“It just doesn't pass the smell test.”
Attorney Drew Mollica repeated the phrase, utterly mystified a few days after his client, Hall of Fame trainer Bill Mott, was handed a fine and suspension for overages of both flunixin and furosemide in Saratoga Snacks from a Sept. 20 race at Belmont Park.
Mott was told the horse's furosemide levels were ten times the legal limit, despite the bleeder medication having been administered by a third party veterinarian at a third the usual dose, per Mott's request. Given his client's pristine reputation and clear medical records backing up Mott's account of the furosemide administration, Mollica already thought the situation smelled a little fishy.
By now, he thought it stunk.
Mott had requested a split blood sample be sent to a different lab for confirmatory testing and was informed there was an insufficient amount of plasma to do a split test. He's not the first trainer to encounter this problem.
Defense attorney Karen Murphy recalled four out of five occasions in the past two years in which a client had requested a split sample from the New York lab, only to be told there was either an insufficient quantity of blood for testing or the remainder of the sample had not been stored properly.
“Years ago I asked for a split, and I was told [the lab] threw it in the garbage can,” she said. “That's the kind of thing that makes your head burst because there are standard procedures and protocols.”
Once, the blood involved was frozen without being properly processed first, rendering the thawed product useless. More recently, the blood left over from a sample from the horse Wind of Bosphorus was too little for Louisiana State University's Dr. Steven Barker to perform a split sample test at the request of trainer Doug O'Neill in fall 2014.
“We have done thousands of splits over the years and New York has been almost exclusively the one to not provide sufficient sample for blood confirmations,” said Barker, an expert witness in the O'Neill case who was also suspicious of the quality of the New York lab's report . “This is not so much lab error as a failure on the part of the entire operation to acknowledge and address this shortcoming.
“Yes, New York has its own 'style,'” Barker concluded.
With no possibility of a test to help his case, O'Neill famously took the penalty in New York for a positive test for the anti-anxiety drug Oxazepam. Bill Mott now finds himself in a similar position.
New York, by the numbers
One element of New York's unique “style” of doing things has been its relatively atypical drug testing results. According to the New York State Gaming Commission's most recent annual report, the testing lab uncovered 27 positives at its Thoroughbred tracks in 2012 and 55 in 2013. In 2013, New York ran 3,752 races (which means the lab detected one positive in every 68 races), according to statistics from The Jockey Club. In the same period, Kentucky ran 1,867 races and reported 86 positives in Thoroughbred samples (one positive in every 22 races).
The content of those positives was also a little unusual; in 2013, the New York lab discovered 24 flunixin (Banamine) overages and just six phenylbutazone overages. In its fiscal year running 2012-13, Florida's testing laboratory detected 17 flunixin overages and 65 phenylbutazone overages (plus two cases where the drugs were used together in excess of legal limits). In fiscal year 2012-13, California detected 89 positives, including 47 bute and eight flunixin.
Cash is king
Another element of New York's style has been, like many jurisdictions these days, to save money wherever possible. That was the motivation behind legislative action in 2010 that altered the language regulating equine post-race drug testing in the state. For some four decades, Cornell University had exclusively conducted the testing in its veterinary lab, but Michael Kotlikoff, dean of the university's veterinary medicine program had been complaining to the state that it needed extensive updates ($9 million worth) to continue with the program. Dr. George Maylin, head of the testing program at Cornell, had other ideas.
At that time, the law mandated that testing occur at a New York university with a veterinary program, and Cornell was the only facility that fit the bill. Maylin made arrangements with officials at Morrisville State College to transfer the program there. Subsequently, legislators revised the law's wording to restrict post-race testing contracts to “a state college within this state with an approved equine science program.”
New York isn't the only state with a law on the books requiring its commission to use an in-state university lab: Florida, Louisiana, Illinois, and California have similar mandates. Most jurisdictions, however, open the job to bids from commercial facilities every few years.
Why doesn't New York open things up for competitive bids?
“New York, through law, made a determination that privatization is not appropriate for this testing,” the New York State Gaming Commission told the Paulick Report in a statement. “The Commission abides by the statutory requirements relative to equine drug testing.”
Commission officials pointed out that any college in New York fitting those guidelines could submit a bid for the project. It's unclear which, if any, of the state universities in New York are in a position to submit such a proposal. Bids will be accepted for the next contract period in July of this year.
At the time Maylin suggested the move from Cornell to Morrisville, he estimated the state could save $500,000 annually. Although he did not elaborate publicly on how he planned to trim six figures from the state testing budget, he and Morrisville officials projected the move would free up money for extra research and could create a testing program so advanced and cost-effective that other states might begin contracting there.
Five years later, no other racing jurisdictions contract with Morrisville for post-race testing of Thoroughbreds; instead, many of them have opted for Racing Medication and Testing Consortium-accredited labs.
The Morrisville laboratory applied for accreditation in 2013; while it is accredited by the International Organization for Standardization, its RMTC status remains pending. The supplemental operating budget for Morrisville running from April 2013-March 2014 included an additional $719,956 allocated for improvements relating to RMTC/Racing Commissioners International accreditation.
What's going on here?
With cost savings so enormous in the switch from Cornell to Morrisville, this reporter became curious as to what types of testing methods New York's program was utilizing. Without a public contract, there is no Request for Proposals outlining the Gaming Commission's desires regarding testing, no subsequent public Question and Answer document giving suggestions as to what methods are and are not permissible. The state's law on equine drug testing (Section 902 of Article 9 in the Racing, Pari-Mutuel Wagering, and Breeding Law) does not specify the methods to be used to search for illicit drugs in post-race samples.
