Simon v. Taylor, CIV 12-0096 JB/WPL.

• Citation: 252 F.Supp.3d 1196
• Decision Date: 12 May 2017
• Docket Number: No. CIV 12-0096 JB/WPL.,CIV 12-0096 JB/WPL.
• Parties: Richard SIMON; Janelle Simon ; Eric Curtis and Jose Vega, Plaintiffs, v. Heath TAYLOR ; Jerry Windham; Pat Windham; Marty L. Cope; Arnold J. Rael; B. Ray Willis; Thomas Fowler; Larry Delgado and The New Mexico Racing Commission, Defendants.
• Court: United States District Courts. 10th Circuit. District of New Mexico

252 F.Supp.3d 1196

Richard SIMON; Janelle Simon ; Eric Curtis and Jose Vega, Plaintiffs,¹

v.Heath TAYLOR ; Jerry Windham; Pat Windham; Marty L. Cope; Arnold J. Rael; B. Ray Willis; Thomas Fowler; Larry Delgado and The New Mexico Racing Commission, Defendants.

No. CIV 12-0096 JB/WPL.

United States District Court, D. New Mexico.

Filed May 12, 2017

Robert H. Fritz, III, Fritz Law Firm, Houston, Texas, Chad W. Dunn, Brazil & Dunn, Houston, Texas, Attorneys for the Plaintiffs.

Brian O'Toole, Brian O'Toole, P.C., Austin, Texas, Billy R. Blackburn, Blackburn Law Office, Albuquerque, New Mexico, Attorneys for Defendants Heath Taylor, Jerry Windham, and Pat Windham.

Nicholas Sydow, Assistant Attorney General, Albuquerque, New Mexico, Attorneys for Defendants Marty L. Cope, Arnold J. Rael, B. Ray Willis, Thomas Fowler, Larry Delgado, and the New Mexico Racing Commission.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTERcomes before the Court on: (i) the Defendants' First Motion for Summary Judgment as to Claim for Intentional Interference with Prospective Economic Advantage and Memorandum in Support Thereof, filed December 21, 2016 (Doc. 136)("Defendants' Intentional Interference with Prospective Economic Advantage MSJ"); (ii) the Defendants' Second Motion for Summary Judgment as to Claim of Fraud and Memorandum in Support Thereof, filed December 21, 2016 (Doc. 137)("Defendants' Fraud MSJ"); (iii) the Defendants' Third Motion for Summary Judgment as to Prima Facie Tort Claim and Memorandum in Support Thereof, filed December 21, 2016 (Doc. 138)("Defendants' Prima Facie Tort MSJ"); (iv) the Defendants' Fourth Motion for Summary Judgment as to Negligence Claim and Memorandum in Support Thereof, filed December 21, 2016 (Doc. 139)("Defendants' Negligence MSJ"); and (v) the Plaintiffs' Motion for Summary Judgment, filed December 22, 2016 (Doc. 140)("Plaintiffs' MSJ"). The Court held a hearing on January 25, 2017. The primary issues are whether: (i) the Defendants are entitled to summary judgment on the Plaintiffs' claims for intentional interference with prospective economic advantage, fraud, prima facie tort, and negligence, because the Plaintiffs did not adduce sufficient evidence for a reasonable jury, based upon the preponderance of the evidence, to return a verdict for the Plaintiffs on those claims; (ii) whether two laboratory test results indicating the presence of caffeine in a urine sample taken from Stolis Winner after the 2008 All American Futurity are sufficient evidence for a reasonable jury, based upon the preponderance of the evidence, to return a verdict for the Plaintiffs on the Plaintiffs' claims for intentional interference with prospective economic advantage, fraud, prima facie tort, and negligence; (iii) whether, on this record, the Plaintiffs can recover on an implied private cause of action arising under the New Mexico Horse Racing Act, N.M. Stat. Ann. §§ 60–1A–1 to 60–1A–30, and the Racing Commission's rules, N.M. Admin. Code § 15.2.6 ; and (iv) whether, based on the record evidence, the Plaintiffs are entitled to summary judgment on their intentional interference with prospective economic advantage, fraud, prima facie tort, and negligence claims.

