Shreck Motion

Comes now Plaintiff, by and through his attorney, D.J. Banovitz, Esq. and respectfully submits this Motion pursuant to Shreck and CRE 702 motion to Preclude the Testimony and Opinions of Defense Expert Ben T Railsback and states as follows:

C.R.C.P. 121 Certification

Pursuant to C.R.C.P. 121 s. 1-15(a) undersigned counsel hereby certifies that he has conferred with counsel for Precision Tube Technology, L.P. and Maverick Tube Corporation (Defendants) who are opposed to the relief requested herein.


This is an engineering malpractice action in which Plaintiff seeks damages serious life threatening injuries when he was struck on the head while observing an inherently dangerous pipe burst test conducted by the Defendants’ agent, apparent agent, or employee, Gary McClelland. Plaintiff’s injuries including but not limited to, a depressed skull fracture requiring neurosurgery, right frontal epidural hematoma, closed head injury, chip fracture to C3 vertebrae, and chipped teeth. The Plaintiff’s permanent injuries include significant pain, cognitive deficits, and disfigurement.

This Court on October 1, 2007 entered an Order which required Plaintiff to file a certificate of review pursuant to C.R.S. 13-20-602. This Court determined as a matter of law that the appropriate duty that Gary McClelland owed Plaintiff was the standard of care of an engineer conducting burst tests. This was the appropriate function of this Court.

Plaintiff relied on this Court’s determination. Plaintiff filed his certificate of review on November 14, 2007. Plaintiff timely disclosed the opinions of his expert witness and professional engineer Carl Finocchiaro, M.S., P.E. of Ponderosa Associates Ltd. His report, included opinions that Mr. McClelland failed to meet the appropriate standard of care for an engineer in this case.

Defendants submitted the report of professional engineer Ben T. Railsback on May 7, 2008. Defendants endorsed Mr. Railsback notwithstanding the fact that he did not draft an expert report which opines on the appropriate standard of care that should have been used in conducting the burst test that grievously injured the Plaintiff. Even had Mr. Railsback opined on the standard of care, he is not qualified to do so.

The opinions Mr. Railsback offers do not satisfy the requirements of Shreck and Rule 702 of the Colorado Rules of Evidence and therefore must be precluded.


Mr. Railsback is a professional engineer, PE, retained by Defendants. His Rule 26 report is attached hereto as Exhibit A.

Plaintiff took the deposition of Mr. Railsback on June 13, 2008. In that deposition, Plaintiff discussed Mr. Railsback’s background, qualifications, and basis for his opinions. An excerpt of the deposition is attached hereto as Exhibit B.

In People v. Shreck, 22 P.3d 68 (Colo. 2001), the Colorado Supreme Court adopted a flexible approach to fulfill the need for preliminary inquiry into the relevance and reliability of expert testimony. The Court held that “the rules of evidence, particularly, CRE 702 and CRE 403 represent a better standard that the Frye general acceptance test “because their flexibility is consistent with a liberal approach that considers a wide range of issues” Shreck, 22 P.3d at 77.

Mr. Railsback should be precluded from testifying in this matter because he has a nearly complete lack of background in engineering or performing a reconstruction of a burst test. He may be qualified as an auto accident reconstructionist or some other area of engineering but not to opine on the relevant matters in this case.

His only experience with pressure testing, not burst testing as in this case, was during an undergraduate internship. There he worked for a company making refrigerant pumps and compressors. His role was to make sure that the pumps were pressurizing properly and holding pressure. See Exhibit B, p.7, l. 19 – p. 8, l. 8. His only professional experience with pressure testing of any kind since completing his degrees was a tangential consulting role with other engineers at Knott Laboratories, his employer, certifying a brewing tank for Golden City Brewery. Exhibit B, p. 8, l. 12-23; p. 9, l. 16 – 22.

This is the extent of his professional experience.

Q Did you ever do any other pressure tests

or burst tests of any kind on any other projects

since you have been out professionally?

A No.

Railsback Deposition, p. 10, l. 3-6.

The main text, reference, manual, or learned treatise that Mr. Railsback consulted in order to gain a scientific background on burst testing is a general reference or study guide used for the professional engineering exam. Mr. Railsback conceded that this reference manual for the professional engineering exam is neither comprehensive nor exhaustive with regard to burst testing. Exhibit B p.12, l. 6-25. An engineer relying on this material as the main reference or scientific basis for expert opinions and analysis in a malpractice case is simply not qualified. Similarly, a lawyer practicing real estate law would not be qualified to opine as an expert in a securities malpractice case on the basis of having once in his professional career consulting on an SEC filing and reviewing BarBri materials.

In addition, Mr. Railsback couldn’t even recall if the reference material he consulted, the study manual for the professional engineering exam, even discusses burst testing. Exhibit B, p. 14, l. 1-3. In fact, he didn’t consult any reference material that specifically referenced burst testing:

Q What other reference materials regarding

burst testing specifically did you consult or look

at or review or utilize in conducting your analysis

in this case?

A I’m not sure that I consulted any that

specifically reference burst testing.

Railsback Deposition p.14, l. 4-9.

Colorado Rule of Evidence 702 states:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

Based upon Mr. Railsback’s near total lack of experience his expert report and opinions lack a scientific foundation and are inherently unreliable. He does not posses that which would qualify him to offer expert opinions pursuant to CRE 702. He has no basis to even approach coming to a scientifically valid opinion. Defendants’ expert, Ben T. Railsback should be precluded from testifying in this matter because he is not an expert and does not possess the requisite knowledge or background concerning burst testing.

The Colorado Supreme Court in Shreck was clear that an expert witness must be appropriately qualified in order to give expert testimony. Shreck, 22, P.3d at 28-29. Here, by his own sworn testimony, he is not an expert in burst testing. He does not have the work background, experience, and training to render expert opinions in this case. He did not consult or rely on any treatise, manual, or text that he can recall that provides a scientific basis for the appropriate standards and practices to conduct a burst test. Accordingly, Mr. Railsback should be precluded under Shreck from testifying regarding the burst test at issue in this case in any regard.

WHEREFORE, Plaintiff respectfully requests an Order finding that Mr. Railsback’s opinions in this mater are inadmissible under Shreck and CRE 702.