On August 12, 2013, an evidentiary hearing was held on Plaintiffs’ request for attorneys’ fees and for injunctive relief that would require the AQHA to register clones and their offspring.
Following the hearing, U.S. District Judge Mary Lou Robinson informed counsel that she would grant an injunction requiring the AQHA to register horses produced by cloning and their offspring.
On August 14, 2013, the court entered an order (which can be accessed here) setting forth specific changes and additions to AQHA rules and regulations, which, according to the order, the judge is considering for inclusion in the injunction. The order requires that any objections to the proposed rule changes be submitted by noon on August 19, 2013.
The court has not yet ruled on Plaintiffs’ request for nearly $900,000 in attorneys’ fees. The court ordered the Plaintiffs to furnish their billing statements to AQHA, and also ordered AQHA to file any objection to the request for attorney’s fees, by August 14, 2013. A copy of AQHA’s objection to Plaintiffs’ attorneys’ fees, filed yesterday, can be found here.
AQHA’s primary objection to Plaintiffs’ fee request is the fact that the jury did not award any damages to Plaintiffs. Plaintiffs had sought $5.7 million in damages and sought to treble those damages under the antitrust laws for a total of $17.1 million. However, the jury awarded Plaintiffs zero damages.
At this point, the court has not yet entered final judgment in favor of Plaintiffs. According to this press release, AQHA will file a Motion for Judgment as a Matter of Law after entry of final judgment. In that motion, AQHA will request that the Court enter a take nothing judgment in favor of AQHA based on the fact that the jury’s verdict was not supported by the evidence. Should the court not grant AQHA’s motion, AQHA will file a notice of appeal thereby starting the appellate process.
Case Information: Abraham & Veneklasen Joint Venture, et al v. American Quarter Horse Association; Cause No. 2:12-CV-00103-J in the U.S. District Court for the Northern District of Texas (Amarillo Division)
Today, a 10-person jury in the U.S. District Court for the Northern District of Texas, Amarillo Division ruled that AQHA Rule REG106.1, which prohibits the registration of cloned horses and their offspring in AQHA’s breed registry, violates federal and state anti-trust laws. The jury awarded no damages.
When individuals with shared interests, goals and values come together to form a voluntary association to serve a common purpose, the members have a right to determine the rules for their association. The wisdom of our membership –which is largely not in favor of the registration of clones and their offspring—has not been upheld by this verdict.
Whether nor not clones will be able to be registered with the AQHA in the foreseeable future is still up in the air. According to AQHA President Johne Dobbs,
We will meet with our legal counsel and executive committee regarding our appeal options in continuing to fight for our members’ rights and announce our decision in that regard in the near future.
The plainitffs in the case have requested injunctive relief, in which they have asked the court to order the AQHA to register their cloned horses. They have also requested that the court order the AQHA to pay at least a portion of their legal fees. A hearing on the injunctive relief and fees request has not yet been held. The jury’s verdict has not been reduced to a final judgment, nor has the court issued an opinion in the case at this time.
Case Information: Abraham & Veneklasen Joint Venture, et al v. American Quarter Horse Association; Cause No. 2:12-CV-00103-J in the U.S. District Court for the Northern District of Texas (Amarillo Division)
Last Friday, for the fourth or fifth time, I attended the annual Animal Law Institute. The Institute is a CLE program put on by Animal Law Section of the State Bar of Texas. It moves around each year, but this year it was at Texas Wesleyan School of Law here in Fort Worth.
You may be wondering, “what is animal law, and is equine law a part of animal law?” I have been practicing equine law for years, and I still don’t really know the answer. According to Wikipedia,
animal law is a combination of statutory and case law in which the nature—legal, social or biological—of nonhuman animals is an important factor. Animal law encompasses companion animals, wildlife, animals used in entertainment and animals raised for food and research. The emerging field of animal law is often analogized to the environmental law movement 30 years ago.
Most of the speakers at the Institutes I have attended in the past have seemed to generally focus on 1) animal rights/welfare issues; and 2) issues related to animal rescues and public shelters.
