As the lengthy appeals case over the disqualification of Medina Spirit from the 2021 Kentucky Derby drags on, the contents of its legal file grows ever larger.
Trainer Bob Baffert has served the 90-day suspension stewards handed him in February 2022, having tried and failed to secure a stay of suspension. He and owner Amr Zedan are still pursuing an appeal of the horse's disqualification, however. The appeal is due to be heard by a hearing officer on behalf of the Kentucky Horse Racing Commission (KHRC) in late August.
Through public information act requests, the Paulick Report acquired copies of communications, legal motions, and deposition transcripts in the case. Here are a few of the things we've learned:
–This all could have gone away a lot sooner. In early June 2021, attorneys for both sides participated in one email thread, most of which were redacted in the versions provided to the Paulick Report. The chain starts out as a delivery of photographs depicting the packaging of sample remnants at Industrial labs, and their receipt at Dr. George Maylin's lab in New York. Th pictures are not visible in the copies of the emails we obtained. In response to the photographs, Baffert attorney Craig Robertson asks to speak with KHRC attorney Jennifer Wolsing, characterizing the matter as “rather urgent.” Subsequent messages are hidden by black redaction boxes with a note on the file that reads “redact settlement talks.”
The email exchanges took place about a week before a hearing in Franklin County Circuit Court after which Judge Thomas Wingate ordered the KHRC to allow Baffert's team to do additional testing on the remaining split urine sample that was still in storage. Baffert had previously won the right to do extra testing on the remainder of the primary blood sample tested by Industrial Labs, but it apparently arrived in New York damaged.
Later, in January of this year, Wolsing emailed attorneys for Baffert and Zedan informing them that the “KHRC is not interested in mediation at this time” and suggested if they wanted to reach a settlement, they reach out to Kentucky's stewards. It remains unclear how any settlement talks may have gone, or when they ceased.
–According to an email from a steward, it was Baffert's team and not the KHRC who requested multiple delays of the initial stewards' hearing and the subsequent appeals commission hearing, which has yet to take place. In an email from February 2022, chief steward Barbara Borden wrote to Brewster and Robertson, saying:
“The stewards have been prepared to conduct a hearing since our initial notice on September 22, 2021. Two continuances have been granted – one to allow Mr. Baffert and Mr. Zedan to obtain the results of additional testing that was permitted; another due to Mr. Baffert and Mr. Zedan's attorneys' scheduling conflicts.”
Prior to Borden's email, Robertson had already told media the stewards' hearing was set for February 7, even as Brewster tried behind the scenes to get it rescheduled again for Feb. 14.
After appealing the stewards' rulings on a suspension and disqualification, Baffert's team also made a motion postponing the appeals hearing from the original schedule of April 18, 2022. It was later set for June 28 and was moved again to Aug. 22.
–California veterinary records would appear to support Baffert's assertion that Medina Spirit was prescribed Otomax prior to the Kentucky Derby. Dr. Bruce Howard, equine medical director for KHRC, reached out to Dr. Rick Arthur, then-equine medical director for the California Horse Racing Board, asking whether he could see copies of the treatment sheets Medina Spirit's veterinarians would have sent to the board after the Santa Anita Derby, which is around the time Baffert said the horse developed his skin condition. Although the records don't appear in these files, Arthur responded, “Our regs require the vet confidentials remain confidential … I will tell you what I see reported is consistent with what Baffert has said publicly.” A subsequent patient treatment report produced by Equine Medical Center showed that Otomax was dispensed in Medina Spirit's name by Dr. Vince Baker on April 9 and April 19.
–No Otomax was found at Baffert's Churchill barn in the wake of the drug positive. Stewards learned of the positive betamethasone test on May 7 and per standard procedure, they ordered a search of the trainer's Churchill barn the following day, May 8. According to evidence in the stewards' hearing, no tube of Otomax was logged during inventories made in the search, although many other medications were taken out of the barn and tested.
Under questioning from the stewards, Baffert maintained that there was a tube there.
“My groom said – he said it was empty,” Baffert said. “He was done with it. He had run out. It was still in the box but they didn't – apparently they didn't see it in the box, in his brush box.”
–Things have gotten messy for Zedan's attorney after a late-night text to the Kentucky Horse Racing Commission's executive director. In a deposition of KHRC executive director Marc Guilfoil, Brewster revealed that he had a bar complaint filed against him by KHRC attorney Wolsing. Brewster texted Guilfoil's phone at 9 p.m., saying a reporter at the Louisville Courier-Journal told Brewster that Guilfoil told the reporter the stewards were going to rule against Baffert prior to their actual decision being issued. In the text, Brewster called the disclosure “clearly disturbing” and said it spoke of “obvious bias and pre-judgment.” Under intensive questioning from Brewster, Guilfoil said he'd never told a reporter any such thing and he interpreted the text as threatening. At the time of the text, the stewards were considering the case but Guilfoil said he was not involved in their process outside his capacity as a witness. Neither Brewster nor Wolsing specified the exact contents of the complaint or the outcome of the complaint.
As Guilfoil's deposition went on, led by Brewster, things only got more hostile.
Brewster: 'Have you heard this woman [referring to KHRC attorney Wolsing, who was in the room for the deposition] here tell others about the lawyers representing Mr. Baffert?'
