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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

FTC DOCKET NO. 9449

ADMINISTRATIVE LAW JUDGE:

JAY L. HIMES

IN THE MATTER OF:

DR. JASON SCOTT

APPELLANT

THE AUTHORITY’S BOOK OF AUTHORITIES

May 4, 2026

Respectfully submitted,

STURGILL, TURNER, BARKER & MOLONEY,

PLLC

/s/ Bryan Beauman

BRYAN BEAUMAN

REBECCA PRICE

333 W. Vine Street, Suite 1500

Lexington, Kentucky 40507

Telephone: (859) 255-8581

bbeauman@sturgillturner.com

rprice@sturgillturner.com

HISA ENFORCEMENT COUNSEL

MICHELLE C. PUJALS

ALLISON J. FARRELL

4801 Main Street, Suite 350

Kansas City, MO 64112

Telephone: (816) 291-1864

mpujals@hiwu.org

afarrell@hiwu.org

HORSERACING INTEGRITY & WELFARE

UNIT, A DIVISION OF DRUG FREE SPORT,

LLC

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INDEX

_________________________________________________________________________________________________

TAB

DOCUMENT DESCRIPTION

PAGE NO.

In the Matter of Dr. Larry Overly, DVM, Administrative Law

Judge Decision on Application for Review (January 27, 2026)

003-102

In the Matter of Dr. Scott Shell, DVM, Administrative Law

Judge Decision on Application for Review (March 6, 2025)

103-176

Scott v. Horseracing Integrity & Safety Auth., 2025 U.S. Dist.

LEXIS 208979 (D.N.M. Oct. 22, 2025)

177-188

Oklahoma v. United States, 163 F.4th 294 (6th Cir. 2025)

189-205

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TAB 1

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UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

__________________________________________

)

In the Matter of

)

Dr. Larry Overly, DVM

)

Appellant.

)

__________________________________________)

Docket No. 9443

ADMINISTRATIVE LAW JUDGE DECISION

ON APPLICATION FOR REVIEW

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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................. i

TABLE OF ABBREVIATIONS .................................................................................... iii

INTRODUCTION ............................................................................................. 1

II.

SUMMARY OF THE CASE ............................................................................. 4

The Two Banned Substances ................................................................... 4

HIWU’s Discovery of Testosterone and Isoxsuprine ............................... 7

The Possession Violations Charged ....................................................... 10

Mixed Practice Composition: Covered and non-Covered

Horses ............................................................................................. 12

Dr. Scollay’s Racetrack Remarks ................................................... 13

The Arbitrator’s Decision ....................................................................... 14

III.

THE PARTIES’ POSITIONS ON REVIEW .................................................. 17

IV.

ISSUES ON REVIEW .................................................................................... 19

SCOPE OF REVIEW ...................................................................................... 20

VI.

ANALYSIS OF THE ISSUES ........................................................................ 22

Dr. Overly Failed to Prove Compelling Justification for Possession of

Either Testosterone or Isoxsuprine ....................................................... 22

Overview of Dr. Overly’s Position on Compelling Justification:

A Manufactured Defense ............................................................... 24

Possession of Testosterone ............................................................. 28

a. Testimony Relating to the Discovery of Testosterone During

the Search ............................................................................... 28

b. Documents Offered by Dr. Overly ......................................... 33

Possession of Isoxsuprine ............................................................... 41

a. Testimony Relating to the Discovery of Isoxsuprine During

the Search ............................................................................... 41

b. Documents Offered by Dr. Overly ......................................... 45

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Summary of Dr. Overly’s Proof of Compelling Justification ................ 48

Dr. Overly’s “Mixed Practice” Argument: Another Smokescreen ........ 49

VII.

Covered and Non-Covered Horses ................................................. 49

Dr. Scollay’s Will Rogers Downs Racetrack Remarks .................. 53

Dr. Overly’s Constitutional Challenge to Rule 3214(a) Fails ............... 61

SANCTIONS ISSUES AND THEIR RESOLUTION.................................... 62

HIWU Properly Charged Dr. Overly with Two Possession ADRVs ..... 62

Sanctions Should Not be Eliminated or Reduced for Either

No Fault or Negligence (“NF”), or for No Significant Fault

or Negligence (“NSF”) ............................................................................ 67

VIII.

Overview of Dr. Overly’s NF and NSF Arguments ....................... 68

NF: Applying Rule 3324 ................................................................. 70

NSF: Applying Rule 3225............................................................... 73

a. Objective Considerations ....................................................... 75

b. Subjective Considerations ...................................................... 79

Sanctions Summary ....................................................................... 84

Consecutive Periods of Ineligibility and Aggregated Fines May Be

Awarded .................................................................................................. 85

Ineligibility ..................................................................................... 86

Monetary Sanctions ....................................................................... 92

Arbitration Costs ............................................................................ 93

Sanctions Awarded ......................................................................... 94

CONCLUSION ............................................................................................... 95

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TABLE OF ABBREVIATIONS

General

ADMC – Anti-Doping and Medication Control

ADRV – Anti-Doping Rule Violation

Authority – Horseracing Integrity and Safety Authority

HISA – Horseracing Integrity and Safety Act, 15 U.S.C. §§ 3051-60

HIWU – Horseracing Integrity & Welfare Unit

Review Proceeding

AB – Appeal Book

AuOBr. – Authority’s Opening Brief

AuPCOL – Authority’s Proposed Conclusions of Law

AuPFOF – Authority’s Proposed Findings of Fact

AuPO – Authority’s Proposed Order

AuRBr. – Authority’s Reply Brief

OOBr. – Overly’s Opening Brief

OPCOL – Overly’s Proposed Conclusions of Law

OPFOF – Overly’s Proposed Findings of Fact

ORAuPFOF – Overly’s Reply to the Authority’s Proposed Findings of Fact

ORBr. – Overly’s Reply Brief

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INTRODUCTION

In 2020, Congress enacted the Horseracing Integrity and Safety Act

(“HISA”), designed to provide national uniformity to safety and substance control

in the nation’s thoroughbred racing industry. 1 Among other things, HISA created

the Horseracing Integrity and Safety Authority (the “Authority”), a private,

independent, self-regulatory, nonprofit corporation, to “develop[] and implement[]

a horseracing anti-doping and medication control program and a racetrack safety

program” throughout the United States. 2

The Authority promulgated, and the Federal Trade Commission approved,

regulatory rules, which include the statutorily-required Anti-Doping and

Medication Control (“ADMC”) Program. 3 HISA and the ADMC Program rules

address, in summary: (1) the persons and thoroughbred racehorses the Program

covers; (2) the substances that are banned outright or subject to threshold

presence requirements, or are regulated as controlled medications; (3) the conduct

constituting violations and corresponding sanctions; and (4) investigation and

enforcement in furtherance of the statute. 4 Under the ADMC Program, the more

See 15 U.S.C. §§ 3051-60.

Id. § 3052(a).

Id. §§ 3053, 3055, 3057.

4 See generally ADMC Rule 3000 series; 88 Fed. Reg. 5070-5201 (Jan. 26, 2023) (FTC Notice of

HISA Proposed Rule and Request for Public Comment); Order Approving the ADMC Rule Proposed

by HISA (Mar. 27, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/P222100CommissionOrder

AntiDopingMedication.pdf; 88 Fed. Reg. 27894 (May 3, 2023) (FTC Notice of Final Rule, effective

May 22, 2023), https://hisaus.org/regulations?modal-shown=true#equine-anti-doping-andcontrolled-medication-protocol-rules.

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serious violations are Anti-Doping Rule Violations (“ADRVs”), which cover Banned

Substances that “should never be in a horse’s system,” and which are set out in a

Prohibited List of Banned Substances issued by the Authority. 5

The Authority has contracted with the Horseracing Integrity & Welfare

Unit (“HIWU”) to implement and enforce the ADMC Program on behalf of the

Authority. 6 HIWU charges of ADRVs are heard by an Internal Adjudication Panel,

which may, as here, consist of a single arbitrator. 7 The FTC has authority to

review arbitrator decisions resolving HIWU-initiated enforcement proceedings. 8

Further review is available under the Administrative Procedures Act. 9

Rules issued to implement the ADMC Program prohibit Possession of

Banned Substances by individuals subject to HISA, such as trainers and

veterinarians, who are known as Covered Persons. This prohibition applies

regardless of whether the Covered Person administers the Banned Substance to a

Covered Horse. 10

Appellant Larry Overly is a veterinarian whose practice includes Los

Alamitos racetrack in Cypress, California, as well as nearby farms and other

See also Rules 1020 (definition of ADRV), 3111(a) (Prohibited Substances).

Capitalized terms used, but not defined in this Decision, are those defined in HISA Rule 1020 of

the General Provisions. Other abbreviations are set forth in the Table of Abbreviations.

5 Rule 3010(c).

6 15 U.S.C. §§ 3054(e)(1)(B)-(E), 3055; Rules 3010(e)(1), 5720(a).

7 Rules 3360, 7020.

8 15 U.S.C. § 3058; 16 C.F.R. §§ 1.145-.148.

9 5 U.S.C. §§ 701-06.

10 Rule 3214.

See 87 Fed. Reg. 60077 (Oct. 4, 2022) (Final Rule).

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locations where horses are stabled. Dr. Overly attends to both Covered Horses

subject to HISA, and those not subject to the statute, referred to here as “nonCovered Horses.” Both Covered and non-Covered Horses race at Los Alamitos, and

both groups also are stabled off-track.

In July 2024, HIWU searched Dr. Overly’s veterinary truck at Los Alamitos

and discovered testosterone and isoxsuprine, both of which are Banned

Substances. HIWU charged Dr. Overly under Rule 3214(a) with two Possession

violations, which were heard by an arbitrator under the Rules’ dispute resolution

procedures. 11 Possession is undisputed, but Dr. Overly argued that he had a

“compelling justification” for Possession, a defense expressly recognized by Rule

3214(a). The Arbitrator rejected Dr. Overly’s defense and awarded sanctions,

detailed further below. Dr. Overly thus has brought this review proceeding. 12

I hold that HIWU proved Dr. Overly committed two ADRVs and that

Dr. Overly failed to demonstrate compelling justification, or any other available

defense. However, I also conclude that the Arbitrator erred in ruling that only one

set of combined sanctions should be imposed and in reducing the period of

Dr. Overly’s Ineligibility to 23 months. Instead, I rule that, besides requiring

individual sanctions for each ADRV, the two Ineligibility periods must run

consecutively, not concurrently. Therefore, the total Ineligibility period is 48

months, less a “time-served” credit. As for the monetary sanctions, I agree a

See Rules 3360, 7020.

