IN THE MATTER OF THE RACING COMMISSION ACT 2000, S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL OF
THOROUGHBRED LICENSEE PETER BERRINGER
Thoroughbred licensee Peter Berringer appealed Stewards' Ruling TB 4157/2006 dated May 6, 2006, wherein he was suspended for 15 days and fined $1,000 pursuant to Rules 15.06.01 (a) and (b) of the Rules of Thoroughbred Racing with respect to a positive test result for Flunixin (Banamine) in urine taken from the horse IMPRESSARIA following the second race on November 19, 2005 at Woodbine Racetrack.
The ORC Panel hearing the matter consisted of Chair Lynda Tanaka and Commissioners Jane Garthson and George Kelly. The Panel convened on August 28 and 29, 2006. Aaron Dantowitz and Bob Hutchins appeared for the Administration and Frank L. Roth appeared for Mr. Berringer.
On hearing the evidence of Victoria Lagerborg, Vernilia Robillo, Graeme Conlon, Rick Grant, Minique Morris, James Coburn, Dr. John Starmer, Khadel Morris, Ken Depodesta, Conrad Cohen and Peter Berringer, on reviewing the Exhibits filed, and on hearing the submissions of counsel for the Administration and for Mr. Berringer, the Panel allowed Mr. Berringer's appeal. The panel did not interfere with the order of finish determined by the Stewards or with the distribution of the purse.
The Commission's reasons for decision are attached to this ruling.
DATED this 6th day of October 2006.
BY ORDER OF THE COMMISSION original signed by Terry Stone
Terry Stone
Acting Executive Director
REASONS FOR DECISION
Thoroughbred licensee Peter Berringer appealed Stewards’ Ruling TB 4157/2006 with respect to a positive test result for Flunixin (Banamine) taken from the horse Impressaria following the second race on November 19, 2005 at Woodbine. The Stewards suspended Mr. Berringer for 15 days and fined him $1,000 for violating Rules 15.06.1 (a) and (b) of the Rules of Thoroughbred Racing. Flunixin is a Class IV drug.
Mr. Berringer’s counsel indicated that all aspects of the case against his client were contested. Mr. Berringer’s counsel called as witnesses one of Mr. Berringer’s grooms, the owner of the horse, Mr. Conrad Cohen of the Horsemen’s Benevolent and Protective Association, the veterinarian responsible for treatment of the horse and the veterinary technician who treated the horse, and Mr. Berringer.
There appear to be two substantive issues for decision,
whether the Administration has properly proven the certificate of positive analysis of urine is for the urine of the horse Impressaria and for the drug Flunixin, and
whether or not Mr. Berringer took all reasonable steps to protect the horse as required by Rules of Thoroughbred Racing 15.06.01(a) and (b).
The Administration called five witnesses: the test inspector, two Official Chemists who signed the certificate of positive analysis, an ORC investigator and one of Mr. Berringer’s grooms.
The test inspector Louisa Victoria Lagerborg testified with the assistance of a translator. She said she needed a translator because she could understand English but not some legal words. Her vehement and instant denial to counsel’s question in English as to whether or not she had done anything wrong in taking the sample satisfies us that she was able to follow the language and intent of the questions put to her in examination in chief and cross examination in English, but that the translator assisted her, by the translation into her first language, in overcoming lack of comprehension that would be attributable to the “legal words”, unfamiliar surroundings and procedures, and any nervousness. We are satisfied that
this witness attempted to recall as many of the events in questions as she could, given the lapse of time since the events and to be as truthful in her answers, and
she has a working knowledge of English such as to enable her to discharge her obligations as a test inspector.
She had no specific recollection of the horse in question and was defensive against any suggestion that she had made an error in the procedures she was trained to follow. The taking of the urine was apparently uneventful and followed the usual procedure, from a horse who was not a “bad actor” or difficult to deal with. She testified as to unsealing the plastic bag containing the empty urine container, removing the container, showing the empty cup to the groom, taking the urine, sealing the sample with the strip initialled by herself and the groom, witnessing the signing of the urine tag form by the groom, and storing the container in the cooler of sealed samples. Photographs of the container and seal with the initials visible were filed as page 10 of Exhibit 2, the CanTest Litigation package.
