UDPATED: Love Me Only Trial Enters Final Day

by | 10.28.2014 | 12:32am
Dr. Steven Barker

The lawsuit by Frank and Jane Lyon's Summer Wind Farm against Coolmore Stud partners, Ashford Stud and Eaton Sales over the disputed sale of $2.1 million mare Love Me Only at the 2011 Keeneland November Breeding Stock Sale will go to a jury on Tuesday after more than five days of testimony and nearly 25 witnesses.

The case focuses on two key points: did Love Me Only have symptoms of laminitis that were masked by the administration of the non-steroidal anti-inflammatory drug phenylbutazone (Bute) during the four days she was on the sale grounds; and did the omission from the sale catalogue page of a February cover to Danehill Dancer represent an act of fraud by the owners of Love Me Only (Coolmore's John Magnier, Derrick Smith and Michael Tabor)?

The Keeneland Sale catalogue correctly listed Sea the Stars, on a May 3, 2011, cover, as the sire to whom Love Me Only was in foal when Summer Wind bought her from the Eaton Sales consignment. When the 3-year-old full sister to leading sire Giant's Causeway was entered to sell, Ashford Stud staff in Kentucky did not include the Danehill Dancer cover. Director of Sales Aisling Cross Duignan testified she was unaware of the earlier cover when she entered Love Me Only in the sale or when filling out a questionnaire from Eaton Sales.

The final witness called by the defense on Tuesday morning was Dr. Andrew Van Eps, a world renowned laminitis expert from the University of Queensland in Australia who was also a member of the University of Pennsylvania's veterinary department when Barbaro was treated for and eventually succumbed to laminitis.

Author of at least 10 peer-reviewed articles on laminitis in the last five years, Van Eps was questioned about different forms of laminitis and concluded, based on his examination of X-rays, videos and medical records, that Love Me Only may have suffered from the equine metabolic syndrome form of the disease. He said recent X-rays have convinced him that Love Me Only's feet “have been normal the last couple of years” and that “if she is managed correctly I don't think she is more likely than any other broodmare” to have future episodes.

Van Eps disputed a diagnosis by Dr. Bryan Fraley, who tended to Love Me Only when she became lame at Summer Wind Farm days after the sale, that the mare likely was stricken by laminitis weeks before being sold. “It's impossible to know” in hindsight when a horse develops laminitis, he said, adding that “any stressful event, any change in feed, any change in management” can cause an outbreak of the circulatory disease that is a leading cause of death in horses. Without before and after X-rays, Van Eps said, diagnosticians can only speculate.

Geoffrey Russell, director of sales for Keeneland, had been expected to be called by the defense to testify and was waiting outside of the courtroom Tuesday morning, but after a series of sidebar conferences between attorneys for both sides and Judge Ernesto Scorsone, jurors were told the evidentiary portion of the trial had ended.

Scorsone will give instructions to the jurors Tuesday afternoon and, following closing arguments from plaintiff and defense attorneys, deliberations will begin.

Summer Wind sued to return Love Me Only to her prior owners, have their purchase price refunded, and receive punitive damages.

Most of Monday's testimony focused on the condition of Love Me Only, both before the 2011 auction and in the time since she has resided at Summer Wind Farm in Georgetown, Ky. Love Me Only became significantly lame days after being sold on Nov. 8, 2011, and three different veterinarians diagnosed her with chronic laminitis. She eventually recovered and delivered a Sea the Stars colt in 2012, then was bred to Distorted Humor and produced a 2013 foal. She is currently in foal to Smart Strike.

Witnesses for the defense on Monday included Dr. Benjamin Stivers and farrier Colby Tipton, both of whom had seen Love Me Only at Ashford and pronounced her to be healthy and sound just prior to the 2011 sale. Tipton said he trimmed Love Me Only's feet a few days before the sale and “she was perfectly fine. If there was any problem, I would have addressed it with management or a veterinarian,” he said. Love Me Only was sent to the sale barefoot, a practice preferred by Ashford Stud management.

Veteran farrier Steve Norman testified that he was called to shoe Love Me Only on the Keeneland grounds on Nov. 6, 2011, two days before she sold.

Norman was told Love Me Only had been treated with Bute and watched her walk before shoeing her.

“On the turn you could see she was a little off,” Norman said. “When they're barefoot, they can become ouchy.”

