Case 1:21-cv-00565-RP Document 473 Filed 08/12/24 Page 1 of 19
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`1:21-CV-565-RP
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`WENDY DAVIS, et al.,
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`v.
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`ELIAZAR CISNEROS, et al.,
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`Plaintiffs,
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`Defendants.
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`ORDER
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`Before the Court are Defendant Dolores Park’s (“Park”) objections to the expert testimony
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`of Dr. Theron Bowman. (Dkts. 314, 317, 416). Plaintiffs Wendy Davis, David Gins, and Timothy
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`Holloway (collectively, “Plaintiffs”) filed a response in opposition, (Dkts. 334, 337), and Park filed a
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`reply, (Dkts. 353, 356). Also before the Court is Plaintiffs’ motion to exclude the expert testimony of
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`Dr. Paul Dorothy. (Dkts. 313, 316). Park filed a response in opposition, (Dkts. 341, 345), and
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`Plaintiffs filed a reply, (Dkts. 358, 359).1 Having considered the parties’ briefs, the record, and the
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`relevant law, the Court issues the following order.
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`I. BACKGROUND
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`This case arises out of an incident alleged to have occurred during the 2020 U.S. presidential
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`election campaign period (hereinafter, the “Incident”). Plaintiffs assert that on October 30, 2020,
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`they were traveling on I-35 between San Antonio and Austin, Texas, in a Biden-Harris campaign
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`tour bus. (Am. Compl., Dkt. 151, at 2–3). At that time, they allege, “dozens of individuals in at least
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`forty vehicles” participated in a “Trump Train” to show support for presidential candidate Donald
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`Trump by surrounding the campaign bus on the highway. (Id.). Plaintiffs state that for at least ninety
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`1 The preceding docket numbers refer to both unsealed and sealed versions of each filing.
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`Case 1:21-cv-00565-RP Document 473 Filed 08/12/24 Page 2 of 19
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`minutes, the “Trump Train” forced the campaign bus to slow down to a crawl on the highway, that
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`cars came within inches of the campaign bus, boxing it in, and that one “Trump Train” vehicle
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`slammed into a Biden campaign staffer’s car, causing Plaintiffs to fear for their lives and suffer
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`emotional trauma. (Id. at 2–3). Plaintiffs allege that Park, Defendants Eliazar Cisneros, Joeylynn
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`Mesaros, Robert Mesaros, Randi Ceh, and Steve Ceh (collectively, “Defendants”), and others
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`coordinated to wait for and surround the campaign bus. (Id. at 3).
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`Based on these allegations, Plaintiffs assert that Defendants violated the Ku Klux Klan Act
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`(“KKK Act”), 42 U.S.C. § 1985(3), which creates liability for those that “conspire to prevent by
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`force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or
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`advocacy in a legal manner” in favor of a Presidential or Congressional candidate for federal office.
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`Plaintiffs also assert two claims under Texas state tort law: that Defendants engaged in a civil
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`conspiracy; and that Defendants engaged in a civil assault. (Id. at 58–62). This case is currently set
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`for trial beginning on September 9, 2024. (Dkt. 405).
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`Plaintiffs designated Dr. Theron Bowman (“Dr. Bowman”) as an expert witness, (Dkt. 261),
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`to assess (1) whether Defendants or other “Trump Train” participants violated the Texas
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`Transportation Code or the Texas Criminal Code during the Incident; and (2) “how the [I]ncident
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`affected driving conditions on the road that day,” (Bowman Report, Dkt. 334-2). Only Park objects
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`to Dr. Bowman’s testimony. (Dkts. 314, 317, 416). In turn, Park designated Dr. Paul Dorothy (“Dr.
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`Dorothy”) as a rebuttal expert, (Dkt. 269), to “investigate the interaction between [Park] and her
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`vehicle and the Biden-Harris campaign bus that occurred” during the Incident, (Dorothy Report,
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`Dkt. 313-1). Park states that she designated Dr. Dorothy as an expert to rebut Dr. Bowman’s
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`testimony. (Resp. Mot. Exclude, Dkt. 341, at 1). Plaintiffs move to exclude Dr. Dorothy’s testimony
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`on multiple grounds. (Dkts. 313, 316).
