Toutain Offers Specialized Testimony at Baffert Hearing

The Jan. 25 second day of the New York Racing Association v. Bob Baffert hearing was not without its pyrotechnics, but the proceedings were highlighted by the appearance of a world-famous expert on non-steroidal anti-inflammatory drugs.

Dr. Pierre-Louis Toutain was called to the stand by attorney Henry Greenberg as NYRA's second witness in as many days, testifying remotely from near Toulouse, France. With a distinct French accent, Toutain was asked by hearing officer and retired New York State Supreme Court Justice O. Peter Sherwood to slow his delivery so the court reporter could take down his testimony accurately.

Toutain, a self-described "veterinarian specializing in veterinary pharmacology," got his degree in Toulouse in 1972; received a PhD in 1986 after developing a thesis on the use of corticosteroids in horses; and serves as a professor at The Royal Veterinary College at the University of London after stints near Paris and in Toulouse. He said he has taught and engaged in research for 50 years.

Among his other accomplishments, Toutain has served as president of the European Association for Veterinary Pharmacology and Toxicology; co-founded the European College of Veterinary Pharmacology and Toxicology and served as its chair from 2003-09; produced research he said was "cited just last year more than one thousand times;" and lectured to other members of his field internationally.

His role in the NYRA-Baffert case would be to methodically describe how phenylbutazone, also known as "bute," betamethasone, and lidocaine tie into the charges brought against the Hall of Fame trainer. 

After describing bute generally as a non-steroidal anti-inflammatory drug mainly used to treat inflammation in the musculoskeletal system, Toutain said its intended use is not to mask pain and should only be used to treat inflammation, not to train horses. He said that while some use it to train horses with low grade inflammation, it is "an inappropriate use. It should only be used to treat inflammation, not to train horses."

Brewster objected that Toutain was engaging in a "philosophical discussion," but he was overruled, and then the specifics came into evidence.

Specifically, Toutain opined that with respect to Cruel Intention , a Baffert trainee that tested positive at Del Mar in July 2019, the amount of bute found by the testing lab could affect the horse's performance. He gave similar testimony as to Eclair , who tested positive a week after Cruel Intention, adding as to Eclair: "This is a very high concentration. I am sure of that. This quantity achieves full efficacy of the drug."

Part of NYRA's charges against Baffert in what is essentially a disciplinary/suspension hearing based on an alleged pattern of conduct consist of the positives generated by positive drug tests of Cruel Intention, Eclair, and other horses under his care.

It is Toutain's opinion that with low-grade lameness, bute can be used so the horse can perform "at full capacity." He said bute cannot "enhance performance," but it can "improve performance" by reducing inflammation "because inflammation is painful."

He said his opinion is grounded in part on about 700 papers discussing the pharmacological effect of bute and corticosteroids on horses. 

Betamethasone, Medina Spirit, and Gamine

Betamethasone, a corticosteroid, was found in Medina Spirit's post race samples following his first-place finish in the 2021 Kentucky Derby Presented by Woodford Reserve (G1). 

Describing the medicine as "very efficacious," Toutain said it does not cure, but can mask, an underlying joint condition causing inflammation. He warned against the possibility of severe consequences for misuse. "When you have a leg condition, you do not race," he said.

"By injecting it into the joint cavity, you can achieve a really high level of concentration without high system concentration … A typical dose by injection is 10 milligrams or nine milligrams. 

"But what is very, very important to understand is the fact they detect nothing in blood does not mean there is nothing in the joint because … the local concentration in the joint is much higher."

Asked if betamethasone would be detectable in blood if administered 48 hours before racing, Toutain affirmed it could be detected for three or four days regardless of how administered.

Medina Spirit tested positive for 21 micrograms per milliliter of blood. Greenberg asked, could a concentration of 20 picograms enhance a horse's performance during a race? "Definitively, yes," Toutain responded.

"We have two explanations. First, (with 20 picograms) it has been demonstrated it can have a systemic effect, not just located to the joint. But it can be much higher (locally), perhaps one thousand more…" he said. "There is no doubt this kind of concentration is effective and is the reason (the threshold) is so low … To detect nothing in the blood does not mean there is nothing in the joint."

Gamine  tested positive for 27 picograms per milliliter of blood for betamethasone, later confirmed by a split sample showing a higher concentration. When asked if those amounts were capable of affecting Gamine's performance, Toutain said: "Yes … If it is an intra-articular injection, 20 picograms is effective."

Lidocaine's Effect on Racing Ability

Toutain concluded his direct testimony discussing lidocaine positives that were found in Charlatan   and Gamine on Arkansas Derby day in May 2020.

Explaining that lidocaine blocks pain and does not cure underlying issues, he said it, too, can be used to mask injury in a horse and can put a horse at risk for injury. 

