The Kentucky Horse Racing Commission unanimously approved amendments to its claiming rules on Tuesday designed to keep horses in the state for a longer period of time after changing hands through the claim box.
The amendment with the most potential impact will likely be one extending the period of time a horse claimed in Kentucky is restricted from running out of state. Previously, horses were free to compete elsewhere after the close of entries on closing day of the meet where the horse was claimed. Following Tuesday's meeting, the restriction was moved out to 30 days from a meet's closing day.
Based on Kentucky's 2022 racing calendar, the longest wait time under the new provision would be 122 days, assuming the horse was claimed on the Jan. 1 opening card of Turfway Park's Winter Meet – the state's longest consecutive meet – which runs through April 4. At that point, the 30-day clock would start to finish the waiting period. A horse claimed on a meet's closing day would obviously have a shorter time to wait than one picked up earlier in the season.
Furthermore, the time in which a claimed horse is barred from being sold or transferred through means besides another claiming race was extended from 30 days to 60 days.
The provisions also added guidelines for who was eligible to drop a claim in the state. A licensed owner must now have made a start within the past 30 days at a Kentucky track in order to be eligible to claim a horse. The owner must still meet this criteria if they make their claim through an authorized agent.
Commission member Greg Harbut expressed concern that this provision could make it more difficult for new owners to enter the sport through the claiming route.
However, fellow commission member Mark Simendinger noted that those who don't meet the new requirement and wish to make a claim are still eligible to secure a claiming license through the stewards. A claiming license qualifies the licensee to claim one horse, at which point he or she becomes subject to the normal slate of rules for a racehorse owner. This provision was within Kentucky's claiming rules prior to the amendments.
Also of note, the new amendments limited owners to claiming one horse per race. Trainers may claim up to two horses in a single race, on the condition that they are being secured for separate owners.
“It's a breath of fresh air for the racing associations and the racing secretaries,” said commission member Bill Landes.
Those waiting for an outcome in the case of two 2018 drug positives from trainer Steve Asmussen's barn will have to keep waiting. At a regularly-scheduled meeting of the Kentucky Horse Racing Commission on Feb. 15, the commission voted to approve a request from the hearing officer in the case for an extension of time to submit her recommended order in the case, which is under appeal.
The commission, which went into closed executive session prior to voting on the request, approved it unanimously and with no further public discussion or explanation as to the reason for the delay.
Two two stewards' rulings against Asmussen were published on Nov. 30, 2019, both for a metabolite of acepromazine. The positives impacted the horse Thousand Percent, who won the second race at Churchill Downs on June 28, 2018 and Boldor, who won the sixth race at Keeneland on Oct. 25, 2018. The initial ruling following the stewards' hearing was a suspension of 60 days and fine of $2,500, but the stewards decided to reduce the suspension to 30 days concurrent for the two violations based on “mitigating circumstances (number of violations in relation to overall record).
Asmussen subsequently appealed the case, which has been open ever since. He was granted a stay of suspension while the appeals process is completed.
Acepromazine can be used as a sedative in horses.
After a licensee appeals a stewards' ruling in Kentucky, the case goes to a hearing officer, who hears arguments from both sides similarly to what would happen in a court proceeding. The hearing officer then writes a report with recommendations which is given to the commission for further determination about what action should be taken. If a licensee appeals the commission's decision, then they proceed to court.
According to statistics presented by Arizona state veterinarian Dr. Susan Gale at a special meeting of the Arizona Racing Commission on Feb. 2, 22 horses had died at the track since the start of its current meet on Nov. 5, 2021. That's a rate of 2.8 per 1,000 starts. The national average in 2020 was 1.41 per 1,000 starts.
At that meeting, a frustrated commissioner Rory Goreé went so far as to declare, “we keep killing horses like this, we're going to be out of business … and I have to ask myself – how did we get to this point?”
The commission is due to have a regular meeting on Feb. 15, where Gale will give a track safety report, presumably including updated fatality numbers. One horse who likely won't be included in that running total is Creative Plan.
The 5-year-old gelding by Creative Cause was euthanized Feb. 11 shortly after arrival at Premier Equine Rehab in California. He ran his last race on Jan. 7, a starter optional claiming event in which he struggled home last of nine.
“Upon our veterinarian's evaluation yesterday which included X-rays, it was determined Creative Plan never should have been allowed to run at Turf Paradise on 1/7/2022 and would never be able to live a life without pain, even as a pasture pet,” said Jenny Earhart, owner of Premier Equine Rehab, in a Facebook post published Feb. 12. “I asked [the vet] so many different ways [if the horse could be rehabilitated] he started looking at me like I had lost my mind.”