My equine law practice, by way of contrast, is primarily focused on business issues. That said, I have advised several equine-related 501(c)(3) nonprofit organizations.
Rick and I at Will Rogers Equestrian Center with two of our animals.
This year’s Institute covered a lot of animal welfare/rights issues, but it also added an overview of equine law by Dawn Reveley, and another presentation on vet malpractice defense into the mix. Below is a recap:
Will Potter, a journalist from Washington, DC, discussed the Animal Enterprise Terrorism Act. This is a 2006 federal law with which I was not previously familiar. According to Potter, the law was pushed by animal industry groups and corporations to target animal rights protestors by labeling their activities as "terrorism". Read more about it on Will Potter’s blog, Green is the New Red. To loosely quote Potter’s [very sound] advice to would-be animal rights protestors: “Come up with a plan and get organized before you stage your protest, so people won’t think you’re crazy!”
Don Feare, an attorney from Arlington, Texas, shared some excellent information for attorneys who represent animal rescue groups. Some main points include (equine nonprofits, listen up!) 1) animal welfare groups should incorporate as a nonprofit corporation to limit liability; 2) liability insurance is a necessity, especially if the organization is doing public adoption events; and 3) adoption contracts should make clear when title to the animal passes to the new owner and should be signed by all adult members of the household at which the animal is being placed.
Scott Heiser, a Portland-based attorney with the Animal Legal Defense Fund, talked about how his nonprofit organization helps local prosecutors win animal cruelty cases (both through financing and by helping try cases). Heiser discussed the “business records” exception to the hearsay rule, as it applies to veterinary reports in criminal animal abuse cases. In general, vet reports are not admissible in lieu of testimony under the business records exception if the vet report was “prepared specifically for use at trial.”
Nicole Paquette, Texas Senior State Director with the Humane Society of the United States (HSUS) in Washington, DC, covered the new laws from 2011 Texas Legislature that the HSUS believes benefit animals. These bills include 1) HB 1451, the “Puppy Mill Bill”--requiring licensing and inspection of dog and cat breeders who maintain 11 or more female breeding animals; 2) HB 1103--“Responsible Pet Owner Classes” required for convicted animal abusers; and 3) HB 2471--the “Good Animal Samaritan Bill”, which limits civil liability of people who render aid to an injured or distressed animal.
Dr. Don Ferrill (remember him from this post?) talked abouthow to successfully defend veterinarians in malpractice and negligence cases. His advice to plaintiffs: “Always pay your vet bill before you sue your vet.”
Watch this website for information on next year's Animal Law Institute.
On Friday, February 3, 2012, CBS aired the trial of horse owner Deborah Dobbs vs. horse trainer Sharon Jeffco on Judge Judy--a case involving alleged injury to a horse at the hands of a trainer. This case has caused quite a stir in the horse community, possibly because of the unique nature of the alleged injuries to the horse.On Friday, February 3, 2012, CBS aired the trial of horse owner Deborah Dobbs vs. horse trainer Sharon Jeffco on the show Judge Judy, in a case involving alleged injury to a horse at the hands of a trainer. This case has caused quite a stir in the horse community, possibly because of the unique nature of the alleged injuries to the horse.
Dobbs sued Jeffco for $5,000 (the jurisdictional limit on Judge Judy), alleging that her 5-year-old mare, “Misty”, sustained severe tongue lacerations due to Jeffco’s training methods. Dobbs specifically complained that Jeffco used an “ill-fitting bit”. Dobbs posted this photo of the alleged injuries on Facebook [CAUTION: photo is graphic]. Dobbs admitted that she was present during the entire training session in question.
During the trial on Judge Judy, Jeffco alleged that Misty had the cuts on her tongue before Jeffco started training her, but Jeffco was unaware of the wounds until they were reopened and started bleeding during the course of Jeffco’s final training session. Jeffco brought a counterclaim against Dobbs for defamation and business disparagement. Jeffco did not get to put on her full case during the trial on Judge Judy, but she posted this statement with supporting documents on her website.
The bit was not shown during the trial. As far as I know, Jeffco has not posted a photo anywhere of the bit she used on Misty during the incident in question. But a vet report included in Jeffco’s statement about what happened indicated that it was a “solid shank bit.”
