NASCAR alleges expert in Jeremy Mayfield case misrepresented qualifications
NASCAR has filed court documents questioning the credentials of the expert used by the legal team of Jeremy Mayfield (pictured). // Jeff Robinson, NASCAR Scene
NASCAR filed court documents today alleging that Harvey MacFenerstein, the expert used by Jeremy Mayfield in his lawsuit against NASCAR challenging his suspension for a failed drug test, is not a certified medical review officer and did not graduate from the college and university he claimed to in his affidavit filed with the court.
The drug test, taken May 1, resulted in Mayfield’s indefinite suspension from NASCAR on May 9. Mayfield is suing NASCAR to have the suspension lifted and for defamation.
MacFenerstein, president of drug-testing laboratory Analytical Toxicology Corp. in San Antonio, Texas, testifies in his affidavit filed with the Mayfield complaint that while NASCAR is not part of the Federal Workplace Drug Testing program, its program must follow its guidelines and failed to do so in its Mayfield test.
NASCAR filed a motion today in U.S. District Court that asks for the portions of the complaint that rely on MacFenerstein’s affidavit to be thrown out. It also asks for Mayfield or his attorneys to reimburse NASCAR for defending against Mayfield’s lawsuit as it pertains to whether NASCAR should follow the federal guidelines.
“[This motion] is without merit. … It’s very simple for us to refute,” said Mayfield attorney John Buric of the firm James, McElory and Diehl, “I’m not the least bit concerned about what we filed.”
In his affidavit, MacFenerstein lists his qualifications as having obtained a bachelor’s degree from “Mid Western State University” of Texas and a medical doctor degree in clinical pathology from CETED University. He states he is a member of the American Association of Clinical Chemistry and that he is a medical review officer, an individual who interprets and evaluates drug-test results.
NASCAR disputes those claims. It has an affidavit from the registrar of Midwestern State University in Texas that says a Harvey MacFenerstein briefly attended the school for one semester in fall 1976 in a cooperative program with Shepherd Air Force Base in connection with a healthcare sciences program.
NASCAR also has a statement from a Mexican lawyer saying there is no record of MacFenerstein having attended CETED, which is in Mexico. It also has documentation from the American Association for Clinical Chemistry stating that MacFenerstein is not a member and from the two recognized organizations that certify medical review officers stating that MacFenerstein does not have that certification.
"This is a very, very serious matter,” NASCAR spokesman Ramsey Poston said in a statement. “Their star witness appears to have absolutely no qualifications to testify in this case. ... They need to explain to the court why there are at least six material misrepresentations from their star witness.
“They have based their entire case on MacFenerstein's testimony, and now they have a lot to answer for.”
Mayfield has until July 6 to respond to the allegations, but Buric said he expects this issue to be heard at the same time as Mayfield’s request for a preliminary injunction. Buric said no date has been set for the injunction hearing in front of Judge Graham Mullen.
“We’re waiting to hear from Judge Mullen’s chambers on when he believes that can be heard,” Buric said.