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`II. LEGAL STANDARD
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`The root of the court’s admissibility analysis is Federal Rule of Evidence 702, which
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`provides:
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`A witness who is qualified as an expert by knowledge, skill, experience,
`training, or education may testify in the form of an opinion or
`otherwise if the proponent demonstrates to the court that it is more
`likely than not that:
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`(a) the expert’s scientific, technical, or other specialized knowledge will
`help the trier of fact to understand the evidence or to determine a fact
`in issue;
`(b) the testimony is based on sufficient facts or data;
`(c) the testimony is the product of reliable principles and methods; and
`(d) the expert has reliably applied the principles and methods to the
`facts of the case.
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`Fed. R. Evid. 702.
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`The Supreme Court has interpreted this rule as imposing a “gatekeeping role” upon district
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`court judges, tasking them with “ensuring that an expert’s testimony both rests on a reliable
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`foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597
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`(1993). “The reliability prong mandates that expert opinions be grounded in the methods and
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`procedures of science and . . . be more than unsupported speculation or subjective belief.” Johnson v.
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`Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (internal quotation marks omitted). “The relevance
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`prong requires the proponent to demonstrate that the expert’s reasoning or methodology can be
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`properly applied to the facts in issue.” Id. (internal quotation marks omitted). The burden on the
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`proponent of the expert testimony is only to prove, by a preponderance of the evidence, that the
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`testimony is reliable; they need not prove the expert’s testimony is correct. Id.
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`The Daubert standard requires courts “to make certain that an expert, whether basing
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`testimony upon professional studies or personal experience, employs in the courtroom the same
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`level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire
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`Co. v. Carmichael, 526 U.S. 137, 152 (1999). The Daubert inquiry “‘is not intended to serve as a
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`replacement for the adversary system.’” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002)
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`(quoting Fed. R. Evid. 702 advisory committee’s note to 2000 amendment). Accordingly, “a trial
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`court must take care not to transform a Daubert hearing into a trial on the merits.” Id. In interpreting
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`Daubert, courts in this jurisdiction use a three-factor framework for determining whether expert
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`evidence is admissible. Proponents of expert testimony must demonstrate that “(1) the expert is
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`qualified; (2) the evidence is relevant to the suit; and (3) the evidence is reliable.” Bonnet-Pritchett v.
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`Washington Cnty., 2022 WL 3082522, at *1 (W.D. Tex. June 16, 2022).
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`III. DISCUSSION
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`A. Dr. Theron Bowman
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`1. Dr. Bowman’s Background and Testimony
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`The Court begins with Park’s objections to Dr. Theron Bowman’s expert testimony. (Dkts.
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`314, 317, 416). Dr. Bowman has over 39 years of policing experience, including 34 years as a police
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`officer, 14 years as Chief of Police of Arlington, Texas, five years as the Director of Public Safety
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`and Deputy City Manager of the City of Arlington, Texas, and 25 years as a police practices expert.
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`(Bowman Report, Dkt. 334-2, ¶¶ 1, 4–6). In these roles, Dr. Bowman gained significant on-the-
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`ground experience in policing and traffic enforcement, including evaluating and responding to
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`motor vehicle actions and traffic scenarios. He served as a police officer and a patrol officer—roles
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`that required him to respond to calls for service, conduct traffic enforcement activities, and
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`recognize traffic and motor vehicle-related criminal violations. (See id. ¶ 17; see also Bowman Dep.,
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`Dkt. 337, Ex. 1, at 15:25–16:1, 131:15–132:16). Dr. Bowman also was a police supervisor, during
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`which time he supervised patrol officers who conducted traffic enforcement activity and managed
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`events on freeways that involved the movement of traffic. (Bowman Report, Dkt. 334-2, ¶ 17; see also
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`Bowman Dep., Dkt. 337, Ex. 1, at 16:1–4). During his long tenure as a police practice expert, Dr.
