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ABSOLUTE INSURER RULE
passing of this burden through the trainer insurer rule constitutes a breach of the state’s duty to maintain the integrity of horse racing.” Vienna practiced law from 1994-1997 while also training horses. Though he no longer has an active practice, he continues to follow trainer liability issues and for several months worked as a consultant for the California Horse Racing Board (CHRB), suggesting possible revisions in the their rules of racing. He views as significant the move toward “strict liability” from “absolute liability” in interpreting drug violation cases. “For a long time the states have had the mentality of winning these cases, even when there is sufficient proof there is no case, or not as big a case as it looks,” Vienna said. “If it can be proved right away that a trainer can’t be liable, a case shouldn’t have to go to a hearing. A few years ago I went to Boston to help some trainers at Suffolk Downs who had horses test positive for Lidocaine. It turns out they had given the horses a drug whose manufacturer said had no Lidocaine. Is a trainer liable when the drug in question is marketed wrong?”
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A February meeting in Las Vegas between the Racing Medication and Testing Consortium (RMTC) and several racing bodies, including California Thoroughbred Trainers (CTT), and Dr. Rick Arthur, longtime practicing veterinarian and now California’s equine medical director, was a major step toward revising penalties for trainers. “Assistant trainers, grooms, other stable personnel, as well as owners and veterinarians, may now be held liable in drug positive cases,” said Dr. Scot Waterman, the executive director of the RMTC, based in Lexington, Ky. “There was a case in Kentucky several years ago, when an owner, who also was a medical doctor, gave Prozac to one of his horses, without the trainer’s knowledge. He thought it would calm the horse down. “Though Prozac isn’t known to have any
performance-enhancing qualities, it’s not supposed to be in a horse’s system. The trainer was suspended for a short time, but under the old guidelines, a trainer might have a stricter penalty. If new guidelines are used, there might not be any penalties for a trainer in a case like that.” Darrell Vienna, who has trained on the Southern California circuit since 1976 and won the 1992 Breeders’ Cup Juvenile at Gulfstream Park with Gilded Time, also has a law degree from Loyola School of Law in Los Angeles. He researched the history of the absolute trainer rule in California and wrote a paper on the subject in 1992 for his law school project. In the paper, he wrote, “The state, as the beneficiary of millions of dollars provided by horse racing, has a duty to actively supervise and police activities at the race track. The
HE concept of mitigating circumstances has existed in California racing rules for 19 years. Section 1887 of the California racing rules requires that a trainer be notified of a positive drug test within 18 days of the race. Otherwise the trainer is deemed not responsible for the positive test. Section 1888 further guarantees the due process rights to notice, representation of counsel and the introduction of evidence. Additionally, the section provides that the trainer may “defend, mitigate or appeal the charge if he shows, by a preponderance of the evidence, that he made every reasonable effort to protect the horses in his care from tampering by unauthorized persons.” Until 1995, however, California stewards had minimal guidance in interpreting the trainer insurer rule or the defenses to it. Even when trainer liability could be strongly placed in doubt, there was little recourse. Bob Hess Jr, the son of a trainer, who has had his own stable since 1987, was charged with a morphine positive in 1995. “It turned out that a groom, who had a history of drug addiction and was later barred from the tracks, had been eating poppy seed muffins,” recalled Hess, who has won such races as the Hollywood Futurity (River Special, 1992) and Hollywood Park’s Californian (River Keen, 1997). “There’s morphine in that. The case ISSUE 12 TRAINERMAGAZINE.com 65