• Sun. May 22nd, 2022

Fishman and Feds Spar on admissibility of evidence


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Seth Fishman and federal prosecutors disagree on the types of evidence and expert testimony that will be admissible in court when the vet who allegedly made and sold performance-enhancing drugs (PEDs) is tried in early 2022.

In the form of dueling motions filed by each side on December 1 in the United States District Court (Southern District of New York), the two sides argued over whether a jury should hear a wide range of evidence involving what the government claims to be Fishman. “Specifically target[ing] customers in the racehorse industry “by” selling dozens of new drugs believed to have performance-enhancing effects on racehorses [in a manner] resolutely focused on ensuring that [he and his] customers wouldn’t get caught doing it.

Part of what the prosecution wants admissible goes back at least a decade and involves Fishman being investigated in 2012 in Delaware when a Standardbred died after receiving the injection from one of the his prescribed products, as well as a separate PED-related confession that Fishman made in a different investigation that resulted in the prosecution of notorious Standardbred breeder David Brooks, who was convicted in 2013 in a fraud and obstruction case. to justice of 200 million dollars.

The two sides also took offense at the mutual choice of veterinary “experts” who were submitted on witness lists to attest to the safety, efficacy and clinical pharmacology of drugs that Fishman allegedly mislabeled, falsified. and conspired to distribute them to other racetrack-based defendants in America and abroad.

Some of the motions filed by both sides on Wednesday asking the court to exclude evidence relate to aspects of the case that have already been raised in previous court documents.

But a bizarre new offshoot that Fishman’s legal team doesn’t want presented to a jury concerns a bugged phone conversation in which a client of camel racing in the United Arab Emirates (UAE) allegedly asked him if he could also produce. a “Ladies’ Viagra” that could be secretly added to a woman’s drink.

The government says that in February 2018, an individual identified only as “Bengawi” who allegedly worked for the scientific centers and the presidential camel department of the United Arab Emirates “asked Seth Fishman to distribute DEPs, and to create and distribute [an aphrodisiac that] “Can be added to juice, for example. “

Prosecutors wrote in a Nov. 17 court file that: “During these communications, the contact provided Seth Fishman with video of what appeared to be an individual drugging the drink without supervision of a woman. In response, Seth Fishman offered to make “BI-AGRA”, which he described as “female Viagra so strong it makes a woman bisexual”.

The government’s intention to make this trade allowable appears to be rooted in establishing a pattern of substances that Fishman was capable of or wanted to produce for customers.

The defense opposes the admissibility of these wiretapped sex drug communications on the grounds that “the allegation that ‘Bengawi’ solicited the accused to ‘create and distribute illegal drugs’ is a finding of law without no basis in fact…. It is not clear whether the respondent responded in a humorous vein; or even take the request seriously. There is no indication that the Respondent subsequently shipped any substance intended for this use.

But even if the judge ends up rejecting that part of the evidence, authorities appear to be armed with a solid foundation of other wiretapped evidence to try to establish “Fishman’s overall intent in the design of his drug – to avoid testability while increasing performance “.

One of those intercepted conversations that the government leaked into Wednesday’s filing is a March 31, 2019 call in which Fishman allegedly explained to a potential overseas client what his business strategy is at his Florida company, Equestology:

“I design programs for people. So if you’re someone who has a bunch of endurance horses and you know what you’re doing – and that’s why I only technically work with trainers who have a certain number of horses or more, because it would make sense to do that… I work mainly on regenerative peptides and I work on things that are not commercially available.

“Every once in a while people ask me to make products because they want to go and sell them to people who really don’t know what’s going on. Mostly camel drivers who are in the desert. I don’t need to tell you how it is, do I? … But, I can meet you [in Dubai]. You can explain your needs and wants to me and I can tell you how there are things that I have done for other people that are not exclusive to them.

“If you want your own exclusive stuff, I’ll tell you how we do it. The reason I say some people want exclusivity is because obviously if these horses are tested and they have something that someone else has and that person is irresponsible then it becomes a problem for them, ”said the government motion.

When the judge does rule on admissibility issues, the crux of the matter might come down to which vets will be allowed to testify and what they will be allowed to say before jurors.

Authorities oppose Fishman’s choice of Clara Fenger as a witness to comment on the nature of the pharmaceutical products he has sold. Previously, she worked as a veterinarian with the Kentucky Horse Racing Commission for 15 years and is currently the sole owner of a Kentucky-based company called Equine Integrated Medicine.

Fenger’s name may be familiar to racetracks that have followed other drug-related cases. Her curriculum vita indicates that she has provided “expert testimony” in as many as 19 international, federal and state jurisdictions involving criminal, civil and administrative matters.

Recently, Fenger’s job was to testify on behalf of trainer Bob Baffert when his legal team overturned the 2020 lidocaine disqualifications of Charlatan and Gamine in Arkansas. Fenger was also hired by Baffert last summer to escort the urine sample of the winner of the GI Kentucky Derby Medina Spirit (Protonico) when he was sent to New York for further testing related to betamethasone.

The prosecution’s objection to Fenger is “because none of Dr. Fenger’s opinions are admissible … as long as they are not substantiated and are not based on facts, data,

principles, or specialized knowledge, and because they relate to matters which will only serve to confuse and distract the jury.

In turn, Fishman’s legal team opposes the three vets the government wants to call “experts”: Jean Bowman, a veterinarian in the Food and Drug Administration (FDA) Oversight Division; Diana Link, veterinarian at the FDA Center for Veterinary Medicine, and Cynthia Cole, director of the Racing Laboratory at the University of Florida, responsible for the drug testing regime at the Florida Department of Pari-Mutuel Wagering.

“First, the court should exclude testimony suggesting that the purpose of the legal regime is to ensure the welfare of racehorses,” Fishman’s lawyer wrote in a memorandum accompanying the Dec. 1 motions.

“Second, the Court should exclude evidence regarding the ‘safety and efficacy’ of these products allegedly manufactured and distributed by Dr. Fishman. The accused is not charged in this indictment with crimes related to the manufacture or distribution of substances dangerous to animals… Opinion evidence regarding the “safety and efficacy” of Dr. Fishman are therefore irrelevant to the problems. At the trial.

Fishman is charged with two counts. In a separate court order signed on December 2 by the judge dealing with the case, it was noted that his case (along with co-accused Lisa Giannelli) had been given the first safeguard slot on the court calendar to begin a trial on the 19 th. January. 2022.