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Tuesday, April 3
Lawyer: NASCAR feared lawsuit
Associated Press

DAYTONA BEACH, Fla. -- NASCAR may have convinced Dale Earnhardt's widow to have the racing legend's autopsy photos sealed to protect itself against a wrongful death lawsuit, an attorney for a newspaper seeking access to the images suggested Tuesday.

Attorney Tom Julin, in a memorandum filed in Volusia County Circuit Court, also argued that legislation passed last week restricting public access to all autopsy photos is unconstitutional and can't be applied retroactively to the Earnhardt case.

Julin is representing the Gainesville-based student newspaper, The Independent Florida Alligator, in its efforts to view the photos. A hearing on the newspaper's motions is scheduled for Thursday.

"These circumstances strongly suggest that NASCAR, motivated by its own fear of a lawsuit for wrongful death ... urged Teresa Earnhardt to file this suit to seal the photographs at issue because of what they might reveal," Julin said in the memorandum.

NASCAR spokesman John Griffin said he wasn't aware if his company had played a role in Teresa Earnhardt's decision. Her attorney, Thom Rumberger, strongly denied that NASCAR influenced her decision.

"It's wrong. It's false. It's incorrect or any other adjective I can use," Rumberger said. "They had no influence on filing it or trying to seal it."

Teresa Earnhardt asked a judge to seal the autopsy photos four days after her husband died during a crash in the last lap of the Daytona 500 Feb. 18.

The Sentinel, which wanted to view the photos for an investigation into NASCAR safety, challenged the judge's decision. The Sentinel has suggested in its articles that several NASCAR deaths could have been prevented if the racing circuit required drivers to wear a head-and-neck restraining device.

Attorneys for the Sentinel and Teresa Earnhardt reached a compromise that allowed an independent medical expert to look at the photos and write a report on Earnhardt's cause of death.

Calling the compromise "illegal", the Volusia County medical examiner's office, which has custody of the images, has asked that it be removed from the agreement, and the president of a website has appealed the agreement and the sealing of the photos to an appellate court.

Autopsy photos in Florida were public records until Gov. Jeb Bush signed into law last week legislation making it a felony for a medical examiner to release autopsy photos without a court's permission.

The Orlando Sentinel and the South Florida Sun-Sentinel, which is based in Fort Lauderdale, have challenged the new law in Broward County, claiming it violates the Florida Constitution and the First Amendment in the U.S. Constitution.

NASCAR's medical expert, Dr. Steve Bohannon, viewed the autopsy images the day before they were sealed. A few days later, Bohannon announced at a NASCAR-sponsored news conference that Earnhardt's seat belt broke.

If NASCAR learned through Bohannon's examination that Earnhardt died from injuries preventable by a head and neck restraint, it could be held liable by Teresa Earnhardt, Julin said in the memorandum.

Julin said it's unknown whether NASCAR contacted Teresa Earnhardt after Bohannon viewed the photos.

"It also is not known if NASCAR's lawyers and medical personnel made representations to Earnhardt about what the autopsy photographs showed regarding the cause of Dale Earnhardt's death," Julin said. "But these are distinct possibilities that cannot and should not be discounted."

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