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DATE FILED: May 25, 2023 12:13 PM
DISTRICT COURT, COUNTY OF ARAPAHOE, FILING ID: 2AA1CE8CAF787
STATE OF COLORADO CASE NUMBER: 2022CV31708
7325 South Potomac Street
Englewood, Colorado 80112
Plaintiff: JUAN SANCHEZ, an individual,
v.
Defendant: RAINS PRECISION MOTORSPORTS
Inc. d/b/a RAINS PRECISION
MOTORSPORTS L.L.C., a Colorado
corporation.
ATTORNEYS FOR PLAINTIFF:
Angela D. DeVine (#35966) ▲ FOR COURT USE ONLY ▲
Ciara N. Kimminau (#53932) ____________________________
S&D Law
1550 Wewatta Street, Second Floor Case No.: 2022CV031708
Denver, CO 80202
303-399-3000 Division: 204
devinea@s-d.com
ckimminau@s-d.com
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO STRIKE DEFENDANT’S
EXPERT WITNESS
Plaintiff Juan Sanchez, by his attorneys, S&D Law, respectfully files his Reply in Support
of Motion to Strike Defendant’s Expert Witness as follows:
1. In response to a motion that seeks to exclude witness testimony under C.R.C.P.
37(c)(1) for failure to identify any alleged expertise, any opinions to be expressed, or any bases
and reasons for those opinions as required by C.R.C.P. 26(A)(2)(B) and 16.1(k)(2), Defendant
provides authority regarding the relevant and reliable standards for expert testimony under C.R.E.
702. But Mr. Sanchez never argued that the proposed expert testimony was irrelevant or
unreliable—he does not have enough information to make either assessment. Rather, Mr. Sanchez
asks this Court to prevent Glen Rains, Jr. from offering any opinion testimony at trial because
Mr. Sanchez does not know what his opinions are. Other courts have barred Mr. Rains from
testifying as an expert for the same reasons. See, e.g., Braley v. Clint Romero Enterprises, Inc., El
Paso County District Court Case No. 2018CV32253, February 2, 2020 Order: Proposed Order Re:
Defendant’s Motion for Shrek Hearing to Preclude/Limit Testimony of Plaintiff’s Non-Retained
Experts.
2. To the extent Defendant addresses the actual subject matter of the Motion, it is
simply to claim that the Motion is “without merit” because it contends Defendants’ [sic] Amended
Initial C.R.C.P. 26(a)(2) Disclosures comply with C.R.C.P. 26(a)(2)(B)(II). See Response, p. 4.
Alternatively, Defendant claims Mr. Sanchez “has enough evidence” to intuit what Mr. Rains will
say at trial. See id. Neither statement demonstrates substantial justification for the failure to
provide information required by C.R.C.P. 26(A)(2)(B)(II) and 16.1(k)(2), nor does it establish that
the failure is harmless.1 The burden of establishing that the failure to disclose was either
substantially justified or harmless is on Defendant. See C.R.C.P. 37(c)(1); Todd v. Bear Valley
Village Apartments, 980 P.2d 973, 978 (Colo. 1999). Defendant provides no argument regarding
either standard.
3. Alternatively, in its response and a declaration attached to it, Defendant for the first
time identifies some of the opinions Mr. Rains intends to offer at trial:
a. “Mr. Rains will testify that all of the work completed by RPM on Plaintiff’s
truck was to enhance the performance of the truck”;
1
“Discovery obligations and the expert disclosure requirements of C.R.C.P. 26(a) are enforced by
the sanction mechanisms of C.R.C.P. 37. C.R.C.P. 37(c) provides for the preclusion of
nondisclosed evidence unless the non-disclosing party establishes that its failure to disclose was
either substantially justified or harmless.” See Todd Carlson v. Ferris, 58 P.3d 1055, 1058 (Colo.
App. 2022) (internal citations omitted).