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`Bowman has reviewed “several hundreds, if not thousands of police departments and police cases . .
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`. involving traffic movement [and] traffic enforcement” and assessed “hundreds of in-car camera
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`videos.” (Bowman Dep., Dkt. 337, Ex. 1, at 15:21–24, 51:18–52:1). Further, Dr. Bowman has taught
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`policing and police administration at five colleges and universities. (Bowman Report, Dkt. 334-2, ¶
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`3). Dr. Bowman has a Ph.D. in public and urban administration, and has graduated from the FBI
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`National Academy, the FBI Executive Institute, and the Senior Management Institute for Police. (Id.
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`¶ 2).
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`Dr. Bowman was retained to review and analyze video recordings and deposition testimony
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`to evaluate driving behavior and identify traffic violations and criminal infractions potentially
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`committed by drivers participating in the Incident, as well as how these drivers may have affected
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`driving conditions on I-35 that day. (Id. ¶¶ 20, 21, 25, 28). In completing his analysis, Dr. Bowman
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`reviewed 53 videos, 13 depositions, as well as other reports, photographs, maps, and articles. (Id. ¶¶
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`23, 24, Ex. B). He states that he created a detailed spreadsheet, which tracked 35 vehicles he
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`identified in his review, denoted identifying information of those vehicles, and logged the physical
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`location of those vehicles when they were observable in a video source. (Id. ¶ 26, 27, Ex. C). Dr.
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`Bowman also created a labeling system of the “13 positions relative to the bus’s location on the
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`roadway where Trump Train members tended to position their vehicles”; described the effect of the
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`particular vehicle configurations on the bus and its movements; and used the identified labeling
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`scheme throughout his report to identify vehicles’ locations throughout the Incident. (Id., Exs. D, E;
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`see, e.g., ¶¶ 46–48, 54–57)
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`Dr. Bowman assessed the video footage using his experience in police practices to examine
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`driving behaviors and determine if the videos showed instances of traffic violations or otherwise
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`dangerous driving conduct. (Id. ¶ 25). Dr. Bowman also determined whether specific vehicle
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`movements were “random” or “coordinated” according to set definitions. (See id. ¶¶ 28, 130; see also
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`Bowman Dep., Dkt. 337, Ex. 1, at 170: 21–25). Throughout the report, Dr. Bowman cites to specific
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`videos and timestamps to substantiate his findings.
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`In his report, Bowman concludes, among other things, that:
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`(i) former Defendants Hannah Ceh and Kyle Kruger, Defendant
`Eliazar Cisneros, Defendants Joeylynn and Robert Mesaros, and
`Defendant Dolores Park engaged in a Trump Train “action” on
`October 30, 2020 alongside many other participants,
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`(ii) they participated in both random and coordinated vehicle
`movements that violated Texas motor vehicle driving safety and Texas
`criminal laws,
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`(iii) the conduct of Trump Train participants posed a serious danger to
`the Bus, Biden Campaign Staffer A, who was driving in a separate
`vehicle, and other members of the motoring public who were exposed
`to the Trump Train’s aggressive driving actions, [and]
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`(iv) Trump Train vehicle movements and activities caused other
`motorists to alter their driving in ways that created additional peril to
`the Bus and other motorists in the proximity of Trump Train
`participants[.]
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`(Bowman Report, Dkt. 334-2, ¶ 130).
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`2. Dr. Bowman’s Testimony is Admissible.
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`Park concedes that Dr. Bowman’s testimony is relevant but challenges his qualifications and
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`the reliability of his testimony. Specifically, Park argues that (1) Dr. Bowman is not qualified as an
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`expert in traffic or highway safety because his qualifications are limited to police practices; (2) Dr.
