Attorneys Sanctioned in X-Ray Case Against Hagyard

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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Race to Give Kicks Off Friday

The second annual “Race to Give,” an online giving and awareness campaign running from Oct. 7 to Nov. 12 in support of Thoroughbred aftercare, was launched Friday by its organizers, Hagyard Equine Medical Institute and Thoroughbred Charities of America (TCA).

RaceToGive.org will again serve as its central hub.

“2022 marked Hagyard Equine Medical Institute's 146th year caring for the equine industry,” said Dr. Luke Fallon, DVM, of Hagyard Equine Medical Institute. “These equine athletes have given us so much over the last century and a half. Our veterinarians created the Race to Give to demonstrate our appreciation. Leading an effort to support the critical area of aftercare in conjunction with other leading horse racing organizations was the right thing to do. I hope that last year's generous donations of over $125,000 are just the beginning of what we can continue to do for aftercare support. I look forward to seeing this event grow even more in its second year.”

RaceToGive.org encourages peer-to-peer fundraising with a call to the Thoroughbred industry to create teams and to challenge each other to raise funds for aftercare in fun and creative ways.

“The highlight for me last year was seeing the diversity of donations Race to Give received,” said Ken Ford, CEO of Hagyard Pharmacy. “Traditionally the same people and groups are the ones always supporting aftercare. Race to Give demonstrated that the people who have a heart for caring for horses after their careers are over is more widespread than we have seen in the past. That's the difference we are so fortunate to be a part of. This is an initiative that people in our industry can be proud of and also, we should appreciate the horse enthusiasts and the casual fans who made donations too.”

The number of organizations that have come alongside Hagyard and TCA is impressive and demonstrates the positive support of Thoroughbred aftercare. Organizations including Keeneland, FanDuel TV, Thoroughbred Daily News, Churchill Downs, Thoroughbred Aftercare Alliance, and Resolvet have stepped forward to offer their support.

“It was excellent to see how everyone came together to raise over $125,000 in its first year,” said Mike McMahon, TCA President. “It was incredibly rewarding to be part of an initiative that was able to help so many different groups. TCA was able to use these generous donations to help 55 different aftercare programs. I hope that, in its second year, all of the people who participated last year will be able to share that enthusiasm and pass it on to their friends as well.”

To create or join a team or make a donation, visit RaceToGive.org and follow the program at #aracetogive. All funds raised will be allocated to TCA for distribution to approved grant applicants. All donations are tax deductible and tax receipt will be provided by TCA.

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Speakers Announced for TOBA Seminar

The Thoroughbred Owners and Breeders Association is hosting an Ownership Seminar on Wednesday, May 4, at Churchill Downs in Louisville, Kentucky. Attendees will learn insights on different aspects of Thoroughbred ownership from industry professionals and enjoy a day of racing at Churchill Downs during the week of the Kentucky Derby. Topics include, but are not limited to, Thoroughbred veterinary care, aftercare, purchasing & managing of racehorses, equine insurance, and handicapping basics. Some of the speakers include trainer Kenny McPeek, Erin Halliwell of Thoroughbred Charities of America, and Dr. Russell Freeland, DVM, DACVS-LA from Hagyard.

The TOBA Ownership Seminar is aimed towards all levels of education – from prospective to new owners, to knowledgeable owners or industry professionals and enthusiasts looking to continue their education. The seminar is open to the general public, with a special discount for TOBA members. Meals, materials, access to racing in the afternoon, and a TOBA gift bag are included with registration. Registration is available online until Sunday, May 1 at toba.memberclicks.net/seminars-clinics.

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Hagyard First Private Practice To Offer Rotavirus B Testing

Edited Press Release

Hagyard Equine Medical Institute announced that they are now offering PCR testing for Rotavirus B. The Rotavirus PCR test is available as a single test or as part of Hagyard's Neonatal Panel or Foal Diarrhea Panel.

Rotaviruses are serious, life-threatening diseases that are highly contagious in foals. Rotavirus B was a novel strain discovered in Central Kentucky during the 2021 foaling season. It was quickly identified as a new strain, responsible for a wave of neonatal foals that presented with severe diarrhea between one and four days of age. Some farms even felt the effects of a 100% morbidity rate.

“This new strain caused considerable concern for our industry in the 2021 foaling season. To be able to offer testing moving into the 2022 foaling season is a great relief for our clients,” said Nathan Slovis, DVM, DACVIM, CHT of Hagyard Equine Medical Institute. His credentials also include Director of the McGee Medicine Center and he is considered a world leader in equine infectious disease response.

As with all Rotaviruses, biosecurity precautionary measures should be taken to reduce the risk of infection to other horse:

 

1) Ensure that other horses do not come in contact with the infected foal;

2) Utilize separate or disinfected tools to clean their stall or paddock, and;

3) Wear disposable gloves when working with the foal. Wash your hands when you are finished.

 

Bleach is ineffective against rotavirus, so disinfects such as Tek-Trol, Biophene, Environ, Accelerated Hydrogen Peroxide (Rescue) and Stroke-1 are examples of disinfectants that can be used.

Research is being conducted to better understand the virus and to develop a vaccine for young, susceptible horses. Current vaccines for Rotavirus A do not protect against the new B strain. To that end, Hagyard's testing and Laboratory can differentiate Rotavirus B from Rotavirus A strains.

“Being on the forefront of challenging our industry's problems is what has set us apart for the last 145 years”, Slovis continued. “Hagyard has always championed innovation to improve the care and wellbeing of these amazing animals.”

“We felt it was important that veterinarians both within and outside of the Hagyard practice have access to a lab like ours,” added Luke Fallon, DVM, who is the Medical Director of Hagyard Equine Medical Institute. “It's a crucial component of any comprehensive wellness plan.”

Hagyard's Laboratory offers its services to all veterinarians. Testing is available in blood bank, chemistry, Coggins, cytology, endocrinology, hematology, microbiology, PCR and serology.  It has also won awards for its Laboratory Information System and is accredited by the Clinical Laboratory Standards Institute.

Additional information about Hagyard's Laboratory can be found here.

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