Judge denies NASCAR request for rebuke of former Jeremy Mayfield attorney

By Bob Pockrass - Associate Editor
Tuesday, October 06, 2009

Related stories: 

Jeremy Mayfield changes attorney; Mark Geragos expected to join legal team

Legal wrangling continues in Mayfield-NASCAR case

A U.S. District Court judge has ruled against NASCAR’s request to sanction a former attorney for suspended driver Jeremy Mayfield for an affidavit that misrepresented the background of a Texas drug-testing laboratory operator.

Judge Graham Mullen in Charlotte also denied NASCAR’s request for Mayfield to pay for the sanctioning body’s defense against assertions tied to the affidavit.

The affidavit was from Harvey MacFenerstein, who has said there were mistakes in his credentials and is no longer being used by the Mayfield legal team.
 
Mayfield also has since changed attorneys, switching from the well-known Charlotte firm of James, McElroy and Diehl to a firm headed by high-profile attorney Mark Geragos.

Paperwork filed in the case Tuesday states that Geragos, who has represented convicted murderer Scott Peterson as well as pop star Michael Jackson, and partner Dan Marino of the Washington, D.C.-based firm Luque Geragos Marino will be representing Mayfield.

Mayfield has sued NASCAR for suspending him for a May 1 drug test that it says was positive for methamphetamines but Mayfield claims produced a false positive reading as the result of the prescription drug Adderall, which is used to treat attention-deficit hyperactivity disorder, and over-the-counter allergy medication Claritin-D. Mayfield has denied using methamphetamines several times, while NASCAR has produced affidavits of acquaintances and relatives testifying to his alleged methamphetamine use.

MacFenerstein’s affidavit was used when the case was originally filed May 29 in North Carolina state court and was the basis for a request for a temporary restraining order. The TRO request was denied because there was no way Mayfield could get to practice and qualifying at Dover, Del., that day. The case was eventually moved to U.S. District Court in Charlotte.

In a deposition, MacFenerstein states that he had told former Mayfield attorney John Buric that he was not a licensed doctor and was not a certified medical review officer (someone who evaluates and interprets drug-testing results) as stated in the original affidavit. He said the mistake in that affidavit that he got a bachelor’s degree from Mid Western State University was his and that instead he had taken classes at an Air Force academy that had a relationship with the college.

In his ruling Tuesday on the circumstance surrounding the submission of that affidavit, Judge Mullen said Buric probed MacFenerstein’s qualifications, had reason to believe the qualifications MacFenerstein claimed to have were correct and his editorial oversight on whether MacFenerstein was a medical review officer was likely inadvertent and not serious enough for sanctions.

“[Buric] made a reasonable inquiry into Mr. MacFenerstein’s qualifications, … [and] it was objectively reasonable for [him] to take as truthful Mr. MacFenerstein’s representations in his sworn affidavit,” Mullen wrote.

The decision Tuesday does not impact the case schedule. Mayfield won an injunction July 1 to lift his suspension, but the U.S. Court of Appeals temporarily rescinded that injunction July 24 until a full appeal could be heard. The injunction appeal is tentatively scheduled for Dec. 1-3.

An actual trial in the case will not start until September 2010 at the earliest.

Comments

17 responses to "Judge denies NASCAR request for rebuke of former Jeremy Mayfield attorney". Post a Comment.
  1. 1
    sarsie1 said:
    Oct 7, 2009 at 12:28 AM

    Huh. So that's what happened. I don't think the affidavit really means anything in the grand scheme of things so I'm not surprised there are no sanctions. In my experience (10 years as a legal assistant), it's fairly hard to get sanctions against an attorney. But, now we know why Mayfield switched it would appear.

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  2. 2
    Meg said:
    Oct 7, 2009 at 11:02 AM

    Not me. I don't understand it at all. The problem was with the affidavit from Harvey MacFenerstein right? There were mistakes in MacFenerstein's credentials so Jeremy's test results wouldn't have really been certified by someone with qualifications to show the alleged Lab tests NASCAR had taken were wrong.. This is mind boggling to me. So now Mayfield has a new attorney, NASCAR can't show the judge Mayfield's former attorney used testimony from MacFenerstein who wasn't qualified? Sarsie.. help me out. I just don't understand this.

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  3. 3
    jessydoyle49 said:
    Oct 7, 2009 at 3:48 PM

    MEG, it's a legal thing.

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  4. 4
    bthompson133 said:
    Oct 7, 2009 at 4:20 PM

    judge must think nascar is wrong or he'd bow to their bs

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  5. 5
    toaster747 said:
    Oct 7, 2009 at 6:29 PM

    This will make a great Lifetime Movie Channel movie in a few years

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  6. 6
    nascarczar said:
    Oct 7, 2009 at 6:30 PM

    I'm sick of hearing about the whole mess. Enough already.

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  7. 7
    86elky said:
    Oct 7, 2009 at 7:15 PM

    What should we call this? As the Track Turns, The Guiding Caution Light, One Life to Race, All My Drivers, Race For Tomorrow?

