Michael H. Taylor v. Louisiana State Racing Commission

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-540 consolidated with 14-541, 14-542, 14-543

JOHN DARREL SOILEAU

VERSUS

LOUISIANA STATE RACING COMMISSION

consolidated with

ALONZA LOYA

VERSUS

LOUISIANA STATE RACING COMMISSION

consolidated with

ALVIN SMITH

VERSUS

LOUISIANA STATE RACING COMMISSION

consolidated with

MICHAEL H. TAYLOR

VERSUS

LOUISIANA STATE RACING COMMISSION

**********

APPEAL FROM THE

FOURTEENTH JUDICIAL DISTRICT COURT

PARISH OF CALCASIEU, NO. C-2012-4442 CW C-2012-4443 CW 2012-4444

CW 2012-4445

HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

**********

JOHN D. SAUNDERS

JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders,

and Billy Howard Ezell, Judges.

AFFIRMED.

David Michael Hayes

Attorney at Law

P. O. Box 953

Natchitoches, LA 71457

(318) 357-8400

COUNSEL FOR PLAINTIFFS/APPELLANTS:

John Darrel Soileau

Alonza Loya

Michael H. Taylor

Alvin Smith

Donald G. Kelly

Attorney at Law

137 St. Denis Street

Natchitoches, LA 71458-0756

(318) 352-2353

COUNSEL FOR PLAINTIFFS/APPELLANTS:

Alvin Smith

John Darrel Soileau

Michael H. Taylor

Alonza Loya

Thomas Taylor Townsend

Kelly & Townsend

P. O. Box 756

Natchitoches,, LA 71458-0756

(318) 352-2353

COUNSEL FOR PLAINTIFFS/APPELLANTS:

Michael H. Taylor

Alvin Smith

Alonza Loya

John Darrel Soileau

Rhea P. Loney

Assistant Attorney General

320 N. Carrollton, Suite 2-B

New Orleans, LA 70119

(504) 483-4000

COUNSEL FOR DEFENDANT/APPELLEE:

Louisiana State Racing Commission

SAUNDERS, Judge.

This is an appeal of the trial court upholding the licensure suspension of four

horse trainers by the Louisiana State Racing Commission (LSRC) for

administering dermorphin to race horses. The trainers contend that the trial court

was in error because the hearing before the LSRC was defective and the trial court

failed to recognize and correct these deficiencies.

FACTS AND PROCEDURAL HISTORY:

Appellants, John Darrel Soileau, Michael Heath Taylor, Alonzo Loya, and

Alvin Smith, Jr., are racing horse trainers. Between May and June of 2012, each

Appellant was running at least one horse in the Delta Downs high-stakes prize

races. Pursuant to the LSRC’s rules, urine and plasma samples were collected

from each horse.

Appellants trained horses whose samples tested positive for dermophin. As

such, Stewards from Delta Downs held a hearing for each Appellant, where each

received a penalty of $1,000.00 and a six-month suspension, the maximum the

Stewards could impose. These cases were then sent to the LSRC.

The LSRC heard Appellants’ cases during a two-day hearing. Subsequently,

Appellants Taylor and Loya were each fined $10,000.00, and their licenses were

suspended for five years. Appellant Soileau was fined $20,000.00, and his license

was suspended for ten years because two of his horses tested positive for

dermorphin. Finally, Appellant Smith, Jr. was fined $20,000.00, and his license

was suspended ten years for only one violation because his case had the

aggravating circumstance of his having prior occurrences of suspensions and fines

due to administering improper substances to his race horses.

Appellants then filed petitions with the Fourteenth Judicial District Court,

where their cases were eventually consolidated. After briefing and a hearing, the

trial court rendered a judgment affirming the periods of suspension for each

Appellant, but vacated the fines and remanded the case for that issue.

Thereafter, Appellants filed this appeal now before us. In this appeal,

Appellants allege five assignments of error.

ASSIGNMENTS OF ERROR:

1. The district court erred in its finding that the LSRC did not abuse its

discretion in excluding Appellants’ exhibits.

2. The district court erred in failing to find that the State had established a

chain of custody from Dr. Barker to the University of California – Davis and

throughout the process while being performed in California.

3. The district trial court erred in finding that the provisions of Daubert and

Foret were met by the LSRC in allowing the introduction of the dermorphin test

and splits.

