Judge Gives Go-Ahead for Additional Testing of Medina Spirit Sample

Judge Thomas Wingate outlined the travel protocol to a New York lab Wednesday for the urine sample collected from Medina Spirit (Protonico) following his Kentucky Derby win last month, reported the Blood-Horse Wednesday. The Circuit Court Judge, who granted Amr Zedan's Zedan Racing and Bob Baffert the right to conduct further testing on the split sample, issued a temporary injunction Wednesday, outlining the flight plans, which will be funded by the plaintiffs. The judge, who stated that the Kentucky Horse Racing Commission retain five milliliters of the sample, ordered at least two commission representatives to accompany the sample to the New York Drug Testing and Research Program in Ithaca, New York. The 3-year-old's connections believe additional testing will support their argument that Medina Spirit's Betamethasone positive stems from the administration of the topical ointment Otomax.

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Judge Orders Specific Additional Testing Of Medina Spirit Split Sample

Judge Thomas Wingate issued a written decision on June 16 regarding plans for the remaining urine sample of Kentucky Derby first place finisher Medina Spirit, reportsĀ bloodhorse.com. The decision follows a June 11 hearing in Franklin County Circuit Court, in which Judge Wingate determined that the legal team for Medina Spirit's connections will be permitted to do extra testing on a urine sample (the “split sample”) taken from the colt after the Kentucky Derby and held by the Kentucky Horse Racing Commission.

The case is based on the finding of betamethasone in a post-race sample of Medina Spirit, collected immediately after the colt crossed the wire first in the Kentucky Derby.

Counsel for Medina Spirit's trainer Bob Baffert and owner Zedan Stables filed a civil suit against the Kentucky Horse Racing Commission last week demanding their right to test the split urine sample, which sat undisturbed in the commission's freezer. Remnants of the original biologic samples were initially sent to be tested for those ingredients, but they were reportedly damaged before arrival at the plaintiffs' choice of labs.

Judge Wingate ordered Wednesday that the remaining urine sample will be flown to the plaintiffs' choice of lab for testing, that two KHRC representatives travel with the sample, and that plaintiffs will fund the flight. Upon arrival, the KHRC will retain 5 milliliters of the sample, while the remainder will be tested for clotrimazole, gentamicin, and betamethasone valerate.

Those are the three active ingredients in Otomax, a topical cream which attorneys for Baffert and Zedan claim is behind the positive finding of betamethasone in Medina Spirit. Attorneys for Baffert and Zedan went to court to push for the the testing because they believe lab evidence backing up the presence of Otomax's ingredients would prove to be exculpatory or mitigating when Kentucky stewards eventually conduct a hearing on the case.

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 ā€œmitigating circumstanceā€ with regards to penalty. She did point to the commission's drug classification guidelines, which make reference to betamethasone without specifying what route of administration would result in a Class C finding. The only question at hand for the June 11 proceeding, she asserted, was what was to be done about further testing of the remaining biological samples.

Read more atĀ bloodhorse.com.

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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 ointmentā€”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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Under Glare of Probing Questions, Curious Answers in Kentucky

The Week in Review by T.D. Thornton

In theory, state racing commissions are supposed to provide a layer of checks and balances by making both racetrack operators and horsemen accountable for their actions. In practice though, that often doesn't happen because regulators in many jurisdictions fail to ask probing questions of licensees during open, public meetings.

In Kentucky, for example, if you want the most concise on-the-record snapshot of what's going on with the circuit, the best source generally isn't a Kentucky Horse Racing Commission (KHRC) meeting. Instead, the proceedings of the Kentucky Thoroughbred Development Fund (KTDF) advisory committee are usually far more informative and insightful.

Bill Landes III, who chairs that committee as a representative of the Kentucky Thoroughbred Owners and Breeders Association (KTOB), is known for cutting to the chase and asking blunt, common-sense questions. Representatives of the state's five Thoroughbred tracks must update the advisory board on how each track is spending money for purses, capital improvements, marketing, and other aspects of their racing operations, and those executives are obliged to answer every query tossed at them, because the KTDF board recommends to the full commission how to allot the millions of dollars in purse supplements generated by live, simulcast and historical horse race betting.

During last week's KTDF advisory board meeting, two exchanges stood out. One put management of Turfway Park on the spot over equine safety. The other revealed surprising reluctance by a Kentucky Horsemen's Benevolent and Protective Association representative to embrace a master plan for improving the infrastructure and quality of racing at Ellis Park.

At one point during the Apr. 6 video meeting, Tom Minneci, the senior director of finance at Churchill Downs, Inc. (CDI), the gaming corporation that owns Turfway, had just finished giving a financial rundown of the track's recently-completed meet.

