COMMONWEALTH OF KENTUCKY FILED RECEIVED FRANKLIN CIRCUIT COURT JUN 07 2021 07 2001 DIVISION 7 JUN CIVIL ACTION NO. FRANKLIN CIRCUIT COURT| aan CIRCUTT COURT AMY FELDMAN, CLERK RAN FELDMAN, CLERK BOB BAFFERT PLAINTI AND ZEDAN RACING STABLES, INC. v. KENTUCKY HORSE RACING DEFENDANT COMMISSION MOTION FOR TEMPORARY INJUNCTION Come the Plaintiffs, Bob Baffert (“Baffert”) and Zedan Racing Stables, Inc. (“Zedan”), by counsel, and move the Court, pursuant to CR. 65.04, for entry of a preliminary injunction against the Defendant, the Kentucky Horse Racing Commission (the “KHRC”), enjoining it from violating, their due process rights by refusing to allow Plaintiffs to have MEDINA SPIRIT’s urine split sample sent to an accredited labor for a Limit of Detection, chemical analysis and identification of Clotrimazole, Gentamicin, and Betamethasone Valerate. In support of this motion, Plaintiffs rely on the facts alleged in their Complaint and the Memorandum of Law that is attached hereto. OTICE OF HEARI The parties will take notice that the foregoing Motion come on for hearing before the Franklin County Cireuit as soon as convenient for the Court.Respectfully submitted, SUL W. Craig Robertson, IIT swrobertson@wyattfirm.co Courtney R. Samford csam ford @wyattfirm.cor Tom Travis turavis@wyattfirm.com Lexy Gross Igross@wyattfirm.com WYATT, TARRANT & COMBS, LLP 250 W. Main Street, Suite 1600 Lexington, KY 40507 859-233-2012 Counsel for Bob Baffert and {si Clark Brewster Clark Brewster Pro Hac Vice KBA# 16420917 2617 E. 21° Street ‘Tulsa, OK 74114 Counsel for Plaintiff Zedan Racing Stables, Inc.CERTIFICATE OF SERVICE ‘This is to certify that | on this the 7” day of June, 2021 I served the foregoing upon the following by U.S. Mail and email: Jennifer Wolsing, General Counsel Kentucky Horse Racing Commission 4063 Iron Works Parkway Building B Lexington, KY 40511 \punat Counsel for Plaintiffs 100500367COMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT DIVISION CIVIL ACTION NO. BOB BAFFERT PLAINTIFFS AND ZEDAN RACING STABLES, INC. v. KENTUCKY HORSE RACING DEFENDANT COMMISSION |EMORANDUM IN SUPPORT OF PLAINTIFFS? MOTION FOR TEMPORARY INJUNCTION ‘Come the Plaintiffs, Bob Baffert (“Baffert”) and Zedan Racing Stables, Inc. (“Zedan”), by counsel, and hereby move the Court, pursuant to CR 65.04, for entry of a Temporary Injunction against the Defendant, the Kentucky Horse Racing Commission (the “KHRC”), to enjoin it from refusing to allow Plaintiffs to send MEDINA SPIRIT’s split urine sample to an accredited lab for Limit of Detection chemical analysis and identification of Clotrimazole, Gentamicin, and Betamethasone Valerate. In support of said Motion, Plaintiffs state as follows: ‘On May 1, 2021, MEDINA SPIRIT—trained by Baffert and owned by Zedan—won the 147th Kentucky Derby at Churchill Downs Race Track in Louisville, Kentucky. Following the Kentucky Derby, blood and urine samples were collected from MEDINA SPIRIT. Several days later, Plaintiff were informed by the KHRC that MEDINA SPIRIT’s primary sample allegedly tested positive for 21 picograms of betamethasone, a lawful, commonly used, therapeutic, anti inflammatory medication. While betamethasone is an allowed substance, Kentucky’s regulation, which solely addresses an interarticular injection of betamethasone, calls for a 14 day withdrawalguideline in advance of a race such that, if the horse is injected with betamethasone, it will have completely cleared the horse’s system by race day. Kentucky's regulations do not address or regulate the fact that betamethasone is also found in some creams and ointments applied to horses. Betamethasone found in an ointment is known as Betamethasone Valerate and it only serves to relieve itching. It is different from the betamethasone found in an injection which is known as Betamethasone Acetate. Betamethasone is not a performance-enhaneing drug. (See affidavit of Dr. Steven Barker, which is attached hereto as Exhibit A, at 9). Rather, it is a substance that can suppress inflammation much like other corticosteroids such as hydrocortisone and prednisone. (Id). A picogram is one-trillionth of @ gram, This is the rough equivalent of one drop of water in an Olympic sized pool. (/d.). Twenty-one picograms of betamethasone would have had no pharmacological effect on MEDINA SPIRIT and would have had zero impact on the race. (Barker affidavit, 48). Plaintifis have emphatically and repeatedly denied any wrongdoing, and, as is their right under Kentucky law, they requested