This case left me wondering, “can any bit really cause this much damage during a short period of time?” I asked professional horseman Liz Payne of Unity Equestrian Arts, LLC what she thought about the evidence revealed in the trial itself. According to Payne,
There is no excuse for a tongue to be cut, ever. The amount of damage to this tongue is hard to believe. In over 40 years of training horses I have never seen anything like this, in fact I have never seen a cut tongue. I have unanswered questions. Someone is responsible for the damage to the horse. The sorting out who caused this horrific damage seems to be the difficult challenge. There is never an excuse for damaging a horse, physically or mentally.”
Without opining on who was liable for the horse's injuries, the judge awarded zero damages to both parties on their claims. Below are some of the reasons (potential litigants, take note!):
1) Neither party brought a veterinarian with them to the trial. Only Dobbs had a report from a veterinarian who actually treated the horse. The judge seemed to lend little credence to the reports from Jeffco's vets who had not seen or treated the injuries. Parties to horse injury suits should always bring a vet with them to testify, and preferably one who saw the horse as opposed to someone who drew conclusions from documents, photographs, radiographs, etc.
2) Dobbs witnessed the incident in question, but she did not leave the premises with her horse as soon as she allegedly believed that Jeffco was using abusive methods. This admission detracted from Ms. Dobbs’s credibility with the judge, especially with respect to Dobbs's allegations that Jeffco tied the mare's head down and used a longe whip on the horse.
3) Jeffco paid Dobbs $953.50 in restitution in a related criminal animal cruelty proceeding. Judge Judy ruled that Jeffco waived her defamation claim when she paid the restitution to the plaintiff. The judge further ruled that Dobbs had been fully compensated by the restitution check in the criminal case, and therefore awarded her $0 damages. The effects on a civil case of actions taken in a related criminal case is something clients should discuss with their counsel before taking action.
4) Jeffco and Dobbs repeatedly make comments to one-another during the trial. This agitated the judge (as it is considered unacceptable behavior in any courtroom). As such, the parties' conduct at trial may have made the judge more inclined to give both parties nothing.
I in no way condone the use of training methods that might cause these types of injuries to a horse. But it should be noted that trainers might protect themselves from unfounded claims of horse injury or abuse by having all training clients sign a written training agreement, whereby the client releases the trainer of liability should the horse be injured in training and/or if the training does not achieve the desired results.
As I’ve previously stated in this prior post, negligence and malpractice lawsuits against veterinarians are generally “tough sleddin’” for plaintiffs in Texas. Would-be plaintiffs who wish to sue their veterinarians often face major obstacles such as: 1) proving damages; 2) obtaining effective expert testimony; 3) paying litigation expenses where there is a low likelihood of recovery; and 4) finding a lawyer experienced in representing plaintiffs in veterinary malpractice suits.
If Larry Welk’s name sounds familiar to you, it may be because his father was the famous bandleader Lawrence Welk, host of the long-lived Lawrence Welk Show. Larry and Lynn Welk’s Champagne Ranch, based in Malibu, California, is in fact named after the “champagne music” made famous by Larry’s father.
The Welks’ lawsuit, filed in the 415th District Court of Parker County, Texas (Judge Graham Quisenberry, presiding), centered around the alleged stifle injuries sustained by their young stallion, Juan Bad Cat. The Welks alleged that Dr. Foland had injected the horse’s stifles and performed a surgery without first consulting with the Welks or the horse’s previous veterinarian. The horse's prior veterinarian was the late Dr. Van E. Snow of Santa Ynez, California. According to the Welks’ suit, they lost the opportunity to compete and syndicate Juan Bad Cat due to Dr. Foland’s alleged negligence and malpractice. The Welks sought damages of approximately $3 million against Dr. Foland and his clinic.
Dr. Foland and his clinic filed counterclaims against the Welks, seeking damages for an unpaid veterinary bill, attorneys’ fees, and court costs.
