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Attorney For Baffert Claims Human Back Pain Patch Caused Drug Positives For Gamine, Charlatan

Hall of Fame trainer Bob Baffert claims that two horses in his barn were “unknowingly and innocently exposed” to a banned substance that wound up in their post-race test samples from May 2 at Oaklawn Park in Hot Springs, Ark.

Information leaked from initial testing by the Arkansas Racing Commission's contracted laboratory in late May indicated that Gamine and Charlatan both tested positive for the Class 2 drug lidocaine. Gamine won a May 2 allowance race by a neck. She subsequently won the Grade 1 Acorn Stakes at Belmont Park on June 20 by 18 ¾ lengths. Charlatan won a division of the Grade 1 Arkansas Derby and shortly thereafter suffered a minor ankle injury that will have him sidelined until after the Sept. 5 Kentucky Derby. Both horses are unbeaten in three starts.

Split samples, sent at Baffert's request to the Equine Analytical Testing Laboratory at the University of California-Davis, confirmed the findings, according to published reports.

Lidocaine is used by veterinarians during lameness examinations to “block” or numb a horse's limbs. It is also commonly found in ointments and analgesic treatments and patches to alleviate pain in humans.

A statement from Baffert's attorney, Craig Robertson, said both Gamine and Charlatan were exposed to the lidocaine from a patch worn by a member of the trainer's staff suffering back pain while tending to the horses at Oaklawn.

“Even though lidocaine is a lawful, widely available therapeutic medication, it was never intentionally administered to either Gamine or Charlatan,” the statement reads. “When test results indicated that trace amounts of lidocaine were found in both horses after their respective races on May 2, Bob Baffert and his team were shocked. Leading up to May 2, both horses were healthy and worked hard to earn their victories that day.

“After investigation,” the statement continues, “it is our belief that both Gamine and Charlatanwere unknowingly and innocently exposed to lidocaine by one of Bob's employees. The employee previously broke his pelvis and had been suffering from back pain over the two days leading up to May 2. As a result, he wore a Salonpas patch on his back that he personally applied. That brand of patch contains small amounts of lidocaine. It is believed that lidocaine from that patch was innocently transferred from the employee's hands to the horses through the application of tongue ties by the employee that was handling both horses leading up to May 2.

“What I want to make clear are the following three points: 1) This is a case of innocent exposure and not intentional administration; 2) the levels of Lidocaine found in both Gamine and Charlatan that day were extremely small – 185 picograms for Gamine (in race 7), and 46 picograms for Charlatan (in race 11). A picogram is a trillionth of a gram. 3) It is our understanding that the trace amounts of Lidocaine found in both Gamine and Charlatan would not have had any effect on either horse – much less a performance enhancing one. The extreme sensitivity of modern-day testing can now pick up trace levels of innocent contaminants that have no effect on a horse. This is an issue that regulators of horse racing need to account for and address.

“Based on these facts, we intend on defending the cases involving Gamine and Chalatan before the Arkansas Racing Commission.”

Jimmy Barnes, assistant trainer for Baffert, saddled the horses at Oaklawn in the trainer's absence. He suffered a fractured pelvis in September 2017.

Recommended penalty for a Class 2/Category B penalty drug like lidocaine is a minimum 15-day suspension and $500 fine for a first offense under Association of Racing Commissioners International Model Rules. A second offense has a 30-day penalty and $1,000 fine. Some racing commissions consider simultaneous violations of the same drug as a mitigating factor and do not increase penalties for a second offense.

The Model Rule also calls for disqualification, meaning the owners would lose the purse money from the races (Gamine earned $36,600 and Charlatan $300,000). In the case of Charlatan, the 100 qualifying points earned for the Kentucky Derby would be transferred to Basin, the second-place finisher (if the case is resolved before Sept. 5). Currently sidelined Gouverneur Morris finished third, Winning Impression fourth and Anneau d'Or fifth. Points for the Arkansas Derby division are awarded on the basis of 100-40-20-10 to the top four finishers.

Gamine is owned by Michael Lund Petersen. Charlatan is owned by the partnership of SF Racing LLC, Starlight Racing, Madaket Stables LLC, Stonestreet Stables LLC, Frederick Hertrich III, John D. Fielding and Golconda Stables.

An even bigger financial stake for the owners of Charlatan may be in the sale of breeding rights to Hill 'n' Dale Farm announced several days after the Arkansas Derby. Depending on the language and when the contract between the parties was signed, the sale price may have hinged on Charlatan being a Grade 1 winner. If the Speightstown colt is disqualified from the Arkansas Derby – his stakes debut – the sale price could be reduced by millions of dollars unless and until he officially becomes a Grade 1 winner in the future.