Landes then asked KTDF board members if there were further questions for Turfway, and Doug Hendrickson, who represents the KHRC on the KTDF advisory committee, had a one-word query: “Fatalities?”

Minneci deferred comment to Tyler Picklesimer, Turfway's director of racing and racing secretary. When Pickelsimer did not immediately respond, Minneci asked Chip Bach, the track's general manager, for help in coming up with the answer.

There was an awkward moment of silence, during which both Pickelsimer and Bach seemed to be caught off guard by the KTDF wanting to know about horse deaths.

“I've got our handle numbers in front of me. I don't have that in front of me,” Bach said. After another pause, he added, “Tyler, do you see it?”

Pickelsimer responded that he did not know the number of equine fatalities that had occurred at his track over the last three months. “I know it was a good meet, but I don't have that in front of me, no.”

Landes, who can be as diplomatic as he is direct, didn't see the need to make the Turfway execs squirm any longer over not knowing something important that they should have. He suggested to have the minutes of the meeting reflect their non-answer as a “deficiency” that needed to be addressed at the next meeting.

Bach promised to come up with the correct figure at that time. He probably should have stopped there, but felt compelled to add that, “The problem with some of the fatality numbers is horses can meet that number after they've left the track. So I just want to make sure that we've got a right number for you. Sometimes we have to go to the commission to get that number.”

This is disquieting on several levels. First, as a corporation, CDI likes to describe itself as being an industry leader in equine safety. Yet neither the GM nor the director of racing at its Turfway operation could state for the record how many fatalities occurred there over the past 90 days, or even offer a ballpark figure.

It's also circularly bizarre that a KHRC board member asked Turfway executives the fatalities question in the first place, but a Turfway official responded that he needed to check with the KHRC to obtain the correct number.

Ellis Park Twilight Zone

Later in the meeting, Jeff Inman, the general manager at Ellis Entertainment LLC, was running down a list of necessary (but generally low-level) capital improvements that Ellis Park was trying to have completed before the start of its meet June 27.

Landes politely interjected, wanting to know when Inman's company was going to come through on the big-ticket items it promised when it bought Ellis Park in 2019, like the widening of the turf course and the installation of lights, which would allow Ellis to slide into a more lucrative twilight simulcast time slot while avoiding the brutal summer heat that is detrimental to horse health and sometimes causes cancellations.

Landes termed those improvements “long overdue, and everybody knows it.”

Inman replied that the turf course widening is likely to happen first, but not until after the 2021 meet.

“If we regain capital funding, we will start work after the horses leave, [by] late October, early November,” Inman said.

J. David Richardson, who, like Landes, represents the KTOB on the KTDF advisory committee, concurred with the chairman.

“I do believe that Ellis Park has enormous potential to do much, much better with at least some opportunity to run under lights and expanded turf racing on a course that's not torn up because you have to overuse it,” Richardson said. “I really want to reiterate…how positive I think this could be for Ellis Park, for Kentucky racing, and for strengthening the whole circuit that we all are trying to do in terms of making Kentucky horses more valuable.”

Landes said he believed that Kentucky Horsemen's Benevolent and Protective Association (KHBPA) president Rick Hiles and KHBPA executive director Marty Maline “would agree with me [that] if you get twilight racing at Ellis Park and some lights there, there ain't no telling what y'all could do. And I'm not telling you something you don't know. I'm hoping Rick and Marty agree with that.”

But when Landes directly asked Hiles–who is a KTDF advisory committee member representing the KHBPA–for his opinion on the Ellis improvement plan, Hiles said he couldn't fully endorse the concept of twilight racing.

“I'm a little concerned about moving racing post times back too far, simply because of the ship-ins from Louisville and Lexington losing an hour in time zones and coming back late at night,” Hiles said. “Getting back at 12, one, two o'clock in the morning–I just don't know how [horsemen] are going to react to that.”

Landes seemed surprised by the HBPA's noncommittal stance, but he tactfully acknowledged that the concerns Hiles articulated about the late nights were valid. (Maline, who was present for the video meeting, chose not to speak on the subject.)

“Well, you have that issue to a certain extent at Turfway,” Landes reasoned, meaning late shipping after night racing. “And [at Ellis] it's either coming in at one or two o'clock in the morning or dealing with 108 or 110 degrees” during afternoon racing.

“I just don't know,” Hiles said. “School, for me, is still out on it.”

It must have been frustrating for Landes and other KTDF advisory board members to be pressing Ellis to make good on promises that could strengthen the entire circuit only to learn that the elected horsemen's representative on their board wasn't entirely supportive of the idea.

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