Legal wrangling continues in Mayfield-NASCAR case

With a trial still likely at least a year away, the legal jockeying is in full force in the lawsuit filed by suspended driver Jeremy Mayfield against NASCAR.

NASCAR is asking a U.S. District Court judge to sanction a Mayfield attorney and make him pay for the sanctioning body’s defense against assertions tied to an affidavit that misrepresented the background of a Texas drug-testing laboratory operator originally used as an expert witness. Meanwhile, Mayfield’s attorneys are looking to quash a slew of subpoenas NASCAR has issued in the case.

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 methamphetamine use.

If the case is not settled, a trial could come in the case next September. But that time frame could be delayed as part of the legal process, one which includes the filings earlier this week by NASCAR and Mayfield.

NASCAR’s target is Mayfield attorney John Buric and his handling of an affidavit submitted when the case was originally filed May 29 in North Carolina Superior Court. The affidavit was from Harvey MacFenerstein, a Texas drug-testing laboratory operator who has said there were mistakes in his credentials and is no longer being used by the Mayfield legal team.
 
MacFenerstein’s affidavit was used as a basis to request a temporary restraining order to lift the suspension, but the request was denied because there was no way Mayfield could get to the Dover practice and qualifying that day. The case was eventually moved to U.S. District Court in Charlotte.

Included in documents filed Wednesday by NASCAR are parts of a deposition of MacFenerstein taken Sept. 10. He states in his deposition that he had told 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.

MacFenerstein said he never read at least one version of the affidavit sent to him May 28, the day before the lawsuit was filed, and the notary “notarized it, the wrong one – the incorrect one went out.”

“[It] was submitted under stupidity because it was being rushed to get an affidavit out,” MacFenerstein said in his deposition. “Because I was in the middle of trying to buy equipment. … I know they wanted to get Mayfield into some type of race.”

MacFenerstein said he was led to believe the main purpose of his testifying was whether a second, so-called B-sample should be tested at a different laboratory than the original urine sample. That is the procedure used in federal workplace programs and one that Mayfield says NASCAR must follow. (NASCAR disputes that assertion.) He said he never saw a copy of the NASCAR policy to state whether that procedure should be part of the NASCAR program.

“I don’t know what’s in NASCAR’s substance abuse policy,” MacFenerstein said in the deposition. “I was just basically – I was under the impression from day one it was just going to be how to handle A and B, period.”

Buric, in an affidavit filed earlier in response to NASCAR’s initial allegations, said that he made two mistakes: He didn’t delete a sentence indicating MacFenerstein was a medical review officer, and he misread MacFenerstein’s handwriting of where he got his medical degree.

NASCAR wasn’t alone in its jockeying Wednesday. Mayfield filed a motion Wednesday to quash subpoenas issued to Vitality Anti-Aging and Medical Spa and Dr. Charles Wesley McKaraher, Frye Regional Medical Center in North Carolina and Linda Drum, Laboratory Corp. of America, a firm identified as Dr. Sanchez & Associates, Lake Norman Family Medicine in North Carolina and Dr. Frederick Vorwald, Robert Craddock of Smallsponsor.com, Gary Smith of All Sport Inc., Dr. Patrick Broome and the Charlotte Center for Cosmetic Dentistry, Sprint, Verizon, and T-Mobile.

NASCAR is seeking Mayfield medical records – including documents relating to any drug tests, documents relating to the diagnosis of ADHD and documents about the health of his teams – as well as Mayfield’s sponsorship contracts and a list of phone calls made by Mayfield and associates and GPS locations of his cell phone at the time of those calls.

Mayfield’s filing claims that NASCAR’s requests are too broad, would take too much time to fill and seek the confidential medical and business information.

All of the filings were in U.S. District Court, where  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.

After Mayfield won the injunction, NASCAR obtained another urine sample from Mayfield on July 6 that NASCAR says also tested positive for methamphetamines. Mayfield has filed documentation from a test he said he took within an hour of the NASCAR test, and the independent sample was not positive for methamphetamines.

NASCAR has countersued Mayfield for violating the agreement drivers sign with NASCAR to obtain their license. Part of that agreement includes following the terms of the substance-abuse policy, which requires drivers to inform NASCAR of changes in medication.