An administrative law judge has recommended to the New Jersey Racing Commission that it reverse a $1,500 fine against Joe Sharp and a $60,000 purse forfeiture from a horse he trains that tested positive for methamphetamine at Monmouth Park in 2017.
In making her ruling, Administrative Law Judge Susan M. Scarola said post-race samples from Phat Man, winner of the Long Branch Stakes on July 8, 2017, may have been contaminated at Truesdail Laboratory in California, where the original testing was conducted and the split samples – eventually sent to the Maddy Laboratory at the University of California-Davis for confirmatory testing – were stored.
Phat Man shipped in to Monmouth Park from out of state the day of the Long Branch and was bedded down in a stall in trainer David Cannizzo's barn.
On July 27, stewards were notified that Phat Man tested positive for methamphetamine. Cannizzo's employees underwent drug testing and two licensed individuals who worked in the barn tested positive for methamphetamine. They were not named in the ALJ decision, but were referred to the commission.
The split sample sent from Truesdail to UC Davis confirmed the presence of methamphetamine at 30 picograms per milliliter of blood and 1.2 nanograms per milliliter of urine.
Methamphetamine is a Class 1 drug under Association of Racing Commissioners International guidelines, with Class A penalty guidelines recommended if the drug is D-meth (street drug) and Class B if it is levomethamphetamine, which is found in medications for humans, including Vicks inhalers. A Class A penalty calls for a minimum one year suspension, absent mitigating circumstances, plus a $10,000 fine.
Commission steward Stephen Pagano, according to the ALJ decision, did not believe Sharp physically administered the drug to Phat Man. Because of mitigating circumstances – the assumption that Phat Man may have come into contact with hay or straw that was contaminated by one of the barn workers who later tested positive for methamphetamine – stewards did not suspend Sharp or assign any Multiple Medication Violation points. Nevertheless, he was fined $1,500 and Phat Man's owner, Brad Grady, was ordered to forfeit the $60,000 winner's share of the Long Branch Stakes purse.
However, unbeknownst to the stewards and Phat Man's connections when the ruling was issued on Oct. 4, 2017, is the fact that a negative control sample used during testing procedures at Truesdail somehow became contaminated with methamphetamine. Dr. Anthony Fontana, the chief science officer and technical director at Truesdail, confirmed the contamination in his lab notes but it was not part of the official report submitted to the New Jersey Racing Commission on July 24, 2017, four days after testing of the samples was completed.
According to the ALJ decision, “Control samples are purchased from third-party vendors – urine from one and blood from another. Here, both controls were contaminated. The blood and urine were processed, and, somehow, during the processing, contamination was caused by a Ms. Cook, who was now retired. In the laboratory setting, she contaminated both of the control samples, but it was not known how she did it. The extraction process is the same for both blood and urine, and somehow Ms. Cook contaminated both.”
The ALJ decision states that Fontana “did not know where in the process the contamination occurred, and it was a mystery how it happened.” However, it also said, “Dr. Fontana stated that the contamination was not the cause of the positive test, as it was 'small.'”
According to Scarola, the levels of 30 picograms in blood and 1.2 nonograms in urine found in Phat Man “is a contamination. The Federal Aviation Administration and the Department of Transportation have a 250 nanogram/milliliter limit. Here, the horse Phat Man had 1.2 nanograms, which is less than 1 percent of that permitted for truckers who are driving and pilots who are flying.”
In addition, Scarola said, no one could prove that such a low level of the drug could affect a horse's performance.
Scarola stated that “Truesdail had contamination in its laboratory. … If a negative control is positive, and it is not known how it became positive, then how can the sample testing be accurate? … Here, the negative sample was contaminated, calling into question the accuracy of the results.”
Calling the testimony in the case by Dr. Clara Fenger “credible,” Scarola wrote, “The effect of a control negative being positive casts doubt on the results noted by both laboratories. If the Truesdail Laboratory samples were contaminated (however 'small' that contamination might have been) as indicated by its report, then the remaining samples forwarded to UC Davis laboratory could have been contaminated too. …
“A contamination in the laboratory casts doubt on the accuracy of the results and the penalties that flow from them. Under this very unique set of circumstances, I conclude that the determination of the commission to impose a fine and loss of purse should be reversed.”
The New Jersey Racing Commission has 45 days from March 8, 2019, to adopt, modify or reject the administration law judge's recommendation. If the commission takes no action within that time frame, the recommended decision becomes a final decision.
Attorney Clark Brewster represented Sharp, with deputy attorney general Dominic Giova appearing on behalf of the state of New Jersey.
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