By: Matt Hegarty

LEXINGTON, Ky. – One of the two lead plaintiffs will drop out of a lawsuit filed earlier this year against the Kentucky Horse Racing Commission contesting its decision last year to award a license for a new harness track and casino.

Kentucky Racing Acquisition, which last year reached an agreement to purchase Kentucky Downs, will notify the Franklin County Court of Appeals that it no longer wants to be listed as a plaintiff in the suit as early as Tuesday afternoon, said the attorney for the company, Bill Hoskins. The other plaintiff in the suit is the former ownership group of Kentucky Downs.

The group told the commission Tuesday that it was withdrawing from the complaint as the commission was considering whether to approve the company’s license application, pending the closing of the deal to purchase the track. Kentucky Racing Acquisition is a partnership whose managing partners are Ron Winchell, the Thoroughbred owner and breeder, and Marc Falcone, a former casino executive.

The lawsuit was filed in early January by the two plaintiffs and alleged that the commission had acted “arbitrarily” in awarding the new license in late 2018 to a partnership of Churchill Downs Inc. and Keeneland. The lawsuit asks the court to void the decision.

Kentucky Downs had submitted its own bid for the new Oak Grove license, along with Caesars Entertainment. The group led by Winchell and Falcone reached the deal to buy the track in the week prior to the commission awarding the license, complicating Kentucky Downs’s bid.

It is unclear if the former owners of Kentucky Downs will proceed with the suit. Corey Johnsen, the managing partner of the former ownership group, did not immediately return a phone call on Tuesday afternoon after the commission meeting.

The Oak Grove casino and harness track will likely have a significant impact on the casino already located at Kentucky Downs, which is in Franklin, Ky., near the Tennessee border. Both locations are equidistant from Nashville, Tenn., which is the largest market for the existing Kentucky Downs casino.

* Also at the Tuesday meeting, the commission approved an outlay of $146,000 for a research project that is seeking to develop new screening methods for blood-doping drugs. The project is trying to find a way to screen for low doses of the drugs or new types of the drugs similar to the most well-known blood-doping agent, erythropoietin. The outlay comes from the budget of the Equine Drug Research Council, an arm of the commission that receives one-tenth of 1 percent of the state’s parimutuel tax, capped at $650,000 annually.

The research project was announced last week as part of a pair of studies approved by the Racing Medication and Testing Consortium, an industry group. The veterinarian Mary Scollay, the commission’s equine medical director, said that “anecdotal reports” in Thoroughbred racing have suggested that some horsemen may be “micro-dosing” blood-doping drugs, a term that refers to the frequent use of small doses of the drug to achieve the effect of large doses administered far less frequently, and that the research project could result in tests that could detect such small administrations.

Scollay also updated the commission on the number of fatalities that occurred at Kentucky racetracks in the prior year, calling it “a bad year.” According to Scollay, 36 horses died at Kentucky racetracks in 2018, a number well out of line with results in the previous five years.

“We’ve been looking hard at what happened,” she said. “I am unwilling to accept that this may just be an outlier event.”

Scollay said that necropsies have been conducted on all of the horses that died, and that commission personnel have conducted extensive examinations of race and training records to determine if there were any common factors. The results have not produced any overriding evidence of leading factors, though Scollay said that she had some hypotheses that she was expecting to pursue. She declined to reveal those hypotheses.