Judge Vacates Earlier Action Dismissing Lasix Lawsuit

A Franklin County Circuit Court Judge has vacated his previous order dismissing a lawsuit filed by the Kentucky Horsemen's Benevolent and Protective Association against two racetracks that have implemented rules prohibiting the race-day use of Lasix in 2-year-olds.

In his latest ruling, Judge Thomas Wingate agreed with legal papers filed by KHBPA attorneys that the judge should "alter, amend, or vacate" the June 1 order dismissing the lawsuit. Following a May 27 hearing to consider a request from the KHBPA for a temporary injunction to prevent the Lasix rules from being implemented, Wingate had ruled the horsemen's organization lacked standing to bring the litigation.

The question of standing addresses the ability of the KHBPA to bring the litigation based on its connection to, and harm caused by, the rules in question. The KHBPA challenged Wingate's dismissal, arguing it was not given sufficient opportunity to "address standing and that the Court's Order considered matters outside of the pleadings" during the hearing, Wingate wrote in the latest ruling. "Moreover, the Plaintiff contends that Defendants' motion to Dismiss for Lack of Standing was not properly before the Court at the May 27, 2020, hearing, thus, Plaintiff believes that the Court erred in granting the motion."

During the hearing Wednesday, attorney Mike Meuser said if adequate notice had been given that standing would be an issue during the May 27 hearing, an affidavit from trainer John Hancock would have been submitted for consideration that would establish the KHBPA's right to bring the lawsuit. As it was, according to Meuser, the issue of standing was raised by the defendants' attorneys less than 24 hours before the hearing.

MITCHELL: Status of Dismissed Lawsuit to Block Lasix Ban in Flux

This year, Churchill Downs and Keeneland have imposed a prohibition on race-day use of Lasix in races for juveniles during their recent race meets.

Lasix, the brand name for the diuretic furosemide also known as Salix, is often given to prevent exercise-induced pulmonary hemorrhaging, also known as bleeding, in racehorses, though its use has become so widespread that even horses who are not bleeders regularly race with it. Bleeding can negatively affect performance.

In Hancock's affidavit, he talks about Cuz, a colt he raced at Churchill Downs May 22 who bled during the race and finished seventh. During a July 29 hearing, Meuser said this incident clearly shows a horseman who has been economically injured by the new rule.

Attorneys for the racetracks and other parties that are the defendants filed a joint response "reasoning that Plaintiff was not denied the opportunity to establish standing because Plaintiff was well aware that Defendants intended to raise the issue of standing" at the May 27 hearing and had submitted two affidavits to that effect before the hearing, Wingate noted.

"While Defendants correctly assert Plaintiff is the 'master of its own complaint,' The Court understands Plaintiff's position that it was not given adequate time, once standing was raised, to sufficiently address the issue prior to the Court dismissing the Complaint for lack of standing," Wingate wrote.

Wingate said the "Court will vacate the portion of the June 1, 2020, order dismissing this matter for lack of standing," he said.

The judge said "the Court is prepared to decide this matter on the merits and anticipates this matter will be decided on competing motions for summary judgment."

He directed the parties in the lawsuit to tender the court a briefing schedule and to contact the court to arrange oral argument for continued review.

While the KHBPA could have appealed the judge's ruling instead of making a motion to vacate the decision, Meuser pointed out that leaving the decision in place could have set a dangerous precedent for the association and hurt future opportunities to challenge medication rules in Kentucky.