One of Mr. Berringer’s grooms, Minique Morris, signed the urine tag (Exhibit 1, Tab 2) and initialled the seal. The sample number was “1054424 EIPH”. She testified that she also had no specific recollection of the process of taking the urine from this horse but identified her signature on the urine tag and her initials on the seal in the photograph at page 10 of Exhibit 2. She confirmed the evidence of the test inspector that this is not a horse who causes a lot of problems when the sample is taken.
Two expert chemists testified with respect to the positive test results. Both were properly qualified to provide opinion evidence with respect to the urine testing and the outcomes presented in the certificate they both executed, filed as page 1 of Exhibit 2.
Virnilia Robillo, an Official Chemist with CanTest Laboratories, testified as to the receipt of the sample 1054424 EIPH along with the other samples taken from horses at Woodbine race track on the same day, the assignment of a CanTest number to each container for the purpose of tracking the samples, and the pouring off of an aliquot of sample for the initial screening test. Sample 1054424 EIPH was assigned CanTest number U45965. She conducted the initial screening test and the aliquot from this sample tested positive for Flunixin.
Official Chemist Graeme Conlon testified that when he was informed of the positive test of sample bearing CanTest number U45965 (the CanTest number), he went to the stored samples, removed the urine container with the matching number and secured the remainder of the urine in special storage for samples that have tested positive. He removed a further portion of the sample from the container, resealed the container and retested the sample portion, confirming the positive test for Flunixin using High Performance Liquid Chromatograhy with Mass Spectrometry (HPLC/MS) and Liquid Gas Chromotography/Mass Spectrometry/Mass Spectrometry (LC/MS/MS).
He and Ms. Robillo signed the certificate of positive analysis at the conclusion of the testing. Mr. Conlon testified as to the quantities of urine used in the initial and confirmatory tests and there was enough urine left in the container to run all the tests again. Ms Robillo testified that the residue sample in the container was released for retest at another laboratory.
Based on the evidence of the Administration witnesses we make the following findings of fact:
Peter Berringer was the trainer of record of the horse Impressaria which finished second in the second race on November 19, 2005 at Woodbine Racetrack
The urine sample 1054424 EIPH was taken from the horse Impressaria. It was tested in properly controlled conditions and circumstances as CanTest sample U45965 in accordance with the Rules of Racing and the regulations of the CPMA and tested positive for the Class IV drug Flunixin, which is sold under the trade name of Banamine.
The residue sample was released for testing by another lab at the request of Mr. Berringer. No other test result than the CanTest Laboratory result was provided to us.
We therefore conclude that the certificate of positive analysis has been proven and that urine from Impressaria tested positive for the drug Flunixin..
Investigator Grant testified that when the Stewards were advised of the positive test, he was contacted and assigned to undertake a barn search. In that search he located and seized a tube of Banamine from Mr. Berringer’s medication stock, which was kept in a locked compartment in Mr. Berringer’s tack room at the track. The tube of Banamine was entered as Exhibit 5. The tube has a notation on the label “Expiry MR 96” indicating an expiry date of 1996. Mr. Grant also testified that he was provided with medication records kept by Mr. Berringer setting out the medication of the horse Impressaria and that Mr. Berringer was co-operative and forthcoming in responding to questions from the investigator. The medication records were in good form and did not indicate any use of Banamine. At the time of seizure of the tube, the date of expiry of the Banamine was almost 10 years prior to the race in question.
No testing was done of any of the residue in the tube to determine if the active ingredient Flunixin could be identified or whether or not the ingredient was sufficiently intact after almost 10 years so as to have any potential effect.
On proof of the certificate of positive analysis, the onus falls on Mr. Berringer as trainer of record to establish that he has discharged his proper obligations under the Rules of Racing. Rule 15.06.01 provides as follows:
The trainer, groom and any other person who, in the opinion of the Stewards or the Commission, has charge, custody or care of a horse:
a) is obliged to properly protect the horse, guard it against the administration of a prohibited drug, protect the horse, and guard it against wrongful interference, or a substitution by anyone in taking of a urine or blood sample.
b) if such person should fail to so protect and guard the horse, he/she or they will be regarded as bearing responsibility along with the person who actually administered such drug, or wrongfully interfered with or substituted in the taking of a urine or blood sample. Where the Stewards find a failure to properly protect a horse, subject to Rule 15.04.02 they shall impose such penalty and take such action as they deem proper or shall refer the matter to the Commission. The appellant or his representative has the right to record any hearing at their expense.