12 15 U.S.C. § 3058; 16 C.F.R. §§ 1.145-.148.

See 87 Fed. Reg. 60077 (Oct. 4, 2022) (Final Rule).

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$25,000 fine is appropriate, but that it should be imposed for each ADRV, for a

total of $50,000. Last, I agree that Dr. Overly must make one $15,000 contribution

towards HIWU’s arbitration costs.

I set forth the basic facts first, which include a summary of the Arbitrator’s

decision. After that, I discuss the issues on this review, the scope of review, and

my analysis of the issues. Additional facts are presented within discussion of the

individual issues.

II.

SUMMARY OF THE CASE

The Two Banned Substances

Dr. Overly has been a veterinarian since 1997. 13 Since he provides services

to Covered Horses, Dr. Overly is a Covered Person subject to HISA, to the ADMC

Program Rules, and to the enforcement system created. 14 The two Banned

Substances HIWU has charged him with possessing—testosterone and

isoxsuprine—may be summarized as follows:

Testosterone: An anabolic steroid, testosterone is not only a Banned

Substance under the Rules, but also a Schedule III Controlled Substance that the

United States Drug Enforcement Agency (“DEA”) regulates. 15 Briefly, DEA

classifies Scheduled Drugs from I to V, based on the degree of regulatory control.

AB 6075 (Overly).

14 15 U.S.C. §§ 3051(6), (21); Rule 1020 (definitions of “Attending Veterinarian” and “Covered

Person”).

15 AB 2677-78, at ¶ 12 (Benson Exp. Rep.).

See also FTC Rule 1.146(b)(1)-(3).

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The ALJ’s review of the Arbitrator’s decision is de novo— “as if it had not

been heard before, and as if no decision previously had been entered.” 91 Thus, the

ALJ must determine the merits of the ADRV charged, and whether the sanctions

the Authority imposed were “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 92 “[T]o pass muster under the arbitrary-and

capricious standard,” the ALJ must only find a “rational connection between facts

and judgment.” 93 In doing so, “the court must consider whether the decision was

based on a consideration of the relevant factors and whether there has been a clear

error of judgment.” 94

Judicial review under the arbitrary and capricious standard ensures that

“the agency has acted within a zone of reasonableness and, in particular, has

reasonably considered the relevant issues and reasonably explained the

decision.” 95 To find an abuse of discretion, there must be “a plain error, discretion

91 Shane v. Albertson’s Inc., 504 F.3d 1166, 1168 (9th Cir. 2007) (review under Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim) (quoting Freeman v. DirecTV, Inc., 457 F.3d 1001,

1004 (9th Cir. 2006). See also Harris v. Lincoln Nat’l Life Ins. Co., 42 F.4th 1292, 1295 (11th Cir.

2022) (“De novo means . . . a fresh, independent determination of the ‘matter’”) (quoting with

approval Doe v. United States, 821 F.2d 694, 697-98 (D.C. Cir. 1987)); Reyes-Colón v. United

States, 974 F.3d 56, 60 (1st Cir. 2020) (“review . . . de novo . . . is a legalistic way of saying we

critique the judge’s decision without giving any deference to his views”); Amparan v. Lake Powell

Car Rental Cos., 882 F.3d 943, 947 (10th Cir. 2018) (“[A] district court’s grant of summary

judgment [is reviewed] de novo,” and “[i]n so doing, we need not defer to factual findings rendered

by the district court.”) (internal quotation marks omitted); Aquarius Marine Co. v. Pena, 64 F.3d

82, 87 (2d Cir. 1995) (on de novo review, the appellate court “give[s] no deference to the lower

court”).

92 15 U.S.C. § 3058(b)(2)(A); FTC Rule 1.146(b)(1)-(3).

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 56 (1983).

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021).

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exercised to an end not justified by the evidence, a judgment that is clearly against

the logic and effect of the facts as are found.” 96 Finally, whether the sanctions are

in accordance with the law is determined with reference to the substantive law

embodied in HISA and the implementing Rules, summarized above.

In exercising its review authority, the ALJ may “affirm, reverse, modify, set

aside, or remand for further proceedings, in whole or in part” and “make any

finding or conclusion that, in [their] judgment . . . is proper and based on the

record.” 97

VI.

ANALYSIS OF THE ISSUES

Dr. Overly Failed to Prove Compelling Justification for

Possession of Either Testosterone or Isoxsuprine

Since Possession is not disputed, Dr. Overly’s liability for violation of Rule

3214(a) calls for analysis of whether he demonstrated a compelling justification to

have either testosterone or isoxsuprine on his Hummer when HIWU searched the

vehicle at Los Alamitos on July 23, 2024. This is the second time I have been asked

to review the compelling justification defense and to assess the persuasiveness of a

veterinarian’s claimed reliance on Dr. Scollay’s 2023 remarks at Will Rogers

Downs racetrack. I defer discussing Dr. Overly’s fact-based reliance argument

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 798 (9th Cir. 2005) (internal

quotation marks omitted).

97 15 U.S.C. § 3058(b)(3)(A)(ii-iii); FTC Rule 1.146(d)(3).

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until later on, and here will summarize my prior discussion of the compelling

justification defense generally. 98

While a defense of ‘compelling justification’ to possession is common in

sports law anti-doping codes generally, as in the HISA Rules the expression is

invariably undefined. However, “[w]hen interpreting a statute, we begin with the

text.” 99

Dictionaries reflecting ordinary word usage can be helpful. An authoritative

dictionary’s definition of “justification” is:

1. A lawful or sufficient reason for one’s acts or omissions; any fact that

prevents an act from being wrongful.

2. A showing, in court, of a sufficient reason why a defendant acted in a way

that, in the absence of the reason, would constitute the offense with which

the defendant is charged. 100

For that “reason” to be “compelling,” it must be “both powerful and convincing.” 101

This defense is fact-driven and thus case-specific. Moreover, Rule 3214(a)’s

Possession violation is part of a regulatory scheme directed to banishing doping

from thoroughbred horseracing; compelling justification is the exception and

Shell II, 2025 WL 1784696, at *11-12.

Lackey v. Stinnie, No. 23-621, 604 U.S. 192, 199 (2025).

100 BLACK’S LAW DICTIONARY (12th ed. 2024).

101 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED

462; United States v. Canales-Ramos, 19 F.4th 561, 567 (1st Cir. 2021) (construing the federal

“compassionate release” statute, applicable to incarcerated individuals).

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should, accordingly, “be interpreted restrictively.” 102 Further guidance is found in

recent federal District Court remarks:

Permitting possession when there is a compelling justification for doing so is

an exception to the rule. Veterinarians can always comply with Rule 3214

by not possessing the substances it prohibits. Because Rule 3214 imposes

strict liability for possession, the scenarios where the “compelling

justification” exemption applies will be a small minority. . . . Moreover, the

definition of “compelling” excludes a vast array of justifications, such as a

covered person merely wanting to possess the substance, thinking they

should be able to, or forgetting that they have it on hand. 103

Against this backdrop, I consider Dr. Overly’s proof.

Overview of Dr. Overly’s Position on Compelling Justification:

A Manufactured Defense

I will cut to the chase. In asserting he had a compelling justification to have

both testosterone and isoxsuprine on his Hummer when the HIWU investigators

discovered the substances during their search, Dr. Overly is trifling with the

Authority—and with this Court.

Testosterone: An anabolic steroid, testosterone “is not a medication used on

a regular basis and does not need to be ethically carried by veterinarians for

‘prophylactic’ use.” 104 Thus, Dr. Overly’s compelling justification argument for

having four vials of this Banned Substance—three of which were sealed—when

102

WADA v. Contreras, CAS 2013/A/3341, at ¶ 116 (May 28, 2014).

Scott v. Horseracing Integrity & Safety Authority, No. 2:25-cv-632-SMD-GJF, 2025 WL

2987598, at *7 (D.N.M. Oct. 22, 2025) (emphasis added).

103

104 AB 2675, at ¶ 7(a), 2677-78, at ¶ 12 (Benson Exp. Rep.).

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HIWU searched his Hummer at Los Alamitos begins from a position of weakness

and goes downhill from there. 105

On Dr. Overly’s best version of the facts, over the one-year period preceding

HIWU’s search, he injected Cosmo three times; the injections were two and five

months apart, and the most recent one had been for 8cc, the equivalent of 8ml. 106

According to a document that his counsel provided with his August 2024 letter and

introduced at the arbitration hearing, Dr. Overly gave Cosmo a fourth injection,

this time of 10cc, during an off-track appointment on July 30, 2024, a week after

the search. 107 That was more than four months after the previous injection.

Assuming continued 10cc injections after the July 30 injection, administered

to Cosmo roughly four months apart, Dr. Overly had enough testosterone on his

Hummer to inject the horse for roughly the next eight months. He would not have

needed to reorder testosterone for another injection for four more months after

that. Dr. Overly offered no proof that he treated any horse other than Cosmo with

testosterone, but if one surfaced during the ensuing eight months, Dr. Overly could

have re-ordered at any point. 108

See id. 151 (vial photo), 170-71 (invoices for testosterone), 1120, at ¶ 3.b (Uncontested stip.

facts), 5832-33 (Bennett), 6240 (Overly).

105

106

Id. 166 (counsel’s letter, quoted above), 172-73 (Controlled Substance logs).

107

Id. 174 (Controlled Substance log).

108 See id. 5980, 6051, 6053 (Corbett) (Practice manager Cassandra Corbett’s search of office

records disclosed no testosterone treatments).

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Thus, Dr. Overly had no justification, much less a compelling one, for

having the quantity of testosterone HIWU’s investigators found when they

searched his Hummer. This alone suffices to hold that Dr. Overly failed to meet

his burden of proving compelling justification.

Isoxsuprine: A non-FDA-approved substance, “isoxsuprine is banned at Los

Alamitos” under CHRB rules. 109 Isoxsuprine’s past uses were to treat navicular

bone degeneration and ringbone in horses. Since both are “chronic conditions,” a

veterinarian doesn’t need to have isoxsuprine readily at hand to use. 110 Moreover,

early in his practice, Dr. Overly “never really saw a benefit” from isoxsuprine, “just

didn’t like the drug,” and “chose never to use it. . . .” 111 He further testified he was

“really shocked and surprised that that was even in [his Hummer], because I had

no knowledge that was there.” 112

For Dr. Overly to argue he had compelling justification to keep a Banned

Substance he never used is oxymoronic. Again, Dr. Overly has failed to satisfy his

burden of proof.

Non-Covered Horse Practice: Dr. Overly contends that the need to treat

non-Covered Horses at both Los Alamitos and off-track show compelling

109

Id. 2685, at ¶ 35 (Benson Exp. Rep.).

