Tony Stewart: Ward Family Denies Validity, Accuracy and Admissibility of Toxicology

 (AP Photo/Empire Super Sprints, Inc.)

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. 

The Civil Suit: The Estate of Kevin Ward, Jr. v. Anthony Wayne Stewart

On August 7, 2015 at 2:43 PM the family of Kevin Ward, Jr. filed Civil Index Number CA2015-000280 with the Supreme Court of Lewis County in rural Lowville, New York against Anthony Wayne Stewart.  Many have questioned the timing of the filing, since the incident in question was just two days shy of its one year anniversary. Some speculated that the Ward Family may have wanted to take advantage of the additional public attention due to the fact that Stewart, the plaintiff, was in nearby Watkins Glen for the annual NASCAR Sprint Cup road race for the weekend.

While I certainly cannot read the collective mind of the Ward Family, it may have more to do with the summonsing process. In New York, a filer has three years from the date of an incident to file a civil suit.  If the summons is delivered within the State of New York, the plaintiff has 20 days to reply to the summons, otherwise, the plaintiff has 30 days to reply.

With that piece of knowledge, we can assume that Tony was served the summons on either Saturday, August 8th, or Sunday, the 9th.  Therefore, a response will need to be prepared and filed by Tony’s legal team on or about the 28th.  A settlement prior to this date is an option as well.

The Interview

Based on this August 14th interview with CBS News, the parents of Kevin Ward, Jr. are adamant, they want justice for their son.  When presented with the two major facts in this case, the Ward’s still blame Stewart.  Mrs. Ward said,

“I wish he has never gotten out of the car, I really do, but I also acknowledge the fact that if Tony would have stayed low on the track and not gunned his engine and headed for my son, my son would still be here.”

Mrs. Ward certainly chose her words carefully.  There was no acceptance of responsibility, only recognition that he got out of the car.  Not that he shouldn’t have, not that it was wrong, against the track rules or anything of that nature.  Only that she wishes he never got out.  The rest of her quote highlights what we could expect as the focal points of their argument in the civil case; their belief that Tony purposefully went high, gunned his engine and headed for their son.  

When asked about the marijuana in her son’s system, Mrs. Ward refutes the findings of the official investigation, “I do not believe my son was impaired.”  Do they have some evidence that has not been made public that can negate the findings of the toxicology reports?  Are they hinting at misconduct on the part of Ontario County?  I can think of no other way they can make these findings go away.  

These two major points; their son exiting his vehicle under caution and pointing at Tony’s car and the other, the fact that the official investigation found marijuana in their son’s system, enough to be determined to be “judgement impaired,” were most likely the key findings, along with the evaluation of the video of the incident, that lead to no criminal charges being levied against Tony Stewart.

Mr. Ward concluded with interview saying, “There is no doubt he (Stewart) knew what he was doing and it was Tony’s car that revved that motor.”

Series and Track Rules for 2014

The complaint filed in this civil suit, which, we might add, demands for a jury trial, lists 55 factual allegations I’ll addressed in a few paragraphs.   We have learned that the sprint cars were all equipped with one-way radios allowing race officials to communicate with drivers.  One question we were able to answer is whether or not the 2014 Eastern Sprint Series Rulebook explicitly stated that drivers would be penalized for exiting a vehicle under caution. It does not.  But it does clearly address the use of narcotics.

C.4 A violation of any rule relating to abusive conduct, intoxicants or narcotics and unauthorized contact with track officials may be subject to immediate suspension without a warning.   

They also address “rough riding”:

C.5 A driver determined to be rough riding may be black flagged and/or immediately suspended and is subject to a loss of up to 100 points per infraction. He/she is also subject to being placed in the scratch position for a designated number of A-Main races not to exceed 2 races per infraction.

We also found  the Canandaigua Motorsports Park’s 2015 track rules. Under Procedural Rules:

3. No drinking of alcohol or ingestion of any intoxicants by any participants allowed at any time before or during the racing program, or any evidence there of by any driver, owner or crew member.

24. Any driver involved in an accident, spin, or has a mechanical failure on the track MUST stay in their car until the Safety Crew arrives. If there is imminent danger of fire or leaking fluids you may exit the car and stand as close to the car as possible. If you exit your car you will be  penalized.

Yet, we have no way of knowing if these rules were added for the 2015 season or if they were indeed in effect for 2014. Hopefully this is something that Stewart’s legal team can determine.

Complaint Specifics

Reading through the complaint, there are items that the Ward’s state as fact that might be more opinion than fact.

No. 7: This item discusses the rules that all drivers agree to prior to racing focusing on exactly how drivers are supposed to respond to a yellow flag.  While it goes into detail about drivers needing to go either down low or up high to avoid a disabled vehicle, it conveniently does not mention that drivers are required to stay in their vehicles which, we are told, is always mentioned in the drivers’ meeting regardless of the series.

No. 13: “During the aforesaid final race on August, 9, 2014, Tony Stewart killed Kevin Ward, Jr.”

Did Tony Stewart cause the death of Kevin Ward, Jr.?  Based on the fact that criminal charges were not issued for Stewart, I have an issue with this declaration.  I and others doubt that Tony even saw him. 