that MEDINA SPIRIT’s split samples be thoroughly tested 's intend to offer evidence that betamethasone in MEDINA SPIRIT came and analyzed. Plain from a topical ointment called OTOMAX that was prescribed by MEDINA SPIRIT’s veterinarian to treat dermatitis. Broadly speaking, betamethasone can find its way into a horse in two separate ways — either by direct interarticular joint injection or through the innocent and proper use of a topical ointment containing betamethasone — and the question of how the drug made its way into MEDINA SPIRIT’s system is vitally important in this case. ‘The importance of this distinction is two-fold. First, KHRC’s regulations only expressly regulate the injection of betamethasone. There is no reference whatsoever in the KHRC’s regulations to an incidental finding ofbetamethasone as a result ofa valid veterinary use in the form of a topical ointment like OTOMAX. Thus, scientific proof that a finding of betamethasone is the result of an ointment is potentially completely exculpatory. Second, the KHRC’s regulations allow for the Plaintiffs to present evidence of mitigating circumstances. Ata bare minimum, proof that the betamethasone in MEDINA SPIRIT came from a topical ointment and not an injection is a mitigating circumstance. Given the public excoriation of Baffert that is currently taking place — primarily consisting of accusations that he had MEDINA SPIRIT injected in an effort to cheat — evidence of how betamethasone found its way into MEDINA SPIRIT is vitally important to his life, career and reputation. Plaintiff want to have MEDINA SPIRIT’s urine split sample tested for the ingredients in OTOMAX - Clotrimazole, Gentamicin and Betamethasone Valerate. ‘The split sample testing procedures identified by Plaintiffs are likely to establish whether the betamethasone, if present, was administered via injection or ointment, (See Barker's affidavit at P 16). It is vital that MEDINA SPIRIT’s urine split samples be analyzed for the existence of these OTOMAX ‘compounds because they are more likely to be detectable in a horse’s urine than the blood. (/d.). Plaintiffs anticipate that this evidence will allow them to scientifically prove that the betamethasone present in MEDINA SPIRIT’s system came from the ointment and not an injection, which could not only be mitigating, but has the potential to be completely exonerating in this case. As such, substantive and procedural due process, as well as the KHRC’s own regulations, prohibit the KHRC from arbitrarily refusing to allow Plaintiff’ to obtain this evidence. Given that the analysis of MEDINA SPIRIT’s split sample is arguably the most important split sample test in the history of horse racing, and that all parties should be in search of the truth and want to obtain as much scientific evidence as possible, Plaintiff’ made three demands to theKHRC concerning the split sample analysis: (1) that Plaintiffs’ designated expert should be allowed to observe all testing; (2) that both the blood and urine split samples should be tested; and (3) that testing should look for Clotrimazole, Gentamicin, and Betamethasone Valerate, ‘The KHRC denied Plaintifis’ requests on two separate occasions. However, on or about May 24, 2021, the parties reached a compromise whereby the KHRC agreed to allow the Plaintiffs to send the “remnants” of what remained from the primary samples to an aceredited lab for testing. The KHRC represented to the Plaintiffs that these “remnants” were in good condition and in sufficient quantity to allow sciemific testing. Unfortunately, on or about June 1, 2021, the KHRC informed the Plaintiffs that the “remnant” samples had been damaged/contaminated during transport to the agreed upon testing lab, (See picture attached hereto as Exhibit B), This has created doubt over whether those samples will be sufficient to allow Plaintiff to test them for the compounds in OTOMAX to prove that the betamethasone in MEDINA SPIRIT did not come from an injection. However, there currently sits in the KHRC freezer an unopened, untested and presumably pristine split sample of MEDINA. SPIRIT’s urine. Given the foregoing, the Plaintiffs requested that said urine be immediately shipped to the agreed upon lab for testing for all the compounds in OTOMAX. ‘The KHRC has refused this reasonable request despite the fact that the split urine sample is the best evidence available to determine whether the betamethasone in MEDINA SPIRIT was present due to an injection or the topical cream OTOMAX. This is because the compounds Clotrimazole, Gentamicin, and Betamethasone Valerate are most readily detectible in the urine. Plaintiffs must be allowed to send MEDINA SPIRIT’s split urine sample to an accredited lab for testing for those compounds.