110 Id. 2685, at ¶ 36 (Benson Exp. Rep.). See also ORAuPFOF ¶ 13 (Dr. Overly agrees isoxsuprine

“could not be used on non-Covered Horses at Los Alamitos.”).

111 AB 6127 (Overly) (emphasis added).

isoxsuprine use were produced).

See also ORAUPFOF ¶ 12 (Dr. Overly agrees no records of

112 AB 6127-28 (Overly). See also id. 6518 (Overly) (Dr. Overly “didn’t” know the isoxsuprine was

there), 6533 (Overly) (“I had no idea it was on the truck.”).

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justification for having his Hummer loaded with testosterone and isoxsuprine on

any given day’s trip to Los Alamitos. As part of his proof, Dr. Overly introduced

evidence showing that, in 2024 alone, he administered 15,857 treatments to 573

non-Covered quarter horses at Los Alamitos, and also made 167 off-track visits to

see 73 non-Covered Horses. 113 Yet, the entirety of the testosterone and isoxsuprine

evidence he offered involving Covered or non-Covered Horses consisted of: (1)

Cosmo, an off-track horse that allegedly received three testosterone injections over

a roughly one-year period preceding the HIWU search, and one more a week after;

and (2) Brownie, also an off-track horse, for which treatment with isoxsuprine

allegedly was discussed and rejected.

How much weaker could proof of compelling justification be?

And if a more granular analysis of Dr. Overly’s compelling justification

defense for each Banned Substance were needed, there are facts aplenty. They

thoroughly discredit even the limited evidence Dr. Overly offered. Accordingly, as

alternative grounds for my compelling justification rulings, I will review the

evidence relating to testosterone and isoxsuprine individually. After that, I will

address further the nature of Dr. Overly’s mixed practice, attending to both

Covered and non-Covered Horses, and his professed reliance on Dr. Scollay’s Will

Rogers Downs racetrack remarks. As this discussion will show, Dr. Overly’s

evidence is smoke and mirrors, offered simply to divert attention.

113

Id. 1193, at ¶¶ 7, 10 (Corbett Wit. Stmt.), 2043, 2157-60 (Corbett Exs. 1 & 3).

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Possession of Testosterone

Testimony Relating to the Discovery of Testosterone

During the Search

The discussion that transpired upon HIWU finding testosterone on

Dr. Overly’s Hummer is disputed. At the time of HIWU’s search, Dr. Overly

supposedly “stated in nervous jest that I use the testosterone on myself and

injected myself every Friday . . . . That is the statement I made.” 114 Dr. Overly

testified further:

Q [counsel for HIWU]: You would agree with me that you made no

statements to the investigators about using . . . having the testosterone or

having it on your truck for non-covered horses, correct?

A: No, as I stated earlier, it was said in jest, and they laughed, and then

they made their statements as well.

Q: But my question to you just now was you made no other statements or

offered no other explanations other than personal use to investigators on the

day of the search. Correct?

A: I did not, but as soon as I said it, Ms. Ingram actually said “Ricky, quit

kidding around. Tell them the truth. We use it on over geldings [castrated

male horses] on the outside.”

....

Q: So you didn’t think it was important to tell investigators the purported

real reason you kept a banned substance on your truck at the backside, even

after your assistant allegedly said it?

114 Id. 6235 (Overly) (adopting id. 1166, at ¶ 23 (Overly Wit. Stmt.)) (internal quotation marks

omitted).

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A: Correct, I said nothing else. 115

Dr. Overly’s testimony is not credible. After the explanation Dr. Overly said

Ms. Ingram offered, Dr. Overly should have been highly motivated to walk back

his “joke.” He knew his personal use of testosterone could have “serious

implications for both his DEA-issued license and his California State veterinary

license. 116 With his very practice at risk, silence was not an option. But that is

what Dr. Overly testified transpired.

Ms. Ingram, Dr. Overly’s only witness on the search and the treatment of

Cosmo, did not help matters. Ms. Ingram is Dr. Overly’s “girlfriend”—a description

that she admitted, but that Dr. Overly himself evaded: “I don’t know if you’d

classify Jessica as my girlfriend. . . . We have a relationship.” 117 Ms. Ingram’s bias

towards Dr. Overly is, of course, a factor in assessing her credibility and the

weight to give her testimony. 118 So too was her reluctance to testify, which

Dr. Overly’s counsel reported at the arbitration hearing after Dr. Overly’s

testimony concluded:

I’ve spoken to Ms. Ingram, given the tenor, where things have gone, she

stands by her witness statement. I’m not calling her . . . . [G]iven the fact

115

Id. 6235-37 (Overly).

116

Id. 6237-38 (Overly).

117

Id. 6281 (Overly). See id. 6351 (Ingram).

118 See, e.g., United States v. Williams, 985 F.2d 634, 639 (1st Cir. 1993) (The trial court

appropriately permitted defense counsel “ample opportunity to undermine [the girlfriend of a

defendant’s] credibility by probing her bias and motive for testifying.”).

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that her personal life has been entered into this proceeding, she is

uncomfortable testifying, and says she won’t. 119

Ms. Ingram appeared only after the Arbitrator directed that “[s]he has to testify.

. . . [I]t’s not a question . . . . There’s a huge prejudice to your client, if she does not

testify.” 120

Testifying did not help, however. For starters, Ms. Ingram never confirmed

the words Dr. Overly put in her mouth during his own testimony. Her silence on

this subject impeaches Dr. Overly’s testimony. Instead, at the hearing Ms. Ingram

adopted her witness statement explanation: “when HIWU investigators questioned

Dr. Overly about the testosterone, I advised them clearly that testosterone was to

be used on older, non-covered horses outside the race track. . . .” 121 But

Ms. Ingram’s explanation, attributing the testosterone’s presence to treating

“older, non-covered horses,” also lacks credulity. She did not mention her own

horse, Cosmo, although that was the only horse she had in mind. 122

Equally important, Ms. Ingram’s explanation casts further doubt on

Dr. Overly’s own credibility. Dr. Overly heard Ms. Ingram’s explanation in

response to his own “flippant statement,” which included her statement “[w]e use

See, e.g., Baltazar v. Lewis, No. CV 14–01299–DOC (VBK), 2015 WL 300490, at

*11 (C.D. Calif. Jan. 21, 2015) (A witness’s “reluctance to testify could be helpful to the jury’s

assessment of her credibility.”). Cf. Rule 3122(f) (permitting an adverse inference to be drawn

against a “Covered Person’s refusal to cooperate”). As an employee of Dr. Overly, Ms. Ingram is a

Covered Person. Rule 1020 (definition).

119 AB 6313, 6315.

120 AB 6313, 6315, 6318 (the Arbitrator).

121

Id. 6344-45, 6346 (Ingram) (adopting id. 1189, at ¶ 8 (Ingram Wit. Stmt.)).

122

Id. 6347, 6349-50 (Ingram).

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it on over [sic] geldings on the outside.” 123 As of the time of the search, Dr. Overly

supposedly had treated Cosmo, which he knew was a gelding, with testosterone for

as long as two years. 124 If so, it strains credulity to believe Dr. Overly would have

failed to connect Ms. Ingram’s remarks with Cosmo—supposedly his only

testosterone horse-patient—and have refrained from confirming the explanation

she gave.

The “Cosmo explanation” rings hollow for still another reason. Not until five

weeks after the HIWU search did Dr. Overly, through his counsel, tell HIWU

about Cosmo’s testosterone injections. Counsel’s disclosure was limited, however.

First, he did not provide any account of what either Dr. Overly or Ms. Ingram

supposedly said during the search. Second, Dr. Overly’s counsel never disclosed

that Ms. Ingram herself owned Cosmo. HIWU’s investigator, Mr. Bennett, had to

figure that out on his own. 125

Mr. Bennett followed up by interviewing Ms. Ingram, who was circumspect

in providing information:

INGRAM advised COSMO began receiving testosterone treatments from

Dr. LARRY OVERLY . . . approximately 2 years ago. The treatments were

in response to the horse’s perceived lack of energy. INGRAM was unable to

provide specific details concerning the frequency of these treatments and

123

Id. 6236, 6237, 6280 (Overly), 6344-47 (Ingram).

Id. 1188, at ¶ 7 (Ingram Wit. Stmt.); id. 6264 (Overly) 6324-30 (Ingram). But see id. 172-74

(Controlled Substance records showing treatment of Cosmo no earlier than July 20, 2023, and not

in January 2023).

124

Id. 166 (counsel’s letter), 6238 (Overly). See id. 5858-66 (Bennett) (describing his investigation to

establish Cosmo’s ownership).

125

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advised, ‘They varied depending on the need,’ and claimed they were

currently ongoing.” 126

One might infer that, at the point of the interview, Ms. Ingram wasn’t sure of the

account Dr. Overly would eventually decide had to be told.

As noted earlier, HIWU investigator Bennett disputes both Dr. Overly’s and

Ms. Ingram’s accounts of what was said during the search. He testified that after

Dr. Overly’s “joke,” Ms. Ingram “started blushing,” and Mr. Bennett “assume[d]

they probably had a . . . personal relationship . . . .” 127 Further, when he

questioned Dr. Overly regarding his “joke,” Dr. Overly said “[n]o seriously,” which

Bennett took to mean “[h]e was being truthful.” 128 Mr. Bennett also testified Dr.

Overly “[n]ever” said he was “just kidding,” or that the testosterone was “really for

my non-covered horse practice.” 129

In addition, Mr. Bennett testified that besides asking for the testosterone lot

numbers on the four vials seized, Ms. Ingram made no other statements. 130 Shown

Ms. Ingram’s witness statement account—that the testosterone was for “older noncovered horses outside the racetrack”—Mr. Bennett testified: “That is not true.

Categorically not true.” 131 He confirmed his own witness statement remarks:

Id. 177 (Interview Rep.) (capitalization in original). See also id. 5866-67 (Ms. Ingram said she

had no purchase records for Cosmo, and that Dr. Overly would have any medical records).

126

127

Id. 5846 (Bennett).

128

Id. 5844-45 (Bennett).

129

Id. 5848 (Bennett).

130

Id. 5853-54 (Bennett).

131

Id. 5871 (Bennett). See id. 1189, at ¶ 8 (Ingram Wit. Stmt.).

