Case 1:21-cv-00565-RP Document 341 Filed 02/13/24 Page 1 of 22
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`ERIC CERVINI, et al.,
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`Plaintiffs,
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` Civil Action No. 1:21-cv-00565-RP
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`v.
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` Hon. Robert Pitman
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` Defendants
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`ELIAZAR CISNEROS, et al.,
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`CORRECTED RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE
`EXPERT TESTIMONY OF DR. PAUL DOROTHY
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`Case 1:21-cv-00565-RP Document 341 Filed 02/13/24 Page 2 of 22
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`Plaintiffs’ motion to exclude the expert testimony of Dr. Paul Dorothy
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`manipulates the record to such an extreme that is patently disingenuous. Dr. Paul
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`Dorothy is immanently qualified to testify on highway and traffic safety. His report
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`was timely and directly rebuts the opinion and conclusions of Theron Bowman. Dr.
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`Dorothy relies on a more comprehensive record than Bowman, as he analyzed the
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`same evidence Bowman did in addition to other video Plaintiffs produced during
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`discovery. Dr. Dorothy analyzed the same time period that Bowman did, but Dr.
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`Dorothy came to a different opinion regarding the level of danger posed by Dolores
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`Park’s driving and roadway based on his experience in the field since 1989.
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`. Dr. Dorothy’s analysis is based on reliable methodology, and his expert
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`report was peer reviewed. In sum, his opinion should be allowed under Fed. R. Civ.
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`P. 26, and its exclusion would amount to an abuse of discretion.
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`BACKGROUND
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` Dr. Paul Dorothy, Ph.D., P.E., PMP, AICP, PTP, CXLT, WACH, has devoted
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`his career to roadway safety since 1986, and has predominantly specialized as an
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`expert in “roadway and roadside safety,” “maintenance of traffic,” “work zone safety,”
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`and “traffic engineering” for over a decade. (Ex. 2 at 1). Dr. Dorothy has extensive
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`experience with highway “operational analysis” and “maintenance of traffic,” “travel
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`demand modeling” and “safety.” (Ex. 2 at 2);
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`has worked as an instructor and researcher at the university level, focusing on
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`1
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`Case 1:21-cv-00565-RP Document 341 Filed 02/13/24 Page 3 of 22
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`“freeway interchange design and operation, simulation modeling, crash analysis,
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`truck safety, truck driver training, and speed limits.” (Ex. 2 at 2). Dr. Dorothy is
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`certified as a Traffic Crash Reconstructionist through the Northwestern University
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`Center for Public Safety. (Ex. 2 at 8-9).
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`He is also a “Certified National Flagger, American Traffic Safety Services
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`Association, February 2020.” (Ex. 2 at 9). He served as a reviewer of the “Highway
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`Capacity Manual 2010 (aka HCM2010), Reviewer, Transportation Research Board,”
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`served as author of sections of Chapter 9 Intersections of the AASHTO A Policy on
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`the Geometric Design of Highways and Streets (2018 Green Book), which is adopted
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`by the Code of Federal Regulations as the United States national design standard,
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`and his research work is specifically referenced in Chapter 9 Intersections of the
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`Green Book. Dr. Dorothy was the Technical Program Chair for the 4th International
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`Symposium on Highway Geometric Design, which examined the potential safety and
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`operational effects of the latest in research, policies and innovative practices. (Ex. 2
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`at 8). Dr. Dorothy served as the “Federal Highway Administration Accelerated
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`Construction Technology Transfer Workshop Skill Set Resource for Roadway
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`Design/Geometrics Skill Set and Traffic Engineering/Safety/ITS Skill Set.” (Ex. 2 at
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`9).
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`Case 1:21-cv-00565-RP Document 341 Filed 02/13/24 Page 4 of 22
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` Dr. Dorothy has been recognized for his work in the field of traffic and highway
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`safety. (Ex. 2 at 3).1 Dr. Dorothy’s work has been published on multiple occasions in
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`professional journals and manuals in the areas of traffic analysis and highway safety.
