Sanctions against trainer Jonathan Wong for a metformin positive found last June in Tommy Town Thoroughbreds' filly Heaven and Earth have been upheld by a Federal Trade Commission administrative law judge.
An April 22 ruling from D. Michael Chappell, FTC chief administrative law judge, affirmed the two-year suspension, $25,000 fine, loss of purse, and $8,000 payment toward adjudication costs levied on Wong because of the positive test.
While the FTC's administrative review of this case still is subject to a three-judge panel review before it is considered resolved, Wong is not likely to wait for this outcome and instead ask a federal court to consider the merits of his sanctions from a due process point of view. Wong has argued throughout the case that the positive was caused by contamination from a groom, who was taking metformin. The drug is prescribed to control high blood sugar in people with type 2 diabetes. Metformin also is listed among the banned substances recognized by the Horseracing Integrity and Safety Authority.
In addition to the contamination claim, Wong appealed the case to the FTC arguing the positive test results returned from both the A and B blood and urine samples taken from Heaven and Earth are not admissible as evidence because of departures that occurred from HISA's testing protocols and standards.
Chappell noted in his ruling that HISA, through its Horseracing Integrity and Welfare Unit—the monitoring and enforcement arm for HISA's Anti-Doping and Medication Control Program—could not provide evidence that the urine samples were stored in a secure refrigerator or freezer, that blood samples were stored in a secure refrigerator, or a record of the location and time in and time out of stored samples that were shipped to Industrial Laboratories in Denver. HISA countered that there was no indication any HIWU personnel improperly stored the samples.
Wong asked that the B sample be sent to the University of Illinois at Chicago Analytical Forensic Testing Laboratory to be tested following the initial positive finding. While the Chicago lab confirmed the presence of metformin, Wong's appeal argues that the way the sample was handled and tested did not follow HISA protocol. In addition, HISA rules require that two certifying scientists conduct an "independent review of all adverse analytical findings and atypical findings before a test result is reported. At the Chicago lab, Chappell's ruling notes one of the reviewing scientists was UIC director Brendan Heffron, who performed portions of the analysis.
Wong's appeal disputes Heffron's position as an "independent reviewer." Further, the appeal argued that UIC's review of the results by Marc Benoit did not satisfy HISA rules because his review occurred Aug. 23, 2023, after results had already been reported to HIWU Aug. 9.
Chappell dismissed all these challenges to the protocol.
"Appellant has failed to meet his burden of establishing that the demonstrated departures from applicable testing standards or protocols could reasonably have caused the AAF. Therefore, pursuant to ADMC Rule 3122(c)-(d), the test results are presumed valid and the departures are not a defense to the possession violation," he wrote and affirmed the sanctions against Wong.
Wong will not wait for the final review by the FTC before pursuing a remedy in federal court because the FTC panel is not required to conduct the review and if it does, will merely continue looking at the case within context of HISA rules and not the more overarching issue of due process, according to owner Brent Malmstrom, who is supporting Wong's legal challenge. Malmstrom has already spent more than $500,000 in legal costs.
"The administrative law judge agreed with some of our arguments that HISA did not follow the rules and rejected some others," said Malmstrom. "I can continue to argue the same set of facts within the FTC or go to a venue where you are no longer arguing administrative law but instead getting into the constitutional conversation about whether appropriate due process has been applied to Mr. Wong."
Malmstrom noted he actually supports HISA and its mission.
"I support what we are trying to do, I don't support taking away someone's entire economic livelihood by no fault of their own," he said. "I am absolutely in favor of commonsense rules, a commonsense platform where you hold people accountable when they put their own selfish interests above that of the sport and the horse. But it absolutely needs to be fair and just."
Wong is now residing in Louisiana so that is where the federal challenge is likely to be pursued.