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I have no recollection of Ms. Ingram offering any explanation for

Dr. Overly’s use of Testosterone during the Search. In fact, I do not recall

Ms. Ingram providing any statements, comments, or explanations on the

Testosterone at any time during the Search. If Ms. Ingram had offered any

such contemporaneous statements, it would have been my standard practice

to record any such comments in my Interview/Intelligence Report. 132

Mr. Bennett’s account is more believable, particularly since he memorialized

in writing the conversations during the search. An experienced investigator,

Mr. Bennett states: “If there was any indication that Dr. Overly was joking, it

would have been my standard practice to ask him follow up questions, clarify his

explanation, and record his comments in my Interview/Intelligence Report.” 133

And, if there were any reason to doubt how to resolve the conflicting

accounts of who said what during the search, documents offered by Dr. Overly

dispel it.

Documents Offered by Dr. Overly

The letter Dr. Overly’s counsel sent to HIWU five weeks after the search

included records relating to Dr. Overly’s testosterone treatments. Counsel wrote,

in relevant part, that the enclosed materials “document[ed] treatment for the . . .

quarter horse ‘Cosmo,’ which demonstrates that Dr. Overly administered the

Id. 2670, at ¶ 21 (Bennett Wit. Stat.). See also id. 5874-75 (Bennett) (adopting his witness

statements).

132

133 Id. 2669, at ¶ 19 (Bennett Wit. Stmt.). See also id. 5807-08, 5829-31 (Bennett) (describing his

practice regarding memorializing statements made), 5847-48 (Bennett) (if Dr. Overly had clarified,

Bennett “would have included more, probably, context to the statement.”).

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testosterone to this horse with regularity, including pre-and-post [HIWU] seizure,

on July 20, 2023, September 20, 2023, March 1, 2024, and July 30, 2024.” 134

Dr. Overly testified “[t]his is the only testosterone that was ordered for the

practice.” 135 The records included three pages (Controlled Substance logs)

purporting to show Cosmo’s four testosterone injections, which were “the sum total

of the testosterone injections” given to Cosmo over the “year period [July 2023-July

2024].” 136 The handwritten entries on the records were all made by Ms. Ingram. 137

Dr. Overly testified that the documents were “normal course of business” records,

“original and proper,” and he relied on them at the arbitration hearing to establish

injection of Cosmo on dates shown. 138

Parts of the three Controlled Substance logs are obvious copies of each

other, with only lot numbers and expiration dates changed 139:

134

Id. 166 (counsel’s letter).

135

Id. 6251 (Overly).

136

Id. 6266 (Overly). See id. 172-74 (Controlled Substance logs).

137

Id. 6144 (Overly), 6330-32 (Ingram).

Id. 6144, 6164-66 (Overly). See generally id. 6159-66 (Overly); id. 6331-37 (Ingram) (vouching for

the accuracy of the records).

138

139 Respectively, id. 172 (July 20 and September 20, 2023 injections), 173 (March 1, 2024 injection),

174 (July 30, 2024 injection).

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The last of these images purports to memorialize a July 30, 2024 injection of

Cosmo—after the HIWU search itself. An inference of fabrication is irrepressible.

And it gets still worse.

The injection entries on the Controlled Substance logs don’t reconcile to the

supply invoices Dr. Overly introduced. By way of illustration:

•

The document memorializing Cosmo injections on 7/20/23 and 9/20/23, is

sourced to lot 10014351444924. 140 There is no supplier invoice reflecting

delivery of testosterone from that lot number. 141

•

The document memorializing the 3/1/24 injection is sourced to lot

2302161.1, with an expiration of 08/2026. 142 The only invoice sourced to lot

23021611 is dated 03/04/24—three days after the claimed injection, and has

multiple expiration dates, none of which are the same as that on the

140

Id. 172 (Controlled Substance log).

141

See id. 169-71 (Supplier invoices).

142

Id. 173 (Controlled Substance log).

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injection record. 143 The only supplier invoice before the injection, dated

2/28/24, similarly has different expiration dates. 144 The only lot information

on that supplier invoice is 23021231—different than that on the injection

record. 145

•

The record for the July 30, 2024 injection of Cosmo identifies the vial lot

number as 2402020.1, having an expiration date of 01/2027. 146 Dr. Overly

introduced only one relevant invoice, for a testosterone order placed on July

23, 2024 to replace the testosterone HIWU seized. 147 But that invoice does

not show either a lot number or an expiration date. 148 Thus, Ms. Ingram had

to get her handwritten information on the injection record from some other

source that was never produced.

Perhaps not surprisingly, the labels on the vials HIWU seized also “don’t

match” those on the supply invoices Dr. Overly produced. 149 This table

summarizes the mismatch:

143

Id. 170 (Supplier invoice).

144

Id. 171 (Supplier invoice).

145

Id.

146

Id. 174 (Controlled Substance log).

147

Id. 169 (Supplier invoice), 6266-68 (Overly).

148

Id. 169 (Supplier invoice).

149 Id. 6249 (Overly’s counsel’s statement). See also id. 6250-51 (Overly) (“Until this moment, I did

not know they didn’t match . . . . Why . . . whether or not the numbers match, I have no idea.”)

(second ellipse in original), 6255 (“I have no idea.”).

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Vial Labels

Supplier Invoices

Lot Number

Expiration

Lot Number

Expiration

2302161.1

2026/08

23021231

11/30/2025

(three vials)

12/31/2026

23021231

11/30/2025

23021611

05/31/2024

(one vial showing

two lot numbers)

12/31/2026

(three vials)

2302123.1

2026/06

(one vial)

Sources: AB 170, 171, 5840-41 (Bennett), 6245-46, 6248 (Overly).

There are yet more facts that discredit Dr. Overly’s explanation for

possessing testosterone. First, Dr. Overly testified that, after returning from

rounds at Los Alamitos, he devoted Wednesday afternoons to his off-track

practice. 150 But based on the injection entries in the Controlled Substance logs,

Cosmo’s four alleged off-track injections took place on the following days of the

week:

July 20, 2023:

Thursday

September 20, 2023:

Wednesday

March 1, 2024:

Friday

July 30, 2024:

Tuesday

Dr. Overly never accounted for supposedly injecting Cosmo on dates that don’t jibe

with his Wednesday afternoon off-track practice.

150

Id. 6092-93, 6203-04, 6310-11 (Overly).

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Second, Dr. Overly also testified that, before leaving for his Wednesday

afternoon off-track appointments, a member of his staff “will actually give me a

report of what scheduled clients I’m going to see on the outside . . . .” 151 No such

reports were produced for any of the four alleged injections of Cosmo.

Third, HIWU’s search occurred the morning of July 23, 2024, a

Tuesday. 152 There is no evidence that Dr. Overly intended to treat Cosmo that

Tuesday afternoon or on a regular Wednesday afternoon trip. But even if that

were intended, it would not have justified having the steroid at Los Alamitos.

Dr. Overly’s office is “adjacent” to Los Alamitos, and his staff typically load and

unload his truck “every morning” and “in the middle of the day. We are constantly

loading the truck”—generally, 10 times a week. 153 Any testosterone needed for a

July 23 or 24 appointment could have been added to the Hummer once Dr. Overly

had finished at Los Alamitos. And, if Cosmo were to be injected on July 30 during

an atypical Tuesday trip off-track, Dr. Overly’s staff certainly did not need to add

testosterone to the Hummer a week beforehand. Nor, as noted earlier, did they

need to load multiple vials of testosterone—enough to treat Cosmo for the next

eight months or so.

Finally, Dr. Overly failed to produce medical records corresponding to the

claimed injections of Cosmo. Dr. Benson testified:

151

Id. 6311 (Overly).

152

Id. 140, at ¶ 5 (Bennett Wit. Stmt.), 148 (Investigative Rep.), 5852, 5876 (Bennett).

153

Id. 6226 (Overly). See also id. 6094, 6124-25, 6226-27, 6228-29, 6309-10 (Overly).

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[T]hat’s a very important thing, . . . you have to have . . . these checks and

balances. So you should have a medical record that . . . is supposed to

include that the medication was administered, and so it's like you have half

of the information, but you don’t have the confirmation that it went into the

horse . . . . [T]his is the perfect storm of what could happen if you had

someone who was trying to, like, hide drug use. 154

Dr. Overly testified he had—but did not produce—“veterinary medical

record[s], documenting the examination, diagnosis, prognosis, a SOAP for Cosmo,

relating to the four injections of testosterone . . . .” 155 His pre-hearing witness

statement similarly implies document selectivity: “I have provided all the records I

have for Cosmo and the use of the Testosterone for that horse, which in my opinion

is proper and sufficient to document the treatment of Cosmo and Non-Covered use

of Testosterone and intended use shortly after it was seized.” 156 Ms. Ingram,

Cosmo’s owner also testified there were more testosterone injection records than

the four produced, as well as corresponding “veterinary medical records” that were

“in [her] possession.” 157 Although some of these records may pre-date July 2023,

when the first documented treatment was given, the treatment dates are not what

matters.

154

Id. 6377-78 (Benson).

Id. 6269-70 (Overly). “SOAP” is the acronym for “subjective, objective assessment, and plan,”

referring to medical records veterinarians typically maintain. Id. 5997-98 (Corbett), 6341, 6576

(Ingram).

155

Id. 1168, at ¶ 29 (Overly Wit. Stmt.) (emphasis added; bold-face emphasis deleted). See also id.

6557 (Overly) (“There could have been some earlier [injections, before July 2023] as well.”)

156

157

Id. 6341 (Ingram). See generally id. 6339-41 (Ingram).

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Both the DEA and California, among others, require detailed recordkeeping

to assure proper management and dispensation of testosterone. 158 As Dr. Benson

explained:

You have to have all sorts of information on your DEA logs, such as the lot

number, the concentration, the number of MLs, the drug that it is, and then,

as you use it, you are required to account for any use, any waste, any loss

. . . the patient, the person, how it's dispensed. So is it administered or

actually given? And if it’s administered, how is it administered? The person

who enters the log information has to put in their initials, so you can track

not just who it went to, but who entered that information. So you really

have a whole kind of history of that drug. 159

Despite his record-keeping obligations, Dr. Overly has offered only a handful of

selective testosterone-related documents. Cassandra Corbett, Dr. Overly’s practice

manager, testified she was never asked to look for relevant material in the office’s

DEA treatment logs, which were maintained in a binder in her office. 160

The selective quality of the documents offered, the inconsistences among the

produced materials, and the inattention to regulatory obligations—as well as the

testimony given—all undermine the integrity and reliability of the evidence

Dr. Overly provided on a defense where he bears the burden of proof. 161

Dr. Overly’s evidence on isoxsuprine fares no better.

158

Id. 2678, at ¶13, 2679, at ¶ 16 (Benson Exp. Rep.).

159

Id. 6369-70 (Benson).

160

Id. 6030-32 (Corbett).