[Debate ensues about whether Brewster is asking Guilfoil to disclose anything that would be privileged conversation, since Wolsing represents him in his capacity as a KHRC staff member.]
Guilfoil: I'll give you an overarching thing. I've never had any—heard anybody in this building say anything disparaging about either one of you. As a matter of fact, I consider you friends.
Brewster: Yeah. You can take off the consideration list; all right?
Guilfoil: The friend part?
Brewster: I can assure you – yes. Yeah. You can just repeat that.
Guilfoil: What about you, Craig?
Brewster: Yeah. Put a line through that.
–Recording a phone conversation is pretty standard for stewards. Baffert's legal team has publicly made much of the fact that the stewards recorded some of their phone calls with Baffert after notifying him of the drug positive, but in his deposition, Guilfoil said this was pretty standard practice. A former steward himself, Guilfoil said he often recorded phone calls and that because Kentucky is a one-party consent state for recording of conversations, he didn't often tell the other party they were being recorded. Chief steward Barbara Borden confirmed this is something she and other stewards have done for many years, to keep an accurate record of both what a licensee or their attorney reports to the stewards, but also what the stewards have said to them.
–Baffert's team tried hard to establish a bias among the three stewards who disqualified Medina Spirit and issued a fine and suspension to Baffert. Other outlets have already reported skepticism from the Baffert/Zedan legal team that steward Tyler Picklesimer could maintain impartiality when presiding over the stewards' hearing into the positive. The stewards' hearings took place in February 2022. Picklesimer works the winters as racing director for Turfway Park and serves as an association steward at other race meets on the Kentucky circuit. Turfway Park is owned by Churchill Downs, which famously issued a two-year private property ban on Baffert.
During deposition though, the Baffert/Zedan legal team also asked chief state steward Barbara Borden about her longtime partner, Gerry O'Brien, who in November 2021 was hired by Picklesimer to be the clocker at Turfway. O'Brien was a last-minute fill-in for another man who encountered health problems. Brewster pointed out this meant Borden's partner was being paid by a Churchill-owned entity.
–The news of Medina Spirit's positive may have first been leaked on Twitter – or maybe it wasn't. Brewster asked stewards in their depositions about whether steward Butch Becraft had a conversation with waitstaff at an unnamed restaurant and let spill that there was a positive drug test on the Kentucky Derby winner before even Baffert himself was notified. In his deposition of Borden, Brewster referenced a tweet made by a waitstaff member. He implied that tweet is what first alerted New York Times writer Joe Drape to the positive test, prompting Drape to call Baffert and ask for more information.
But when Wolsing asked to see a copy of the tweet, Brewster faltered.
“Honestly, we have looked for it. There's references to it. I've not – I've not been able to locate it. It was taken down,” Brewster said.
“Can you share with us the references to Twitter Tweet?” Wolsing asked. “I mean, is there like an article out there somewhere, or other Tweets?”
“I don't have an article about it,” answered Brewster. “But there was a number of conversations and I think are – have tracks to the Twitter.”
Brewster later clarified that he was referring to verbal conversations about the tweet.
–Assuming Medina Spirit's betamethasone exposure came from Otomax, it wouldn't be the first time a topical product resulted in a positive test and suspension in Kentucky. Under questioning from Brewster, Borden recalled that trainer Tom Amoss received a ten-day suspension for a betamethasone positive Amoss said had come from a topical spray. That was Amoss' first Class C offense at the time. The case never made it to a stewards' hearing, according to Borden, as Amoss waived his right and took his suspension, fine, and disqualification.
Borden recalled other cases, including dexamethasone in a throat spray and diclofenac in a topical osteoarthritis cream, which also resulted in sanctions.
–The prescription of Otomax for horses isn't something Kentucky officials encounter often. Borden testified that she had asked Howard about the use of Otomax, which is FDA-approved for use in dogs, on racehorses. She said Howard could recall just one practitioner who prescribes it routinely in Kentucky. Other topicals, like Panalog, appear more frequently on the treatment sheets that are turned in to the KHRC office.
–Baffert made a deal with the KHRC in the Gamine case. Because of his two positives in Arkansas, which were under appeal at the time, Baffert would normally have gotten a suspension for his betamethasone overage with Gamine after the 2020 Kentucky Oaks. According to testimony from Borden, his attorney pushed for a higher fine than what is typically given in other Class C cases and requested he not be given a suspension.
–Although he didn't apply it himself, Baffert says he was aware Medina Spirit was being treated with Otomax. The Kentucky stewards asked Baffert about the prescription of Otomax to Medina Spirit by Dr. Vince Baker. Baffert said the ointment would have been given by the horse's groom, and that it was one of his assistants who notified him the horse's skin rash was proving problematic. When it began after the Santa Anita Derby, Baffert said the lesions appeared on the colt's neck, girth, and hindquarters. When pressed by the stewards, Baffert admitted he did not know whether the horse was still receiving the topical daily in the approach to the Kentucky Derby, but that it was applied the day before the race.
Baffert was also asked whether he used Otomax on other runners for skin issues, and whether those horses went to the test barn. He confirmed he has used the drug on other horses but said “I know we don't use it the day of the race.”
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