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What Will That Extra Urine Testing In The Medina Spirit Case Actually Tell Us?

Attorneys for Medina Spirit's connections spilled a lot of ink last week to ensure their clients will have the opportunity to run extra tests on a split sample of the horse's urine. They hope to demonstrate that the betamethasone detected in two rounds of testing after the Kentucky Derby was the result of a topical ointment applied for a skin rash, not an injected treatment to relieve pain or inflammation. The eventual goal, according to a civil suit filed in Franklin Circuit Court over that extra testing, will be to argue that a topical application of betamethasone isn't prohibited by Kentucky regulations and that repercussions for trainer Bob Baffert and owner Zedan Racing should therefore be mitigated. A judge ruled on June 11 that the extra testing will go on, and it only remains for the Kentucky Horse Racing Commission and the horse's connections to agree on how much urine will be tested.

The second objective, the question of whether administration route matters, will come down to a long (and probably dry) legal argument. The first objective, the proof of where the betamethasone came from, hangs on that extra testing, which means this is a good time to ask – can extra urine testing actually prove the origin of the betamethasone in question?

Maybe, says equine drug testing expert Dr. Rick Sams. But maybe not.

There are two ways that drug testing could try to establish whether the betamethasone came from an ointment or an injectable: by looking for the other ingredients in Otomax, the topical cream Baffert eventually said was used to treat a rash on Medina Spirit's hindquarters, or by identifying the exact chemical makeup of the betamethasone in the sample.

Besides betamethasone, Otomax also contains gentamicin, an antibiotic, and clotrimazole, an anti-fungal. Post-race samples aren't tested for most antibiotics or antifungals because those drugs are not acting directly on the body of the horse — they're designed to combat bacteria or fungi. As such, most of them aren't regulated in racehorses the same way an anti-inflammatory is, so it's not surprising that these ingredients weren't reported on the initial post-race test or in the split sample.

(Procaine penicillin is the common exception to this, since procaine is a numbing agent also used in other ways, outside the combination with penicillin. Penicillin is known to cause some discomfort in horses when injected, so it's often formulated with procaine to make repeated administrations more tolerable.)

Sams worries however that it's unlikely either of those drugs would have made it into the horse's urine in a sufficient amount to be testable, because they were given as topicals. They were present in a topical application with the directive to work on a surface- level skin rash, so their purpose was to work on bacteria or fungi on the skin's surface. He suspects they weren't designed to be readily absorbed through the skin and into the bloodstream, since most of their work was to take place on the outside of the horse.

“I think the likelihood of gentamicin ever getting absorbed in sufficient quantities to show up in the urine is essentially zero,” he said.

In the case of clotrimazole, it's present in very low levels in Otomax, making it even less likely it would be absorbed.

“There are no studies I can find that demonstrate any appreciable absorption of clotrimazole after topical administration,” Sams said.

It's also not immediately clear how many accredited racing labs would be able to test for either substance, because it's not part of the usual battery of post-race tests. A civil court hearing June 11 revealed that New York's Equine Drug Testing Program housed at Morrisville State College will conduct the extra testing.

The other thing Zedan and Baffert hope the extra testing will reveal is the chemical makeup of the betamethasone detected in post-race sampling. Otomax contains betamethasone valerate, which is chemically different from betamethasone acetate and betamethasone sodium phosphate – the two versions of betamethasone used in injectable products. The words acetate, sodium phosphate, and valerate all refer to esters, which are chemical compounds derived from acids that are attached to a molecule of betamethasone.

“If one was to look for the valerate ester and find it, that would demonstrate that something other than the injectable preparation was administered to the horse,” said Sams. “But I think the chance of finding the valerate ester of betamethasone is zero, because the valerate ester has very low water solubility, and substances have to have water solubility to get excreted into the urine so I don't think it ever gets into the urine as valerate.”

It's possible that the legal team will ask the lab to look for betamethasone acetate and betamethasone sodium phosphate instead, with the idea that if they aren't found, that would demonstrate the horse wasn't given injectable betamethasone. Sams said the betamethasone acetate is, similarly to betamethasone valerate, not all that water soluble and therefore he wouldn't expect to find it in urine, even if it had been administered to the horse. The sodium phosphate ester however, is very water soluble and that may be excreted into the urine readily. Sams has done previous research on a chemically similar ester and found it was pretty easy to detect.

Racing labs aren't typically asked to determine which form of a drug like betamethasone is in a sample and Sams said he is not aware of any racing lab ever previously attempting to make this distinction.

So how helpful could this additional testing be? Its usefulness to Bob Baffert and Zedan Racing may be more about what it doesn't show than what it does. If the testing confirms betamethasone but can't determine which form is present, or finds no evidence of either injectable version, the attorneys may point out that there is no evidence to refute Baffert's version of events.