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`Bowman’s testimony is unreliable because it is not based on the video evidence and deposition
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`testimony; (3) Dr. Bowman’s opinion that Defendants committed violated Texas traffic laws and the
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`Texas Penal Code is an improper legal conclusion; and (4) Dr. Bowman’s testimony should be
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`excluded under Federal Rule of Evidence 403 because it is misleading and more prejudicial than
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`probative. (See Objs., Dkt. 314, at 1, 6, 9–10). The Court disagrees.
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`First, Dr. Bowman is qualified to offer an expert opinion on the driving behavior of the
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`“Trump Train” vehicles, its impact on the bus, and traffic safety on the road that day. To be
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`qualified under Rule 702 and Daubert, an expert must “possess a higher degree of knowledge, skill,
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`experience, training, or education than an ordinary person.” Lance v. City of San Antonio, 2023 WL
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`8696340, at *2 (W.D. Tex. Nov. 1, 2023); see also Fed. R. Evid. 702. Dr. Bowman has extensive
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`experience in highway safety from his time as an on-the-ground police officer, patrol officer, police
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`supervisor, and a police practices expert and professor. He specifically has extensive experience in
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`analyzing traffic enforcement cases and in-car camera videos—experience that is uniquely suited to
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`the issues in this case. Park argues that Dr. Bowman does not have “scientific or technological
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`training in highway or roadway safety.” (Objs., Dkt. 314, at 2). But Dr. Bowman does not need
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`scientific or technological training in highway safety to be qualified in this case. He clearly has a
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`“higher degree of knowledge, skill, experience, training, [and] education than an ordinary person”
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`when it comes to evaluating traffic and motor vehicle-related criminal infractions. See Lance, 2023
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`WL 8696340, at *2 (finding that expert was “certainly qualified to testify about police best practices”
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`where he was a former police officer and a tenured professor on police regulation). The Court finds
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`he is qualified to give his expert opinion.
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`Second, Park objects that Dr. Bowman’s opinion is unreliable because his testimony is not
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`based on sufficient facts or data, nor is his testimony the product of reliable methods. (See Objs.,
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`Dkt. 314, at 6). Park argues that Dr. Bowman’s methodology is faulty because he did not provide
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`“calculations, did not test his opinions, failed to seek peer review, and did not consider alternative
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`explanations.” (Id. at 8). Park also points to certain pieces of evidence that contradict Dr. Bowman’s
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`conclusions that Park engaged in dangerous driving or that her driving impacted the bus’s
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`movement. (See id. 2–9). She argues that Dr. Bowman “ignore[d] what is captured on video and
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`disregards or ignores relevant deposition testimony.” (Id. at 7).
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`Case 1:21-cv-00565-RP Document 473 Filed 08/12/24 Page 8 of 19
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`The Court disagrees. Dr. Bowman’s testimony is the result of a systematic methodology
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`through which he reviewed, tracked, and analyzed 53 videos. His report contains a chart with
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`identifying information on the 35 vehicles he identified as taking part in the Incident. His report also
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`contains specific citations to substantiate his assertions, either citing specific deposition testimony or
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`timestamps in specific videos. Park’s argument that Dr. Bowman “shows none of his work” is not
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`supported by the record. Park’s protestation that Dr. Bowman has not provided calculations or
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`engaged in peer review on his report is also misguided. The Daubert factors’ reference to “hard
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`science” methodology is not applicable in every case. Kumho Tire, 526 U.S. at 150. The relevant
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`inquiry is whether the expert “employs in the courtroom the same level of intellectual rigor that
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`characterizes the practice of an expert in the relevant field.” Id. at 152. Courts have expressly
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`acknowledged that law enforcement testimony “is not the type of testimony that is readily subject to
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`peer review.” Carr v. Montgomery Cnty., 2015 WL 5838862, at *7 (S.D. Tex. Oct. 7, 2015). In fact, an
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`expert may “draw a conclusion from a set of observations based on extensive and specialized
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`experience.” Pipitone, 288 F.3d at 247. Here, Dr. Bowman relies on his extensive personal
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`experiences in law enforcement, and there is no indication that he fails to employ the same level of
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`rigor as other law enforcement officers.