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`(Ex. 2 at 4).2 Dr. Dorothy has led over 300 safety studies, which focused on evaluating
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`the specific crash experience of individual roadway elements that experienced higher
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`than average crash exposure, like an individual dangerous intersection. All crash
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`reports for a 3- to 5-year study period would be analyzed and crash patterns would
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`be identified. These crash patterns would be examined to determine if roadway
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`geometrics, operational characteristics or human factors (driver behavior) could be
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`identified as being causative to the crash problems exhibited. Countermeasures
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`1 Dr. Dorothy has received the “Outstanding Achievement Award for the US-33/Post Road Interchange
`Modification Study, First Planned Use of Multiple Roundabouts at an Ohio Interchange, American
`Council of Engineering Companies (ACEC) of Ohio” in 2006, the “Honor Award for the Cleveland
`Innerbelt Study, American Council of Engineering Companies (ACEC) of Ohio” also in 2006, the
`“Outstanding Achievement Award for the Single Point Urban Interchange (SPUI) at I-270/Sawmill
`Road Project” from the American Council of Engineering Companies (ACEC), the “Outstanding Paper
`on Operational Effects of Geometrics” from the Transportation Research Board of the National
`Academies of Sciences, Engineering and Medicine in 1997, and the “Great Lakes Center for Truck and
`Transit Research Scholar” award from the Great Lakes Center for Truck and Transit Research
`(GLCTTR) in 1994-1995.
`2 Dr. Dorothy’s pertinent publications include: Traffic Analysis Toolbox Vol. XII: Workzone Traffic
`Analysis – Applications and Decision Framework, (with others), Federal Highway Administration,
`Washington, DC, 2012; NCHRP Report 780: Design Guidance for Intersection Auxiliary Lanes, (with
`others), Transportation Research Board, Washington, DC, 2014; NCHRP Synthesis 422: Trade-Off
`Considerations in Highway Geometric Design, Transportation Research Board, Washington, DC, 2011;
`An Operational Analysis of the Michigan Urban Diamond Interchange, (with others), Transportation
`Research Record 1612: Highway Geometric Design Issues, Transportation Research Board,
`Washington, DC, 1998; An Investigation of the Effectiveness of Boulevard Roadways, (with others),
`Transportation Research Record 1635: Highway Safety Modeling, Analysis, and Design,
`Transportation Research Board, Washington, DC, 1998; Michigan’s Commercial Driver’s License
`(CDL) Experience, (with others), Journal of Transportation Engineering, American Society of Civil
`Engineers, Reston, Virginia, 1998; A Field Analysis of the Operation and Design of Single Point Urban
`Interchanges, (with others), Transportation Research Record 1579: Geometric Design and its Effects
`on Operations, Transportation Research Board, Washington, DC, 1997; and The Operational Aspects
`of the Michigan Design for Divided Highways, (with others), Transportation Research Record 1579:
`Geometric Design and its Effects on Operations, Transportation Research Board, Washington, DC,
`1997, Designated 1997 (awarded Outstanding Paper on Operational Effects of Geometrics).
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`associated with the 4E’s (Engineering, Education, Enforcement and Evaluation) were
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`identified, and a mitigation strategy for short, medium and long term improvements
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`was developed.
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` Dr. Dorothy’s
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`project was published in the American Society of Civil Engineers’ Journal of
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`Transportation Engineering.3 The article’s abstract explains “[t]he purpose of the
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`research reported on here was to determine if the results of [CDL] standardized
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`testing could be directly linked to safer commercial vehicle operation in Michigan. 4
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`3 (Ex. 2 at 4; Michigan’s Commercial Driver’s License (CDL) Experience, (with others), Journal of
`Transportation Engineering, American Society of Civil Engineers, Reston, Virginia, 1998.)
`4 (Ex. 4 at 2).
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`The project focused on the “relationships between Commercial Driver Licenses (CDL
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`test performance, driver demographics, driver attitudes, driver knowledge, and
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`driver safety-related history. . .” Id. The article concluded that, “on the whole, the
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`CDL test is an effective tool for identifying safe drivers.” Id.
