Court of Appeals Affirms Dismissal of Repository Case

The Kentucky Court of Appeals affirmed Feb. 11 the dismissal of a suit brought in 2019 claiming damages from post-dating of radiographs filed with a repository at Keeneland before its horse sales. The suit was filed by attorneys for Tom Swearingen in Fayette Circuit Court in Lexington.

Swearingen and his attorneys, Mason L. Miller and William C. Rambicure, sought to reach class-action status along with persons or entities similarly situated to Swearingen—but didn't come close. After a hearing on March 5, 2020, the case was dismissed by Judge Julie Goodman based on Swearingen's own deposition testimony.

The three-member Kentucky Court of Appeals panel, with Judge Kelly Thompson presiding, unanimously affirmed the dismissal. 

Defendants in the suit were Hagyard Davidson McGee Associates, Dean Dorton Allen Ford, Dr. Michael T. Hore, Dr. Robert J. Hunt, Dr. Dwayne Rodgerson, Dr. Michael Spirito, and "John Does 1-100."

In his complaint, Swearingen, an owner/trainer, claimed he was a representative of a class of buyers at Keeneland since 2006. He claimed he was caused damages because radiographs in a Keeneland repository allegedly were falsely dated by veterinarians to fall inside an allowed pre-sale window of time. The vets then allegedly destroyed the radiographs to conceal evidence, according to the lawsuit.

Swearingen alleged financial losses on horses he either would not have purchased or that he would not have paid as much for had he known the radiographs were not taken on the date identified.

The veterinarians named as defendants in the suit self-reported to the Kentucky Board of Veterinary Examiners that they had in fact modified the dates on radiographs submitted to the Keeneland repository.

The case went south when the defendants' attorneys took Swearingen's deposition. Goodman found the complaint contained multiple claims in direct contradiction to Swearingen's own testimony and that Swearingen admitted he could not describe any damages to his business. Swearingen said he never reviewed any of the radiographs in question, never had a veterinarian review them, and had never relied on them in making a purchase at Keeneland.

After all that, Goodman found as a matter of law Swearingen was unable to assert he was a member of the very class of plaintiffs he attempted to assemble in the lawsuit. The Court of Appeals agreed with that conclusion in its decision released Friday.

The appellate court also affirmed Goodman's decision to deny an attempt by Swearingen's attorneys to amend his complaint after his deposition, finding it untimely filed.