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Judge Thomas Wingate has made a ruling permitting Medina Spirit’s team to get extra testing done on biological samples taken from said colt after the Kentucky Derby, per the Paulick Report. Trainer Bob Baffert and owner Zedan Stables sued the Kentucky Horse Racing Commission this week, arguing for the right to test the split urine sample, which is being stored in the commission’s freezer.

Medina Spirit’s initial post-race test revealed traces of betamethasone, which was subsequently confirmed on a split sample test. The horse’s team wants more testing in order to prove that the betamethasone is the result of the application of topical cream, Otomax, and not an injection. The former is allowed under the KHRC rules, according to Baffert and Zedan Stables’s legal counsel.

“The manner in which the betamethasone found its way into Medina Spirit is critical,” the suit claims. “There is a huge difference in a betamethasone finding due to an interarticular joint injection versus one from a topical ointment – from both a regulatory and public relations standpoint.”

The colt’s team claims to have applied the cream due to a skin irritation but Dr. Mary Scollay, an equine veterinarian and executive director and chief operating officer of the Racing Medication and Testing Consortium isn’t so sure the findings would leave Baffert and Zedan in the clear.

“Doesn’t prove Otomax was the sole source of exposure,” she said. “Stewards consider mitigating and aggravating circumstances. Not sure how they’d interpret the Otomax.”

Baffert has been slapped with a two-year ban from Churchill Downs on the back of the failed test, with his “repeated failures” cited.

 “Given these repeated failures over the last year, including the increasingly extraordinary explanations, we firmly believe that asserting our rights to impose these measures is our duty and responsibility,” Churchill Downs Inc. CEO Bill Carstanjen said in a statement. Medina Spirit’s Derby win is still under question and the colt could be disqualified. Meanwhile, odds on future races could be Galaxy Sports.

General counsel for the KHRC, Jennifer Wolsing, would not get drawn into speaking on whether the topical application of said chemical would lead to exoneration or be considered a mitigating circumstance. However, she did note the drug’s classification guidelines on betamethasone without explaining which means of administration would result in a Class C finding.

Wolsing reckons the only question lies in what should be done about the additional testing of the biological samples that remain.

According to documents filed by the Kentucky Horse Racing Commission, Baffert and Zedan were not refused a request to send both blood and urine samples for further testing after the split sample returned positive.

“This is a case about a litigant who will not take ‘Yes’ for an answer,” the KHRC said in response to the suit.

The KHRC agreed to release the remaining blood and urine samples to an RMTC-accredited lab chosen by Baffert and Zedan. Four samples will be part of the testing, including the two primary blood and urine samples and two split blood and urine samples. All of the samples were collected at the same time after the race.

Some of the primary samples were tested by Industrial Laboratories, which found said chemical. The split blood sample was then sent to the University of California-Davis for split sample analysis but the split urine sample stayed locked in a freezer kept in the custody of the KHRC. That could mean both labs may have some biological samples left over.

The Paulick Report states: “Industrial packaged portions it had leftover of Medina Spirit’s primary blood and urine samples and sent them off to New York for additional testing, per requests from the horse’s connections after the split sample was positive. It turned out the vial containing the blood shattered, either en route or upon receipt at the New York facility. Since the vial was in the same evidence bag as the urine container, Baffert and Zedan’s attorneys voiced concerns that the leaked blood may have contaminated the urine container.”

The KHRC said it agreed to send commission equine medical director Dr. Bruce Howard to the freezer and then film him opening the unused split urine sample before letting it thaw out and then personally transport it to the New York Lab. However, Baffert and Zedan objected to Howard’s involvement. The KHRC offered to have someone else do the above, with one or more members of the Zedan team present. Baffert and Zedan objected to that as well.

The judge has since decided that Baffert and Zedan should test the remaining blood and urine to see whether or not they could prove how the betamethasone was administered. Both parties will have representatives overseeing the procedure.

Wolsing says the KHRC should be able to retain some of the split samples should more testing be required in future.