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`As for Park’s assertion that Dr. Bowman ignored key evidence in reaching his conclusions,
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`whether an expert sufficiently considered all available evidence “goes to the weight, not
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`admissibility, of his opinion testimony.” See Orthoflex, Inc. v. ThermoTek, Inc., 986 F. Supp. 2d 776, 802
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`(N.D. Tex. 2013) (citing Daubert, 509 U.S. at 596). The specific questions that Park raises regarding
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`the strength of Dr. Bowman’s conclusions are better suited for cross-examination, not exclusion. See
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`Pipitone, 288 F.3d at 250 (“[A]s Daubert makes clear, vigorous cross-examination, presentation of
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`contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate
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`means of attacking shaky but admissible evidence.”) (cleaned up). The Court finds that Dr.
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`Bowman’s testimony is reliable both because it is the product of reliable methodology and because it
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`is based on sufficient facts and data.
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`Third, Park objects that Dr. Bowman should not be allowed to testify about Defendants’
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`traffic violations and “reckless driving” on the grounds that this testimony would be an improper
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`legal conclusion. (Objs., Dkt. 314, at 9). In general, while expert testimony may “embrace[] an
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`ultimate issue,” Fed. R. Evid. 704, experts may not instruct the jury on the law governing the claims
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`in a case, see Askanase v. Fatjo, 130 F.3d 657, 673 (5th Cir. 1997). However, the Fifth Circuit has
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`observed that experts “may testify as to legal matters when those matters involve questions of fact.”
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`Id. at 672. And an expert “witness may illuminate ancillary issues of law not within the province of the
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`jury.” Wal-Mart Stores, Inc. v. Qore, Inc., 2009 WL 305687, at *2 (N.D. Miss. Feb. 3, 2009) (emphasis
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`added). Here, Dr. Bowman is not offering any conclusions on the law governing this case. Plaintiffs
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`are not bringing claims against Defendants for violating traffic or criminal laws. Rather, Plaintiffs are
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`bringing claims for conspiracy and civil assault, and Dr. Bowman’s testimony does not opine on the
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`ultimate issues of whether Defendants conspired or committed assault. Because his testimony in no
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`way “tell[s] the jury what result to reach,” his testimony is within the scope of proper expert opinion.
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`But see Owen v. Kerr-McGee Corp., 698 F.2d 236, 239 (5th Cir. 1983) (holding that trial court acted
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`properly by sustaining objection to expert legal opinion going to the “ultimate issue” of the case).
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`Last, Park objects that Dr. Bowman’s opinion is misleading and more prejudicial than
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`probative and thus should be excluded under Rule 403. Under Federal Rule of Evidence 403,
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`relevant evidence may be excluded if its probative value is substantially outweighed by undue
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`prejudice or its tendency to mislead or confuse the issues. Park argues that she would be prejudiced
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`by Dr. Bowman making his conclusions “using the full weight of his past in law enforcement.”
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`(Objs., Dkt. 314, at 10). She also argues that Dr. Bowman’s testimony on whether Defendants
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`committed traffic violations will confuse the jury such that they may conflate a traffic violation with
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`a violation of the KKK Act or liability for civil conspiracy or assault. (Park Reply, Dkt. 353, at 8).
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`The Court disagrees with both arguments. Dr. Bowman’s testimony has significant probative
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`value. To succeed on their KKK Act claim, Plaintiffs will have to prove that Defendants’ actions
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`during the Incident were threatening or intimidating. As for their state law claims, Plaintiffs will have
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`to prove that Defendants engaged in an unlawful conspiracy—such as a conspiracy to accomplish
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`tortious conduct—and, for the assault claim, that Defendants caused bodily injury to Plaintiffs or
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`threatened Plaintiffs with imminent bodily injury. See MVS Int’l Corp. v. Int’l Advert. Sols., LLC, 545
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`S.W.3d 180, 196 (Tex. App.—El Paso 2017, no pet.) (citing elements of civil conspiracy); Loaisiga v.
