Little Industry Concern Over Radiograph Lawsuit

A lawsuit filed against Hagyard-Davidson-McGee and four partners, and the acknowledgement that some Hagyard Equine Hospital veterinarians misdated radiographs to meet sale deadlines, has not caused an uproar among sale buyers and sellers.

Illinois horseman Tom Swearingen filed the lawsuit after an investigation by the Kentucky Board of Veterinary Examiners concluded several Hagyard Equine Medical Institute vets misdated radiographs of sale horses in order to give the impression they were taken within the time frame listed within Keeneland's Conditions of Sale standards. The regulatory investigation resulted in settlement agreements earlier this year.

Hagyard Faces Litigation Over Repository Radiographs

Swearingen alleges in his class-action suit that a decade-long practice of doctoring dates on radiographs of sale horses prohibited him and other buyers' from knowing the actual condition of horses he purchased. Hagyard, doing business as Hagyard Equine Medical Institute, and its management have said that the suit filed by Swearingen is without merit, and that the firm will defend itself against the allegations.

Few buyers and sellers contacted by BloodHorse were willing to go on the record to discuss the lawsuit, but Kentucky breeder and consignor Alfred Nuckols Jr. of Hurstland Farm, has empathy for the veterinarians. He said the deadlines for taking the radiographs, which along with a corresponding report are to be placed in the repository four days prior to a respective horse's date of sale, present logistical issues for vets and consignors.

Radiographs offered at sales through a repository provide the benefit of central information; eliminating the need to run numerous radiographs and endoscopic exams of horses during a sale session. Keeneland and Fasig-Tipton require submitted radiographs to be taken within 21 days of the date a horse is to be auctioned for yearling sales, while the requirement is within 15 days of when a horse is to be sold for mixed sales. For 2-year-olds in training sales, x-rays are taken following pre-sale Under Tack show workouts.

Nuckols said radiographs taken a few days beyond sale deadlines don't bother him as a buyer.

"As both a consignor and a buyer at the sale, I appreciate what these veterinarians do," Nuckols wrote in a letter to BloodHorse. "However, the 21-day limit is not that significant to me as a buyer so long as the x-rays are accurate and current within a 30-45 day period prior to purchasing a yearling."

Nuckols said he wouldn't expect significant changes in what are shown on radiographs that, for example, are taken 28 days out, compared with 21 days before the date a horse is scheduled to be sold. After noting a host of physical issues that can befall a young horse, Nuckols said abnormalities that would be present on a radiograph "are not going to be different depending on a one-week difference in the x-rays. These problems take months to develop and months to resolve.

"The timing of the x-rays is a sales company issue which, along with the use of repository reports, needs to be addressed by them in conjunction with consignors and veterinarians," Nuckols continued. "In my opinion, a week difference in x-rays is not going to affect my judgment of an individual horse."

Some consignors, declining to discuss the lawsuit or regulatory situation specifically, said they believe the time frame in which the radiographs are taken prior to a sale is sufficient and that the situation involving Hagyard was an isolated incident that has been corrected by the veterinary regulator.

Swearington sees it differently. The lawsuit, which seeks additional plaintiffs to join Swearingen, was filed Feb. 7 in Fayette Circuit Court. Attorney Mason Miller is representing Swearingen and they say the misdating of radiographs did harm the plaintiff.

"Collectively, the actions of the defendants have resulted in the submission of tens of thousands of fraudulent radiographs to the repository where buyers like the plaintiff, relying on the alleged integrity of the repository and reasonable belief that the rules were being followed, acted and bid with the confidence Keeneland sought to inspire, as reflected by the substantial prices commanded by a process which was believed 'lower risk' by virtue of the repository," the suit reads. "In fact, beneath the surface, that was clearly not the case, and the repository engendered nothing more than false confidence as a result of the defendants' actions."

Hagyard said some of the "facts" outlined by the plaintiff in the lawsuit are not accurate.

"Hagyard Equine Medical Institute believes the lawsuit filed in Fayette Circuit Court regarding several of Hagyard's veterinarians is without merit and will demonstrate it is based on a fundamental misrepresentation of the facts," said Hagyard's attorney Mike Casey. "We will vigorously address the misrepresentations and claims made in the suit through the proper legal channels."

Hagyard Equine Medical Institute partner Dr. Luke H. Fallon later issued a statement responding to the lawsuit and explaining various intricacies of the process involved with x-raying sale horses.

Hagyard Partner Fallon Issues Statement on Lawsuit

Keeneland was not named in the suit, which also lists Dean Dorton Allen Ford, which provided technology services to Hagyard, and "John Does 1-100" (unidentified sellers and consignors of horses sold at Keeneland) as defendants.

Last year, eight Hagyard veterinarians self-reported to the Kentucky Board of Veterinary Examiners that they knowingly caused incorrect dates to be recorded on radiographs on one or more occasions. The self-reporting followed a complaint filed by three Hagyard employees who were plaintiffs in a lawsuit against HDM.

A Sept. 27, 2018, report from the Complaints Screening Committee of the Veterinary Board, acquired through a Freedom of Information Act request by BloodHorse, states that a Hagyard representative and its attorney said "by causing a radiograph to appear to have been taken one, two, or three days after the date when it was actually taken, the HDM veterinarians could complete more radiograph studies in a single visit, thereby reducing the number of visits to a particular farm that would be necessary in the busy period leading up to the first day of a sale."

The vets involved were sanctioned by the Kentucky Board of Veterinary Examiners, with some agreeing through settlements to payments of $1,000 to $25,000 to reimburse the board for expenses incurred during the investigation. In the Sept. 27, 2018, report, the board noted that tight deadlines set as a sale standard "do not justify any veterinarian's violation of the Practice Act's prohibition against committing any unfair, false, misleading or deceptive act or practice."

While inaccurate dates were used, the board found no issue with the radiographs themselves.

"The board agrees and acknowledges that there is no evidence that any radiograph taken by the respondent (each of the Hagyard vets) did not accurately reflect the condition of the horse," the regulatory body concluded.

Keeneland officials declined comment on the suit or whether they planned any changes in the deadlines for pre-sale radiographs. The Commercial Consignors and Breeders Association, which represents consignors, also declined comment.

Fasig-Tipton president Boyd Browning Jr. said the current system has worked fine and that although the sale company will continue to evaluate the deadlines for radiographs to be taken prior to a sale, at the present time there are no plans to change the dates.

"We have not encountered any problems (with consignors having radiographs completed in time), keeping in mind the volume of horses we sell is less than some other sales companies," Browning said. "I think the system has worked for both buyers and sellers. At this time, we are not contemplating any changes."

Mark Taylor, whose family's Taylor Made Sales Agency is perennially North America's leading consignor by volume, said the deadlines established for radiographs prior to a large sale like Keeneland's marathon September Yearling Sale are challenging, but the agency is able to assist the veterinarians in completing the work "because we are a large farm with a large staff."

Taylor Made is also a major buyer at auctions, both for itself, partnerships, and clients, and as such, Taylor said the team relies upon the x-rays on file with the sale companies.

"I think the repository has been a great development for buyers," Taylor said. "They are saving roughly $2 million (approximate cost of the radiographs) at the September sale alone on x-rays being provided by the breeders. I buy horses based off x-rays without hesitation."

Taylor said whether the deadline for radiographs to be completed should be expanded "is a veterinary issue. The further out from a sale the x-rays are taken the higher the likelihood that things can change. It's a balancing act for the vets."