Opinion
C.A. No. 05A-09-003 WLW.
Submitted: June 26, 2006.
Decided: September 27, 2006.
Upon the State's Motion for Reargument. Denied.
William W. Erhart, Esquire of William W. Erhart, P.A., Wilmington, Delaware and Howard A. Taylor, Esquire, pro hac vice, Law Office of Jerome Taylor, Philadelphia, Pennsylvania; attorneys for the Appellant.
Philip H. Bangle, Esquire of Delaware Department of Justice, Wilmington, Delaware; attorneys for the Appellee.
ORDER
The State filed a Motion for Reargument concerning the Court's May 31, 2006 Order granting Defendant Joseph Dugan's ("Mr. Dugan") appeal from the decision of the Delaware Harness Racing Commission (the "Commission" or the "State") and remanding the matter for further proceedings and findings. The Court remanded the matter to the Commission for further findings regarding Rule 8.9.15.2. The matter was remanded because the Commission never considered whether Rule 8.9.15.2 required the horse to be retested or the blood sample already taken to be retested, and there was no case law addressing the issue. The Court further ordered that a new trial should be conducted where Mr. Dugan has an opportunity to question Dr. Kothstein.
Rule 8.9.15.2 reads, in pertinent part, "A commission representative will notify the trainer or licensed designee and the horse in question shall be immediately retested. In the event that a second blood gas analyzer test is necessary, the Commission Veterinarian or his designee will take a rectal temperature of said horse. The horse's temperature will be recorded on the veterinarian's control sheet."
The Commission argues that the scope of remand should be limited to adding the testimony of Dr. Kothstein only, in lieu of an entire new trial The Commission claims that remand should be limited, because an entire new trial would be repetitious concerning witnesses other than Dr. Kothstein, Mr. Dugan presented no objection to the limited remand at oral argument and an entire new trial would prejudice the State. On the other hand, Mr. Dugan agrees with the Court that an entire new trial is necessary for the Defendant to have a fair opportunity to be heard. Mr. Dugan claims that the testimony of the other witnesses would be substantially altered by the anticipated testimony of Dr. Kothstein. Also, Mr. Dugan argues that his silence at oral argument concerning the issue of a limited remand was not a tacit agreement with the Commission's position, but merely an expression of his belief that the Commission would be unable to afford him a fair hearing on the merits.
The salient facts are as follows: On April 26, 2005, Mr. Dugan entered a horse, Royal Rip, in the eleventh race at the Harrington Raceway. Royal Rip was selected for pre-race blood testing. Two vials of blood were taken from the horse at 6:41 p.m. The first vial was tested on the Radiometer ABL 700 series by technician Richard Carroll ("Mr. Carroll") and found to have an elevated blood gas reading of 13.6. As a result, the horse's temperature was taken by Dr. Theresa Kothstein ("Dr. Kothstein) and the blood was retested from the first vial, which resulted in a blood gas reading of 13.7. Based on the results, Royal Rip was not permitted to compete in the race. The second vial was then sent to the University of Pennsylvania New Bolton Center ("New Bolton") for testing. The New Bolton test resulted in a blood gas reading of 14.6.
The permissible blood gas level is 12.4.
Consequently, on May 3, 2005, a hearing was conducted by the Board of Judges ("Judges") at Harrington Raceway. The Judges concluded that Mr. Dugan was in violation of Commission Rules 8.9.14 and 8.5.2. Thus, Mr. Dugan was suspended from racing for nine months and fined $3,000. Mr. Dugan appealed the Judges' decision and requested a stay of the suspension. The appeal was granted; however, the stay was denied.
Rule 8.9.14 states, "In addition to the provisions of Rule 8.3 and unless otherwise permitted by these Rules, no foreign substance shall be carried in the body of a horse when the horse is on the grounds of the licensed racetrack; it shall be a violation of this rule for a horse to test positive in a pre-race test result using a blood gas analyzer or other testing equipment."
Rule 8.5.2 provides, "A trainer shall prevent the administration of any drug or medication or other foreign substance that may cause a violation of these rules."
The appeal was heard by the Commission on May 18, 2005. At the start of the hearing, counsel and the Commission noted that Dr. Kothstein did not appear, even though she was subpoenaed. However, Mr. Dugan decided to proceed with the hearing because his stay had been denied, and he did not wish to wait for a new hearing while his suspension was running. After the trial, the Commission issued its decision and order imposing the same penalty that the Judges had previously ordered. Defendant Dugan appealed to this Court, and his appeal was granted and the matter was remanded for further proceedings and findings (discussed above).
The nine month suspension and $3,000 fine was the minimum penalty permissible under Commission Rule 8.3.2.2.
For the reasons set forth below, the State's Motion for Reargument is denied.
