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Pletcher-Forte Team Granted Temporary Restraining Order On Hopeful DQ

The Schenectady Supreme Court issued a temporary restraining order Thursday that put a halt on the New York Gaming Commission's efforts to disqualify Forte (Violence) from his win in the 2022 GI Hopeful S. at Saratoga and suspend trainer Todd Pletcher.

Acting on behalf of Pletcher and owners Mike Repole and Vinnie Viola, attorney Drew Mollica filed an Article 78 appeal. Article 78 appeals are lawsuits mainly used to challenge an action, or inaction, by agencies of New York State and local governments.

The New York Gaming Commission has alleged that Forte tested positive for meloxicam, a non-steroidal anti-inflammatory drug, widely prescribed to treat osteoarthritis and rheumatoid arthritis, and sold under the brand name Mobic. Forte was disqualified and Pletcher was issued a 10-day suspension and fined $1,000.

The Forte team has used Dr. Steven A. Barker, considered one of the foremost experts in equine drug testing and research, as a witness and Barker has said that 500 picograms or .5 nanograms of meloxicam was detected in Forte's system. Barker said he believes that such a low level of the medication would not impact a horse's performance and that the small amount is indicative of environmental contamination.

A hearing was granted by the Gaming Commission, which voted unanimously to uphold a recommendation from a hearing officer. After that decision, Forte's legal team took the next step and went to court. The case is scheduled to resurface on Jan. 9, at which time the court can issue a permanent injunction.

“We look forward to appellate review of one of the most unfair, egregious hearing processes and commission orders that I have ever seen,” Mollica said. “The facts will show that not only did Mr. Pletcher break no Gaming Commission rule, the rule by which he was charged has no applicability at all and the hearing was constitutionally flawed.”

Mollica also argued that the amount found in the horse's system did not merit a violation. He said that Dr. George Maylin, the director of the New York Equine Drug Testing Programs, agreed with that finding and stated as much when going before the hearing officer.

“The scientific finding alleged by the Gaming Commission did not meet the standard of a violation,” Mollica said. “Dr. George Maylin, the nation's foremost equine pharmacologist, testified as much at the hearing. It should be noted that Dr. Maylin did not testify for the prosecution, in this case the Gaming Commission, but testified for the defense. That speaks volumes. We look forward to an impartial review of this matter. After reviewing the transcript of the hearing all I can say is that this was a travesty of justice.”

Once the positive finding was revealed Repole has been adamant that the disqualification was unwarranted and vowed to fight.

“I spent $20 million last year on horses, I can spend $20 million fighting this case,” he said in May. “I think long-term this is going to be good for racing. This whole process, though sad and pathetic, has been a great learning experience for me.”

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Baffert/KHRC Appeal Day 4: Ointment or Injection?

The debate over whether or not Medina Spirit's 2021 GI Kentucky Derby disqualification for betamethasone was the result of an injection or the application of an ointment was a focal point in the fourth day of testimony at Bob Baffert's appeal before a Kentucky Horse Racing Commission (KHRC) hearing officer in Frankfort, Kentucky, on Thursday.

That argument has percolated for the better part of 16 months in various hearing and courtroom settings. It is now being brought up again in front of the KHRC hearing officer to adjudicate the Hall-of-Fame trainer's attempt to expunge from his record a 90-day suspension (that Baffert has already served) for the infraction. The appeal also seeks to reverse the KHRC's disqualification of Medina Spirit from the Derby.

Back in December, Baffert's legal team stated that third-party testing on the colt's urine “definitively confirmed” and had “scientifically proven” that the type of betamethasone that showed up in Medina Spirit's post-race positive test is the type that comes from a topical ointment and not via an intra-articular injection.

The distinction is important because Baffert believes the proper resolution of the betamethasone overage hinges on how it was administered to Medina Spirit. He has claimed Kentucky's medication rules only apply to the injectable form of that drug.

But the KHRC has maintained that a positive finding is a positive finding, and that it doesn't matter how the Class C medication entered Medina Spirit's system.

Baffert has claimed that Medina Spirit was treated with the betamethasone-containing ointment Otomax as late as Apr. 30 (the day before his Derby win) to help deal with a skin lesion, and he has denied that the colt's joints were ever treated with the injectable form of that drug.

Ron Flatter of Horse Racing Nation (HRN) provided key points of Thursday's proceedings. His reporting is summarized below by TDN.

Flatter wrote that Jennifer Wolsing, the KHRC's general counsel, said she had two depositions to back up her contention that Medina Spirit could have been injected with betamethasone.

