Equine Genetics and Potential Liability by Rachel Kosmal McCart

by Rachel Kosmal McCart | December 14th, 2011 1:26 PM | No Comments

by Rachel Kosmal McCart

There has recently been a concern expressed by people worried about purchasing genetically defective horses. AQHA puts the HYPP status on the horse’s papers, but ApHC, APHA and PtHA do not. Also PSSM is on the rise and has been traced to several prominent sires within all the stock breeds. What are the liabilities for someone selling an untested horse, or lying about a positive test? AND is it legal for a potential buyer to pull hair to get it tested?

What an interesting and timely question!  Here’s my analysis.

Disclosure of Genetically Linked Conditions

      Just as with other types of equine health issues, if a horse seller has information that might be material to the buyer’s purchase decision, the horse seller is legally obligated to disclose this information to the buyer.  But with genetically linked conditions and traits, the to-disclose-or-not-to-disclose questions can be tricky.  Here are some common factual scenarios.

1)    The sale horse has tested positive for a genetically linked condition that could affect the horse’s health, such as HYPP or HERDA.

a.  Does the seller know about the positive test?

  • Yes?  The seller has a clear obligation to disclose.
  • No?  Move on to question 1(b)

b.  Does the seller have any reason to know about the positive test, such as the fact the test results are stamped on the horse’s papers, or that the now-seller had access to the horse’s vet records containing the positive test results?

  • Yes?  The seller has a clear obligation to disclose.
  • No?  Only if the seller truly has no reason at all to know about the positive test would the seller avoid liability for failing to disclose the positive test.  Example:  When the now-seller purchased the horse, the horse’s previous owner did not disclose the positive test results, and nothing since the purchase has put the now-seller on notice of the positive test results.

2)    The sale horse carries a genetically linked problem, such as OLWS, that won’t affect the sale horse’s health, but could affect the health of its offspring.

a.  Is the sale horse a gelding or spayed mare?

  • Yes?  The seller has no obligation to disclose, because the genetically linked problem will not affect the sale horse’s health, and it’s impossible for the sale horse to pass on the genetically linked problem to its offspring.  Therefore, the genetically linked problem should have no effect on the sale horse’s market value.
  • No?  See questions 1(a) and 1(b) above.  Note that even if the prospective buyer has no plans to breed the sale horse, the seller still has an obligation to disclose the sale horse’s carrier status, because this could have a material impact on the horse’s market value at the time of sale

3)    The sale horse hasn’t been tested for any genetically linked conditions, but the sale horse has exhibited symptoms that might indicate the sale horse has a genetically linked condition, such as severe skin issues typical of HERDA.

a.  Does the seller know about the symptoms?

  • Yes?  The seller has a clear obligation to disclose the symptoms to the buyer.  The burden then shifts to the buyer to determine whether the symptoms (and any genetic condition they might indicate) are important to the buyer’s purchase decision.
  • No?  Move on to question 3(b).

b.  Does the seller have any reason to know about the symptoms?  Examples:  The now-seller has copies of vet records describing the symptoms, or the seller’s current trainer knows about the symptoms.

  • Yes?  The seller has a clear obligation to disclose the symptoms to the buyer, even if the seller has no actual knowledge of the symptoms.
  • No.  Only if the seller truly has no reason at all to know about the symptoms would the seller avoid liability for failing to disclose the symptoms.  Example:  The horse exhibited the symptoms prior to the now-seller’s purchase, the symptoms were never disclosed to the now-seller by the previous owner, and the horse has not exhibited any symptoms during the time the now-seller has owned the horse.

4)    The horse buyer is clearly under the impression that the sale horse carries a desirable genetic trait, such as being homozygous for a certain color gene, but the horse isn’t actually a carrier.

a.  Does the seller know the horse isn’t a carrier?

  • Yes?  The seller has a clear obligation to correct the buyer’s false impression.
  • No?  Move on to question 4(b).

b.  Does the seller have reason to know the horse isn’t a carrier?

  • Yes?  The seller has a clear obligation to correct the buyer’s impression if the seller knows it is probably (or certainly) false.  Example: The buyer thinks the sale horse is homozygous for the black gene.  However, the seller is aware that the sale horse has produced chestnut offspring.
  • No?  Only if the seller truly has no reason at all to know that the buyer’s impression is false would the seller avoid liability for failing to correct the buyer’s false impression.

Advertising a Horse’s Genetic Status

            A horse seller must be truthful in advertising a sale horse, and must have a reasonable factual basis for making any claims about a horse’s attributes.   These duties extend to advertising a horse’s genetic status.  Here are common factual scenarios likely to lead to horse seller liability:

  • Seller advertises sale horse as “homozygous” for a particular genetic trait.  Horse turns out to be heterozygous for the trait (or not carry it at all).
  • Seller advertises sale horse as not carrying a particular gene.  Horse does in fact carry the particular gene.
  • Horse breeder advertises unregistered horse as being the product of Stallion A and Mare B.  Buyer purchases horse and sends in registration application with DNA sample.  Registry refuses to register horse because DNA tests show horse is the product of Mare B, but not Stallion A.

Self-Help DNA Testing by Horse Buyers

            A prospective horse buyer can’t take a DNA sample from a sale horse without the horse seller’s permission – blood, mane hair, anything.  While it might be hard to believe that anyone would have the chutzpah to do something like this, I recently had a prospective buyer ask me what to do because they took an unauthorized blood sample (really!) from a sale horse at a competition and the sample tested positive for a substance banned by the competition rules.  My advice?  Tell no one and hope the sellers never find out, or they might sue you for trespass to chattels, among other things!

About the Author

Rachel Kosmal McCart is an equine attorney and the founder of Equine Legal Solutions, PC, a law firm dedicated to the horse industry. Rachel regularly represents clients in litigation matters and breed association disciplinary hearings, and also provides clients with customized contracts. Equine Legal Solutions also offers a wide range of horse contract forms, such as horse sale and purchase agreements, boarding contracts and equine liability releases. These equine contracts are available for download from Equine Legal Solutions’ website.

This column is provided for informational purposes only and is not intended to be legal advice. Because even small variations in the facts and circumstances of individual legal cases can dramatically affect the advice an attorney would provide, Rachel Kosmal McCart, Equine Legal Solutions and Pleasurehorse.com highly recommend that all readers with potential legal cases consult their own attorneys. If you don’t have an attorney, Equine Legal Solutions’ website offers a state-by-state directory of equine attorneys, along with tips for hiring an attorney.

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