by Doug McCoy and Frank Vespe
The result of the Delaware Handicap stands official — the 2014 Delaware Handicap, that is.
And that means that Princess of Sylmar, the popular Todd Pletcher trainee whose second-place finish was thrown in doubt when she tested positive for an overage of the corticosteroid betamethasone, will remain in second, even though the overage was confirmed via split sample.
Why is that? And why did it take more than one year to resolve it? And why has it just now come to light?
The answers to those questions lie in an unusual medication case that could have far-reaching implications for the Thoroughbred industry’s efforts to regulate itself, which Pletcher’s attorney was quick to point out.
Karen Murphy, the attorney for Pletcher who successfully argued that the Delaware’s betamethasone regulation was built on a foundation of sand, had advice for states that have adopted or are considering adopting the uniform medication regulations developed by the Racing Medication and Testing Consortium (RMTC) and recommended to the states by the Association of Racing Commissioners International (ARCI). “Anybody that’s considering it should hit the pause button,” she said.
Princess of Sylmar, the beaten 1-5 post time favorite in the July 12, 2014 running of the Grade 1 Delaware Handicap, came back with a post-race overage of the corticosteroid betamethasone, which under Delaware and Association of Racing Commissioners International model rules is permitted to a threshold of 10 picograms per milliliter of plasma.
According to the Racing Medication and Testing Consortium, betamethasone and other corticosteroids “are widely used… for a number of indications including treatment of inflammation and pain associated with joint disease and arthritis.” Because of the therapeutic value, their use is allowed in horses, but because they mask pain, they are not permitted to be present in horses’ systems on raceday beyond a trace amount. Betamethasone is administered via intra-articular injection.
The overage finding, by LGC Science, was confirmed via split sample sent to Industrial Laboratories in Colorado.
But after a year of legal wrangling, the state will drop the inquiry and release the purse funds, Delaware Thoroughbred Racing Commission (DTRC) executive director John Wayne said July 23, “based on the advice of the deputy attorney general.”
“It’s a complicated case,” said Ed Stanco, who bred Princess of Sylmar and was one of the partners in King of Prussia Stable, which owned her, “and we’re just happy it got resolved in our favor.”
But, said Murphy, the complicated case boils down to a simple issue. “When you try to get the key piece, which is the science, you can’t get it,” she said.
By that, she means the science undergirding the betamethasone regulation itself. The ARCI Controlled Therapeutic Medication Schedule includes for each permitted substance an allowable threshold level, recommended withdrawal time, and reference notes pointing out where to find the science behind the regulation.
In the case of betamethasone, that reference note merely says, “RMTC study.”
And when Murphy tried to get hold of that study, she says that she ran into a brick wall. She says that the RMTC provided a one-page summary but nothing further.
“They would not produce it because of confidentiality agreements,” she said. “The science could not be revealed to defend the cutoff that created the rule violation.”
And that, she said, is, legally speaking, a problem.
“The only way it’s defensible is that you should say, ‘I want to see the science,'” Murphy explained. “You cannot defend a regulation without peer-reviewed science.”
Ed Black, the Delaware Deputy Attorney General in the Civil Division, who represents the DTRC stewards, evidently agreed. He characterized the stewards’ decision to drop the case, on his advice, as “the exercise of what is commonly known as prosecutorial discretion.”
Were a judge to agree with Murphy’s reading of the situation, it could potentially jeopardize many other positives in Delaware.
But Alan Foreman, an attorney who is vice-chairman of the RMTC, said that, though he was not familiar enough with the Delaware case to comment on the specifics, he disputed Murphy’s assertions about how to develop medication regulations.
The RMTC recommendations regarding corticosteroids, he said, “came from a conference of scientific experts that was put together for that purpose [of developing corticosteroids rules].” He added, “They’re not pulled out of thin air. They’re the subject of scientific research.”
What’s more, it is critical, he said, for regulatory bodies to be able to act quickly as new and designer drugs hit the market. Waiting for the peer review process, which can take years, might allow new drugs to flood racing, leaving regulatory bodies helpless to respond.
“If you wait for all that to be done, you’re going to have a very tough time regulating,” he pointed out.
Beyond Delaware’s perhaps surprising capitulation, the case is unusual in at least one other important respect: that a medication overage of a high-profile horse in the hands of arguably the nation’s most successful trainer running in a Grade 1 race has remained essentially a secret until now.
Delaware’s commission rules require the stewards to “maintain a daily log, reporting all actions taken by the Stewards,” as well as other items, including “results of blood, saliva or urine tests.” That log is posted online on the Commission’s website.
Regarding equine testing, typically, the stewards’ daily reports first list each numbered sample that has not yet been cleared; these are said to be “on hold awaiting a certificate of analysis.”
When a sample is found to have a prohibited substance or an overage, that day’s daily report lists the sample number, and it is at that point that the name of the horse, trainer, and the substance found are also released.
“It seems to me that they [positives] all do show up in the stewards’ daily reports,” said Michael Gorham, a Delaware-based trainer who is also president of the Delaware Thoroughbred Horsemen’s Association, which represents trainers and owners at Delaware Park, “and are handled and dealt with appropriately.”
