Horses and the Law

It's Been Fun

2012-07-31T11:15:00Z

Horses and the Law was launched three years ago with one main objective in mind: to make complicated legal issues that affect the horse industry understandable. It wasn’t always easy—legalese sometimes can be as incomprehensible as Swahili—but it was always interesting. Most of the topics were serious, a few others not so much, but all of them had an impact, one way or another, on you and your horses.

With 152 columns in the archives, some 100,000 words written, and 1,000 or so comments from all of you, it’s time for me to focus more on book projects and longer magazine features. My latest book will be out in a few weeks with an unlikely subject: the best Thoroughbred race horse that you’ve never heard of. I’m already scouting around for ideas for the next book and I’m pretty sure I won’t get bored. I’m equally sure I’ll miss your comments.

A Lesson from Bobby Jones

I’ll leave you with one last thought, an observation that’s more of an ethical issue than a legal one.

There was quite a bit of media hoopla a few weeks ago when the owners of Kentucky Derby and Preakness Stakes winner I’ll Have Another decided to pass up the Belmont Stakes—and a legitimate shot at the Triple Crown. I’ll Have Another had some physical problems leading up to the race, and rather than risk injury to the horse, his owners decided to retire him.

It was a prudent choice under the circumstances, and it was undoubtedly the right thing to do for I’ll Have Another.

What bothers me about the entire affair is that horse racing appears to have gotten so dysfunctional that "doing the right thing" attracts attention mainly because it happens so seldom. It should be the other way around. Doing the right thing should be the rule rather than the exception.

Just ask Bobby Jones.

In the first round of the 1925 U.S. Open golf championship, the renowned amateur called a one-stroke penalty on himself when his golf ball moved a fraction of an inch after he had taken his stance. He was alone in the fairway, no one else saw the ball move, he gained no advantage at all, and only Jones would have been the wiser if he had ignored the infraction. In the end, after adding the penalty to his scorecard, Jones lost the championship by a single stroke.

The press tried to heap praise on Jones for his honesty in following the rules of golf to the letter, but he would have none of it.

"You just might as well praise me for not breaking into banks," Jones was quoted as saying afterward. "There is only one way to play this game."

There’s also only one way to race horses, or show them, or breed them, or care for them—with integrity and compassion, even when no one’s looking. When a question arises affecting your horses, ask yourself: what would Bobby Jones do?

Maybe there’s even a market for stretchy plastic bracelets with a horse head and the engraved message: WWBJD?

Thanks for reading!

With Apologies To Rod Serling

2012-07-24T11:13:00Z

The natural habitat of Thoroughbred racing isn’t the Twilight Zone—but sometimes it certainly seems that way.

Case on point: Within the span of a few days last week, Rick Dutrow Jr. was named the leading trainer during the spring/summer meeting at Belmont Park and a New York appellate court upheld a 10-year suspension handed to Dutrow last October by the New York State Racing and Wagering Board (NYSRWB). If this juxtaposition of events has your head spinning, you’re not alone. Saddling 27 winners doesn’t sound very much like a suspension, at least not the way the term is usually understood.

You can almost hear the eerie music and Rod Serling’s sonorous voice introducing an episode titled The Last Days of a Jockey: "Rounding the far turn and coming up fast on the rail—is the Twilight Zone."

Despite the apparent contradiction, it’s altogether proper and above board for a trainer to benefit from an advantage provided by the law.

Dutrow, a beleaguered trainer who won the 2008 Kentucky Derby and Preakness Stakes with Big Brown, has a history of medication violations. What triggered the current suspension, according to court records, was a search in November 2010 that turned up three unlabeled hypodermic needles in Dutrow’s desk at Aqueduct Racetrack. Around the same time, a Dutrow-trained horse tested positive for a prohibited medication. Based on the pair of violations, the trainer’s license was suspended for 90 days. Dutrow appealed the suspension, an option guaranteed by the rules of racing, and he was allowed to continue training while the legal wrangling proceeded.

The NYSRWB then escalated the charges based on the earlier violations, the presence of xylazine in the syringes, and the "inadvisability of his continued involvement in horse racing given his history of rule violations and improper conduct." An administrative hearing officer recommended that Dutrow’s license should be suspended for life and the he should be fined $50,000. The NYSRWB accepted the recommendation, with a modification allowing Dutrow to apply to have his license reinstated after 10 years.

