Status of Dismissed Lawsuit to Block Lasix Ban in Flux

Franklin (Ky.) Circuit Court Judge Thomas Wingate left the door ajar for a legal challenge by the Kentucky Horsemen's Benevolent and Protective Association against rules enacted this year by two racetracks that have prohibited the race-day use of Lasix in 2-year-olds.

Though Wingate ruled June 1 that the horsemen's organization lacked standing to challenge the rules implemented by Churchill Downs and Keeneland, he said at the end of a 12-minute July 29 hearing that he would study the merits of the arguments presented and consider whether to set aside, vacate, alter, or amend his opinion.

"My clerks want to get to the merits of this, but I'm going to have to study it. I really will and give it a look," Wingate said "I will have an order for you in a couple of weeks."

In his ruling, Wingate dismissed the Kentucky HBPA's suit because it had "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," Wingate's order stated.

During Wednesday's hearing, attorney Mike Meuser said the Kentucky HBPA did not get adequate notice prior to a hearing held May 27 that standing, or the right to sue based on connection to and harm caused by the rules in question, would be a predominant issue deciding the outcome. If adequate notice had been given, he said, then an affidavit from trainer John Hancock would have been submitted for consideration. As it was, according to Meuser, the issue of standing was raised by the defendants' attorneys less than 24 hours before the hearing.

Hancock's affidavit is important, Meuser argued, because he raced a colt named Cuz at Churchill Downs May 22 who bled during the race and finished seventh. Lasix, also known as Salix, is the brand name for the diuretic furosemide, which is given to prevent exercise-induced pulmonary hemorrhaging in racehorses and can negatively affect performance.

"In your opinion, you said we had not identified anyone who has been injured by this regulation, but if we had the opportunity to respond, we would have filed Mr. Hancock's affidavit," Meuser said. "He was injured. He was forced by Churchill to run a horse in a race without Lasix and the horse bled."

In addition to believing the Kentucky HBPA has standing to sue, Meuser said Wingate's ruling as it stands is concerning because it sets a damaging precedent for the organization.

"The reason we filed this motion is that to have a binding legal precedent that our organization does not have standing to challenge medication rules in Kentucky will have a profoundly negative effect on us going into the future," Meuser said.

Hancock's affidavit has no bearing on the relevance of standing in this case, argued attorney Steve Loy, representing Keeneland; Jennifer Wolsing, the general counsel for the Kentucky Horse Racing Commission; and Louisville attorney Don Kelly. Loy specifically noted that Hancock also raced a 2-year-old filly named Hopeful Princess at Churchill Downs May 21 who won.

"In their motion to alter, they don't even challenge the merits of the decision," Loy said during the Wednesday hearing. "Their motion to amend is improper, but more importantly, all it shows is that some trainer was able to enter horses into races. He won one and he lost one. It shows no harm. If they are concerned about precedent, we suggest they can appeal this decision. We think it is a sound opinion. We are confident it will stand scrutiny."

Wolsing added that Hancock's affidavit merely reflects what each member of the Kentucky HBPA faces every day of their careers.

"Some members are going to win, and some members are going to lose. Regardless of this case's outcome, the HBPA members will be no better and no worse off overall," she said.

Meuser said Loy's and Wolsing's positions overlook the most important detail in Hancock's testimony.

"Omitted in every reference to Mr. Hancock's affidavit is that he didn't just win a race and lost a race, but that in the race he lost the horse bled. That is what this entire suit is about, the regulation of a beneficial medication on their young horses," Meuser said. "I don't agree there is not a showing of an injury from that affidavit."