Darren Glennon, 2006 CanLII 84600

IN THE MATTER OF THE RACING COMMISSION ACT 2000, S.O. 2000, c.20;

Thoroughbred trainer Darren Glennon appealed from TB Ruling 4046/2005 of the Stewards at Woodbine dated December 10, 2005, wherein the Stewards found him in violation of Rule 15.06 and Rule 15.09.1(f) in respect of a positive test for the Class IV substance FLUNIXIN, and in respect of his failure to maintain adequate medical records, and imposed a 30-day suspension and a $1,000 fine.

On April 13, 2006, a Panel of the Commission consisting of Chair Lynda Tanaka, and Commissioners David Gorman and Bernard Brennan, DVM, convened for the hearing. Brendan Van Niejenhuis acted as counsel for the Administration, and Gerald Sternberg acted as counsel for Mr. Glennon.

The Administration did not seek any finding to be made under Rule 15.09.1(f) for failure to maintain medication records, but proceeded only under Rule 15.06 in respect of the positive test.

On hearing the evidence of Steward Richard Grubb, Investigator Colin Coleiro, and Darren Glennon, the Commission dismissed the appeal as to liability but set aside the decision as to penalty, and ordered a penalty consisting of:

a period of suspension commencing May 8 and concluding May 19,

2006; and

no fine.

The Commission gave written reasons for its decision, which are attached to this Ruling.

DATED at Toronto this 1st day of May 2006.

John L. Blakney

Executive Director

REASONS FOR DECISION

Thoroughbred trainer Darren Glennon appealed from TB Ruling 4046/2005 of the Stewards at Woodbine dated December 10, 2005. The Ruling arose from a Certificate of Positive Analysis for the horse Gladiators Consort which finished fourth in the second race July 25, 2005 at Fort Erie Race Track. The positive test was for Flunixin, which is a Class IV drug. Flunixin is usually sold under the brand name of Banamine. This Certificate of Positive Analysis is the second positive test for Flunixin for this trainer for this horse, the first such certificate arising from a race also in late July 2004.

Mr. Glennon has been licensed in Ontario as a thoroughbred trainer since 1994. The penalty imposed by the Stewards under the Ruling appealed was a fine of $1,000 for violation of Rule 15.09.1(f), the rule requiring medication records and a 30-day suspension to commence April 1, 2006 for the positive test in violation of Rule 15.06. Since the 30-day suspension was to start April 1 and since the thoroughbred racing season has just started, the suspension would have included 9 racing days though the term would affect his access to the backstretch for the full 30 days. The ORC Guidelines for a second offence for a class IV drug are 30 to 150 days suspension plus a $2,000 fine.

The Commission has determined for the reasons set out below to eliminate the fine and to set the suspension period to run from May 8 to May 19, 2006 inclusive encompassing 10 racing days, leaving the other terms and conditions of the Stewards ruling unchanged.

The Administration did not press for a finding of a violation of Rule 15.09.1(f) the obligation on a trainer to maintain medication records on his horses, but requested that the fine be imposed as penalty for the positive test. The following sets out our reasons for the disposition of the case with the modifications to penalty.

The Administration case

The appellant did not challenge the Certificate of Positive Analysis for Flunixin. It is therefore admitted by Mr. Glennon that his horse Gladiators Consort raced with a therapeutic substance in its body in an amount above the detection limits when it came in 4th in the second race at Fort Erie on July 25, 2005. Flunixin is a potent analgesic and anti-inflammatory.

The Administration called Steward Richard Grubb who explained the rationale for the penalty and the process leading up to the Commission’s hearing. Exhibit 1 is a document brief with 11 tabs containing relevant documents admitted in evidence on consent of the parties. The Administration also called Investigator Coleiro who testified that he conducted a barn search and vehicle search after notification of the positive test certificate had been received. No Flunixin was found in that search. He also interviewed Mr. Glennon and his groom, and the interview reports were included as Tabs 8 and 9 in Exhibit 1. Investigator Coleiro also interviewed Dr. Crawford who was the vet apparently responsible for treating Gladiators Consort on July 25. He did not interview in this matter one Robin Reichel who was a vet assistant who apparently gave the horse two injections on the morning prior to the race. Ms Reichel has apparently had her licence suspended for rule violations and Investigator Coleiro testified that she was not under any obligation to be co-operative since she was no longer licensed. Given that he had been the lead investigator whose investigation had led to her suspension, he did not believe that she would respond positively to a request for her assistance in this matter.