Earhart's veterinarian diagnosed Creative Plan with severely compromised suspensory ligaments and soft tissues in his left front leg. Both front fetlocks had osselets, but the right front was not evaluated further after the veterinarian saw the severity of the issues in the left front. That suspensory ligament was so swollen and had dropped so far against the back of the horse's leg that the skin containing it had begun to split and ooze.
An image Earhart took of Creative Plan's left fetlock prior to euthanasia showing the swelling and breaks in the skin she attributes to a failed suspensory ligament, among other issues
Earhart said she gave the horse a dignified last day before scheduling humane euthanasia.
“He got to eat grass,” she said. “When I got up to his stall, I try to stay really strong about everything, but when I got to his stall, he hobbled around and did an about face to me. He knew. He was smart. He was a good boy.
“It's mind boggling to me that it was allowed to go on. It just seemed like it was so preventable.”
For many people, the story of how Creative Plan came to be euthanized at Earhart's facility a month after his last start is a symptom of the way the system has failed to protect horses at the often-embattled racetrack.
The bay gelding began his career in summer 2019, when he was running in Maryland and Kentucky in maiden special weights. He finished third in the listed Mystic Lake Derby at Canterbury Park in 2020 and spent 2021 bouncing between New York, Louisiana and Minnesota before ending up at Turf Paradise for a $16,000 tag in a starter optional claiming race in late 2021 with Wade Rarick. On Jan. 7, trainer Curt Ferguson claimed Creative Plan from Rarick for $8,000 on behalf of his wife, Debbi.
Ferguson said in a statement to the Paulick Report that he became aware pretty quickly there was something wrong with the horse.
“When this horse came back to our barn, he was obviously lame and should've been vanned off,” read Ferguson's statement. “We picked him up from the claim pen and took him back to the barn. It was clear that the horse was injured. Having spoke[n] with the previous trainer he said 'Oh, he's been like that and in two or three days he'll be bouncing and playing.' That was true to a small degree, but I knew this horse should never race again.”
Photos taken around the time of that early January race show the horse with swelling in his front fetlocks and noticeably different pastern angles. Ferguson asked Dr. Jenyka Bergsma to evaluate and radiograph the horse on Jan. 11. One of those images would later end up in a Facebook post that went viral, and Ferguson said he did not authorize its publication.
According to veterinarians consulted by the Paulick Report, the radiographic image showed multiple serious issues in the horse's pastern and fetlock, and also evidence that the suspensory ligament had some chronic damage. The angle of the leg in the image suggested that the suspensory ligament was still seriously damaged, preventing the joint from functioning normally. With the caveat that they had not examined the horse personally, the veterinarians agreed the damage evident on that image was not all recent, and had probably been ongoing for months prior to the image capture. They also indicated the horse would have shown signs of discomfort as he incurred that damage.
There seems to be some confusion as to what happened next. In a series of stewards' meetings about the incident some weeks later, there would be conflict surrounding veterinary opinions. Ferguson and the Arizona Department of Gaming say Bergsma determined on Jan. 11 that the injury was “not severe enough to cause the horse to be euthanized and recommended stall rest at that time,” according to a spokesman for the department.
Rehoming advocates told the stewards a number of veterinarians had seen the horse's radiographs in January and declared the horse a euthanasia case then.
Ferguson ultimately gave the horse to an employee named Joey Prentice. Prentice reached out to Mary Tate and Ashlee Wolf, who co-manage a service advertising retiring horses for sale to second careers and screening potential purchasers to ensure good matches. Tate and Wolf both saw the horse on or about Jan. 17, some ten days after his race. At that point, Tate recalled, both front legs were swollen and warm to the touch and the right fetlock made a clicking noise when the horse walked. Prentice told them he wanted to list the horse for sale for $750, but Tate and Wolf were hesitant to do that without more information about the horse's prognosis.
An image taken of Creative Plan after his last race in January
“Neither of us were OK with the situation because the horse was in obvious pain standing, had an obviously dropping fetlock and he made that noise when he walked,” Tate said.
Tate offered to purchase the horse from Prentice to give him the humane euthanasia she believed was necessary. Prentice declined, and took the horse to Murphy's Livestock Auction in Buckeye, Ariz. It was there, on Feb. 5, that Tate and others saw Prentice walk the horse to the auction ring.
Tate says she bid $500 for the horse and that the underbidder at $450 was a trader well known for purchasing horses for slaughter. Tate believes Prentice recognized her, and declined to sell the horse. He would later abandon the horse at the auction house.
“When I gave [the horse] away, I was told that they were going to give him time off to heal and rehabilitate,” said Ferguson. “Sometime later I found out on wonderful, trusted social media that he was taken to an auction. It has been said he was taken to a kill auction, it was not a kill auction, and in fact kill auctions are illegal in the state of Arizona. The auction also said they do not allow kill buyers into the auction.
