Motion ruling could impact absolute-insurer statute

LEXINGTON, Ky. – A state court in Kentucky has ruled that the absolute-insurer rule enforced by the Kentucky Horse Racing Commission violates the state constitution, a determination that could have farreaching consequences in the regulation of medications and drugs across the United States.

The ruling, signed by Franklin Circuit Court Judge Thomas Wingate on Aug. 15, involved an appeal by the trainer H. Graham Motion of a penalty handed down by the commission for a positive of a trace amount of the regulated muscle relaxant methocarbomol in a horse that raced at Keeneland in the spring of 2015. The ruling’s first sections overturned the KHRC’s imposition of an initial penalty for the positive, but its last section could prove the most contentious due to its assertion that the absolute-insurer rule does not provide a trainer with adequate due-process protections.

“The first part is that these methocarbomol penalties are not viable because they are not based on science,” said Motion’s attorney, Craig Roberston, during an interview on Tuesday. “But the part that has the most far-reaching complications is that the absoluteinsurer rule is not constitutional as currently written.”

The absolute-insurer rule, which is on the books in some shape or form in every racing jurisdiction in the U.S., holds a trainer strictly liable for the presence of any prohibited medication or drug in its system. Wingate’s opinion stated that the rule “must be rebuttable and cannot be absolute,” appearing to shift the burden of proof some way toward the KHRC.

“To disallow a trainer to safeguard his license, a trainer must receive due process to be heard on the propriety of his action to challenge liability for a dosing violation,” Wingate wrote. Because Wingate is based in Franklin County, the location of Kentucky’s capital, Frankfort, the judge has wide experience on racing matters because he hears challenges to the KHRC’s decisions.

Rules holding trainers strictly liable for the condition of their horses have been in place in racing jurisdictions since the 1930s, concurrent with advances in pharmacology and medicine, and they are considered a linchpin of racing regulation. No court has struck down the constitutionality of an absolute-insurer rule in any racing jurisdiction since 1969, when the state of Illinois rewrote its absolute-insurer rule to comply with a ruling in a landmark case, Brennan vs. Illinois Racing Board.

Marc Guilfoil, the executive director of the KHRC, said that the commission had not yet determined a course of action after receiving the ruling on Tuesday morning.

“The commission is currently reviewing the opinion and order issued by Judge Wingate and will evaluate all available legal options,” Guilfoil said.

Earlier in the ruling, Wingate wrote that the KHRC’s threshold for methocarbomol was “arbitrary and capricious” because of testimony from lab directors and veterinarians that the drug could not have possibly affected the horse’s performance at the concentration at which it was detected. The concentration of the drug in the sample was 2.9 nanograms per milliliter. The KHRC threshold for the drug is 1 ng/ ml.

The KHRC had argued that it was not bound to establish medication thresholds solely on scientific evidence under the same rationale applied to the state’s legislature in establishing thresholds for laws involving drunk driving, citing, in part, its need “to preserve the integrity of Kentucky horse racing by regulating medical practices,” according to the ruling. But Wingate wrote that the same standard did not apply.

“Unlike the legislature’s broad discretion to enact laws to protect the general welfare of the public, clear guidelines set out by Kentucky courts govern the KHRC’s ability to promulgate regulations regarding drugs,” Wingate wrote. “Courts have required the existence of scientific evidence for the KHRC to enact a drug regulation. In this case, the record lacks for substantive evidence to show any rationale for the imposition of a threshold of 1.0 ng/ml of methocarbomol.”

Wingate further ruled that the KHRC had violated Motion’s due-process rights by not allowing the trainer to present evidence during his appeals hearing that would have challenged the threshold level or supported his contention that the horse had ingested the drug in its environment. Methocarbomol is considered a “stable drug,” meaning that it does not easily lose its potency when exposed to the environment.

Motion had testified that he administered the drug to the horse, Kitten’s Point, twice a day for four months leading up to the $150,000 Bewitch Stakes on April 24, 2015. However, he testified that he stopped administering the drug seven days out from the stakes race, which Kitten’s Point won, well before the two-day withdrawal recommended by the KHRC.

Motion, a native of England who has been training in the U.S. since the early 1990s and is fiercely protective of his reputation, was initially assessed a five-day suspension for the positive, while Kitten’s Point was disqualified from the race, with the purse redistributed. The penalty was later amended by the KHRC in a settlement agreement, with the five-day suspension thrown out.

It is unclear if the KHRC will appeal the ruling. Robertson said that as the ruling stands, the KHRC will need to amend its current absolute-insurer rule to comply with the ruling.

“As it currently stands, the Kentucky Horse Racing Commission is going to have to redraft its regulation to give trainers that due process,” Robertson said. “It’s speculative right now as to how they are going to do that.”