By: Frank Angst

Thoroughbred Horsemen’s Association chairman Alan Foreman is confident a 2015 decision by a Delaware assistant attorney general not to pursue a medication overage case against trainer Todd Pletcher will not negatively impact the National Uniform Medication Program.

Speaking at the Association of Racing Commissioners conference March 24, Foreman said he doesn’t expect the outcome, in which the state did not move forward after defense attorney Karen Murphy questioned the science behind the threshold levels listed on the Controlled Therapeutic Medication Schedule, to weaken the program’s standing in other states. Foreman said he’s confident the research behind the guidance is up to legal standards.

Murphy cited the Daubert Standard, which regards the admissibility of expert witnesses’ testimony, following the case being dropped. Foreman on Thursday said the Daubert Standard didn’t apply to the case because it never moved forward. He said such a standard is not determined until a case moves forward and a judge makes a decision on the status of a witness presented as an expert.

The case involved an overage for the corticosteroid betamethasone found in Princess of Sylmar after she ran second in the 2014 Delaware Handicap (gr. I) for Pletcher at Delaware Park. The positive finding was not disputed, but Delaware stewards, on the advice of their assistant attorney general, opted not to move forward with the case.

Delaware Thoroughbred Racing Commission chairman Duncan Patterson noted that in a rather unique arrangement, the stewards are assigned a different assistant attorney general than the commission. He noted that the case never came before the commission.

Patterson said the stewards could have hired another attorney to pursue the case but that would have carried added expense and faced some political opposition in the state. He said Murphy had brought up the Daubert Standard in some initial discussions about the case with deputy attorney general Edward Black.

After the state opted not to move forward with the case, DTRC executive director John Wayne said Black determined the Delaware rule for betamethasone had not been subjected to proper peer review and publication requirements and advised the case not be prosecuted. After the case was dropped, Murphy said several medications on the schedule had not been subjected to proper peer review.

Foreman voiced the opinion of the Racing Medication and Testing Consortium that the type of peer review Murphy was referencing was not needed by the Daubert Standard. Foreman said the RMTC wished the case had moved forward to allow an opportunity to present the science behind the threshold levels and, if needed, the scientists who developed the thresholds.

Foreman noted that one of the pillars of the Daubert Standard is whether the science is accepted by the community. Foreman said in this case the community is horse racing, and he’s confident that the adoption process of the threshold levels by the RMTC, which includes wide-ranging industry representation, would have held up in court.

Foreman also said delays in the case likely impacted the state’s decision to not move forward. He said it was 10 months before the attorney received the necessary information.

At the time Wayne acknowledged that delay as well. Delaware was one of the states affected by significant delays last year at the Lexington laboratory LGC Science, which in 2014 served as Delaware’s lab before the state decided to opt out of its contract because of the problems.