The stay of Dutrow’s suspension remained in effect all the while, and he continued to send out winners on a regular basis.

Burden of Proof

The Appellate Division of the New York Supreme Court found several reasons to uphold Dutrow’s suspension:

●Dutrow claimed that his administrative hearing was unfair because the Chair of the NYSRWB (John Sabini) failed to recuse himself from the hearing. Sabini also has a connection with the Association of Racing Commissioners International, an organization categorized by the court as "devoted to maintaining a multijurisdictional database of licensed horse racing professionals’ disciplinary histories," and it isn’t unreasonable to argue that an official in his position might be prejudiced against a repeat violator. Administrative bodies such as the NYSRWB are presumed to be honest, however, and the court found no proof to dispute that presumption.

●Although there was contradictory evidence regarding the positive drug test for one of the horses trained by Dutrow, the court determined that there was "substantial evidence" supporting the NYSRWB finding that the horse had raced with a prohibited medication. That was good enough. Appellate courts don’t decide whether an agency was right or wrong, only whether there was evidence in the record to support the ruling.

●The court ruled that it was proper for the NYSRWB to deny a license to Dutrow on this occasion, despite the fact that he had been licensed by the agency in the past. Dutrow’s history of violations, coupled with the current charges, could be the basis for denying a license, the court explained.

●Finally, the court said that a 10-year suspension and fine were "not so disproportionate to his proven, recurrent misconduct as to shock one’s sense of fairness."

An appeal of the decision to New York’s highest court is likely. Until things are finally resolved, the stay of Dutrow’s suspension probably will remain in effect.

Is a 10-year suspension for a trainer with a history of medication violations too harsh, too lenient, or just right? Or have we stepped over into the Twilight Zone?

Defining Liability

2012-07-17T09:20:00Z

A trip to the restroom shouldn’t turn into a contact sport, but sometimes bad things happen.

In March 2010, Thomas Duban and his wife, Martha, attended a horse sale at the Waverly Sale Barn in Waverly, Iowa. Martha said that she went along only to keep her husband company, had no intention of buying anything, and didn’t even have a bid card. What happened next, according to court documents, was this:

"At some point during the sale, Martha needed to use the restroom. The restrooms are located at the south end of the sale barn. In order to get to the restrooms from her seat at the north end of the arena, Martha had to walk through an egress in the northeast corner of the arena, exit the arena, and walk to the south end of the sale barn where the restrooms were located. When she was returning to her seat, two large Percheron draft horses were being led from the arena through the northeast egress to stalls outside the arena. While she was in the northeast egress area, the two horses shied, knocked Martha to the ground, and stepped on her, causing serious injuries."

The Dubans sued the owner of the sales barn, claiming negligence and loss of companionship.

Spectator or Participant?

Iowa, like 45 other states, has an equine activity law that insulates sponsors of horse events (such as horse sales) from liability for personal injuries in many—but not all—situations. These laws often make a distinction between a person who is a participant in the horse activity and a person who is a spectator, the idea being that someone actually taking part in the event is more likely to be aware of the inherent risks of being injured when horses are involved.

The relevant law in this situation, Iowa Code Section 673.2(4), applies to both participants and spectators—with a few exceptions. The exception that is potentially applicable here covers situations in which the equine activity "occurs in a place designated or intended by an animal activity sponsor as a place for persons who are not participants to be present." Translated from the legalese, the exception to the statute applies to injuries suffered in a location where a spectator reasonably could expect to be safe.

Both sides agreed that the Waverly Sales Co. was an equine activity "sponsor" and that the sale was an event covered by the statute. The question involved Martha’s status when she was injured. If she was a "participant" in the sale, the statute would provide an effective defense to the personal injury lawsuit. If, on the other hand, Martha was only a "spectator," the exception would kick in and the lawsuit could proceed.

