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Asmussen Suspension Appeal Moves Toward Conclusion

Franklin Circuit Court to review case after order on narrow set of issues.

Trainer Steve Asmussen

Trainer Steve Asmussen

Chad B. Harmon

Following a judge's Nov. 15 order setting oral arguments on a narrow set of issues, trainer Steve Asmussen's appeal of a suspension for two drug metabolite positives appears to be heading closer to a ruling—some five years after the alleged medication infractions.

Central to the dispute are two post-race test positives for a metabolite of acepromazine, a Class B sedative, called HEPS. According to a brief filed by attorney Jennifer Wolsing for the Kentucky Horse Racing Commission, the horse Thousand Percent tested positive for HEPS at a level more than seven times the legal limit, and Boldor tested at approximately twice the legal limit. Both horses were trained by Asmussen when the findings occurred in 2018.

Acepromazine, according to the KHRC's brief, has a “high potential to influence performance in the equine athlete.”

Asmussen is facing a 90-day suspension from training, with 30 days probated, imposed by Kentucky officials. Because acepromazine itself was not detected in post-race testing, his attorney, Clark Brewster, contends Asmussen should not be disciplined.

The KHRC said that the effects of acepromazine, a Class B sedative, are not fully understood but stands by a recent Kentucky Court of Appeals opinion that found it is rational to limit the amount of a medication in racehorses where the science is not clear. Dr. Scott Stanley, of the Gluck Equine Research Center, testified in the underlying case that a horse can still experience sedative effects after acepromazine metabolizes into HEPS and the original acepromazine is undetectable.

Dr. Heather Knych concurred with Stanley's assessment in a research paper cited by the KHRC's brief called "Pharmacokinetics, pharmacodynamics, and metabolism of acepromazine following intravenous, oral, and sublingual administration to exercised Thoroughbred horses." The KHRC also argues that the presence of an overage of the metabolite itself is violative of racing regulations in and of itself.

Asmussen's challenge of the suspension alleges there is insufficient evidence; and that state regulations are arbitrary in violation of Kentucky statutory law, and void for vagueness under the Kentucky Constitution.

There is controversy surrounding the removal of a KHRC hearing officer in the midst of Asmussen's administrative appeal from the original decision made by Kentucky stewards. Judge Phillip Shepherd of Franklin Circuit Court is presiding over Asmussen's appeal from the ruling of a successor hearing officer, and in his Nov. 15 order Shepherd directed counsel to  “disclose the identity of the official who made the decision to replace Hearing Officer Howard, and the legal basis for that decision.” Brewster contends the original hearing officer, Jim Howard, was leaning in favor of Asmussen's case when he was removed by the Public Protection Cabinet. The KHRC operates under the PPC's umbrella in Kentucky state government.

Wolsing disclosed in her brief that Howard's removal was decided by the PPC’s designated appointing authority, Brian Raley; and that the determination was made pursuant to a Kentucky regulation providing for the separation of non-merit employees without cause.  

According to Wolsing's brief, Raley consulted PPC cabinet secretary Ray Perry and chief of staff D. J. Wasson concerning the decision. Perry, Wasson, and Raley agreed that Howard should be separated; but the separation was "not due to the substance of Mr. Howard’s rulings in any of his cases, or any anticipated rulings. Instead, his separation was, quoting from a notarized letter to the court, 'completely and wholly unrelated to any decisions, made or potentially to be made, or statements related to the Asmussen matter.'"

Wolsing offered to submit the reasons for Howard's separation to Shepherd "in camera" to protect Howard's privacy, meaning the judge's review would not be made public unless he deems it necessary.

Oral arguments are scheduled to be heard by Shepherd in early December.