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`Cerda, 379 S.W.3d 248, 256 (Tex. 2012) (citing elements of civil assault). Although a violation of the
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`Texas Transportation Code or the Texas Criminal Code does not conclusively demonstrate
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`threatening or intimidating behavior, evidence of such violations could aid the jury in determining
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`whether Defendants’ driving threatened or intimidated Plaintiffs. Thus, Dr. Bowman’s testimony is
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`highly relevant to the key issues in the case. On the other hand, the fact that this evidence may hurt
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`Defendants’ case does not mean that the evidence is prejudicial—never mind unfairly prejudicial. See
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`Graef v. Chem. Leaman Corp., 106 F.3d 112, 118 (5th Cir. 1997) (“Evidence is not prejudicial merely
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`because admitting it may sway the jury against a party.”). Nor is Dr. Bowman’s testimony prejudicial
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`because of his law enforcement background. Indeed, his law enforcement background is what
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`qualifies him to be an expert witness in this case. The fact that Dr. Bowman may be too convincing
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`or compelling to a jury is not a reason to exclude his testimony.
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`Last, the Court does not find that Dr. Bowman’s testimony would confuse the jury into
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`conflating traffic violations with the substantive claims in this case.2 The Court will provide detailed
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`2 Park cites Nat’l Coal. on Black Civic Participation v. Wohl, 661 F. Supp. 3d 78 (S.D.N.Y. 2023), in support of her
`argument that the jury will conflate a traffic violation with a violation of the laws at issue in this case. (Park
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`instructions to the jury about the elements of the three claims in this case and how to consider
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`expert testimony. The parties will have sufficient opportunity to offer argument as to how to draft
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`those instructions, and the Court is confident that after being given those instructions, the jury will
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`be able to find the difference between traffic violations and liability for conspiracy and assault.
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`Therefore, the Court does not find that the probative value of Dr. Bowman’s testimony is
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`substantially outweighed by undue prejudice or potential jury confusion.
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`In sum, the Court finds that Dr. Bowman should be allowed to proffer his expert testimony.
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`He is qualified from his significant experience in law enforcement. His expert report is the result of a
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`reliable methodology based on personal experience and is sufficiently supported by the record.
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`Further, his testimony does not contain improper legal conclusions, nor should it be excluded under
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`Rule 403. Accordingly, the Court overrules Park’s objections to Dr. Bowman’s expert testimony.
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`B. Dr. Paul Dorothy
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`1. Dr. Dorothy’s Background, Research, and Testimony
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`Next, Plaintiffs move to exclude Dr. Paul Dorothy, Park’s rebuttal expert witness on the
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`quality and impact of Park’s driving during the Incident. (Dkts. 313, 316). Dr. Paul Dorothy has a
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`Ph.D. in civil engineering and has worked as a civil engineer with a focus on transportation.
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`(Dorothy CV, Dkt. 313-1). He currently serves as a technical consultant on a number of areas
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`including, inter alia, “highway design, pavement design/analysis, maintenance of traffic, work zone
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`Reply, Dkt. 353, at 10). At issue in NCBC were robocalls containing false information that were made for the
`purpose of preventing recipients from voting by mail. 661 F. Supp. 3d 78, at 90. Plaintiffs argued that the
`robocalls were sent through threats and intimidation in violation of the KKK Act, 42 U.S.C. § 1985(3). Id.
`The Court excluded expert testimony that would have stated that the robocalls were not intimidating to
`voters in part because the proposed expert based his testimony on a New York law that defined intimidation
`in a way different than the KKK Act. Id. at 103–104. The Court found that the expert’s application of the
`New York law definition of intimidation would confuse the jury when called upon to decide intimidation
`under the KKK Act. Id. No similar issue exists in this case. The traffic violations and violations of the Texas
`Criminal Code that Dr. Bowman would testify about in this case do not contain overlapping definitions of
`intimidation—or other legal elements—that would confuse a jury.