2
b. “Mr. Rains is going to testify that the parts Plaintiff had RPM install on his
vehicle are high-performance modifications”;
c. “Mr. Rains will testify to the failure of the parts on Plaintiff’s vehicle after RMP
finished the upgrades, the repair of those parts, at no extra cost to Plaintiff, even
though those repairs were caused by Plaintiff’s own supplied failed
component”; and
d. “Mr. Rains will be providing expert testimony based on his experience in the
automotive industry as a shop owner and mechanic of the industry standards
that automotive shops do not cover their customer’s vehicles under their shop
insurance, but require customers to maintain insurance on their own vehicles
while in possession of the shop.”2
4. These descriptions provide little more detail than the recitation of topics included
in Defendants’ [sic] Amended Initial C.R.C.P. 26(a)(2) Disclosures, and still fail to identify any
“basis and reasons therefor.” See C.R.C.P. 26(a)(2)(B)(II)(a). These are not harmless omissions:
“It is fundamental that opportunity be had for full cross-examination, and this cannot be done
properly in many cases without resort to pretrial discovery, particularly when expert witnesses
are involved. . . Before an attorney can even hope to deal on cross-examination with an
unfavorable expert opinion he must have some idea of the bases of that opinion and the data relied
upon. If the attorney is required to await examination at trial to get this information, he often will
have too little time to recognize and expose vulnerable spots in the testimony.” See Smith v. Ford
2
Testimony regarding this issue of insurance is the subject of Plaintiff’s Motion in Limine
Regarding Insurance.
3
Motor Co., 626 F.2d 784, 794 (10th Cir. 1980). As a result, Defendant’s response does not cure
its original failure to comply with its disclosure obligations under C.R.C.P. 26(A)(2)(B) and
16.1(k)(2), and this Court should enter an Order preventing Mr. Rains from offering opinion
testimony at trial.
WHEREFORE, for the reasons stated herein, Plaintiff Juan Sanchez respectfully requests
that this Court enter an Order striking Defendant’s expert witness.
Dated this 25th day of May, 2023.
Respectfully submitted,
S&D LAW
By: /s/Angela D. DeVine
Angela D. DeVine
Ciara N. Kimminau
ATTORNEYS FOR PLAINTIFF JUAN SANCHEZ
CERTIFICATE OF SERVICE
I certify that on May 25, 2023, a true and correct copy of the foregoing PLAINTIFF’S
REPLY IN SUPPORT OF MOTION TO STRIKE DEFENDANT’S EXPERT WITNESS
was served via CCES upon the following:
Collin J. Earl
Ryan T. Earl
Brian E. Hefner
EARL & EARL, PLLC
1259 Lake Plaza Drive, Ste. 230
Colorado Springs, CO 80906
/s/Julie Kiltz
In accordance with C.R.C.P. 121 §1-26(9) a printed copy of this document with original signatures is being
maintained by the filing party and will be made available for inspection by other parties or the court upon request.
IQ5001
4
Preview
DATE FILED: May 25, 2023 12:13 PM DISTRICT COURT, COUNTY OF ARAPAHOE, FILING ID: 2AA1CE8CAF787 STATE OF COLORADO CASE NUMBER: 2022CV31708 7325 South Potomac Street Englewood, Colorado 80112 Plaintiff: JUAN SANCHEZ, an individual, v. Defendant: RAINS PRECISION MOTORSPORTS Inc. d/b/a RAINS PRECISION MOTORSPORTS L.L.C., a Colorado corporation. ATTORNEYS FOR PLAINTIFF: Angela D. DeVine (#35966) ▲ FOR COURT USE ONLY ▲ Ciara N. Kimminau (#53932) ____________________________ S&D Law 1550 Wewatta Street, Second Floor Case No.: 2022CV031708 Denver, CO 80202 303-399-3000 Division: 204 devinea@s-d.com ckimminau@s-d.com PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO STRIKE DEFENDANT’S EXPERT WITNESS Plaintiff Juan Sanchez, by his attorneys, S&D Law, respectfully files his Reply in Support of Motion to Strike Defendant’s Expert Witness as follows: 1. In response to a motion that seeks to exclude witness testimony under C.R.C.P. 37(c)(1) for failure to identify any alleged expertise, any opinions to be expressed, or any bases and reasons for those opinions as required by C.R.C.P. 26(A)(2)(B) and 16.1(k)(2), Defendant provides authority regarding the relevant and reliable standards for expert testimony under C.R.E. 702. But Mr. Sanchez never argued that the proposed expert testimony was irrelevant or unreliable—he does not have enough information to make either assessment. Rather, Mr. Sanchez asks this Court to prevent Glen Rains, Jr. from offering any opinion testimony at trial because Mr. Sanchez does not know what his opinions are. Other courts have barred Mr. Rains from testifying as an expert for the same reasons. See, e.g., Braley v. Clint Romero Enterprises, Inc., El Paso County District Court Case No. 2018CV32253, February 2, 2020 Order: Proposed Order Re: Defendant’s Motion for Shrek Hearing to Preclude/Limit Testimony of Plaintiff’s Non-Retained Experts. 