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 KHRC’s regulations ~ MEDINA SPIRIT’s biological urine sample that was split from the primary sample following the race, ‘Therefore, Plaintifis respectfully request that this Court enter a temporary injunction to prohibit the KHRC from refusing to allow Plaintiffs to send MEDINA SPIRIT’s split urine sample to an accredited lab to conduct a Limit of Detection (“LOD”) identification of each compound present in OTOMAX ~ specifically Clotrimazole, Gentamicin, and Betamethasone Valerate. Without intervention from this Court, the Plaintiffs will forever lose the opportunity to test, analyze and examine key evidence in this case - MEDINA SPIRIT’s biological urine sample that was split from the primary sample following the race. For these reasons, Plaintiff's are entitled to the injunctive relief that they seek. FACTUAL BACKGROUND ‘The KHRC has issued valid licenses to Baffert and Zedan Racing Stables that entitle them to own, train and race thoroughbreds in Kentucky. (Complaint at jf? 9-10). Like all owners and trainers, the Plaintiffs, as well as the KRHC itself, are subject to the regulations governing all post- race sampling and testing procedures that are set forth in 810 KAR § 8:060 and 810 KAR § 8:010. Section 12. (dd. at 14). horse: ‘The KHRC’s testing procedures require two samples to be extracted from a winning a primary sample and a split sample. (/d. at P 16). Kentucky's regulations define a “primary sample” as the “primary sample portion of the biologic specimen taken under the supervision of the commission veterinarian to be tested by the commission laboratory.” (/d; 810 KAR §8:010(6)). In turn, the “split sample” is the “split sample portion of the biologic specimen taken under the supervision of the commission veterinarian to be tested by the split sample laboratory.” Both blood and urine is collected and divided into “primary” and “split” samples. (Complaint at 16; 810 KAR 8:010(7)). Aer the race, the primary sample is immediately tested by a qualified testing laboratory. (Complaint at ? 17). The split sample, however, remains in the KHRC’s possession and is not tested unless the primary sample first retums a positive result for a substance in violation of Kentucky’s rules. (fd). Under Kentucky's rules, there is no formal finding of a positive result until both the primary and split samples confirm the same finding. Thereafter, the matter is set for a hearing before the Kentucky Racing Stewards. Any adverse action related to a disqualification of a horse, or a suspension of a license, only occurs after the foregoing steps have been followed and a hearing is completed before the Stewards. (See 810 KAR § 9:010). On May 1, 2021, MEDINA SPIRIT won the 147th Kentucky Derby, and blood and urine samples were collected shortly after the race. (Complaint at P 12). On May 8, 2021, the Plaintifts were informed by the KHRC that MEDINA SPIRIT’s primary sample allegedly tested positive for 21 picograms of betamethasone, (Jd, at P 18). Betamethasone is not a banned substance; in fact, itis approved by the U.S. Food and Drug Administration and recognized by the Racing Medication ‘Testing Consortium and Association of Racing Commissioners International as a valuable therapeutic substance and is included on their Controlled Therapeutic Medication Schedule. (Barker affidavit at J 10). It is commonly administered to horses to reduce inflammation. (d.). ‘The Kentucky Horse Racing Commission labels betamethasone as a Class C substance. (Complaint at P 21). Class A and B substances are the most highly regulated and are deemed to have the most potential to afffect the outcome of a race. (Jd.). Class C substances are consideredmuch more benign. (Id). In short, betamethasone—and certainly i such extremely small amounts—is not a substance that would have altered MEDINA SPIRIT’s performance in the Kentucky Derby in any way, shape or form. (Barker affidavit, 8). Under the KHRC’s regulations, a horse may be injected with betamethasone so long as such injection is not administered within 14 days ofa race. (See 810 KAR § 8:025, Section I(k)(i)). KHRC’s regulations do not discuss or include any reference to the use of betamethasone as a component