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Saturday, October 29, 2011

What Your Veterinarian Knows Can Hurt You

In today's law and order blog, we discuss the case of Carmine Fusco versus the NYSRWB.  Now, being not a lawyer, I recommend you read the case, but for those who want the condensed version, here it is:

Back in 2006, one of Fusco's horses was found to have been treated with Clebuterol which earned Fusco a fine of $2,500 and an eighteen month suspension in October of 2007.  Fusco appealed the penalty and as a result, the NYSRWB decided to add some additional charges regarding the treating of horses with medications after the withdrawal time, despite the fact the named medications did not reach the threshold required for a positive finding in drug tests.  What was the cause for adding these charges?  The state investigator got hold of Fusco's veterinarian's records which showed these medications were administered after the withdrawal time.  While the hearing officer allowed the charges to be modified, and heard additional evidence, he disallowed the admittance of the vet's records.  As such, the hearing officer allowed only the penalty for the original violation.  

Well, the NYSRWB appealed the decision of the hearing officer and the case was sent back to a hearing officer, being told in the case of administrative hearings, hearsay evidence (the vet's records) may be considered and the charges could be modified.  The long and short of it is the hearing officer then recommended the license be revoked for five years instead of the original eighteen months;  accepting the argument that 'titrating' was used; administering the legal medication after the withdrawal time in a smaller dose hoping to avoid a positive yet get the desired benefit.  The NYSRWB then adopted the hearing officer's recommendation of the modified suspension.

Fusco then appealed the case to the Appellate division of the NY Supreme Court claiming the he could not be penalized for the other five drug charges since the drug tests came back 'negative' (not reaching the prescribed level in the test).  Fusco also claimed the NYSRWB violated their own rules by accepting additional testimony on an appeal.   

Well the appellate court had previously found in the case of administrative hearings, additional evidence may be accepted before a final decision has been rendered.  The court also claimed that hearsay evidence may be heard in an administrative hearing and considered substantive depending on the quality of the evidence.  Hence the court allowed the NYSRWB decision of a five year ban to stand.  This decision was issued on October 27, 2011; five years after the fact.

The good guys won this time.  It may have taken five years for the decision to be rendered but in the long run, it may speed things along in the future; at least in New York.   Some trainers may plead guilty instead of having their vet's records looked at as you never know what the records may say.


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