Judge Dismisses Class-Action Suit Against Hagyard Over Radiographs

At a pretrial conference Thursday, Fayette County Circuit Court Judge Julie M. Goodman dismissed a civil complaint against Hagyard Davidson McGee Associates, four Hagyard surgeons and Lexington accounting/consulting firm Dean Dorton Allen Ford. Goodman ruled owner/breeder Tom Swearingen, who filed the class-action suit in February 2019, did not fit the criteria of his own complaint based on his testimony in a deposition last month.

Swearingen had filed his complaint based on the admission by some Hagyard veterinarians that they had misdated repository radiographs prior to major Thoroughbred auctions to deal with scheduling woes. Swearingen claimed he had relied upon those radiographs, and had he known the dates were inaccurate, he would not have purchased horses at Keeneland auctions throughout the past several years.

But during a deposition of Swearingen in February, attorneys for the defense uncovered a serious discrepancy in Swearingen’s account of the facts – Swearingen said he never hired a veterinarian to review radiographs in the repository prior to purchasing horses, and that he instead read radiograph reports on horses himself. Swearingen primarily bought horses at low price points, and said it was not good business to hire a veterinarian to read radiographs for him.

Veterinarians and attorneys have repeatedly discouraged buyers from relying exclusively on reports furnished by consignors, pointing out those reports aren’t designed to be read by buyers, who may have various tolerance levels for different radiographic findings.

Further, Swearingen’s deposition revealed, he did not know whether any of the horses he bought between 2007 and 2016 had their repository radiographs taken by Hagyard veterinarians, and he did not even know the individual surgeons he sued prior to becoming involved in the lawsuit.

Attorneys in court Thursday and at a motion hearing in late February raised questions about the origin of the entire lawsuit, as Swearingen seemed to suggest during deposition he may have been recruited to sue the clinic by Kentucky horseman Hal Snowden. Snowden, as revealed by Swearingen’s attorney Mason Miller, had a consulting contract with Miller’s law firm, which would come to represent Swearingen in the case. That contract started in June 2018 and terminated when the lawsuit was filed.

At that time, Miller’s firm was representing three associate veterinarians in a separate, contract case against Hagyard. It was in that contracts case that the issue of misdating radiographs first arose, and eventually led several Hagyard veterinarians to self-report to the Kentucky Board of Veterinary Examiners for violations of the veterinary practice act. The contracts case was settled out of court after a judge granted the associates’ motion for summary judgment.

Documents provided by Miller also showed that he worked with Snowden on the initial complaint as well as Swearingen (though Miller said he spent “four times” as much time discussing the complaint with Swearingen as with Snowden).

Swearingen’s initial complaint was a class-action suit, meaning he was allegedly the representative of a broader class of unidentified auction buyers who he said were similarly impacted by the misdating of radiographs. Judge Goodman pointed out that the civil case has received considerable media attention in both racing trade press and local press, and yet Swearingen was the only representative of the class who had come forward.

Goodman said her decision was based on legal precedent requiring a class to be identified and represented prior to the filing of a suit — the idea being an attorney may not invent a theoretical class of impacted people, bring a suit, and then use the legal discovery process to identify class members. Attorneys are also not permitted to recruit people to bring new civil actions (though they may advertise in search of additional plaintiffs in an existing class-action suit, once the class has been “certified” by the court). Goodman said Swearingen was the only representative member of his class on the suit, and he did not match his own complaint.

It remains unclear what exactly prompted the discrepancy between Swearingen’s complaint, his deposition, and a later affidavit in which he claimed his answers during deposition had been misunderstood and influenced by an intimidating attorney. After watching video of the deposition, Goodman said she could find no instances of real or perceived intimidation, and that Swearingen seemed to understand perfectly well the questions being put to him.

Goodman said “the court was concerned” about what appeared to be inconsistencies in documents filed on behalf of Swearingen by his attorneys – particularly since she believed, after watching video of the deposition, that Swearingen had been “candid, honest, and took his oath seriously.”

“The Court’s belief is the affidavit was written to protect the attorneys,” Goodman said at one point. “I have no fault with Mr. Swearingen. I don’t want him to feel this court places liability on him.”

Goodman had suggested at a motion hearing in February that Swearingen consider retaining separate counsel from the lawyers who had handled the suit for him up to this point. Swearingen arrived at Thursday’s hearing with an additional attorney – who Miller told the court was being paid by Miller’s law firm.

Individual Hagyard attorneys still have a motion before the court requesting reimbursement for legal costs associated with the suit.

The post Judge Dismisses Class-Action Suit Against Hagyard Over Radiographs appeared first on Horse Racing News | Paulick Report.

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