The Welks were represented by Robert Talaska and Theodore G. Skarbowski, both based in Houston, Texas. Talaska’s firm, according to its website, specializes in human birth injuries. Skarbowski’s firm assists clients with such matters as National Firearms Act gun trusts, commercial litigation, contracts, and estate planning-- per its website.
Dr. Foland and his veterinary clinic were represented by Dr. Donald A. Ferrill of Brown, Pruitt, Peterson & Wambsganss, P.C. in Fort Worth, Texas. Dr. Ferrill is both a licensed veterinarian and an attorney who regularly represents veterinarians.
After a jury trial in September 2011 that lasted about 9 days, the jury returned a verdict in favor of Dr. Foland and his clinic for approximately $192,000 for an unpaid vet bill and attorneys’ fees. The jury awarded zero damages to the Welks.
I recently got the opportunity to catch up with Don Ferrill, the lawyer who represented Dr. Foland and his clinic, to talk about the evidence revealed in the case. According to Ferrill, “Dr. Snow diagnosed and had been treating the horse for what he believed was a congenital condition in its right stifle since it was approximately one year of age. The colt was not any worse off after Dr. Foland treated him than he was before the treatment.”
The plaintiffs’ expert witnesses, when pressed for details on cross examination, gave testimony that helped the defense, according to Ferrill.
“The evidence showed that Dr. Foland did consult with Dr. Snow’s office prior to performing surgery on the horse, and that Dr. Snow advised Dr. Foland to do the surgery at issue,” said Ferrill. Darren Simpkins, the Welks’ horse trainer who was boarding and training Juan Bad Cat in Texas at the time, testified that he gave Dr. Foland permission to perform the stifle injections, according to Ferrill. “These injections [Vetalog and hyaluronic acid] did not numb pain in the horse’s limbs, did not contribute to lameness, and were the type that performance horses typically receive for routine maintenance,” said Ferrill. The Welks also had Dr. Foland perform a colic surgery on one of their other horses after the lawsuit was filed, according to Ferrill.
“Prior to the depositions of Darren Simpkins and his wife, Kelly Simpkins, Ted Skarbowski warned Kelly Simpkins that the Welks would sue them if they testified that they gave Dr. Foland permission to perform the injections”, according to Ferrill. “Darren Simpkins nonetheless testified in his deposition that he gave Dr. Foland permission to inject the horse, and the Welks sued the Simpkinses in federal court for breach of fiduciary duty”, Ferrill said. The federal case against the Simpkinses was later dismissed because the statute of limitations on the Welks’ claims against the Simpkinses had already run.
As an aside, I briefly discussed the Simpkins case and its significance in this prior post.
In Judge McBryde's Memorandum Opinion and Order of March 10, 2010 in the federal case, Judge McBryde stated on page 20, “To put the matter mildly, the testimony given by plaintiffs on February 10, 2010, is suspect.” He then goes on to explain how the Welks' deposition testimony in the case against Dr. Foland directly contradicts their depositions in the federal court case.
According to the Champagne Ranch website, Juan Bad Cat stood at stud in 2011 at ESMS in Weatherford, Texas for a fee of $1,500 plus chute fee.
In December 2011, Judge Quisenberry reduced the amount of attorney’s fees awarded to Dr. Foland by the jury as a result of a JNOV (judgment notwithstanding the verdict) motion filed by the Welks’ lawyers. Nonetheless, the final judgment still ordered the Welks to pay damages to Dr. Foland and his clinic, and the Welks took nothing on their claims. According to Ferrill, the Welks also had to pay their own attorneys’ fees pursuant to their fee agreements with their lawyers.
Case Information: Larry and Lynn Welk v. Dr. Jeffrey A. Foland and Weatherford Equine Medical Center P.C., Cause No. CV-07-1322 in the 415th District Court of Parker County, Texas; Lynn Welk, et al. v. Darren Simpkins, et al.; Case 4:09-CV-00456-A in the United States District Court for the Northern District of Texas (Fort Worth Division).
