Kentucky court rules against Waxman in Loyal Opposition case

A Franklin Circuit Court in Kentucky ruled on Tuesday to dismiss an appeal by owner Daniel Waxman regarding a positive test on his horse Loyal Opposition in 2005 at The Red Mile. Loyal Opposition received a positive test for flunixin after winning the $80,000 Allerage final Oct. 8, 2005. The now-retired Glowing Report finished second in that race and with the additional $20,000 she would receive as the winner her career earnings would move past $2 million.

Three other horses also tested positive for flunixin on that same day during the 2005 Grand Circuit meet at The Red Mile. Trainer Erv Miller was fined $250 for the positive on Loyal Opposition, veterinarian Dr. Rick Mather was fined a total of $1,500 for having administered the flunixin to Loyal Opposition and two of the other horses, and Waxman was ordered to return the $40,000 winner’s share of the purse which had already been paid. Loyal Opposition was later voted the 2005 Older Pacing Mare of the Year by the U.S. Harness Writers Association.

The initial urine and blood samples on Loyal Opposition were tested at Iowa State University, with the split-sample tested at Louisiana State University. The split-sample also tested for flunixin.

Harnessracing.com obtained Tuesday’s court document which stated Waxman appealed the ruling in January 2006, with an evidentiary hearing held in September that year. On Nov. 16, 2006, a hearing officer recommended upholding the ruling. The Kentucky Horse Racing Authority (KHRA, now known the Kentucky Horse Racing Commission) issued a final order in December, but Waxman filed an appeal in the Franklin Circuit Court on Jan. 10, 2007.

In making his ruling on Tuesday, Judge Philip J. Shepherd stated that evidence provided by both the KHRA and Waxman were in “sharp conflict” and that (Waxman’s) “expert testified that the laboratory relied on by the KHRA conducted the testing improperly. The testimony from KHRA witnesses and the laboratory personnel asserted that all correct procedures and protocols were followed.”

Waxman argued that the KHRA rule regarding the prohibition of the use of certain drugs and its testing procedure after a race was unconstitutional at the time in that it violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and violated three sections of the Kentucky Constitution, also on equal protection grounds. In his ruling, Judge Shepherd stated, “The evidence Mr. Waxman presents to this Court is not sufficiently compelling to find a lack of substantial evidence for the agency’s conclusion, and therefore the Court finds that the agency acted within its authority in issuing its findings of fact, which held Mr. Waxman in violation…”

In conclusion, Judge Shepherd stated, “While there is clearly conflicting evidence in the administrative record, there can be no question that there is substantial evidence that supports the decision of the KHRA. The decision of the KHRA was not arbitrary or capricious.” The ruling concluded by noting that it was a “final and appealable order.”

Waxman is currently an attorney for the Lexington, Ky.-based law firm of Wyatt, Tarrant & Combs. His ownership of Loyal Opposition began May 14, 2004, after it was transferred from his father, Robert. Loyal Opposition’s career earnings currently stand at more than $2.8 million.

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