Eaton Sales owner Reiley McDonald held his ground on the witness stand Wednesday against persistent questioning on medication and breeding records in a lawsuit filed by Frank and Jane Lyon's Summer Wind Farm over the disputed $2.1-million sale of the 3-year-old filly Love Me Only at the 2011 Keeneland November Breeding Stock Sale.
McDonald, along with the owners of Love Me Only (entities owned by John Magnier of Ireland-based Coolmore Stud, Michael Tabor and Derrick Smith) and Ashford Stud in Kentucky are defendants in the suit. The Lyons allege the defendants defrauded them by giving Love Me Only an anti-inflammatory drug to mask laminitis when the filly was on the Keeneland sale grounds. Two days after being purchased and transferred to Summer Wind Farm in Georgetown, Ky., Love Me Only began exhibiting lameness and specialists would diagnose her with chronic laminitis. Love Me Only subsequently recovered and produced live foals in 2012 and '13 and is in foal for 2015.
The suit also says the defendants withheld the fact Love Me Only was unsuccessfully bred to the stallion Danehill Dancer in February 2011. She was sold in-foal to European Horse of the Year Sea the Stars on a May 3, 2011, cover, according to her Keeneland catalogue page.
McDonald's testimony came on the third day of a jury trial in Fayette County Circuit Court in Lexington, Ky. The Lyons are seeking to return Love Me Only to her previous owners, have their purchase price refunded and receive punitive damages. Efforts to have the sale rescinded by Keeneland were previously rejected because Summer Wind's connections did not act before the deadline imposed by the Conditions of Sale.
Plaintiffs' attorney William Hoskins repeatedly asked McDonald about his decision to medicate Love Me Only with phenylbutazone, or Bute, for four consecutive days at the 2011 sale. The treatments began on Saturday, Nov. 5, and continued until Tuesday, Nov. 8, when Love Me Only was inspected by Jane Lyon and her farm manager and son-in-law, Mark Moloney. They purchased her later that day.
Hoskins suggested McDonald had Bute given to Love Me Only around 7 a.m. Nov. 5, prior to her first showing. McDonald said he made the decision to do so later that morning after Love Me Only had been inspected several times by potential buyers and appeared “ouchy on the turn” in one or both front feet. She was shown 19 times that day and 89 additional times over the next three days.
Love Me Only came to the sale grounds barefoot from Ashford Stud. McDonald had his sale manager contact blacksmith Steve Norman in hopes of having her shod on Nov. 5, her first day of showing. “I remember telling Paul Shanahan (a bloodstock agent for Coolmore) we would give her some Bute and have a blacksmith look at her,” McDonald said during his testimony. He said Norman was unable to get to his barn until late the next morning. When Love Me Only continued to be, in McDonald's words, “ouchy” on turns during her Nov. 6 showings while waiting for Norman to arrive, “I said, 'Give her another gram of Bute.'
“Our job is to get the horse comfortable,” McDonald said. “It's a very rigorous four days. It's tough on these horses.”
“I've been doing this 25 years and I've never had a horse ouchy on the turn have laminitis.”
McDonald said a gram dosage of Bute is very low. “It's like me popping an ibuprofen,” he said.
“Has Bute ever concealed a serious condition?” Hoskins asked McDonald.
“A serious condition?” he responded. “No way.”
Hoskins questioned whether McDonald was being truthful about the day Norman put shoes on Love Me Only. An invoice from Norman originally put the date as Friday, Nov. 4, and a subsequent email from an Eaton Sales employee said the correct date was Saturday, Nov. 5. McDonald said both Norman and the employee's email were wrong, that the shoeing was done on Sunday, Nov. 6.
Once Norman finished shoeing Love Me Only, McDonald said, “She was A-OK. She was perfectly sound from that point on.”
Records show Love Me Only continued to receive Bute for two more days.
When Lyon and Moloney showed up around 9 a.m. on the day Love Me Only was to sell, McDonald said, they never asked about medication. “I would have gotten my treatment books, if they had,” he said.
Keeneland's Medication Policy recommends no more than two non-steroidal anti-inflammatory drugs in sale horses. There is no mandatory disclosure of medication.
McDonald also denied saying Love Me Only's cover date in May was due to a training accident suffered earlier in the year. His catalogue page notes said she was retired unlaced with a training injury at two.
McDonald said he was unaware of the February mating to Danehill Dancer, which was neither reported to him or Keeneland when Love Me Only was entered to sell by an employee of Ashford Stud, Coolmore's Kentucky farm.
Dr. Jonathan Foreman, an expert witness for the plaintiffs, suggested the level of phenylbutazone at which Love Me Only tested (4.75 micrograms/milliliter) – on a blood sample taken Nov. 8 – was very high for a horse getting just one gram per day. “I think she got two grams (Nov. 8) and/or had been getting more than one gram for several days before that,” said Foreman, head of the University of Illinois Veterinary Teaching Hospital at the school's college of veterinary medicine. “It was not a surprise that Love Me Only was OK for about 48 hours after her last dose of Bute.”
Foreman said Bute “is not the same as Tylenol or aspirin” and can mask lameness. “Its effect is dose dependent,” he said. “(Bute) should not be used for horses being evaluated for sale because it can mask lameness.”
Dr. Bart Barber of Rood and Riddle Equine Hospital was also called to testify by the plaintiffs. Barber was the only veterinarian to conduct a pre-purchase examination of Love Me Only on behalf of a potential buyer.
His notes said “no lameness…No history of medications other than Regu-Mate.” Barber said the medication history was taken from a medication book in a tackroom at the end of the barn. There was no reference to phenylbutazone, or Bute. “It would have been important” to know Love Me Only was being given Bute, Barber said, because “it is an analgesic” and could mask “mild laminitis.” He said knowledge of Bute administration would have convinced him to take X-rays of Love Me Only, which he opted not to do. He told his client there was “no reason” not to buy Love Me Only, though he noted in his inspection she had a “cresty neck,” which can be a warning sign for equine metabolic syndrome. Barber also wrote “History of injury early in year while in training is why late cover date.” He said he was not made aware of the February mating to Danehill Dancer.
As a veterinarian for consignors, Barber said during cross-examination by Barry Hunter that he has given Bute to yearlings and broodmares at auction, especially yearlings. Barber estimated less than 15 percent of mares are given Bute.
Lisa Walker, who worked for Eaton Sales during the November 2011 auction documenting medications, testified that Love Me Only received Regu-Mate, Bute and Succeed, a digestive aide often given to horses that receive Bute or another anti-inflammatory, Banamine.
A deposition for Coolmore's bloodstock agent Paul Shanahan was also read as Shanahan was unavailable to testify. During that January 2014 deposition, Shanahan said he did not know why Love Me Only was not bred between February, when she was covered unsuccessfully by Danehill Dancer, and May, when she got in-foal to Sea the Stars. “There could be any number of reasons for that,” he said.
The plaintiffs are expected to finish their case on Thursday morning.
New to the Paulick Report? Click here to sign up for our daily email newsletter to keep up on this and other stories happening in the Thoroughbred industry.
Copyright © 2020 Paulick Report.