At a hearing in Kentucky's Franklin Circuit Court on June 11, Judge Thomas Wingate determined that the legal team for Medina Spirit's connections will be permitted to do extra testing on a urine sample taken from the colt after the Kentucky Derby; the only question will be how much urine an independent lab will have access to.
Counsel for Medina Spirit trainer Bob Baffert and owner Zedan Stables filed a civil suit against the Kentucky Horse Racing Commission earlier in the week demanding their right to test the split urine sample, which sat undisturbed in the commission's freezer.
An initial post-race test from Medina Spirit was positive for betamethasone, and that was later confirmed on a split sample test. Attorneys for Baffert and Zedan now want to do further testing on biological samples from the horse in hopes of proving that the betamethasone present came from a topical cream and not an injection, which they say would be permissible under KHRC rules.
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 “mitigating circumstance” with regards to penalty. She did point to the commission's drug classification guidelines, which make reference to betamethasone without specifying what form of betamethasone The only question at hand for this proceeding, she asserted, was what was to be done about further testing of the remaining biological samples.
Documents filed by the KHRC on Thursday revealed that in fact, the commission did not refuse requests from Baffert and Zedan to send blood and urine samples for additional testing after the split sample came back positive.
“This is a case about a litigant who will not take 'Yes' for an answer,” began the KHRC's response to the lawsuit.
After the split was positive, the KHRC agreed to release the remains of the primary blood and urine samples to an RMTC-accredited lab chosen by Baffert and Zedan, which was eventually identified during Friday's hearing as New York's Equine Drug Testing Program housed at Morrisville State College. There are four total samples at play here — two primary blood and urine samples, and two split blood and urine samples. Some of the primary blood and urine samples were tested after the race by Industrial Laboratories, which prompted the betamethasone finding in blood. The split blood sample was then sent to University of California-Davis for the split sample analysis. That means the split urine sample has remained in a freezer maintained by the KHRC. It also means each of the two labs may have some biological sample left over after they did their testing.
Industrial packaged portions it had left over of Medina Spirit's primary blood and urine samples and sent them off to New York. It turned out the vial containing the blood shattered, either en route or upon receipt at the New York facility. Since the vial was in the same bag as the urine container, Baffert and Zedan's attorneys voiced concerns that the leaked blood may have contaminated the urine container.
Then, KHRC said, it agreed to send commission equine medical director Dr. Bruce Howard to its freezer and film him opening the unused split urine sample, dividing it, and then have him personally transport a portion of it to the New York lab. When the Baffert/Zedan attorneys objected to the use of Howard, KHRC suggested it could find a substitute staff member and allow one or more team members from Baffert/Zedan counsel to also be present for the thawing and division of the sample. That option was also rejected.
As Wingate eventually determined, the parties agreed Baffert and Zedan should be able to test remaining blood and urine to see whether those samples could prove the origin of the betamethasone. They agreed that both the horse's connections and the commission should have representatives overseeing the move of the samples. Their only real sticking point was how much urine the New York lab should get for testing.
Wolsing argued that the KHRC needed to retain some of the sample, in case future testing should ever be needed.
“This is a situation where really anything could happen,” she said, pointing to the shipping issues with the blood sample as proof that it's a good idea to have some sample retained somewhere just in case.
Craig Robertson, attorney for Baffert, said he didn't want to restrict the New York lab to use a set amount of urine, since he didn't want them to be in any way limited in the quality of their testing.
The size of the split urine sample is estimated to be between 25 and 27 milliliters. Wingate said he would enter an order in the middle of next week requiring at least 3 milliliters to be kept by the KHRC, with the hope the two parties could agree to something privately before then.
Wingate did press Wolsing somewhat on the question of whether all of this will end up mattering — meaning, will the outcome of these tests impact whether or not Medina Spirit is disqualified. Wingate said that while he had not reviewed KHRC code, his initial feeling was that it wouldn't make much difference if the form of betamethasone Medina Spirit received did or didn't impact performance. Wingate also presided over the lengthy civil suit of Graham Motion, who fought a drug positive for methocarbamol. Wingate had overruled the KHRC in that case and was later reversed on appeal. He felt the methocarbamol did not influence the outcome of the race in question, but that the appeals court made it clear the rules did not allow for a determination about a substance's influence on race results.
“It's going to be very hard for this court to overturn [a potential ruling against Medina Spirit connections] based upon the Graham Motion case,” said Wingate, who clarified he was not pre-judging the Baffert case. “That's the way I look at it. I'm not prejudging it, but I've already dealt with the Graham Motion, which I thought was very unfair to Mr. Motion, I really did.”
Baffert did appear at the proceedings, which were held via video conference, but did not speak.
See the proceedings here:
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