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Baffert Returns to Stand for Sixth and Final DQ Appeal Session

Just a few days short of exactly two years after her third-place finish and eventual disqualification in the 2020 GI Kentucky Oaks, Gamine (Into Mischief) was brought to the forefront once again when Hall of Fame trainer Bob Baffert made his second appearance on the witness stand during the final session of the Kentucky Horse Racing Commission's appeal hearing.

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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Route of Administration Argument Continues in Day 5 of Derby DQ Appeal

The Kentucky Horse Racing Commission's hearing to address Bob Baffert's appeal came to a crossroad early in its fifth session on Monday in Frankfort, Kentucky following a three-day break over the weekend. After the KHRC closed their case at the start of the session, the appellants began their case by calling for a partial directive verdict in their favor based on their claim that the KHRC never proved how Medina Spirit (Protonico) received the betamethasone that led to his positive test and subsequent disqualification from his 2021 GI Kentucky Derby victory.

“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/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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KHRC Rules the Focus On Day 2 of Medina Spirit DQ Appeal

A deeper dive into the Kentucky Horse Racing Commission's rules defining what medications are considered prohibited versus those that are considered therapeutic and the standards for out-of-competition testing in relation to betamethasone as opposed to post-race testing were the hot topics during day two of the Kentucky Horse Racing Commission's hearing addressing trainer Bob Baffert's appeal Tuesday.

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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