No. 18:  “While the race was under a caution, Kevin Ward, Jr. exited his vehicle and made his way a short distance down the track on foot. While the race was under a caution flag, 13 other cars passed Ward on the low side of the track before Stewart made his way all around the track to the point where he was approaching Kevin Ward, Jr.  – and 6 cars safely passed Ward while standing on the track.”

Was Ward “standing” on the track? I don’t think his feet ever stopped moving.

No. 19:  “ Unlike the other race car drivers who had just passed Kevin A. Ward, Jr., instead of going low on the track per regulations of the event, Stewart came up the track directly toward Kevin Ward, Jr.”

This issue was clearly addressed in the press conference by Ontario County DA Michael Tantillo on September 24, 2014.  Tantillo said, “The videos did not demonstrate any aberrational driving by Tony Stewart until the point of impact with Kevin Ward.” It is worth mentioning that there was also a video, Tantillo mentions, that was the track video, which he stated was of better quality than the amateur video that most of us saw.

No. 20:  “As Stewart’s car approached Ward, who was standing on the track, Stewart climbed up, gunned his engine, causing his 700 horsepower vehicle to slide and strike Ward with his right rear tire, crushing Ward and flinging his body an estimated 25 feet down the track.”

No. 22:  “Upon information and belief, all other drivers who passed by Ward while he was standing on the track, easily were able to avoid Ward.”

Again, Ward was not standing on the track, he was actually moving even closer to on-coming traffic than when the previous six cars past.  He was waiting for Stewart and as Stewart’s car neared, Ward moved even closer.  Some even feel that Ward grabbed the wing of Stewart’s car. 

In some later declarations of fact in the summons, we start to see the Ward Family insinuate that Kevin was financially responsible for his parents.  

No. 39: “Prior to his death, Kevin Ward, Jr. was an able bodied man who devoted himself to the welfare and comfort of his family, who contributed substantially to the comfort, support and well being of his adult parents, who worked regularly for his father’s business – and who, but for being killed, would have one day taken over his father’s business.”

According to Kevin Ward, Jr.’s obituary, he was employed at his dad’s company, Westward Painting, in the roles of “head mechanic and painter.”  Junior worked for Senior, not the other way around.  So the argument that he contributed to their support is misleading.  Unless the Ward’s can prove that Junior handled the family finances, paid the bills and his paycheck was vital to their day-to-day survival, this is a distortion if not outright lie.  According to a records search, Westward Painting was started in 1992-93 and Kevin Ward, Sr. is the sole proprietor; Kevin, Jr. wasn’t even born yet. Unless the Ward’s can prove that Kevin, Jr. was the only one with the skills to be head mechanic and painter and that the business could never be sold or that no other member of the Ward Family was capable of taking over the business, this is not true at all.

Conclusion

The declarations go on to mention much of what we have all read in the past year, the Ward Family’s insistence that Tony’s behavior is what should be in question and no one else’s.  There is absolutely no mention of Ward, Jr.’s impaired judgment or drug use or even a hint that he played a role in his own death.

After reading through this complaint, now, more than ever, I would like to see Tony’s legal team respond to this complaint with their own list of declarations of fact.  The Ward Family has said repeatedly they want justice for their son.  I have looked through a whole series of synonyms for this word, and no where did I see the word “revenge.” Unfortunately, I think the Ward Family, confused by their pain, are not seeing the fine line between the two.

Tony Stewart: Where there is Smoke, There’s Fire … and Kevin Ward, Sr.

Anthony Wayne Stewart

In the past year, I made every effort *not* to publicly comment on the events that took place on August 9, 2014 at Canandaigua Motorsports Park in Western New York State.  Having grown up in an area steep in racing tradition and having spent more than my share of Saturday nights sitting in Turn 1 of our local track breathing in the fumes and listening to the roar of the engines echo off the landscape, I have always loved racing.  Today, I have friends who race at the same track we spent our teen years at, even family who race there as well.  I have watched some horrific wrecks and was even witness to a driver dying as his car hit Turn 1.

In the beginning, I could understand the anger in the comments made by Kevin Ward, Sr.  He and his family were hurting, seeing the hopes and dreams of someone they loved so deeply cut short in an instant.   Even after the criminal investigation was over and the grand jury decided not to charge Tony Stewart, fans could still understand their emotions. Yet the grand jury decision was due in no small part to the two major facts that Kevin Ward, Sr. seems to conveniently or selectively ignore:

1. Kevin Ward, Jr. got out of his car
2. Kevin Ward, Jr. was under the influence of marijuana

We have all watched the video and there are just some pieces of the puzzle that make us ask, “What in the hell is Kevin Ward, Sr. thinking?”  I can certainly relate to his pain; my family has suffered the loss of a few young and vibrant loved ones who died in accidents where they took chances, risks that were directly related to their deaths.  It is worth noting that each were doing something that they loved, just like Kevin Ward. Jr.

Here are some rhetoricals that I can’t seem to work through …

Would Kevin Ward, Jr. have gotten out of his car and gone after the 14 Car if it hadn’t been Tony Stewart behind the wheel?

