Article 78 appeal. Article 78 appeals are lawsuits mainly used to challenge an action, or inaction, by agencies of New York State and local governments.

The New York Gaming Commission has alleged that Forte tested positive for meloxicam, a non-steroidal anti-inflammatory drug, widely prescribed to treat osteoarthritis and rheumatoid arthritis, and sold under the brand name Mobic. Forte was disqualified and Pletcher was issued a 10-day suspension and fined $1,000.

The Forte team has used Dr. Steven A. Barker, considered one of the foremost experts in equine drug testing and research, as a witness and Barker has said that 500 picograms or .5 nanograms of meloxicam was detected in Forte's system. Barker said he believes that such a low level of the medication would not impact a horse's performance and that the small amount is indicative of environmental contamination.

A hearing was granted by the Gaming Commission, which voted unanimously to uphold a recommendation from a hearing officer. After that decision, Forte's legal team took the next step and went to court. The case is scheduled to resurface on Jan. 9, at which time the court can issue a permanent injunction.

“We look forward to appellate review of one of the most unfair, egregious hearing processes and commission orders that I have ever seen,” Mollica said. “The facts will show that not only did Mr. Pletcher break no Gaming Commission rule, the rule by which he was charged has no applicability at all and the hearing was constitutionally flawed.”

Mollica also argued that the amount found in the horse's system did not merit a violation. He said that Dr. George Maylin, the director of the New York Equine Drug Testing Programs, agreed with that finding and stated as much when going before the hearing officer.

“The scientific finding alleged by the Gaming Commission did not meet the standard of a violation,” Mollica said. “Dr. George Maylin, the nation's foremost equine pharmacologist, testified as much at the hearing. It should be noted that Dr. Maylin did not testify for the prosecution, in this case the Gaming Commission, but testified for the defense. That speaks volumes. We look forward to an impartial review of this matter. After reviewing the transcript of the hearing all I can say is that this was a travesty of justice.”

Once the positive finding was revealed Repole has been adamant that the disqualification was unwarranted and vowed to fight.

“I spent $20 million last year on horses, I can spend $20 million fighting this case,” he said in May. “I think long-term this is going to be good for racing. This whole process, though sad and pathetic, has been a great learning experience for me.”

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Scientifically-based screening levels and transparency in how policy is made were among key items addressed in the Kent Stirling Memorial Medication Panel, held during Wednesday's second day of the National Horsemen's Benevolent & Protective Association conference at the Hotel Monteleone.

The National HBPA has long advocated for scientifically-developed screening and threshold levels used to determine if a positive finding is a legitimate rules violation, or if a negligible amount was inadvertently transferred to a horse or by contamination with no pharmacological impact on the animal's performance.

The topic comes to the fore with the Horseracing Integrity & Safety Authority (HISA) taking over control of equine-testing policy and enforcement as early as Mar. 27.

Bringing sensitivity into sharper focus, drug-testing and toxicology expert Dr. Steven Barker–now an Emeritus Professor at Louisiana State University after retiring following years as head of its state equine drug-testing lab–used an example of bufotenine, which can be detected in horses' post-race tests if (among other things) they ate hay with reed canary grass in it, and a flea.

Barker cited three horses in the Mid-Atlantic in whom bufotenine was detected at the extremely low levels of between 34.5 and 56.6 picograms per milliliter in blood and between 731.5 and 1,964.5 picograms/ml in urine. If those sound like big numbers, Barker said to consider that “the weight of a new-born female flea, prior to its first blood meal, is 450 micrograms. The blood volume of a horse is approximately 50,000 milliliters.

“So if a horse has 56 picograms per mil of bufotenine in a sample, the total amount of bufotenine in the entire horse is 2.8 micrograms–which would be 0.62 percent of a female flea,” Barker said. “So you imagine a 500- kilogram animal that has 0.62 of a female flea distributed throughout its entire body, what do you think the drug effect would be? Zero to nothing. And this is the case in a lot of the positives being called now.”

He continued, “…If HISA is going to do its job, these kinds of positives have to be given scientific consideration. Not 'Oh, we found it, we confirmed it, you're guilty.' I've seen that way too much. Are they going to worry about the integrity of the industry, worried about giving the industry a black eye for all these positives? When really the more important thing is the integrity and reputation of trainers, owners and the horses affected.”

Comparing U.S. Horseracing Testing Numbers and Human Sports

Dr. Clara Fenger, a Central Kentucky-based veterinarian and racehorse owner with additional degrees in internal medicine and equine exercise physiology, explained that in 2021, the World Anti Doping Agency reported 0.77% positive tests out of the 241,430 athletes tested worldwide, with 40% of the violations being for illegal anabolic steroids. A very small amount are from inadvertent environmental contamination.

In the United States in 2020, out of 243,627 racehorse tests, only 0.43% were declared post-race positives. Of those, 28 percent were for Class 1 substances, and most of those could reasonably be considered inadvertent environmental transfer, such as with methamphetamine and morphine, she said.

While violations in human sports were down 1.19% from 2013, U.S. horse racing rose to that 0.43% of positive findings from 0.34% in 2013, Fenger said. While that still reflects very few “true” attempts to cheat, in her words, she explained the bump in horse racing is explained by labs using their increased sensitivity to find irrelevant minuscule levels of substances that would not be called positives in human testing.

Fenger said labs that will enter into contracts to do testing for HISA must be able to detect substances down to a specified minimum level, known as Minimum Required Performance Levels (MRPL).

“For substances that reflect actual cheating, this is a great system,” Fenger said. “Because if one lab can find it really, really low, they can share their methods with other laboratories and they can all find it better…But for therapeutic medication, this represents a huge difference in regulations state to state, depending on the laboratory doing the testing.”

Underscoring the point of cross contamination, equine pharmacology and toxicology expert at the University of Kentucky's Gluck Equine Research Center Dr. Thomas Tobin offered examples of minute levels of substances transferring to a horse without direct administration.

One came amid a rash of positive findings for the seizure and shingles drug Gabapentin in Ohio, which has an “in-house” screening level of eight nanograms (parts per billion) per millimeter of plasma, Tobin said. The finding of 89.4 ng/ml in a horse's post-race test was traced to the groom, who had a prescription for Gabapentin and urinated in the horse's stall.

In another case, it was a dog urinating in the stall.

“It's now official in the published domain that you can dose a dog with Gabapentin and it can turn up in a racehorse,” Tobin said.

Alluding to Tobin and Barker noting their research benefits from data acquired through open-records requests, former active-duty judge advocate with the U.S. Marine Corps and El Paso attorney Daniel Marquez countered, “That's accountability, that's transparency. With the addition, the inclusion of private entities into the HISA rule-making and policy adoption, we threaten that accountability, that transparency.”

“With HISA and the reliance on individual labs, some of which are private, we lose part of that arm of accountability. Private labs are not subject to those (Freedom of Information Act) laws or state open-record laws.”

To view the full release from Wednesday's session, click here.

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