Morrisville's own memorandum of understanding with the state, written in 2010, is astoundingly mute on the subject. Much of the nine-page document is concerned with finances and intellectual property, and while it specifies that testing should be done blindly and results should be reported, there is no stipulation for the type of testing the lab must use. Even one New York racing official interviewed by the Paulick Report was unable to find out how the lab analyzed its samples after inquiries to fellow officials and management.
The lab's International Standards of Operations documentation certifies its utilization of all three major testing methods for drugs in urine and blood: a cousin of the dated thin-layer chromatography, ELISA (enzyme-linked immunoassay) kit testing, which rose to prominence in the 1990s, and the newer, more sensitive and broader instrumentation methods, which include mass spectronomy.
Maylin told the Paulick Report the primary method of analysis used in the lab is instrumentation testing, with supplementation of ELISA kits. He spoke confidently about the lab's capabilities.
“The analytical methods have been validated by means of over 5,000 experimental drug administrations to research horses,” he said. “This has been an ongoing process for the past 40 years.”
A history lesson
That process wasn't enough to generate a positive test in a high-profile case back in 2012, however. New Jersey-based Standardbred trainer Lou Pena was charged by the New York State Racing and Wagering Board (the predecessor to the New York State Gaming Commission) with over 1,700 medication violations discovered in the trainer's veterinary records. Strangely, there were no positive tests in any of those hundreds of incidences of medications given outside the bounds of the states' rules.
Even an intensive month-long investigation by the New Jersey Sports and Exposition Authority of Pena's barn could kick up just two minor discrepancies in blood tests. One thing the two jurisdictions had in common at that time was a privately owned company named Testing Components Corporation. Testing Components Corporation, housed in an office a few minutes' walk from Maylin's old office at Cornell, was one of the suppliers of ELISA kits to both New York and New Jersey for post-race testing. The company continues to supply New York's testing program with ELISA kits.
TCC is steered by CEO Charles Prange, formerly co-founder of International Diagnostics Systems of Saint Joseph, Mich., which used to conduct testing and engineer ELISA kit technology. Prange found himself ensnared in legal battles several times in his tenure at IDS. In one instance, the New Mexico Racing Commission demanded Prange be sued by the state attorney general when, a few months into IDS's contract to test post-race samples, the commission accused the company of spending funds without the state's permission and releasing confidential information.
There was also a case in California in the late 1980s when Prange, in the midst of trying to land the state's contract for post-race testing, told officials he had detected “suspicious” results in 12 percent of horses at an Oak Tree Racing Association meet at Santa Anita Park, including cocaine positives in horses trained by Roger Stein, Laz Barrera, D. Wayne Lukas, Anthony Hemmerick, and Bryan Webb. Barrera, Stein, and Lukas sued over the accusations, claiming foul, and ultimately none of the positives were upheld due to insufficient scientific evidence when another lab was unable to detect the drug.
And finally, just ahead of the close of bids for the California contract, Prange was fired from the company he helped found and investigated for “misappropriation of corporate assets.” No charges were filed, and that same year, in 1989, he registered TCC with the state of New York.
Maylin's detractors and supporters alike are quick to point to his decades of experience in equine pharmacology—he literally wrote the book on the subject—and can attest to his scientific brilliance. When taking the stand in the 2012 Pena case though, even he was out of compelling revelations. Under questioning by the state, he suggested that some of the testing methods used in his lab were known to produce false negatives for some of the 14 substances Pena allegedly used (which included two steroids and three hormones), and that tests did not exist for some of the other substances.
When pressured further by Pena's defense attorney, Maylin ultimately testified, “We didn't find it and I don't know why.”
Questions of anonymity
One of the few things the memorandum of understanding holds the Morrisville laboratory to is anonymity of samples, both post-race and out-of-competition, and that's a standard Maylin said is a basic part of the lab's function. One former New York state employee remembers the process differently, however.
Part of the day-to-day responsibilities for Dr. Dianna Meyer, formerly an examining veterinarian for the New York Racing Association, was pulling blood for out-of-competition tests. Although it was typical for NYRA stewards to give veterinarians a barn and stall number, that wasn't always the way things happened.
“On occasion, I was given the horse's name and the trainer's name of the race horse in question, until I took it to the State,” said Meyer, who eventually complained about the practice.
During this time, Meyer said veterinarians were sometimes instructed to label blood samples with this identifying information before they were sent to the laboratory.
Maylin said that this information has never reached the laboratory.
“The Lab receives a sample identification tag attached to each sample,” he said in an email. “There is no identification relating to trainer, horse's name on what we receive. It is possible that the bottom part of the tag that is retained by the Commission has identification that you refer to. We never see that.”
A multi-faceted problem
The 2011-12 winter meet at Aqueduct sparked outrage and scrutiny when 21 horses died from racing-related injuries. Despite an extensive investigation by a state task force and declarations by an alphabet soup of state and horsemen's groups encouraging examination and reform, 12 horses have died during the current meeting. The problem is almost certainly complex and could be due to several factors, as the state's task force outlined after the 2011-12 winter season, but it bears consideration that any state's regulations are only as good as the testing program enforcing them.
Alone, any of the unique elements of New York's drug testing 'style' might be taken as oddities or errors. Taken together, they're starting to smell.
Correction: An earlier version of this story incorrectly stated that the veterinarian who administered furosemide to Saratoga Snacks was employed by the state. In New York, furosemide is administered by third party veterinarians hired by NYRA. In a related error, Dr. Meyer in fact worked for NYRA, not the state.
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