THE MOST RECENT USEF CHALLENGE: WHY IT'S A GOOD THING

Archibald Cox III and Meredith Mateo sue to have USEF GABA testing based on "scientifically repeatable, reliable, and accepted standards," and thats a GOOD THING. 

And so the story goes, a trainer and owner have a horse test positive and sue. I'm almost bored of it at this point, except I think this case may actually bring about good changes. 

As I've alluded to before, most expert testimony given in court is not admissible unless it is based on methods widely accepted in the scientific community. Of course, there is some leeway in certain situations depending on the facts of the case and what the expert testimony is being used for.

To even have an expert testify at all, they must be speaking about things beyond the knowledge of the average juror. In other words, an expert must be testifying about something that actually requires expert knowledge. Things that are of common knowledge will not require expert testimony. 

Once that is established, the methods and reasoning used to support an expert's testimony must be accepted in the scientific community. And the expert must be able to adequately support that reasoning and get to a conclusion, "within a reasonable degree of probability." For instance, a doctor would testify, "within a reasonable degree of medical probability " You are probably bored at this point, so I'll explain the relevance of all this. 

The USEF continuously faces lawsuits over violations, especially when it comes to GR 409 and GR 410. As a governing body, the USEF's findings can only be overturned if found to be arbitrary, capricious, or otherwise considered patently unreasonable and unsupported by sufficient evidence. However, the USEF can use whatever rules and regulations they want during the initial proceedings that explore whether these violations occurred. The problem is, once that proceeding is challenged in court, the USEF will be subject to the Rules of Court. Unlike the things you see on Law and Order, there is no "trial" or dramatic testimony. Basically, the court (meaning the Judge) will look at the evidence in the record below and decide if the USEF was arbitrary, capricious, or acted unreasonably without sufficient evidence. 

The problem with the USEF creating their own standards for expert review during the initial hearings is that there is no precedent to support their findings once they are challenged in the courts. If the USEF uses similar rules to the Rules of Court and the Rules of Evidence, then it will be much easier to support and uphold a USEF finding. 

Ironically, through the Cox and Mateo suit challenging the rule violation, they could make it easier in the future for the courts to uphold USEF violations.  Cox and Mateo are arguing for a more uniform and more easily enforceable standard. It's also a standard that is hard to argue against, as it already exists for experts testifying regarding any other industry or scientific field. As petitioner's brief points out, the standard they are arguing for has existed for over a hundred years in New York, and is widely accepted in a similar form in other states. This standard has the important purpose of preventing the trier of fact from being misled by speculative, unproven, and unacceptable evidence. 

For example, if you were on trial for murder, you wouldn't want the state to be permitted to use as their main witness a person that claimed to be an expert in the field of telepathic communication and reading the future, that testified that she saw into the future and watched you murder someone. Of course you wouldn't want that, because within the scientific community there is no support for such expert testimony! It is not widely accepted or even scientifically tested that future tellers are reliable forms of evidence. 

In a way, petitioners are making the same argument here. There is not enough scientific support for what is the appropriate level of GABA within a horse's system, it is not widely accepted in the scientific community that the levels found were not naturally occurring, and therefore, testimony in that regard must be discarded. The USEF may lose this one, but if they do and they change their standards to be scientifically supportable they will lose much less in the future. 

Of course, I think the real problem is the lack of scientific research being completed on this issue. Without funding and research on GABA levels and it's effects on performance horses there will never be a scientifically acceptable test that the USEF could rely upon to support their findings in Court. Just think if all the money that went into these lawsuits went into scientific research on the issue how much further along the industry could be. 

The other side of the story is, off course, that when we decide to compete in USEF competitions we agree to abide by the rules and regulations set forth for competition fairness and horse safety. We know what the rules are and we agree to compete by them before any of us are ever subject to drug testing and violation penalties. If we don't agree, we are free not to compete, or to compete at unrated events. Doesn't seem completely fair, but the argument that we don't know what we are agreeing to simply can't stand. Let's hope the USEF can come up with some supportable and scientifically reliable groundwork for their rules so they can actually start to mean something again.