located on each foot, and were in the exact spot where the collar worn on the feet during the Show would "bang" as the feet moved up and down. In In re Whaley, supra, 35 Agric. Dec. at 1523, it is stated: Respondent Groover testified that the horse was not sored. In addition, the respondents argued that complainant did not use a swab test, photographs or thermographs. . . .§ "As held in In re A.S. Holcomb, HPA Doc. No. 18, 35 Agr Dec [1165, 1167] (decided July 26, 1976), the professional opinion of a Department veterinarian based on his physical examination of a horse is sufficient to support a finding that a horse was sored. In In re Gray, 41 Agric. Dec. 253, 254-55 (1982), it is stated: Experience in many Horse Protection Act cases over the years demonstrates that many horses which have been sored show evidence of pain only on the anterior portion of the legs or only on the posterior portion of the legs. This is not unusual and does not discredit evidence that the horse was sore. It is not a necessary part of complainant's proof for the Department's veterinarians to guess or determine accurately the exact procedure used to sore a horse, e.g., whether by chains, chemicals or a combination of both. It is sufficient if the proof adequately demonstrates that the horse was sore. [Footnote omitted.] Moreover, the statute raises a presumption that a horse is sore "if it manifests abnormal sensitivity or inflammation in both of its forelimbs or both of its hindlimbs" (15 U.S.C. § 1825(d)(5)). There is no requirement that the horse manifest abnormal sensitivity on both the anterior and posterior surfaces of its forelimbs or hindlimbs.. In In re Holcomb, 35 Agric. Dec. 1165, 1167 (1976), it is stated: It is to be expected that in many, if not most, cases under 53 Agric. Dec. 1232 the Horse Protection Act, the only evidence of soring will be the Respondents also contend that horses are typically sored on the anterior portion of the front legs, but the quotations above show that it is not unusual to have a horse sored only on the posterior portion of the front legs. In Edwards, it is also explained that veterinarians can distinguish between a pain reaction from palpation and a high-strung or nervous horse, or a horse that is silly about its feet, as follows (49 Agric. Dec. at 202-03): Respondents' reply to the section 1825(d)(5) presumption, and the Complainant's evidence, is the wholly untenable assertion that both horses were silly about their feet and that was the cause of their responses. This assertion is without any basis. All four United States Department of Agriculture doctors testified that they are familiar with high-strung, or nervous, or silly horses and follow a simple procedure to distinguish such horses from those that are experiencing pain. That is, they look for, and in both cases found, specific spots which were painful when palpated. As testified to by Drs. Riggins and Jordon, they conduct their examinations in a consistent fashion palpating different areas of the horse's front legs looking for indications of pain. After finding what appear to be pain responses evidenced by the horse trying to jerk its foot away, they move to other parts of the leg and then return to the spot where they previously got a response. If the horse again gives a pain response they will go away from that spot and come back. This is done to be certain it is a pain response and not just a "silly" reaction. (Tr. 61, 103). As Dr. Riggins testified: ... - if a horse is silly about his foot, you can be holding it and you can touch him anywhere and the horse is going to move. And the way to differentiate if he's sore or not is I will - a certain spot if that horse is moving when I touch that certain spot, I'll go around to other places. I might even go further on his leg and palpate it. And the horse, if he's silly about it, you can tell other places where I know there is no pain, he exhibits some response, I know he's kind of silly. But then I can go back, if you get pain response every time you go back there, well, then, you know it's pain instead of being silly about his foot. (Tr. 61-62). A nervous or silly horse will have a reaction upon palpation anywhere. "Eb's Little Princess" and "Great Big Country" both responded only when a small area was palpated and both showed the response repeatedly when palpated there, but showed no response when palpated elsewhere. The record in the present case similarly shows that the Department's veterinarians--both of whom had helped put on training courses to train USDA veterinarians (and DQPs) in detecting soring (Tr. 11, 139), and one of whom (Dr. Knowles) had checked over 8,000 to 10,000 horses for Horse Protection Act violations since 1974 (Tr. 12), and the other of whom (Dr. Crichfield) had also checked several thousand horses for HPA violations since 1973 (Tr. 139, 161)--could distinguish between a pain response to palpation and some other condition or circumstance, such as being excited, nervous, or "silly" about the feet (Tr. 40-49, 91, 96-99, 102, 126, 176-83, 205-13, 222). Dr. Crichfield explained his examination procedure, which is "the same on all horses, to the best humanly possible" (Tr. 205), as follows (Tr. 178-80, 183, 205): A. Okay. My usual examination consists of actual hands-on examination. Before I examine the horse, I just look at him, in general, observe some general things about the horse. And I try to see the horses, at some point in time, while they're 53 Agric. Dec. 1232 moving, either coming towards me or going away, or maybe both, if the opportunity presents itself. But then, for the hands-on examination, I'll approach the horse on the left side, I make a habit of starting on the left side. And I usually touch the horse up around the neck or shoulder region with my left hand and then proceed down the left forelimb of the horse, get down around the knee or carpal joint there. I'll start observing and palpating the tendons down the posterior or rear surface of the canon bone and go down into the area of the fetlock and ask the horse to give me his foot by kind of scratching him or tickling him or maybe just lightly apply a little pressure to the back of the fetlock joint there with my thumb and forefinger. A lot of these horses will pick their foot up and give it to you, some of them won't, and you'll have to just reach down and pick it up. But, I get the horse's front foot in my hand, in a flexed position, where I can observe the posterior surface of the pastern and I look at -- look at it visually for signs of loss of hair, abuse, thickening of the skin, whatever. And, at the same time, I will start to palpate the posterior surface of the pastern. And I'll palpate that thoroughly, over the bulbs, the heels, and then sulcus or pocket of the pastern. And then I'll change positions and move the limb forward across my right thigh and hold it with the canon bone area above the fetlock with my left hand, and palpate the pastern area, then, with my right hand on the lateral, which is the outside surface and the anterior surface, which is the front surface and the medial surface, which is the inside surface. And when I've finished with that limb, examining it -- at the same time I'm palpating this limb, I'm observing the horse for any signs that he might give that I've detected a sore spot on him. And then I'll -- when I finish that limb, I'll put that limb down on the ground and go over and do the exact same thing to the right limb. Q. All right. Dr. Crichfield, when you're palpating a horse, can you show us what portions of your thumb you would use to examine the horse? A. Yeah. I use the under surface of the thumb, commonly called the ball of the thumb, the flat of the thumb. We teach in the courses not to palpate these horses with the points of your thumb or the ends of your fingers, not to probe into them, but to just apply pressure with the flats of your fingers and the flats and ball surfaces of your thumbs. Q. Dr. Crichfield, in regards to Tennessee Walking Horses, can you describe to us whether or not they're used to being handled by people? A. Yes. I'd say the Tennessee Walking Horse is used to being handled. He's put into training, usually, at about 18 months. And he gets a lot of handling, a show-type Walking Horse does. Q. And you conduct exactly the same exam on all horses, to the best humanly possible? A. Yes, sir, that's correct. Q. And you apply the same amount of digital pressure, to all horses, to the extent possible? A. Yes, sir. Dr. Crichfield testified that he can differentiate between a horse that is nervous, anxious, or silly about its feet from a horse in pain, because the pain responses are always coordinated with his palpation and repeatable, as follows |