As Racing Hall of Fame trainer Bob Baffert testified Aug. 22 about events before and after Medina Spirit tested positive for betamethasone after finishing first in the 2021 Kentucky Derby Presented by Woodford Reserve (G1)—before later being disqualified—his attorneys registered frequent objections.
Considering the appeal by Baffert, etal., of the stewards' February 2022 decision to disqualify Medina Spirit and sanction the trainer is largely based on the most basic of points—what exactly the rules are in Kentucky regarding betamethasone—the slow-go and frequent objections at Monday's hearing make a certain amount of sense.
Kentucky Horse Racing Commission general counsel Jennifer Wolsing provided the initial opening statement,framing the stewards' decision as a simple case that boils down to Medina Spirit having a substance in his system—betamethasone—that is not permitted on race day.
"After all the testimony has been heard and all the exhibits have been read, and all the science has been aired, this is a simple case," Wolsing said. "Betamethasone, according to commission standards, is a Class C therapeutic medication. The commission has no regulation that allows betamethasone above the limit of detection in a post-race sample."
The appellants make the case that the Kentucky rules, at best, are unclear. Attorney Clark Brewster presented their opening statement, arguing that the KHRC rules on betamethasone are standards that apply only when the corticosteroid is administered through an injection. Brewster asserted that the failed post-Derby drug test followed an administration of Otomax, a cream that contains betamethasone that was administered to Medina Spirit to treat a rash, as opposed to an injection.
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"Can the laws be so vague that you can apply the elements you want to them to accuse someone you want to accuse but let others go?" Brewster asked before later adding, "With the topical, there's no stand-down period, there's no concentration limit. There's no articulated limit of detection ..."
Monday's lone witness in the hearing that started at 1p.m. and concluded at 5:18 p.m. was Baffert, who wore a blue blazer and open-collared white shirt to the state government building in Frankfort, Kentucky's capital city, which has a population of 27,705—about half the number of people who turned out May 1, 2021, for a Derby that limited attendance because of COVID-19.
Wolsing presented recorded phone calls between Baffert and Kentucky chief steward Barbara Borden discussing the failed test in which Borden says a Kentucky vet searched the barn to see if any possible source of the betamethasone could be found.
"We did have a vet go over there just to look through and see if there's anything; any salve or any head wash or leg paint," at which point Baffert cuts her off to say, "They're not going to find anything."
That vet did not find any Otomax in that search, nor did any other KHRC official. On Monday Baffert said he wishes they had found it.
Brewster said the Otomax was readily visible, and he attributed the vet's not finding it at the barn to it being viewed as so routine that it wasn't a concern.
In another recording, Baffert said it would be "stupid" to administer betamethasone. On Monday he said that statement referred to an injectable form of betamethasone for which he had been sanctioned just months earlier.
While Wolsing said Monday that the KHRC doesn't concede that the Otomax application was the reason for the post-race positive, she largely proceeded under that assumption—arguing that under Kentucky rules it doesn't matter how it was administered. She did notethat Dr. George Maylin, who heads the New York Equine Drug Testing and Research Laboratory and conducted a study to determine the source of the betamethasone, conceded that the horse could have received Otomax and also been injected.
In his opening statement, Brewster said they will question some lab procedures, but most of his argument centered around a belief that the KHRC doesn't have a rule that addresses betamethasone when it's applied as an ointment.
With those two polar opposite approaches, hearing officer Clay Patrick, a Frankfort-based attorney, frequently had to weigh in as Baffert's representatives, including Lexington-based attorney Craig Robertson, objected to questions being framed in a way to suggest that KHRC rules prohibit betamethasone on race day—regardless of how it's administered. The appellants don't concede that point.
Most of these disagreements were resolved by Wolsing's framing her questions in a different way.
The hearing is an appeal of the Kentucky stewards' decision to disqualify Medina Spirit from victory, which cost owner Zedan Racing Stables the $1.86 million purse; and saw Baffert suspended 90days and fined $7,500. After the hearing concludes, it's expected that Patrick will take some time before issuing a decision. The KHRC can then consider that decision as a recommendation.
At that point, any further appeals would go to court.
Wolsing said the stewards' sanctions of Baffert following the failed Derby post-race test were in line for a multiple offender. She cited two lidocaine positives in Arkansas—Charlatanafter winning a division of the Arkansas Derby (G1) and Gamineafter winning an allowance race—May 2, 2020, in which Baffert was fined $5,000 for each infraction; as well as a betamethasone positive for Gamine after her third-place finish in the Sept. 4, 2020 Longines Kentucky Oaks (G1), for which Baffert was fined $1,500.
Wolsing said Kentucky rules provide guidance for sanctions of up to three in a year and said Baffert literally went "off the chart"with four. She said the stewards then examined the incremental increases in fines and suspension days for each offense and applied the Medina Spirit sanctions as a fourth offense in a year's time.
In the Arkansas cases, both horses initially were disqualified, but in an appeal the racing commission reinstated those wins, but kept in place fines against Baffert for both instances as it determined lidocaine was in the horses' systems on race day and the trainer is responsible for the horse's condition on race day. Baffert acknowledged Monday that he had paid both fines.
In the Gamine-Kentucky Oaks finding, Baffert said Monday that his vet had administered betamethasone to Gamine 18 days before the race—well outside the suggested withdrawal timeof 14 days out. But Wolsing noted that such guidance is based on specific dosages, and in this case she noted that the withdrawal time refers to a single injection. Baffert acknowledged Monday that Gamine received injections in both hocks 18 days out.
As for the Medina Spirit case, Wolsing pointed to rules on the book that prohibit betamethasone. She said those rules do not differentiate based on how the corticosteroid was administered. Baffert said he understood that Kentucky also requires the trainer to ultimately be responsible for the condition of the horse on race day.
Brewster said Kentucky rules make a point of defining substances that are completely forbidden in the horse and therapeutic medications that are allowed to be used. He noted that the therapeutic medications can be split into two groups, those that allow some level on race day (a threshold) and those that are not allowed at any level.
Brewster noted that in the weeks before Gamine's positive, the KHRC lowered the betamethasone threshold from 10 picograms per milliliter to zero tolerance—meaning any finding is a positive. Both Gamine and Medina Spirit tested at more than twice that threshold.
In making his argument, Brewster pointed to a rule on topical treatments that he says allows their use unless they carry substances in the completely forbidden category. Wolsing, in her statement, said Kentucky already has enforced the rule on betamethasone, regardless of administration.
Those rules, and their interpretation by the hearing officer, figure to be critical in the case that was scheduled to continueAug. 23 at 9 a.m. when the KHRC was expected to call Borden to the stand. The room has been reserved through Aug. 25, although the hearing could go shorter than that date or be extended. Based on Monday's start, the latter appears more likely.