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`Dr. Dorothy is frequently requested to present to his peers in his expertise of
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`traffic and highway safety.5 Dr. Dorothy is a member of several professional
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`organizations such as the Institute of Transportation Engineers (ITE), the
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`Transportation Expert Witness Council, and the Transportation Research Board of
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`the National Academies of Sciences, Engineering and Medicine. (Ex. 2 at 8).
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`5 A representative sample of his professional presentations include: Elements of a Safe Roadway,
`ARCH, Columbus, Ohio, 2016; Work Zone Safety, Operation and Incident Investigation, CLM
`Transportation Conference, Omaha, Nebraska, 2015; Work Zone and Highway Safety Issues in
`Litigation, CLE Winter Seminar, Columbus, Ohio, 2015; How Technology is Changing Our Approach
`to Crash Investigation, Willis Winter Seminar Series, Washington, DC, 2014; Impact of Changes &
`Technology on Investigation of Incidents, Arkansas Trucking Seminar, Rogers, Arkansas, 2014;
`Elements of a Safe Roadway Environment, TADC Summer Seminar, San Francisco, California,
`2014; Changes that Impact Our Understanding of Crashes, CLE Spring Seminar, Independence, Ohio,
`2014; Roadway and Work Zone Accidents/Application of 3-D Laser Scanning, SEA, Ltd. Trucking
`Bootcamp, Columbus, Ohio, 2014; Elements of a Safe Roadway Environment, SEA, Ltd., Tampa,
`Florida, 2013; Institute of Transportation Engineers, Cleveland, Ohio, 2007; Traffic Management
`Using Ramp Metering: Best Practices, (with others), Ohio Transportation Engineering Conference,
`Columbus, Ohio, 2006; Coordinating Trip Data Between Travel Demand and Operational Models,
`(with others), 84th Annual Meeting, Transportation Research Board, Washington, DC, 2005;
`Validation of Operational Models, Transportation Research Board Planning Applications Conference,
`Baton Rouge, Louisiana, 2003; Coordinating Trip Data Between Travel Demand and Operational
`Models, Transportation Research Board Planning Applications Conference, Baton Rouge, Louisiana,
`2003; Integrated Travel Demand and Operational Model, Kentucky Traffic Demand Modeling Data
`Workshop, Frankfort, Kentucky, 2000; An Operational Analysis of the Michigan Urban Diamond
`Interchange, (with others), 77th Annual Meeting, Transportation Research Board, Washington, DC,
`1998; Michigan’s Commercial Driver’s License (CDL) Experience, (with others), Journal of
`Transportation Engineering, American Society of Civil Engineers, Reston, Virginia, 1998; A Field
`Analysis of the Operation and Design of Single Point Urban Interchanges, (with others), 76th Annual
`Meeting, Transportation Research Board, Washington, DC, 1997; Issues Surrounding Raising the
`Speed Limit, Society of Women Engineers, Great Lakes State Conference III, East Lansing, Michigan,
`1996; Evaluating Traffic Impacts of the Oakland County IVHS System, Michigan Section, Institute of
`Transportation Engineers, Lansing, Michigan, 1993; and numerous presentations at the
`Transportation Research Board Annual Meeting in Washington, DC. (Ex. 2 at 5-8).
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`Case 1:21-cv-00565-RP Document 341 Filed 02/13/24 Page 7 of 22
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`EXPERT OPINION
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`Pursuant to the Court’s Scheduling Order (ECF No. 254), Dolores Park timely
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`designated Dr. Paul Dorothy as a rebuttal expert on December 6, 2023 (ECF No. 269)
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`and supplied Plaintiffs and all parties with his Expert Report (Ex. 1) and Curriculum
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`Vitae (Ex. 2). On November 8, 2023, Plaintiffs designated Bowman as an expert to
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`“identify potential violations of the Texas vehicle and criminal code and also to assess
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`how the incident affected driving conditions on the road that day.” (Park’s
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`Objections to Bowman at Ex. 1 at 10, ECF No. 314-2) (emphasis added); (ECF No.
