At issue is the allegedly illegal ban of a horse at Charles Town.
By Beth Henry / Journal Staff Writer
POSTED: July 2, 2008
CHARLES TOWN - An ongoing legal battle involving a horse banned from Charles Town Races & Slots took another turn recently when a circuit court judge weighed in on the matter.
The case involves an appeal filed in Jefferson County Circuit Court before Judge Gina Groh, in which horse owner Kevin Patterson claims that the West Virginia Racing Commission and the Board of Stewards at Charles Town Races have illegally banned his horse from racing.
Charles Town's stewards prohibited Patterson's horse, Brooklyn Bridge, from thoroughbred racing when they placed it on the track's veterinarian's list indefinitely on June 8, 2007. They said the horse's standard blood test showed "high EPO antibodies," and decided that the horse was to remain on the list, unable to race, until "an EPO antibody reading is below the cut-off standard." The Racing Commission upheld that decision in February.
The problem is, there is no West Virginia racing law that prohibits EPO antibodies or provides an acceptable "cut-off standard," according to Patterson's attorney, Paul Weiss, who filed an appeal of the Racing Commission's decision on March 5.
Weiss said the Racing Commission's attorneys, who work in the state Attorney General's Office, have not been able to show that a statute against EPO antibodies exists, and it appears that the stewards and the commissioners have acted well beyond their lawful powers and authority.
"It's absolutely shocking," Weiss said in a recent interview, adding that his client has suffered financial harm and lost more than $19,700 because his horse has not been able to race.
Weiss said Patterson does not deny that the EPO antibody was present in the horse, but says the antibody itself is not a drug. The presence of the EPO antibody simply suggests that the horse was exposed to erythropoietin, or EPO, at some point in the past.
His appeal stressed that Brooklyn Bridge's blood test showed no impermissible drugs in its system.
Patterson said he's extremely frustrated with the situation because Brooklyn Bridge is a good horse, but it's 11 years old and nearing the end of its career. He has owned the horse about eight years, and said neither he nor his trainer have exposed the horse to any illegal substances.
"I keep feeding him and keeping him happy, hoping for the day he can race again," Patterson said in a phone interview last week from his farm in Chambersburg, Pa. "This is the first time we've ever had a situation like this happen."
He said he is seeking support from the Charles Town Horsemen's Benevolent and Protective Association and the national HBPA.
"It is real important that all horsemen pay close attention and support this case, because the outcome of this lawsuit could have an effect on them for years to come," he said last week. "We as horsemen cannot continue to let the commission and the stewards make the rules up as they go."
In the appeal, Weiss also claims that the Racing Commission violated Patterson's due process rights, denied him fair consideration and failed to follow standard hearing procedures in regard to transcripts and official records.
Senior Deputy Attorney General Tom Smith, who is representing the Racing Commission in this case, could not be reached for comment.
After reviewing the petition for appeal and considering motions in the case, Judge Groh issued an order on June 19 that calls for the Racing Commission to set a new hearing date, and grants Patterson's request for the court to stay enforcement of the administrative order. That means his horse can be removed from the veterinarian's list and allowed to race while the legal proceedings continue.
Weiss said he is happy with Groh's order because it granted some relief to his client and should allow the horse to race for the time being. Weiss also said the judge got right to the main point of the case.
"She said the same thing we've said from day one - 'show me the statute or regulation that prohibits EPO antibody,'" Weiss said Tuesday afternoon in a phone interview.
Weiss also said if Brooklyn Bridge is not allowed to race, the track would not be following the judge's order.
"If we have any further difficulty with them, I do believe that would be contempt of court," he said, adding that Patterson intends to enter his horse in a race this weekend.
Patterson said he tried to enter Brooklyn Bridge in a race this past Saturday, but the stewards did not allow the horse to be entered because the Racing Commission's attorney had not informed them about Groh's decision. However, he faxed a copy of the order to the stewards and was told there shouldn't be any more problems complying with the court order.
Weiss said it's not over yet, and he is waiting for the Racing Commission to set a new hearing.
Gee, no wonder Amy Albright was winning at such a high % down in Charles Town. I'll be honest, I didn't realize this case was going on. I just wondered what happened to all of Diamond Oak's (Kevin Patterson) horses. Let me guess, the horse got EPO antibodies while eating a corn on the farm. Please...
I would love for all states to go full-force after EPO. It's not as widespread as a lot of drugs, but the people who are using it are at a MAJOR advantage over all other horseman. Their horses can process oxygen alot more efficiently than everyone else. More oxygen gets to the muscles and the horses don't get tired. A positive test for this drug should result in a lifetime ban IMO (along with Cobra Venom, etc).
Last edited by DickHertz; Jul. 2, 2008 at 02:15 PM.
PA, where the State motto is: "If it makes sense, we don't do it!".
It's called "Procrit" in the U.S. but in Europe it's called "Epotin" (I think). It's a drug that builds red blood cells in the body--used for cancer patients. They had to pull it off the market in Europe because it turned people's blood to sludge and that's what it does eventually to horse's blood (from what I hear)....
"We want to raise our children so that they can take a sense of pleasure in both their own heritage and the diversity of others." ~Mr. (Fred) Rogers~
EPO & DPO are banned substances here in Ontario. The Ontario Racing Commission just recently handed down a 10 year suspension and $40,000 fine to a standardbred trainer who had a horse test positive. The owner has also been told to return all purse money earned after the blood sample was taken-and it is a hefty amount as this horse did quite well.