Here is where it gets down to the heart of the matter.  Did Ward, Jr. have a history of getting out of his car when it wrecked, in direct violation of track rules and regulations? Had he done this before?  Was this standard operating procedure for him? According to reports, he had been involved in racing since his age was in single digits so it would go without saying that at some point it would have (or should have) been pounded into his head that you do not get out of the car until the safety crew arrives.

We’ve been told that Ward, Jr. was a charismatic individual, it’s quite possible that he felt he had something to prove with Stewart on the track with him that night.  Going after Stewart would have been something to talk about after the fact over a few beers in the pits.  Probably a pat on the back from his dad as well.

Did Kevin Ward, Jr. get his hotheadedness from his father?

Ward, Sr. and other family members have not shied away from the press or social media in the past year. They have been almost belligerent to the facts that came out of the official investigation.They clearly want to place blame anywhere but on Ward, Jr.  Even after the video, when slowed down and analysed, shows Ward Jr. making his way down the apron waiting for Stewart to come around under the caution.  Once Stewart is in view, Ward. Jr. goes even further down the apron and some believe even grabbed on to the back right wing of Stewart’s car which caused Stewart’s car to fishtail toward Ward. Jr. causing him to get caught under the back tires.  The video clearly shows the back right wing being brought down, most likely by the weight of Ward, Jr.’s body.

Now, putting these three things together, I just can’t grasp how the Ward Family can place blame on Tony Stewart.  Did Tony tell Ward, Jr. to go against track rules and get out of his car?  Did Tony tell him to make his way down the apron as cars passed?  Did Tony tell him to come closer still to the 14 Car as it drove by under caution?  And, did Tony tell him to grab the wing of the 14 Car?

Did it ever occur to the Ward Family that the marijuana might have caused Ward, Jr.’s initial accident with Stewart?

Does the Ward Family really want us to completely forget that Ward. Jr had “enough marijuana in his system to impair his judgement”? (Source: here and here – added 8/13/15) Is it possible that his impaired judgement and not Tony Stewart caused the initial accident and then, to literally add insult to injury, the impaired Ward gets out of his car, heads down the apron into on coming traffic and once Stewart’s car comes into view, he goes even further down the apron and actually grabs Stewart’s car?

Yet, all of this is Tony’s fault?  I supposed Tony gave him the pot too?

Who knew that Ward, Jr. had smoked pot before getting into his race car?

These are the tough questions that no reporter wants to ask.  Based on lab reports, Ward, Jr. would have had to ingest the pot within a few hours before his death.  That means, most likely, he smoked it at the track.  I hope Aunt Wendi, who claims that Ward, Jr. was with family for the 10 hours leading up to his death grasps the levity here.  Clearly, Wendi and Ward, Sr. are brother and sister – facts cloud their version of the truth.  According to the toxicology reports, at the time of death, the pot in Ward, Jr.’s system was at a level that is defined as “judgement impaired.”  So, someone had to smell it on him, someone had to see his red eyes or the other physical signs that he was high.  Did Ward, Jr’s pit crew and friends know he was high when he got behind the wheel?  He would have had to smoke it sometime after racing officially started at 7 pm. If reports are correct that he died between 9 and 10 pm, the Ward Family has a rough road ahead if they want a jury to believe that Stewart was directly responsible for their son’s death.  It would be hard to believe that no one at the track knew that Ward, Jr. had recently smoked pot or quite possibly smoked it there. Did his family know he smoked on occasion?

Now, the Ward Family has filed a civil suit against Stewart, just days before the one year anniversary of their son’s death.  According to USA Today;

“The suit claims that Stewart caused the accident that crashed Ward Jr.’s car initially, and citing his “unique race car and driving skills” and “extreme skill and control over his car” acted recklessly in revving his engine and not steering clear of Ward Jr. in the aftermath as other cars had. Ward Jr. died of blunt force trauma.”

“The suit does not state what the Ward family is seeking in damages. The suit contains four actions: wrongful death; terror, pain and suffering prior to death; intentional/reckless conduct; and gross negligence.”

“New York law dictates that the suit can only collect for the future loss of expected earnings or care Ward Jr. would have generated. No figure is included in the suit.”

It is my guess that the Ward Family is banking on the fact that Stewart is going to settle before going through the publicity of a jury trial in the middle of racing season.

I fail to see how the court case has legitimacy if Ward, Jr. was only 20 years-old and not financially responsible for his parents.  If Ward, Jr. had a wife or children, then yes, the legal system would expect his future earnings to support his family, but not his parents.  Wouldn’t attorneys have to prove that Mr. and Mrs. Kevin Ward, Sr. were being financially supported by their 20 year old son?  If someone with some legal expertise could comment, that would be great.

My final question is this;  If Kevin Ward, Jr.’s death did not involve a high-profile, established (and wealthy) NASCAR driver and instead it involved Billy Bob Rivers who raced cars on the weekends and worked Monday through Friday at the local Pep Boys, would the Ward Family be taking Billy Bob to court?