Court documents show charged vet Fishman subject to complaint in 2011 involving dead racehorse

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Prosecution and defense attorneys have exchanged petitions in federal court in recent weeks as they determine what evidence will be allowed in the upcoming trial of veterinarian Dr Seth Fishman and Lisa Giannelli, the first two defendants to stand trial in the 2020 Drug Adulteration and Branding Error case involving more than two dozen trainers, vets and suppliers. an account of each.

Fishman, who is licensed as a veterinarian, is accused of creating and distributing adulterated or mislabeled drugs that were marketed as performance enhancing substances that he then sold to others outside of the context of a valid prescription. Giannelli is said to have acted as a sales associate on behalf of Fishman.

It is still not known when the trial can begin; this is the “fallback” case for a start date of January 19 and it is also the fallback option for a March date. Lawyers handling the case have been told they should be ready to proceed in January.

The prosecution and the defense have filed in limine motions, which refer to motions asking the judge to rule on the limitation or authorization of certain evidence at trial. The documents included some partial overviews of the evidence and arguments likely to be raised at trial:

  • Fishman and Giannelli’s drug sales have already been the subject of a state investigation. In early 2011, the Delaware Professional Regulation Division received a complaint from an anonymous veterinarian who believed a racehorse had died after being injected with a product sold by Giannelli for Fishman. The horse, a Standardbred named Louisville, was owned by Nanticoke Racing Stables, although the names of the trainer and attending vet were not immediately available in court documents. The prosecution’s description of the complaint (which was filed under seal) indicated that the complainant vet suspected Fishman and Giannelli were selling equine medication without first examining the horses and diagnosing the medical conditions. Lawyers for Fishman and Giannelli point out that ownership of the horse did not allow an autopsy, but state investigators questioned whether the cause of death was related to the substance being injected improperly entering an artery, rather than a reflection of an impurity in the drug itself. At the time, Fishman argued that he performed horse examinations to establish valid veterinary relationships with his clients; Giannelli indicated at the time that she acted as a delivery person with little knowledge of what substances Fishman was sending or why. Defense lawyers also said the substance was Pentosan Gold, which they said was produced by a company called NatureVet. The couple’s lawyer at the time called the substance a “supplement” and the prescribed use was “an off-label use generally acceptable in this industry.”

    The complaint was ultimately dismissed without any regulatory action being taken.

    Pentosan is commonly known as a drug used to treat osteoarthritis by intramuscular or intra-articular administration.

    The defense seeks to exclude evidence of the horse’s death and part of the investigative record, saying it will unfairly bias the jury.

  • The prosecution seeks to present the information Fishman provided to investigators prior to the 2010 prosecution of harness owner David Brooks. In 2013, Brooks was sentenced to 17 years in prison in a fraud and obstruction of justice case involving his company DHB Industries. Fishman has presented evidence to prosecutors in this case regarding performance enhancing products, human growth hormone and other drugs that he said he supplied to Brooks for use on Brooks’ horses. At that time, Fishman told authorities that Brooks’ horses were not positive because the substances were designed to escape testing. The two parties disagree on whether the terms of Fishman’s participation in the Brooks case allow his statements at that time to be used against him in this case.
  • Both parties challenge each other’s veterinary experts and seek to limit or exclude their testimony. Prosecutors plan to call Dr. Diana Link, veterinarian / senior examiner at the FDA Center for Veterinary Medicine, Dr. Jean Bowman, veterinarian in the Oversight Division of the FDA Center for Veterinary Medicine, and Dr. Cynthia Cole, director of the Racing Laboratory at the University of Florida. The defense argues that Cole should not be able to comment on whether the products have been adulterated or mislabelled according to their labeling, and that it should not be testifying to “safety and efficacy. ” some products. Likewise, the defense wants to introduce Dr. Clara Fenger, a longtime expert witness and critic of the new drug regulations, to testify to the “safety and efficacy” of Fishman’s products, as well as the “convenience”. to use these products for the purpose of maintaining the health and welfare of horses involved in racing. Prosecutors argue that it is not clear what seized substances, if any, Fenger analyzed or how she determined they were safe and effective for horses and wants her not to be able to testify.
  • Fishman admitted to manufacturing substances for distribution overseas in addition to its domestic business. One of the details the defense hopes to exclude from the trial is an allegation by the prosecution that Fishman was solicited by the UAE’s Department of Presidential Affairs, Science Center Sector, and Presidential Camel Department “to distribute performance enhancing drugs; and creating and distributing other illegal drugs. The defense points out that the documents it has seen so far from the government do not describe any illegal or performance enhancing products. for this purpose. Prosecutors also say they intercepted a communication in which Bengawi asked Fishman to create a substance “intended to be used to augment an unsupervised woman’s drinking, ie ‘Ladies’ Viagra.”

    “The government alleges that the defendant responded to the request with an offer to make ‘BI-AGRA’ which he described as ‘Female Viagra, it makes a woman bisexual’. It is not clear whether the respondent responded in a humorous vein; or even take the request seriously. There is no indication that the Respondent subsequently shipped any substance for this purpose.

  • Prosecutors allege that Fishman was selling products to “a veterinarian engaged in training horses for Olympic equestrian events.” These sales were nonetheless intended to dope these horses using the same line of allegedly untestable, mislabeled and falsified Fishman drugs.

Also this week, U.S. District Judge Mary Kay Vyskocil heard arguments from prosecutors that Fishman should have his bail revoked after she said she discovered evidence that Fishman had continued to manufacture and distribute illegal substances since his arrest. Lawyers for Fishman argued that the products it made in Florida were only intended for overseas distribution, which was not prohibited by federal drug adulteration and branding errors laws. Judge Vyskocil did not revoke Fishman’s bond as requested, but accepted an agreement between the two parties to add new restrictions to the terms of the bond. Fishman has been ordered to turn over all substances and drugs held in a storage unit in Boca Raton, Fla. To the FBI or the FDA, not to enter the unit or send agents or d ‘unit employees, and to refrain from manufacturing or distributing any drug or substance.

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