Attorneys for the Waverly Sales Co. tried to shortcut the proceedings with a motion for summary judgment. The motion claimed that Martha was a participant in the horse sale and that there was no need for a trial because the Iowa equine activity law was an ironclad defense. The trial judge disagreed:

"The Court is unpersuaded . . .that Martha was a participant because she was ‘watching as the horses were shown or displayed’ with her husband ‘in the inspecting of horses, or items for purchase, whether she planned to planned to give advice or simply keep him company at the sale.’ "

The trial judge found two factual questions that could not be resolved short of a trial:

●Was Martha actually a participant, or was she a spectator?

●Was she injured in a place where the sales company anticipated spectators would be?

The effect of the court’s decision denying the motion for summary judgment was to allow the case to proceed to trial, which is scheduled for March 25, 2013. It’s important to keep in mind that the preliminary ruling was not a decision on the merits of the Dubans’ lawsuit. It simply means that they will be allowed to present their case to a jury.

One lesson from the court’s ruling is that you shouldn’t stop reading your state’s equine activity liability statute at the "get out of jail free" provision. Understanding the exceptions to the law can be as important as understanding the basic provisions.

The Lemming Defense

2012-07-10T11:26:00Z

My mother always warned me about the dangers of following the crowd:

"If all your friends jumped off a cliff," she’d ask, "would you follow them? Don’t be a lemming!"

Lemmings, it turns out, don’t really commit mass suicide by hurling themselves en masse off cliffs, but I got the point. Doing things the same way as everyone else isn’t always a good idea, and it may create legal problems.

Eight years ago, a number of backstretch workers in New York sued prominent Thoroughbred trainer Nick Zito and the Nicholas Zito Racing Stable, Inc. They claimed that they usually worked more than 40 hours a week as grooms, hot walkers, and exercise riders, but were not paid overtime for the extra work. This practice, they said, violated both the federal Fair Labor Standards Act (FLSA) and New York state law.

A federal judge later expanded the lawsuit to include the original plaintiffs and "all individuals including past and present employees of Nicholas Zito Racing Stables who worked as watchmen, grooms, hot walkers, and in other occupations related to the horse racing industry within the state of New York from 1999 through the present."

That’s a lot of people, and some serious money is at stake if the backstretch employees win.

Everyone Does It That Way

The case bounced around federal court in the Eastern District of New York for several years. Then a few months ago, something actually happened. Magistrate Judge Kathleen Tomlinson ruled on cross-motions for partial summary judgment, both sides arguing that there was no need for a trial on at least some of the disputed claims because there were no material facts at issue and because they should win as a matter of law.

The procedural minutiae of the case might interest attorneys, but probably no one else. What matters to the parties is that both sides got some of the things they wanted, but neither side won everything. The case is scheduled for trial on September 4, 2012.

What should matter to the rest of us is the way the court handled a common defense.

The FLSA requires, among other things, that employers must compensate employees who work overtime—more than 40 hours per week—at a "rate not less than one and one-half times the regular rate at which he is employed." This is the familiar "time-and-a-half" rule. Employers also are required to keep accurate records of their employees’ hours and wages. Standard business practices in the horse industry that don't meet these basic requirements may not be good enough.

The District Judge had this to say about following the crowd and a so-called "relaxed approach" to record keeping:

"While Defendants continue to emphasize the fact that their payroll practices were customary, if not uniform, in the industry, such uniformity in the industry does not make the payroll practices of the defendants legal."

This doesn’t mean that the upcoming trial will be a slam dunk for the backstretch workers. That will be a question for the jury and there remains a substantial amount of evidence to be heard. A final decision isn’t likely to come any time soon. The judge’s words should be a wake-up call for other employers, though, to re-evaluate their record keeping and the way their employees are compensated.

Is working with horses like an assembly line job—40-hour work weeks, time-and-a-half for any overtime? Or is it unfair to apply common business practices to the horse industry?

A Shot Across The Bow

2012-07-03T11:51:00Z

The United States Department of Agriculture recently took aim at the Tennessee Walking Horse industry’s failed efforts at self-regulation with a new rule requiring mandatory minimum penalties for violations of the Horse Protection Act (HPA). The rule will take effect in a few days, on July 9.

Unless it doesn’t.