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New York Times Report: Split Sample Positive for Baffert Runners

Split samples taken from Charlatan (Speightstown) and Gamine (Into Mischief) after wins on the Arkansas Derby Day card at Oaklawn Park May 2 confirmed positive results for the local numbing agent Lidocaine, according to a report in New York Times Monday evening. Both horses are trained by Bob Baffert. Charlatan was a six-length victor in a division of the GI Arkansas Derby, while Gamine won an allowance race on the card and has since gone on to a romping victory in the GI Acorn S.

A statement released by attorney Craig Robertson on behalf of Baffert Monday, said it was believed an employee had inadvertently exposed the two horses to Lidocaine while wearing a pain-relieving Salon Pas patch. The statement also noted the trace amounts of the drug would have had no impact on the performances of the two horses.

The Arkansas Racing Commission confirmed in late May that two horses from the Baffert barn had tested positive for an illegal substance and that the trainer had requested a split sample from each be tested.

Robertson’s complete statement released Monday follows.

Even though Lidocaine is a lawful, widely available therapeutic medication, it was never intentionally administered to either Gamine or Charlatan. When test results indicated that trace amounts of Lidocaine were found in both horses after their respective races on May 2, Bob Baffert and his team were shocked. Leading up to May 2, both horses were healthy and

worked hard to earn their victories that day.

After investigation, it is our belief that both Gamine and Charlatan were unknowingly and innocently exposed to Lidocaine by one of Bob’s employees. The employee previously

broke his pelvis and had been suffering from back pain over the two days leading up to May 2.

As a result, he wore a Salon Pas patch on his back that he personally applied. That brand of patch contains small amounts of Lidocaine. It is believed that Lidocaine from that patch was

innocently transferred from the employee’s hands to the horses through the application of tongue ties by the employee that was handling both horses leading up to May 2.

What I want to make clear are the following three points:

This is a case of innocent exposure and not intentional administration.
The levels of Lidocaine found in both Gamine and Charlatan that day were extremely small–185 picograms for Gamine (in race 7), and 46 picograms for Charlatan (in race 11). A picogram is a trillionth of a gram.
It is our understanding that the trace amounts of Lidocaine found in both Gamine and Charlatan would not have had any effect on either horse–much less a performance-enhancing one. The extreme sensitivity of modern-day testing can now pick up trace levels of innocent contaminants that have no effect on a horse. This is an issue that regulators of horse racing need to account for and address.

Based on these facts, we intend on defending the cases involving Gamine and Charlatan before the Arkansas Racing Commission.

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Experts Say Arkansas Derby Split Sample Still On Schedule–The Only Difference Is The World Is Waiting On It

Ever since word leaked out that Charlatan tested positive for a substance widely reported to be lidocaine following the Grade 1 Arkansas Derby on May 2, one of the biggest questions on the minds of readers is – isn't this an inordinately long period of time to wait for the split sample test?

The answer: no, not really.

Dr. Scott Stanley, who previously served as director of toxicology at Truesdail Laboratories and the Kenneth L. Maddy Equine Analytical Chemistry Laboratory at University of California-Davis, said this particular split sample came along at a tough time.

“In general, split tests for drugs detected in urine samples take three to four weeks minimum,” said Stanley, who is now a faculty member at the University of Kentucky's Maxwell H. Gluck Equine Research Center and UK Department of Veterinary Science. “In the busy season — late spring and summer months — those turnaround times often increase because of the heavy workload at most equine labs. This year is much worse, because most of the equine testing labs were shut down because of COVID-19, [and] the few labs still operating had reduced staff with social distancing required. The lab's first priority is to their own clients with split samples scheduled in available time.

“Taking all these circumstances into consideration, I wouldn't be surprise if any split sample this spring were to take six to eight weeks.”

The referee laboratory in this case likely didn't receive the split sample until late May or early June, putting us four weeks into the process. Stewards confirmed to the Paulick Report July 1 that the split results are not yet complete.

Why does it feel to race fans (and certainly, no doubt, to Charlatan's trainer, Bob Baffert) like an awfully long time to wait for results?

Probably because we're not often aware of how long the road between a positive post-race drug test and a stewards' ruling is until after a case is concluded. Just days ago, we reported on a settlement reached between trainer John Sadler and the California Horse Racing Board for three medication violations incurred in April and May 2019 for gabapentin and clenbuterol. In early February, Louisiana stewards fined trainer Joe Sharp for levamisole positives his horses incurred in December, which he said were the result of a deworming product.