Yet no mention of Princess of Sylmar, trainer Todd Pletcher, or any tests or hearings involving them appears in any stewards’ reports.
Three samples taken Delaware Handicap day, July 12, 2014 — numbers 44839, 44837, and 44841 — were listed on July 23 as on hold awaiting analysis.
The July 12 sample #44839, collected from Barracuda Wayne, a horse trained by Murray Rojas, was found to have dexamethasone, also a corticosteroid. That overage was called on August 16. Rojas requested and received a split sample, which also came back positive. By September 29, the stewards had announced their decision to fine Rojas and disqualify her horse from all purse monies.
Yet the other two samples drawn July 12 and said on July 23 to be awaiting analysis do not seem to have been mentioned in subsequent stewards’ reports.
Princess of Sylmar’s split sample — delayed in part by a dispute between the parties about where to send it and whether to “split the split,” or reserve a portion of it — returned to Delaware sometime after the October 22, 2014, end of the meet, knowledgeable sources said.
Murphy said that the stewards had called for a hearing in November but that the sides agreed to delay it because they had not yet received the test lab’s so-called “litigation package,” which provides the full documentation for the positive finding. That package, Murphy said, did not arrive until May, 2015, and the stewards then noticed her in June for a July hearing.
And still there was no mention in the daily logs.
“The only concern with me is why wasn’t it reported?” Gorham said. “Everybody else that gets a positive shows up in the daily report.”
Murphy said that she was unaware that the stewards posted daily reports.
Wayne, the DTRC executive director, said that he did not know that the positive finding had not been listed in the stewards’ reports and would look into it.
The decision to drop the case means, among other things, that Stanco and his partners in King of Prussia Stable will retain the $150,000 Princess of Sylmar earned for finishing second in the $750,000 race. It also means that Pletcher will not be fined or otherwise disciplined; according to ThoroughbredRulings.com, he has not had a medication violation of any sort since 2010.
The decision may also provide a roadmap for trainers looking to beat adverse medication rulings in Delaware and other states which have adopted the uniform medication program.
But that’s small comfort to Murphy, who said that she suggests clients take a different route.
“I have advised: Don’t run in any state that has these rules,” she said.
Princess of Sylmar, a Pennsylvania-bred daughter of Majestic Warrior, was one of racing’s 2013 feel-good stories, rising from the relative obscurity of a maiden win at Penn National to win four consecutive Grade 1 races, capped off by a flashy score over defending distaff champ Royal Delta in the Beldame at Belmont Park.
In 2014, she won only the ungraded Cat Cay. She made just one start following the Delaware Handicap, running a disappointing, well-beaten fifth as the second choice in the Grade 1 Personal Ensign at Saratoga.
Following the Personal Ensign, she was diagnosed with a case of thumps (irregular spasms of the diaphragm) and, Pletcher told the Blood-Horse, her recovery took long enough that her connections made the decision to retire her.
She was sold for $3.1 million, to Japan’s Shadai Farm, at Fasig-Tipton’s November Sale.
Where all this leaves racing in Delaware and other states participating in the uniform medication program is a question many in racing will be asking in the days and weeks to come.
Meanwhile, at Delaware Park, Gorham, the local trainer, said that the case’s combination of facts can’t help but cause some to wonder whether they’ll receive similar treatment.
“If it was an everyday guy,” he suggested trainers will think, “it would be a different story.”
Terrificly written article…. Why on earth is the science behind this one particular regulation considered to be such a State Secret when it is stated and in compliance, for all other prohibited substances??….
thanks, Robert Goldstein! Apparently in some cases the research the RMTC uses is protected by confidentiality agreements – not sure why that is, but obviously, it could pose challenges from a legal perspective.
It sure does! Secret Take Our Word For It Citations are incompatible with Due Process. This basically voids all rules against said substance in Delaware, not acceptable! This must be rectified…
Wonder how much the owners spent to drag this out to the point the State did not want to pursue it?
fair question and my assumption is more than a little.
Would love to see an interview with Karen Murphy – she obviously did a great job for her client. It would be interesting to see to get an in depth perspective from her on the process, testing , science etc. Great job on the article !
Great thinking by Pletcher’s attorney – ‘don’t run in any states that have these rules’…How about laying off the medication abuse just to get a horse to the races instead…I get using approved medication to address health or some physical issues between starts, but, using them during the week leading into a race, thus racing on the medication is only going to get you a serious chance of testing positive and that is why rules are in place contrary to the thinking of Murphy….
Where did you get your Doctor of Veterinary Medicine degree to diagnose and treat racehorses ? Much less make a judgement call on what ‘medication abuse’ is or isn’t.
There is bigger problem than perception and it is called lack of knowledge and education . When is the last time you positively influenced a racehorses well being?
Just like fixing a parking ticket, or speeding ticket by socially know ing the Judge. All drug testing should be the same , no matter, the slightest of overage, Action should be taken by The Racing Commissions. My take: Disqualify from second to last, re coup the Purse. end of story, not new studies needed case was cut and Dry! THanks!
The original hearing was scheduled in November 2014 and was delayed. Sylmar sold for more than $3 million in the November 2014 sale. I wonder if the hearing had occurred as originally scheduled whether that would have affected her sale price?