Frankfort, Ky.
Nearthe end of a long day of testimony that took a deep dive into the fine print ofmedication regulations and procedures, Bob Baffert’s appeal hearing waspunctuated Tuesday by loud questioning of Kentucky’s equine medical directorabout a change in the rules governing the drug that turned up in MedinaSpirit’s system.
“Yousay we don’t want another ‘gotcha’ for a trainer,” Baffert’s attorney ClarkBrewster said to Dr. Bruce Howard. “But in your letter to horsem*n, there wasno reference to a threshold change. … It’s not in the rules.”
Brewsterwas referring to the change in Kentucky Horse Racing Commission guidelines forbetamethasone, which had been allowed at a trace level on race day before a2020 rule change that covered a list of medications for which the tolerance wasreduced to zero.
He contended the regulations and recommendationsfor the use of betamethasone were murky. At one point Brewster told Howard, “You’re the spokespersonfor these people to make sure they don’t get millions of dollars taken awayfrom them and humiliated for a year in the press and pilloried.”
Askedby Brewster why betamethasone was not specifically shown on the KHRC’s list,Howard said, “In our withdrawalguidance, if a medication is not listed with a threshold, it is a limiteddetection drug. … I don’t know why we didn’t add it. It’s a common-sensething.”
Atthe end of the give and take, Brewster shrugged and rhetorically said, “So wego by common sense rather than rules?”
Itwas the most contentious exchange during nearly seven hours of testimony fromHoward and, before him, from Barbara Borden, the chief steward for the KentuckyHorse Racing Commission.
Tuesdaywas the second day of the appeal hearing brought by Baffert, who flew in thisweek from California. He is trying to get a 90-day suspension scrubbed from histraining record. Baffert and owner Amr Zedan, who is not in attendance, alsoare hoping to restore the late Medina Spirit’s 2021 Kentucky Derby victory thatwas erased because the colt had tested positive for betamethasone.
Before Brewster’s questioning of Howard, the closest thing to a flashpoint Tuesday came when Borden was asked if there was any “high-fiving” within the KHRC’s inner circle when Medina Spirit’s failed drug test came to light after the Derby.
“No,” Borden said. “We knew it would be bad for racing in general and possibly be drawn out like it has been.”
Fifteen months after the 2020 Derby and six months after Medina Spirit’s victory was voided, Borden answered that question from KHRC attorney Jennifer Wolsing. It happened during Borden’s more than four hours of testimony on the second day of the appeal hearing.
Wolsing’s questioning Tuesday morning was framed to support the KHRC’s way of doing its enforcement business. That included Borden justifying the secret recording of Baffert telling her in a telephone conversation May 8, 2021, there was no way his staff gave betamethasone to Medina Spirit.
“We’re conducting an investigation,” Borden said of what she said was standard procedure at the KHRC. “We just want to hear what they have to say so we can remember what we told them.”
Under Kentucky law, only one person on a telephone call needs to be aware of the recording. Baffert said Monday that, two days after his conversation with Borden, he found out the Otomax skin ointment his staff rubbed on Medina Spirit contained betamethasone.
Borden also outlined the ordering of a search of Baffert’s former barn at Churchill Downs shortly after the failed drug test and how a small circle of KHRC personnel was aware of it – countering Baffert’s belief that the result was prematurely leaked to the media.
“We contacted our investigators to organize a barn search,” said Borden, who added that her colleagues who were aware of the positive test did not tell commissioners, media, friends or family.
Family came into play, because Borden’s boyfriend of 30 years, Gerard O’Brien, works as a seasonal worker at Turfway Park, which is owned by Churchill Downs.
“We never discussed any details of the (Baffert) case,” Borden said, adding that O’Brien did not urge her to rule in any particular way last winter when Baffert faced her and the two other Kentucky Derby stewards.
Under aggressive cross-examination from Baffert’s attorney Clark Brewster, Borden was asked about her not revealing before the stewards hearing that she was involved with a Turfway Park employee.
“I wished I had,” Borden said.
Brewster also argued that steward Tyler Picklesimer was compromised in his ability to pass judgment on Baffert and Medina Spirit. That was because Picklesimer works for Churchill Downs Inc., whose CEO Bill Carstanjen sent a statement to CDI employees the month before the stewards hearing that Baffert’s “case is without merit, and we are considering any and all legal options available to protect our rights.”
Before Brewster brought up Carstanjen’s statement, Borden defended Picklesimer’s character.
“I’ve worked with Tyler Picklesimer for well over 25 years,” she said. “I’ve never known him to do anything but straight up. I've never known him to have any pressure from any person or entity.”
Later, Brewster went to great lengths to make his point that KHRC rules are “vague and ambiguous,” spending more than 90 minutes in the afternoon going over the intricacies of one medication rule after another.
That eventually led to a retort to the Baffert team’s contention that it was OK for Medina Spirit to get an ointment with betamethasone rather than an injection. Howard said later that the way the horse got the drug was immaterial.
“There are a lot of different ways that a corticosteroid and other medications can get into a horse’s system,” Howard told Luke Morgan, another KHRC lawyer. “Anytime they have a systemic level that can mask a horse’s pain, that concerns us.”
Howard chuckled when he described the steps that were taken to send the last remaining urine sample for testing at a New York lab last summer. That was after it was feared another urine split might have been contaminated when a blood-sample tube had been damaged somewhere between labs in Colorado and New York.
“It was kind of an unprecedented thing,” Howard said. “It was the last bit of sample we had in our possession.”
Howard also was asked about the moments when he finds out horses like Medina Spirit test positive.
“I hate it,” he said. “It leads to a lot of problems. We want clean racing. My wish every year is a good, safe race and a good, clean race.”
Although the hearing is open to the public, it is not being streamed online. Frankfort-based attorney Clay Patrick is serving as the presiding officer. He has been assigned to make a ruling that is not binding but, instead, a recommendation that the 14-member KHRC eventually may accept, revise or reject.
If the KHRC does not budge, Baffert may return to court, presumably to the Franklin County Circuit Court where he pursued previous appeals of his sanctions from both the KHRC and a separate, two-year suspension from Churchill Downs Inc. racetracks.
Patrick’s patience appeared to be wearing thin late in Borden’s testimony. He asked Wolsing how many more witnesses the KHRC intended to call. Wolsing said, “Seven.”
That led Wolsing to propose a time limit on questioning, but that was rejected by Brewster.
Patrick then shrugged and said, “Continue.”
Brewster and Craig Robertson, who also is representing Baffert, are expected to call five or six witnesses once the KHRC is done. Baffert may return to the stand to be one of them.
The hearing is scheduled to resume for a day-long session Wednesday at 9 a.m. EDT. Dr. Heather Knych, a veterinarian from the University of California, Davis, is on the KHRC witness list.
The same timetable is expected Thursday. In the increasingly likely event that the hearing is not finished by Thursday evening, it may resume Monday morning.