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`safety, roadway and roadside safety, [and] traffic engineering . . . .” (Id.). Dr. Dorothy worked as a
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`research associate at Michigan State University, focused on “arterial design and operation, freeway
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`interchange design and operation, simulation modeling, crash analysis, truck safety, truck driver
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`training, and speed limits.” (Id.). He taught courses focused on “engineering economics, roadway
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`design, and simulation modeling.” (Id.). Dr. Dorothy also has a certification in traffic crash
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`reconstruction, has been published in professional journals and manuals in the areas of traffic
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`analysis and highway safety, and has led hundreds of safety studies focused on the crash experiences
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`of individual roadway elements. (See Resp. Mot. Exclude, Dkt. 341, at 2–3).
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`Dr. Dorothy was retained by Park to rebut the expert testimony of Dr. Bowman. (Id. at 6).
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`Dr. Dorothy was designated “to investigate the interaction between Ms. Park and her vehicle and the
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`Biden-Harris campaign bus that occurred on [I-35] as the bus traveled between San Antonio and
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`Austin, Texas, on October 30, 2020.” (Dorothy Report, Dkt. 313-1, at 3). In sum, Dr. Dorothy’s
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`report consists of eleven pages from executive summary through his analysis: three pages on the
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`executive summary and procedures of the report, four pages summarizing deposition testimony
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`reviewed, one-and-a-half pages stating excerpts from the Texas Driver’s Handbook, a one-page
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`timeline of the events from his perspective, and two pages of his own analysis. (See id.).
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`Dr. Dorothy states that he utilized two guidelines from the ASTM (formerly known as the
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`American Society for Testing Materials) in his analysis: ASTM E678-07 (13), Standard Practice for
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`Evaluation of Scientific or Technical Data, and ASTM E620-18, Standard Practice for Reporting
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`Opinions of Scientific or Technical Experts. (Id. at 3). He reviewed the following materials in
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`preparing his report: Plaintiff’s first amended complaint, the Fifth Circuit’s order on Park’s petition
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`for a writ of mandamus, Dr. Bowman’s report, and deposition testimony of Park and third-party
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`Sarah Hill. (Id. at 5). Dr. Dorothy also states that he reviewed “multiple videos,” though the report
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`only identifies one specific video. (Id. at 5, 9). Dr. Dorothy’s analysis relies exclusively on the Texas
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`Case 1:21-cv-00565-RP Document 473 Filed 08/12/24 Page 13 of 19
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`Driver Handbook (the “Handbook”), which he asserts “establishes the minimum knowledge of the
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`rules of the road that a driver should possess in order to operate a motor vehicle upon the public
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`roadways.” (Id. at 9–13). Dr. Dorothy states that “the provided evidence, relevant references, and
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`Dr. Dorothy’s education, knowledge, and expertise provides the basis for” his opinion. (Id. at 3).
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`
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`Dr. Dorothy concludes, inter alia, that: (1) “The vehicle maneuvers that Ms. Park performs in
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`proximity to the bus are performed in a smooth and reasonable manner”; (2) “The maneuvers
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`performed by Ms. Park do not appear to be in coordination with any other vehicles occupying the
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`roadway”; (3) “At no point does Ms. Park’s vehicle box in the bus”; (4) “Ms. Park exhibited none of
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`the signs of an aggressive driver identified by the [Handbook]”; and (5) “Ms. Park drove her vehicle in
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`a reasonable manner that did not conflict with any of the vehicles traveling in her vicinity.” (Id. at
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`11–12).
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`2. Dr. Dorothy’s Testimony is Inadmissible.
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`
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`Plaintiffs move to exclude Dr. Dorothy’s testimony on several grounds. First, they argue that
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`Dr. Dorothy’s expert report is not a rebuttal report because it was not offered “solely to contradict
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`or rebut evidence on the same subject matter.” (Mot. Exclude, Dkt. 313, at 5 (citing Fed. R. Civ. P.
