Month: December 2022

Two attorneys representing Midwest trainer Tom Swearingen, who filed a class-action lawsuit in February 2019 alleging that Hagyard Davidson McGee Associates had been falsifying dates on radiographs for over a decade, have in a rare judicial move been ordered to repay the defendants' legal costs in the case, according to a decision dated Dec. 1 out of the Fayette Circuit Court in Kentucky.

In her decision, judge Julie Muth Goodman determined that Swearingen's attorneys, Mason Miller and William Rambicure, had violated civil rule (CR) 11 in bringing the case against four Hagyard veterinarians without “reasonable inquiry” to gauge the merits of their client's claims.

“Miller and Rambicure's conduct in the case became particularly egregious when they continued to prosecute the Complaint after Swearingen's written discovery responses confirmed that the Complaint's allegations regarding Swearingen's review of x-rays in the repository were untrue, that Swearingen could not prove requisite elements of his individual or class claims, and that he never qualified as the putative class representative,” wrote Goodman.

The circuit court ruling follows an appeals court ruling from earlier in the year that affirmed an earlier Fayette Circuit Court decision to dismiss Swearingen's original class action complaint, along with the trial court's denial of the trainer's contemporaneous motion to file an amended class action complaint.

According to attorney Mike Casey, who represents three of the Hagyard veterinarians in the case, it is “exceedingly rare” for a court to grant Rule CR 11 sanctions against attorneys.

“And frankly, we don't ask for them unless we believe the conduct was egregious because people have a constitutional right in Kentucky to file a lawsuit,” said Casey.

“However, that can only be filed if there's a good faith basis for that complaint to be filed. That's what the court said—and the court of appeals–that there was never anyone to bring this lawsuit,” said Casey. “It's ironic to file a lawsuit for fraud and it ends up being a fraudulent lawsuit.”

According to last week's court order, Miller and Rambicure are required to pay “jointly or severally” the defendants' reasonable attorney fees and costs “from the day following the tendering of discovery responses until the date of this order.”

These “costs and fees” preclude those associated with the plaintiff's appeals court case. “This Court lacks jurisdiction over filings in matters before the Court of Appeals,” Goodman notes.

Casey declined to comment on the amount Miller and Rambicure will be required to pay, adding that he would first have to discuss the matter with three other law firms representing the defendants.

It is currently unclear if Miller and Rambicure will appeal last week's circuit court decision. They did not respond to an emailed request for comment before deadline.

In his original complaint, Swearingen claimed that he had purchased two dozen horses at Keeneland during the time the time the Hagyard veterinarians had allegedly been falsifying dates on the X-rays placed on file at the sales, and suggested he would not have purchased the horses had he known about the alteration.

It later transpired that Swearingen had never viewed or relied on X-rays during the years in question, nor did he have a veterinarian examine the X-rays.

“While it is certainly questionable whether the Complaint should ever have been filed, it should have become clear to Miller and Rambicure that their Plaintiff's case was completely groundless when Swearingen's discovery responses and deposition testimony indicated that he had never accessed Keeneland's x-ray depository and therefore could never have made purchasing decisions based on the misdated x-rays,” Goodman writes.

“Both Miller and Rambicure could have, and should have, dismissed the case at this point, and their decision to continue prosecuting the case anyway was egregious enough to merit an award of sanctions. The Court, therefore, in its discretion, finds it appropriate to compensate the Defendants for attorney's fees and other costs incurred past this point in the litigation, beginning the day following the tendering of Swearingen's discovery responses.”

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