Baffert's legal team, however, is banking that dismissal won't happen, and it told the court in the same document that it is anticipating the case should be able to be brought before a jury a little more than a year after it was first initiated.

“This matter should be ready for trial approximately in November of 2024,” Baffert's counsel wrote in the joint discovery plan. “Plaintiffs estimate that between five and eight days will be needed for trial.”

Back on Sept. 27, Baffert filed a suit against two New Jersey residents, Justin Wunderler and Daniel DiCorcia, that asked for compensatory damages in excess of $75,000, plus an award of punitive damages “to deter similar conduct by Defendants and others” after purportedly suffering “mental anguish, anxiety, and duress Defendants have caused by virtue of their repeated threats to Baffert's business and family by means of their unlawful statements.”

The alleged extortion and defamation took the form of repeated social media postings.

Among them, according to Baffert's complaint, were postings written by Wunderler asking “his followers to bring dangerous objects to hurl at Baffert and his family” at the 2023 GI Belmont S., and another in which Wunderler posted “a picture of Baffert's house in California.”

As Baffert's complaint put it, “This lawsuit is the response to a series of escalating threats and criminal conduct by Defendants Justin Wunderler and Daniel DiCorcia against Plaintiffs Bob Baffert and his family. Over the past several months, Defendants have urged others to engage in violent behavior toward Baffert and his family, baselessly accused Baffert of criminal conduct, and attempted to extort Baffert and his family under threats to his business, reputation, and occupational license.”

Both defendants have denied the allegations and are seeking a dismissal of the case.

Wunderler, however, did not initially file a timely legal response after being served with his  summons.

On Dec. 4, one of Baffert's attorneys, Clark Brewster, asked the court to enter a default judgment against Wunderler for failing to respond.

Wunderler subsequently obtained a lawyer and an answer was filed Dec. 15. The judge denied the motion for default judgment on Dec. 19 and ordered the case to proceed.

Next up is an “early neutral evaluation” conference Jan. 8 that is designed to serve as a form of alternate dispute resolution, although neither party mentioned the likelihood of a settlement in the Jan. 2 joint filing.

Baffert's legal team, in Tuesday's joint plan, brought up some anticipated issues relating to discovery, allegedly because “One or more defendants in this matter have posted on social media regarding their intent to seek discovery on matters beyond the scope of the Complaint.”

Discovery is the formal legal process by which the parties in a case exchange information in advance about witnesses and evidence that each side intends to present.

The filing by Baffert's lawyers continued: “This case is about Defendants' allegations of blood doping, the use of EPO, and their conspiracy to extort Mr. Baffert. Inquiries outside of these topics will be irrelevant except to the extent necessary to resolve issues regarding Mr. Baffert's reputation.”

The defendants were given an opportunity in the joint filing to give their positions on the topic of anticipated discovery issues.

“DiCorcia has nothing to add and no response to the amorphous comment above,” the joint filing stated.

“Wunderler agrees to adhere to the scope and limits of discovery [and] will adhere to any Court order regarding discovery,” the joint filing stated.

The post Facing Extortion Allegations, Defendants in Defamation Lawsuit Contend ‘Baffert is the Rare Libel-Proof Plaintiff’ appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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However, subsequent to that Nov. 29 ENE order, Baffert's attorney, Clark Brewster, asked the United States District Court (Southern District of California) on Dec. 4 to enter a default judgment against one of the defendants for failing to file an answer to the complaint in a timely manner.

Back on Sept. 27, Baffert filed a suit that asked for compensatory damages in excess of $75,000, plus an award of punitive damages “to deter similar conduct by Defendants and others” after purportedly suffering “mental anguish, anxiety, and duress Defendants have caused by virtue of their repeated threats to Baffert's business and family by means of their unlawful statements.”

As Baffert's complaint put it, “This lawsuit is the response to a series of escalating threats and criminal conduct by Defendants Justin Wunderler and Daniel DiCorcia against Plaintiffs Bob Baffert and his family. Over the past several months, Defendants have urged others to engage in violent behavior toward Baffert and his family, baselessly accused Baffert of criminal conduct, and attempted to extort Baffert and his family under threats to his business, reputation, and occupational license.”

Baffert's complaint stated that Wunderler “resides in Waretown, New Jersey, and is a part-time pari-mutuel Thoroughbred racing bettor. Mr. Wunderler has a substantial social media presence and following under the pseudonym 'Swifthitter.'”

The complaint also stated that DiCorcia “resides in Point Pleasant, New Jersey, is a part-time pari-mutuel Thoroughbred racing bettor, and operates an apparel store called 'BarShoeLife' that sells racing-related apparel. Mr. DiCorcia also has a substantial social media presence and following under various pseudonyms related to that “Bar Shoe” handle.

Baffert's complaint alleged that “[T]his escalating pattern of outrageous behavior is specifically intended to accrue more followers and personal monetary gain. Before the [GI] Belmont S. in New York, Mr. Wunderler specifically asked his followers to bring dangerous objects to hurl at Baffert and his family. Shortly thereafter, Mr. Wunderler posted a picture of Baffert's house in California and claimed that he 'slaughters horses on National TV.'”

The complaint further alleged that, “Mr. Wunderler and Mr. DiCorcia engaged in a conspiracy to extort money from Baffert, sent a text message demanding a certain sum of money, with specific payment instructions for wiring money, in exchange for a promise not to release information Defendants allege is so damaging that it will end Baffert's career.”

DiCorcia, according to the court's docket, filed a timely, one-page response Nov. 28 that denied Baffert's allegations and asked for the claims to be dismissed.