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`26(a)(2)(D)(ii))). Instead, Plaintiffs argue that Dr. Dorothy’s report is an affirmative expert opinion
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`that should be excluded because it is untimely under the scheduling order in this case. (Id.). Second,
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`Plaintiffs argue that the report should be excluded because it purports to rebut a theory of the case
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`that Plaintiffs do not assert. (Id. at 7–9). Dr. Dorothy’s report focuses primarily on the short window
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`of time where Park was driving near the bus because that is the only time period that Dr. Dorothy
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`believed relevant to Plaintiffs’ claims. (See id.; see also Dorothy Report, Dkt. 313-1, at 11–13).
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`Plaintiffs argue that because Dr. Dorothy did not analyze Park’s conduct at other times during the
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`Incident, his analysis is not relevant to this case and not helpful to the jury. (See id. at 9).
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`Case 1:21-cv-00565-RP Document 473 Filed 08/12/24 Page 14 of 19
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`Last, Plaintiffs argue that Dr. Dorothy’s report should be excluded as unreliable. Specifically,
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`Plaintiffs argue that: (1) Dr. Dorothy, as a civil engineer, is not qualified as an expert on individuals’
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`driving or unsafe driving; (2) Dr. Dorothy’s report is not based on sufficient facts and data because
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`it does not disclose the video material he reviewed and fails to consider key evidence; (3) Dr.
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`Dorothy’s opinions are not the product of reliable principles and methods because the ASTM
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`standards he cites are too general to provide guidance in this case and he does not provide authority
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`for his proposition that the Handbook “establishes the minimum knowledge of the rules of the road”;
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`and (4) Dr. Dorothy has not reliably applied his methodology to the facts of the case because he
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`does not apply the ASTM standards he purports to utilize and his report ignores provisions of the
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`Handbook that Park violated. (Id. at 10–20). The Court agrees and finds that Dr. Dorothy’s testimony
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`is unreliable and should be excluded for several reasons.3
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`First, Dr. Dorothy is not qualified to give an expert opinion on the quality of individual
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`driving. Dr. Dorothy is a civil engineer who has spent his career analyzing how humans interact with
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`infrastructure—specifically, highway infrastructure. In the past, he has given expert opinions on
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`highway structural design issues that may have led to traffic problems or specific traffic incidents.
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`See, e.g., Report of Paul Dorothy, Wagner v. Fedex Freight Inc., No. 513CV01564, 2014 WL 10534390
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`(W.D. La. Mar. 25, 2014). However, this case does not concern the interaction between drivers and
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`highway infrastructure—it concerns the interactions of various individual drivers, the Biden-Harris
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`campaign bus, and other motorists who were driving on I-35 on October 30, 2020. Although Dr.
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`Dorothy is an accomplished engineer, his knowledge of how highway design affects traffic does not
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`qualify him to opine on individual driving safety. And nowhere in his report does Dr. Dorothy
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`3 Because the Court finds that Dr. Dorothy’s testimony should be excluded as unreliable, the Court does not
`reach Plaintiffs’ arguments concerning whether Dr. Dorothy’s report should be excluded as an untimely
`affirmative expert report or that the report should be excluded because it purports to rebut a theory of the
`case that Plaintiffs do not assert.
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`Case 1:21-cv-00565-RP Document 473 Filed 08/12/24 Page 15 of 19
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`explain how his engineering expertise is relevant to this case. Accordingly, Dr. Dorothy’s
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`qualifications—while impressive—are not “sufficiently related to the issues and evidence” in this
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`case such that his proposed testimony will be probative. See United States v. Wen Chyu Liu, 716 F.3d
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`159, 167 (5th Cir. 2013) (internal quotation marks omitted); see also Macy v. Whirlpool Corp., 613 F.
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`App’x 340, 344 (5th Cir. 2015) (striking expert opinion in case