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`261). Bowman claimed that he reviewed Dolores Park’s driving “conduct” to
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`determine if she “would have made driving dangerous” for the Plaintiffs. (Park’s
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`Objections to Bowman at Ex. 1 at 11, ECF No. 314-2). Bowman also opined on the
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`“Bus driver’s ability to safely operate the Bus.” Id. at 16. Bowman concluded that
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`“[a]ggressive and reckless driving . . . made highway travel for the Bus treacherous[.]”
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`Id. at 17.
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`In response to Plaintiffs’ designation and pursuant to the scheduling order
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`entered by this Court, Dolores Park designated Dr. Dorothy to rebut Bowman’s report
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`28-days after Plaintiffs’ designation. (ECF Nos. 254, 269). The parties conducted
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`Bowman’s deposition on January 16, 2024 and Dr. Dorothy’s, a mere two days later,
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`on January 18, 2024.
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`; (ECF No. 314 at Ex. 2).
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`Dr. Dorothy was designated “to investigate the interaction between Ms. Park
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`and her vehicle and the Biden-Harris campaign bus that occurred on Interstate 35 (I-
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`35) as the bus traveled between San Antonio and Austin, Texas, on October 30, 2020.”
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`(Ex. 1 at 1). Dr. Dorothy analyzed how Dolores Park’s driving “affected driving
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`conditions on I-35 on October 30, 2020, as it related to the Plaintiffs. (Park’s
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`Objections to Bowman at Ex. 1 at 10, ECF No. 314-2). He analyzed whether Dolores
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`Park affected the “Bus driver’s ability to safely operate the Bus” and whether Dolores
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`Park engaged in “[a]ggressive and reckless driving” that “made highway travel for
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`the Bus treacherous[.]” Id. at 16-17. Dr. Dorothy’s expert report squarely addresses
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`these major points from Bowman’s report as they pertain to Dolores Park.
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`In creating his report, Dr. Dorothy analyzed the Bowman Report and the
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`multiple videos analyzed by Bowman in creating his report, Plaintiffs’ First Amended
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`Complaint, the Deposition of Sarah Hill and its exhibits, the Deposition of Dolores
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`Park and its Exhibits, and the Petition for Writ of Mandamus.
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`1 at 5).6
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`report, he summarizes the testimony from the available depositions, citing the
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`depositions with page numbers, and compares the testimony to a 42-minute-long
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`video he reviewed, which is cited by the Plaintiffs’ Bates Number. (Ex. 1 at 6-9);
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`Case 1:21-cv-00565-RP Document 341 Filed 02/13/24 Page 9 of 22
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`Dr. Dorothy’s report provides the relevant portions of the Texas Driver Manual
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`that he considered. (Ex. 1 at 9-11). Dr. Dorothy uses the information and videos he
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`reviewed to create a summary Timeline. His report outlines his analysis, which step-
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`by-step analyzes Dolores Park’s driving as it relates to other drivers on the road, as
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`it relates to the Biden-Harris Bus, and analyzes whether her driving exhibited
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`objective manifestations of aggressive driving using the scientific method, his
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`scientific expertise in traffic and highway safety, the Standard Practice for
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`Evaluation of Scientific or Technical Data, and the Texas Driver Handbook. (Ex. 1
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`at 9-14).7
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`Dr. Dorothy opined that using the scientific method, his vast experience in
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`traffic and highway safety and field studies of driver behavior and comparing the
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`information from the videos with the objective standards of the Texas Driver
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`Handbook, that Dolores Park’s driving did not exhibit the known signs of aggressive
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`driving, and that she drove in a “reasonable manner that did not conflict with the
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`vehicles traveling in her vicinity.” (Ex. 1 at 13).
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`Case 1:21-cv-00565-RP Document 341 Filed 02/13/24 Page 10 of 22
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`Case 1:21-cv-00565-RP Document 341
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`Case 1:21-cv-00565-RP Document 341 Filed 02/13/24 Page 12 of 22
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` (Ex. 1). Dr. Dorothy’s
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`insight provided critical analysis regarding the safety and what danger she posed and
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`did not pose while driving on I-35 on October 30, 2020.