Dr. Scott Stanley, the director of the equine testing laboratory at the University of Kentucky, testified as a witness for the KHRC.

According to HRN, Stanley was questioned about the third-party testing by Dr. George Maylin, director of the New York State Equine Drug Testing lab. Last summer, Baffert's attorneys got a court order to allow outside testing on the Medina Spirit samples.

Flatter wrote that “Maylin concluded last fall that the medication 'resulted from the topical administration of Otomax and not an injection of betamethasone.'”

Testifying eight months later on Aug. 25, Stanley criticized the process by which Maylin tested the Medina Spirit urine sample and offered technical reasons why it was flawed, HRN reported.

“I don't agree with…Dr. Maylin's conclusion that says the data definitively shows the topical administration of betamethasone…. I don't believe that the data definitely concludes that,” HRN quoted Stanley as testifying.

Yet under cross-examination by the Baffert side, Stanley also said, “I do not have any evidence that Medina Spirit was injected with any product,” HRN reported.

Dr. Mary Scollay, the current executive director of the Racing Medication and Testing Consortium (and previously the KHRC's equine medical director), testified at the request of the KHRC.

HRN reported that Scollay said there was no record of a diagnosis when Baffert's veterinarian, Dr. Vince Baker, recommended that Otomax to be applied to Medina Spirit in April 2021. Nor was there any record provided on dosage and frequency.

“Otomax is FDA-approved for use in dogs,” Scollay said, according to HRN. “I would hesitate to describe Medina Spirit as a dog. That would be most unfair.”

Flatter wrote that, “Under cross-examination, Brewster attacked Scollay's credentials for lacking backside experience, saying that Baker has had a great deal of experience in stable work. And he recounted when, in a deposition, Scollay said anyone wanting more expertise on Otomax should ask a veterinarian who works on the backside.”

After a scheduled weekday off on Friday, the hearing resumes on Monday, with Tuesday the agreed-upon date both parties are targeting for finishing the proceedings. (See coverage of previous days here, here, and here.)

Hearing officers hired by racing commissions typically take months to issue a written report and recommended findings.

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Times-Union Report: Drug Testing In New York Down By 20 Percent Since 2015

The Albany Times-Union launched the first in a series of investigative reports into New York racing on Feb. 6, beginning with a piece focusing on the state's drug testing program through the prism of the ongoing federal doping case.

The Times-Union's Emilie Munson conducted an interview with Dr. George Maylin, director of the New York Equine Drug Testing and Research Laboratory, who explained what many in racing have heard before — that testing labs can't find a new performance-enhancing substance in a post-race test unless they know what exactly the substance is. Microdosing of some performance enhancers like EPO also makes them more difficult to catch, especially in post-race testing. Maylin indicated his lab could detect three types of EPO, but scientific literature has described as many as 82 varieties, according to the Times-Union.

Maylin also said that the number of samples collected from New York's horses has declined by more than 20 percent since 2015. Some of the decline — though not all of it — attributable to disruptions in racing during the COVID-19 pandemic.

The New York State Gaming Commission declined interview requests from the newspaper.

The report also indicated that Maylin preserves samples in which his equipment has detected but been unable to identify a foreign substance, and has hundreds of them stored this way, some as many as 10 years old.

Contrary to state databases, which indicated that there were just 43 positive tests in New York in 2019 and most of those among harness horses, Maylin said there were 176 positive tests in that period, including out-of-competition tests, hair samples, and horses running at the state fairs. In 2020, Maylin said the lab found 86 positives.

“Not all positive tests result in violations depending on what is found and when,” wrote Munson.

The story is one result of more than six months of interviews and research by the local paper. Subsequent pieces, which are projected to be released in the coming days and weeks, will examine the role of investigators at racetracks, tax breaks granted to New York tracks, and the slaughter pipeline.

Read the full report at the Albany Times-Union

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Baffert Attorneys Claim Test Proves Ointment Led To Medina Spirit’s Failed Drug Test

Attorneys for the owner and trainer of Medina Spirit, first-place finisher in the 2021 Kentucky Derby, claim tests conducted by a New York laboratory have “definitively confirmed” the horse tested positive for a corticosteroid not through an injection but because of an ointment used to treat a skin rash.

Craig Robertson, attorney for Bob Baffert, and Clark Brewster, representing owner Amr Zedan's Zedan Racing Stables, said tests conducted by Dr. George Maylin, who heads a drug testing laboratory at New York's Morrisville State College, showed the presence of betamethasone valerate, which they claim is found in Otomax ointment. Otomax, manufactured to treat ear infections in dogs, lists betamethasone as one of its ingredients. The test, Robertson and Brewster said, also confirmed the absence of betamethasone acetate, the injectable corticosteroid used to treat inflammation.