The really stupid part of all of this is that a trainer who runs out of this training center did the same thing last year, and got caught as well, resulting in the same fine. When will these guys learn?!
We are not talking about backyard trainers either. These are guys whose horses do extremeley well, earn huge purses, and trainer awards as well. The ORC keeps close tabs on then, so why would they risk putting themselves out of work? I know, dumb question, it's for the huge purses, but it's just themselves they harm, it's the people that work for them as well. I know these three trainers personally, and a lot of people lost there jobs.
I was under the impression that EPO is extremely hard to test for- is there any way other than an antibody test, and any limitations to that test as far as determining when the horse might have been given the drug?
(I'm also sort of confused at how they can prove a loss, seeing as horse racing is so unpredictable, and why, if the horse is so old that he doesn't have many races left they don't just cut their losses and retire him...)
eta- I managed to find one article that said the antibodies could be present for "up to 120 days" after the horse received the drug- if this owner had the horse at that time, does he even have a toe to stand on?
"smile a lot can let us ride happy,it is good thing"
Thanks Cherry, that's the stuff. Destroys livers too, I have seen horses so called recovering from the use of it, unreal what is allowed and then the nice discussion about how there is no rule against having the antibody for this horror. I would not imagine Madeline would be so proud of her daughter if she knew about this...But then again, the ex Sec of State did do a burlesque dance during a summit for the Croatia/Bosnia crisis I think. Maybe it is all in the family after all.
"We, too, will be remembered not for victories or defeats in battle or in politics, but for our contribution to the human spirit." JFK
I had a lengthy conversation with the vet about EPO and testing for it. If you don't want to keep reading then I'll just say the testing is a work in progress (unfortunately). The big problem is the antibodies can stay in a horse's sytem for a long time, possibly even it's entire life. So when a horse comes up with the antibodies, they can do another more expensive test to further see the type of EPO that may have been used. The exact antibody levels is still rather unkown and therefore, as long as you give EPO at least 3 days out it's almost impossible for them to test positive. Since it's a red blood cell builder, there's really no benefit to giving it so close to a race anyway so unlike every other drug in the business, EPO can be given 14 days apart and 7 days from a race and work the best. I was also told that if they really want to get you for EPO they can do all sorts of different test to prove it was given recently, but again, the whole EPO testing situation is very cloudy to say the least. They need to come up with a test for it and if it's too expensive, then just test for it on one winner per night or something. The positives will start coming in. It is my opinion, that any trainer with at least 100 starts who is winning at 40% or greater is using EPO or some sort of drug that gives them a competitive advantage (cobra venom is another).
I think a lot horseman would give Drano if it didn't test and it helped the horse. EPO is not widespread, but I would say that about 2-3% of horses at mid-upper level tracks go into the starting gate with some EPO in their system.
Do you think it is a higher percentage at the low level tracks? We get quite a few horses that really crash when they come in, no matter what we do--- not a steroid crash bc they dont have the studdishness....but something very debilitating........that takes months for them to recover from.....
Well, EPO is a couple hundred dollars per month to keep up with the treatments. I doubt anyone at Beulah Park would spend that much money to clear $500 for a win. You probably see the results of steroids more than EPO. I think EPO is 2-3%, steroids much higher in jurisdictions where it can still be used.
DickHertz, have you heard of anyone using a substance that is a painkiller for burn victims, apparently deadens most of the major pain receptors. I got some info from a reliable source who said that this is being sold over the internet, and that someone in the area of Charles Town was selling this, in humans the dosage is something like 1/4 cc? I cannot remember the name of this, but this source also said that it is quite expensive, something like $600 for prerace treatment. I am not certain if that was just for this pain masking substance or if he was speaking in general of the inability of the average guy being able to compete against the "big guys" because they have this kind of advantage with the deep pockets.
I have to say that this is where I think the Federal government has to step in since the individual states are either too entrenched with the dirty money being liberally spread about to act on these matters or they are just not capable from the standpoint of wielding enough power. Certainly there could be tests just as you are suggesting, one test per racing card and particular attention should be given to those with the higher win percentages no matter what those percentages are, just to ensure that no cry of targetting would be able to be lodged they could certainly random test any winner in addition to the higher percentage. The problem right now is that in those states where the video gaming interests have such a hold that the money, and the bully boy tactics that go along with this is most likely being used to allow these practices to continue since that does what the video gaming crowd wanted to do all along, do away with live horse racing. After all, machines and card tables and casinos in general don't have the maintenance costs nor are they connected to an economy that the horse industry represents, in effect the agricultural economy. No one ever said the casino guys were smart, since I guess they eat too, but they certainly do not like the horse racing side of the equation, they are quite aggressive and arrogant about it at Charles Town too.
There has been at least one case of rat poisoning killing a horse stabled at Charles Town and Penn National Gaming Inc. claimed they never ordered the pest control program. Little problem on their part is that the trainer has the bill from the pest control company which specifically outlines the type of poison (tracking powder) and where it was spread, which was of course in the horse barns without the knowledge of the trainers. So alot is going on in a continuous way that keeps everyone on edge and in a state of high alert for the safety of their horses. This is the tragedy.
Last edited by Calamber; Jul. 8, 2008 at 10:43 PM.
"We, too, will be remembered not for victories or defeats in battle or in politics, but for our contribution to the human spirit." JFK