**Note: Thank you to the readers who requested that I cover this case on the Equine Law Blog last fall after the jury reached its verdict. Generally, my policy is to not comment on a case until after its full and final disposition, which in this case happened in late December, 2011. Thank you for reading and for submitting topic suggestions!**
7. New medication rules were adopted by a number of horse organizations
Performance and race horse medications were a hot topic in 2011. Among other organizations, the Breeders' Cup decided to phase out the use of Lasix, and NRHA initiated random testing protocols and adopted a new medications rule in 2011.
On May 30, 2011, the Texas House of Representatives and the Texas Senate both signed House Bill 414, which affects the practice of equine dentistry in Texas. Absent a veto by Governor Perry, the bill will become law, effective September 1, 2011. The law, if approved by the Governor, will be codified in Section 801 of the Texas Occupations Code.
The new law will create licensing requirements for non-veterinarian equine dentists practicing in Texas. The law will carve out specific areas of equine dentistry that may be practiced by licensed non-veterinarians, and will give the Texas Board of Veterinary Medical Examiners authority to regulate non-veterinarian equine dentists.
Once the law takes effect, a person may not perform equine dentistry or offer or attempt to act as an equine dental provider unless the person is either a veterinarian or a “licensed equine dental provider” who is active and in good standing, performing under the supervision of a veterinarian who is active and in good standing.
Individuals will be prohibited from representing to the public that they are authorized to perform equine dentistry and may not use the title “dentist.” Licensed Equine Dental Providers may use the title “CEDP” upon licensure or “EDP” if they are licensed under the Grandfather clause before September 2013.
Under the new law, a licensed equine dental provider may legally provide only the following services, under the general supervision of a licensed veterinarian:
(1) removing sharp enamel points;
(2) removing small dental overgrowths;
(3) rostral profiling of the first cheek teeth;
(4) reducing incisors;
(5) extracting loose, deciduous teeth;
(6) removing supragingival calculus;
(7) extracting loose, mobile, or diseased teeth or dental fragments with minimal periodontal attachments by hand and without the use of an elevator; and
(8) removing erupted, non-displaced wolf teeth.
When providing the sanctioned activities described above, licensed equine dental providers will be held to the same standard of care as a veterinarian under the new law.
This new law will create, for the first time, a detailed definition of what constitutes “equine dentistry” in Texas.
The new law will not change any of the current laws related to the use of prescription drugs, such as the sedatives commonly used in teeth floating procedures. HB 414 has no impact on any other procedures that are often carried out by non-veterinarians, such as chiropractic care, farriery, acupuncture and reproduction-related practices.
For more information, see the press release issued today by the Texas Veterinary Medical Association and the summary of HB 414 issued by the American Association of Equine Practitioners.
Several people have asked me if I thought there would be litigation over the death of Eight Belles after her second place finish at the 2008 Kentucky Derby on May 3. Although animal rights activists staged a protest at the office of the Kentucky Horse Racing Authority after the filly's death, I don't think there will be any litigation.
The filly's death did not seem to be caused by the negligence or wrongdoing of any person or entity.
What did cause Eight Belles to break both front ankles? According to the Wall Street Journal, Eight Belles' breakdown may have arisen from a variety of factors such as genetics, track surface, training methods, or medications. Interestingly, Eight Belles and 2006 Kentucky Derby winner Barbaro were both descendants of Northern Dancer, a 1950s Thoroughbred whose racing career was cut short by leg injuries.
What is being done in the horse racing industry to prevent future breakdowns? The Welfare and Safety of the Racehorse Summit, which first convened in 2006 after Barbaro's breakdown in the Preakness, met again in Lexington March 17-18, 2008. The Summit promulgated its recommendations to improve racehorse welfare, and those recommendations addressed the following issues:
Track Surfaces--including research and development of synthetic (Polytrack) surfaces
Racing Medication & Drug Testing Laboratories
Education--focusing on training methods
Regulation--to establish uniform regulation of medication and integrity issues
Solutions for unwanted Thoroughbreds
Promote genetic diversity of the Thoroughbred
If the Summit's recommendations are implemented, huge positive changes in the Thoroughbred racing industry could be realized. However, according to Dan Metzger, the President of the Thoroughbred Owners and Breeders Association, "miracles will not happen overnight."