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NASCAR claims Mayfield expert lied in affidavit

By Jenna Fryer
Associated PressCHARLOTTE ó An expert witness for suspended driver Jeremy Mayfield 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 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 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 “a dangerous, illegal, banned substance.” It’s name has been redacted in all court filings related to the case.
But 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.”
Among MacFenerstein’s listed qualifications in the affidavit are claims that 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 refuting each of his claims.
Darla English, an employee in the university registrar’s office at Midwestern State since 1989, 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.
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 an MRO.
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 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 did not immediately return messages for comment.

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