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`The Texas Drivers Handbook warns that “[m]ost crashes in Texas result from
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`speeding, failure to yield or stop appropriately and driving under the influence of
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`alcohol.” (Ex. 1 at 11). It also states that drivers “are required to obey posted
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`minimum and maximum speed limits. These limits are designed to provide for the
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`orderly flow of traffic under normal driving conditions. During periods of heavy
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`traffic…you must adjust your speed and following distance to help avoid crashes.” Id.
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`LEGAL ARGUMENT
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`DR. DOROTHY IS WELL QUALIFIED AS AN EXPERT
`I.
`REGARDING THE SAFETY OF DOLORES PARK’S DRIVING—AN ISSUE
`CALLED
`INTO QUESTION BY PLAINTIFFS’ FIRST AMENDED
`COMPLAINT AND PLAINTIFFS’ DESIGNATED EXPERT.
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`Plaintiffs misstate, twist, and cherry-pick excerpts from Dr. Dorothy’s report
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`and testimony beyond recognition. Then, they falsely claim his opinion would not
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`help determine a fact at issue. Plaintiffs’ First Amended Complaint alleges that
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`Dolores Park drove “aggressively” and “dangerously close” to the Biden-Harris bus.
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`(ECF No. 151, ¶¶ 7, 8). Plaintiffs wildly claim that Dolores Park “repeatedly
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`assaulted the Biden-Harris Campaign bus and slowed down traffic on I-35.” Id. at ¶
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`26. Plaintiffs argue that “Defendants’ reckless and dangerous driving” caused them
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`to “fear for their lives[.]”9 Plaintiffs designated an expert to “assess how” Dolores
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`Park’s driving affected the Plaintiffs and the movement of the Biden-Harris bus.10
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`Bowman claimed that he reviewed Dolores Park’s driving “conduct” to determine if
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`she “would have made driving dangerous” for the Plaintiffs. Id. at 11. Bowman also
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`opined whether the “Bus driver’s ability to safely operate the Bus” was affected by
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`Dolores Park. Id. at 16. Bowman concluded that Defendants’ “[a]ggressive and
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`reckless driving . . . made highway travel for the Bus treacherous[.]” Id. at 17. With
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`no uncertainty, Plaintiffs have put Dr. Paul Dorothy’s expert opinion regarding the
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`safety of Dolores Park’s driving and its effect on the Biden-Harris bus at issue.
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`Dolores Park’s driving is captured on video and fails to support Plaintiffs’ allegations.
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`See (Plaintiffs00000070.mp4). And Dr. Paul Dorothy’s well-qualified opinion is
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`critical evidence for the trier of fact.
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`Dr. Paul Dorothy has devoted his career to roadway safety. His extensive
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`experience in roadway and highway safety, maintenance of traffic, work zone safety,
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`operational analysis, revising drivers’ manuals, and traffic crash reconstruction
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`spans decades. (Ex. 2 at 1-2, 9). He holds certifications from the American Traffic
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`Safety Services Association and from the Northwestern University Center for Public
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`9 Id. at ¶ 139; see also id. at ¶¶ 91, 93, 94, 100, 148, 149, 155, 160.
`10 (Park’s Objections to Bowman at Ex. 1 at 10, ECF No. 314-2).
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`Safety. Id. at 8-9. Dr. Dorothy has taught freeway operation, truck safety, crash
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`analysis, and truck driver training to civil engineers at the university level. Id. at 8-
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`9. The Federal Highway Administration, the Transportation Research Board, and
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`other preeminent organizations have published Dr. Dorothy’s writing on traffic
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`analysis and highway safety on multiple occasions, id. at 3-4, and he is requested to
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`present on these subjects even more frequently, id. at 8-10. Dr. Dorothy’s field work
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`pertaining to traffic observation, analysis, modification studies, operational effects,
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`and highway design has garnered multiple awards. It would be difficult to imagine
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`an expert more qualified, but Plaintiffs dismiss Dr. Dorothy’s expert opinion because
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`he is a civil engineer and, therefore, they argue, cannot analyze an individual’s
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`driving. Plaintiffs are incorrect.11 Fed. R. Evid. requires that expert testimony must
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`“assist the trier of fact to understand the evidence or to determine a fact in issue.”