Wunderler, however, did not file any response after being served, according to the motion filed Monday by Brewster on behalf of Baffert.

That motion cited Rule 55(a) of the Federal Rules of Civil Procedure, which states that a party can be found in default if they fail to plead or otherwise defend themselves from a party seeking relief via lawsuit.

The motion stated that Baffert “respectfully request[s] the Clerk to enter the default of Defendant Justin Wunderler for failure to plead or otherwise defend this action within the permitted time to respond.”

The motion attached an affidavit of service and stated Baffert's legal team made “several attempts” to serve Wunderler personally with the complaint at his residence.

“The individual served was Mr. Wunderler's mother, who confirmed that Mr. Wunderler lived at the residence,” Baffert's motion for default stated. “Plaintiffs also mailed copies of the Complaint and Summons through regular and certified mail to Mr. Wunderler. Through his various posts and discussions on the social media platform 'X,' formerly known as Twitter, Mr. Wunderler has confirmed that he is aware of the Complaint and has reviewed its contents.”

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“A short time before that, I didn't know if I'd ever be in the winner's circle again,” the 34-year-old trainer said. “To come back and win with a horse who we didn't have much in the way of expectations for and win in that kind of fashion, especially in Saratoga, was a special win. I felt like I had won a graded stakes race.”

In the moment, everything seemed normal again. His barn was full, he had just won a race in Saratoga and his reputation as one of the best young trainers on the NYRA circuit was in tact. But there was nothing normal about the first five days of July when Handal was issued a provisional suspension issued by the Horseracing Integrity Unit (HIWU), which meant he faced what could have turned into a career-crippling permanent suspension of up to two years.

“My world was ending,” he said.

Toward the end of training hours on June 30, he was approached at his barn by members of the HIWU team. He was told that a horse he trained named Barrage (War Dancer) had tested positive for a banned substance called Zeranol after finishing second in an optional-claiming allowance at Belmont May 28. Under HIWU rules, when a trainer has a positive test for anything on the banned substance list, they are suspended almost immediately, before a split sample can be reviewed and before the charged trainer is allowed to have a hearing. Handal's suspension began July 1.

He had been suspended and evicted from the grounds. He had to turn his horses over to someone else and faced having to spend two years on the sidelines. Under HIWU's policy of suspend now, ask questions later, it was unclear what could be done to overturn the suspension and how long that process might take. Handal feared the worst.

“It was horrible,” he said. “It felt like you just got a letter from the doctor saying you've got cancer and you've only got a few months to live. My heart dropped. I wasn't sad, upset or mad. I was in shock. I didn't know how to react.”

Handal was sure that he didn't do anything wrong. He had been training since 2014 and the worst thing on his record was a $500 fine issued by the Delaware Thoroughbred Racing Commission when a horse of his tested positive for Phenylbutazone and Flunixin. He said he didn't even know what Zeranol, which is synthetic nonsteroidal estrogen, approved for use to promote growth in livestock, including beef cattle, was.

“I have always played by the rules and I take pride in that. I care about my horses,” he said.

Handal turned to lawyer Clark Brewster, who, in racing circles, is best known for defending Bob Baffert through his many ordeals with Churchill Downs, NYRA and the Kentucky Horse Racing Commission. Brewster quickly came up with an explanation as to how the Zeranol got into the horse's system. After receiving a report from UC Davis, which tested the horse, Brewster saw that there was also a finding of Zearalenone, a common feed contaminant. He said that, therefore, mycotoxins in the feed had caused the positive. Handal, he argued, could not be blamed for having contaminated feed. HIWU agreed. On July 5, the provisional suspension was lifted.

Handal's nightmare was over. Thinkaboutit was his third starter and his first winner since the suspension was overturned.

The case may be over, but questions remain. Before HIWU took over the process of drug testing and issuing fines and suspensions after a positive has occurred, Handal's case would have been treated differently. This would have been handled by the New York Gaming Commission and it would have allowed Handal to have a hearing before a suspension could go into effect. Presumably, Brewster could have presented his findings at that hearing, the Gaming Commission would have accepted that the positive was the result of environmental contamination and Handal would not have been sanctioned and the original positive would not have been reported. He wouldn't have been put through four days of hell.

“They are shooting first and asking questions later and that needs to be addressed,” he said. “I don't know if specifically HISA and HIWU is trying to attack horsemen. But when this was planned out, it might have seemed ok on pen and paper, but, in action, it really doesn't work.”

He hopes that HIWU will reconsider the policy of issuing provisional suspension immediately after the finding of a banned substance comes in and before someone can have a hearing. HIWU showed that it can be flexible when it announced last week that there will be a lesser set of penalties going forward when a trainer violates rules regarding inter-articular injections.

“They have already revised some rules, so it doesn't seem like they are so close minded that they won't be open to making changes,” Handal said. “And they listened to our case. At the end of the day, they could have dragged it out, but they reacted quickly and swiftly and realized that it should have been handled as an atypical finding. They corrected themselves right away.”

Being a trainer in Saratoga can be challenging, especially if you're not named Chad Brown or Todd Pletcher. Handal won just four races at the meet last year, and, while his stable is improving every year, he's won just one graded stakes race. He's got that to worry about. But a two-year suspension that hung over his career when it appeared that he did nothing wrong, that is no longer an issue and he's winning races again. He will gladly take it.

Saratoga Handle Declines Sharply Over First Three Days

While it's far too early to panic, business at Saratoga was slow over the first three days of the meet. After the track broke records for total handle for the meet in 2022 and 2021, could Saratoga's numbers finally be evening out?

A total of $65,527,927 had been bet on the meet through Saturday. That's a decline of 21.3% from 2022 when $83,241,031 was wagered through the comparable period.

