Baffert hearing: Zedan, Hall of Fame trainer are final 2 witnesses

Testimony in Bob Baffert's hearing before the Kentucky Horse Racing Commission concluded Tuesday with the examination of the final three witnesses which included Baffert and Medina Spirit owner Amr Zedan. Additionally, Tom Lomangino, who testified on Monday, also returned to the stand.

After the examinations, which took place via Zoom, lawyers for both sides presented their closing arguments. 

At issue is Baffert's attempt to expunge the 90-day suspension he served in Kentucky from his record and restore Medina Spirit as the winner of the 2021 Kentucky Derby. On the other side, the KHRC argued that the betamethasone overage in Medina Spirit's drug test was a straightforward violation of Kentucky rules and the disciplines should stand.

Lomangino was originally called by Baffert's attorneys on Monday. He worked as a chemist who performed equine testing in New York, Maryland and Kentucky before retiring six years ago. During Monday's testimony he criticized both tests on Medina Spirit's samples, the first one by Industrial Laboratories of Colorado and the second one by University of California, Davis. Lomangino had a medical appointment Monday afternoon for which he had to leave early, meaning he returned to the stand Tuesday morning to complete his examination.

The cross-examination by KHRC lead attorney Jennifer Wolsing focused on the testing methodology and the documentation of testing methodology. Wolsing highlighted sections of an international standard for managing testing laboratories during questioning.

Lomangino stated he believed Industrial Laboratories did not comply with those standards. Wolsing pinned him to saying that he did not disagree with previous testimony that Industrial's methods used in 2021 were validated in 2019 and that he had no reason to believe their 2021 methods did not work.

Lomangino stated that one provision which requires use of the "latest valid version of a method unless it is not appropriate or possible to do so," was "circumvented, more or less."

The latter portion of Lomangino's cross-examination focused on the methodology of the test.

"They used a method called Dex Beta. I want to see how they aligned it with Beta rather than Dex," Lomangino said. "If you even look at this page, the internal standard was Dex...yet they're trying to confirm betamethasone."

However, when shown the Standard Preparation Form from Industrial's test results, Lomangino did confirm that it stated a method called "Betamethasone in Methanol" was used.

Zedan testified next. He did so from Jordan, mentioning during testimony that it is where his family is based; Zedan is married to Princess Noor bin Assam, a member of the Jordanian royal family.

Much of Zedan's testimony focused on his relationship with Baffert. Zedan entered horse racing in 2016, but stated that he was on his way out of horse racing until he met Baffert in 2019 and they worked out a plan for his racing operation.

Zedan praised Baffert both professionally and personally. When asked about the level of horse care in Baffert's barn, Zedan responded, "Mr. Baffert doesn't need my testimony to (an) outstanding career. He runs an immaculate operation. The results speak for themselves."

He also stated that he has not found Baffert to be evasive, but rather approachable and communicative with people. "People confuse the person with the persona," Zedan said.

At the end of his direct, Zedan stated that "the scientific system he has installed" is what keeps Baffert's operation on the top of the sport. Even after what has happened, Zedan noted that top owners still send top horses to Baffert. He finished his direct by stating that Baffert has never suggested that there was a shortcut to getting the horses to perform well.

Luke Morgan, who performed the cross-examination of Zedan, seized on the shortcut idea to begin his cross-examination, asking if he had heard a story about someone hearing Baffert say that "if he gave this horse this stuff" he'd win, and then the horse tested positive for a painkiller.

There was a lengthy objection and argument over that question, with Baffert's team claiming that the story was 24 years old, and from a "quarter horse [book]...full of jokes and side stories", irrelevant to Baffert's Thoroughbred operation in 2022. The hearing officer allowed Zedan to answer, and he stated he had not heard the story.

Zedan was also cross-examined about his involvement in horse racing in Saudi Arabia. Zedan stated that his board (the Supreme Equestrian Authority) focuses on budgeting and interacting with officials in higher levels of Saudi government.

Morgan asked Zedan about a horse who was disqualified from an endurance race in 2019 for a dexamethasone positive. Zedan stated that he could not speak to the incident in particular since it was before he was appointed, but that "I know in Saudi, in general, we run a tight ship."

Attorneys for the KHRC chose not to re-direct Zedan. Baffert took the stand immediately afterward, though before he testified there was an objection argument about whether the KHRC would be allowed an open cross examination as they had been for other witnesses, or if their cross would be limited to things Baffert was asked on direct.

Baffert's attorneys argued that, since Baffert had been treated like a hostile witness when the KHRC called him, that the KHRC had gotten the opportunity to ask leading questions about anything they wanted already, and that an open cross would give them a second bite at the apple. Hearing officer Patrick granted that motion.

Baffert attorney Craig Robertson began the examination with a discussion of Gamine, who was disqualified from a third-place finish in the 2020 Kentucky Oaks for a betamethasone overage. They showed a page from veterinarian Ryan Carpenter that stated she had two hocks injected with betamethasone on Monday, Aug. 17, 2020 in advance of the Oaks on Sept. 4.

Baffert stated that after she tested positive, he informed his barn staff that he no longer wanted betamethasone used.

Questioning then moved on to proceedings in Arkansas, relative to positive tests from Gamine and Charlatan for races on May 2, 2020. Though Baffert had originally been suspended for 15 days, and both Gamine and Charlatan had been disqualified from their wins, the text of an Arkansas ruling stated that the horses were both reinstated as winners, and that Baffert would only be penalized with a $5,000 fine for each horse, under the absolute insurer rule.