in a topical ointment. (Complaint at P23 ). MEDINA SPIRIT has never been injected with betamethasone. (/d. at P24), However, the horse’s veterinary records show that in the weeks leading up to the Kentucky Derby he was being treated by a veterinarian for a dermatological condition using a topical anti-bacterial, anti- fungal and anti-inflammatory cream contained in the produet OTOMAX. (Barker affidavit, 13). Such treatment was proper veterinary care to cure the observed skin condition and would not in any way affect the performance of the horse. (Barker affidavit, 13). The alleged finding of 21 picograms of betamethasone in MEDINA SPIRIT is consistent with the fact that OTOMAX was applied to the skin of the horse at least once a day, for several days, and was applied to the skin the day before the Derby. (Barker affidavit, 414). Despite all of the foregoing, there has been an absolute firestorm surrounding MEDINA SPIRIT and the alleged test results. (Complaint at P 26). 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. The public discourse has frequently suggested that betamethasone is a “banned” substance and that MEDINA SPIRIT was subjected to “doping.” (Id.). Neither are remotely true. (Id).The split sample testing procedures requested by Plaintifts are essential to determining whether the medication found its way into the horse via injection or ointment. Analyzing the urine, and looking for the additional specific compounds is the best way to do this. (Barker affidavit, 16). Since the additional compounds are present in the OTOMAX ointment, this request is not only reasonable in terms of searching for the truth, but it is vitally important to the Plaintifis” defense in this case. RGUME! Ifever there was a ease where a temporary injunction is appropriate, this is it. The KRHC is poised to trample on the Plaintiffs’ due process rights by preventing them from accessing and testing MEDINA SPIRIT’s urine split sample which may give them valuable and irreplaceable evidence to establish their innocence. Not only that, but the KHRC has absolutely nothing to lose by conducting the split sample analysis in the manner proposed by Plaintifts and everything to gain, All parties should be in search of the truth and the public’s interest in honest horse racing demands full analysis and disclosure. Both the Plaintiffs and the KHRC should be in agreement that the highest degree of testing and scientific standards should be employed to determine if betamethasone was present in MEDINA SPIRIT’s samples following the race and, if so, how it got there. However, despite claiming to be “a leader in the ... integrity of horse racing” on its website, the KHRC is determined to ensure that neither party will ever know if the other compounds that are found in OTOMAX. were present in MEDINA SPIRITS’s blood or urine, effectively prohibiting the Plaintiffs from proving that MEDINA SPIRIT was never injected with betamethasone. See hups://khre.ky.gov/New_Default aspx (last visited on May 21, 2021). Even if this case didn’t involve a Kentucky Derby winner and his famous trainer, whose reputation continues to be unfairly damaged with each passing day, substantive and proceduraldue process and fundamental faimess compel the KHRC to test MEDINA SPIRIT’s split samples in a manner that preserves all mitigating and exculpatory evidence available to Plaintiff upon which to mount their defense. Accordingly, judicial involvement is now necessary, and Plaintiffs respectfully ask this Court to enter a temporary injunction bringing the risk of immediate harm to an end, CR 65.04(1) authorizes circuit courts to grant a temporary injunction when “it is clearly shown ... that the movant's rights are being or will be violated by an adverse party and the movant will suffer immediate and irreparable injury, loss, or damage pending a final judgment in the action, or the acts of the adverse party will tend to render such final judgment ineffectual.” ‘Temporary injunctions are meant to maintain the status quo until the substantive issues in a ease can be fully heard. Maupin v. Stansbury, 575 $.W.2d 695, 699 (Ky. App. 1978). Injunetive relief is proper when the court determines that: (1) the movant's position presents ‘a substantial question’ on the underlying merits of the case, i.e. that there is a substantial possibility that the movant will ultimately prevail; (2) the movamt's remedy will be irreparably ice, will not impaired absent the extraordinary relief; and (3) an