Norman used hoof testers to palpate the sole and checked Love Me Only's pulse, saying it was “regular.”

“After we put the shoes on she walked great,” he testified.

Horseman Kerry Cauthen, who formerly practiced equine law, was called by the defense as an expert witness to comment both on the rigors horses go through at public auction and on the impact the omitted unsuccessful early season cover to Danehill Dancer might have on buyers' intentions or Love Me Only's value.

“There are a lot of reasons a mare might get foot sore at the sale,” he said, stating that Love Me Only's 108 showings over four days was considerably more than an average mare that he estimated would be taken out of the stall to be shown just 10 to 20 times. “Foot soreness is typically alleviated when you put them back in their natural environment,” he added.

As for the early-season mating to Danehill Dancer, a former leading stallion whose fertility rate fell to about 33 percent in 2011, Cauthen said, “For most buyers, one cover to that horse wouldn't have made any difference.”

Dr. Steven Barker of Louisiana State University drug testing laboratory, the official lab for the Louisiana State Racing Commission, was called by the defense to refute testimony from the plaintiffs' expert witness on the levels of Bute found in blood tests for Love Me Only taken from her on the day she sold. Barker said the 4.75 micrograms/milliliterl level was not inconsistent with the treatment said to be given her over four days: one gram on Nov 5, two grams on Nov. 6, and one gram each on Nov. 7 and 8. He also insisted Bute would not mask lameness and that the analgesic effect of the drug never lasts more than 24 hours.

Dr. Scott Morrison, the first veterinarian to diagnose Love Me Only with laminitis after the sale, testified that he recommended treatment for “chronic laminitis” as a “worst-case scenario” in the days after the Keeneland sale when the mare suddenly became lame. Morrison, who does work for both Summer Wind and Coolmore and opted out as attending veterinarian for that reason, testified he thought it “unlikely” Love Me Only had laminitis while on the sale grounds. Morrison said putting horseshoes on a laminitic horse usually results in increased soreness.

The final witness of the day, Dr. Ric Redden, was far more demonstrative than Morrison. A former farrier who attended veterinary school at Ohio State University after serving in the U.S. Army, Redden is widely acknowledged as a pioneer in equine podiatry. He has taught thousands of students and for a few minutes appeared to turn Courtroom C into a classroom, using a white board to give a lecture to the jury on what laminitis is.

Redden said laminitis authority Dr. William Moyer of Texas A&M (who used that same white board to illustrate laminitis for the jury last week) was wrong about horses diagnosed with laminitis being uninsurable and called Love Me Only, who he has seen about seven times since her sale, as “sound of a broodmare as you can find in the state of Kentucky.”

He disagreed with the diagnosis of Dr. Bryan Fraley, a former student of Redden's who testified for the plaintiffs and believes Love Me Only had an onset of laminitis well before the Keeneland sale.

That diagnosis “is so categorically wrong and so disturbing,” said Redden, who admitted he is being paid $500 an hour working for the defendants as an expert in the lawsuit and has made approximately $18,000 on the case. “You disagree with three veterinarians who were not getting paid to testify and diagnosed chronic laminitis?” attorney Jay Ingle said during cross examination. “I don't care if there's 3,000 of them,” Redden answered.

Redden said he tried to arrange a meeting with Fraley to discuss Love Me Only, but Fraley rebuffed him on the advice of Summer Wind's attorneys. “It was one of my students stepping in the wrong direction and I felt responsible,” said Redden, who was accused by Fraley of “threatening and bullying” behavior while allegedly trying to get Fraley to change his original diagnosis.

Redden denied threatening Fraley, though he said “we talked about the repercussions of what could happen” because of an incorrect diagnosis, suggesting that Fraley could get sued. “I never one time tried to get him to change his diagnosis,” even though he said Fraley was “standing by an opinion that was grossly wrong.” He admitted that he told Fraley his opinion “is going to haunt you for a long time.”

Redden denied, however, in cross-examination, that he told Fraley that once the jury heard Redden's testimony, the case is over – thought “it's probably due,” he admitted.

One member of the original 14-person jury (including alternates) was excused on Monday morning by Judge Ernesto Scorsone, after being seen talking to one of the plaintiffs during a break in the trial last week.

 

 

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