Rule 15.06.01 is a strict liability rule and therefore the trainer must establish that he properly protected and guarded the horse. The trainer must establish that he exercised all reasonable due diligence in protecting his horse from racing with a prohibited substance. Another panel of the Commission, in Re Welsh [1996] O.R.C.D. No. 58, Series no. SB 66/96, held that the trainer responsibility rule under the comparable Rules of Standardbred Racing means that if a trainer shows he has acted with due diligence or reasonable care the trainer is entitled to a ruling that he has not violated the Rules. In that decision the Commission reviewed what constitutes due diligence and acting with reasonable care. In the decision, the Commission confirmed the test that a trainer had to establish on the balance of probabilities that there were no reasonable feasible alternatives that might have avoided or minimized the injury to others.
Mr. Berringer testified that he did not use Banamine in his training and care of horses and that he had not for 10 years. He explained the expired tube of Banamine in his tack found by Investigator Grant on his search as one that was a remnant of his past training practices. He testified that normally, he disposes of expired medications. He said that he is the only person in his barn who is permitted to give medication to a horse, other than a veterinarian or the vet technician. Mr. Berringer’s medications are locked in a cabinet in the tack room to which only he has the key.
In other cases under this Rule or the comparable rule in Standardbred racing, panels of this Commission have been able to identify through the evidence likely sources of the medication in the particular case or alternative steps that could reasonably have been taken to protect the horse, or the lack of evidence to support the trainer’s position that he or she had taken all reasonable steps to protect the horse.
In the Welsh case, the Commission held that the drug found in the urine had in fact been given by the trainer in question. In the Re Glennon case (Ruling Number COM TB 005/2006, May 1, 2006) the trainer was found to be in violation of the trainer responsibility Rule when there was evidence that the veterinary technician may have mixed up the syringes containing medication and that was how the horse came to have a prohibited substance in its system when it raced. In that case no evidence was led from the technician or the veterinarian who employed her as to control of the syringes.
In this case, other than the tube Exhibit 5, there is no evidence to support a finding neither that Mr. Berringer nor his veterinarian nor the veterinary technician gave his horse Banamine,. Both the veterinary technician and the veterinarian testified as to the controls on the use of medications. Specifically they testified that they did not preload syringes with medications for any or multiple horses. They confirmed that in their experience Banamine or Flunixin was not a drug that Mr. Berringer had ever used. The veterinarian Dr. Starmer testified that the syringe of Banamine found in Mr. Berringers’s tack in the course of the barn search was so old that the medication, if any were inside the tube, would not have been of any effect since the expiry date was 1996. He testified that Mr. Berringer used other less expensive medications for the same sort of ailments that Banamine would be used for. To the best of their knowledge, they had not given any Banamine to Mr. Berringer’s horses and Mr. Berringer followed proper procedures to control the use of medication on his horses.
The grooms employed by Mr. Berringer testified as to his high level of diligence in the protection of his horses from their perspective of working for him, as well as observing or helping other trainers and their practices.
Mr. Berringer was described by his grooms, his owner, and his veterinarian and veterinary technician as a careful trainer who, in the words of one of the grooms, is “uptight” about security for his horses. He is one of the few trainers who walks his horses at race time to the paddock area and walking ring. He controls who uses medications and keeps records of that use, and he keeps the medications under lock and key. He also controls the key. While we recognize that all four of these witnesses depend in part for their income or business on Mr. Berringer, their evidence was not undermined in any way on cross-examination. Dr. Starmer is bound by his own professional conduct obligations, as well as those as a licensee of this Commission. All four witnesses appeared forthright and honest in their testimony.
Their evidence therefore corroborates Mr. Berringer’s evidence as to control of medication and substances in the area of his stalls, his lack of use of Banamine, his high level of diligence in anticipating where he might lose control of medications or lose track of what has been given to a particular horse and taking appropriate steps to prevent or minimize harm. The fact that his medication records were in order and are consistent with the sworn testimony of his veterinarian is also of assistance to us in understanding his business methods and his awareness of potential problems. All this supports our finding that the use of medication in Mr. Berringer’s barn was controlled at a high level of diligence. We are also satisfied that there is no evidence, beyond the circumstance that the expired tube of Banamine was found among Mr. Berringer’s medications, that the medication in that tube or in any other tube under his control was the source of the positive test.
