Transportation Engineering Expert Witness’ Opinion on Routine Commerce Deemed Reliable
Posted on February 14, 2025 by Expert Witness Profiler
This lawsuit arises out of Port Arthur’s decision to designate Sassine Avenue as a “no truck route.” Kirk Thomas (“Thomas”) and KT Trucking and Cattle, LLC (“KT Trucking”) (collectively, “Plaintiffs”) engaged in various agricultural and commercial activities on Thomas’ property, including a land farming operation and the management of his personal trucking business. As a result, large commercial vehicles frequently entered and exited the property. Plaintiffs asserted that the only safe way for these vehicles to access the property was via Sassine Avenue. However, Port Arthur’s designation prohibited large commercial vehicles from using the road.
On May 20, 2024, the City of Port Arthur, Texas (“Port Arthur”), and Flozelle Roberts (“Roberts”) (collectively, “Defendants”), designated John McInturff as a testifying expert, expecting him to support their position that Thomas’ use of Sassine Avenue did not constitute routine commerce.
In response, Plaintiffs filed a motion to exclude and/or limit the testimony of Defendants’ expert John McInturff. Thereafter, they submitted an amended motion to exclude and/or limit his testimony, wherein they attached exhibits they had omitted from the original filing.
Transportation Engineering Expert Witness
John McInturff is a civil engineer licensed in Louisiana and Texas. McInturff graduated with a Master of Engineering from Texas A&M University and has spent about 50 years, working specifically in highway, traffic, and transportation engineering. Currently, McInturff is a Principal Engineer at Kittelson, LLC, in College Station, Texas.
Discussion by the Court
Plaintiffs styled their objections to McInturff’s testimony as two distinct claims. First, Plaintiffs asserted that McInturff’s testimony should be excluded because it was so speculative that it constituted the ipse dixit of the expert. Second, Plaintiffs maintained that McInturff’s testimony should be excluded because “the analytical gap between the facts and McInturff’s opinion on whether hauling drilling mud is routine commerce is vast.”
McInturff’s Reliability
Plaintiffs did not challenge McInturff’s reliability under the Daubert factors. Instead, they maintained that his testimony lacked reliability because it was based on insufficient facts and data. Plaintiffs claimed that McInturff not only failed to link his opinion regarding the characterization of Thomas’ use of Sassine Avenue to his knowledge and expertise as a civil engineer but also relied on erroneous and unsupported facts to arrive at his conclusions.
McInturff’s Report
In this case, Plaintiffs challenged McInturff’s conclusion regarding the definition of “routine commerce” under Port Arthur Ordinance 106-41(b)(13). The relevant ordinance stated that Port Arthur cannot prohibit a commercial vehicle from using a street for “the purpose of going directly to or from any residential, commercial or industrial establishment abutting on such street for purposes of routine commerce.”
Regarding what constitutes “routine commerce”, his report stated that:
“Trucks traveling to/from the Thomas property are not using Sassine Avenue for routine commerce such as trips for pickup or deliver of goods or services; i.e., delivery of a refrigerator purchased by a homeowner for delivery to their
residence, FedEx/UPS deliveries, etc. Instead, the evidence provided to me suggests that the trucks are engaged in non-routine heavy hauling in connection with the disposal of drilling mud from discrete construction projects. The evidence further shows that these hauling activities included twenty-four hour operations involving repeated trips up and down Sassine Avenue from FM 365, which for purposes of traffic design and engineering, is also not routine commerce to be expected on a residential street like Sassine Avenue”.
McInturff Failed to Link his Opinion Regarding the Characterization of Thomas’ Use of Sassine Avenue to his knowledge and Expertise as a Civil Engineer
McInturff evaluates the use of Sassine Avenue from the perspective of a traffic design and engineering expert. Due to the residential nature of the area, McInturff opined that the routine commerce on Sassine Avenue is commerce that provides residential goods and services to that neighborhood.
From a traffic design perspective, McInturff’s report evaluates what constitutes “routine commerce” based on the type of street at issue, the surrounding area, and the type of commerce that street would be expected to withstand. Additionally, McInturff provides examples, stating that routine commerce on Sassine Avenue could include use of the road by package delivery services, such as FedEx or UPS. Since Sassine Avenue, as a residential road, was not designed to withstand repeated and long-term use by large commercial vehicles like the ones used in Thomas’ commercial endeavors, McInturff concluded that Sassine Avenue’s residential design combined with its unsuitability for use by large commercial vehicles demonstrated that Thomas’ commercial activity did not constitute routine commerce.
The Court held that Plaintiffs’ first contention fell flat because Defendants had set forth sufficient facts and data to bridge the alleged analytical gap between McInturff’s opinion and his expertise.
McInturff based his opinion on erroneous facts and data
Specifically, Plaintiffs asserted that McInturff did not base his opinion on “any information . . . other than his belief that the drilling mud is coming from discrete construction projects that sometimes include twenty-four-hour operations and involve repeated trips.” Plaintiffs then elaborated that there is no evidence that the drilling mud Thomas uses in his land farming operation comes from “discrete construction projects.” Rather, Plaintiffs maintained that the drilling mud results from laying pipelines and drilling for oil, practices that Plaintiffs contend are routine in Southeast Texas.
Plaintiffs contended that the repetitious nature of the trips demonstrated the routine nature of Thomas’ commercial activity.
Regardless of the mud’s origin, the parties agreed that Thomas commonly permits companies to dispose of drilling mud on his property as part of his land farming operation. The parties also agreed that large commercial vehicles are needed to haul drilling mud. In his report, McInturff did not highlight Plaintiffs’ hauling practices to establish that the mud resulted from discrete construction projects. Rather, McInturff discussed Thomas’ hauling practices to emphasize the inconsistency between Thomas’ use of Sassine Avenue and the common commercial activity in that area. In other words, the source of the drilling mud was inconsequential to McInturff’s opinion. The Court held that McInturff’s opinion that Thomas’ proposed use did not constitute “routine commerce” was sufficiently based on his knowledge of traffic engineering and design.
Held
While the Plaintiffs’ original motion to exclude the testimony of Defendants’ expert John McInturff was denied as moot, the Plaintiffs’ amended motion to exclude and/or limit the testimony of McInturff was denied by the Court.
Key Takeaway:
McInturff’s report reflected a thorough and methodical evaluation of the present case from the perspective of a civil engineer. McInturff explained why, based on his knowledge of traffic design and roadway engineering, he determined that Thomas’ proposed use of Sassine Avenue did not constitute routine commerce. McInturff relied on the design of the road, its residential designation, the relevant zoning ordinances, the residential nature of the surrounding area, and his knowledge of the germane traffic patterns and signals. Consequently, McInturff’s challenged testimony and his underlying opinion rely on the facts of the present case, the data provided, and his own expertise.
Please refer to the blog previously published about this case:
Case Details:
| Case Caption: | Thomas vs. City Of Port Arthur, Texas |
| Docket Number: | 1:23cv282 |
| Court: | United States District Court for the Eastern District of Texas |
| Order Date: | February 12, 2025 |
