NBC Sports reported late Friday night that the Family of Kevin Ward, Jr. are now contesting the toxicology results that were part of their son’s autopsy in August of 2014. While a court date has not been set for the pending civil case between the Ward Family and NASCAR superstar Tony Stewart, there are still lots of questions swirling around this civil suit resulting from the untimely death of Ward. Jr on August 9, 2014 at Canandaigua Motorsports Park.
We have actively discussed in detail the questions that have arisen from the potential criminal lawsuit in a previous post and in another we looked at what the specific track rules were in place at the time of the incident. This all calls into question whether or not the family can even file a suit because of the waivers signed by all drivers prior to the race.
In their civil suit the Ward Family made no reference to the 2014 toxicology report that stated Ward had ingested marijuana within five hours of his death; enough to be determined “judgement impaired.” Many feel that, along with the video of the incident, the toxicology results were the key points used by the Ontario County grand jury that decided not to file criminal charges against Stewart.
The NBC article states:
In the filing, Kevin and Pamela Ward, “admit that a toxicology report exists that allegedly found Kevin A. Ward, Jr. to have smoked marijuana within at least five hours of participating in the August 9, 2014 race. However, Plaintiffs deny the validity, accuracy, and admissibility of said report.”
So, this again opens us to some more things to consider. When the Ward’s were first made aware of the toxicology reports they denied their validity stating publicly that they did not believe their son was impaired. They said it immediately after the results were made public in September of 2014 and again when the civil suit was filed last month.
If they are denying the validity, accuracy and admissibility of the report why haven’t they vehemently fought this, asked for retesting, samples sent to an alternative lab for a second opinion, etc. For over a year they did nothing to disprove the findings.
Would it have made their civil case stronger if, in the past year, they made attempts to disprove the toxicology? Not just for the civil suit but to clear their son’s name? Some may say that they might not have been able to afford it. A GoFundMe account or something of that nature could have easily been established. Even after the news of the marijuana use became public, there were still plenty of people, even in their local area, that were still supporting the stance of the Ward Family that Tony Stewart was responsible for their son’s death.
Another topic that is worth discussing briefly is the side comments made by a few members of the Ward Family asking why Tony Stewart wasn’t tested for drugs immediately after the incident. I believe it was Mrs. Ward who made the comment in their first official interview with CBS last month as well as Kevin’s Aunt Wendy back in 2014 asking why they would drug test Kevin but not Tony Stewart.
Quoting from the Ontario County District Attorney’s Press Conference on September 24, 2014:, when a reporter asked if toxicology reports were presented to the grand jury the response was:
There is toxicology evidence in the case relating to Kevin Ward that actually indicated at the time of operation, he was under the influence of marijuana. There was no toxicology performed on Tony Stewart, however a certified drug recognition expert had interviewed him on the night of the collision and determined that he found no basis to observe any alcohol consumption or impairment by drugs.
When asked, “Why no toxicology report on Tony Stewart?” DA Michael Tantillo answered,
In New York State, law enforcement cannot compel any person to provide any blood samples, urine samples of that nature unless they’ve been arrested for a crime. Obviously, Tony Stewart wasn’t arrested, therefore there is no legal basis for law enforcement to attempt to acquire that.
When asked further about Stewart’s and the possibility that he was under the influence of some sort of substance, the DA educated the press on exactly who one of the participants was in Tony Stewart’s interview that evening.
The drug recognition expert did meet and speak with him, and a certified expert requires a certain level of training. He determined there was no basis to draw the conclusion of alcohol or drug involvement.
Going further, to answer the Ward’s question, It appears that whenever someone dies in an accident or unexpectedly, moreover when there is the possibility of criminal charges, toxicology testing is standard in all autopsies. While the Ward Family might not like it, this general article from WebMd supports the processes that Ontario County followed in this case.
Looking at the validity and accuracy of the test results, unless they have some damning evidence that they have not made public, they would need some legal basis for questioning the toxicology results. From previous articles, it was clear that the coroner tested the toxicology results three times I believe, before he contacted the DA’s office with his findings.
If the Ward Family is hoping to insinuate that because Ontario County is small, rural, etc. that the Coroner’s Office does not have the experience or expertise to review cases like this one, it is worth noting some statistics. According to the New York State Health Department website, there are approximately 29 unintentional injury-related deaths per 100,000 people in Ontario County annually. As of 2013, the population of the county is just over 109, 000. This seems like more than enough experience to handle this case.
Going further, the coroner who did the Ward autopsy, Kevin Henderson has been in office since 2010, is on the Board of Directors of the New York State Association of County Coroners and Medical Examiners, also works as a funeral director in the area and is a retired County Sheriff Deputy with 24 years on the job. Additionally, he is a member of Disaster Mortuary Operational Response Team Region 2 as a mortuary officer.
It will be interesting to see how the Ward Family and their legal team plan to disprove not only the test results but the admissibility of the results. It is well known that the burden of proof is significantly lower in a civil vs. criminal suit yet, even with that on their side, the Ward Family has a long road ahead.