4. The district court erred in its finding that the LSRC denied Appellants their

right to due process.

5. The district court erred in affirming the excessive suspensions levied by the

LSRC.

ASSIGNMENT OF ERROR NUMBER ONE:

Appellants contend that the district court erred in its finding that the LSRC

did not abuse its discretion in excluding their exhibits. We find no merit to this

contention.

“Judicial review is a multifaceted function involving several catagories:

statutory or constitutional review, procedural review, substantive review, factual

review, and “fact finding.” Multi-Care, Inc. v. State, Dept. of Health & Hospitals,

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00-2001, p.3 (La.App. 1 Cir. 11/9/01), 804 So.2d 673, 674. The Louisiana

Administrative Procedure Act, La.R.S. 49:964( G), provides:

[t]he court may affirm the decision of the agency or remand the

case for further proceedings. The court may reverse or modify the

decision if substantial rights of the appellant have been prejudiced

because the administrative findings, inferences, conclusions, or

decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion;

or

(6) Not supported and sustainable by a preponderance of

evidence as determined by the reviewing court. In the

application of this rule, the court shall make its own

determination and conclusions of fact by a preponderance

of evidence based upon its own evaluation of the record

reviewed in its entirety upon judicial review. In the

application of the rule, where the agency has the

opportunity to judge the credibility of witnesses by first-

hand observation of demeanor on the witness stand and

the reviewing court does not, due regard shall be given to

the agency’s determination of credibility issues.

Given La.R.S. 49:964 (G)(6), the standard of review for this court is that of

manifest error for any factual findings by the trial court and for any credibility

determinations made by the LSRC. Id. However, if the error alleged does not

question any factual finding or credibility determination or if we are simply to

determine whether an error of law occurred, neither the trial court nor the LSRC is

entitled to any deference.

In their first assignment of error, Appellants contend that the LSRC abused

its discretion in excluding certain exhibits. Appellants describe the purpose of

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entering those exhibits into evidence as to “accurately explain the history of the

Dermorphin issue” and to provide “context and history for Dr. Hatahet’s testimony

and for the Court.”

The following exchange took place during Dr. Hatahet’s testimony while he

was being questioned before the LSRC:

Q [W]ere these documents used to assist you in the

formation of your opinions and conclusions that are going to be

offered here today to some extent?

A They are not necessary, let’s put it this way. I did not

rely on them that much. I would have made my opinion - - the same

opinion without them.

The chairman of the LSRC ruled that these exhibits were not relevant and

excluded them after considerable debate on their admissibility. After the chairman

made this ruling, Appellants’ counsel examined Dr. Hatahet in a proffer wherein

he discussed these exhibits. This entire proffer was conducted before the members

of the LSRC, i.e. the adjudicators of the hearing cast with the responsibility to

make any credibility determinations. In it, Dr. Hatahet iterated that some exhibits

raised the question of whether any valid test for dermorphin in horses existed.

During the proffer, when the state’s counsel objected to the LSRC hearing the

testimony, the Chairman of the LSRC did not have the members of the LSRC leave

the room or tell them to ignore the testimony, rather, he simply told them, “you

don’t have to listen to this.”

Further, in reading the transcript, there are instances where members of the

LSRC actually asked Dr. Hatahet questions about some of the evidence that the

chairman ruled was to be excluded. Thus, it is clear that the adjudicators cast with

making credibility determinations, the members of the LSRC, had full knowledge

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of the content of this evidence through hearing Dr. Hatahet’s testimony, regardless

of its status as excluded.

Accordingly, we cannot say that Appellants were harmed in any fashion by

the Chairman’s technical exclusion of the exhibits. Dr. Hatahet indicated that the

admission of the excluded evidence was not necessary for him to reach his opinion.

Further, he discussed the excluded evidence before and with the members of the

LSRC and the instruction by the chairman to the members of the LSRC can be

interpreted to indicate that the LSRC members could decide whether to give the

evidence any weight. As such, we find that Appellants’ assignment of error

number one is without merit.

ASSIGNMENT OF ERROR NUMBER TWO:

In the second assignment of error, Appellants Soileau and Taylor, assert that

the district court erred in finding that the State had established a chain of custody

from Dr. Barker to the University of California – Davis and throughout the process

while being performed in California. We disagree.