161 See Shell II, 2025 WL 1784696, at *18 (documentary proof lacked probative value on compelling

justification defense).

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Possession of Isoxsuprine

Testimony Relating to the Discovery of Isoxsuprine

During the Search

Dr. Overly looked again to Ms. Ingram to explain isoxsuprine’s presence in

his Hummer. She testified that Ms. Chantal, the owner of an off-track, nonCovered Horse named Brownie, spoke by phone with Dr. Overly’s (unidentified)

office receptionist. According to Ms. Ingram, Ms. Chantal told the receptionist that

isoxsuprine might be used to treat Brownie’s ringbone, a condition that can cause

lameness. A July 17, 2024 appointment was arranged. 162 Ms. Ingram “was kind of

concerned, because isoxuprine isn’t something that we typically keep in stock at

the clinic anymore.” 163 However, she found “a tub” of isoxsuprine in Dr. Overly’s

office and loaded it onto the Hummer so that it would be available to dispense. 164

And off she went to the scheduled appointment, along with Dr. Overly and one of

his newer veterinarian colleagues, Dr. Chaparro. Ms. Ingram supposedly did not

tell Dr. Overly or Dr. Chaparro about the loaded isoxsuprine. 165

During the July 17 examination, Dr. Overly discussed with Ms. Chantal

treating Brownie with isoxsuprine: “She brought up the isoxsuprine. I told her

isoxsuprine was old and antiquated, and I didn’t use it [in] my practice.” 166 He

162 AB 6354-55 (Ingram).

163

Id. 6355 (Ingram).

164 Id. 6355-56(Ingram). See also id. 6131-33, 6229-30 (Overly) (giving his hearsay account, based

on his post-search inquiry).

165

Id. 6356-57 (Ingram).

166

Id. 6135 (Overly).

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further advised Ms. Chantal that treating Brownie with isoxsuprine “will have no

benefit.” 167 A few weeks later, after trying other substances, Dr. Overly prescribed

osphos to treat Brownie. 168

During the six days after Brownie’s appointment before HIWU’s search, and

despite twice a day loading and unloading the Hummer, no one removed the

isoxsuprine—a drug that Ms. Ingram and the rest of Dr. Overly’s staff surely knew

he never used. 169 Other than testifying that “this particular drug fell through the

cracks,” Dr. Overly had no explanation for failure to unload the isoxsuprine. 170

Throughout the discussion of Brownie with Ms. Chantal, Dr. Overly

maintains that he was ignorant of the isoxsuprine on his Hummer. Only after the

search disclosed it did Dr. Overly query his staff and learn how isoxsuprine came

to be there. 171 But Dr. Overly’s explanation for having isoxsuprine on his Hummer

lacks credibility for many reasons.

1. Of those with personal knowledge of the facts, Ms. Ingram is the only one

to testify or to submit a witness statement. Neither Ms. Chantal, Dr. Chaparro,

nor the unidentified office receptionist offered any evidence corroborating either

Chantal’s alleged request or even the alleged July 17, 2024 appointment to

167

Id.

168

Id. 6136 (Overly). See also id. 6062 (Corbett).

169

Id. 6226-27, 6230, 6547-48 (Overly). See id. 6357 (Ingram).

170

Id. 6231 (Overly).

171

Id. 6131-34, 6208-09 (Overly). See also id. 1165, at ¶ 18 (Overly Wit. Stmt.).

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examine Brownie. Dr. Overly’s failure to produce witnesses with first-hand

knowledge of the facts—other than his girlfriend— and his failure to produce

corroborating documents permit an adverse inference to be drawn. 172

2. Dr. Overly’s own testimony accounting for the isoxsuprine’s availability is

implausible. He claimed: “I literally don’t use [isoxsuprine] in my practice. . . .

[Y]ou could run my computer, you’re not going to find a [sic] isoxsuprine for the

last 25 years.” 173 However, Ms. Ingram found a container of isoxsuprine at

Dr. Overly’s office. Dr. Overly attributes the isoxsuprine to an order by

Dr. Stephanie Smith, “another practitioner in my practice.” 174 Predictably,

Dr. Smith never testified, and Dr. Overly offered no documents to corroborate the

order he asserts she placed.

3. Likewise, Ms. Ingram’s testimony lacks credulity. Because isoxsuprine

was a special order “red bin” item, Ms. Chantal’s request to consider treating

Brownie with isoxsuprine “concerned” Ms. Ingram. 175 She would be expected to

See, e.g., Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226 (1939) (“The production of

weak evidence when strong is available can lead only to the conclusion that the strong would have

been adverse.”); Graves v. United States, 150 U.S. 118, 121 (1893) (“[I]f a party has it peculiarly

within his power to produce witnesses whose testimony would elucidate the transaction, the fact

that he does not do it creates the presumption that the testimony, if produced, would be

unfavorable.”); Gass v. United States, 416 F.2d 767, 775 (D.C. Cir. 1969) (“An adverse inference is

permitted from the failure of the accused to call witnesses peculiarly within his power to produce

when their testimony would elucidate the transaction.”) (cleaned up); Gumbs v. Int’l Harvester,

Inc., 718 F.2d 88, 96 (3d Cir. 1983) (“The unexplained failure or refusal of a party to judicial

proceedings to produce evidence that would tend to throw light on the issues authorizes, under

certain circumstances, an inference or presumption unfavorable to such party.”).

172

173 AB 6127 (Overly).

174

Id. 6132 (Overly).

175

Id. 6355 (Ingram).

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have informed Dr. Overly—if not before loading it, then certainly during the 45 to

60 minute drive to Brownie’s stable. 176 Her explanation for not doing so—“I didn’t

think I needed to”—defies common sense. 177 Significantly, Ms. Ingram’s witness

statement says nothing at all about the isoxsuprine found during HIWU’s

search. 178

Indeed, Ms. Ingram’s testimony is doubly implausible. The isoxsuprine that

Ms. Ingram found had a July 2023 expiration date—one year before the Brownie

appointment. Dr. Overly’s staff knew that an expired substance could not be

administered to a horse, and Ms. Ingram did not testify she missed the expiration

information. 179 It is unlikely she would have neglected to bring to Dr. Overly’s

attention the expiration of the isoxsuprine she’d found, either before loading it or

during the trip to examine Brownie.

4. Dr. Overly’s isoxsuprine comments during the HIWU search similarly

lack believability. Dr. Overly testified that, during the July 17 examination, he

and Ms. Chantal discussed treating Brownie with isoxsuprine. A few days after

that, when HIWU’s investigators asked about the isoxsuprine found in

Dr. Overly’s Hummer, Dr. Overly said that he “didn’t know the drug was in the

truck, but the tub was older looking. It looked like it been beat up, sitting in the

176

Id. 6093, 6209-10, 6219 (Overly).

177

Id. 6357 (Ingram).

178

Id. 1188-89 (Ingram Wit. Stmt.).

179

Id. 6230-31 (Overly).

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back of a truck for a while.” 180 Although the isoxsuprine had a distinctive look, and

although the Brownie discussion with Ms. Chantal must have been relatively fresh

in Dr. Overly’s mind, he did not “mention the July 17, 2024 appointment or offer

any reason why the Isoxsuprine was on his truck during the Search.” 181

5. Ms. Ingram, of course, knew exactly how the isoxsuprine came to be on

the Hummer. But she did not explain its presence to the HIWU investigators

either. Asked why not, Ms. Ingram answered: “They didn’t ask.” 182 However,

Ms. Ingram had worked for Dr. Overly since 2016, and she doubtless understood

the seriousness of his possessing a Banned Substance at Los Alamitos. 183 She also

knew isoxuprine was “a red bin item”—used at most infrequently. 184 If, as she

maintains, Dr. Overly knew nothing about the isoxsuprine on his Hummer,

Ms. Ingram could reasonably be expected to explain its presence to HIWU’s

investigators, regardless of whether they asked. Her testimony is not believable.

Documents Offered by Dr. Overly

Similar to his testosterone proof, the documents Dr. Overly introduced

regarding isoxsuprine fail to meet his burden of proof. Those he never introduced

themselves discredit the produced material.

180 Id. 6127 (Overly). See also id. 6219-20 (Overly) (The tub of isoxuprine “[l]ooked like it [had] been

somewhere for a long time . . .”).

181

Id. 2671, at ¶ 25 (Bennett Wit. Stmt.).

182

Id. 6357 (Ingram).

183

Id. 1188, at ¶ 3 (Ingram Wit. Stmt.).

184

Id. 6355 (Ingram).

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1. As with testosterone, the report listing off-track patients, regularly

provided for Dr. Overly’s Wednesday afternoon trips, is missing in action for the

Brownie appointment. 185 Worse still, Dr. Overly offered no documents at all

memorializing the alleged July 17, 2024 appointment and examination of

Brownie. 186 The limited documentary evidence regarding Brownie reflects

treatment on January 11 and 17, and September 26, 2024. Osphos is listed for the

September 26 entry. 187

The absence of any record covering the claimed July 17, 2024 visit is

significant. Although Brownie apparently is a non-Covered Horse, California law

requires Dr. Overly to prepare and maintain written records for every horse he

examines or treats. 188 Dr. Overly testified the relevant records, allegedly prepared

by Dr. Chaparro, exist; “Have I seen the record where we saw Brownie and it’s on

the medical record at the clinic? Yes.” 189 But Dr. Overly never offered them into

evidence despite knowing full-well that he has the burden of proof on compelling

justification. 190 Dr. Overly’s explanation—because he did not bill for Brownie’s

185

Id. 6311 (Overly).

186

See id. 6134 (Overly).

Id. 2157 (Corbett treatment exhibit), 6062-63 (Corbett). See also id. 2176 (record of Brownie’s

treatment with osphos on Sept. 25, 2024), 2686-87, at ¶¶ 39-40 (Benson Exp. Rep. with prints of

Brownie treatment records).

187

Id. 6216 (Overly). See id. 2680-81 (Benson Exp. Rep.) (detailing California recordkeeping

requirements).

188

Id. 6214 (Overly). See also id. 6133 (Overly) (Dr. Chaparro “actually wrote the case up as she

saw the case with me.”).

189

190

Id. 6215 (Overly).

