In a mock trial held May 2 as part of the National Equine Law Conference in Lexington, a large majority of "jurors" ruled in favor of plaintiffs who filed civil action lawsuits against a farm for damages related to mare reproductive loss syndrome.
The jurors were lawyers who attended the conference sponsored each year by the University of Kentucky College of Law the week of the Kentucky Derby. The exercise, the first ever held during the conference, featured expert testimony and lawyers who made arguments for either side.
In the real world, there are no known lawsuits tied to MRLS, which struck Central Kentucky in the spring of 2001 and caused early and late-term fetal loss. The total economic impact of the syndrome is estimated at $336 million from 2000 to 2003.
Such a case would have many obstacles, not the least of which is getting a court to hear it. There still is no definitive cause of MRLS, and speculation follows almost every aspect of the syndrome. Simply proving why a mare lost a foal could be a challenge.
Attorney Phillip Scott of Greenbaum Doll & McDonald in Lexington presided over the mock trial. Dr. David Powell of the UK Equine Research Foundation and Steve Johnson, manager of Margaux Farm near Midway, Ky., offered the expert testimony. John Phillips, an attorney and managing partner of Darby Dan Farm near Lexington, outlined the case.
Attorney Michael Meuser of Miller, Griffin & Marks of Lexington, represented the defendant, while attorney Robert Houlihan Jr. of Stoll, Keenon & Park of Lexington represented the plaintiffs.
In summary, two Thoroughbred owners boarded mares at a high-profile farm that suffered MRLS losses, but none as severe as other farms. The case largely involved the way the mares were handled while at the farm and whether the farm met the standard of care for such a facility.
Meuser said the case was nothing more than an attempt to shift the inherent risk of breeding Thoroughbreds to the farm. He said standards weren't breached, and the farm proved that by having the fewest foal losses of any farm. Houlihan suggested the farm failed to meet the standard because some of the horses weren't treated in the same manner as the farm's stock, and also cited a lack of disclosure of information.
Of the 80 jurors, 65 ruled in favor of the plaintiffs. One owner with three mares at the farm lost all three foals, each of which was sired by a stallion with a $500,000 no-guarantee stud fee. He was awarded damages that ranged from $150,000 to $2.1 million.
The other owner had four mares that also carried foals sired by a no-guarantee stallion. Two suffered early fetal losses, and the jurors granted her damages that ranged from $500,000 to $1.5 million.
The mock trial was hardly scientific. (Scott said about eight or nine "verdicts" were tossed because the jurors failed to follow instructions.) Though the result was interesting, many questions were left unanswered primarily because of the very nature of MRLS and breeding business in general.
Phillips called it the "fog of the crisis." He said MRLS struck quickly, created "massive confusion," left people scrambling for information that wasn't always available, and continues to evolve even now.
Johnson, who said his farm has 30% fewer yearlings for this year's Keeneland September sale--"I'm not alone," he said--believes the focus now must be on "control measures."
"I'm grateful knowing the cause and effect (related to MRLS), but to maintain my client base and my cash flow, I need to keep producing horses," Johnson said.
The syndrome was uncovered two years ago the week of the Kentucky Derby. Powell said it's still early this year, but thus far, there have been no reported cases of MRLS. In addition, the population of Eastern tent caterpillars, the agent most closely linked to MRLS, is low this year, he said.