Baffert attorneys raise new issues in KHRC appeal
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Attorneys for Bob Baffert raised multiple legal issues related to the testing of post-race samples of 2021 Kentucky Derby winner Medina Spirit and the protocols followed by the Kentucky Horse Racing Commission in investigating the horse’s positive test in an appeal held on Tuesday morning of penalties issued by the KHRC in the case last year.
Several of the arguments made by Joey DeAngelis, a partner in a law firm headed by Clark Brewster, were novel to the multiple appeals that Baffert has launched to contest the disqualification of Medina Spirit from the 2021 Derby and the 90-day suspension he served in 2022 due to the detection of the regulated medication betamethasone after the horse’s Derby win. Other arguments hewed to the legal line that his attorneys have repeatedly covered in arguments before stewards, commissioners, hearing officers, and judges in settings in both Kentucky and New York over the past 18 months.
The Tuesday hearing was called by Eden Davis Stephens, a hearing officer appointed by the KHRC, to allow attorneys for Baffert and the KHRC to make oral arguments in front of her for the first time. Baffert’s appeal had earlier been the subject of a six-day hearing held in August of last year, but the hearing officer in that case, Clay Patrick, recused himself from the adjudication one month after the hearing concluded when Brewster purchased a horse he co-owned at a public auction. (Brewster has denied that he knew Patrick had a stake in the yearling.) Stephens was asked to step in to make a ruling in the appeal in December.
Baffert was first handed the 90-day suspension by Kentucky stewards in February 2022, eight months after the 2021 Derby. He asked for a stay of the penalty from the KHRC while he appealed the decision, but that stay was denied. Baffert later served the suspension in the spring and summer of that year. Medina Spirit died at the end of 2021 after a workout at Santa Anita, possibly of a heart attack.
With a reversal in the appeal, Baffert would be restored as the winning trainer of the 2021 Derby, which would make for a record seventh win in the race. The violation would also be stricken from his record.
On Tuesday, DeAngelis, who presented the oral arguments on Baffert’s behalf, continued to argue that KHRC regulations do not apply to the betamethasone positive because the drug was an ingredient in an ointment used to treat a skin rash in the lead-up to the Derby, and not injected into one of the horse’s joints, which is the typical route of administration. DeAngelis also raised objections to how the KHRC conducted its investigation of the positive, to how the horse’s post-race samples were tested, and on the protocols and standards of evidence used by the KHRC to determine the penalties in the case.
With several exceptions – including a new contention that the KHRC is in violation of the non-delegation clause of the Constitution because it does not conduct “direct supervision” of the operation of drug-testing laboratories – many of those arguments were laid out in full during the six-day hearing conducted in August. Davis Stephens has said that she has reviewed all of the transcripts and evidence from that hearing, but that she wanted the attorneys to offer a brief summary of their cases in oral arguments so that she could ask questions if need be.
Jennifer Wolsing, the KHRC’s lead counsel, presented the KHRC’s arguments to start off the hearing. Under the schedule set up by Davis Stephens, the KHRC would have 60 minutes to offer its oral arguments, followed by 75 minutes for Baffert’s attorneys, followed by 15 minutes of rebuttal from the KHRC.
“This is an incredibly straightforward case,” Wolsing said in her introductory remarks. “Mr. Baffert administered a medication prohibited in a post-race test.” Unlike DeAngelis’s arguments, the remainder of Wolsing’s oral testimony included arguments identical to those she presented in the first six-day hearing.
In pushing back against a contention by DeAngelis that has been repeatedly pushed by Baffert’s attorneys that KRHC regulations expressly allow for the use of “any ointment,” Wolsing pointed out that the interpretation would lead to “absurd” outcomes.
“If any kind of ointment is permissible, then arguably a trainer could put completely prohibited substance likes cocaine or methamphetamine in an ointment … and get off completely scot-free in post-race testing,” Wolsing said. “That is clearly absurd.”
Davis Stephens had no questions for either attorney at the end of the hearing. She said after the hearing that she hopes to release her decision “sometime in April.”
Separately, Baffert is currently banned by Churchill Downs through the 2023 Derby, scheduled for May 6 of this year. All of his leading candidates for this year’s Derby were transferred out of his barn in mid-February, after a federal judge in Louisville refused to issue an injunction against the ban while Baffert’s lawyers pursue a civil suit against Churchill’s decision.
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