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examination, the visit is undocumented—is a distraction, not an explanation. 191

California law’s recordkeeping calls for documenting diagnosis and treatment,

regardless of billing. 192 And while not applicable to non-Covered Horses, the

recordkeeping requirements under HISA, reflecting sound professional practice,

cover examination. 193

2. Cassandra Corbett, Dr. Overly’s practice manager, introduced detailed

records of horses examined. 194 In preparing this summary evidence, Ms. Corbett

“looked for records [of administration of isoxsuprine] and was unable to locate any,

because that’s a more unusual treatment . . . . I actually did pull a report on that

one and did not find anything.” 195 Isoxsuprine, she further testified, “is not

something that we give at the track. . . . I can’t remember if I’ve ever seen

isoxsuprine on the track.” 196 If, as Dr. Overly testified, Dr. Smith ordered the tub

of isoxsuprine seized in the search, Ms. Corbett found no record of it. In any event,

Ms. Corbett’s evidence confirmed that Dr. Overly had no need for isoxsuprine

when HIWU discovered it during its search.

191

Id. 6136-37 (Overly).

192

Id. 2679, at ¶ 16 (Benson Exp. Rep.).

See Rule 2251(b) (recordkeeping applies to “every Veterinarian who examines or treats a

Covered Horse”).

193

194 AB 2045-55 (sample veterinary records for horses treated at Los Alamitos), 2157-91 (records of

horses treated off-track).

195

Id. 6051, 6067 (Corbett).

196

Id. 6051, 6053 (Corbett).

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Summary of Dr. Overly’s Proof of Compelling Justification

For both testosterone and isoxsuprine, the evidence from Dr. Overly and

Ms. Ingram—testimony and witness statement alike—may appropriately “be

taken with a grain of salt.” 197 Dr. Overly’s documentary evidence similarly is

unreliable; some of it is more likely than not fabricated. As the Court of Appeals

wrote in Garcia v. Berkshire Life Ins. Co. Of America, 198 “[a] party’s willingness to

fabricate evidence bears on character and credibility, which often is broadly at

issue in a given case.” I attach no weight to the evidence from either Dr. Overly or

Ms. Ingram, which I find unworthy of belief. 199

Dr. Overly failed to prove he had a compelling justification for Possession of

testosterone or isoxsuprine at Los Alamitos on July 23, 2024. I turn now to his

“practice mix” argument, for which he seeks support in Dr. Scollay’s Will Rogers

Downs racetrack remarks.

197

De Vargas v. Brownell, 251 F.2d 869, 871 (5th Cir. 1958).

198 569 F.3d 1174, 1181 (10th Cir. 2009).

See generally The Santissima Trinidad, 20 U.S. 283, 339 (1822) (explaining that “where the

party speaks to a fact in respect to which he cannot be presumed liable to mistake,” the principle

false in one, false in all, applies with strongest force); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.

2007) (“[A] single instance of false testimony may . . . infect the balance of the [party’s]

uncorroborated . . . evidence.”); Parker v. United States, 801 F.2d 1382, 1385 (D.C. Cir. 1986)

(Scalia, J.) (upholding a jury instruction that “[i]f you believe that any witness has willfully

testified falsely with respect to any material fact which the witness can not reasonably be mistaken

about, then you may, if you deem fit to do so, disregard all or any part of the testimony of that

witness or you may accept such portion of his testimony as you find worthy of belief”).

199

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Dr. Overly’s “Mixed Practice” Argument: Another Smokescreen

Covered and Non-Covered Horses

As detailed above, depending on the measure used, roughly 65-70% of

Dr. Overly’s practice involves attending to non-Covered Horses, while the rest are

Covered Horses. The ratio doesn’t differ materially between horses serviced at Los

Alamitos and those serviced off-track. That said, the breakdown itself takes us

nowhere. It tells us nothing about: (1) whether or not Dr. Overly needed to have

either testosterone or isoxsuprine on his Hummer at Los Alamitos on July 23,

2024 when HIWU’s search discovered the Banned Substances, and thus was

“justified”; or (2) whether or not that “need” was uncommonly pressing, and hence

“compelling.”

Dr. Overly offered no proof that he ever treated any non-Covered Horse at

Los Alamitos with either testosterone or isoxsuprine. 200 By contrast, the evidence

refutes a likely need for using either Banned Substance there. Under California

law, a non-Covered Horse treated with testosterone “cannot race for six months.

So, it’s a very . . . seriously addressed medication. It’s not something you give out

on a daily basis.” 201 And for isoxsuprine, besides being banned at Los Alamitos,

Dr. Overly himself claimed not to use it at all in his practice because he “never

See ORAuPFOF ¶ 5 (Admitting there are “no records to show that he had ever administered

Testosterone to a non-Covered Horse at Los Alamitos.”), ¶ 12 (Admitting there are “no records to

show that he had ever administered Isoxsuprine to a non-Covered Horse, at Los Alamitos or offtrack.”).

200

201 AB 6372 (Benson).

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really saw a benefit”—essentially the conclusion the FDA itself reached years

ago. 202

Dr. Overly, however, argues what might be called a “better safe than sorry”

(or prophylactic) theory of compelling justification. Since a majority of his practice

involves non-Covered Horses, on any given day, whether at Los Alamitos or offtrack, he had a better than even chance of attending to a non-Covered Horse for

some veterinary reason. 203 Dr. Overly explained the idea this way:

Q [counsel for Dr. Overly]: And is it fair to say that it would be inconceivable

for you to run a practice where you could get to Rolling Hills [off track] and

not have what you needed on the truck?

A: I carry all the drugs that I need on my truck all the time in order to

practice. . . . [T]here’s no way I could practice. If I don’t have the things I

need, then I’m not a very good veterinarian. 204

This is obfuscation. Dr. Overly’s evidence proves nothing about whether this

hypothetical treatment of a non-Covered Horse on any given day would require

administering either testosterone or isoxsuprine essentially immediately upon

202 Id. 2685, at ¶ 35 (Benson Exp. Rep.), 6127 (Overly), 6379 (Benson) (The FDA “found it had no

efficacy.”).

203

See id. 1166, ¶ 21, 1170, at ¶ 42 (Overly Wit. Stmt.).

204 Id. 6176 (Overly). See also id. 1170, at ¶ 43 (Overly Wit. Stmt.) (“Perhaps HISA/HIWU did not

think this through, but there is always a need (and what the Rules refer to as compelling

justification) for veterinarians like me, to carry substances deemed banned by HISA/HIWU at Los

Alamitos prophylactically and in preparation for possible or intended use in Non-Covered

practice.”) (emphasis added); OOBr. at 5 (Because a majority of his practice involves non-Covered

Horses, Dr. Overly “had compelling justification to carry and possess legal medications at Los

Alamitos for use or intended use in his Non-Covered practice.”).

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diagnosing the condition requiring treatment. Again, the evidence overwhelmingly

refutes his argument.

Testosterone and isoxsuprine have limited, if any, uses in an equine

veterinary practice, and even where indicated, treat chronic, not exigent,

conditions. 205 Testosterone, for example, can be administered “the next day, and it

won’t . . . necessarily affect the outcome for that horse.” 206 Moreover, Dr. Overly’s

own evidence shows no use of testosterone at all at Los Alamitos in 2024. 207 And

the testosterone injections that Dr. Overly gave Cosmo were “incredibly sporadic”

—four times over roughly a one year period. 208 As Dr. Benson testified: “The

testosterone could [have] been picked up at the end of . . . the Los Alamitos day

and brought to Cosmos, if that was the intended purpose.” 209 Regarding

isoxsuprine, as noted, Dr. Overly dismissed the substance as ineffective and

consequently didn’t use it anyway.

In all events, Dr. Overly’s office is “adjacent” to Los Alamitos. 210 If there

were a need, however unlikely, to administer testosterone or isoxsuprine to a horse

205 AB 2675-76, at ¶¶ 7(a) & (c), 2679-80, at ¶¶ 18-20, 2685, at ¶ 36 (Benson Exp. Rep.), 6367, 6374-

75 (Benson).

206

Id. 6375 (Benson).

See id. 1197-2043 (Corbett Ex. 1 listing 19,927 treatments at Los Alamitos in 2024), 5994-95,

6028 (Ex. 1 is “all strictly racetrack. All of these treatments are just racetrack . . . Los Alamitos[.]”),

6052 (Corbett did not “recall seeing any” records of testosterone treatment. “[I]f I found anything, I

was going to just highlight it.”) (Corbett).

207

208

Id. 6381 (Benson).

209

Id. 6382 (Benson).

210

Id. 6094, 6124-25 (Overly).

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at Los Alamitos, Dr. Overly could obtain the substance from his office with

minimal inconvenience. Besides that, Dr. Overly regularly services his off-track

patients on Wednesday afternoons, after returning from Los Alamitos. 211 So,

loading his Hummer specifically for those off-track visits, based on the

appointments for the trip, should be a routine practice: “it is possible, yes.” 212 In

fact, the day of the search here—July 23, 2024—was a Tuesday; Dr. Overly could

have added either testosterone or isoxsuprine to his Hummer if there had been

any genuine need to use either substance off-track on Wednesday afternoon.

Finally, despite ceasing to include testosterone and isoxsuprine on his trips to Los

Alamitos since HIWU’s search in July 2024, Dr. Overly is “able to nonetheless

meet [his] ethical obligations as a veterinarian at Los Alamitos.” 213

Dr. Overly’s better-safe-than-sorry argument is meritless. The mixed nature

of his practice does not demonstrate any “justification”—much less a “compelling”

one—that could excuse his Possession of testosterone and isoxsuprine at Los

Alamitos on July 23, 2024.

Although Dr. Overly’s mixed practice evidence fails to satisfy his burden of

proof, I do not reject this approach altogether. 214 A veterinarian’s practice might

skew so heavily to non-Covered Horses that demonstrated use of a Banned

211

Id. 6093, 6203-04, 6310-11 (Overly).

212 Id. 6311 (Overly) (“[W]e always go back” to the office from Los Alamitos so that Dr. Overly can

receive “a report of what scheduled clients I’m going to see on the outside . . . .”).

213

Id. 6277 (Overly).

214

See id. 5964 (Scollay).

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Substance, together with other evidence of diligent compliance efforts, could

permit finding compelling justification. Dr. Scollay herself admitted as much,

positing the practices of two different veterinarians. One had “almost exclusively

racetrack practice[]”—“90 plus percent”—“but d[id] the odd pet horse, backyard

horse for friends or neighbors.” 215 The other had “one or two [racetrack] clients,

but the majority of the practice is out in the country . . . .” 216 The veterinarians

thus have “very different practices, and what they need/should carry in their

vehicles is largely based on the population of horses that they’re caring for.” 217

This is not such a case, however. Dr. Overly’s patient base of Covered

Horses, both at Los Alamitos and off-track, is roughly 30%—a sizable share of his

practice population—and other factors point against his need for either

testosterone or isoxsuprine—as does the veracity of his evidence itself. This, then,

takes us to Dr. Scollay’s remarks. As will be seen, however, they do not move the

needle in favor of compelling justification.