The industry—parts of it, anyway—fired back on June 25, challenging the new rule with a lawsuit filed in United States District Court for the Northern District of Texas, Fort Worth Division. The plaintiffs are asking for relief in the short term (a temporary restraining order that would prevent the implementation of the rule as scheduled) and a more lasting solution (a permanent injunction barring implementation or enforcement of the rule by the USDA and a decision from the court that the rule is unconstitutional).

The lawsuit doesn’t even try to defend the practice of soring Walking Horses, which is a good thing. The practice is indefensible. In fact, the complaint acknowledges that soring horses amounts to "cheating that is cruel to the horse" and that it "results in a fraud on participants and has a negative impact on the breed and the industry."

It sounds as if the plaintiffs agree with the USDA about soring. So why is everyone in court?

Who’s Involved?

Rather than spend time attacking the substantive parts of the new rule, the plaintiffs instead concentrate on a number of significant procedural issues:

●The rule violates Article I and Article III of the United States Constitution;

●The rule violates the federal Administrative Procedures Act;

●The rule conflicts with the HPA, the statutory scheme it is supposed to support;

●The rule exceeds the authority of the USDA;

●The rule does not guarantee Due Process of law.

This is heady stuff, but are the claims just smoke and mirrors? It might help to take a look at the plaintiffs in the lawsuit.

●SHOW, Inc., the first named plaintiff, is one of a dozen "horse industry organizations" certified by the USDA to hire private individuals (called "designated qualified persons" or DQPs) to inspect horses at shows. SHOW, Inc., is not complaining as a disinterested bystander. The organization was founded in 2009 by the Board of Directors of the Tennessee Walking Horse National Celebration, the largest and most important horse show for the breed in the world. Both the Celebration and SHOW, Inc., are governed by the same seven-member board.

●Contender Farms, L.L.P. is a limited liability partnership in Mississippi that "owns, trains, shows, and sells show horses."

●Mike McGartland lives in Texas and is a general partner in Contender Farms, L.L.P. He also is an attorney who serves as a voluntary prosecutor for SHOW, Inc., when an exhibitor appeals a penalty imposed at a show operated by SHOW, Inc.

The plaintiffs may have genuine concerns about the constitutionality of the USDA action. They also may have a significant financial interest in maintaining the status quo.

What’s At Stake?

A temporary restraining order is appropriate only if the district judge believes that there is a good chance that the plaintiffs will win in the end and that they will suffer "irreparable harm" if the new rule is allowed to take effect while the lawsuit is pending. The complaint makes a reasonable argument in this respect, and it won’t be a surprise if a temporary restraining order is issued so the lawsuit can run its course.

If the USDA wins, a system of mandatory minimum penalties for soring horses finally will take effect. This might take years.

If SHOW, Inc., et al, win, the USDA will have to start over and hope that another "new" rule will pass constitutional muster. In the interim, one of two things might happen:

The USDA could abandon the current self-regulation scheme and take over inspection and enforcement at Walking Horse shows. This is what an audit by the USDA’s Office of Inspector General recommended a couple of years ago. The USDA can’t afford to do this without a significant increase in funds from Congress, which isn’t likely to happen with the current budget crunch, and things could revert to pre-HPA days of no meaningful inspections at all.

Or, the current system of self-regulation could continue as is. This doesn’t work, as the Office of Inspector General audit and just about everyone whose heads aren’t buried in the sand already recognizes.

Whether the USDA rule takes effect months or years later than planned, or we keep the dysfunctional self-regulation or wind up with something worse, it’s a lose-lose situation for the horses.

Dogs And The Law

2012-06-26T10:40:00Z

There are a batch of liability risks associated with operating any equestrian business, whether a boarding farm, a lesson barn, a training facility, or a trail riding concession. Most are of the equine variety: a rider is thrown or a horse falls; someone gets kicked, or bitten, or stepped on; tack breaks; an employee is negligent.

Nearly every state (all except California, Maryland, Nevada, and New York) has some sort of equine activity liability law on the books that can provide significant protection for equine professionals in many situations. Sometimes, though, liability arises because of another four-legged creature, a dog.

If you have clients on your property and they bring their dogs—likely because horses and dogs seem to go together—you may be inviting a lawsuit if the animal bites someone. In many states, laws dealing with liability for harm caused by dogs are much less forgiving than equine activity liability statutes.

