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An expert witness for suspended driver Jeremy Mayfield ((his car is pictured, thanks NASCAR Images)) does not have the medical degrees or certifications he listed in his qualifications, NASCAR alleged Tuesday.
In a motion filed in U.S. District Court, NASCAR asked that Dr. Harvey MacFenerstein's sworn affidavit be dismissed from Mayfield's lawsuit because the expert falsely represented himself on six counts. MacFenerstein is the president of Analytical Toxicology Corp., a drug-testing laboratory in San Antonio, Texas.
Attorneys for Mayfield filed a sworn affidavit from MacFenerstein that said NASCAR's drug-testing program is flawed and does not meet federal workplace guidelines. His findings were the basis of Mayfield's May 29 court argument that his indefinite suspension for a failed drug test should be lifted.
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 dangerous, illegal, banned substance."
Its name has been redacted in all court filings related to the case. However, two independent sources told ESPN The Magazine's Ryan McGee that Mayfield tested positive for methamphetamine.
NASCAR asked Tuesday that a large portion of Mayfield's pending lawsuit be dismissed based on MacFenerstein's misrepresentation in last month's affidavit.
"Plaintiffs may not be pleased with the fact that the drug testing process revealed the presence of substances that are banned by NASCAR," the motion said, "but Plaintiffs cannot attack the drug test results and the Defendants on the basis of an expert who has submitted patently and demonstrably false testimony."
"It shows some desperation on their part,'' said John Buric, who prepared the affidavit for the case challenging Mayfield's indefinite suspension for failing NASCAR's substance abuse policy. "When you don't like the news you try to attack the messenger.''
Buric said Tuesday that a countermotion will be filed to refute NASCAR's claim.
Among MacFenerstein's listed qualifications in the affidavit are claims that he has a 1975 bachelor of science degree in medical technology from "Mid Western State University of Texas"; that he obtained a medical doctor degree in clinical pathology from CETED University in Mexico; that he is certified as a medical review officer; and that he has membership and certification from two clinical agencies.
But NASCAR submitted six affidavits Tuesday refuting each of his claims.
"This is a very, very serious matter. Their star witness appears to have absolutely no qualifications to testify in this case," NASCAR spokesman Ramsey Poston said Tuesday. "This was an attempt to defraud the court. 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."
Darla Inglish, university registrar for Midwestern State since 1993, said a search of school records failed to find any documentation that MacFenerstein received a degree from the university. Her sworn testimony showed "a Harvey Mac Fenerstein briefly attended ... some classes" during one semester in 1976 as part of a cooperative program with Shepherd Air Force Base.
Dr. Frederico De Noriega Olea, a Mexico-based attorney hired by NASCAR to investigate MacFenerstein's claims, submitted an affidavit saying he found no proof that MacFenerstein obtained a degree from CETED or has a license to practice medicine in Mexico.
Two more affidavits claimed that MacFenerstein is not a member of the American Association for Clinical Chemistry, as he claimed, and there is no record with two certifying bodies that he's been approved as a medical review officer.
The final charge by NASCAR disputes MacFenerstein's claim that ATC has proper certification as a drug-testing laboratory.
"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's 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.
"I know he is an M.D., I know he has a medical degree and attended the university he said,'' Buric said. "He is a member or the organization he said he is a member of. We'll just have to see where they have evidence to refute that.''
Buric said the motion does not address the ultimate issues of the case, but "it certainly is a good sideshow for a while.''
"I don't think it's a setback at all,'' he said. "It's an indication NASCAR is concerned about what they've done. Instead of dealing with the merits of what happened, they're trying to attack the credentials of the person saying what was done.''
Buric said the federal judge who will hear Mayfield's court case has returned from vacation and that his firm has requested a hearing to be held in the next couple of weeks, preferably next week.
Buric is hoping Mayfield will be granted a temporary restraining order that will allow him to resume driving. Mayfield has not been allowed to compete since the May races at Lowe's Motor Speedway in Charlotte.
"I have no worries about what we've obtained in our initial filings,'' Buric said. "We will respond.''
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