Of course, Sams and many others have stated that they don't believe Kentucky's rules differentiate between routes of administration for regulated substances like betamethasone. Whatever Baffert and Zedan hope to learn from the extra testing they've fought for, they will no doubt look to challenge that belief in court proceedings that may stretch on for months or years to come.

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The Week in Review: Attorney Vienna’s Take on Baffert-Betamethasone Case

Having practiced law for more than 25 years, attorney Darrell Vienna has pretty much seen all there is to see when it comes to equine law, drug infractions, penalties and how racing commissions and courts interpret the rules. A former trainer based in California, he is renowned as one of the foremost experts in his field. So when it comes to the case of Medina Spirit (Protonico) and the positive test for betamethasone following the GI Kentucky Derby, his brain is well worth picking. And Vienna has said that he believes that, when it is all said and done, there may be some good news for the Bob Baffert team and some bad news.

While the case involves dozens of issues, the two that are most pertinent are these: Should Baffert, due to mitigating circumstances, get off without receiving a fine or suspension; and what are the chances that the courts or the Kentucky Horse Racing Commission, due to those same mitigating factors, will rule that the Derby result should stand with Medina Spirit being declared the official winner?

The lawyers representing Baffert and owner Amr Zedan have been presenting the case that the drug got into Medina Spirit's system not through an injection, but the through the application of a topical ointment use to treat a skin problem. That, they argue, would mean that the medication inadvertently got into the horse's system and that there was no attempt to use it as a performance-enhancer. They have asked a court to rule that the Kentucky Horse Racing Commission must turn over a portion of the remaining post-race urine sample so that it can be sent for further testing to determine if in fact the betamethasone came from the ointment, Otomax.

“It appears to me that the argument [from the Medina Spirit legal team] is going to be twofold,” Vienna said. “Yes, there was a positive. But their interpretation of the rules is that if it wasn't injected and, instead was applied, that it wasn't a violation of the rules.”

Is that relevant? Quite possibly, yes. Kentucky's racing regulations cover just that sort of situation. The rule reads: “The stewards, judges, and the commission shall consider any mitigating or aggravating circumstances properly presented when assessing penalties pursuant to this administrative regulation.”

That could mean, Vienna said, that Baffert will not be subject to a fine or suspension.

“Let's assume that everything we have heard is correct and it was a result of the administration of a topical ointment,” Vienna said. “Then I think the adjudicator, whether it's the stewards or a hearing officer, will take those facts into account and make a determination as to whether or not they constituted mitigation and if so what is the extent or weight of that mitigation? Could Baffert leave that hearing without any sanction? Yes.”

Vienna said that a legal precedent was set in the 1994 case of Lavin v. California Horse Racing Board (CHRB), which the court heard after three horses tested positive for scopolamine. A California court ruled that the trainers involved should be exonerated, but the horses were still disqualified, costing their owners the purse money.

The same could happen with Medina Spirit. Though there might have been mitigating circumstances to explain how the drug got in the horse's system, it doesn't appear, Vienna said, that such a finding is relevant when it comes to whether or not a horse should be disqualified for a drug positive.

“If there is a finding of a drug positive in an official post-race sample and if that is confirmed by split sample testing, which is the case in this situation, it would call for a disqualification,” Vienna said. “I don't believe there are any mitigating circumstances involved with that.”

(Full disclosure: Vienna represented owner/trainer Mick Ruis in his efforts to have the Baffert-trained Justify (Scat Daddy) disqualified from his victory in the 2018 GI Santa Anita Derby because he tested positive for scopolamine).

Then there are the bans handed down against Baffert by Churchill Downs and the New York Racing Association. For Baffert, the Churchill ban of two years could be particularly damaging because it would mean that he cannot compete in the 2022 and 2023 Kentucky Derby. Baffert's lawyer Craig Robertson has yet to say much about those penalties, but it can only be a matter of time before he tackles that issue. Some believe that a privately owned racetrack has the legal right to ban trainers. Some aren't so sure. So that issue could also ultimately wind up in the courts. Vienna's opinion is that Churchill and NYRA banned Baffert without due process.

“There is a bigger issue [than the betamethasone positive] and it's the exclusion of a trainer,” he said. “The exclusion of a trainer from a racing facility, which has been imposed on Baffert both at Churchill Downs and by the New York Racing Association, is really unfortunate and inappropriate. Mr. Baffert has not had an opportunity to defend himself, to see what the accusation is and to be able to marshal and present evidence in his defense. To exclude him without the barest minimum of due process, that's a big issue. It might be more sexy and juicy to talk about the disqualification of a Derby winner, but this disregard for basic due process is a really big issue and is important. I'm absolutely opposed to that and I think we should all be concerned about the exclusion of a licensed person without due process. It is absolutely improper for him to be excluded from any racetrack before he has had a hearing.”