The theory of the defence

The theory of the defence is that Robin Reichel made an error and injected the horse with Flunixin rather than the substances that had been requested by Mr. Glennon for his horse for a pre-race, namely Calcium Gluconate and an electrolyte jug. Both the Calcium Gluconate and Flunixin are clear colourless substances that could not be distinguished from each other in a syringe. Exhibit 2 was an invoice from Dr. Crawford produced to corroborate Mr. Glennon’s evidence that the horse was to get Calcium Gluconate and a jug by injection the morning of the race. Mr. Glennon’s position is that, instead of these substances, the horse was given Flunixin by Ms. Reichel by mistake and that he has not used Flunixin in his barn in over two years and does not have any.

Mr. Glennon testified as to the past positive test for this horse in 2004 and his knowledge of the events of July 25 and the administration of the substances by Ms. Reichel. He brought the horse from Woodbine where it is usually stabled to Fort Erie in the morning of July 25 arriving at around 8:50, according to the statement he gave Investigator Coleiro. The horse was to be given Lasix at around 9:35 as the 2nd race was scheduled to go off at 1:25 approximately. Therefore his arrival at the track was timed to accommodate that injection. No other evidence was given as to when that injection was in fact given, but the urine tags clearly indicate that this horse was treated as one that had been given Lasix, in the course of the collection and testing of the urine post race.

He testified that Robin Reichel came to give the injections he had arranged with Dr. Crawford at around 9:30. He described the actions of Ms. Reichel in coming to the barn and specifically to the stall as hurried and distracted. She arrived driving a golf cart, talking on her cell phone and apparently in a rush. She jumped out of the cart with two syringes in her hand and approached the horse, which was tied in the stall. The horse was apparently excitable. Mr. Glennon saw her coming in the golf cart but by the time he got to the horse, she had already reached over the netting and attempted to give an injection. He said she failed three times to give the first injection even though he was holding the horse for the second and third efforts. He said that she held both syringes in one hand while trying to give the injections. He said that she switched to the other side of the horse’s neck and was then successful in getting the vein and giving the injection. He testified that she confirmed to him that the horse was to get Calcium Gluconate and a jug injection. He said “we had words” about her methods and approach during the course of the injections, and again when her injections left a large haematoma on the horse’s neck.

To corroborate his evidence as to what medication was to be given the horse, he produced the invoice Ex. 2. This invoice has three dates on it: one expressed as “August 31, 2005” and printed beneath the invoice number, one expressed as “08/10/05” typed beneath the name “Robin Reichel” and a further date “july 25” printed below the listing of the substances given. Dr. Crawford was not called to explain these invoice references.

Mr. Glennon’s defence was that he had exercised the appropriate level of protection of his horse. He himself drove the horse to Fort Erie and he stayed with the horse at all the relevant times. He protected the horse from tampering in this way and also by getting confirmation from Ms. Reichel as to the substances that she was giving. He said that no other reasonable precautions could have been taken.

We agree that with respect to Ms. Reichel’s attendance at the stall he took the reasonable precautions one would expect, including obtaining specific confirmation as to the medications being given. We note that he did not keep his own records of the time and date of the injections and there is no evidence with respect to the timing of the Lasix injection as compared to these injections. The defence is based on the assumption that it was one of these injections that contained the Flunixin in error and that the error was made by Ms. Reichel in her haste.

After the evidence had been completed and submissions had been commenced, counsel for Mr. Glennon obtained consent from counsel for the Administration for the filing of additional exhibits including a four page 2005 treatment record from the files of Starmer Coker Veterinary Services, the veterinarians who had treated the horse at Woodbine, marked as Exhibit 6, and also the race lines from the program page for July 25 at Fort Erie, marked as Exhibit 7.