The public typically isn't aware of drug positives until after a split sample has come back, an investigation is complete, and the stewards issue a ruling. That's because most racing jurisdictions have rules or statutes specifying post-race positives be kept confidential for some period of time. In some states, it's until the stewards make a ruling, in others it's until a hearing has been held, and in still other cases it's for a set period of time after the positive has been reported by the laboratory to the regulatory body.

The lone exception to this could soon be California. The California Horse Racing Board found itself under fire last year after the New York Times revealed 2018 Triple Crown winner Justify tested positive for scopolamine after his Santa Anita Derby win. A split sample confirmed the presence of the substance, and a CHRB investigation concluded it was a result of contamination from jimson weed. The regulatory body held a hearing into the matter behind closed doors (in August 2018, roughly four months after the race in question) and no one knew it had happened at all until the Times report. For many, it was the lack of transparency in the process, which was completely permissible by state statute, that was more troubling than the positive test.

Since then, California SB 800 has sought to change the state's Business and Professions Code on this point. Among other provisions, the bill would add a section to existing law requiring the CHRB to put on its website results of “all nonconfidential official test samples” within five business days of confirmation of the split sample or the waiver of split sample by the trainer rather than keep those results confidential until after a hearing and ruling.

SB 800 has passed the California Senate unanimously and has moved on to the Assembly Committee on Governmental Organization as of June 18.

“The confidentiality requirement is in the Business & Professions Code, meaning it takes action by the Legislature, not the Board,” said Scott Chaney, executive director of the CHRB. “If it eventually passes both the Senate and Assembly and is signed by the Governor, it will become law on January 1. We anticipate that all of these things will happen.”

Of course, that still doesn't mean the public will have access to an initial positive test – a test performed by a state-contracted laboratory at the order of a state government body. To some fans and members of the public, it may seem that information should be part of the public record.

On the other side of the fence though, attorneys say disclosing post-race test results without the benefit of a split sample could truncate a trainer's right to be treated as innocent until proven guilty.

“A lab calls a positive and of course that's an allegation — there hasn't been due process,” said attorney Drew Mollica. “So I'm taking this for granted, no commission has ever told me this, but I'm thinking the commission says that it's only an allegation. They don't distribute the purse, they keep it confidential until they litigate it.”

Charlatan ended up with an injury that took him off the Kentucky Derby trail anyway. But if he hadn't, Mollica points out that a positive in a Derby points race has consequences for other trainers and owners as long as it remains unresolved, whether they're told about it ahead of a split sample test or not.

Justify was not disqualified for his post-Santa Anita Derby overage because officials ultimately decided his positive test was due to contamination. But if he had been disqualified in August from his Derby prep win in April, it certainly would have raised questions about the time it takes the commission and laboratories to complete initial testing, split sample testing, an investigation, and a ruling and/or hearing.

“Here's my problem with that in this day and age, especially when it relates to the Kentucky Derby — because of the points to get into the Derby, you have a problem now,” said Mollica. “Horses get into the Derby on the points, so I'm of the opinion that if the test comes up bad in those races, they should announce it because it has ramifications.

“In the real world, you're innocent until proven guilty. We as defense lawyers want due process. But I think there's a competing interest as it relates to these Derby races that get horses to the next level that might not belong there. This is a problem, and I don't think they should award the points until it's been litigated. I know that's a problem, especially if you win points two weeks before the Derby and it gets you in, but there are ramifications here for the people who are second and third.

“Justice delayed is justice denied, I get it. A rush to judgment is also bad. There are competing interests. I understand both sides of it.”

Besides the impacts of disclosure and nondisclosure to trainers and fans, there are other people who could be impacted by knowing which races and trainers are awaiting the results of a split: the employees of the laboratory asked to do the split sample test.

“In my experience at LGC we used a laboratory information management system that assigned a laboratory number to every sample upon receipt,” said Dr. Rick Sams, former laboratory director for LGC Sport Science in Lexington, Ky. “The sample was identified only by this number while in the laboratory so that testing personnel would not know the origin or history of any sample. This was done for the purpose of reducing bias. Nevertheless, I find it unfortunate and disturbing that the findings for this sample were released and the trainer identified before the split sample analysis had been completed because this put the split sample laboratory in a very difficult position.”

The situation could become especially sticky if for some reason the referee laboratory has a different finding than the lab which conducted the initial positive test – how will the public trust the results now that everyone, including the referee lab, knows the split sample came from an accomplished trainer and an impactful race? Could the release of the initial test results impact the commission's case (or Baffert's) if the stewards end up disqualifying the horse?

For now, it seems everyone – the horse's connections and the public alike – have more questions than answers.

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