by Jack Shinar
California Horse Racing Board officials are refusing to discuss a federal judge's decision to dismiss the board's case against trainer Bob Baffert in regard to a positive test for morphine in one of his horses last year.
The earliest the CHRB could take up the issue of whether to pursue Judge Dickran Tevrizian's ruling in the Ninth District U.S. Court of Appeals is at its Nov. 30 meeting, spokesman Mike Marten said. The board could review the findings in executive, or closed, session.
That's of little concern to Neil Papiano, attorney for Baffert. "Unless they can mysteriously produce the blood sample they say they had thrown out, they don't have much to appeal," Papiano said.
Marten said CHRB executive director Roy Wood Jr. has discussed the case with his counsel, deputy attorney general Judith Seligman, but that no statement would be released. Wood and his assistant, Roy Minami, could not be reached for comment.
Tevrizian enjoined the CHRB from enforcing a 60-day suspension against Baffert on the grounds the board's main drug-testing facility, Truesdail Laboratories, had violated Baffert's right to due process under the 14h Amendment of the U.S. Constitution by tossing out the blood samples drawn from the horse in question.
The filly Nautical Look had won an allowance race at Hollywood Park on May 3, 2000. A post-race urine analysis by Tustin, Calif.-based Truesdail revealed a trace amount -- 73 nanograms -- of morphine. A second test conducted by Texas A & M University on the same urine sample confirmed the positive result.
Baffert contended the positive was the result of processed feed that may have included wild poppy seeds. He said he was satisfied with the decision, but still angry with the CHRB for showing "ignorance and vindictiveness" in pressing the case.
"Trainers are still sitting ducks with the way the rules are," Baffert said. "We need a change of rules. We've got some new board members, so that will help. As it is, all this gave California racing was bad publicity. We need our board to show some common sense."
During an eight-day stewards' hearing in April, experts testified that the discarded blood samples were unimportant because such a minor level of the painkiller would be undetectable in blood tests. The stewards, acting instead on the urine test results and the state's "no tolerance" stance with regard to performance- enhancing drugs, issued the 60-day suspension.
That led Baffert to sue, first in California Superior Court to get a stay of the suspension, and then in federal court to seek relief from the stewards' ruling. Tevrizian found that the CHRB had a duty to preserve the blood-sample evidence to protect Baffert against a faulty urine analysis.
Blood tests are less reliable than urine in cases of trace substance amounts for, among other reasons, a "dilution factor, "said Dr. Ron Jensen, the CHRB's equine medical director. "A horse has seven to eight gallons of blood, but maybe only a pint or two of urine," he said.
Marten said a seven-year study in California found that in 117 cases of positive urine tests for the top classes of performance- enhancing drugs, only nine also showed up in blood samples. All nine cases involved caffeine, which was present in higher levels than the other drugs.
Papiano, who also will represent trainer Bobby Frankel in two trace morphine cases early next year, didn't buy the CHRB findings.
"If that's the case, then why do they take blood samples at all?" Papiano said. "If there was enough of the drug present to affect a horse's performance, it would show up in the blood test. If there isn't enough, why have the rule?"
He cited the testimony of Dr. Stephen Barker, chief veterinarian for the Louisiana Horse Racing Commission. "(Barker) said a blood sample is more reliable than urine, that it will get down to the same levels, and it will determine the source (of the contamination) as well," Papiano said.