We note that this assignment deals with a contention that the chain of

custody was not proven after Appellants Soileau and Taylor exercised their right to

have the samples taken from their respective horses split and tested. Thus, it does

not pertain to Appellants Loya and Smith, Jr.

Appellants Soileau and Taylor allege that the chain of custody was not

proven “from Dr. Barker to the University of California – Davis and throughout

the process while being performed in California.” In reviewing the record, it is

clear that the split samples sent to California were never in the possession of Dr.

Barker. The labels attached to the mailing of the split samples are exhibits entered

into the record. They indicate that the split samples were sent directly from the

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LSRC on Delta Downs Drive in Vinton, LA, to the University of California –

Davis. Thus, the allegation that the chain of custody was not properly proven from

Dr. Barker to California is misguided.

Further, both Appellants Soileau and Taylor signed “hold harmless”

agreements that contain the following language, “IT IS AGREED as follows:

....

3. Trainer agrees that the results of the split sample(s) Laboratory can be

introduced as evidence in any hearing.” Finally, the Louisiana Fourth Circuit, in

Segura v. Louisiana Racing Commission, 577 So.2d 1031, 1033 (La. App. 4 Cir.

1991) (initial alteration in original, thereafter, alterations added for full citations)

stated the following:

The chain of custody rule is intended “to preserve the integrity of the

evidence, i.e., to prevent [it] from being tampered with or . . . lost.”

Bufkin [v. Mid-American Indemnity, Co., 528 So.2d 589, 592

(La.App. 2 Cir.1988)]. Accord, LaBella [v. La. State Racing Com’n,

569 So.2d 58, 61 (La.App. 4 Cir.1990); Schwab [v. Galuszka, 463

So.2d 737, 742 (La.App. 4 Cir.1985)]. This Court has determined that,

in a civil case, twenty-four hour vigilance of the evidence is not

required. LaBella, 569 So.2d at 61. What is essential is preserving the

integrity of the evidence and protecting it from tampering and loss. Id.

These factors must be established by a preponderance of the evidence.

Laborde v. Louisiana State Racing Commission, 560 So.2d 594, 597

(La.App. 4th Cir.1990).

We agree with our sister court that in a civil proceeding such as this one the

essential element to the chain of custody is “preserving the integrity of the

evidence.” Id. Thus, it is incumbent upon the party seeking to have the evidence

excluded “to produce any positive evidence showing that the horse’s specimen was

tampered with, lost, or not the one tested.” George v. Dept. of Fire, 93-2421, p. 14

(La.App. 4 Cir. 5/17/94), 637 So.2d 1097, 1107. Here, Appellants Soileau and

Taylor have not even alleged such evidence exists.

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Accordingly, we find that this assignment of error has no merit. Appellants

Soileau and Taylor’s assignment is misguided. Further, both signed agreements

that the evidence they seek to have excluded could be introduced at any hearing

and neither has produced any positive evidence that the split samples were lacking

in integrity.

ASSIGNMENT OF ERROR NUMBER THREE:

Appellants next contend that the trial court erred in finding that the

provisions of Daubert and Foret were met by the LSRC in allowing the

introduction of the dermorphin test and splits. While we agree that Appellants

likely should have been given the requested Daubert hearing, we find that the

denial of those hearings under the particular circumstances of this case do not

warrant reversal.

“A witness who is qualified as an expert by knowledge, skill, experience,

training, or education, may testify in the form of an opinion or otherwise if:

scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue.” La.Code Evid. art. 702.

In State v. Brannon, 07-431, pp. 8-9 (La.App. 3 Cir. 12/5/07), 971 So.2d 511, 517-

18, writ denied, 07-2465 (La. 5/9/08), 980 So.2d 689, we explained how to

determine the admissibility of an expert’s testimony:

In State v. Foret, 628 So.2d 1116 (La.1993), the

Louisiana Supreme Court adopted the test set forth in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding

proper standards for the admissibility of expert testimony

which requires the trial court to act in a gatekeeping

function to ensure that any and all scientific testimony or

evidence admitted is not only relevant, but reliable. State

v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697. To

assist the trial courts in their preliminary assessment of

whether the reasoning or methodology underlying the

testimony is scientifically valid and can properly be

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applied to the facts at issue, the Supreme Court suggested

the following general observations are appropriate: 1)

whether the theory or technique can be and has been

tested; 2) whether the theory or technique has been

subjected to peer review and publication; 3) the known or

potential rate of error; and 4) whether the methodology is

generally accepted by the relevant scientific community.