The race lines indicated that the horse raced in 2005 on April 17, May 31, and July 8. The treatment records for this horse dating back to the beginning of 2005 indicate no Flunixin but a variety of other treatments. On the three days prior to April 17 the records in Exhibit 6 do not indicate any medication being given. Following the April 2005 race in which the horse finished first, the medication regime pre-race changes. The horse was given a medication the day before the May 31st race and a second medication on May 27th. Prior to the race on July 8, the horse received an analgesic and another medication on July 7 and a further medication, also an analgesic, on July 6. On July 23, two days before the race in question the horse received what is noted as “Inject back Traumeel per Vial” and one of the medications that had been given the previous race day, but not one of the others, and on July 24 the horse again received two further medications. Therefore, before the race of July 25, there were other injections than those received on July 25.

This treatment record is in contrast to Mr. Glennon’s statement to Investigator Coleiro that

“This filly is a sound individual and requires minimal maintenance. As indicated once again by the vet records.”

This record is also in contrast to the statement of Salim (Mickey) Mohammed, one of Mr. Glennon’s grooms found at Tab 9 of Exhibit 1 in which he said that the horse is on Omeprazole, Glenbutenal, Regumate and Quadrisel and that everything else is vitamins that they get from the tack shop. The records show treatments of Omeprazole, Regumate and Quadrisel but there appear to be other treatments than vitamins noted, and specifically in the two days prior to racing.

We have no evidence as to what steps Mr. Glennon took to protect his horse on the occasion of those injections of July 23rd and 24th.

Counsel for Mr. Glennon also filed a letter from Dr. Stephen Barker of Louisiana State University and an experienced equine chemist. His letter Exhibit 3 indicates that the injections of July 25 were a possible cause of the Flunixin positive test. He does not refer to the Lasix injection nor to the injections of July 23 and 24. His letter states:

“ a level of 13.1 ug flunixin/ml of urine is consistent with the possibility that a mistake could have been made in the intended administration of calcium gluconate, administering flunixin instead. While higher concentrations may be expected at 4 hours post dosing, we must also consider the additional time to collection, an unknown value to me as well as other factors that affect urine excretion of this acidic drug. Indeed, acidification of the urine from racing will delay and, thus, lower, excreted levels… Nonetheless it is my opinion that the possibility of inadvertent administration of flunixin in the place of calcium gluconate is wholly consistent the results [sic] and a possible explanation for the results obtained.”

Dr. Barker did not testify, but we take from his letter that with a four-hour pre-race administration of Flunixin he would expect a higher concentration of Flunixin in the horse’s urine post race. The retention periods under the Schedule of Drugs for Flunixin vary from 48 hours to 72 hours depending on the route of administration. Therefore the text in Dr. Barker’s letter in which he attempts to address the low quantity of Flunixin in the urine raises the possibility that there is another explanation for the low level and that the explanation is that it was given at an entirely different time than the injections given by Ms. Reichel. By the same token it does not appear that Dr. Barker was told the whole history of the medication of this horse and therefore his opinion in his letter is of even more limited utility to us as support for Mr. Glennon’s defence that the positive test arises from an error by Ms. Reichel.

None of the treating veterinarians were called to testify. No evidence was given as to how the vet technician got the syringes on July 25, where she drew the substances from that she injected, or even if she was the one who prepared the syringes.

Absent evidence as to the earlier injections and protection of the horse over the previous two days, we are not convinced on the balance of probabilities that the July 25 injections were of Flunixin. Equally possible is the administration, potentially also in error, in the other two injections on the two preceding days or at some other time entirely. We do not know what steps Mr. Glennon took to protect his horse with respect to those injections. We note that Dr. Coker who administered the medications on July 23 2005 was a part owner of this horse. His evidence would have provided useful information and potential corroboration for Mr. Glennon’s evidence. For whatever reason he was not called. Neither was Dr. Crawford who was responsible for supervising the vet technician. The invoice from Dr. Crawford is dated August 31 and the positive test result was known by this date. If the defence theory is correct, then another horse got the Calcium Gluconate injection and not Flunixin. If Dr. Crawford’s staff had made the error in medicating the horse, why would he continue to charge for the wrong substances?