Dr. Scollay’s Will Rogers Downs Racetrack Remarks

To reiterate, Will Rogers Downs racetrack in Oklahoma was the site of one

of Dr. Scollay’s 2023 presentations to educate industry participants on HISA’s

soon-to-be-effective ADMC Program. An audience member recorded Dr. Scollay’s

215 Id. 5933 (Scollay). See also ORAuPFOF ¶ 23 (admitting Dr. Scollay’s testimony “that the specific

intended use of Banned Substances must be considered in every context to determine if there is a

need to have it at the racetrack”).

216 AB 5933 (Scollay).

217

Id. See also id. 5972-73 (Scollay) (proof of justification is “practice-specific”).

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remarks. Dr. Overly did not attend the presentation, or even know there was a

video of Dr. Scollay’s remarks. 218 However, he seeks to rely on them as part of his

compelling justification proof.

While researching HISA’s impact and reading the new Rules, Dr. Overly

was “[d]efinitely” concerned about the Possession prohibition in Rule 3214(a) and

the “banned substance aspect of HISA regulations.” 219 He explained further:

“[T]hey’re talking about drugs being banned that had never been banned before,

and . . . can be used on uncovered horses, but can’t be used on covered horses. I

mean, it gets a little tricky.” 220

At the arbitration hearing, Dr. Overly testified that this “research” brought

to his attention “statements made by Dr. Mary Scollay.” 221 He learned “[b]asically

that HISA/HIWU had no jurisdiction over the veterinarian that was practicing on

uncovered horses.” 222 That said, he testified to nothing else about the contents of

what it was he supposedly saw. His counsel then had him read the following

excerpts of Dr. Scollay’s Will Rogers Downs remarks, quoted in HIWU v. Perez, a

prior HISA case. Her remarks came in response to a question about veterinarians

whose practice included “farm work or non-Covered Horses”:

218

Id. 6193-94 (Overly); ORAuPFOF ¶¶ 19-20.

219 AB 6104-05, 6512 (Overly).

220

Id. 6105 (Overly).

221

Id. 6106 (Overly).

222

Id. 6107 (Overly).

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If the veterinarians are practicing also on a population of non-covered

horses, they are taking care of quarter horses, or they’ve got a country

practice part time, they’re able to possess banned substances because we

don’t have control over those horses, and so to the extent that they want to

use bisphosphonates on a non-covered horse, we can’t ban them from

possessing them. We can’t penalize people for something that you don’t have

control over. You know, let’s just say, because we have the ability to

investigate, if the story starts to get a little weird or a little extreme, you’re

going to get more than a raised eyebrow. But at the end of the day, if

someone’s practice is out in the country, we don’t have the authority to

control the medications they administer or carry . . . carry for non-covered

horses, the regulation addresses is there is a justification for them to be in

possession of a banned substance, and certainly a practice incorporates noncovered horses. 223

After reading from Perez, Dr. Overly testified that the “statement applied” to

him. 224 Elaborating, he testified that, because non-Covered Horses were the

“predominance of my practice. . . if I was working on non-covered horses, I was

entitled to carry the medication that I’m allowed to legally have.” 225

There are several reasons for discounting the veracity of Dr. Overly’s

testimony, however:

First, Dr. Overly “think[s]” he may have read about remarks by Dr. Scollay

remarks in an unidentified blog at some point before the HIWU search in 2024. 226

He recalled no details concerning the blog or how it came to his attention.

Id. 6108-09 (Overly) (reading from HIWU v. Perez, JAMS Case No. 1501000589, at ¶ 2.29(2)

(Oct. 9, 2023) (AB 528)). See also OOBr. at 4; AuPFOF ¶ 20; AB 5944 (Scollay).

223

224 AB 6109 (Overly).

225

Id. 6111-12 (Overly).

226

Id. 6189-90 (Overly). See also id. 6193 (“I believe that I read it on a blog at some point in time.”).

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Second, Dr. Overly testified he did not see the excerpts of Dr. Scollay’s

recorded remarks, quoted in Perez, until his counsel had “brought [them] to his

attention,” and that was not “before July 2024.” 227 But his testimony is

inconsistent with his pre-hearing witness statement:

In the course of my due diligence and through my review of industry blogs

and general industry discussions, prior to July 2024, I became aware of

educational presentations given by Dr. Mary Scollay and statements made

by Dr. Scollay, including a statements [sic] made on March 24, 2023, at Will

Roger’s [sic] Downs. 228

Third, in seeking to explain the testosterone found in Dr. Overly’s Hummer,

his counsel’s follow-up letter to HIWU referred to “educational policy guidance”

from Dr. Scollay. 229 But despite Dr. Overly’s witness statement claim to have read

about Dr. Scollay’s remarks before the HIWU search, his counsel’s letter did not

assert his client relied on those remarks.

Fourth, at the time of his research, Dr. Overly himself testified:

I was actually excited for HISA to come in existence. . . . I thought it was a

great idea, and championed it . . . when I was asked about it. Matter of fact,

I felt like getting rid of some of the CHRB rules and having a more concise

data would be actually advantageous. 230

227

Id. 6108 (Overly).

228

Id. 1163, at ¶ 7 (emphasis added) (Overly Wit. Stmt.).

229

Id. 167 (counsel’s letter).

230

Id. 6097 (Overly).

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Dr. Overly also knew the position Dr. Scollay had at HIWU, and he considered her

an authoritative source of information: “If I couldn’t trust the scientific director for

HISA, who can I trust,” he asked rhetorically. 231

Despite this, Dr. Overly never reached out directly to Dr. Scollay or anyone

else at HIWU to discuss his mixed practice. 232 As Dr. Overly put it: “I felt like that

I was in compliance. I felt like that. I never had an issue so I didn’t feel the need to

have to reach out at any point in time.” 233 At the same time, however, Dr. Overly

testified he looked to the CHRB’s chief veterinary officer for guidance. 234

With the new ADMC Program taking effect, Dr. Overly could reasonably

have figured out—if he did not already know—how to reach Dr. Scollay or others

at HIWU to discuss compliance. 235 His explanation for not contacting Dr. Scollay

directly—“I didn’t know that Dr. Scollay was approachable”—is not believable. 236

It is also inconsistent with earlier testimony. Asked why he put “so much weight”

on Dr. Scollay’s Will Rogers Downs remarks, Dr. Overly answered: “She’s the

director of science for HISA/HIWU. She’s supposed to be the person that you

ask.” 237

231

Id. 6107 (Overly). See also id. 6110, 6195-96 (Overly).

232

Id. 6197-98 (Overly). See also id. 6470 (Scollay) (Scollay did not recall any contact with Overly).

233

Id. 6201 (Overly)

234

Id. 6198-200 (Overly).

235

Id. 6097-98, 6191-92, 6198-99 (Overly).

236

Id. 6197-98 (Overly).

237

Id. 6171-72 (Overly) (emphasis added).

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Fifth, describing the action he took in anticipation of the ADMC Program

becoming effective, Dr. Overly testified he removed “bisphosphonates . . . from the

truck,” but could not recall any other substance similarly removed. 238

Bisphosphonates, which can be used to clean and rebuild bone, are among the

substances prohibited under the ADMC Program. 239 They are the one substance

Dr. Scollay mentioned in the excerpted remarks that Dr. Overly was asked to read

at the arbitration. 240 Coincidence? I am skeptical.

The totality of the evidence suggests that Dr. Overly’s testimony concerning

Dr. Scollay’s public remarks is unworthy of belief. I give no weight to his

testimony. 241

In all events, Dr. Overly over-reads Dr. Scollay’s remarks in arguing they

meant that any Veterinarian whose practice included non-Covered Horses would

be entitled to possess Banned Substances. 242 Dr. Scollay did not offer any such

“blanket exception” in her Will Rogers Downs remarks or in any other public

238

Id. 6221-22, 6224 (Overly).

239 Rule 4117(a).

See Shell II, 2025 WL 1784696, at *6.

240 AB 6109 (Overly).

See, e.g., Runyon v. United States, No. 4:15cv108, 2024 WL 2992712, at *29 (E.D. Vir. June 14,

2024) (testimony that is “incredible” and “unreliable” is entitled to “little to no weight”); United

States v. Granado, Crim. No. 09-471-6, 2012 WL 12888670, at *7 (E.D. Pa. Feb. 9, 2012) (where an

expert’s diagnosis was “utterly incredible,” “no weight” was given to his testimony); Massachusetts

Medical Soc. v. Dukakis, 637 F. Supp. 684, 696 (D. Mass. 1986) (testimony was so patently

incredible” that it was given “no weight whatsoever”), aff’d, 815 F.2d 790 (1st Cir. 1987). See also

Robinson v. Colvin, No. 11 C 0584, 2013 WL 1914317, at *20 (N.D. Ill. May 8, 2013) (Of course, lies

and inconsistent statements provide a valid basis for finding a witness not credible.”).

241

242

See, e.g., ORBr. at 2-3.

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presentation. 243 Much the contrary, she caveated her guidance: “we have the

ability to investigate, if the story starts to get a little weird or a little extreme,

you’re going to get more than a raised eyebrow.” 244 As she also testified, “you

might get more than a raised eyebrow. You might get charged with a doping

violation.” 245 Explaining further, Dr. Scollay stated that, whether Possession of a

Banned Substance can be excused is “specific to that [veterinary] practice . . .

because no two practices are exactly alike . . . . So each practice has its own client

base, and it is unique to that practice.” 246

Dr. Overly protests nonetheless that neither the Authority nor HIWU

issued any guidance on “compelling justification” or any further discussion of the

defense beyond Dr. Scollay’s remarks. 247 But that complaint rings hollow. As the

District Court for the District of New Mexico recently wrote:

[T]o comport with Rule 3214(a) is by refraining from the conduct it

proscribes, i.e. possessing banned substances or banned methods. Those

substances are enumerated in the Authority’s “Prohibited List,” leaving

scant room for confusion over what can and cannot be possessed. See HISA

Rule Series 4000.

....

The Authority’s decision not to define “compelling justification” does not

alter the Court’s conclusion. Permitting possession when there is a

compelling justification for doing so is an exception to the rule.

243

See AB 5929 (Scollay).

244

Id. 5949, 6109 (Scollay).

245

Id. 5929 (Scollay); ORAuPFOF ¶ 21.

See AB 5953-54, 5956-57 (Scollay). See also id. 5935-36 (Scollay) (discussing specific

considerations Scollay considers if asked for guidance).