injunction will not be inequitabl unduly harm other parties or disserve the public. SM Newco Paducah, LLC v. Kentucky Oaks Mall Co., 499 S.W.3d 275, 278 (Ky. 2016) (quoting Price v. Paintsville Tourism Commission, 261 S.W.3d 482, 484 (Ky. 2008)), Because all three requirements are satisfied here, the PlaintifiS are entitled to a temporary injunction prohibiting the KHRC from submitting MEDINA SPIRIT"s split sample for testing without complying with all three of Plaintiffs reasonable demands related to the testing.1. There is a substantial likelihood that the Plaintiffs will prevail on the merits. Courts across the country have addressed the protections requested by the Plaintiffs in this, matter, and they have deemed them vital to due process at every turn. In this matter, the KHRC has indicated that, when it comes to split sample testing, only MEDINA SPIRIT’s blood will be analyzed. The KHRC has refused to allow any split sample testing of MEDINA SPIRIT’s urine. In fact, the KHRC has stated that the split sample of MEDINA SPIRIT’s urine is “unimportant” and must remain locked away in a freezer without ever being tested. This is patently unfair and unreasonable because it is in the urine where the compounds of Clotrimazole, Gentamicin, and Betamethasone Valerate can most easily be identified. In other words, the KHRC wants to affirmatively block the Plaintif{S from obtaining potentially exculpatory/mitigating evidence, all in the interest of having that evidence waste away, unused and unexamined, in a freezer. It is well-established that “where a finding is based solely on [a single] type of evidence and where an adverse party is not able to inquire into the very basis of that evidence, both substantive and procedural due process is violated.” Hall v, Louisiana State Racing Comm'n, 505 So. 2d 744, 747 (La. Ct. App. 1987) (rejecting the Racing Commission's argument that because “the burden is placed on the trainer to exculpate himself” in an absolute-insurer rule matter, it “need not produce any evidence other than what it was offered in [the] case"). See, e.g., Brady v: Maryland, 373 US. $3, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (when evidence is material to guilt or punishment, withholding such evidence violates due process); California v. Tromberta, 467 U.S. 479, 485, 104 S, Ct. 2528, 2532, 81 L. Ed. 2d 413 (1984) (“Even in the absence of a specific request, the prosecution has a constitutional duty to tum over exculpatory evidence that ‘would raise a reasonable doubt about the defendant's guilt.”); Ramire: v. Dep't of Homeland Sec., 975 F.3d 1342, 1350 (Fed. Cir. 2020) (quoting Banks v. F.4.A., 687 F.2d 92, 96 (5" Cir. 1982)) 10‘even the most rudimentary standards of due process’ would afford an employee the opportunity to access and meaningfully challenge the critical and dispositive pieces of evidence asserted against him”); McGregor v. Hines, 995 S.W.2d 384, 387 (Ky. 1999) (“it seems clear to us that a as fundamental to the assurance of due defendant's right to test possibly exculpatory evidence process as is his right to test inculpatory evidence, if not more so”). ‘The KHRC’s sole support for nding that the Plaintifié allegedly violated the KHRC’s regulations will be the primary sample and subsequent split sample analysis, and due process requires that Plaintiffs be permitted to inquire into the basis of this evidence, including all exculpatory and mitigating evidence in this matter. This is consistent with the KHRC’s own rules, which provide that “[iJhe stewards, judges, and the commission shall consider any mitigating or aggravating circumstances properly presented when assessing penalties ....". 810 KAR 8:030, Section 2(3). Since the proposed testing of the urine split sample can shed significant scientific light on what was in MEDINA SPIRIT’s system on Derby day, and how it got there, due process and the KHRC’s rules on mitigating circumstances, mandate that Plaintiffs be allowed to access all potentially exculpatory and mitigating evidence. See 810 KAR 8:030, Section 2(3); Kentucky Horse Racing Comm'n v. Motion, 592 S.W.3d 739, 753 (Ky. Ct. App. 2019), review denied (Feb. 12, 2020) (explaining that the right to present mitigating factors in a disciplinary proceeding is essential to due process). Despite being on notice of the exculpatory reasons behind the Plaintiffs’ desire to test in its freezer MEDINA SPIRIT’s urine split sample, the KHRC would prefer to let the sample untouched, affirmatively preventing