Vienna will get no disagreement from Robertson, who is a worthy foe for the Kentucky Horse Racing Commission. Baffert and Zedan presumably have deep pockets and don't seem inclined to go down without a fierce fight. That means the case could be tied up in the courts for years. In the meantime, the debate rages on. Is Baffert guilty? Should Medina Spirit be disqualified? As they say, stay tuned.

Rick Porter, a True Credit to the Game

The racing game lost a giant last week when owner Rick Porter passed away at age 80 after a lengthy battle with cancer. Porter represented everything that is good about this sport and racing could use a lot more just like him.

Porter was successful, a class act, a sportsman who truly loved the animal. That's why the breakdown of his Eight Belles in the 2008 Derby was so painful for him, to the point that it almost led him to get out of the business.

Many will remember him for the stars he campaigned, Songbird, Havre de Grace, Kodiak Cowboy, Hard Spun or for the time he brought World War II-D Day veterans to the track to meet Omaha Beach.

But his most lasting contribution to the sport came through his work with the National Thoroughbred Welfare Organization (NTWO), a charity he created. That some horses wind up in a slaughterhouse after their days on the track are through obviously troubled him, so he set out to do something about it. Porter dispatched his able assistant Victoria Keith to Louisiana, where the slaughter issue was an on-going problem. Thanks to Porter's effort, the NTWO saved hundreds of horses who otherwise might have been slaughtered. Talk about walking the walk.

Monmouth Handle Roars Back

Because the handle was down significantly over the first two weeks of racing, some surmised that bettors were staying away from Monmouth Park because the jockeys were no longer allowed to whip their horses.

But the story changed significantly during week three. Monmouth put together its best card of the season Saturday. There were 13 races, five of them on the grass, and the average field size was 8.07. It was a quality product and the bettors responded. The handle was $6,180,159. On the corresponding day in 2019 they bet $4,744,905. (Due to the coronavirus, there was no racing on this date in 2020). On Sunday, an 11-race card handled $4,893,374. On the corresponding day in 2019 and on a 12-race card, they handled $3,244,618.

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In Baffert Case, Sides Haggle Over Urine Sample

Lawyers representing the Kentucky Horse Racing Commission (KHRC) and Bob Baffert squared off before Franklin Circuit County Judge Thomas Wingate Friday morning in a dispute over whether or not additional urine samples from Medina Spirit (Protonico) from the GI Kentucky Derby should be made available to the defendants' lawyers and, if so, in what quantity?

The Baffert team has asked for an additional urine sample because it believes further testing can prove that the drug in question, Betamethasone, found its way into Medina Spirit through an ointment used to clear up a skin condition and not through an injection. The KHRC argued that it needs to retain what's left of Medina Spirit's urine sample in case there is a need for further testing on its part or some sort of unforeseen problem related to testing.

Wingate asked the two sides to negotiate and come to a compromise. He said that if the sides could not agree, he would issue a ruling Wednesday. Wingate made it clear that he wants at least some of the urine to be handed over to the Baffert team.

“You sort of see where I am going and I think that if you come up with something more palatable and are afraid of how I am going to rule then do it. Fair enough?” Wingate said.

The hearing was held over Zoom and, at times, only Wingate could be heard clearly. For the most part, the statements made by KHRC attorney Jennifer Wolsing were inaudible.

The lawyers representing Baffert and Medina Spirit's owner, Amr Zedan, are building a case that the drug got into the colt's system through the ointment. They have said that would be the sort of mitigating circumstances needed to conclude that there was no attempt to improve the horse's performance, reason enough for Baffert to be exonerated and the original order of the Kentucky Derby to be upheld.

Also at issue is whether or not it matters where the Betamethasone came from. The courts and the KHRC might ultimately decide that is irrelevant, that the very presence of the drug is enough to warrant a disqualification, no matter the source of the drug.

“The rules of the Kentucky Horse Racing Commission are clear,” said Baffert's lawyer Craig Robertson. “Some 63 times in their rules it states that a trainer is allowed to present mitigating circumstances in consideration of a penalty. Proving that this was an ointment and it did not come from an injection is, at the bare minimum, a mitigating circumstance. We should be allowed and should be entitled to present that evidence and obtain that evidence to scientifically prove these facts.”

Robertson also touched upon public perceptions involving this case and the potential damage that could be done to Baffert's reputation.

“From a public perception perspective, my client has been excoriated unfairly and publicly about this and he's been accused of injecting this horse to cheat to win the Kentucky Derby,” Robertson said. “That this is a banned substance. That this is doping. None of which is true. We have an opportunity to get scientific evidence to prove that it's not true and they're trying to keep us from doing that. That's not fair.”