Mr. Conrad Cohen is the President of the Horsemen’s Benevolent and Protective Association. He testified that the Association had been attempting to get security cameras onto the backstretch at Woodbine to enhance the protection of the horses that live on the backstretch. At night none of the trainers or their staff are permitted on the backstretch; rather, Woodbine provides security staff who patrol the backstretch area to ensure the horses are not tampered with. No one from Woodbine security testified. Such cameras, if installed and monitored, might record when someone approached the stall or the horse and therefore when someone might have given the horse the medication.
Mr. Cohen confirmed that there are trainers who have installed their own security cameras on the Woodbine backstretch. He said that the discussions with Woodbine Entertainment Group with respect to the installation of security cameras throughout the backstretch were not progressing. It seems clear that the cameras would be a significant capital cost.
Mr. Berringer testified that he had investigated the installation of cameras for his own stalls. The cost was $13,000 and he was reluctant to undertake the work since his is a small stable. Woodbine would not give him any assurance that he would be in the same stalls year after year so as to justify the expense that would be incurred. The cost would represent a significant portion of his income and he did not believe that the owners who hired him would pay that cost on top of any other training costs. This latter position was confirmed by one of his owners, Mr. De Podesta.
In Re Steve Attard (Ruling COM TB 008/2004, September 7, 2004) a panel of the Commission chaired by then Vice Chair Larry Todd dealt with the argument in that case that it was reasonable and current practice in the industry to require a trainer to have installed security cameras to protect the horses in his care from tampering, that might result in a positive test. Mr. Attard was also a careful and conscientious trainer. One of Mr. Attard’s horses had a positive test. The allegation was that for the trainer to discharge the obligations to show due diligence and reasonable actions he had to provide round the clock private security for his stable. The panel heard evidence from the Woodbine Vice President of Security detailing the degree of patrolling and control over the backstretch premises where the horse was stabled and the computerized security rounds records were entered as an exhibit. The evidence was that a few trainers have hired their own night watchmen or security staff and few than 10 trainers out of several hundreds had installed camera surveillance. In that case, the Commission refused to find a violation of the Rules of Racing despite a positive test for the drug Methocarbamol (Robaxin), holding:
“We find as a fact that as of September 2003, a trainer of a medium sized public stable at Woodbine Racetrack was not obliged to hire at his own expense 24 hour a day watchmen for their stable.”
In this case, the Administration has not provided us with any evidence on which we could conclude that Mr. Berringer is not taking reasonable steps or showing the appropriate level of due diligence to minimize harm to meet the current standards of best practice for trainers in thoroughbred racing.
Based on the evidence we heard, we are of the view that Mr. Berringer has satisfied us that he has discharged his obligations to protect his horse. We are not satisfied that in November 2005 it was standard practice for thoroughbred horse trainers to have installed security cameras. There was no suggestion that hiring private security was either appropriate or a reasonable standard for this size of training operation. We are satisfied on the evidence in this case that there were no reasonable feasible alternatives that Mr. Berringer could have used that might have avoided or minimized the injury to others.
The Commission therefore grants the appeal by Mr. Berringer.
The unfortunate fact remains that we have an unsolved case of tampering with a horse. This horse finished second in the race. In earlier races it had finished out of the money or well back, recovering only small amounts of purse money. Someone had some motivation to give the horse Banamine without the knowledge of the trainer and acted on that motivation. Security cameras may well be the only effective answer for such cases. Someone clearly wanted that horse to win or at least place better than it had been. Our sole jurisdiction in this hearing is to determine the appeal by Mr. Berringer.
Hearings such as this one do address in part the damage done to the integrity of the sport by a positive test, but ultimately the analysis we go through is too late. The industry cannot avoid the damaged reputation that comes from a positive test, especially where the trainer is able to satisfy us that he has done what he reasonably could do and there are no reasonable feasible alternatives for him. None of this removes the taint from the race and the fact that the betting public and other horsemen were cheated when this horse finished as well as it did that race. The issue cannot be dealt with entirely or satisfactorily in this forum.
While Mr. Berringer’s appeal is granted, we do not interfere with the order of finish determined by the Stewards or distribution of the purse, as it is clear that this horse did race with Flunixin in its system, contrary to our Rules.
DATED this 6th day of October 2006.
Lynda Tanaka
Chair