As far as the first two days of the meet go, there were extenuating circumstances. On opening day, NYRA had to speed up post times in order to get the card in before a storm struck. That could have been why handle was off 6.2%. On Friday, the races were washed off the turf, and handle was, understandably, dismal. They bet $13,366,687 on the card, a 45.2% decline from 2022.

The real concern is the numbers posted Saturday, when an 11-race card included three graded stakes and the races stayed on the turf. In what looks like an apples-to-apples comparison to 2022, the handle was $31,744,186. That's a 14.4% decline from 2022 when $37,068,005 was bet on the card.

And don't blame the Chad Brown factor in the GI Diana S. Brown had four of the five starters in this year's field, which some argued made it an unappetizing betting race. In 2022, Brown had four of the six starters.

The post The Week in Review: After a Nightmare, Ray Handal Returns to the Winner’s Circle appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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“Pursuant to ADMC Program Rule 3247(e), HIWU has lifted the Provisional Suspension based upon information submitted by the Covered Person and the review of relevant scientific information. The Equine Anti-Doping Notice has not been withdrawn,” reads the notice on HIWU's website.

Rule 3247(e) reads simply, “(e) If it considers it appropriate to do so on the specific facts of the case, the Agency may lift the Provisional Suspension.”

Brewster argued that UC Davis's finding that Zearalenone, a common feed contaminant, was also in the sample, pointed to the fact that mycotoxins in the feed had caused the positive. He provided HIWU with documentation supporting his claims.

“I'm pleased,” said Brewster, “It's great when you have the kind of transparency and applications of rules that most scientists are trying to see. I don't think the provisional suspension was warranted, but the rules for HISA and HIWU are written very directly without a lot of discretion. I have to hand it to the lab at UC Davis on pointing out the atypical finding and I'm pleased that when we supplied the literation and our position that the HIWU folks took it seriously, reviewed it and made the right decision.”

Brewster said that he hoped that this case would provide a blueprint for future situations like this, and help to foster common-sense solutions.

“I think it will be helpful as we work through these rules and understand some of the exceptions and interpretive points,” Brewster said. “For now, they did what the rules required them to do. They found a prohibited substance, issued a provisional suspension, and then said the positive came from a feed toxin and did what they had to do.”

“With his provisional suspension lifted today by HIWU, trainer Ray Handal is once again able to fully participate in all training and racing activities at NYRA tracks,” said NYRA's Vice President of Communications Patrick McKenna.

The post Ray Handal’s Suspension Lifted by HIWU; Feed Toxin Blamed appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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Churchill Downs, Inc. (CDI), the defendant in Baffert's year-old lawsuit, also scored a legal victory when Judge Rebecca Jennings of United States District Court (Western District of Kentucky) granted the gaming corporation's motion to dismiss the case on five of the six counts that CDI had argued.

Baffert was attempting to reverse the second year of a two-year ban by CDI that prohibits his trainees from racing at CDI-controlled tracks, accruing Derby qualifying points and competing in the Derby.

CDI first imposed that punishment in June 2021 because of a string of drug positives in horses Baffert trained, including two in CDI's most prominent races, the 2020 GI Kentucky Oaks and the 2021 Derby.

“Churchill Downs is pleased that the Court denied Mr. Baffert's demand for a preliminary injunction and granted our motion to dismiss on all but one claim, and on that claim the Court held that Mr. Baffert did not establish a likelihood of success on the merits. Today's opinion is a victory for the integrity of horseracing and we will continue to take action to protect the safety of our human and equine athletes,” CDI spokesperson Tonya Abeln wrote in an emailed statement.

A voicemail message seeking comment from Baffert did not yield a return call prior to deadline for this story.

Baffert's attorney, Clark Brewster, spoke to TDN around 6:30 p.m. Eastern on Friday. He said he was just leaving a federal courthouse in Wisconsin after arguing another case, and that he would only be able to comment based on a summary of the rulings because he had not yet had time to fully read Judge Jennings's orders.

“This is extraordinary, because the whole alleged rule violation was based on the use of a salve or an ointment that was expressly permitted and authorized by the rules,” Brewster said. “There's no question about it. No person could look at it now and say that that was a rule violation…. So then you wonder how a private entity could just take somebody out for two years without even having an interest in knowing the merit of their position…

“All it would have taken was dialogue [with CDI], a fair exchange of information,” Brewster continued. “And this devastating action they took was very damaging to horse racing. It wasn't the use of the salve that was damaging to horse racing. It was the reaction without any knowledge or interest in obtaining knowledge…

“I haven't talked to Bob because I just stepped out of the courtroom,” Brewster said. “But I can tell you, knowing Bob well, he's amazing from the standpoint of accepting other people's actions toward him, even though they're misplaced in the facts.”

Drilling Down the Injunction Denial

“As explained, Baffert is the only trainer whose horses have tested positive in back-to-back marquee races on CDI tracks,” Jennings wrote. “Failing to punish trainers whose horses test positive in marquee races could harm CDI's reputation and the integrity of their races. Moreover, trainers have already earned points towards the 2023 Kentucky Derby. If Plaintiffs' horses are allowed to race, then they would necessarily exclude those who would have otherwise qualified,” Jennings wrote.

“The Court finds that CDI and innocent third parties who have already earned points would be substantially harmed if the court imposed an injunction. Therefore, the substantial harm factor weighs against injunctive relief,” Jennings wrote.

“The final factor the Court must evaluate is 'whether the public interest would be served by the issuance of the injunction.' There is a strong public interest in deterring misconduct on CDI's tracks. Moreover, the Sixth Circuit has held that '[t]he public has a strong interest in holding private parties to their agreements.'

