Baffert hearing: Steward Borden testifies for more than four hours

FRANKFORT, Ky. – Kentucky chief steward Barbara Borden was on the witness stand for more than four hours Tuesday when opening the second day of a Kentucky Horse Racing Commission hearing into an appeal by Bob Baffert of a 90-day suspension the Hall of Fame trainer served earlier this year.

With Baffert and his wife, Jill, among about 20 people working or attending the hearing, Borden reiterated much of what she had said in previous legal proceedings before being grilled under cross-examination for 2 1/2 hours by Clark Brewster, one of Baffert’s attorneys. Borden initially was called on for nearly two hours of direct testimony by KHRC general counsel Jennifer Wolsing, who is representing the state’s stewards.

Baffert was the sole witness to testify Monday, the first half-day of an appeals hearing being conducted in a conference room in a state government office building.

The appeal is being argued before a hearing officer, Clay Patrick, a Frankfort attorney who will ultimately file a report to include “findings of fact,” “conclusions of law,” and a recommended course of action, as directed by Kentucky’s statutes on appeals. The report will be issued to the full KHRC, which will then vote on whether to accept or reject Patrick’s recommendation.

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Baffert is seeking to have the suspension reversed on appeal, which is partially moot in that he already sat out 90 days, ending in early July. Baffert was ordered suspended in February by the Kentucky stewards after a horse he trained, the late Medina Spirit, tested positive for betamethasone, a regulated anti-inflammatory corticosteroid, after winning the 2021 Kentucky Derby at Churchill Downs.

Medina Spirit was disqualified by the stewards as a result of the positive, and his owner, Amr Zedan, is also seeking to have the disqualification nullified as a part of the appeal. Medina Spirit died of a suspected cardiac event after a workout in December at Santa Anita Park in Southern California.

Baffert served the suspension after the KHRC and a Franklin County circuit court judge refused to stay the penalty while he appealed the decision.

The stewards’ adjudication of the case had been delayed for months due to efforts by Baffert’s lawyers to build a case that the positive result was not a violation of Kentucky’s existing rules. Baffert reiterated during his Monday testimony that Medina Spirit tested positive due to the nearly daily application of an ointment called Otomax, which contains betamethasone, in the month leading up to the Derby to clear up a persistent skin rash.

Craig Robertson, another of Baffert’s attorneys, emphasized two points during his opening statement Monday: that Kentucky’s rules about betamethasone do not apply to ointments containing the medication, and that evidence gathered by Baffert’s legal team confirms that the horse was treated with an ointment, and not injected with the drug.

Those were just some of the points Brewster tried to hammer home Tuesday during an often contentious and narrowly focused cross-examination of Borden, as his aggressive line of questioning got very deep into the proverbial weeds in regard to the myriad medication-related regulations at issue.

Kentucky stewards and their attorneys have said in earlier proceedings that Kentucky regulations do not differentiate between routes of administration of betamethasone.

Following Borden’s testimony, which lasted through mid-afternoon Tuesday, Dr. Bruce Howard, was called to testify by KHRC attorneys. Howard, Kentucky’s equine medical director, spent most of his two-plus hours on the stand clarifying his role as overseer in the procedural and technical matters involved in the disqualification while also touching on the potential of betamethasone as a masking agent.

Howard also underwent a vigorous cross-examination by Brewster – who questioned him in great depth about the state’s threshold levels and rules changes as they pertain to betamethasone – prior to the Tuesday session being adjourned.

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The hearing is tentatively scheduled to continue through Thursday, if not longer, with at least six more witnesses slated to testify, starting Wednesday morning at 9 a.m. Eastern.

While Baffert cannot turn back time and recover the 90 days he has already served, a decision by the KHRC to reverse the stewards’ decision would reinstate Medina Spirit as the official winner of the Derby (and perhaps provide legal grounds for Baffert to seek restitution in civil court). As of Feb. 21, Medina Spirit has been disqualified, even though the purse money has not yet been paid to the connections of the second-place finisher, Mandaloun, owned by Juddmonte Farms.

A spokesperson for the KHRC said recently that the purse will not be redistributed until “all appeals are exhausted,” a process that could take months, if not years, beyond the nearly 16 months that have already elapsed since the 147th Derby was run May 1, 2021. If he chooses, Baffert would have further legal recourse through the court system if his appeal is rebuffed by the KHRC.

Meanwhile, Baffert remains banned through the 2023 Kentucky Derby by Churchill Downs Inc., a decision by the publicly traded company that Baffert’s lawyers initially challenged in court, only to withdraw it earlier this year. Baffert also is currently banned at all tracks operated by the New York Racing Association until late January.

– additional reporting by Matt Hegarty