Some states impose "strict liability" on the owner of a dog that injures someone. This means that the individual who was bitten can win a personal injury lawsuit without having to prove that the owner of the dog was at fault. Strict liability can be a powerful weapon in court for an injured person.

This doesn’t mean that you’re off the hook if a dog belonging to another person bites someone while the dog is on your property, however. It all depends on how state law defines "owner," and that definition may be broader than you expect. A recent decision by the Kentucky Supreme Court is a good illustration.

Who "Owns" This Dog?

Eight-year-old Brandon Benningfield was walking with his sister when they encountered a Rottweiler wandering loose. Brandon’s sister told her brother to stand still, but he was frightened and tried to run away. The dog chased Brandon and attacked him, causing numerous injuries that resulted in surgery and a lengthy stay in the hospital. Brandon’s mother sued the owner of the dog and the owner of the property which the dog’s owner was leasing.

The dog’s owner settled before the case made its way to trial. The landlord stayed in for a while, arguing that a landlord leasing property to a dog owner should not have the same legal responsibility as the real owner if the dog bites someone. The case against the landlord was dismissed, and the dismissal was affirmed by the state Court of Appeals.

Two questions were raised when the dispute reached the Kentucky Supreme Court: (1) can a landlord qualify as a "statutory owner" of a dog that bites someone, even if the landlord has no actual ownership interest in the animal?, and, (2) can a landlord’s liability extend to injures suffered off the landlord’s premises? The Court answered "yes" to the first and "no" to the second.

The Court’s reasoning was straightforward:

The statute that defines "owner" for purposes of dog bite liability (Kentucky Revised Statute 258.095(5)) includes the actual owner of the animal, as well as "every person who keeps or harbors the dog, or has it in his care, or permits it to remain on or about premises owned or occupied by him." This broad definition obviously can include a landlord if a tenant owns a dog, but the Court qualified things a bit by holding that a landlord is a dog’s "owner" only on the premises. This meant that the landlord who leased property to the owners of the dog that attacked Brandon Benningfield qualified as a statutory owner subject to liability, but was not liable for the dog attack in this case because it occurred off the landlord's property.

This case arose in an urban setting and the decision didn’t mention horses or farms. Whether the same "statutory owner" reasoning imposes liability on a farm owner who rents a stall or pasture to a horse owner whose dog bites someone on the farm remains to be seen. State equine activity laws won't help. The possibility of dog bite liability should give any equine professional pause and should encourage development of a "dog policy" that might include liability waivers, insurance requirements, or an outright canine ban for clients and visitors to the facility.

If a dog that you neither own nor don’t control bites someone on your property, should you be held responsible?"

Mandatory Minimums

2012-06-19T10:49:00Z

You’ve probably seen the emails or social media calls to action asking you to send a letter/fax/email to someone, either supporting or opposing a proposed law or other decision. Maybe you’ve even dropped a letter in a mailbox, or faxed, or clicked "send."

Do you ever wonder what happens to those missives? Does anybody actually read them?

It turns out that the feds do, at least some of the time.

A couple of weeks ago I spoke with Keith Dane, Director for Equine Protection at the Humane Society of the United States, about the organization’s undercover investigation of abuse at the stable of a prominent trainer of Tennessee Walking Horses. Self-regulation of the Walking Horse industry isn’t working, Dane said, and he suggested that the federal government assume full responsibility for inspection of animals and enforcement of the Horse Protection Act ("HPA").

Having the feds step in and take over might be a pipe dream, and even if realized might not be the best answer. Federal regulation of the Walking Horse industry, or any industry, comes with its own set of problems.

The United States Department of Agriculture doesn’t appear ready to take on full responsibility for regulating the Walking Horse industry, at least not yet. The USDA has taken an important step toward more effective enforcement of the HPA, however, by adopting a rule that should make things more consistent—and maybe more effective. The rule, which takes effect on July 9, requires uniform, minimum penalties for violation of the HPA rather than leaving the assessment of penalties to the discretion of individual organizations or associations.