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`Dr. Dorothy’s testimony accomplishes both. The “fit” of expert testimony need “not
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`always” be “obvious.” Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 591 (1993).
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`Civil engineers have been qualified to testify as experts in many areas, including
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`11 Dr. Dorothy’s education and experience has a civil engineer has required him to understand a depth
`of knowledge beyond Plaintiffs’ proposed expert, Bowman. Dr. Dorothy has studied traffic and
`highway safety for almost four decades. His training requires that he know not only how drivers
`conduct themselves on the roadway and what traffic rules and regulations are, but Dr. Dorothy also
`knows why. He knows why traffic lanes must be a certain width, why drivers must keep a 2 to 3-
`second following distance, he knows how human behavior affects other drivers, and why it does. It is
`critical that any civil engineer who designs a highway have an expert-level understanding of driving
`behaviors, the motor vehicle code, and traffic safety. Indeed, Dr. Dorothy’s understanding of traffic
`safety and dangerous driving is far deeper than just enforcement of speeding tickets. He cognizes
`exactly why a certain speed limit should be set on a certain road based on drivers’ behaviors, traffic
`patterns, and years of scientific and technical training. He is also able to recognize, based on the
`reliable principles he used in this case, whether a person safely drove in the vicinity of Plaintiffs’ bus
`or exhibited dangerous or aggressive driving.
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`driver behavior and compliance with driving safety standards and regulations.12
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`Courts have allowed individuals far less qualified than Dr. Dorothy to offer expert
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`opinions on driver’s safety standards. See, e.g., Loera v. Hunter Express, Ltd., 2023
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`U.S. Dist. LEXIS 172239, *6-8 (S.D. Tex. 2023).
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`II. DR. DOROTHY’S OPINION IS BASED ON SUFFICIENT FACTS AND
`DATA.
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`Dr. Dorothy reviewed every piece of evidence that Theron Bowman did. In fact,
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`Dr. Dorothy reviewed all of the video evidence of Dolores Park’s driving for its safety
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`impact on travel on the roadway.13 Dr. Dorothy’s report clearly lists the depositions,
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`deposition exhibits, and evidence he relied upon, citing the most critical piece of
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`evidence: the 42-minute-long video Dr. Dorothy reviewed and labeled by Plaintiffs’
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`Bates Number.14 Plaintiffs act confused, deceitfully arguing that they do not know
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`the basis of Dr. Dorothy’s opinion, which is false.
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`12 See, e.g., Buck v. Ford Motor Co., 810 F. Supp. 2d 815, 842 (N.D. Ohio 2011) (holding that a civil
`engineer with work experience in highway and traffic engineering, accident reconstruction, and
`human driver error was qualified to testify regarding gas pedal malfunction); Lawes v. CSA Architects
`& Eng’rs LLP, 963 F.3d 72, 105 (1st Cir. 2020) (reversing lower court’s exclusion of expert testimony
`and noting that traffic engineers receive training on human factors to know how a person will conduct
`themselves in vehicular traffic); Joudeh v. MS Carriers, Inc., 2011 U.S. Dist. LEXIS 171363 *11 N.D.
`Tex. Apr. 19, 2011) (noting a highway and traffic engineer was qualified to opine on whether a driver
`failed to comply with commercial driving standards and regulations and whether the driver was a
`contributing cause of a vehicular accident).