“The person whom took the horse to the auction pulled the horse from the sale because they believed the people bidding (were) in fact buying the horse to euthanize. There were unwise decisions made through the sale issue but when I found out that the horse was at the sale barn and then left, I instructed someone to go and get the horse and bring him to my house immediately. I was not going to allow for this horse to fall through the cracks any further and be mistreated under any circumstance.”
Accounts of the horse's trip, from claiming race to livestock auction and back again, hit social media the week after Ferguson sent a representative to pick the horse up from Murphy's, and prompted many people to cast aspersions – on Rarick, on Ferguson, and on others, which Ferguson says he feels is unfair.
An image shared on social media showed Creative Plan going through the auction ring at a livestock sale in early February
“After all of this, I am not only out the money it cost to claim the horse whom should have never raced but I have been defamed and slandered on social media from people who do not know me and did not have the facts,” said Ferguson. “Not one single fact. For people to jump on the bandwagon further spreading lies and disinformation is a horrible thing for someone to do.”
It also has people asking questions about how this could be allowed to happen.
According to Maxwell Hartgraves, public information officer for the Arizona Department of Gaming, there are two veterinarians responsible for conducting pre-race examinations on horses in the morning – Drs. Sue Gale and Jenyka Bergsma.
(The Paulick Report requested an interview with Gale but was told she could not be made available and directed a list of questions to Hartgraves instead. Bergsma did not respond to an email requesting an interview.)
Bergsma maintains an active client base on the backstretch at Turf Paradise and works as a private veterinarian when she's not doing pre-race examinations, which is why she was called to assess Creative Plan on Jan. 11 after Ferguson claimed him.
It was also Bergsma who examined the horse on the morning of Jan. 7 and cleared him as fit to start from Rarick's barn.
“The horse was found racing sound with a choppy jog (shortened stride),” said Hartgraves of the horse's pre-race exam on Jan. 7. “This was the horse's third race at the Turf Paradise meet. The two previous pre-race exams found the horse racing sound.”
Hartgraves said that in cases where there are “conflict of interest concerns” regarding a client of Bergsma's, Gale performs the pre-race examination.
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Creative Plan had a history on the veterinarian's list in other jurisdictions. He was placed on the list in December 2020 in New York for unsoundness and then cleared from the list in February 2021. He ended up on the stewards' list in New York on March 7, 2021, for poor performance in a $16,000 claimer and was cleared from the list April 22, 2021. He didn't return to the post in New York after that.
At that time, Creative Plan was trained by owner Karl Broberg, who moved the horse to Louisiana Downs for his next start on May 4, 2021, where he was fourth running for a $7,500 tag.
This image shows the condition of Creative Plan's ankles just prior to euthanasia in February. Photo courtesy Jenny Earhart
A report generated by the Arizona Department of Gaming examining the spike in breakdowns in Arizona in 2017-'18 indicated that pre-race exams were performed for the first time that season and consisted of palpation of limbs and observation of horses at a jog. At that time, horses were selected for pre-race examination based on a set of risk factors including the frequency of races and workouts, previous poor performance, age, and others. Back then, the report indicated there were consistently more horses identified as at-risk than could be examined in a day. The state's website now indicates that all horses are examined prior to racing.
Trainers who spoke with the Paulick Report have mixed opinions as to whether those pre-race examinations necessarily go the way they're outlined in state code. One indicated that horses weren't always palpated and may only have to jog a few steps, while another said the outlined procedures were consistently followed and that horses may sometimes be jogged a second time for veterinarians who wanted a closer look.
Turf Paradise general manager Vincent Francia said the track is adequately staffed in the afternoon with veterinarians to oversee racing, but was unaware whether Creative Plan was added to the veterinarian's list after leaving the claiming pen with Ferguson on the January day Ferguson said the horse came out of the race lame. Hartgraves did not indicate the horse had a history on the veterinarian's list in Arizona.
Pre-race examinations are not the only area of concern when it comes to safety oversight at Turf Paradise. There have been multiple incidents since the start of the meet in which the equine ambulance has in some way failed to assist an injured horse – one where the horse was loaded improperly, and one in which the ambulance was unable to access the injured horse.
The same state codes that guide pre-race veterinary procedures also outline procedures for some therapeutic medications. One non-steroidal anti-inflammatory drug may be given up to 24 hours pre-race in Arizona. A second may be given if it's withdrawn 48 hours in advance of the race.
There are no procedures outlined for corticosteroid administration, or any other medications being injected into the joint. When injected intra-articularly, corticosteroids can be used to promote long-term healing in a joint, but can also produce a temporary analgesic effect for a horse suffering from injury. In other jurisdictions, regulators and racetracks have set, then backed up, the administration windows for corticosteroid joint injections, citing concerns that the medication could mask pain during a race or during a pre-race veterinary inspection.
