By T. D. Thornton
The connections of GI Kentucky Derby winner Medina Spirit (Protonic) have filed a civil complaint against the Kentucky Horse Racing Commission (KHRC) in an effort to force the agency to turn over the colt's post-race urine sample so it can be tested in a way that trainer Bob Baffert and owner Zedan Racing Stables, Inc., believe will prove that a betamethasone finding resulted from an ointment to treat a skin condition (Otomax) and not from an intra-articular injection.
According to a June 7 filing in Kentucky's Franklin County Circuit Court that seeks an injunction to keep the KHRC from allegedly violating their due process rights, attorneys for both Baffert and Zedan Racing's founder, Amr Zedan, outlined a process by which they made “demands” to the KHRC on how split-sample testing should be conducted to either confirm or deny the initial finding from the commission's lab.
The filing contends that the KHRC initially refused the plaintiffs' terms of how and under what circumstances the referee sample would be tested. But then, after the KHRC acquiesced in part to an alternate proposal, the portion of Medina Spirit's biological sample that was to be used for that purpose got damaged in transit and was rendered untestable by the time the package reached the lab.
Jennifer Wolsing, the general counsel for the KHRC, did not reply to an emailed query for comment prior to deadline for this story.
“[T]here has been an absolute firestorm surrounding Media Spirit and the alleged test results,” the complaint states. “Specifically, Baffert has been excoriated by some members of the press and public who have accused him of 'injecting' Medina Spirit with Betamethasone in an effort to cheat to win the Kentucky Derby. This public discourse has frequently suggested that Betamethasone is a 'banned' substance and that Medina Spirit was subjected to 'doping.' Neither
are remotely true.”
Betamethasone is a corticosteroid allowed in Kentucky as a therapeutic medication, but state rules require at least a 14-day withdrawal time before racing. Any level of detection on race day is a Class C violation, with no distinction listed in the rules pertaining how the substance got inside a horse.
No ruling has been issued to date in this case, although Baffert's attorney, W. Craig Robertson, confirmed in a June 1 statement that split-sample blood testing from Medina Spirit had come back and that it did confirm the presence of betamethasone.
But even while that analysis was being conducted at an accredited referee lab, another subplot was unfolding behind the scenes. The June 7 court filing explains it.
According to the complaint, on May 14, Baffert and Zedan's counsel informed the KHRC that the plaintiffs wanted both blood and urine samples to be tested from Medina Spirit's splits, and that they wanted an expert of their choosing to be able observe the analysis at their chosen lab.
They also asked for what is called a “limits of detection” test to be performed that could allegedly show not just that betamethasone was present, but that other compounds in Otomax were there too–namely clotrimazole, gentamicin, and betamethasone valerate.
The KHRC refused these demands (beyond allowing them to choose the accredited lab). So on May 19 the legal team made the request a second time, this time in writing along with rationale and legal support to explain their demands. This too was denied by the KHRC on May 21.
On May 24, the complaint states that a compromise was reached between the parties: The KHRC would allow plaintiffs to send the part of the biological samples that remained from Medina Spirit's primary samples (that had already been tested) to an accredited lab for the different form of testing the plaintiffs wanted.
“The KHRC represented to the Plaintiffs' that these 'remnants' were in good condition and in sufficient quantity to allow scientific testing,” the court filing states.
But on June 1–the same date that Medina Spirit's referee sample was announced by Robertson as positive–the KHRC informed Baffert and Zedan that the remnants had been damaged during transport to the testing lab.
“The manner in which the Betamethasone found its way into Medina Spirit is critical,” the complaint states. “There is a huge difference in a Betamethasone finding due to an [intra-articular] joint injection versus one from a topical ointment—both from a regulatory and public relations standpoint. The testing the plaintiffs' seek would provide empirical and scientific reasonable certainty that the miniscule and materially irrelevant reported positive in Medina Spirit's post-race sample was innocuously sourced from the topical Otomax.”
The attorneys for Baffert and Zedan allege in the complaint that they have a workable Plan B that would allow for the more detailed testing they seek–but that the KHRC purportedly won't allow it.
“There currently sits in the KHRC freezer and unopened, untested, and hopefully pristine split sample of Medina Spirit's urine. Given the foregoing, the plaintiffs requested that the urine be immediately shipped to the agreed-upon lab for testing of all components in Otomax. The KHRC has refused this reasonable request and has indicated it has no intention of allowing the urine split sample to be tested in any way.
“The urine sample is the best method available to determine whether the Betamethasone in Medina Spirit was present due to an injection or the topical cream Otomax,” the complaint sums up. “Time is of the essence, as biologic samples degrade with each passing day. Without intervention from this Court, Plaintiffs will forever lose the opportunity to test, analyze and cross-examine the only evidence that purports to establish a violation of the KHCR's regulations.”