Daubert, 509 U.S. at 592–594, 113 S.Ct. 2786. In Foret,

supra, the court adopted these observations as a helpful

guide for our lower courts in considering this difficult

issue. Id. Thus, Louisiana has adopted Daubert’s

requirement that in order for technical or scientific expert

testimony to be admissible under La.[Code Evid. art.]

702, the scientific evidence must rise to a threshold level

of reliability. Daubert’s general “gatekeeping” applies

not only to testimony based upon scientific knowledge,

but also to testimony based on “technical” and “other

specialized knowledge.” Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1171, []

(1999); Independent Fire Ins. Co. v. Sunbeam Corp., 99-

2181 (La.2/29/00), 755 So.2d 226. The trial court may

consider one or more of the four Daubert factors, but that

list of factors neither necessarily nor exclusively applies

to all experts or in every case. Id. Rather, the law grants a

district court the same broad latitude when it decides how

to determine reliability as it enjoys in respect to its

ultimate reliability determinations. Kumho, supra at 526

U.S. at 142, 119 S.Ct. 1167.

State v. Allen, 41,548, pp. 11-13 (La.App. 2 Cir. 11/15/06), 942 So.2d

1244, 1254-55 [, writ denied, 07-530 (La.12/7/07), 969 So.2d 619].

Here, in reviewing the transcript of the proceedings before the LSRC, the

ultimate issue of the Appellants’ alleged violations turned on whether the members

of the LSRC believed that the test used by Dr. Barker was valid. Thus, while this

court would have preferred that Appellants have been granted their requested

Daubert hearing, the actual hearing before the LSRC essentially served the same

function as a Daubert hearing. The main issue at the hearing before the LSRC was

the validity of Dr. Barker’s dermorphin test. Appellants were afforded the

opportunity to present expert testimony before the LSRC that opined that Dr.

Barker’s procedures used in his demorphin test were not peer reviewed or

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published, had no known error rate, and was not accepted or rejected in the

scientific community through the lengthy testimony of Dr. Hatahet. We do note,

however, that Dr. Hatahet did not disagree with Dr. Barker’s results or

methodology. Rather, he only pointed out to the LSRC that Dr. Barker’s test was

not an accepted test by generally accepted scientific principles due its early stage in

devolvement.

Given the substance of the hearing, the LSRC had a choice between finding

that Dr. Barker’s test was valid, and, therefore, finding that Appellants violated

La.R.S. 4:150 or finding that Dr. Barker’s test was invalid and, therefore, finding

that there was no evidence of any wrongdoing by Appellants. Clearly, they chose

the former. As such, the LSRC was heard the arguments and evidence both for and

against the validity of Dr. Barker’s test and its decision to give credence of one

view over the others was not manifestly erroneous. Further, in contemplating the

entirety of the circumstances, we cannot say that the chairman’s denial of

Appellant’s requested Daubert hearing resulted in any prejudice against them. The

adjudication before the LSRC, in effect, contained a Daubert hearing therein.

Accordingly, we find that this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER FOUR:

Fourth, Appellants aver that the district court erred in its finding that the

LSRC denied Appellants their right to due process. We disagree.

Louisiana Revised Statutes 49:955 states:

A. In an adjudication, all parties who do not waive their rights

shall be afforded an opportunity for hearing after reasonable notice.

B. The notice shall include:

(1) A statement of the time, place, and nature of the

hearing;

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(2) A statement of the legal authority and jurisdiction

under which the hearing is to be held;

(3) A reference to the particular sections of the statutes

and rules involved;

(4) A short and plain statement of the matters asserted.

If the agency or other party is unable to state the matters in

detail at the time the notice is served, the initial notice may be limited

to a statement of the issues involved. Thereafter, upon application, a

more definite and detailed statement shall be furnished.

C. Opportunity shall be afforded all parties to respond and

present evidence on all issues of fact involved and argument on all

issues of law and policy involved and to conduct such cross-

examination as may be required for a full and true disclosure of the

facts.