“Baffert signed the Rules and Conditions for Racing and Training and the Stall Application. Accordingly, the Court is inclined to hold the parties to their agreements. The Court finds that the public interest weighs against injunctive relief,” Jennings wrote.

Baffert had initially sued CDI on Feb. 28, 2022, alleging civil rights violations related to what he said was a deprivation of his right to due process of law guaranteed under the Fourteenth Amendment.

But in her Feb 17, 2023, order, Jennings wrote that Baffert's time lag for renewing his initial motion for preliminary injunction was a factor in her determination not to grant it.

“Plaintiffs renewed their motion for a preliminary injunction approximately 10 months after filing the Complaint…” Jennings wrote. “This means they waited approximately 19 months after the [2021 CDI] suspension to request injunctive relief from this Court. In their reply and at the Feb. 2 hearing, the only excuse Plaintiffs could give for their delay was the pursuit of litigation in other jurisdictions…. Accordingly, Plaintiffs' delay weighs against a finding of irreparable harm from the outset of the Court's analysis.”

Jennings then wrote about other alleged harms Baffert had articulated.

“Plaintiffs contend that the most obvious harm they will suffer is the loss of purses. In response, Defendants contend that the loss of purse money is speculative and inappropriate for injunctive relief….Here, Plaintiffs allege that the amount of winnings they will lose due to CDI's suspension 'is impossible to calculate.' These winnings are impossible to calculate because

they are entirely speculative and theoretical….Accordingly, the Court finds that Plaintiffs' loss of purses is speculative and does not result in irreparable harm.”

Baffert had also argued that his inability to run horses in the Derby would create harms based on a loss of “goodwill” among long-standing clients with Derby prospects. Again, Jennings disagreed.

“Here, although a horse's eligibility to run in the Kentucky Derby is a once in a lifetime opportunity, trainers may enter horses every year,” Jennings wrote. “CDI's suspension is only applicable to [Baffert]. As [a trainer, he] may enter horses in every Kentucky Derby after the suspension expires…. There is no indication that owners would not continue to use Plaintiffs' services after the 2023 Kentucky Derby even if the Court did not enjoin CDI's ban…. Therefore, Plaintiffs have not demonstrated irreparable harm by losing their ability to compete in the 2023 Kentucky Derby.”

Dissecting the Dismissal Motion

Regarding CDI's motion to dismiss the case, Jennings framed her decision this way:

Count I (Violations of Civil Rights): “Plaintiffs have alleged facts sufficient to state a claim for a violation of Baffert's due process rights only as they relate to his trainer's license. Therefore, Defendants' Motion to Dismiss claim is DENIED.”

Count II (Unlawful Exclusion): “Plaintiffs have failed to assert a claim against CDI for unlawful exclusion under the common law. Defendants' Motion to Dismiss Plaintiffs' unlawful exclusion claims is GRANTED.”

Counts III-IV (Antitrust Claims): “Plaintiffs have failed to state a claim for either of the alleged antitrust claims. The Court will not address additional arguments asserted by the parties in their briefs because Plaintiffs do not have standing to assert antitrust claims as alleged. Defendants' Motion to Dismiss Plaintiffs' antitrust claims is GRANTED.”

Counts V-VI (Tortious Interference Claims): “Plaintiffs' tortious interference claims cannot succeed because CDI exercised legitimate contract rights…. Baffert violated the terms of the Rules and Conditions for Racing and Training, which prompted CDI's suspension. CDI was within its rights to suspend Baffert even if doing so harmed ongoing or prospective business relationships between Baffert and horse owners seeking his services….Therefore, Defendants' Motion to Dismiss Plaintiffs' tortious interference claims is GRANTED.”

KHRC Suspension 'Not an Issue'

After crossing the finish wire first in the 2021 Derby, Medina Spirit tested positive for the Class C drug betamethasone, which Baffert later asserted was introduced into the colt's system by way of a salve to heal a skin rash.

Medina Spirit collapsed and died after a workout at Santa Anita in December 2021. He was posthumously disqualified from the Derby by the Kentucky Horse Racing Commission (KHRC) in February 2022. Baffert's appeal on that matter (and the suspension he has already served but wants cleared from his record) is pending.

Jennings also noted within her ruling that during hearings on Feb. 2 and 3, both parties “spent a great deal of time discussing the merits of claims before the KHRC, which are not at issue here.”

She wrote that, “as the Court instructed at the beginning of the hearing on Feb. 3, whether Plaintiffs violated the KHRC rules and regulations is irrelevant. The Court will only examine whether Defendants acted within their rights to suspend Plaintiffs pursuant to federal and state law or any contracts between the parties. Therefore, the Court will not decide whether Plaintiffs violated KHRC rules and regulations by treating Medina Spirit with betamethasone because this issue is not before the Court.”

Additionally, in a separate Feb. 17 order, Jennings swatted down a Feb. 10 motion made by Baffert that asked for the judge to recuse herself from the case.

According to court documents, the stated reason for that recusal motion was that legislative lobbying efforts conducted by the judge's husband for two racing industry clients (The Jockey Club and The Stronach Group) allegedly created a conflict of interest for Rebecca Jennings in adjudicating Baffert's case.

“I have no personal bias or prejudice against any party to this litigation and I have no extrajudicial knowledge about the facts or circumstances of this case or the subject matter of this litigation,” Jennings wrote in denying the recusal motion.

“Additionally, neither I nor any member of my family has any financial interest in any of the parties or the outcome of this litigation. And, after a deep search of the law and review of all briefings, I have found no statutory or other reason for disqualification in the case before the Court and cannot recuse,” Jennings wrote.

