The parents of Kevin Ward Junior have filed paperwork showing a Federal Court Judge in Utica that their lawsuit against retired NASCAR Tony Stewart should proceed.

The racer’s legal team asked the judge late last month to dismiss claims of negligence, wrongful death, and pain and suffering prior to the death of the 20-year old at Canandaigua Motorsports Park in August 2014.

Lawyers have submitted hundreds of pages of testimony from other drivers at that race, track officials, own accident reconstruction team that counters the one Stewart hired and the full deposition of Kevin Ward Senior.

“We wanted justice for our son after not getting it criminally,” Ward Senior tells lawyers.

While Stewart was racing around Ward that night the 20-year olds car spun out and believing it was Stewart fault, under caution, Ward got out of his car.

It appears from video taken that night Ward Junior walks down the track towards Stewart waving his arms angrily.

Ward Senior says the Stewart purposely forced his car up the track toward his son and misjudged it, hitting and killing him.

Asked by Stewart’s attorney Elizabeth Timme, “How do you know that Tony Stewart was not trying to avoid Junior” and Ward Senior responds, “Because he moved up the track and gunned his engine”.

The driver right behind Stewart, Jessica Zemken, an ex-girlfriend of Stewart testifies that she didn’t see Stewart swerve as he got close to Ward Junior during that caution lap.

“I saw him go to the right up the embankment, closer to Kevin, and I saw him hit the gas…I don’t know what he was thinking or what was going through his mind. I just saw what I saw.”

The engineering report from Gordon Engineering in Henrietta New York, prepared for the Ward family, concludes the way Stewart applied the throttle and steered the car caused him to drift sideways up the track where it hit and killed Kevin Ward Junior.

The Wards do admit that blood draws detected THC in their son’s blood but deny that he inhaled or ingested marijuana on the night of the incident and deny the levels of THC found were sufficient to cause impairment during that race.

Race promoter Jeremie Corcoran testified about talking with Stewart after the incident and says the racer was “very sad and was crying”.

A hearing is scheduled for later this month to consider dismissing the case.