D. Unless precluded by law, informal disposition may be made

of any case of adjudication by stipulation, agreed settlement, consent

order, or default.

E. The record in a case of adjudication shall include:

(1) All pleadings, motions, intermediate rulings;

(2) Evidence received or considered or a resumé thereof

if not transcribed;

(3) A statement of matters officially noticed except

matters so obvious that statement of them would serve no

useful purpose;

(4) Offers of proof, objections, and rulings thereon;

(5) Proposed findings and exceptions;

(6) Any decision, opinion, or report by the officer

presiding at the hearing.

F. The agency shall make a full transcript of all proceedings

before it when the statute governing it requires it, and, in the absence

of such requirement, shall, at the request of any party or person, have

prepared and furnish him with a copy of the transcript or any part

thereof upon payment of the cost thereof unless the governing statute

or constitution provides that it shall be furnished without cost.

G. Findings of fact shall be based exclusively on the evidence

and on matters officially noticed.

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In the case before us, the trial court, functioning as an appellate court, stated

that “there is no merit whatsoever to the due process issue.” Appellants contend

that the LSRC failed to give them time to obtain necessary discovery to prepare for

the hearing and acted with such haste that their counsel could not property examine

witnesses and present evidence at the hearing. According to the trial court,

Appellants’ description of the events were incongruent with the “proceedings as

conveyed through the transcript[.]”

After having reviewed the transcript, we are unable to find manifest error by

the trial court. Appellants were afforded notice of the allegations against them

with time to prepare a defense by procuring expert witnesses. Further, all

discovery propounded by Appellants were answered prior to the hearing.

Appellants produced expert witnesses to contradict the expert witnesses against

them. Those experts were able to voice their views in a nearly 750 page transcript

over two days. Finally, Appellants were allowed to cross-examine all witnesses

against them. Given these facts, we cannot say that the trial court was erroneous in

its finding that Appellants’ due process concerns were without merit.

ASSIGNMENT OF ERROR NUMBER FIVE:

Finally, Appellants assert that the district court erred in affirming the

excessive suspensions levied by the LSRC. We find no error by the trial court.

Louisiana Revised Statutes 4:255(A) states, “The commission may impose

upon any licensee listed in R.S. 4:169 a fine not exceeding ten thousand dollars

and may suspend a licensee indefinitely, or both. Any commission action taken

herein shall be consistent with the provisions of this Part.” A trainer is

specifically listed in La.R.S. 4:169, and Appellants were all trainers. Thus, La.R.S.

4:255(A) applies to Appellants. Further, La.Admin.Code tit. 35, § I.1796(B)(1)

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provides guidelines for suspension and fines for a Class I violation of “suspension

of license for a period of not less than one year and not more than five years.”

The trial court vacated the fines in excess of $10,000.00, but upheld the

suspensions as they were less than indefinite and fell within the guidelines

promulgated by the LSRC when there was an absence of mitigating or aggravating

circumstances. The trial court noted that Appellant Soileau’s suspension was for a

total of ten years as he was found guilty of a Class I violation for two separate

horses. Thereafter, the trial court found no abuse of discretion by the LSRC in

making Appellant Soileau’s suspension consecutive rather than concurrent because

it involved two separate incidents.

Appellants argue in brief that the suspensions were the maximum they could

have received under the guidelines and, as such, were unduly harsh. We find no

merit to this argument. Our reading of the statues is consistent with the trial

court’s. The LSRC guidelines call for suspension of licenses between one and five

years for a Class I violation when no mitigating or aggravating circumstances are

present. Here, the record contains no mitigating circumstances for any Appellants,

and we find no error by the trial court in upholding the LSRC’s suspensions.

CONCLUSION:

Appellants, John Darrell Soileau, Michael Heath Taylor, Alonzo Loya, and

Alvin Smith, Jr., raised four assignments of error. Further, Appellants Soileau and

Taylor raised an additional assignment of error.

We find no merit to any of the assignments of error raised by Appellants.

Accordingly, we affirm the trial court’s judgment upholding the ruling of the

Louisiana State Racing Commission. Costs of these proceedings are assessed to

John Darrell Soileau, Michael Heath Taylor, Alonzo Loya, and Alvin Smith, Jr.

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AFFIRMED.

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