them from obtaining such evidence. All parties should be in search of the truth. In this instance, it appears that the KHRC wants to avoid the truth and just charge forward with punishing the Plaintiffs, while depriving them of their right to defend uthemselves. The KHRC’s refusal constitutes a due process violation as a matter of law and requires immediate intervention from this Court As discussed above, topical ointments like OTOMAX contain several other compounds in addition to betamethasone. When split samples are tested to the full LOD, each of these compounds will likely be revealed and allow a decision-maker to conclude that the drug was not injected, but rather came about due to an ointment, MEDINA SPIRIT’s primary blood sample was only tested for the presence of prohibited substances, including betamethasone, and contains no analysis of the existence of any other lawful compound, such as the other ones contained in OTOMAX, ic., Clotrimazole, Gentamicin, and Betamethasone Valerate. Now that the parties are aware that MEDINA SPIRIT’s primary sample tested positive for betamethasone, due process and 810 KAR 8:030, Section 2(3) require that the split sample undergo comprehensive chemical testing for the presence of all compounds found in the prescribed ointment OTOMAX to ensure the preservation of mitigating and/or exculpatory evidence. I. The Plaintiffs will suffer immediate and irreparable injury without the entry of a temporary injunction, A plaintiff may “demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff's constitutional rights.” Overstreet v. Le cington- Fayette Urb, Cty. Gov't, 305 F.3d $66, 578 (6th Cir. 2002). See also Elrod v. Burns, 427 U.S. 347 (1976) (finding Irreparable injury if a constitutional right is being threatened or impaired). As discussed in detail above, Plaintiffs have clearly established their unassailable right to substantive and procedural due proces: a disciplinary process before the KHRC. It is equally clear that robbing Plaintifts of the opportunity to cull all mitigating and exculpatory evidence from the split, sample in this matter is a violation of those due process rights. See 810 KAR 8:030, Section 2(3): Motion, $92 S.W.3d at 753. This is the one and only opportunity the parties will ever have toanalyze the split sample, If that opportunity is lost now, it will be lost forever. Nothing could be more immediate or irreparable. Pl have easily demonstrated that they will suffer immediate and irreparable harm if the Court does not enjoin the KHRC. IIL. The equities favor the entry of a temporary injunction. The balance of equities weigh in favor of issuance of a temporary injunction in this case since the Plaintiffs’ requested instructions to the laboratory will result in the most accurate and complete evidence possible. Not only will a comprehensive analysis of MEDINA SPIRIT’s urine sample “ensure [] equal access to evidence and increase] the likelihood that such evidence will be admi ble ... through an agreed upon chain of custody[,]” but “{eJontemporaneous access thus furthers the [Commission’s] interest in reliable evidence and enhances the likelihood that competing expert results will present an ‘apples to apples’ comparison.” Andres v, Town of Wheatfield, No. 1:17-CV-00377, 2017 WL 4484347, at *4 (W.D.N.Y. Oct. 6, 2017). ‘The balance of equities always favors more evidence and a quest for the truth. Moreover, there is no argument, nor could there be, that requiring the KHRC to order a comprehensive analysis of the urine sample would adversely affect any public interest. Quite the contrary, KRS 230.215(2) clearly lays out the public interest that is served when the KHRC properly and fairly “regulate[s] and maintains] horse racing... free of any corrupt, incompetent, dishonest, or unprincipled horse racing practices... so as to dissipate any cloud of association with the undesirable and maintain the appearance as well as the fact of complete honesty and integrity of horse racing in the Commonwealth.” The equities require that the KHRC be held the same standards of “complete honesty and integrity” as the Plaintiffs, and preclude it from willfully and arbitrarily violating their due process rights. 