Stewart, Wards dispute testimony

Former driver, family of man killed both filed to dismiss expert information

While a federal judge is deciding whether to dismiss multiple claims in a wrongful death lawsuit against former NASCAR driver Tony Stewart, both parties have filed motions to dismiss expert testimony from the other side.

The parents of Kevin Ward Jr. filed a lawsuit Aug. 4, 2015, against Stewart, blaming him for the death of their son.

Stewart, 46, of Columbus, a three-time NASCAR champion, and Ward competed in an Empire Super Sprints race Aug. 9, 2014, at Canandaigua (New York) Motorsports Park, where Stewart’s car struck and killed Ward, who was 20 at the time.

The following month, a 23-person grand jury in Ontario County, New York, declined to indict Stewart on either of two charges: manslaughter in the second degree and criminally negligent homicide.

Kevin Ward Sr. and his wife, Pam Ward, claim that Stewart’s intent to drive toward and scare their son went awry and that he is liable. Stewart claims that Ward, who had marijuana in his system, created a dangerous situation that Stewart couldn’t avoid when Ward exited his car and walked toward Stewart’s car on the racetrack.

Ward’s parents are asking the court to exclude the testimony of Dr. Robert Furbee, a medical toxicology consultant hired by Stewart to analyze Ward’s autopsy and toxicology reports and provide an opinion, “because it will not help the jury decide any relevant issue in this case and because it is unreliable,” according to court records.

The Wards claim in the Nov. 1 motion that Furbee cannot link their son’s alleged impairment to a relevant act or omission in the case, so his opinions are irrelevant. They claim the risks of unfair prejudice or misleading and confusing the jury outweigh the value of Furbee’s opinions.

Furbee concluded that the amount of tetrahydrocannabinol (THC) — the primary mind-altering ingredient in marijuana — that was found in Ward’s blood system would have impaired Ward’s judgment, motor and cognitive skills at the time of his death, according to court documents.

Meanwhile, Stewart is asking that the testimony of Ward experts Martin E. Gordon and Richard M. Ziernicki, both of Gordon Engineering, be excluded because their “analysis and opinions do not meet the requirements of Federal Rule of Evidence 702,” according to court documents.

Rule 702 states that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify if:

Their specialized knowledge will help the understanding of evidence or determine a fact

The testimony is based on sufficient facts or data

The testimony is the product of reliable principles and methods

The expert has reliably applied the principles and methods to the facts of the case

Gordon and Ziernicki performed a forensic analysis of the accident and concluded that:

Stewart did not follow caution procedures by slowing down and driving low on the track, like other drivers did

Ward remained relatively stationary outside the path where six preceding cars passed, and he did not cause the impact

Stewart showed intentional disregard for Ward’s safety

Stewart steered toward Ward and applied the throttle, striking and killing him

Stewart’s cavalier and deliberate actions caused Stewart’s car to slide up the track and hit Ward

According to court documents, Stewart argues that Gordon’s and Ziernicki’s opinions are speculative and not based on scientific or specialized knowledge, nor based in fact, and should be excluded.

Judge David N. Hurd is expected to hear arguments on the motions to dismiss expert testimony from both parties at 10 a.m. Dec. 8 in U.S. District Court in Utica, New York.

Stewart has asked that claims of wrongful death and negligence, conscious pain and suffering, and terror be dismissed in the lawsuit filed by Ward’s parents. If Stewart’s request is granted, only an intentional/reckless conduct claim would remain.

On Oct. 27 in U.S. District Court in Utica, Hurd heard oral arguments from both parties regarding Stewart’s motion to dismiss some claims. Afterward, the judge said he would issue a lengthy ruling that was expected to take a few weeks to complete.

What's next

Judge David N. Hurd, of U.S. District Court in Utica, New York, will rule soon on a motion by Tony Stewart to dismiss some claims in a wrongful death lawsuit brought by the parents of Kevin Ward Jr.

Hurd will hear arguments on the motions to dismiss expert testimony from both parties at 10 a.m. Dec. 8 in U.S. District Court in Utica, New York.

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Kirk Johannesen is assistant managing editor of The Republic. He can be reached at johannesen@therepublic.com or (812) 379-5639.