`13
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`14 (Ex. 1 at 6-9);
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`Case 1:21-cv-00565-RP Document 341 Filed 02/13/24 Page 17 of 22
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`Plaintiffs complain that Dr. Dorothy did not review materials that Bowman
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`considered—materials that contained no evidence regarding Dolores Park, and that
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`Bowman cited solely in his review of evidence for the other Defendants. These are
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`videos that do not show Dolores Park or contain statements to which she was not
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`privy. These materials, concerning other Defendants, are irrelevant to an analysis of
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`Dolores Park’s driving. Plaintiffs falsely state that “Dr. Dorothy’s report fails to
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`consider key evidence. As an example, Dr. Dorothy fails to include any of Dolores
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`Park’s contemporaneous statements from her Facebook Live videos on October 30,
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`2020 about how she was driving—perhaps the most salient evidence about her
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`conduct at the time.” (Pls’ Resp. at 13). Two issues with this false accusation: 1) Dr.
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`Dorothy did consider this video and analyzed it and
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`. 2) This
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`video is certainly not the “most salient evidence” as Dolores Park is behind the bus
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`at the time that video is taken.
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`This, however, does not create a non-
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`compliance issue for Dolores Park. Dr. Dorothy’s expert report satisfies the requirements of Fed. R.
`Civ. P. 26(a)(2)(B)(i)-(vi).
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`Case 1:21-cv-00565-RP Document 341 Filed 02/13/24 Page 18 of 22
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`Fed. R. Evid. 702 does not demand that experts rely on all data that could be
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`deemed relevant. It does not even require the expert to seek out the best possible
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`source of relevant information. “Sufficien[cy]” is the benchmark for an expert’s data
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`under Rule 702(b). 29 Charles Alan Wright & Arthur R. Miller, Federal Practice and
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`Procedure § 6268 (2d ed. 2017) (explaining that “the word ‘sufficient’ in Rule 702
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`signifies that the expert may properly base her opinion on something less than all the
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`pertinent facts or data” and, as a result, “sufficiency is not a matter of whether the
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`judge believes in the facts or data on which the expert relies”). Dr. Dorothy’s opinion
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`easily meets this standard. He relied on the same facts and data that Plaintiffs’
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`expert (Bowman) did for his analysis of Dolores Park, and additional material above
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`and beyond what Bowman considered.17 Plaintiffs argue that Dr. Dorothy’s report
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`fails to comply with Fed. Civ. R. 26 and cite to Witt v. Chesapeake Exploration, L.L.C.,
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`16 (
`17 Plaintiffs continually misstate Dr. Dorothy’s testimony and his responsibilities under Rule 26.
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`Plaintiffs’ grouse
`is unreasonable. Dr. Dorothy did consider the information that Plaintiffs complain of, he simply
`arrived at a conclusion to which Plaintiffs disagree.
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`Case 1:21-cv-00565-RP Document 341 Filed 02/13/24 Page 19 of 22
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`2011 WL 2790174, at *2-3 (E.D. Tex. July 13, 2011). This argument is meritless. In
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`Witt, plaintiffs sought to have an attorney testify as an expert on the issue of class
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`certification. Id. at 2. After the plaintiffs furnished the attorney’s expert report,
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`approximately 660 additional exhibits were exchanged in discovery. Id. at 5. The
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`court ruled that plaintiffs were precluded from allowing their expert to opine on the
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`additional 660 additional exhibits, excluded the report, as it was nothing more than
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`a legal opinion from an attorney, and treated the report “for what it is, a supplemental
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`brief on the issue of class certification.” Id. at 8. This is nothing like the instant case,
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`where Dr. Dorothy provided a list of the evidence he relied upon and cited it in his
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`report, including the most critical video identified by Plaintiffs’ Bates numbers.
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`III. DR. DOROTHY’S OPINION IS RELIABLE
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`Dr. Dorothy’s report reliably uses the objective criteria in the Texas Drivers
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`Handbook to analyze whether Dolores Park’s driving created a danger to Plaintiffs.
