Team Medina Spirit Goes to Court to Force Alternate Urine Testing

The connections of GI Kentucky Derby winner Medina Spirit (Protonic) have filed a civil complaint against the Kentucky Horse Racing Commission (KHRC) in an effort to force the agency to turn over the colt's post-race urine sample so it can be tested in a way that trainer Bob Baffert and owner Zedan Racing Stables, Inc., believe will prove that a betamethasone finding resulted from an ointment to treat a skin condition (Otomax) and not from an intra-articular injection.

According to a June 7 filing in Kentucky's Franklin County Circuit Court that seeks an injunction to keep the KHRC from allegedly violating their due process rights, attorneys for both Baffert and Zedan Racing's founder, Amr Zedan, outlined a process by which they made “demands” to the KHRC on how split-sample testing should be conducted to either confirm or deny the initial finding from the commission's lab.

The filing contends that the KHRC initially refused the plaintiffs' terms of how and under what circumstances the referee sample would be tested. But then, after the KHRC acquiesced in part to an alternate proposal, the portion of Medina Spirit's biological sample that was to be used for that purpose got damaged in transit and was rendered untestable by the time the package reached the lab.

Jennifer Wolsing, the general counsel for the KHRC, did not reply to an emailed query for comment prior to deadline for this story.

“[T]here has been an absolute firestorm surrounding Media Spirit and the alleged test results,” the complaint states. “Specifically, Baffert has been excoriated by some members of the press and public who have accused him of 'injecting' Medina Spirit with Betamethasone in an effort to cheat to win the Kentucky Derby. This public discourse has frequently suggested that Betamethasone is a 'banned' substance and that Medina Spirit was subjected to 'doping.' Neither

are remotely true.”

Betamethasone is a corticosteroid allowed in Kentucky as a therapeutic medication, but state rules require at least a 14-day withdrawal time before racing. Any level of detection on race day is a Class C violation, with no distinction listed in the rules pertaining how the substance got inside a horse.

No ruling has been issued to date in this case, although Baffert's attorney, W. Craig Robertson, confirmed in a June 1 statement that split-sample blood testing from Medina Spirit had come back and that it did confirm the presence of betamethasone.

But even while that analysis was being conducted at an accredited referee lab, another subplot was unfolding behind the scenes. The June 7 court filing explains it.

According to the complaint, on May 14, Baffert and Zedan's counsel informed the KHRC that the plaintiffs wanted both blood and urine samples to be tested from Medina Spirit's splits, and that they wanted an expert of their choosing to be able observe the analysis at their chosen lab.

They also asked for what is called a “limits of detection” test to be performed that could allegedly show not just that betamethasone was present, but that other compounds in Otomax were there too–namely clotrimazole, gentamicin, and betamethasone valerate.

The KHRC refused these demands (beyond allowing them to choose the accredited lab). So on May 19 the legal team made the request a second time, this time in writing along with rationale and legal support to explain their demands. This too was denied by the KHRC on May 21.

On May 24, the complaint states that a compromise was reached between the parties: The KHRC would allow plaintiffs to send the part of the biological samples that remained from Medina Spirit's primary samples (that had already been tested) to an accredited lab for the different form of testing the plaintiffs wanted.

“The KHRC represented to the Plaintiffs' that these 'remnants' were in good condition and in sufficient quantity to allow scientific testing,” the court filing states.

But on June 1–the same date that Medina Spirit's referee sample was announced by Robertson as positive–the KHRC informed Baffert and Zedan that the remnants had been damaged during transport to the testing lab.

“The manner in which the Betamethasone found its way into Medina Spirit is critical,” the complaint states. “There is a huge difference in a Betamethasone finding due to an [intra-articular] joint injection versus one from a topical ointment—both from a regulatory and public relations standpoint. The testing the plaintiffs' seek would provide empirical and scientific reasonable certainty that the miniscule and materially irrelevant reported positive in Medina Spirit's post-race sample was innocuously sourced from the topical Otomax.”

The attorneys for Baffert and Zedan allege in the complaint that they have a workable Plan B that would allow for the more detailed testing they seek–but that the KHRC purportedly won't allow it.

“There currently sits in the KHRC freezer and unopened, untested, and hopefully pristine split sample of Medina Spirit's urine. Given the foregoing, the plaintiffs requested that the urine be immediately shipped to the agreed-upon lab for testing of all components in Otomax. The KHRC has refused this reasonable request and has indicated it has no intention of allowing the urine split sample to be tested in any way.

“The urine sample is the best method available to determine whether the Betamethasone in Medina Spirit was present due to an injection or the topical cream Otomax,” the complaint sums up. “Time is of the essence, as biologic samples degrade with each passing day. Without intervention from this Court, Plaintiffs will forever lose the opportunity to test, analyze and cross-examine the only evidence that purports to establish a violation of the KHCR's regulations.”

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Medina Spirit Cleared to Run in Preakness

The Maryland Jockey Club (MJC) announced Tuesday that it had accepted the entry of Medina Spirit (Protonico) for Saturday's GI Preakness S.