Standard of Review
The standard for a Rule 59(e) motion for reargument is well defined under Delaware law. A motion for reargument "will be denied unless the Court has overlooked a controlling precedent or legal principles, or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision." A motion for reargument is not intended to rehash arguments already decided by the court.Discussion
The State seeks to a have the scope of remand limited to adding the testimony of Dr. Kothstein only, in lieu of an entire new trial. The Court's portion of the May 31, 2006 Order remanding the matter for further findings concerning Rule 8.9.15.2 has not been challenged. Mr. Carroll testified before the Commission that the normal procedure for testing the blood is to draw two tubes of blood at the initial testing. The first tube is tested, and if it comes back with a high base excess reading, the temperature of the horse is taken by a veterinarian, the machine is calibrated to that equine temperature, and the first tube is retested. If the retest also comes back high, the second tube is sent to the New Bolton Center for confirmatory testing. Rule 8.9.15.2 states, on its face, the horse in question shall be immediately retested, which was not done in Mr. Dugan's case nor does it appear to be part of the "normal procedure." Therefore, the Court remanded the matter for further consideration of Rule 8.9.15.2, because the Commission never considered whether the Rule required the horse to be retested or the blood sample already taken to be retested, and there was no case law addressing the issue.Subsequent to the Court's May 31 Order, on appeal, this Court considered an identical issue concerning Rule 8.9.15.2 and deferred to the Commission's interpretation of Rule. The Commission articulated that the rule did not require Commission Veterinarians to return to the horse to obtain a second blood sample (after the primary test comes back with a high base excess reading). This Court deferred to the Commission's interpretation, because the interpretation was not clearly erroneous. The Court reasoned that the interpretation was not erroneous due to the Commission's concern that a trainer may tamper with the horse, after a failed first test, in an effort to counteract the horse's high CO2 reading prior to the administration of a second (re)test of the horse itself. Further, the Court recognized that it has been a long standing policy of the Commission to interpret the Rule in the manner articulated, and the State of Delaware's website now reflects the language of this Rule to read, "the primary blood sample of the horse in question shall be immediately retested." Consequently, the matter regarding Rule 8.9.15.2 in the case sub judice no longer needs to be remanded for further consideration by the Commission. The Court will defer to the Commission's interpretation of the Rule.
Dennis v. Delaware Harness Racing Commission, 2006 WL 2686528 (Del.Super.).
Id. at *3.
Id.
The Commission argues for a limited remand, but the State fails to point to any controlling precedent or legal principles that the Court has overlooked and fails to show that the Court misapprehended the law or facts such as would change the outcome of the underlying decision. The State argues that an entire new trial would be repetitious for witnesses other than Dr. Kothstein, Mr. Dugan did not object to a limited remand in oral argument, and an entire new trial would be prejudicial to the State. Mr. Dugan claims that the other witnesses' testimony would be altered due to the anticipated testimony of Dr. Kothstein, and the Defendant's silence on the limited remand issue at oral argument was not a tacit agreement of the State's position.
Mr. Dugan argues that his silence at oral argument on the limited remand issue was due to the fact that the Commission ignored their own regulations and procedural safeguards, and he believes he could never have a fair hearing on the merits before the Commission. The Defendant's argument fails. The Court in Dennis articulated the Commission's interpretation of Rule 8.9.15.2, and the Court now gives deference to that interpretation. On remand, this Court has no reason to believe that the Commission will fail to afford Mr. Dugan a fair hearing on the merits.
Mr. Dugan claims to have been severely prejudiced at the original hearing by the inability to ask questions of a key witness, Dr. Kothstein, who was an agent of the Commission and ignored a duly served subpoena. In contrast to the State's position, the Defendant argues that the anticipated testimony of Dr. Kothstein would alter other witnesses' testimony and would, therefore, not be repetitious. The State correctly articulates, in its Motion for Reargument, that the Commission previously recommended at oral argument that the most appropriate remedy for Mr. Dugan would be to have a remand that was limited to adding in the testimony of Dr. Kothstein (and not an entire new trial). A Motion for Reargument is not intended to rehash arguments already decided by the Court. The Court took note of the State's position at oral argument, and decided by Court Order that a new trial should be conducted allowing Mr. Dugan the opportunity to question Dr. Kothstein. The Court found it troubling that the Commission Veterinarian failed to appear at trial even though subpoenaed. An entire new trial is appropriate to allow Mr. Dugan the opportunity to be fully and fairly heard.
The State will not be prejudiced by an entire new trial. This Court has the ability to grant a new trial under Rule 59(a), and in the case sub judice, Dr. Kothstein's failure to appear at trial was prejudicial to Mr. Dugan. The State further contends that Mr. Dugan was silent at oral argument when limited remand was in issue. The Court agrees with Mr. Dugan that silence on the issue was not a tacit agreement with the State's position.
Superior Court Civil Rule of Procedure 59(a) in relevant part states: A new trial may be granted as to all or any of the parties and no all or part of the issues in an action in which there has been a trial for any of the reasons for which new trials have heretofore been granted in the Superior Court.
Based on the foregoing, the State's Motion for Reargument is denied.
IT IS SO ORDERED.