Brewster told TDN he will be mulling legal responses based on whether it was appropriate for Jennings to issue the orders that came out on Friday in light of the pending recusal motion.

“I can tell you now that our motion to disqualify her was made in good faith, and with utmost respect for the court system,” Brewster said. “So the next thing is we have to consider the grounds for not granting our motion for recusal, and then determine whether her continued ruling somehow was not authorized [based on] the fact that she was under this recusal motion.”

“Again, we have the utmost respect [for] any judge who makes in to [a federal] position. But all parties are entitled to a clear appearance of no bias.”

The post Baffert Denied Injunction To Race in Derby; CDI Prevails In 5 of 6 Counts for Dismissal appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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Amr Zedan's attorney Clark Brewster unknowingly bought a horse at the Keeneland September Yearling Sale that was co-owned by Patrick, who operates the family-owned Ramspring Farm.

Patrick was expected to make a recommendation on the appeal to the Kentucky Horse Racing Commission within 60 to 90 days.

“After I bought the colt, I noticed how young the mare is and looked to see who owned her,” Brewster told Paulick Report. “When I saw that she had been bought by Ramspring Farm and Milam Farm, I asked Mark Taylor who that was.”

Brewster added that a new hearing officer would be appointed and either conduct another hearing or possibly use the transcripts from the first appeal.

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Baffert originally filed the appeal that led to this six-day hearing to clear from his record a 90-day suspension that he has already served and to also reverse Medina Spirit (Protonico)'s disqualification from the 2021 GI Kentucky Derby.

While Baffert was present in the Frankfort, Kentucky court when he first testified on Monday, Aug. 22, he returned to the stand virtually on Tuesday.

Baffert's attorney Craig Robertson began his questioning of Baffert by tackling Gamine's Kentucky Oaks where in her post-race testing, she tested positive for betamethasone–the same corticosteroid that led to Medina Spirit's disqualification from the 2021 Kentucky Derby eight months later. As has been articulated already during the hearing, Baffert explained that Gamine was administered betamethasone via intra-articular injection 18 days before the race, which was outside of the 14-day suggested withdrawal time.

Robertson asked Baffert about his initial reaction upon learning of Gamine's positive test.

“I told my veterinarians at Santa Anita that I do not want the use of betamethasone in my barn,” the trainer said. “They were all aware that we would not inject these horses with betamethasone…I told them the science isn't right. Gamine should never have gotten in trouble…I didn't want any issues and we still got in trouble.”

Later on during the testimony, Robertson presented a similar question when he asked Baffert what his reaction was upon learning of Medina Spirit's positive test for betamethasone.

“It hit me so hard,” Baffert said. “It was chaos. I knew when I got that call that my whole life was going to change that day. I immediately called my veterinarian Vince Baker…to find out what happened. He explained to me that there was no scientific way, that [Medina Spirit] did not get injected with betamethasone.”

Later asked how he has been affected by the events that have transpired since Medina Spirit's positive test was first announced, Baffert said, “It's been tough on everyone because we felt that we didn't break any rules, yet the media was being hard on us. They did a lot of big pieces and used the word 'doping' and all that.”

Robertson's questioning of Baffert also covered the overturned ruling in Arkansas with Gamine and Charlatan, the presentation of a photo of Medina Spirit's skin rash that Baffert said led to the administration of the topical ointment Otomax, and also got into the details of how Baffert was informed of the news that Medina Spirit had tested positive for betamethasone and the events that followed.

When it came time for Jennifer Wolsing, the general counsel for the KHRC, to cross-examine Baffert, Wolsing turned the conversation back to Gamine. She first brought up a point she had made during Baffert's first testimony last week that while the suggested withdrawal time of 14 days for a betamethasone administration is in the case of a single injection, Gamine received injections of betamethasone in both hocks prior to her Kentucky Oaks performance.

“I rely on my veterinarians and I know he treated her 18 days out,” Baffert said in response.

Wolsing then referenced Baffert's previous statement of discontinuing the use of betamethasone in his barn after Gamine's positive. She read a portion of the drug label for Otomax, which included the corticosteroid betamethasone valerate.

“I have to rely on my veterinarians,” Baffert said again. “This horse had a skin rash that was getting ready to get out of control and they jumped on it right away.”

At the close of her cross-examination, Wolsing noted that Baffert won the Los Alamitos Derby with High Connection (Connect) on July 9, 2022 immediately after serving the 90-day suspension.

“You did return and you returned triumphantly,” Wolsing said. “You can't say you're not doing extremely well right now.”

“I lost some really nice horses,” Baffert replied.

Also during Tuesday's hearing, Amr Zedan, founder of Zedan Racing Stable which campaigned Medina Spirit, took to the witness stand virtually from Jordan.

Craig Robertson asked Zedan about his background, how he got involved in U.S. racing and his relationship with Baffert. When asked if he has found Baffert to ever be untruthful or evasive, Zedan was quick to answer.

“To the contrary,” he explained. “And thank you for asking that question because everyone knows that I have a friendship with Mr. Baffert and the fact that I have a friendship is a result of all the good he has done for me and my family since day one…People confuse the person with the persona. People have stereotypes [in differentiating] the persona–with him being the face of the sport, which he actually is-from the person. The person is someone that is outstanding with his family and his friends.”

During his cross-examination by KHRC attorney Luke Morgan, Zedan took an opportunity to defend his trainer and said, “There's no upside for anyone here. The sport we all love has been tarnished. Bob Baffert has served his punishment and has been humiliated. His family's reputation has been dragged through the gutter because of all of this…And frankly speaking, Medina [Spirit] has proven to be the best horse in his crop. He's beaten the horses that competed against him over and over again. The horse, for God's sakes, died. Everyone has been punished. Let's just not punish the horse any further. That's all I ask.”