Beyond the Press Release

The official summary of the final rule takes up about eight lines, the press release a few paragraphs. The final rule itself, which amends Section 9 of the Code of Federal Regulations, Part 11, is five pages long, but it takes 45 pages of heavy going to get there. The Supplementary Information that fills the substantial gap between the summary and the rule is a review of the comments—and the official comments about the comments—received by the USDA from May 27, 2011 (when the proposed rule was published in the Federal Register) through July 26, 2011.

Support for the proposed rule was overwhelming—and generic. Of the 28,249 comments received during the 60-day comment period, at least 27,349 (about 97 per cent) supported the rule. These comments, according to USDA, were "substantively identical form letters submitted by individuals who commented through an animal welfare advocacy group." A stack of paper 27,000-plus pages high is impressive in size but almost certainly mostly unread if page #1 is identical to page # 27,349.

The quick lesson from these numbers is this: if you’d like someone to actually read your comments rather than just count them, an individual letter or email probably is better.

The USDA divided the more-specific comments, most of which opposed the new rule, into 18 categories and discussed them separately. These comments included:

●The current system of self-regulation is working (no, it isn’t);

●The USDA lacks the statutory authority to require that private organizations impose minimum penalties for HPA violations (yes, it does);

●Penalties without due process of law is unconstitutional (the new rule mandates an appeals process);

●Mandatory penalties should be based on objective scientific evidence that a horse actually is sore rather than someone's opinion (the USDA welcomes more scientific studies but is satisfied that digital palpation is reliable);

●More effective enforcement would encourage exhibitors to take sored horses to "unaffiliated" shows without inspectors (the USDA already shows up at some unaffiliated shows and plans to attend more);

●It’s unfair to penalize multiple parties, such as the owner, trainer, and rider, for the same violation (the USDA revised the wording of the final rule to clarify that the mandatory penalties apply to anyone "responsible" for showing or auctioning a sored horse, thus casting a wide net);

●And so on, and so on.

Most bothersome were the commenters who said that the rule was a bad idea because eliminating sored horses would have a significant—and negative—effect on the Walking Horse industry.

The USDA report diplomatically said that it did not expect this to happen because people who do not violate the HPA will not be affected.

My thought is this: if a segment of the horse industry cannot survive without abusing the horses it depends on, then it shouldn’t survive.

Is it necessary—or even possible—to balance the economics of an activity with the welfare of its horses?

Finding Fault

2012-06-12T10:12:00Z

If you fall off a horse and hurt yourself, is it always someone else’s fault?

The answer, according to the U.S. District Court for the Middle District of Pennsylvania and the Third Circuit Court of Appeals, is "no."

In November 2007, Linda DeShields and her husband were vacationing at a timeshare they owned in Pennsylvania. During a trail ride, DeShields was injured when she was thrown by Jack-In-The-Box, the horse supplied to her for the ride Bar-U Farm, Inc. Plaintiff filed a personal injury lawsuit, claiming that her injuries were the result of negligence. According to the District Court opinion:

"Specifically, plaintiff (DeShields) asserts that initially Jack-In-The-Box walked very slowly, and she fell behind the others on the ride – her husband and the trail ride leader, Doreen Wehr. Eventually, plaintiff’s horse overtook her husband and Wehr. A short time later, the horse speeded up to a trot or gallop, and plaintiff was thrown off the horse, striking the ground."

Early Dismissal

Before the case made it to trial, Bar-U Farm and the other defendants asked the District Court to dismiss the lawsuit on three grounds: first, that the Pennsylvania Equine Liability Law provided a defense by mandating that a participant in an equine activity assumed the risks of being injured; second, that common law provided a similar assumption of the risk defense, even if the Equine Activity Law did not apply in this case; and, finally, that there was no evidence of negligence in the record, and therefore no way for DeShields to prove her case at trial.

The Pennsylvania law, like the equine activity statutes in many other states, requires the posting of conspicuous signs warning of the inherent risks in equine activities. Because there were questions of fact about whether the required signs actually were posted at the Bar-U stable, and whether they satisfied the statutory requirements, the District Court denied the motion on both grounds raising assumption of the risk.

This is fairly standard stuff. If evidence in the record is subject to different interpretations, the case should not be dismissed prior to trial. A jury should sort things out.