A typical dose is 100 to 200 milligrams applied topically and could be detected if given one day before a race, according to Toutain. Charlatan tested positive for 46 picrograms per milliliter of blood and Gamine 185 picograms per milliliter of blood. These amounts, according to Dr. Toutain, would not have a pharmacological effect on racing ability.

The conversation then veered to whether a pre-race inspection could be gamed by use of lidocaine to avoid the appearance of lameness.

"It's precisely why the threshold is low for lidocaine," Toutain said. "It's to insure the lidocaine has not been administered within the 24 hours preceding the subject time … The duration of effect is only one hour."

Clark Brewster's cross-examination of Dr. Toutain on behalf of Baffert sought less to challenge the major points made on direct than to establish that Toutain is not licensed as a veterinarian in the United States; has not participated in the development of medication rules in the U.S.; is not familiar with the specifics of different jurisdictional rules for betamethasone in the U.S.; that Toutain agrees there are differences of opinion about medication thresholds; whether he is aware methylprednisolone is used in skin salves; and the time it takes for lidocaine to be eclipsed by its metabolite in testing, to which Toutain appeared to say three hours.

One of the few instances of levity during the entire process was produced when Toutain asked Brewster, "Are you a scientist or a lawyer?" 

"I am a lawyer," Brewster replied, to which Toutain retorted: "So I have to explain simply," followed by good-natured laughter all around.

Goodell Continues Under Cross-Examination

Day two of the hearing began when Rick Goodell, a former assistant counsel for the New York State Gaming Commission and former chair of the Association of Racing Commissioners International's regulatory attorneys committee, continued under cross-examination from Brewster.

He said NYRA reciprocates penalties issued by other jurisdictions when the jurisdictional rules don't match.

"In New York, the level of Cruel Intention would not have been a rule violation (in New York) at the time, but it was a rule violation in California," he said.

Goodell acknowledged Baffert does not have a Class I violation, the most serious of five classes put out by the ARCI, in recent history; and that none of his violations included steroid use. He agreed that there are New York cases where environmental contamination was established; that lidocaine, bute, and betamethasone are routinely used at racetracks; and that Baffert had some clean barn examinations in California.

Mid-morning Sherwood raised his voice at Brewster, admonishing him that Goodell said the same things about threshold measurements and withdrawal periods at least a half-dozen times, stating that repetitive questioning amounted to badgering. Later, the judge said they were up to nine times.

For the first of two times on the day, Brewster engaged colloquy with Sherwood concerning the authority of NYRA to charge Baffert, a subject that was discussed abundantly pre-hearing and upon which Sherwood made a ruling.

"I told you before, move on," Sherwood said. Brewster asked a question, and Sherwood admonished him, "Move on, sir!"

Brewster concluded his cross by establishing that New York took no previous action against Baffert's license. Brewster maintained, "That should be the end of it all."

On redirect, Greenberg elicited that although they are not part of the charges against Baffert, he had two other bute overages in California in 2017 that were noted in the 2019 report about Cruel Intention.

Heleski and Cannizzo Testify

Dr. Camie Heleski, a senior lecturer at the University of Kentucky for the past 5 1/2 years, was called by the prosecution to discuss social license to conduct activities, something she said is granted to sports or business based on community sentiment, published perception, and opinions. It is her opinion that the drug positives in Baffert's barn have damaged racing's social license because there is no one more prominent in the sport than the Hall of Fame trainer.

W. Craig Robertson III handled cross-examination. Among other things, he established that a temporary injunction was entered allowing Baffert to race in 2021 at the Saratoga Race Course summer meet after the Kentucky Derby and after Baffert was suspended by NYRA without due process; and that the meet went on to generate record-breaking handle; and that 10% of people will oppose racing no matter what efforts are made to maintain its integrity.

Jeffrey Cannizzo was the final witness. He is the senior director of government affairs for NYRA and a former New York Thoroughbred Breeders executive director.

Cannizzo said NYRA is probably the most regulated entity in the state, being overseen by the New York State Gaming Commission, the Franchise Oversight Board, the Governor's office, the state legislature, the New York Comptroller's Office, the New York Attorney General's Office, the New York Department of Environmental Conservation, and the New York Department of Taxation and Finance.

He explained that NYRA's franchise gives it exclusive rights to conduct Thoroughbred racing at three tracks owned by the state, and that the sole reason for the existence of the Franchise Oversight Board is to regulate NYRA. There are performance standards detailed in the franchise agreement, which can be revoked if the standards are not met as determined at four annual meetings. He added that all aspects of NYRA's business is overseen by the Gaming Commission. 

During cross-examination, Brewster attempted to question Cannizzo about team Baffert's contention that NYRA has no right to bring the proceeding in progress. Sherwood intervened and several more minutes were used to stop the line of questioning.