13CONCLUSION Accordingly, and for the foregoing reasons, Plaintiffs request that the Court grant their Motion and enter a temporary injunetion enjoining the KHRC from violating their due process rights by refusing to allow Plaintiffs to send MEDINA SPIRIT’s split urine sample to an aceredited lab for a Limit of Detection analysis and identification of Clotrimazole, Gentamicin and Betamethasone Valerate. Respectfully submitted, \SUG W. Craig Robertson, I wrobertson@wyattfirm.com Courtney R. Samford esamford@wyattfirm.com Tom Travis ravis@wyattfirm.com Lexy Gross Igross@wyattfirm.com WYATT, TARRANT & COMBS, LLP 250 W. Main Street, Suite 1600 Lexington, KY 40507 859-233-2012 Counsel for Plaintiff Bob Baffert and (s/ Clark Brewster Clark Brewster Pro Hac Vice KBA# 16420917 2617 E. 21" Street ‘Tulsa, OK 74114 Counsel for Plaintiff Zedan Racing Stables, Ine.c ICATE OF SERVICE This is to certify that I on this the 7th day of June, 2021 I served the foregoing upon the following by U. S. Mail and email: Jennifer Wolsing, General Counsel Kentucky Horse Racing Commission 4063 Iron Works Parkway Building B Lexington, KY 40511 ‘Counsel for Plaintifis 00399897 3EXHIBIT ACOMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT. DIVISION, CIVIL ACTION NO. ELECTRONICALLY FILED BOB BAFFERT PLAINTIFFS AND ZEDAN RACING STABLES KENTUCKY HORSE RACING COMMISSION DEFENDANT AERIDAVIT ASfiant, being duly sworn, hereby states as follows: 1, My name is Dr. Steven A. Barker. Iam of sound mind, over eighteen years of age, and make the statements contained herein based upon my own personal knowledge, training, experience and professional expertise, 2. received a B.S. in Chemistry (with a minor in Mathematics and Physics) from the University of Alabama in Birmingham (“UAB*) in 1971. I subsequently eamed an M.S. in Chemistry (with a minor in Physical Chemistry) in 1973 a5 well as a Ph.D. in Chemistry and ‘Neurochemistry in 1978—both also from UAB. 3. have held the positions of Associate Professor (1985-1989), Professor (1990- 2016) and the Evert Besch Distinguished Professor of Veterinary Medicine (2004-2010) and | am currently Professor Emeritus (2016-present) in the Department of Comparative Biomedical Sciences at the Louisiana State University (“LSU”) School of Veterinary Medicine in Baton Rouge, Louisiana. EXHIBIT boo4. From 2014 to 2016, I also served as the Section Head in the Louisiana Animal Disease Diagnostic Laboratory within the LSU School of Veterinary Medicine. 5. From 1985 to 2016, I was the Director of the Analytical Systems Laboratory within LSU’s School of Veterinary Medicine. | also served as State Chemist for the Louisiana State Racing Commission from 1987 to 2016 and as Director of the Equine Medication Surveillance Laboratory, also from 1987 to 2016. 6. I have been informed that preliminary testing of MEDINA SPIRIT’s primary serum. sample collected following the 2021 Kentucky Derby allegedly contained 21 picograms of betamethasone/m! of serum. 7. A picogram is one-trillionth of a gram. For reference, a picogram is the rough equivalent of one drop of water in an Olympic sized swimming pool. The 21 picograms allegedly detected in MEDINA SPIRIT’s primary sample meets every pharmacologic and practical definition of a “trace” amount of the substance. 8. It is my considered opinion that the presence of such a trace amount of betamethasone has no pharmacological effect on a horse and would have had no impact on MEDINA SPIRIT’s victory in the 147th running of the Kentucky Derby. 9. Betamethasone itselfisnot a performance-enhancing drug. Rather, itisa substance that can suppress inflammation similar to other corticosteroids such as hydrocortisone and prednisone. Contrary to many media reports and statements it is not an anabolic steroid and possesses none of the pharmacological properties of this distinctly different class of drugs. 10. Further, betamethasone is not a banned substance. In fact, it is approved by the United States Food and Drug Administration (FDA) and recognized by the Racing Medication Testing Consortium and Association of Racing Commissioners Intemational as a valuabletherapeutic substances, and is included on their Controlled Therapeutic Medication Schedule. is commonly administered to horses to reduce inflammation, 11, Betamethasone is most commonly given to horses through injection. Indeed, the current “threshold” for betamethasone in a racing horse, set by the RMTC (Racing Medication and Testing Consortium) and others, is 10 picograms betamethasone/ml of blood. This threshold, which again establishes the fact that it is not a “banned” substance, was completely and totally established based on scientific data obtained from the injection of betamethasone in the fetlock and/or other equine joints and its measurement