California Stewards Hear Details on Justify Case

The investigation and actions of the California Horse Racing Board and its staff following a finding of scopolamine in a post-race test of Justify  after he won the 2018 Santa Anita Derby (G1) were revisited in a five-hour and 20-minute stewards' hearing Oct. 29 as the CHRB now seeks a disqualification.

The hearing was held in a virtual format and was open to the public. Steward John Herbuveaux, who oversaw the proceedings, said it would be at least a few weeks before any decision is made. He noted that he wanted to review the transcript and evidence presented.

Justify's connections were represented by attorneys as the CHRB is asking the stewards to disqualify Justify from his April 7, 2018, win. Trained by Bob Baffert, Justify was campaigned by WinStar Farm, China Horse Club, Head of Plains Partners, and Starlight Racing. The hearing also looked at Hoppertunity , another Baffert trainee who had a similar test result for scopolamine after winning a race the following day, the Tokyo City Cup Stakes (G3) at Santa Anita Park.

In 2018 following a recommendation from its equine medical director, Dr. Rick Arthur, and executive director, Rick Baedeker, based on their determination that the lab finding resulted from environmental contamination linked to jimson weed in Justify's feed, the CHRB unanimously voted in executive session not to pursue disqualification for sanctions against Justify or his connections.

Justify went on to win the Triple Crown, and the CHRB actions did not come to light until September 2019 following a New York Times story that questioned the CHRB conducting that vote behind closed doors and raised concerns about the connections of board members to participants, among other issues.

Mick Ruis' Ruis Racing then pursued litigation. As part of a settlement with the regulator, the CHRB announced Aug. 27 that it had filed a complaint against both horses and a stewards' hearing would be conducted. Robert Petersen of the California Attorney General's office argued Thursday that state regulations left little choice for the stewards but to disqualify Justify and Hoppertunity.

But attorneys representing the connections argued that CHRB regulations allow the equine medical director and executive director to go to the board with recommendations like the one made in this case. In sworn testimony Thursday, Arthur said the rule was put in place to provide scientific expertise and protect licensed participants in cases like this—where a test result caused by contamination could affect reputation.

"I absolutely, unequivocally stand by my recommendation to the executive director and the board, 100%. This was the correct decision. It was the fair decision," Arthur said. "Usually, regulatory agencies don't have the guts to do what's clear and right. And this board made that decision appropriately."

Arthur said after a thorough review by CHRB investigators, it was determined the lab finding was a result of contamination. On Thursday, Arthur, who still serves as equine medical director, said he and Baedeker, who has since retired from his position, recommended the board not call a positive because it was a case of contamination. He said the board at that time unanimously voted to dismiss the lab finding.

In Thursday's testimony, Arthur didn't provide much detail on the science behind his recommendation, but he previously has told BloodHorse that because atropine was found along with scopolamine, it indicated contamination by jimson weed. Arthur has told BloodHorse that if a drug form of scopolamine, Buscopan, is administered, atropine is not found in post-race tests. So when atropine is found, it's an indication that jimson weed was the cause.

Arthur relayed that information to the board at the time. In submitted testimony, Chuck Winner, then-chairman of the CHRB, noted the finding of atropine indicated a "definite marker of jimson weed."

Petersen raised concerns about Arthur's actions, noting that the lab found levels of scopolamine for Justify and Hoppertunity above the International Federation of Horse Racing Authorities' recommended screening level—used to rule out contamination—while the other five tests were below that level.

Reached after the hearing, Darrell Vienna, one of the attorneys for Ruis in his litigation, questioned why a racing board would take the actions it did behind closed doors. Vienna, who watched the hearing, noted the turnover at the CHRB since the actions of the previous board came to light. He said he believes Arthur called for the board to take action behind closed doors.

"One of the bad apples still remaining at the CHRB is Rick Arthur, and it's time for him to go," Vienna said. "He's no longer working for the board; he's working for himself and his friends."

Arthur said Vienna's assessment was linked to his role as an attorney for Ruis. "Considering the source, I'll take that as a compliment," Arthur said of Vienna's statement after the meeting.

During Thursday's hearing, Arthur said he advised the board at the time that their vote in executive session would eventually come to light. He said he would have been fine having the case go to the stewards, noting he would have made the same recommendations that he made to the board. 

"As I said before, I consider this a horse poisoning, not a horse drugging," Arthur said. "Very early on, it became clear to me that these cases were contamination from jimson weed."

While it also would be a point of contention, Petersen said because CHRB regulations listed scopolamine as a Class 3 substance at the time of the race, the case was required to go before the stewards. Petersen argued that the stewards have to conduct a hearing on any finding for a substance of a Class 3 substance or one of greater concern. 

Craig Robertson, an attorney for Baffert, argued that California regulations at the time of the race categorized scopolamine as a Class 4 substance—a standard in line with national standards. Drugs in that category, of lesser concern than Class 3, do not call for disqualification.

Robertson said CHRB regulations call for updates made by the Association of Racing Commissioners International to its Uniform Classification Guidelines and Recommended Penalties model rule become the standard in the state unless an exception is made. Robertson said no exception had been made for scopolamine and the new, lower Class 4 standard was in place at the time of the 2018 Santa Anita Derby.

Petersen said while the CHRB was in the process of updating the classification, that standard was not in place at the time of the race because California's Office of Administrative Law did not update the rule until Jan. 1, 2019—making scopolamine a Class 3 substance at the time of the 2018 Santa Anita Derby. He said because of that, the stewards, by regulatory law, should have conducted a hearing.

Vienna said he believes Robertson did not correctly state California law and that the Class 3 standard was in place.

"I don't think there was a single piece of relevant evidence raised by the respondents," Vienna said. "I'm confident that the stewards are going to reach the right decision."

Amanda Groves, who represented Justify's owners, argued that if the stewards issue a different decision, it would set a dangerous precedent.

"We cannot go down the path of reopening every case, every decision the board makes, or that you as stewards make," Groves said.

Besides Herbuveaux, the other two stewards who participated in the hearing were Kim Sawyer and Ronald Church.