2. To the extent Defendant addresses the actual subject matter of the Motion, it is simply to claim that the Motion is “without merit” because it contends Defendants’ [sic] Amended Initial C.R.C.P. 26(a)(2) Disclosures comply with C.R.C.P. 26(a)(2)(B)(II). See Response, p. 4. Alternatively, Defendant claims Mr. Sanchez “has enough evidence” to intuit what Mr. Rains will say at trial. See id. Neither statement demonstrates substantial justification for the failure to provide information required by C.R.C.P. 26(A)(2)(B)(II) and 16.1(k)(2), nor does it establish that the failure is harmless.1 The burden of establishing that the failure to disclose was either substantially justified or harmless is on Defendant. See C.R.C.P. 37(c)(1); Todd v. Bear Valley Village Apartments, 980 P.2d 973, 978 (Colo. 1999). Defendant provides no argument regarding either standard. 3. Alternatively, in its response and a declaration attached to it, Defendant for the first time identifies some of the opinions Mr. Rains intends to offer at trial: a. “Mr. Rains will testify that all of the work completed by RPM on Plaintiff’s truck was to enhance the performance of the truck”; 1 “Discovery obligations and the expert disclosure requirements of C.R.C.P. 26(a) are enforced by the sanction mechanisms of C.R.C.P. 37. C.R.C.P. 37(c) provides for the preclusion of nondisclosed evidence unless the non-disclosing party establishes that its failure to disclose was either substantially justified or harmless.” See Todd Carlson v. Ferris, 58 P.3d 1055, 1058 (Colo. App. 2022) (internal citations omitted). 2 b. “Mr. Rains is going to testify that the parts Plaintiff had RPM install on his vehicle are high-performance modifications”; c. “Mr. Rains will testify to the failure of the parts on Plaintiff’s vehicle after RMP finished the upgrades, the repair of those parts, at no extra cost to Plaintiff, even though those repairs were caused by Plaintiff’s own supplied failed component”; and d. “Mr. Rains will be providing expert testimony based on his experience in the automotive industry as a shop owner and mechanic of the industry standards that automotive shops do not cover their customer’s vehicles under their shop insurance, but require customers to maintain insurance on their own vehicles while in possession of the shop.”2 4. These descriptions provide little more detail than the recitation of topics included in Defendants’ [sic] Amended Initial C.R.C.P. 26(a)(2) Disclosures, and still fail to identify any “basis and reasons therefor.” See C.R.C.P. 26(a)(2)(B)(II)(a). These are not harmless omissions: “It is fundamental that opportunity be had for full cross-examination, and this cannot be done properly in many cases without resort to pretrial discovery, particularly when expert witnesses are involved. . . Before an attorney can even hope to deal on cross-examination with an unfavorable expert opinion he must have some idea of the bases of that opinion and the data relied upon. If the attorney is required to await examination at trial to get this information, he often will have too little time to recognize and expose vulnerable spots in the testimony.” See Smith v. Ford 2 Testimony regarding this issue of insurance is the subject of Plaintiff’s Motion in Limine Regarding Insurance. 3 Motor Co., 626 F.2d 784, 794 (10th Cir. 1980). As a result, Defendant’s response does not cure its original failure to comply with its disclosure obligations under C.R.C.P. 26(A)(2)(B) and 16.1(k)(2), and this Court should enter an Order preventing Mr. Rains from offering opinion testimony at trial. WHEREFORE, for the reasons stated herein, Plaintiff Juan Sanchez respectfully requests that this Court enter an Order striking Defendant’s expert witness. Dated this 25th day of May, 2023. Respectfully submitted, S&D LAW By: /s/Angela D. DeVine Angela D. DeVine Ciara N. Kimminau ATTORNEYS FOR PLAINTIFF JUAN SANCHEZ CERTIFICATE OF SERVICE I certify that on May 25, 2023, a true and correct copy of the foregoing PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO STRIKE DEFENDANT’S EXPERT WITNESS was served via CCES upon the following: Collin J. Earl Ryan T. Earl Brian E. Hefner EARL & EARL, PLLC 1259 Lake Plaza Drive, Ste. 230 Colorado Springs, CO 80906 /s/Julie Kiltz In accordance with C.R.C.P. 121 §1-26(9) a printed copy of this document with original signatures is being maintained by the filing party and will be made available for inspection by other parties or the court upon request. IQ5001 4