post-injection in blood as a function of time. The major and appropriate concern was to prevent horse's from running on injured or damaged joints, leading to breakdowns and eventual death of the horse or injury to the jockeys. No other sources or uses of betamethasone, such as topical application or environmental sources, were considered in establishing this limit. Aside from injection, however, scientific studies have proven that environmental or innocent contamination can lead to substances such as betamethasone being detected in the blood and/or urine of a horse, especially when monitored at picogram quantities. Further, wound sprays and topical ointments for treatment of dermatitis {in a horse often comtain betamethasone. Many psoriasis ereams and other products for humans can contain betamethasone. Any of these extemal sources can be responsible for inadvertent contamination or transfer. These facts not only bring the established threshold into question but make “limit of detection” and “zero-tolerance” thresholds for such a substance arbitrary, capricious and of no value in a regulatory paradigm. The risk of contamination has become magnified as technology improves and tests employed by various racing jurisdictions become more and more sensitive. This makes the laboratories capable of detecting increasingly moreminute levels of substances at levels that have no possible pharmacological influence or are: present due to inadvertent contamination or their use in a non-performance-effecting manner. 12, Veterinary records for MEDINA SPIRIT show that the horse was being treated by a veterinarian for a dermatological condition using a topical anti-bacterial, anti-fungal and anti- inflammatory cream contained in the product OTOMAX. OTOMAX is commonly used to treat dermatologic conditions in other species and is permitted for use in the equine under the conditions of FDA AMDUCA (Animal Medicinal Drug Use Clarification Act of 1994) regulations. Such treatment was proper veterinary care to cure the observed condition ‘and would not in any way effect the performance of the horse or endanger the horse, the rider or the participants in the race. 13, The alleged finding of 21 picograms of betamethasone in MEDINA SPIRIT is consistent with the fact that this substance was being applied to the skin of the horse at Jeast once a day, for several days, and was applied to the skin the day before the race. Further there is no record that betamethasone was ever given to MEDINA SPIRIT as an intentional injection. 14, It is my opinion that, if the finding in MEDINA SPIRIT'S primary sample is confirmed by the split sample analysis, the source of the finding of betamethasone in this case was topical administration of the OTOMAX product. It is my further opinion that blood levels observed had, to a scientific certainty, no effect on the performance of the horse or any bodily function, including the condition of its joints. It is also of great concem that the threshold for this substance is set at such @ low Level and that, in setting the threshold, the regulatory authorities failed to consider possible human sources or, particularly, its commonly used topical application for treatment of dermatological conditions.15. There is available science to prove that the source of the betamethasone was due to the use of this product. OTOMAX is comprised of the following compounds: Clotrimazole, Gentamicin and Betamethasone Velerate. These compounds are variably absorbed through the skin to the circulation and cleared through the liver and kidneys, making them more readily dctectible in a horse's urine rather than the blood, Since the threshold(s) for betamethasone was established solely on concems involving the use of betamethasone as an injectable in equine joints, a complete analysis of MEDINA SPIRIT’s blood and urine split samples for clotrimazole, gentamicin and betamethasone valerate/betamethasone will lead to meaningful scientific evidence to establish whether betamethasone was administered by injection or topical ointment, and looking for these additional specific compounds, the ones found in OTOMAX, is the only scientific way to definitively accomplish such a determination. Further affiant sayeth naught. DR. STEVEN &. BARKER STATE OF Kote Mey) ) SS COUNTY OF in ) The foregoing instrument was subscribed, swom to, and acknowledged before me by Dr. Steven A. Barker on this 24th day of May, 2021. My Commission expires:__Z -2-@-202, “AR Hl S70EXHIBIT B., EXHIBIT