Res Ipsa Loquitor

More interesting was the District Court’s treatment of the defendants’ claim that there was no evidence of negligence in the record to support the lawsuit. Although there was unrefuted testimony that no one inspected the trail where the incident occurred, the court found that the record contained no evidence suggesting that the condition of the trail actually led to DeShields being thrown or to her subsequent injury.

No harm, no foul, in other words.

The District Court also determined that there was no evidence to support other assertions made by DeShields, including claims that the trail was kept in a dangerous condition, that Jack-In-The-Box was not an appropriate mount for the plaintiff, or that there were bees on the trail that might have stung the horse.

DeShields countered with the argument that even if there was no specific evidence in the record, negligence by someone should be inferred by the mere fact that she had been thrown and injured.

"Generally," the Court explained, "plaintiff’s argument can be summarized as follows: because the accident happened, defendants must have been negligent." There’s a legal doctrine for that idea called res ipsa loquitor, a Latin phrase meaning "the thing speaks for itself." This allows such an inference in cases where an injury ordinarily wouldn’t occur without someone being negligent. The doctrine didn’t apply here, the Court concluded, because falling off a horse is an inherent risk of riding that often occurs without anyone being at fault.

In somewhat tortured language, the District Court explained: "It cannot be said that a person would not be thrown from a horse in the absence of someone’s negligence. It is an inherent danger of riding a horse that such an incident may occur no matter how many precautions are taken." With no evidence of negligence, either real of inferred, the lawsuit was dismissed. On appeal to the Third Circuit, the dismissal was affirmed.

Did the courts get it right? Is someone’s negligence at the root of every riding accident?

Investigative Timeline

2012-06-05T10:30:00Z

One of the perks of writing for an audience of sharp readers is that your comments often raise questions that never had occurred to me. I always learn something new when I put a column together and more often than not, I learn something interesting from your feedback.

A case in point: a couple of weeks ago, a column about the dangers of so-called "ag-gag" laws mentioned an undercover investigation conducted by the Humane Society of the United States documenting abuse of Tennessee Walking Horses by a prominent trainer.

The point of the column was not to highlight the HSUS investigation, although the organization deserves credit for bringing the abuse to light. Instead, it was intended as a warning that undercover investigations would be next to impossible in a state with laws that criminalized clandestine reporting on animal abuse and other questionable farming practices.

I hadn’t intended to write about HSUS, but the organization became the focus of some of your comments. A few readers suggested that the year-long delay between the time the investigation was conducted (March through May 2011) and the release of the videotape to the public (May 2012) was evidence of bad faith on the part of HSUS.

It’s a good question. Was HSUS manipulating the timing for a financial or public relations advantage rather than for the good of the abused horses? A few days ago, I posed the question to Keith Dane, Director of Equine Protection for HSUS.

Promotion or Prosecution?

HSUS selected nationally known trainer Jackie McConnell as the target of the undercover investigation for two reasons: he had a record of winning at major shows and he had a record of federal Horse Protection Act violations.

The HSUS investigator began working for McConnell in March 2011 and remained at the stable for two months. Armed with easily hidden, state-of-the-art electronic equipment, she recorded "hundreds of hours" of video and audio tapes documenting rampant abuse of the horses in the guise of training.

"Our investigator was a ‘genuine’ employee during that time," Dane said. "She groomed horses, cleaned tack, mucked out stalls, everything the other employees did. The only work she didn’t do was anything that was illegal. It took time to gain a certain level of trust, which was necessary because she wanted to be able to engage the other employees. The investigation ended when she was asked to sore some of the horses."

The undercover work wrapped up in May; two months later, after the tapes were edited to a manageable size, HSUS officials met with federal prosecutors in Tennessee. The feds, who had no prior knowledge of the investigation, were "immediately interested."

Material collected during the investigation remained under wraps from July 2011 until May 2012, while the federal prosecutors put together their case. A 52-count indictment came down in March 2012 and by mid-May McConnell indicated that he would plead guilty to conspiracy to violate the Horse Protection Act.

Even when a general agreement between the parties regarding McConnell’s guilty plea (the deal still must be approved by the judge in the case), prosecutors continued to pressure HSUS not to release the video and audio recordings to the public.