The Court concludes: (i) that the Defendants are entitled to summary judgment on the Plaintiffs' intentional interference with prospective economic advantage claim, because the two positive tests results indicating the presence of caffeine in Stolis Winner's urine establish such a miniscule caffeine concentration so as not to amount to even a scintilla of evidence supporting the Defendants' intentional administration of caffeine to the horse with a purpose to interfere with the Plaintiffs' prospective contractual relations; (ii) that the Defendants are entitled to summary judgment on the Plaintiffs' fraud claim, because the two test results indicating trace amounts of caffeine in Stolis Winner's urine are insufficient for a reasonable jury to find that the any of the Defendants knew that the horse had ingested caffeine and, consequently, knowingly made a false misrepresentation; (iii) that the Defendants are entitled to summary judgment on the Plaintiffs' prima facie tort claim, because the two test results indicating trace amounts of caffeine are insufficient for a reasonable jury to find that the Defendants improperly trained Stolis Winner with a purpose to harm the Defendants; (iv) that the Defendants are entitled to summary judgment on the Plaintiffs' negligence claim, because a reasonable jury could not find by a preponderance of the evidence that the two test results establish a breach of the standard of care reflected by New Mexico Administrative Code §§ 15.2.6.9(B)(2) and 15.2.6.9(L)(3)(c); (v) that, even if the Plaintiffs could establish breach, a reasonable jury could not find by a preponderance of the evidence that the miniscule amount of caffeine present in Stolis Winner caused the Plaintiffs any injury; (vi) that the Plaintiffs cannot recover on an implied private cause of action under the New Mexico Horse Racing Act, N.M. Stat. Ann. §§ 60–1A–1 to 60–1A–30, and the Racing Commission's rules, N.M. Admin. Code § 15.2.6, because Stolis Winner's two test samples do not exceed the Racing Commission's promulgated "regulatory threshold" for caffeine as an "environmental contaminant[ ] and substance[ ] of human use" of "100 nanograms per milliliter of plasma or serum [equivalent to ~300 ng/ml in urine], below which the Racing Commission does not impose any disciplinary action for the presence of caffeine in a race horse, N.M. Admin. Code § 15.2.6.9(L)(3)(c); and (vii) that the Plaintiffs are not entitled to summary judgment on their claims, because the Plaintiffs have not met their burden to demonstrate that they are entitled to judgment as a matter of law on any of their claims based on the record evidence of the two positive results indicating trace amounts caffeine in Stolis Winner's urine. Accordingly, the Court (i) grants the Defendants' Intentional Interference with Prospective Economic Advantage MSJ, the Defendants' Fraud MSJ, the Defendants' Prima Facie Tort MSJ, and the Defendants' Negligence MSJ; and (ii) denies Plaintiffs' MSJ.

FACTUAL BACKGROUND

The Court draws the factual background from the parties' assertions of undisputed material fact in their cross motions for summary judgment. See Defendants' Intentional Interference with Prospective Economic Advantage MSJ at 1–4; Defendants' Fraud MSJ at 1–4; Defendants' Prima Facie Tort MSJ at 1–3; Defendants' Negligence MSJ at 1–3; Plaintiffs' Response to Defendants' Motions for Summary Judgment at 2–20, filed January 4, 2017 (Doc. 143)("Plaintiffs' Response"); Plaintiffs' MSJ at 1–3; Defendants' Response to Plaintiffs' Motion for Summary Judgment at 1–3, filed January 23, 2017 (Doc. 146)("Defendants' Response").²

1. The 2008 All American Futurity.

This dispute arises out of the tenth and final round of the 2008 All American Futurity, a quarter-horse³ race at Ruidoso Downs, New Mexico on September 1, 2008. See Plaintiffs' MSJ ¶ 1, at 1 (asserting this fact); Defendants' Response at 1 (not disputing this fact). The winning horse in the 2008 All American Futurity entitled the owners of the winning horse to a purse of one million dollars. See Plaintiffs' MSJ ¶ 5, at 2 (asserting this fact); Defendants' Response at 1 (not disputing this fact). The owners of the second-place horse were entitled to a purse of $285,000.00. See Plaintiffs' MSJ ¶ 5, at 2 (asserting this fact); Defendants' Response at 1 (not disputing this fact).

Defendants Jerry and Pat Windham ("the Windhams") owned a horse, Stolis Winner. See Plaintiffs' MSJ ¶ 2, at 2 (asserting this fact); Defendants' Intentional Interference with Prospective Economic Advantage MSJ ¶ 1, at 1 (asserting this fact). At all relevant times, Defendant Heath Taylor trained Stolis Winner. See Plaintiffs' MSJ ¶ 2, at 2 (asserting this fact); Defendants' Intentional Interference with Prospective Economic Advantage MSJ ¶ 2, at 1 (asserting this fact). Plaintiffs Richard and Janelle Simons ("the Simons") also owned a horse, Jet Black Patriot. See Plaintiffs' MSJ ¶ 4, at 2 (asserting this fact); Defendants' Intentional Interference with Prospective Economic Advantage MSJ ¶ 3, at 1 (asserting this fact). "Stolis Winner held the fastest qualifying time out of all 145 entrants for the 2008 All American Futurity." Defendants' Prima Facie Tort MSJ ¶ 5, at 2 (asserting this fact). See Plaintiffs' Response at 2–4 (not disputing this fact). "Stolis Winner was the strong favorite to win the 2008 All American Futurity." Defendants' Prima Facie Tort MSJ ¶ 7, at 2 (asserting this fact). See Plaintiffs' Response at 2–4 (not disputing this fact).

On September 1, 2008, at Ruidoso Downs, immediately before and after the race, many people were in close proximity to Stolis Winner under circumstances that did not control for ambient caffeine contamination. See Videotaped Deposition of Heath Taylor at 181:11–25 (taken April 26, 2016), filed January 4, 2017 (Doc. 143–11)("Taylor Depo.").⁴

A. ... To pet the horse if it's standing there or something I don't think is a prohibited activity, but usually the horse is walking or getting ready to run.

Q. In the day of the running of the All American, how many owners usually appear—at least in 2008 how many owners that you're aware of appeared in the paddock before the race?

A. Oh, countless. It's like opening the gate at a rock concert. You don't have to have pass credentials or any credentials in order to get in the infield of a racetrack. So it was just—you couldn't hardly walk, basically.

Taylor Depo. at 181:13–25 (Taylor, Blackburn).⁵ At the race, Stolis Winner barely crossed the finish line ahead of Jet Black Patriot. See Plaintiffs' MSJ ¶ 4, at 2 (asserting this fact); Defendants' Intentional Interference with Prospective Economic Advantage MSJ ¶ 9, at 2 (asserting this fact).⁶

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