Thursday, June 18, 2009
Expert Witness: Mayfield Reps Botched Affidavit
An expert witness for suspended driver Jeremy Mayfield ((the car is pictured, thanks NASCAR Images)) said he tried to fix mistakes in an affidavit about his educational background, but the errors were still submitted into court.
Harvey MacFenerstein said Thursday he pointed out the errors to John Buric, an attorney for Mayfield, and was assured the corrections would be made before the affidavit was submitted May 29. The inaccuracies were challenged Tuesday in federal court by NASCAR, which accused MacFenerstein of lying about his credentials in six sworn statements.
MacFenerstein, president of Analytical Toxicology Corp., a drug-testing laboratory in San Antonio, said he read about NASCAR's motion on the Internet and called Buric to find out what had happened with his affidavit.
"I said to him 'What's going on?'" MacFenerstein said in a phone interview with the Associated Press. "He said not to worry and 'Just don't say anything.' Well, now I am saying something because this has caused embarrassment to me, this has hurt my business. I am getting threats through e-mail. It's been a nightmare."
Buric did not immediately return a call for comment Thursday.
NASCAR has asked that MacFenerstein's testimony be dismissed. Mayfield is challenging his indefinite drug suspension, prompted by a positive drug test, and MacFenerstein's affidavit was the basis of the argument.
Attorney's for Mayfield filed a sworn affidavit from MacFenerstein that said NASCAR's drug-testing program is flawed and does not meet federal workplace guidelines.
Mayfield was suspended May 9 for failing a random drug test collected eight days earlier. NASCAR has not identified the substance he tested positive for, but described it in court as a "a dangerous, illegal, banned substance." It's name has been redacted in all court filings related to the case.
Among MacFenerstein's qualifications listed in the affidavit are: he has a bachelor of science degree in medical technology from "Mid Western State University of Texas"; he obtained a medical doctor degree in clinical pathology from CETED University in Mexico; he is certified as a medical review officer, and has membership and certification from two different clinical agencies.
But NASCAR submitted six affidavits Tuesday disputing each of his claims.
MacFenerstein said he informed Buric he was not an MRO, he only attended a few classes at Midwestern State and his 1982 degree is from the Universidad Centro De Estudios Tecnologicos, which is more commonly called Universidad C.E.T.E.C. in the Dominican Republic.
"I told him that I am not a medical review officer because I did not go to school for that and I am not qualified for that," MacFenerstein said. "I told them I went to C.E.T.E.C. There is no such CETED that was listed in the affidavit. I was told not to worry, it would all be deleted. When I found out it wasn't, they said 'Oh, we must not have deleted it.'"
MacFenerstein said he was referred to Mayfield's attorneys by another testing lab that declined to review Mayfield's results because of a perceived conflict of interest. He said he reviewed the test results free of charge, as "a favor to a friend."
"Next thing I know, they want me to do an affidavit," he said. "Now they want me to do another affidavit. No way I am getting involved in this case anymore. It's been a nightmare."
MacFenerstein said Thursday that based on his review, his main issue with Mayfield's failed drug test is that both the "A" and backup "B" sample were tested by the same laboratory. He believes under federal guidelines that the "B" sample should have been tested by an independent lab after the "A" came back positive.
Nashville, Tenn.-based Aegis Sciences Corp., which runs NASCAR's testing program, tested both of Mayfield's samples.
NASCAR wants a large portion of Mayfield's lawsuit dismissed based on MacFenerstein's false affidavit.
"The sole support for MacFenerstein's status as an expert witness was his supposed credentials, which have been shown to be false," NASCAR said in the motion.
NASCAR asked in its motion that Mayfield attorneys be sanctioned for failing to conduct a "reasonable inquiry" into MacFenerstein's qualifications, and asked for reimbursement of costs and fees related to defending itself against Mayfield and investigating MacFenerstein.
Mayfield attorney Bill Diehl has until July 6 to respond to NASCAR's allegations. He also did not immediately return phone or e-mail messages for comment.