Today’s attorney for Bob Baffert, the coach of 2021 Kentucky Derby winner Medina Spirit, said today that the now disqualified horse may have been treated with an antifungal ointment called Otomax, which contains betamethasone. This is the anti-inflammatory drug found in the horse’s blood after the race that resulted in the disqualification and declaration of Mandaloun as the new winner. However, this means that thousands of players have been ripped off by betting on Mandaloun to win or betting on combinations of the top horse placement. Conversely, those who have collected Medina Spirit on the longer shot are allowed to keep their winnings. The question is, isn’t there anyone an honest gamer could sue?
As may be surprising to some, if you lose money on a rigged game or a disqualified horse, you are not eligible for a refund. In the 147th Kentucky Derby, people put huge sums of money not only on the winning horse but also on horses to place and display. Medina Spirit paid 12-1.
Many people have lost a lot of money and a much smaller number have won a godsend. While the owner has to return the prize money, players are told to take a trip around the track because of their problems.
This is because the Kentucky Horse Racing Commission’s rules of control and these rules dictate that bets and payments are final, although it was later shown to be a rip off for gamblers. Once the race is called, it cannot be called for the horse, but not for the players.
This is not the first such case in the Kentucky Derby. In 1968 Dancer’s Image won, but phenylbutazone was found in a urinalysis of Dancer’s Image after the race. The Forward Pass was declared the winner.
As a side note, this could be a novel way of preventing a lucky break in betting. You are not stunning your horse, but someone else’s horse who was not expected to win. This horse will then be disqualified after the race. When you’re a bookmaker, you clear the losing bets on the best horses and pay little on the dark horse.
So here is my concern. This was either negligence or willful fraud if the scratch card account is correct. In any case, the owners and managers of Medina Spirit cost a class of gamers millions. Why is an act of intent or negligence not the subject of a tort claim? Both a factual and a legal cause could be asserted. If the alleged cause of friction is proven, it is the cause of the loss of millions through disqualification. It doesn’t seem that far off for purposes of immediate or legal causation. While one can hardly predict a profit even with the use of such drugs, this is not a weakened causal chain or a case in which there are many intervening forces or agents.
The courts could clearly decide that this is unpredictable as a result, especially in the case of negligent use of friction. However, in a highly regulated and tested industry, this doesn’t seem that unpredictable. This is one of the major problems for both owners and individuals with the use of drugs or products that can transmit banned substances (or lead to unacceptably high levels of the substance).
Courts are often faced with a reduction in their chances of survival or profits. There is a novel comparison that could be associated with the illicit act of “loss of chance” in undiagnosed disease. Such cakes are allowed even if there was less than a fifty percent chance of survival. US courts have found that the requirement of a survival limit of at least 50 percent is too strict. One of the first statements was made in 2008 by the Massachusetts Supreme Court in Matsuyama against Birnbaum. This case involved a patient who complained of stomach discomfort and was diagnosed as gastritis. He had stomach cancer and later died. His family sued and the court ruled that the requirement of greater than fifty percent survivability was a view that was being rejected by an increasing number of courts and experts. In 1983, in the Herskovits v Group Health Cooperative of Puget Sound case, the court found that even a 14% reduction in the chance of survival from lung cancer was workable. (Note: some English courts have proven hostile to allegations such as those made in Gregg v Scott  UKHL 2;  2 WLR 268, where a court rejected such a motion for a man whose chances of survival for non-Hodgkins lymphoma were reduced from 42% to 25% due to a failure to diagnose the disease.).
I’ve never seen a case like this before, but it could pose some novel problems for a class action lawsuit against the owner. Even if this is more problematic for negligence, which can occur in a variety of ways, a deliberate act (if ultimately proven) seems to warrant some degree of recovery for the injured. Obviously, the courts will be reluctant to open the floodgates to good bets that have gone bad. However, this seems like a far more believable claim when a player has actually won a race but the wins have been denied due to an owner’s behavior.