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  8. 8
    sarsie1 said:
    Oct 7, 2009 at 7:49 PM

    Meg, this particular thing is nothing but whether or not to sanction the attorney. It may hurt him in the ACTUAL CASE in the end (although really, probably not-they can always hire a new expert), but this particular decision is nothing more than whether his attorney INTENTIONALLY misled the court, and thus should be punished by fine or imprisonment (sanctions). The only thing this does is mean that Mayfield's original filing disputing the drug test used an "expert" that in reality, wasn't an expert at all. IF the court refuses to allow him to obtain a NEW expert-it could kill his case. HOWEVER, in my experience, courts are pretty lenient if they feel the attorney/client were misled themselves (and the 'doctor' here says that the "mistake" was his and not the lawyer's)...then they generally want to maintain fairness and Mayfield will just have to hire a new expert to dispute the findings of the original test done by NASCAR. All this particular "doctor" was testifying to was the test and whether the MRO of NASCAR acted appropriately. Now, it turns out the credentials of this guy (Mayfield's "expert") were not what they appeared, so his testimony is now significantly damaged and pretty much useless. STill, this particular decision doesn't have anything to do with the VALUE of the testimony-only whether or not Mayfield's LAWYER intentionally misled the Court, or lied, about the credentials, and thus should be punished. Does that help explain anything?

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  9. 9
    sarsie1 said:
    Oct 7, 2009 at 7:50 PM

    BTHOMPSON-no, this in no way indicates the judge thinks NASCAR is right or wrong. All this is saying is that the judge doesn't think Mayfield's attorney did anything to deserve sanctions. It really has NOTHING to do with the actual case.

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  10. 10
    sarsie1 said:
    Oct 7, 2009 at 7:50 PM

    NASCARCZAR--got a suggestion...see that title up there? Y ou know the one that says "Mayfield" in it? If you're so "sick" of hearing about it, what say you don't click on that title, hmmmm?

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  11. 11
    Meg said:
    Oct 7, 2009 at 8:19 PM

    Sarsi, you are such a smart cookie… I knew you could explain it to me.. I guess I didn’t know what a sanction was … One question.. You said, <i>“HOWEVER, in my experience, courts are pretty lenient if they feel the attorney/client were misled themselves (and the 'doctor' here says that the "mistake" was his and not the lawyer's)”.</i> BUT <u>in the deposition, MacFenerstein states that he had told former Mayfield attorney John Buric that he was not a licensed doctor and was not a certified medical review officer (someone who evaluates and interprets drug-testing results) as stated in the original affidavit. </u> So, why wouldn’t the judge assume that the lawyer did it on purpose… Kinda like telling the IRS that it was a “clerical error” that an additional $200,000 didn’t get reported on your income taxes .. I say Buric needs to be punished.

    <p>Thank so much for explaining this to me.</p>

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  12. 12
    jerryswiatek said:
    Oct 7, 2009 at 8:34 PM

    Go get 'em Sarsie1, this is all nascar and or racing news, Mayfield is a driver and also a past winner, talked and shook his hand twice and would be a friend, Also this thing called nascar is also a racing thing that a lot of people here are interested in, I myself like to hear more than the weekends results about racing!

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  13. 13
    bthompson133 said:
    Oct 7, 2009 at 9:50 PM

    sarsie, justice is blind but it sure can feel money. daily cases are lost by pd's and high dollar lawyers get it overturned. open your eyes

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  14. 14
    jbbigrod said:
    Oct 7, 2009 at 11:38 PM

    You can be sure NASCAR's attornies will do all they can to throw it out and/or bring negative vibes to Mayfield's credibility. THAT is the attorney's main job. THat and make it last as long as they can so they get more money. As far as hearing the last of this, BULL! We NEED this kind of stuff to keep us going. LOL. I just don't like that the media keeps repeating ALL the old stuff we have read many times. And yes, IF you don't like the article don't read it. I don't read a lot of Scene's articles.

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  15. 15
    sarsie1 said:
    Oct 8, 2009 at 1:00 AM

    Yeah, Meg, I admit I'm a bit confused because the way that is written is contradictory-at one point he says he told him he was not an MRO, and on the other, he says the mistake was his, and not the attorney's... really, though, it doesn't matter in the grand scheme of things because we can't hear the entire testimony-but for whatever reason, the Court determined it wasn't significant enough for sanctions, which REALLY doesn't surprise me. You are pretty hard-pressed to get an attorney slapped with sanctions, and even harder pressed to have a judge order something that would clearly prejudice one party (such as not allowing Mayfield to get a new expert). One reason for that is because judges don't want their decisions overturned on appeal. If this trial court judge were to refuse to allow Mayfield to hire a new expert, that's an appealable act, and very likely could be overturned because Mayfield was essentially handicapped by the court's ruling when in FAIRNESS his hiring a new expert wouldn't have hurt the other side, and would have created a fair trial. BTHOMPSON--uh WHAT? I have no idea what you just said. However, I think with 10+ years of legal experience, most of which was in civil litigation, I might know a LITTLE bit and don't need my "eyes opened" thanks. The bottom line is this particular decision has NOTHING at all to do with the merits of the case. It just doesn't.

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  16. 16
    Crewchief36 said:
    Oct 14, 2009 at 12:50 AM

    This whole Mayfield case is gonna cost Nascar some big money if they are wrong, He might end up being Brian Frances boss

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  17. 17
    Meg said:
    Oct 14, 2009 at 1:55 PM

    Crewchief, what makes you think that NASCAR would ever even THINK about running a business like they have without liability insurance? Settlement will from the the insurance company and not the France family.

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