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`(Ex. 1 at 9-14). Dr. Dorothy provides a step-by-step analysis of Dolores Park’s driving
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`as it relates to other drivers on the road, as it relates to the Biden-Harris Bus, and
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`analyzes whether her driving exhibited objective manifestations of aggressive driving
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`using the scientific method, his scientific expertise in traffic and highway safety, the
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`Standard Practice for Evaluation of Scientific or Technical Data, and the Texas
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`Driver Handbook. (Ex. 1 at 9-14).18
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`Case 1:21-cv-00565-RP Document 341 Filed 02/13/24 Page 20 of 22
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`Dr. Dorothy’s reliance on his expertise in observation of drivers and traffic
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`safety from his 32-years as a civil engineer and use of the objective criteria in the
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`Texas Drivers Handbook and gained in the field was reliable. Testifying experts can
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`show the validity of their opinions by explaining “precisely how [they] went about
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`reaching their conclusions and point[ing] to some objective source—a learned
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`treatise, the policy statement of a professional association, a published article in a
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`reputable scientific journal or the like—to show that they have followed the scientific
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`method, as it is practiced by (at least) a recognized minority of scientists in their
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`field.” Domingo ex rel. Domingo v. T.K., 289 F.3d 600, 605-06 (9th Cir. 2002).19 The
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`use of Drivers Handbooks and Manuals, and other reliable, industry-standard, and/or
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`peer reviewed sources can serve as a reliable basis for an expert opinion.20 Further,
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`Dr. Dorothy walked through how he objective applied the principled and objective
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`criteria in the Texas Drivers Handbook to the video evidence in this case. His
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`methodology was clear, straightforward, and applied to the undisputed facts of what
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`can be seen in the video evidence. Dr. Dorothy’s opinion and methodology were
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`19 (quoting Daubert, 43 F.3d at 1319).
`20 Failla v. George’s Foods, LLC, 2023 U.S. Dist. LEXIS 198589, *18-19 (N.J. Nov. 6, 2023) (reliance
`on the The Manual on Uniform Traffic Control Devices (“MUTCD”)); Eyer v. Rivera, 2019 U.S. Dist.
`LEXIS 241740, *5-7 (W.D. Texas Apr. 23, 2019)(reliance on a commercial driver’s handbook as part of
`the materials he reviewed when conducting an accident reconstruction analysis can be appropriate if
`the witness is otherwise qualified to serve as an expert); Union Pac. R.R. Co. v. Taylor Truck Line,
`Inc., 2017 U.S. Dist. LEXIS 161497, *29-30 (W.D. La. Sept. 29, 2017) (reliance on the American
`Association of State Highway and Transportation Officials’ (“AASHTO”) Policy on Geometric Design
`of Highways and Streets and the Railroad-Highway Design Handbook issued by the Department of
`Transportation and Federal Highway Administration); Lawes, 963 F.3d at 106 (reliance on MUTCD
`or AASHTO as “the standard” used “by all traffic engineers” in forming their opinions).
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`Case 1:21-cv-00565-RP Document 341 Filed 02/13/24 Page 21 of 22
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`reliable. Any “questions relating to the bases and sources of an expert’s opinion affect
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`the weight to be assigned that opinion rather than its admissibility and should be left
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`for the [trier of fact’s] consideration.”21 Expert testimony can only be excluded if it is
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`so unsupported it can provide no assistance to the trier of fact in reaching an
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`intelligent and reasoned verdict.22 Dr. Dorothy’s expert opinion does not rise to that
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`level; it would be an abuse of discretion to exclude it.
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`IV. DR. DOROTHY’S DESIGNATION WAS TIMELY
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`Dolores Park timely filed their designation pursuant to the scheduling order.
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`ECF Nos. 254, 269.23
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`Respectfully submitted,
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`Dated: February 13, 2024
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`21 Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987); Daubert, 509 U.S. at 596; see also
`Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004) (citing United States v.
`14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996); Amigo Broadcasting LP v. Spanish
`Broadcasting, 521 F.3d 472, 485 (5th Cir. 2008).
`22 Slaughter v. Southern Talc Co., 919 F.2d 304, 306 (5th Cir. 1990).
`23 Plaintiffs argue that Dr. Dorothy is not a rebuttal expert as defined by Fed R. Civ. P. 26(a)(2)(D)(ii).
`This contention, however, ignores that the content of Dr. Dorothy’s report squarely rebuts the opinion
`of Bowman.
`Applying the factors in YETI Coolers,
`LLC v. RTIC Coolers, LLC, Dr. Dorothy’s opinion meets