Kentucky HBPA Asks Judge to Set Aside Lasix Ruling

Attorneys for the Kentucky Horsemen's Benevolent and Protective Association have requested a circuit court judge "vacate and set aside" his June 1 ruling dismissing the horsemen's organization's lawsuit seeking to block two racetracks from enacting rules to prohibit race-day use of Lasix in 2-year-olds.

In his ruling, Franklin Circuit Court Judge Thomas Wingate ruled that the KHBPA lacked standing to bring the lawsuit and "has failed to set forth some actual or imminent injury to at least one individual member. The complaint fails to contain a single allegation that a member of the KHBPA was unable to run a horse due to Churchill and Keeneland electing to adopt 810 KAR 8:050 as a condition for 2-year-old races."

MITCHELL: Judge Dismisses Lawsuit Seeking to Block Lasix Rules

The Kentucky HBPA sued Churchill Downs, Keeneland, and the Kentucky Horse Racing Commission over the tracks' implementation of the race conditions precluding Lasix use in races for juveniles. Churchill has been running 2-year-old races with the rule in effect, and Keeneland plans to also prohibit the use of the medication in such races during its rescheduled spring meet in July and its fall meet that will include the Breeders' Cup World Championships.

"The Court's dismissal in this case should be vacated and set aside," states the motion. "That dismissal was based on a finding that the KHBPA lacks standing to represent its members in challenging the validity of a medication regulation and the acts of the Defendants to ban Furosemide ("Lasix") in 2-year-olds racing at Churchill Downs and Keeneland. This finding was erroneous, procedurally premature, and based on an incomplete record.

"Perhaps most importantly to KHBPA, this finding threatens profound consequences to KHBPA as a precedent about its standing to represent and advocate for the interests of its members moving forward in other potential cases."

The KHBPA filing notes that Wingate's decision came during a hearing on the organization's motion for a temporary injunction that would allow owners and trainers to race 2-year-olds without the bans being enforced until the matter could be decided on the merits.

"This hearing was not scheduled to consider any motion to dismiss because no such motion had been filed," the court filing states. "Standing had not been raised. Because the matter was set for a remote hearing, rather than an in-person hearing at which testimony might be provided, KHBPA filed two affidavits in support of the Motion for a Temporary Injunction on Tuesday, May 26.

"The first was filed at approximately 3:00 p.m. that afternoon, and the second was filed at around 45 minutes later. These two Affidavits were not filed in an effort to address standing because standing had not been raised by the Defendants and the Motion to Dismiss was not then filed and set for a hearing, and the matter on the docket was solely the Motion for a Temporary Injunction."

The KHBPA filing states that at about 4 p.m. May 26, the day prior to Wingate's hearing on the request for a temporary injunction, attorneys for the defendants filed a motion "that urged dismissal based on an allegation that KHBPA lacked standing to challenge the medication ban and the regulation under which it was enacted. This was the first and only time standing was raised—18 hours before the hearing on the Motion for a Temporary Injunction set for the following morning and at the end of the business day.

"The Motion to Dismiss was not accompanied by a notice setting a hearing date for the parties to argue for and against dismissal," the filing states. "This Court's Local Rule 4 required this and required a minimum of five business days' notice be given prior to the hearing. Thus, the earliest that a hearing could be scheduled on that Motion was June 1—and no notice was given of any hearing."

In his June 1 ruling, Wingate denied the motion for a temporary injunction and dismissed the case, using the lack of standing argument made by the defendants, the KHBPA motion states.

"In dismissing, the Court held that KHBPA could not prove standing and did not cure any deficiencies after standing was raised. That order did not rely solely on the pleadings, but found as an affirmative fact that KHBPA 'cannot satisfy (the) simple requirement' that it 'represent at least one member with an injury in order to obtain relief.' 

"KHBPA also had no notice that factual findings would be made on the standing issue and it had no reasonable opportunity to present evidence to address these facts," the motion  states. "This resulted in a Court finding that KHBPA cannot satisfy the 'simple requirement' of identifying one member with standing… The finding otherwise was premature, was (not) factual, not legal, and was made without KHBPA having an adequate opportunity to address the issue—much less the minimum time required under this Court's Local Rule 4, or CR 56. It was manifestly erroneous both as a matter of law and of fact."

The motion reiterated the KHBPA's position in requesting the temporary injunction that it had legal standing to bring the legal action on behalf of its members.

Accompanying the motion for Wingate to vacate his ruling was an affidavit from owner/trainer and KHBPA board member John Hancock citing the effects of the non-Lasix rule on a 2-year-old named Cuz he ran at Churchill Downs in a maiden special weight race May 22. After being forwardly placed early in the race, the colt finished seventh, after which a post-race endoscopic examine showed he had suffered from exercise induced pulmonary hemorrhage, or "bleeding," the affidavit states.

"Because I was prohibited from administering Lasix to Cuz prior to the race on May 22, I have been directly and adversely impacted as a member and director of HBPA by the application and enforcement of the rule permitting Churchill Downs to prohibit the administration of Lasix in maiden races by conditions of the race," Hancock stated. "Had the administration of Lasix been permitted, the administration of Lasix in my experience would have prevented the colt from bleeding during the race."

The court has set a hearing on this motion for July 29 and will advise the parties as to whether the hearing will be in person or telephonically in accordance with its orders relative to COVID-19.