“In other words,” Robertson said in a statement, “it has now been scientifically proven that what Bob Baffert said from the beginning was true – Medina Spirit was never injected with betamethasone and the findings following the Kentucky Derby were solely the result of the horse being treated for a skin condition by way of a topical ointment – all at the direction of Medina Spirit's veterinarian.”

The Paulick Report has asked Robertson and Brewster for a full copy of Maylin's report.

Robertson said the test result “should definitively resolve the matter in Kentucky and Medina Spirit should remain the official winner of the 2021 Kentucky Derby.” Brewster had similar sentiments, stating that “Zedan is proud to have stood by Bob and is ecstatic that Medina Spirit will receive the honor of his great victory.”

The Kentucky Horse Racing Commission and board of stewards have yet to conduct a hearing on Medina Spirit's failed drug test, and until a hearing is conducted Medina Spirit will remain the Kentucky Derby winner. In the ewake of the failed drug test, Baffert was ruled off all tracks owned by Churchill Downs Inc. through the conclusion of the 2023 spring-summer meet at the company's flagship track in Louisville, Ky. Churchill Downs also said horses trained by Baffert are not eligible for qualifying points for the Kentucky Derby.

A spokesperson for the commission could not be reached for comment on Maylin's testing, which attorneys for Baffert and Zedan sought through a court order.

The rules of Kentucky racing do not appear to differentiate between administration of betamethasone or other drugs through injection or other means. In section 1 in the regulations relating to medication, testing procedures and prohibited practices, the definition for “administer” states: “to apply to or cause the introduction of a substance into the body of a horse.”

The full statements from Robertson and Brewster follow:

Craig Robertson: The testing of the split urine sample of MEDINA SPIRIT has now been completed by Dr. George Maylin, Director of the New York Drug Testing & Research Program. By Order of the Franklin Circuit Court in Kentucky, this urine was tested “to determine if the alleged topical administration of OTOMAX could have resulted in the finding of betamethasone” in MEDINA SPIRIT following the 2021 Kentucky Derby. Those results have now definitively confirmed that the betamethasone present in MEDINA SPIRIT's system did indeed come from the topical ointment OTOMAX and not an injection. In other words, it has now been scientifically proven that what Bob Baffert said from the beginning was true – MEDINA SPIRIT was never injected with betamethasone and the findings following the Kentucky Derby were solely the result of the horse being treated for a skin condition by way of a topical ointment – all at the direction of MEDINA SPIRIT's veterinarian.

The betamethasone in an injection is betamethasone acetate. The betamethasone in the topical ointment is betamethasone valerate. Only betamethasone acetate is addressed and regulated in the rules of racing in Kentucky. Thus, the presence of betamethasone valerate in MEDINA SPIRIT, which resulted from a topical ointment, is not a rules violation. Dr. Maylin's testing not only confirmed the presence of betamethasone valerate, but also the absence of betamethasone acetate. This should definitively resolve the matter in Kentucky and MEDINA SPIRIT should remain the official winner of the 2021 Kentucky Derby.

Since May, Mr. Baffert has been the subject of an unfair rush to judgment. We asked all along that everyone wait until the facts and science came to light. Now that it has been scientifically proven that Mr. Baffert was truthful, did not break any rules of racing, and MEDINA SPIRIT's victory was due solely to the heart and ability of the horse and nothing else, it is time for all members of racing to come together for the good of the sport. Mr. Baffert has been a tremendous ambassador for the sport throughout his 46 year Hall of Fame career and he has every intention of continuing to do so.

Clark Brewster: As Legal counsel for, and on behalf of, Abr Zedan and Zedan Racing Stable, owner of Medina Spirit, winner of the 147th Kentucky Derby, it is extremely gratifying to learn that the New York Racing Laboratory through its Director Dr George Marlin has scientifically confirmed that no Betamethazone Acetate was found in the post race urine specimen of Medina Spirit. Dr Maylin reported that components of an ointment used to treat a skin lesion was confirmed through metabolite confirmation and that no Acetate that is part of the injectable Betamethazone was present. The Kentucky Racing Commission has steadfastly enacted rules relating to corticosteroid joint injection and have drawn a bright line rule that no injections are permitted within 14 days of a race. Now there is zero doubt that the 14 day rule some thought might have been violated by the earlier less specific testing is revealed as premature judgment. That groundless accusation is without scientific merit.
Zedan is proud to have stood by Bob and is ecstatic that Medina Spirit will receive the honor of his great victory.

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