Sanctions Against Swearingen's Attorneys Ends Lawsuit

Sanctions have been paid that bring to a close a class action lawsuit that began with allegations of fraud related to misdated radiographs in the Keeneland sale repository and disintegrated into a dismissal of all allegations followed by penalties for misconduct assessed against the attorneys who filed the suit.

Defendants Dr. Michael Hore, Dr. Michael Spirito, Dr. Dwayne Rodgerson, Dr. Robert Hunt, and Hagyard Davidson McGee (now operating as Hagyard Equine Medical Institute) filed a notification Aug. 14 with Fayette Circuit Court, Division 4, to give "the court and the parties notice of the full and complete satisfaction of that certain judgment entered in its favor therein on Dec. 19, 2022."

The judgments issued in December were sanctions and other costs totaling $146,883 levied against Lexington attorneys Mason Miller and William Rambicure, who in early February 2019 filed the class action suit on behalf of horseman Tom Swearingen, alleging that altered dates on digital radiographs caused buyers at the Keeneland sales in 2007-2016 to acquire horses they would have not otherwise purchased.

Swearingen's complaint specifically stated he represented a putative class of buyers who, "if it had been disclosed to them that some portion of the x-rays in the repository had fraudulently altered dates, the number of which and the identity of which could not be determined, would not have purchased such horses at the sale(s) in the first instance." Swearingen also represented that he "would review or have his agents review the radiographs of such horse" prior to making a purchase.

During a deposition Feb. 11, 2020, however, Swearingen said under oath that he never used the repository or had a veterinarian go to the repository to review images on his behalf. He also said he did not look at the dates on x-rays or know whether any images actually misrepresented the condition of any horse in a sale. Additionally, during the course of the litigation—knowing that some repository images could be misdated—Swearingen purchased a horse at Keeneland in 2019.

Swearingen's February 2020 deposition also was not the first time he admitted to not using the repository nor having a veterinarian review radiographs on his behalf. He made the same statements during his initial responses during discovery. According to court records, Miller and Rambicure's legal team spent "96 hours of time drafting and revising" Swearingen's discovery testimony.

"These statements invalidated the key allegations of Swearingen's individual class action claims. Nonetheless, Miller and Rambicure continued prosecuting the complaint," stated a court summary of the case.

Fayette Circuit Court Judge Julie Muth Goodman dismissed Swearingen's case March 24, 2020, and three days later the defendants filed for sanctions against Miller and Rambicure for violating Court Rule 11, specifically for filing a motion without merit and then continuing the case when Swearingen's testimony contradicted the original complaint.

"In the court's eyes, Miller and Rambicure's choice to continue prosecuting the case past this point was particularly egregious and therefore worthy of sanctions under CR 11," wrote Goodman.

The following sanctions of $146,883 (rounded to the nearest dollar) have been paid by Miller and Rambicure to the defendants:

• Hore, Spirito, and Rodgerson entitled to reimbursement of $56,015 previously paid to Casey, Bailey and Maines;
• Hunt entitled to $20,212 previously paid to Miller, Griffin and Marks;
• Hagyard-Davidson-McGee Associates entitled to $46,065 previously paid to Frost Brown Todd;
• Dean Dorton Allen Ford entitled to $20,841 previously paid to Wyatt, Tarrant & Combs; and,
• Hore entitled to $3,750 previously paid to The Getty Law Group.

Miller and Rambicure did appeal Goodman's order granting the sanctions and the veterinarians then filed a cross-appeal, according to one of the defense attorneys. Miller and Rambicure then dismissed their appeal and were assessed an additional sum as consideration to dismiss the cross-appeal, which is being filed with the court.