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Appeals Court Upholds Dismissal Of Swearingen Claims Against Hagyard Veterinarians

The Kentucky Court of Appeals has upheld a lower court's dismissal of a civil claim by owner/trainer Tom Swearingen against Hagyard Equine Medical Institute and a handful of its partners regarding the misdating of radiographs.

A Fayette Circuit Court judge dismissed the 2019 case, which was based on the practice of some veterinarians of forward-dating pre-sale radiographs to make them appear to fall in the required window in relation to a horse's sale date. A handful of veterinarians from Hagyard self-reported to the Kentucky Board of Veterinary Examiners for engaging in the misdating or for being aware of others using the practice and not reporting them. Those veterinarians indicated they misdated the records in order to help manage large caseloads ahead of major public auctions.

Swearingen had claimed in his original case that had he known he was potentially bidding on horses whose radiographs were not presented accurately that he would not have participated in the public auctions in question.

According to a report by the Lexington Herald-Leader, an appeals court found though that Swearingen and other buyers “did not suffer any traditionally quantifiable or calculable damages, did not purchase any injured horse in reliance upon an incorrectly dated x-ray, did not lose money on a horse purchased and, seemingly, had no regrets regarding their purchase.”

In a proceeding in the lower court, Swearingen admitted he didn't use the digital repository at auction, and did not send a veterinarian to do so on his behalf. He later tried to file an amended complaint against the plaintiffs, which included the hospital, several individual veterinarians, and the hospital's computer and IT services provider, but was prevented from doing so.

Swearingen has the opportunity to petition for a rehearing and has until March 3 to notify the court if he wants to do so.

Read more at the Lexington Herald-Leader

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R Adios Jersey Disqualified From Charles Town Oaks For Flunixin Positive; Owners To Appeal

R Adios Jersey, who finished first by 3 1/4 lengths in the Grade 3 Charles Town Oaks last Aug. 27 at Charles Town in West Virginia, has been disqualified from the win due to a positive test for the anti-inflammatory flunixin, also known by its brand name, Banamine. Flunixin is a Class 4 drug with a Category C penalty designation under Association of Racing Commissioners International guidelines.

The ruling was issued Feb. 10 following a Feb. 1 stewards hearing.

The Adios Charlie filly's owners, Averill Racing LLC and ATM Racing, will forfeit the first-place purse of $230,400 and be placed last. Trainer Georgina Baxter has been fined $1,000.

With the disqualification, Stonestreet Stables LLC's Pauline's Pearl will be elevated to the win, with Allworthy second, and Caramel Swirl third.

Anthony Mattera of ATM Racing said the ruling will be appealed.

According to the ruling, Industrial Laboratories reported the positive finding at a level of 1,121 ng/ml, well above the permissible limit of 5 ng/ml. A split sample requested by Baxter confirmed the presence of flunixin at a level of 985 ng/ml. DNA testing requested by Baxter matched the blood sample with the DNA on file for R Adios Jersey.

The ruling states that “the trainer admitted to the treatment of the horse 'R Adios Jersey' with flunixin or ketophen and thought the treatment was done within the withdrawal guidelines and dosing specifications … to avoid a positive.”

Mattera said the horse was “pre-raced” 48 hours before the Charles Town Oaks with ketophen, not flunixin. He added that R Adios Jersey was stabled in a barn with horses from a Charles Town trainer and that records showed that two horses in nearby stalls were treated with flunixin when R Adios Jersey was there.

Stewards listed several mitigating circumstances, one of which states that Baxter “has no violations in this class category in the last 365 days.” According to the MyFloridaLicense.com website, Baxter has had six complaints filed against her for Class 4 medication violations since August 2018, most recently on Nov. 5, 2020. Baxter received a 15-day suspension and $1,500 fine for a methocarbamol positive detected in Alabama Slammer after a maiden claiming victory at Gulfstream Park West Nov. 5, 2020.

R Adios Jersey has finished first in all six of her starts, most recently in the FTBOA City of Ocala Florida Sire Stakes at Tampa Bay Downs on Dec. 11. The Charles Town Oaks was her only graded stakes start.

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Report: Misconduct, Improprieties Identified At New York State Gaming Commission, Breeding Funds

Fourteen gaming inspector reports released to the Times-Union have identified misconduct and improprieties among New York State Gaming Commission staffers as well as at two funds that offer financial awards for horses bred in New York.

According to one report, Yonkers Raceway judge Nicholas Ferriero officiated harness races that his family members participated in, and in “extremely suspect” behavior, sent thousands of text messages to a few horse racing participants while he was officiating.

Multiple Gaming Commission employees were reported to have participated in fantasy sports pools and other prohibited gambling, including while at work.

Jeffrey Tallarino, formerly a judge at Vernon Downs, reportedly engaged in inappropriate behavior including giving a “phallic-shaped cake” to another employee, and a Gaming Commission employee took “retaliatory” steps against a female staffer who came forward about Tallarino. The Gaming Commission was also reported to have delayed administrative action when allegations against Tallarino were made.

Former state steward for the New York Racing Association, Steve Lewandowski was reported to have improperly withheld purse money from owners on more than one occasion.

Brad Maione, spokesman for the NYSGC, said that to the commission's knowledge, none of the matters in the released reports were referred to federal, state, or local law enforcement agencies.

Two state racing funds, the Agriculture and New York State Breeding Development Fund and the New York State Thoroughbred Breeding and Development Fund, were identified in those reports to have members in leadership positions who either participated in the programs or benefited from the funds.

Oregon Justice Department Attempts To Clip Wings Of Grants Pass Downs’ Future Plans

The Oregon Justice Department issued an opinion on Friday that historical horse racing machines are unconstitutional games of chance, reports oregonlive.com.

Travis Boersma, founder of Dutch Bros coffee kiosk chain with his brother in 1992, has spent $50 million refurbishing the racetrack at Grants Pass Downs and building the Flying Lark next door. A total of 225 HHR machines were to have been the centerpiece of the Flying Lark, helping to revitalize horse racing in the state of Oregon. Boersma has said he will shut down the racetrack if the machines are not allowed.

Oregon's Native American tribes, operators of the only full-service casinos in the state, have lobbied hard against Boersma's plan since last fall. Ultimately Gov. Kate Brown directed the commission to wait to approve Boersma's plan until the justice department could issue a legal opinion.

The Justice Department opined that HHR machines “do not afford players any meaningful opportunity to exercise skills,” but the final decision lies with the Oregon Racing Commission.

“I believe the Oregon Racing Commission is acting in good faith and the process will ultimately reveal The Flying Lark to be a legal venture that serves to improve Oregon's economy,” Boersma said. “I remain committed to saving horse racing in Oregon, providing family wage jobs in southern Oregon and working closely with tribal leaders to ensure all Oregonians benefit from the opening of The Flying Lark.”

Portland Meadows, an Oregon racetrack which closed in 2018, offered HHR machines without any legal interference from the state.