Trainer Bob Baffert revealed Sunday that Medina Sprit had tested positive for the prohibited medication betamethasone after winning the GI Kentucky Derby, which put his appearance in the second leg of the Triple Crown in doubt. The MJC, which operates Pimlico for The Stronach Group (TSG), had the option of banning all entries from Baffert. Following the announcement of the drug positive, Churchill Downs said that it would no longer accept any entries from the Baffert stable for an indefinite period of time.

Baffert has also entered Concert Tour (Street Sense) in the Preakness and Beautiful Gift (Medaglia d'Oro) in the GII George E. Mitchell Black-Eyed Susan Stakes to be run Friday. Medina Spirit drew post three for the race, which attracted 10 entrants and was made the 9-5 favorite on the Pimlico morning line. The two Baffert runners are expected to be the first and second choices in the wagering.

“I'm satisfied,” said Baffert, who will not be attending Saturday's race because he said he did not want to be a distraction. “It's all part of our commitment to being cooperative and transparent.”

While in Maryland, assistant trainer Jimmy Barnes will oversee the Baffert operation.

Not all the news Tuesday was positive for Baffert. The Daily Racing Form reported that Spendthrift Farm will be transferring some of its horses from Bob Baffert as a result of the controversy surrounding Medina Spirit's positive Derby test.

Among the Spendthrift runners set to leave the Baffert barn will be 'TDN Rising Star' Following Sea (Runhappy), who was under consideration for Saturday's GIII Chick Lang S. The sophomore will now bypass that event and join Todd Pletcher.

The Spendthrift co-owned, Baffert-trained Authentic (Into Mischief) was named 2020 Horse of the Year after winning the GI Kentucky Derby and the GI Breeders' Cup Classic.

“Given the circumstances we thought it was best to hit the pause button,” Spendthrift General Manager Ned Toffey told DRF. “I think we need to step back and let's see how things play out. We're not ruling anything out in the future.”

Toffey said that four Spendthrift 2-year-olds who were sent to Baffert will also be moved, most likely to Richard Mandella.

“Bob gave us the thrill of a lifetime last year,” Toffey told the DRF's David Grening. “Bob has never had a positive test for us. Given the circumstances, the best thing for the time being is to step back.”

Spendthrift is not the only marquee owner/breeder that apparently has a problem with Baffert and the Medina Spirit situation. Daisy Phipps Pulito, a spokesperson for the famed Phipps Stable, announced on Twitter that the stable “has already talked to [trainer] Shug [McGaughey] and won't run in any race at [Pimlico] this weekend where we don't feel like we are running on a level playing field.”

As a condition of acceptance of the entry, Baffert had to agree to let the MJC place Medina Spirit under a microscope that includes rigorous rounds of testing and the constant monitoring of the 3-year-old colt. Baffert also had to commit to full transparency of medical and testing results that will allow for all results to be released to the public.

In a statement released by TSG, also known as 1/ST Racing, CEO Craig Fravel pointed out that a final ruling on the Kentucky Derby positive will not be available until after a split sample has been tested.

“Integrity, accountability and safety in our sport are principles that 1/ST Racing puts above all else. Our company has a track record of instituting process and protocols that have led to nationwide medication reforms and we are unwavering in our commitment to put horse and rider safety at the forefront,” said Fravel. “We are well aware of the public outcry and calls for action that have been the natural outcome of a medication positive in one of the most iconic races in our sport and we share the disappointment and concern.

“We are required to acknowledge in this instance that fundamental fairness compels us to respect the individual rights of participants in our sport to due process and adherence to agreed-upon and well-established rules. To this point, there has to our knowledge been no split-sample testing as is required in every state in this country and no complaint or other official action has been announced by the Kentucky Horse Racing Commission with regard to this incident.  While the integrity of our sport is of utmost importance, it is the responsibility of those in authority to follow the rules even as we seek to enforce them. We cannot make things up as we go along and we trust that the competitors, bettors and fans will understand the importance of adhering to that principle.”

TSG said that the Preakness meet operates under veterinary and testing protocols that are established and overseen by the Maryland Racing Commission's Equine Medical Director, Dr. Elizabeth Daniel. These protocols include out-of-competition testing, tests for TCO2 that can be administered within minutes of the race, and the daily examination of starters by veterinarians affiliated with the racing commission.

Baffert did receive a vote of confidence Tuesday from one important owner, Amr Zedan, whose Zedan Racing owns Medina Spirit.

“Bob Baffert reported today that a topical ointment that was recommended and dispensed by an equine veterinarian to treat a skin rash appearing on the hips of Medina Spirit may have been the contaminant source leading to the post-race positive following Medina Spirit's Kentucky Derby victory,” Zedan said. “I have reviewed the picture of the rash and fully understand the need for care and the good faith intentions in using the ointment supplied by the veterinarian. I want to express my full trust and support for Bob Baffert as we cheer on Medina Spirit in the 146th running of the Preakness this weekend.”

 

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