Expert Witness: Mayfield Reps Botched Affidavit

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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.

Mayfield Doctor May Not Have Proper Creds

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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.''