246

247

Id. 6474-75 (Scollay). See, e.g., ORBr. at 7-8

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Veterinarians can always comply with Rule 3214 by not possessing the

substances it prohibits. Because Rule 3214 imposes strict liability for

possession, the scenarios where the “compelling justification” exemption

applies will be a small minority. 248

The District Court’s intuitive conclusion—that compelling justification cases

“will be a small minority”—accords with the facts in this case. Dr. Scollay, who

regularly responds to veterinarian questions, testified: “I have yet to have a

veterinarian tell me that any one of [the Banned Substances the veterinarian

raised] constitutes an emergency drug that they have to have immediately on

hand.” 249

In sum, nothing Dr. Scollay said publicly can reasonably be read to suggest

Dr. Overly had—or reasonably could believe he had—any entitlement to escape

Rule 3214(a)’s Possession prohibition just because he treated non-Covered Horses.

Instead, he has the burden of proving, by a preponderance of the evidence, that he

had a compelling justification to have testosterone and isoxsuprine when HIWU

searched his Hummer on July 23, 2024. On that score, he has failed.

I turn next to Dr. Overly’s constitutional argument, which requires only

brief treatment. After that, I discuss sanctions, including the defenses of No Fault

or Negligence (“NF”) and No Significant Fault or Negligence (“NSF”).

248

Scott, 2025 WL 2987598, at *7.

249 AB 5968 (Scollay).

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Dr. Overly’s Constitutional Challenge to Rule 3214(a) Fails

Dr. Overly argues that Rule 3214(a)’s “compelling justification” defense is

“vague on its face” and “void,” thereby violating his “Fifth and Fourteenth

Amendment Due Process rights . . . .” 250 This argument is not properly raised on

this review, and in any event lacks merit.

FTC Rule 1.146(a)(1) provides that, “[e]xcept for good cause shown, no

assignment of error by the aggrieved party may rely on any question of fact or law

not presented to the Authority.” 251 Neither Dr. Overly’s pre-hearing or posthearing papers before the Arbitrator raised the constitutional arguments now

asserted. 252 Likewise, Dr. Overly never argued it in the arbitration hearing. No

good cause for these failures is argued in his briefing on this review. Regardless,

the argument also fails on the merits.

In Shell II, I rejected this same argument—that the compelling justification

defense was unconstitutionally vague. 253 Nothing that Dr. Overly now asserts

persuades me that I should revisit that ruling. The Scott court has since similarly

rejected the argument in denying the veterinarian’s preliminary injunction

250 OOBr. at 1, 9-10; OPCOL ¶¶ 14-15.

see

Matter of Juarez-Rufino, No. 9444, 2025 FTC Lexis 122, at *29 n.120 (ALJ Dec. 2, 2025).

251 Regarding the need to construe “the Authority” to refer here to the “Arbitral Body,”

252

See AB 1123 (pre-hearing brief), 3112 (post-hearing brief).

253 2025 WL 1784696, at *27-28.

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motion: “Plaintiffs are not likely to succeed on the merits of their vagueness

claim.” 254

VII.

SANCTIONS ISSUES AND THEIR RESOLUTION

HIWU Properly Charged Dr. Overly with Two Possession ADRVs

HIWU charged Dr. Overly with Possession of two Banned Substances, for

which it sought individual sanctions “for each first-time Violation of ADMC

Program Rule 3214(a).” 255 Dr. Overly argues that, although HIWU discovered two

Banned Substances during its search, the principle of proportionality—requires

that only a single, combined sanction could be imposed. 256 This sports law

principle counsels that “the severity of a penalty must be in proportion with the

seriousness of the infringement.” 257 The Authority, however, maintains that: (1)

HIWU properly charged two Possession ADRVs: (2) the proportionality principle

does not apply on the facts here; and (3) per violation sanctions may be imposed,

resulting in consecutive periods of Ineligibility and aggregated fines. 258

The parties’ dispute revolves around my decision in Shell II, where I

construed HIWU’s charging authority under Rule 3228(d). The Rule provides as

follows:

254 2025 WL 2987598, at *7.

255 AB 123 (Charge Letter).

See, e.g., OPCOL ¶ 19 (citing to AB 6716-17, ¶¶ 7.7.1.-.5, (Corrected Final Decision), where the

issue is discussed); ORBr. at 4-6.

256

257

W. v. FEI, CAS 99/A/246, at ¶ 31 (May 11, 2000).

258 AuPFOF ¶¶ 26-29; AuOBr. at 25-26.

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(d) Violations involving both a Banned Substance or Method and a

Controlled Medication Substance or Method.

Where a Covered Person is found, based on a common set of facts, to have

committed a (1) violation involving one or more Banned Substance(s) or

Banned Method(s), and (2) a violation involving one or more Controlled

Medication Substance(s) or Controlled Medication Method(s), they shall be

treated as separate violations, but shall be adjudicated together in

consolidated proceedings pursuant to the procedure that applies to AntiDoping Rule Violations under the Arbitration Procedures.

In Shell II, I construed Rule 3228(d) to permit HIWU to charge, as “separate

violations,” a Veterinarian’s Possession of four Banned Substances arising from “a

common set of facts”—there, as here, a single search. 259 While anchored in Rule

3228(d), this construction finds support in sports law generally. 260

But I also held, based on the facts of Shell II, that the proportionality

principle precluded imposing sanctions for each of the four proven ADRVs, and

instead permitted issuance of single, combined sanction award. 261 In Dr. Overly’s

case, the Arbitrator ruled that the Shell II analysis applied and thus awarded a

combined sanction. 262 I disagree.

I adhere to the construction of Rule 3228(d) that I reached in Shell II.

HIWU has authority to bring two Possession charges, which were adjudicated in a

259 2025 WL 1784696, at *33-34.

See also Rules 3226(c), 3228, 3323(d), 3328.

260 See, e.g., Matter of Vogg, FEI 2022/HD02, at ¶ xxvi, n.16 (Dec. 20, 2022) (two violations,

presence and use of single substance, were “considered together as one single first violation”);

Decision of The Athletics Integrity Unit in the Case of Ms Sitora Khamidova ¶ 24 (Mar. 6, 2024)

(multiple violations involving different drugs “were committed simultaneous” and were “considered

together as a single first” violation).

261 2025 WL 1784696, at *34.

262 AB 6717, at ¶ 7.7.5 (Corrected Final Decision).

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single arbitration. Shell II, however, does not, as Dr. Overly contends, mean that

the proportionality principle automatically applies and thus resolves whether

combined or separate sanctions may be imposed when, as here, multiple ADRVs

are proven. “Two” is, after all, the least number of multiple ADRVs that can

trigger subsection (d) to begin with. And the proportionality principle is a case lawderived exception. As such, it should not become the norm.

Much the contrary, facts matter. There is a meaningful difference between:

(1) four consecutive Ineligibility periods, each of 24 months, imposed as a career

servicing Covered Horses sunsets—facts in Shell II—and (2) two potentially

consecutive periods earlier in a Veterinarian’s career, where the practice involves

mostly non-Covered Horses—facts in this case. While that alone may not be

enough, whether to apply the proportionality principle may also take account of

the facts overall.

First, Dr. Overly maintains that, although he had multiple vials of

testosterone—a Banned Substance—on his truck when HIWU searched it at Los

Alamitos, he did nothing wrong even though: (1) he had last used testosterone to

treat non-Covered Horse Cosmo four months earlier; (2) he had no imminent

treatment appointment for Cosmo, but instead would not again treat the horse for

another week; (3) during that time his staff repeatedly attended to the substances

on his Hummer; and (4) the testosterone found on his Hummer far exceeded that

needed for Cosmo’s next treatment.

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Second, Dr. Overly similarly contends that he did nothing wrong by having

on his truck a tub of isoxsuprine—also a Banned Substance—that: (1) he did not

use in his practice and did not know was on his truck; but that (2) his girlfriend

had put there without telling Dr. Overly; (3) supposedly, for an appointment to

examine Brownie, another non-Covered horse; (4) for which no appointment or

examination records were introduced; and that (5) was never used to treat

Brownie anyway.

For each Banned Substance, Dr. Overly’s defense is incredulous. Taken as a

whole, his evidence simply diverts attention from these two implausible scenarios.

Third, Dr. Overly’s lack of candor includes trying to whitewash his past. His

witness statement asserts: “prior to the Horseracing Integrity and Safety Act of

2020 . . . coming into effect, in approximately 27 years of practice, I had never been

charged for any violation at Los Alamitos Racecourse in Cypress, California.” 263

However, in 2018, he was adjudicated to have violated CHRB “Rules #1843(A) &

(D) (Medication, Drugs and Other Substances), #1843.1(B) (Prohibited Drug

Substances) and #1844(F)(1) (Authorized Medication-Betamethasone (66pg/mL) in

Excess of Authorized Level (10.0pg/mL).” 264 He has three other adjudicated CHRB

Rule violations. 265 Dr. Overly further has been charged in a 15-count proceeding

263 Id. 1162, at ¶ 5 (Overly Wit. Stmt.) (emphasis added). See also id. 6075, 6079 (Overly)

(Dr. Overly has practiced as a veterinarian since 1997).

264

Id. 3099 (2018 CHRB Stewards Ruling), 6294-95 (Overly).

Id. 3101, 3103, 3105 (2009 and 2011 CHRB Stewards Rulings). See generally id. 6284-95

(Overly).

265

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before the California Veterinary Medical Board, which includes a count alleging

administration of Ritalin to 25 horses between September 2019 and July 2020,

arising from conduct at Los Alamitos. 266

Dr. Overly’s witness statement is untrue. He not only has been “charged,”

but also adjudged liable, for violations arising from his Los Alamitos practice.

Taking account of all the evidence in this case, the basis for applying the

proportionality principle to favor Dr. Overly escapes me. I will not do so.

This proceeding calls for de novo review of the record. 267 An ALJ is

authorized to “affirm, reverse, modify, set aside, or remand for further

proceedings, in whole or in part” the sanctions imposed, and to “make any finding

or conclusion that, in [its] judgment . . . is proper and based on the record.” 268 This

authority includes determining whether the sanctions are “an abuse of discretion,

or otherwise not in accordance with law.” 269 Applying these review criteria to the

facts here, I cannot uphold awarding a single, combined set of sanctions for the

two proven ADRVs. Sanctions must be imposed individually for each of the two

proven ADRV Possession violations.

Id. 2939-40, at ¶ 70 (Mar. 13, 2025 California Vet. Bd. First Amended Accusation), 6284-85,

6287, 6289 (Overly).

266

267 15 U.S.C. § 3058(b)(1); FTC Rule 1.146(b)(3).

268 15 U.S.C. § 3058(b)(3)(A); FTC Rule 1.146(d)(3).

269 15 U.S.C. § 3058(b)(2)(A)(iii).