Tuesday's session concluded with closing arguments from both sides.

Brewster spoke first and opened with a list of 16 'Admitted Facts' that he said he believed all were without genuine dispute. Among them, he explained that betamethasone was ruled by the KHRC as a Class C medication on the basis of it being an intra-articular injection and said the KHRC was not presented with any study or basis for a decision to enact a rule related to a topical treatment that contained betamethasone valerate as a component.

“What we have here is an agency that has made no rule, has had no consideration and has made no decision whatsoever as to a topical ointment involving betamethasone valerate,” Brewster said.

While one of Brewster's main points was that the KHRC rules refer to only the injectable form of betamethasone, Wolsing began her closing arguments with a statement that suggested the opposite of the point that has been belabored heavily over the past 15 months.

“There has been a lot of testimony about ointments and injections and picograms,” she said. “I am here to suggest that we need a dose of common sense. Medina Spirit tested positive for betamethasone. The regulations and the science make no distinction between how the betamethasone got in the horse. If it's positive, it's prohibited…Ultimately under KHRC regulations, like the regulations of every other racing jurisdiction, Mr. Baffert is responsible for the condition of Medina Spirit.”

Using a dry erase board to present her points, Wolsing again brought up the case of Gamine to make the comparison between the events that transpired with both the positive betamethasone test for Gamine, and subsequently, the positive test for Medina Spirit.

“You have the same drug, the same response, the same amount of medication and, Your Honor, you also have the same sort of excuse: I relied on my vet,” Wolsing said. “Similarly, you have the same culprit. [You have] the same person who is held responsible for the medication positives: Mr. Baffert.”

Wolsing went on to explain that she believed Medina Spirit's positive test was “even more egregious” because Baffert had been made aware of the limit of detection rule and the 14-day stand down period for betamethasone after Gamine's positive test for the same corticosteroid.

Now that the hearing has concluded, hearing officer Clay Patrick will examine the case. Patrick said that he had 60 days from the time of receiving the transcript to arrive at a ruling that the KHRC may or may not choose to accept. Further appeals may proceed from there.

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“Although we heard the testimony of a veterinary pharmacologist and three analytical chemists, none of the KHRC experts testified that Medina Spirit received an intra-articular injection of betamethasone within 14 days of the race or ever,” said Baffert attorney Joe DeAngelis.

The route of administration that was used when Medina Spirit received the betamethasone has already been a thoroughly-debated point since Baffert first filed the appeal to clear from his record a 90-day suspension (which he has already served earlier this year) and reverse Medina Spirit's disqualification. While Baffert's team of attorneys have said there is no evidence that Medina Spirit received betamethasone via injection and that he instead received the medication topically to treat a skin lesion, the KHRC argues that the route of administration does not matter as betamethasone is a Class C, prohibited substance in any form.

The attorneys volleyed back and forth on this subject, but ultimately hearing officer Clay Patrick opted to deny the partial directive verdict motion and proceed with further witnesses.

While Baffert was present in court for the hearing last week, he was not present in the hearing room on Monday. He is set to appear back as a witness on Tuesday via Zoom, along with Medina Spirit's owner Amr Zedan.

Over a seven hour span on Monday, three scientific experts took to the stand, all virtually, to discuss the details of Medina Spirit's test result findings.

The first witness of the day was Dr. George Maylin, the director of the New York State Equine Drug Testing Lab which was responsible for the court-approved outside testing of Medina Spirit's urine sample last summer. Taking the stand virtually, Maylin's questioning was frequently interrupted due to technical difficulties, but it went on for over two hours.

Baffert attorney Craig Robertson asked Maylin about the procedure used to test Medina Spirit's sample and the results that were found. Maylin reported that the substances found included betamethasone 17-valerate, clotrimazole and a metabolite of clotrimazole. He concluded that all three were components of the topical ointment Otomax. Later asked by Robertson if the injectable form of betamethasone contains clotrimazole, Maylin replied, “Not that I'm aware of.”

Maylin was cross-examined by Jennifer Wolsing, general counsel for the KHRC. Wolsing's questioning focused in on the fact that betamethasone acetate and betamethasone phosphate, which would be found in an illegal injection of betamethasone, were not directly tested for.

“Had there been more urine and more time, more could have been done,” Maylin said. “But the judge wanted an answer in a hurry.”

When the examination was redirected to Robertson at the end of Maylin's time on the witness stand, Maylin concluded that he was confident in the test results and that he believed there was no injected betamethasone in Medina Spirit's system.

After a break for lunch, the Baffert team brought Tom Lomangino to the witness stand. Lomangino has previously served as the Director of the Maryland Racing Commission Laboratory and the Director of USEF Equine Drug Testing and Research Laboratory.

Lomangino worked under Maylin for a brief stint at Cornell University and categorized Maylin as, “Very dedicated. Consummate technician. Good person to work for.”

Brewster asked Lomangino about the Standard Operating Procedures (S.O.P.) that were used for the original testing conducted by Industrial Laboratories of Colorado. When asked if he believed that the original test followed these procedures, Lomangino said, “No. I read something that said the analyst guessed…What we're talking about here is analytical chemistry. You're going to have certified reference material of the exact compound you're trying to find and you're going to compare that to the unknown.”

Lomangino's time on the witness stand went into the details of the S.O.P. for both the initial test through Industrial Laboratories and the second test conducted by the University of California, Davis. Lomangino said he was not confident that S.O.P were followed for either test.