Turf Paradise racetrack in Phoenix, Ariz.
Trainer Justin Evans said from where he sits, the track was just barely able to get enough veterinarians pitching in to do morning examinations on horses, but the backstretch is still short of privately-practicing veterinarians. That can be a serious problem when it comes to pre-race medication like NSAIDs and corticosteroids, he said. When there aren't enough veterinarians around give pre-race medications, trainers may resort to doing some drug administrations themselves.
“Racetrack vets, it's a dying deal,” he said. “To be a racetrack veterinarian, it's 24/7. It's like being a trainer.
“We've got a bunch of weekday warriors. They want to practice five days a week, they don't want to work weekends. And what I'm surprised we don't have more of is bad tests. Now they're using bute paste and Banamine paste and we don't know the levels. How does the paste go through the horse's system instead of injectable? Now we've got bute paste and Banamine paste in the hands of people who might say, 'If this much is good, more is better.'
“We're missing veterinarians there day in and day out, managing these horses.”
As to the situation with Bergsma, Evans said he does worry about potential conflicts of interest that create an unlevel playing field.
“They kind of had to do it to keep the meet going,” he said. “I don't know what rule there is against it. I don't think it's ethical. I don't think a vet who's doing work for the barn across from me, and getting paid $2,000, $3,000 a month to do vet work over there, if his horse is a little sore and mine's a little sore, whose do you think she's going to scratch in the morning?
“Perception is reality.”
Francia said last week that the stewards are continuing their investigation into the Creative Plan case and have not yet determined whether they will take action against any licensees involved in the horse's last weeks.
For the racetrack's part, there is a new house rule designed to discourage anyone there from sending a horse through the slaughter pipeline. The rule appeared on the overnights last week and reads: “Anyone licensed by the Arizona Department of Gaming, Racing Division (ADOR) based at Turf Paradise who sells a horse for slaughter that was previously stabled at Turf Paradise will have his/her stalls revoked, be immediately removed from the grounds and will be denied future stall applications. The track stewards may take further action.”
Francia said the facility had had a house rule in place several years ago, but the Creative Plan case caused him to dust it off and make it harsher. The rule cannot be triggered simply by the horse appearing at an auction — Francia said a rule prohibiting someone from selling their animal this way wouldn't survive a legal challenge — but can be triggered if a horse is purchased by a kill buyer.
“There has to be some responsibility from the people involved with every horse towards that animal,” said Francia. “No track wants to have its name attached to something like this. It's morally wrong. It outrages, it hurts, it disgusts. I could go on. It makes me angry.”
Francia said the track had made inquiries about purchasing Creative Plan at one point with the goal of financing his rehabilitation before he found a home at Premier Equine.
In the end, Gale conducted an examination on Creative Plan where he landed at Ferguson's ranch and Ferguson sent him to Premier Equine with high hopes for a happy ending. It didn't pan out.
Since racetrack fatalities are typically defined as taking place within 72 hours of a racing or training event, Creative Plan's death doesn't count towards Turf Paradise's numbers.
Ferguson, Francia, and Earhart all agree that they hope he will count for something else – reform for the horses who come after him.
“Creative Plan's ankle had no support of ligaments or structure and was merely skin holding everything together, so much that it had started 'weeping' as the skin was beginning to split,” Earhart wrote on Facebook. “One wrong step and it would have been catastrophic. There was only one ethical and kind thing to do for this sweet boy, and that was to put him out of his misery.
“Please do not let Creative Plan's sad ending go unnoticed or in vain. There is no time like the present to change things, and the time is now at Turf Paradise.”
The stewards' hearing in the 2021 Kentucky Derby drug positive took place on Feb. 14, but attorneys tell Horse Racing Nation they do not know when to expect a decision. As was widely reported, first-place finisher Medina Spirit was found to have an overage of the corticosteroid betamethasone in his system after the race, which was later confirmed on split sample. Trainer Bob Baffert's legal team asserts the substance came from the topical administration of a prescription cream.
HRN reported Monday that the hearing, which was closed to the public and to press, was held via videoconference and lasted about three hours. Afterwards, Baffert's attorneys asked when a decision could be expected, but were not given a timeframe.
It is not unusual for stewards to make their rulings some length of time after a hearing has taken place, although because stewards' hearings are not open to the public in Kentucky, it's hard to know how long the turnaround typically is there. Copies of the formal rulings are available on the commission's website here.
Citing policy surrounding open cases, the Kentucky Horse Racing Commission has declined comment since Baffert made it public about a day after he was informed Medina Spirit had tested positive for betamethasone.
Baffert attorney W. Craig Robertson told HRN he was “cautiously optimistic” about the outcome for his client.