The ruling stated that mitigating circumstances included "errors made by Truesdail Laboratories and Industrial Laboratories in the handling, testing, and reporting the test results."

After discussions of these previous horses, testimony focused on Medina Spirit and his treatment with Otomax. Baffert stated that Medina Spirit had skin lesions on his neck, girth, and hind end, and veterinarian Vince Baker prescribed Otomax and a shampoo for the lesions.

Baffert explained that the ointment was administered via a dropper by groom Rolando Cruz, who applied it to the lesions after both morning and afternoon baths. According to his testimony, Baffert only found out from Dr. Baker after the test that Otomax contained betamethasone.

Baffert then discussed the effects of the test and the suspension.

"It turned my life upside-down," he said. "It's still upside-down."

He stated that it settled him when he traced the possibility of betamethasone back to the ointment, but that the media is still writing "hit pieces" and he has lost some of his horses in the aftermath. Baffert also stated that the suspension made his employees, some of whom have worked for him for over 20 years, concerned that the barn would not survive the suspension.

Baffert ended his direct testimony with a statement that he had never had a medication positive in the state of New York.

Wolsing, who did the cross-examination on behalf of the KHRC, began with a discussion of the 14-day stand-down period, and there was some tension around the number of injections Gamine got. She pointed out in the letter from Dr. Carpenter that Gamine had betamethasone injections in two hocks.

Baffert maintained that he waited 18 days between the injections and the race to be safe, but Wolsing pointed out in the letter that Dr. Carpenter mentioned that the "current recommendation both in the state of CA and KY was a 14-day stand down time on intra-articular medications and betamethasone should not exceed 9 mg in a single joint space."

Baffert would not conclude that this means Carpenter knew the rule, but did admit the letter mentioned the single joint space.

Wolsing's cross then also moved to Otomax. She pulled up a deposition from Kevin Dunlavy, the veterinarian who Baffert hired in Kentucky. Dr. Dunlavy stated in that deposition that he would tell an owner, as a general rule, to stop using Otomax 48 hours before a race. When asked whether he agreed with that advice, Baffert stated that he has never discussed Otomax with Dunlavy, but finally conceded that "I think if he told me now I'd agree with him."

The cross-examination then covered the Arkansas hearing. Wolsing tried to establish that there were, in fact, positive tests as mentioned in the first part of the document, despite Baffert's horses being reinstated and Baffert's suspension being removed on appeal.

Baffert would only admit that there were positive tests "because of the errors ... All I know is they reversed it, I can't tell you the legal parts of it." He did admit to the existence of a trainer responsibility rule.

Robertson, Baffert's attorney, returned to the deposition of Dr. Dunlavy on re-direct. Robertson pointed out the portion of the deposition where Dr. Dunlavy mentioned Otomax was "a pretty commonly used product, topically" for dermatitis, despite that use being off-label. Baffert confirmed that Medina Spirit was suffering from dermatitis.

Robertson also highlighted the section of Dr. Dunlavy's deposition where he mentioned that he never thought topical use of Otomax would be a problem in the context of a post-race test.

Wolsing responded by re-crossing Baffert on another part of Dunlavy's deposition, where he stated that "everybody knew that [betamethasone] was part of the benefit of the medication."

Baffert would only concede that he knew it was widely used in California. Wolsing also pointed out a part of Dunlavy's statement that he would err on the side of caution with Otomax because it contains a corticosteroid.

She ended by suggesting that, if Dr. Dunlavy thought that a topical application would not show up in a post-race test, it means Medina Spirit could have been injected with Betamethasone. That set up for a short second re-direct, in which Robertson asked Baffert whether Medina Spirit had ever been given a betamethasone injection, and Baffert stated that he had not.

At that point, Baffert was excused from the witness stand. He was the final witness called by his own attorneys, and the KHRC stated they would not call any rebuttal witnesses. The hearing went on recess until 12:35 p.m. EDT, after which closing arguments were presented. Unlike the testimony, closing arguments were not broadcast over Zoom.

As reported by Matt Hegarty of the Daily Racing Form, Baffert's attorney Clark Brewster argued in his closing that the KHRC's betamethasone regulations focus on injections, and the commission failed to provide guidance on other uses of topical ointments.

He drew the comparison between betamethasone valerate, the ingredient in Otomax ointment, contrasting it with betamethasone acetate, the form used in injections. Hegarty also reported that Brewster's closing portrayed the KHRC rules as "a hodgepodge of conflicts and legal shortcomings", and that Clay should use "common sense" instead of trying to make an example of Baffert.

Hegarty noted that Wolsing, who presented the closing argument for the KHRC, rebutted the injections-versus-ointments argument in her presentation. She noted that "betamethasone" is on the list of prohibited substances, that it was impossible to list every possible way it could be administered, and that it was "common sense" to treat betamethasone as a class C medication regardless of the way it was given to a horse.

Hegarty reported that Patrick gave both sides 30 days from the release of that transcript to provide "findings of fact and conclusions of law."

Patrick has 60 days after receiving the hearing transcript to issue a report. That report is not binding. It will be presented to the KHRC, whose 14 members will review. They can choose to accept, revise, or reject Patrick's conclusions.