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Judge: Extra Testing In Medina Spirit Case Will Go On, Only Question Is Sample Size

At a hearing in Kentucky's Franklin Circuit Court on June 11, Judge Thomas Wingate determined that the legal team for Medina Spirit's connections will be permitted to do extra testing on a urine sample taken from the colt after the Kentucky Derby; the only question will be how much urine an independent lab will have access to.

Counsel for Medina Spirit trainer Bob Baffert and owner Zedan Stables filed a civil suit against the Kentucky Horse Racing Commission earlier in the week demanding their right to test the split urine sample, which sat undisturbed in the commission's freezer.

An initial post-race test from Medina Spirit was positive for betamethasone, and that was later confirmed on a split sample test. Attorneys for Baffert and Zedan now want to do further testing on biological samples from the horse in hopes of proving that the betamethasone present came from a topical cream and not an injection, which they say would be permissible under KHRC rules.

Jennifer Wolsing, general counsel for the KHRC, declined to speculate on whether a topical administration of betamethasone would require an exoneration in the case or whether it could be considered a “mitigating circumstance” with regards to penalty. She did point to the commission's drug classification guidelines, which make reference to betamethasone without specifying what form of betamethasone The only question at hand for this proceeding, she asserted, was what was to be done about further testing of the remaining biological samples.

Documents filed by the KHRC on Thursday revealed that in fact, the commission did not refuse requests from Baffert and Zedan to send blood and urine samples for additional testing after the split sample came back positive.

“This is a case about a litigant who will not take 'Yes' for an answer,” began the KHRC's response to the lawsuit.

After the split was positive, the KHRC agreed to release the remains of the primary blood and urine samples to an RMTC-accredited lab chosen by Baffert and Zedan, which was eventually identified during Friday's hearing as New York's Equine Drug Testing Program housed at Morrisville State College. There are four total samples at play here — two primary blood and urine samples, and two split blood and urine samples. Some of the primary blood and urine samples were tested after the race by Industrial Laboratories, which prompted the betamethasone finding in blood. The split blood sample was then sent to University of California-Davis for the split sample analysis. That means the split urine sample has remained in a freezer maintained by the KHRC. It also means each of the two labs may have some biological sample left over after they did their testing.

Industrial packaged portions it had left over of Medina Spirit's primary blood and urine samples and sent them off to New York. It turned out the vial containing the blood shattered, either en route or upon receipt at the New York facility. Since the vial was in the same bag as the urine container, Baffert and Zedan's attorneys voiced concerns that the leaked blood may have contaminated the urine container.

Then, KHRC said, it agreed to send commission equine medical director Dr. Bruce Howard to its freezer and film him opening the unused split urine sample, dividing it, and then have him personally transport a portion of it to the New York lab. When the Baffert/Zedan attorneys objected to the use of Howard, KHRC suggested it could find a substitute staff member and allow one or more team members from Baffert/Zedan counsel to also be present for the thawing and division of the sample. That option was also rejected.

As Wingate eventually determined, the parties agreed Baffert and Zedan should be able to test remaining blood and urine to see whether those samples could prove the origin of the betamethasone. They agreed that both the horse's connections and the commission should have representatives overseeing the move of the samples. Their only real sticking point was how much urine the New York lab should get for testing.

Wolsing argued that the KHRC needed to retain some of the sample, in case future testing should ever be needed.

“This is a situation where really anything could happen,” she said, pointing to the shipping issues with the blood sample as proof that it's a good idea to have some sample retained somewhere just in case.

Craig Robertson, attorney for Baffert, said he didn't want to restrict the New York lab to use a set amount of urine, since he didn't want them to be in any way limited in the quality of their testing.

The size of the split urine sample is estimated to be between 25 and 27 milliliters. Wingate said he would enter an order in the middle of next week requiring at least 3 milliliters to be kept by the KHRC, with the hope the two parties could agree to something privately before then.

Wingate did press Wolsing somewhat on the question of whether all of this will end up mattering — meaning, will the outcome of these tests impact whether or not Medina Spirit is disqualified. Wingate said that while he had not reviewed KHRC code, his initial feeling was that it wouldn't make much difference if the form of betamethasone Medina Spirit received did or didn't impact performance. Wingate also presided over the lengthy civil suit of Graham Motion, who fought a drug positive for methocarbamol. Wingate had overruled the KHRC in that case and was later reversed on appeal. He felt the methocarbamol did not influence the outcome of the race in question, but that the appeals court made it clear the rules did not allow for a determination about a substance's influence on race results.

“It's going to be very hard for this court to overturn [a potential ruling against Medina Spirit connections] based upon the Graham Motion case,” said Wingate, who clarified he was not pre-judging the Baffert case. “That's the way I look at it. I'm not prejudging it, but I've already dealt with the Graham Motion, which I thought was very unfair to Mr. Motion, I really did.”

Baffert did appear at the proceedings, which were held via video conference, but did not speak.

See the proceedings here:

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