Medina Spirit DQ Recommendation Could Come in April

A hearing officer in the Medina Spirit case said following a March 21 hearing that she hopes to make a recommendation about the horse's 2021 Kentucky Derby (G1) disqualification to the Kentucky Horse Racing Commission in April.

Using remote technology, oral arguments lasting about 2 1/2 hours were heard by Eden Davis Stephens some seven months after the conclusion of a six-day evidentiary hearing when trainer Bob Baffert and owner Amr Zedan contested a decision by Kentucky racing stewards to take down Medina Spirit's win in the 2021 Run for the Roses, suspend the Hall of Fame trainer for 90 days, and impose a $7,500 fine on the trainer.

Clay Patrick presided over the August hearing but recused himself to avoid any appearance of impropriety a few days after attorney Clark Brewster bought a yearling at Keeneland's September Yearling Sale, owned in majority by Patrick and Ramspring Farm with whom Patrick is affiliated. Stephens will act based on the existing record without objection from the parties by issuing a recommended ruling to KHRC, which is free to make its own decision.

Baffert served the 90-day suspension after he could not obtain a stay in the courts. Medina Spirit's placing in the Derby is at stake now, along with $1.86 million in purse money and the fine levied on Baffert.

KHRC general counsel Jennifer Wolsing appeared for the KHRC. Joseph De Angelis argued for Zedan and Baffert in the absence of their usual lead attorney, Clark Brewster. No explanation for Brewster's absence was stated. W. Craig Robertson III also appeared for Medina Spirit's connections.

Wolsing, the first to present argument, said the case is simple in that Medina Spirit tested positive for the corticosteroid betamethasone, which is prohibited on race day, that there is no question about the accuracy of testing, and that his disqualification is required.

Wolsing told Stephens that stewards could have hit Baffert much harder. The attorney said his infractions history was literally "off the chart" in a regulation that calls for a maximum suspension of 60 days for three infractions within a specified time. Baffert had four, she said, leading stewards to another regulation empowering them to hand down a maximum five-year suspension and $50,000 fine.

Baffert understood Kentucky had a zero-tolerance rule for betamethasone on race day, Wolsing said, citing a text exchange between the trainer and chief steward Barbara Borden after Gamine  tested positive for the same medication after the 2020 Kentucky Oaks. Although it is permitted for training, Wolsing said the regulations expressly prohibit medications in a post-race sample except as "expressly permitted." Betamethasone, a class C medication (deemed less likely to affect performance than Class B and Class A drugs), is not on the permitted list.

Baffert initially denied the betamethasone positive could have come from a cream, Wolsing said, showing proof that Baffert told Borden, "We're not that stupid" after Borden told him KHRC officials seized ointments from the barn and would test them. Early, Baffert also told sports show host Dan Patrick no one who had access to the horse used any creams. But in a matter of days, Baffert said the test positive originated from Otomax, an anti-fungal cream prescribed by the barn's veterinarian, Dr. Vince Baker.

Otomax, marketed to treat ear infections in canines, is not approved by the Federal Drug Administration for use in horses but can be used off-label with documentation and client consent.

Wolsing pointed out the head of a New York race-testing lab, Dr. George Maylin, said it was "folly" for Baffert to administer betamethasone to Medina Spirit. Maylin, who was not an expert witness for either side of the dispute, concluded Otomax, not an injection, was the source of betamethasone found in Medina Spirit. Wolsing countered with KHRC's long-held position that the method of administration does not matter; that Maylin's testing was one-of-a-kind, unpublished, and not peer-reviewed; and that the testing methods were deficient.

Citing the testimony of a groom and an expert witness called by Baffert and Zedan, Wolsing said there is reason to doubt Otomax as the source. The groom said Otomax was applied twice daily to Medina Spirit from April 9-30, 2021. Out-of-competition testing on April 18 did not reveal Otomax, Wolsing said. Yet post-race testing on May 1 was positive for an amount similar to the concentration found in Gamine, who was injected 18 days before the 2020 Oaks. Further, she said, chemist Dr. Stephen Barker testified the post-race level found in Medina Spirit was consistent with an injection given three days earlier.

De Angelis offered arguments on legal and factual issues.

"We are going to insist on specific findings on what caused the medication positive," he said, noting that even though the KHRC offered evidence implying the positive came from an injection, stewards did not assert Baffert used an injection.

Citing Kentucky statutory law, De Angelis alleged that the entire process applied to Medina Spirit's disqualification and Baffert's penalties is unlawful, saying KHRC should not be the entity that both builds and decides the case.

Turning to the facts, De Angelis argued that Industrial Laboratories' test report was not certified properly, that it was hearsay, and that lab procedures did not use reliable methods based on written standard operating procedures for the particular type of test being performed. Wolsing said the lab director verified the results in testimony under oath.

De Angelis claimed KHRC cannot use a laboratory "limit of detection rule," which was utilized in this case, without a specific regulation authorizing it, and that KHRC does not have such a regulation. In short, he said that instead of KHRC practicing oversight, it delegated its authority to Industrial Laboratories. KHRC has "abdicated its authority," De Angelis said.

A common theme throughout the case, repeated in the hearing by De Angelis, is that KHRC misinterpreted its regulations, which say ointments are permitted on race day if administered under the direction of a licensed veterinarian. Thus, he said, a positive caused by an ointment applied in such a manner cannot be cause for disqualification.

In defense of Maylin, De Angelis said his methods are demonstrably reliable despite not being peer-reviewed.

Finally, De Angelis said the level of betamethasone in Medina Spirit could not affect his performance.

Addressing those arguments in her rebuttal, Wolsing focused on the ointment rule. It merely recites that a person other than a trainer or veterinarian can administer an ointment, she said, but it is not a regulation related to testing. Taking De Angelis' argument, she said, an ointment could be legally used to administer cocaine or any other substance, which would cause an absurd result.

Stephens did not ask any questions, saying the arguments covered everything on her mind.

"I hope to have the order out sometime in April," she concluded.