"We’ve had a long campaign against abuse in the Walking Horse industry," Dane said about the decision to go public. "We wanted to show that self-policing wasn’t working. This person wasn’t a backyard trainer. We wanted to show that soring was going on and that people were profiting from training and showing sored horses."

The Next Step

I asked Dane what needs to happen in the long-term:

"The industry needs to get out of self-regulation," he said. "The USDA needs adequate funding for enforcement, and there must be more severe penalties so there is a real deterrent in place."

It’s hard to argue with that.

HSUS doesn’t get everything right. Critics complain about too much secrecy and too little transparency in the organization’s finances, for example.

But staging an undercover investigation in the barn of a leading trainer working in the heart of Walking Horse country was a gutsy move for everyone involved. Without the evidence generated by the investigator and the cooperation between HSUS and federal prosecutors, no one would know what was happening behind McConnell’s stable gates. No one who cares, anyway.

Hats off to HSUS and the feds. They got it right.

Medication Follies

2012-05-28T23:20:00Z

The medication mess that’s been a thorn in the side of racing for what seems like forever is getting stranger by the minute.

On one hand, there is Doug O’Neill, trainer of Kentucky Derby and Preakness winner I’ll Have Another, who is facing a suspension and fine for a 2-year-old drug positive in California. Trainers who cheat should be punished, but everyone seems to agree that O’Neill's charges are based on an administrative rule that holds the trainer of record absolutely responsible for the condition of any horse that tests positive, rather than on evidence of actual wrongdoing.

On the other hand, Standardbred trainer Luis Pena recently was suspended after an investigation reportedly turned up 1,719 drug violations, in nearly 700 races, all during a 28-month period. There may be as much as $2.5 million in purse money involved. Those numbers are staggering, and they aren’t misprints. Trainers who cheat should be punished, but if reports are accurate, there was not a single positive drug test actually implicating Pena. Instead, the charges were based on circumstantial evidence generated during a multi-state investigation that reviewed veterinary records for the horses in Pena’s care.

Guilty Until Proved Innocent

O’Neill is being disciplined because a pre-race test on a horse he trained showed abnormally high levels of total carbon dioxide (TCO2). High TCO2 levels can indicate that a horse was given an illegal "milkshake," a baking soda mixture that might help reduce fatigue during a race. High TCO2 levels also can result from other causes, however, and that’s the confounding factor in O’Neill’s case.

After a lengthy administrative proceeding, a hearing officer made several findings of fact:

●An illegal "milkshake" was not the cause of the abnormal test result;

●There were no suspicious betting patterns;

●There was no evidence that O’Neill did anything intentional.

The California Horse Racing Board accepted the hearing officer’s report and recommendation that due to mitigating factors O’Neill should serve only 45 days of a possible 180-day suspension.

Although the hearing officer’s findings appear to exonerate O’Neill, California has a rule that holds a trainer ultimately responsible for the condition of his or her horses, even without a showing of guilt. It’s called an "absolute insurer" or "trainer responsibility" rule and it’s a mainstay of medication policy enforcement for racing commissions and sport horse organizations.

Some absolute insurer rules aren’t really "absolute." Instead, they presume a trainer’s guilt at the start, but also provide an opportunity for the accused to prove his or her non-involvement. This is a better option.

Circumstantial Evidence

Luis Pena’s suspension seems even more problematic because none of the charges appear to be based on positive tests for prohibited medications. According to press reports, this is because the illegal drugs were administered in doses too small to be detected on race day. Instead, the only proof that Pena’s horses actually received illegal medications, including pain killers and other anti-inflammatory drugs, was found in veterinary bills that reportedly averaged $25,000 a month.

Even if Pena is given an opportunity to challenge the charges against him, either at an administrative hearing or in court, what, exactly, can he challenge? Veterinary records are what they are—records of veterinary treatment—but it seems a stretch to use records as proof that horses raced with the help of illegal medication in the absence of scientific evidence.

When trainer responsibility rules are challenged in court, the racing commission or sport horse governing body wins. A fundamental tenet of our judicial system is that criminal charges against a defendant must be proved beyond a reasonable doubt.

Are trainers charged with medication violations entitled to any less due process of law?