We are supported as to the importance of this lack of evidence by a letter dated Dec. 10, 2005 from another trainer, entered as Exhibit 4. This trainer was alerted by her veterinarian that the same vet technician, Ms. Reichel, had administered the wrong pre-race medication to the trainer’s horse in September 2004. The medication administered was Banamine (Flunixin). The veterinarian in that case was however able to alert the trainer who scratched the horse prior to the race. While it is not entirely clear that this was the only reason for the scratch, the letter documents a better system of monitoring of the vet tech’s work than was provided here. Also, we believe that a vet technician who had made a serious mistake in medicating a horse would be highly motivated to avoid the same error given the potential outcomes of a further error of that sort.

Finally Mr. Glennon was unable to produce his own independent record of the medications given this horse including the time of administration, who administered the medication, etc. His defence is weakened by the lack of written records, especially as he is relying on his memory of events that occurred some 9 months ago. Such trainer records would have been useful in corroborating his evidence, if made contemporaneously as the medications were given, as well as serving to refresh his recollection of the events of dealing with this particular horse.

The trainer responsibility rule with respect to the positive test is a strict liability rule. The defence of strict liability offences is difficult but not impossible. Mr. Glennon took most of the appropriate steps on July 25 to protect his horse. The defence of due diligence requires, however, that evidence of all the relevant circumstances be brought forward so that we can be satisfied that all reasonable steps have been taken, whether by the trainer or the vet or the vet technician. In our view this was not done by Mr. Glennon, and was especially relevant with the long retention time for Flunixin and the records of the earlier medications. Therefore once the positive test is proven (in this case admitted) the onus is on the trainer to satisfy the Commission on the balance of probabilities that he has taken all reasonable steps to protect the horse and to prevent any mistakes as to medication. The defence requires more than his own testimony pointing the finger at one of the several people who were responsible for giving this horse medication in the three days prior to the race. He did not establish on the balance of probabilities the defence of due diligence and he clearly needs to modify his record keeping practices and address security issues more aggressively. He did not indicate that he intended to do so but would be well advised to do so now.

The onus of proving the defence has not been met.

For these reasons we dismiss the appeal.

We wish to note at this stage that the ORC investigator does not seem to have been rigorous in his investigation. He did not inquire of Dr. Crawford as to his records for injections of Flunixin or Calcium Gluconate and how much of each substance he expected to use on July 25 and did use, nor what other horses in his care required Flunixin injections on July 25. This evidence would have tended to support the theory that there was a reason for the vet technician to be carrying syringes of Flunixin that morning with her on her pre-race rounds that could have been mixed up with the other substances.

Our reasons for modifying the sentence are these. We agree that Mr. Glennon acted appropriately to protect his horse, if the Flunixin injection was given by Ms. Reichel in error, and that there was little else he could do. We also agree with Mr. Glennon that the coincidences of the two positive tests for the same horse for the same drug at the same time in the racing season (the end of July) indicate that there is something going on that neither he nor we can discern, if we accept his evidence as to his use of Flunixin. The veterinarian’s treatment records and his groom support his evidence as to his lack of use of Flunixin for horses in his barn.

For these reasons we believe that a 30-day suspension which would at this stage involve the loss of opportunity to race on many more days than an April suspension would include is too harsh. In our view the appropriate punishment is the denial of access to the potential winning of purses for the racing days as originally contemplated by the Stewards rather than the denial of 30 days of access to the backstretch. Therefore we are reducing the total period of suspension but maintaining the number of racing days in which Mr. Glennon cannot participate. In order to allow him to make the appropriate arrangements, his suspension will commence on May 8th and continue to and including May 19, 2005.

Since the evidence of Steward Grubb was clear that the fine was imposed for the failure to maintain proper records and the Administration indicated that it would not pursue the prosecution for that rule violation, we are eliminating the fine from the penalty.

DATED this 1st day of May 2006.

Lynda Tanaka

Chair