While Wolsing's cross-examination went into Lomangino's qualification as a lab technician and started a deep dive interpreting the graphs from Medina Spirit's UC Davis test, the examination was cut short due to a medical appointment Lomangino had to attend. He will return to the witness stand tomorrow.

The last witness of the day was Dr. Steven Barker, the former head of the laboratory that tests horse samples in Louisiana. Barker was supportive of the results Maylin discussed earlier in the day.

“Let's keep something in mind,” he said. “Dr. Maylin was asked to do the analysis from three different companies. He did not have an existing method before any of the three. He was asked to, in a very short time, develop an analysis for betamethasone valerate, clotrimazole and gentamicin. Those are not typically monitored in equine horse samples…There's nothing routine about this.”

Barker also criticized Dr. Scott Stanley, who, in his testimony last Thursday, said he did not believe that Medina Spirit got betamethasone from a topical ointment.

“Dr. Stanley made a number of egregious errors in interpreting the data and results,” Barker said.

Robertson later asked if Barker had an opinion as to whether the findings reported by the KHRC were the result of an ointment or an injection.

“The evidence clearly shows that it was as prescribed by the veterinarian,” Barker replied. “It was a topical administration of Otomax that contained the [betamethasone] valerate, clotrimazole, and the clotrimazole metabolite. Yes, this had to have been–with the levels in the urine and with the other facts–from a topical administration.”

With the possibility of the hearing meeting its end on Tuesday, the upcoming session is expected to see virtual appearances by Baffert and Zedan, along with Baffert's veterinarian Dr. Vince Baker. From there, Patrick can arrive at his ruling that the KHRC may accept or reject. Hearing officers hired by racing commissions typically take months to issue a written report and recommended findings.

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Baffert filed the appeal to clear from his record a 90-day suspension he already served this spring, along with reversing Medina Spirit (Protonico)'s disqualification from his victory in the 2021 GI Kentucky Derby.

Both were the result of the Baffert trainee testing positive for betamethasone after winning the first leg of last year's Triple Crown, which led to the stewards' February ruling which disqualified the horse, cost owner Zedan Racing Stables the $1.86-million purse, and served Baffert his suspension (which ran from April through early July) and a $7,500 fine.

The day started off with Kentucky chief steward Barbara Borden taking the witness stand, where she stayed nearly four and a half hours while providing testimony, as Baffert's team argued that since the betamethasone was administered as an ointment rather than injected, it did not violate any regulations. However, the KHRC maintained that any systematic presence of betamethasone, regardless of how it was received, is prohibited on race day.

Borden took to the stand at 9 a.m., where she began answering questions from KHRC general counsel Jennifer Wolsing, setting the foundation for further inquiry with a review of Gamine (Into Mischief)'s disqualification from her third-place finish in the 2020 GI Kentucky Oaks following her post-race blood test that revealed the presence of betamethasone. Along with Gamine's disqualification, Baffert was fined $1,500.

From there, Borden responded to questions specifically regarding what transpired following the confirmation of Medina Spirit's betamethasone overage in the 2021 Kentucky Derby.

“I'm not happy when there's any medication violation. I felt like the process we were gonna go through…there was going to be a lot of publicity, [it would be] bad for racing in general, [and] would possibly be drawn out like it has been,” she responded when asked by Wolsing what her reaction to the positive test result was.

When asked if her decision in the final ruling was influenced at all by factors such as the media, the cases with Churchill Downs and the New York Racing Association, or Gerard O'Brien–Borden's significant other of 30 years that is a seasonal employee of Turfway Park (which is owned by Churchill Downs)–Borden was firm in her answer, “no.”

She reaffirmed that the stewards' decision was based on Baffert's four offenses in the 365-day period, including Gamine and Medina Spirit's overages of betamethasone in Kentucky–both considered Class C violations–and the overages of lidocaine found in the post-race samples of Charlatan (Speightstown) and Gamine after each won on 2020 GI Arkansas Derby Day, which are considered Class B violations.

“We did consider everything that was presented to us and ultimately this was our unanimous decision,” she said.

Also, during Wolsing's time taking testimony from Borden, she presented results of a review of positives for betamethasone that noted since the threshold change on Aug. 25, 2020, there were only two positives, and both were in Baffert horses: Gamine and Medina Spirit.

Over an objection by Baffert's attorney Clark Brewster, Wolsing presented a 2016 case regarding a betamethasone positive that involved trainer Tom Amoss, where he explained that he believed it came from application of an ointment. Though the case was dealt with under old rules, the case was presented to draw a parallel to the Baffert case, as Borden said the administration of the betamethasone was irrelevant then and Amoss was sanctioned and the horse that tested positive was disqualified.

The case of Kentucky-based trainer Carlos Lopez, who was suspended a total of 180 days following four violations within a year-period in 2014 and 2015, was also brought up as a parallel to Baffert's case.

In the final moments of Wolsing's cross-examination of the witness, Wolsing asked Borden if the ruling handed down to Baffert by the stewards for his four offenses in that year period was a penalization that she'd stand behind today. Borden was quick to respond, “Yes.”

After a brief break, Brewster began his questioning of Borden, focusing intently on the line drawn between what is considered a therapeutic medication and what is a prohibited medication, specifically in the case of the topical ointment Otomax, which contains betamethasone. Though she acknowledged that it is used therapeutically, Borden said that betamethasone is prohibited completely in a post-race sample, meaning it cannot be present in the horse's system at any level on race day.

Brewster also focused on Kentucky's out-of-competition rules, which center around out-of-competition testing's focus on finding substances that are never allowed in the horse, but does allow betamethasone as a therapeutic use, since those tests are not administered on race day.

