Michigan Supreme Court Lansing, Michigan

Robert P. Young, Jr.,
Chief Justice

Michael F. Cavanag h Marilyn Kell y Stephen J. Markma n Diane M. Hathawa y Mary Beth Kell y Brian K. Zahra,

J ustices 

# Order

May 20, 2011

142102

TOM NOBLE, Plaintiff-Appellant,

v SC: 142102 COA: 292080 Ingham CC: 08-000703-AA OFFICE OF THE RA CING COMMISSIONER, Defendant-Appellee.

________________ _______________ __________/

On order of the Court, the application for leave to appeal the October 7, 2010 judgment of the Court of Appeals is consid ered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

M ARILYN K ELLY , J. ( dissenting ).

I would grant leave to appeal.

Plaintiff, a horse trainer, was required to follow certain rules when entering his

horse in races in this state. He claims that he followed the ru les but was penalized

anyway.

MCL 431.316(6) requires that a horse not be entered in a r ace if it has a drug in its body. An exception exis ts if, in conformity with MCL 4 31.330(1), defendant, the Office of Racing Commissioner, specifically allows the drug by rule or written order. If a

trainer does enter a horse in violation of these ru les, he or she is subject to strict liability and disciplinary action.

Defendant racing commissione r admits that it has adop ted an unwritten rule that allows the drug flunixin to be administered within 48 hours of a race and that 1.0 μ g/ml may remain in the horse’s system at the time of racing. Plaintiff states that all trainers know and rely on this informal rule and that he relied on it in this case.I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk May 20, 2011

p0517 2

Given that MCL 431.316(6) creates a ze ro-tolerance rule, it is difficult to

understand how it and defendant’s informal ru le can coexist harmonio usly. On the other hand, it is not clear that the us e of flunixin in this case woul d have violated the statute, given that a veterinarian administered it for treatment of an injury.

Adding further confusion is the fact th at by rule, defendant allows the use of phenylbutazone (sometimes called “Bute”), an older nonsteroidal an ti-inflammatory drug (or “horse aspirin”). Flunixin is recognized as a safer versi on of horse aspirin but has not been officially recogni zed in the rule, whic h was adopted before flunixin began to be widely used.

There is also reason to question the testi ng methods used in th is case. The test administered to plaintiff’s horse was a test me rely to detect the presence of flunixin. Moreover, the equipment used had not been calib rated. Therefore, the test may not have reliably disclosed the amount of flunixin in the horse’s blood. The Michigan Department of Agriculture technician who perform ed the analysis ad mitted as much.

Consequently, defendant’s assertion that the horse had four times the allowable limit of the drug in his blood is not reliable. Plaintiff sent the urine sample that defendant obtained to the University of Louisiana for testing. The univers ity laboratory results revealed only 0.85 μ g/ml of flunixin in the urine sample, a level that defendant permits.

Lastly, there was evidence that the standard defend ant used to establish its informal rule regarding flunixin was not base d on sound testing. Plaintiff’s expert

testified that studies show that flunixin ma y remain in a horse’s blood for up to two weeks after being administered. Also, the le vel can spike after several days because of changes in the horse’s pH values.

On the basis of plaintiff’s arguments, I think that the circuit court’s decision may have been correct and that the Court of Ap peals erred. I believe that plaintiff’s substantive due process rights ma y have been violated. Theref ore, I would grant leave to appeal.