Borden was adamant to point out that these rules only applied to out-of-competition testing, not testing completed on the day of a race, which strictly prohibits betamethasone.

Later on, Brewster questioned Borden about the Kentucky rules that offer different guidance of various medications based on method of administration, while also citing the differences in rules for non-steroidal anti-inflammatory drugs (NSAIDs) and corticosteroids (which is the category betamethasone falls under), as both are considered Class C medications.

He also cited the lack of detail that came with the 14-day stand down period, which was added in August 2020, and emphasized that it appeared to be “advisory” rather than firm. Brewster also noted the lack of limit or threshold listed, along with the absence of a stop or start time for the stand down period.

“There is no reference at all in a stand down definition that it is regulated by a lab test, is there?” he asked Borden.

“Not in this definition,” she replied.

Later in the day, Kentucky equine medical director Bruce Howard took to the witness stand, where he explained how the out-of-competition testing was handled prior to the 2021 Kentucky Derby, how testing was handled on race day, and what the process of collecting and sending out the post-race samples was like.

“We tested every horse in the Derby, even some that didn't draw in,” said Howard, when asked about the out-of-competition testing conducted.

It was during this time that Howard shared that pre-race testing of Medina Spirit, conducted Apr. 18, did not reveal any detection of betamethasone.

“I was a little surprised we didn't find it,” said Howard. “If it was being applied every day, I would've expected we'd still see it.”

When asked about his reaction to Medina Spirit's betamethasone positive in his post-race sample following his Derby victory by attorney Luke Morgan, representing the KHRC, Howard said, “I hate it when we have this happen. It leads to a lot of problems, obviously. My wish every year is for a good, safe, clean race.”

In terms of substances in the Kentucky rules that do not list a threshold for, Howard made it clear that they are not allowed at any level in the horse on race day, which follows guidance from the industry's Racing Medication and Testing Consortium and the model rules of the Association of Racing Commissioners International.

“Moving these drugs away from race day would give us a clearer picture when we did our race day exams,” Howard said, in response to a question about the stand down period rule change. “If there is a systemic level of corticosteroids or NSAIDs or any of these kinds of drugs, it doesn't matter how it gets in. Anything that can cause a systemic level in a horse concerns us.”

Rounding out the day's session, Brewster questioned Howard on the absence of betamethasone from the list of medications with detection thresholds, also citing a lack of matrix.

“If the medication is not listed with a threshold, it is a limit of detection drug,” replied Howard.

Brewster also brought up whether trainers were properly notified that there was a rule change, which established a zero tolerance of betamethasone, arguing they were not. Howard referenced the guidance from national and international bodies that study medication in racing, also pointing out that he offered his contact information for anyone who had questions concerning the new rule.

Howard ended his time on the stand, and the day's session, answering a few final questions presented by Morgan.

When asked if the route of administration of a drug mattered in terms of a positive finding of a banned substance on race day, Howard firmly replied, “No.”

The hearing in Frankfort, Ky., continues for a third full day beginning at 9 a.m. Wednesday and will move along with morning and afternoon sessions Thursday. If the hearing is not done by Thursday afternoon, it will resume next Monday.

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Baffert's intent by filing the appeal is to clear from his record a 90-day suspension he has already served while also reversing the KHRC's disqualification of Medina Spirit from the 2021 GI Kentucky Derby.

Those penalties were the result of the Baffert-trained colt returning a positive for betamethasone after crossing the finish wire first in America's most historic and important horse race.

Beyond the already-served suspension (which ran from early April through early July) and a pending KHRC fine for $7,500 (that is also being appealed), Medina's Spirit's betamethasone overage also triggered separate banishments and sanctions from racing at the Churchill Downs, Inc. (CDI) portfolio of racetracks, plus at the New York Racing Association tracks.

Baffert has either fought or is in the process of fighting both of those sanctions in court, but right now he is precluded from having a trainee in the 2023 Derby because of CDI's actions against him (as part of a two-year ban, CDI had also denied Derby participation to the Hall-of-Fame trainer in 2022).

Monday's hearing rekindled many of the same pro-and-con arguments that have been repeatedly articulated by both sides over the past 16 months in various courtroom and hearing settings.

This latest KHRC hearing process could last the entire week.

Horse Racing Nation (HRN) published live updates of the Aug. 22 proceedings in Frankfort, Kentucky.

HRN reported that Jennifer Wolsing, general counsel for the KHRC, framed the case in straightforward terms during her opening statement.

“This is a very simple case,” she stated. “Betamethasone is a class C medication which has been prohibited in Kentucky.”

Clark Brewster, who represents Baffert, countered with his own opening statement that focused on disputing the KHRC's claim that there was an applicable “limit of detection” rule while also disputing the KHRC's assertions that Baffert had a pattern of medication rulings against him.

HRN also reported that, “Brewster also sought to discredit Industrial Labs, which returned the positive test on Medina Spirit, suggesting that the company needed to come back with positive tests to stay in business.”

Brewster also claimed there was a difference between injecting betamethasone (which Baffert has denied) and using it topically as an ointment like Otomax (which is Baffert's explanation of how the drug got into Medina Spirit), according to HRN.

“I won't say it was a mistake [to give Medina Spirit an ointment the day before the Derby],” Baffert was quoted as saying in HRN. “If you use an ointment to humanely heal a rash, it's not a mistake.”

At one point during testimony, Wolsing questioned Baffert's knowledge about medication rules in Kentucky, and asked Baffert to read aloud the ingredient list for Otomax, which includes betamethasone valerate.

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