161. Date of service: 07/28/2020. 8, 2020). 127) is denied without prejudice. 160-4 at 6. See ECF No. 1980) (internal citations omitted). 2d 844, 846 (N.D. Ohio 2004). Union Pacific's motion in limine to amend the Pretrial Order (ECF No. Alternatively, even if the regulation did preempt the state common law standard, the federal standard would apply and not preclude the defense itself. FED. Zubulake, 229 F.R.D. 111 at 16. The parties have submitted a total of 27 motions in limine. Appellant Winecup Gamble, Inc. opening brief due 05/07/2021. 141-2 7-8. In 1996, the inspection report provided that the spillway appeared undersized. As the ranch's manager, Rogers offered Winecup-Gamble as a test site for the researchers. While it argues that Razavian's use of a topographical quadrangle map does not provide enough detail to map the flooding in the area (ECF No. Therefore, while the email itself is not hearsay, the at-issue statements contained within it are, and an applicable hearsay exception is needed for them to be admissible. A at 14.) Northeast corner of Nevada bordering Utah. ECF No. ECF No. B, 22:14-21.) P. 37(e). Union Pacific filed its original complaint on August 10, 2017, against Winecup Gamble, Winecup Ranch, LLC, and Paul Fireman. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. . 135) is DENIED in part and GRANTED in part. The record supports that Winecup had policies and procedures for monitoring and inspecting the dams, including the water level, inflow, and operational controls. ECF No. at 46:19-22), or some combination of these factors. ECF Nos. The Court's "inquiry into admissibility is a flexible one," in which the Court acts only as a gatekeeper, not a factfinder. For 25 years, Lindon worked at the Utah Department of Natural Resources, Division of Water Rights, Dam Safety Section, in part, creating "hydrological models to simulate hypothetical storms and floods and re-create actual events, such as rain on snowpack events, that resulted in flooding and dam failures." To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . Id. A Test Site for How to Monitor Success. The case status is Pending - Other Pending. 3.) 125) is GRANTED in part and DENIED in part, in accordance with this Order. Union Pacific cites an email from Bill Nisbet to James Rogers, in which he states: It is unclear whether the parties are referring to the Federal or State agency. The briefing schedule previously set by the court remains in effect. 3:17-CV-00477 | 2017-08-10, U.S. District Courts | Property | 89. 154. 107 Ex. 34 Ex. 156. 120-1. Under Federal Rule of Evidence 705, "[u]nless the court orders otherwise, an expert may state an opinionand give the reasons for itwithout first testifying to the underlying facts or data. Thitchener, 192 P.3d at 255. 141 at 20-21. See ECF No. ECF No. (emphasis added) While defendant's purported compliance with FAA regulations and maintenance protocols is, , No. Appellee Gordon Ranch LP answering brief due 07/21/2021. 111-7 (Union Pacific's hydrology expert declared that the HEC-HMS is an acceptable method to calculate runoff). Under Federal Rule of Civil Procedure 32(a)(8), the deposition from an earlier action "may be used in a later action involving the same subject matter between the same parties." IT IS FURTHER ORDERED that Winecup's fourth motion in limine to exclude evidence and argument that Union Pacific is entitled to punitive damages (ECF No. at 44:19-45:1), inappropriate backup settings (Id. R. CIV. 9. See Daubert, 509 U.S. at 596. ii. Mason v. Fakhimi, 865 P.2d 333, 335 (Nev. 1993) (citing Haromy v. Sawyer, 654 P.2d 1022, 1023 (Nev. 1982). UNITED STATES DISTRICT COURT DISTRICT OF NEVADA. /// ///. Continued monitoring of the seepage area is noted in both the 2012 and 2016 reports. Id. Zubulake v. UBS Warburg LLC, 229 F.R.D. The Court will however leave open the ability for parties to prepare jury binders solely for evidence that has been admitted during trial for the jurors to take with them into the jury room for deliberations if the parties prefer that over the electronic exhibits. 160-3 at 44. Accordingly, the Court denies Union Pacific's requested exclusion. IT IS FURTHER ORDERED that Union Pacific's tenth motion in limine requesting that the Court instruct the jury before trial about certain laws that apply to Nevada dam owners (ECF No. at 432. IT IS FURTHER ORDERED that Union Pacific's second motion in limine to exclude hydrological opinions of Matthew Lindon and to appoint a neutral expert (ECF No. 801(d)(2)(D). "); ECF No. Id. 706; Gorton v. Todd, 793 F.Supp.2d 1171, 1178 (E.D. Lindon and Razavian are both experts in their fields but have come to differing conclusions on soil saturation. ECF Nos. 123. at 2-3. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. This District's courtrooms are fully equipped with an electronic exhibit display system that allows each juror to view exhibits on their own personal screen. However, "[n]othing in NRS 41.141 prohibits a party defendant from attempting to establish that either no negligence occurred or that the entire responsibility for a plaintiff's injuries rests with nonparties[.]" It's as wide and wild and complicated a landscape as there is in today's West. 111 & 112. FED. After the sale fell through, both parties filed suit, arguing that they were entitled to Gordon Ranch's earnest money deposit pursuant to the terms of the parties' purchase and sale agreement, as amended by the parties in December 2016. Id. 112. Under Nevada law, punitive damages are available in a negligence suit "where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, express or implied[.]" We express no view regarding what attorneys' fees (if any) are reasonable in these circumstances, and leave that determination to the sound discretion of the district court. 34 Ex. FED. /// /// /// /// /// /// /// /// /// ///. United States v. Baker, 10 F.3d 1374, 1403 (9th Cir. Id. Third, some of the lost ESI is not attainable through additional discovery. 401. The Court took numerous safety precautions in the courtroom to ensure that all participants, attorneys, witnesses, and the Court staff, were protected, which included installing plexiglass partitions and implementing sanitization protocols. However, as applied and in context, the terms of the parties' amended agreement are ambiguous on the point of whether the contract was intended to shift the risk-of-loss scheme. 3:17-CV-00477 | 2017-08-10, U.S. District Courts | Other | to simulate and re-create hydrologic process of watershed systems." After reviewing this agreement and amendment, we disagree with the district court. Union Pacific does not provide the actual language of a proposed instruction, but simply lists the statutes and regulations upon which it proposes the parties craft preliminary instructions. i. 154. The amended order should include both the agreed amendments and those permitted by this Order. 111. 3:17-CV-00163-RCJ-WGC United States District Court, D. Nevada Signed Febr. The record indicates that this dam is also known as 21 Mile dam. Include Ninth Circuit case number in subject line. This is the subject of Winecup's first motion in limine; therefore, Union Pacific's arguments will be addressed below. See ECF No. 111) is DENIED. NRS 535.030, titled Inspection of dams by State Engineer; powers of State Engineer to protect life or property, provides: Section 2 provides that the owner is responsible for other maintenance that is necessary to safeguard life and property. 1:20-CV-00126 | 2020-09-29, U.S. District Courts | Personal Injury | Prior to the flood, there were earthen embankments and culverts at the washout locations. Fed. The Court will address each argument in turn. Lastly, Union Pacific motions the Court to amend the pretrial order (ECF No. [11762326] (JBS) [Entered: 07/22/2020 02:44 PM]. 108) to add information learned in the depositions of Paul Fireman and Clay Worden in Winecup Gamble, Inc. v. Gordon Ranch, LP, 3:17-cv-00163, related to Winecup's financial situation. 5. 131) is DENIED without prejudice. Some of the most important evidence for this inquiry would be the work papers of Plaintiff's accountant, Mr. Worden, who no longer has any ESI on his devices regarding this case. "The fact that the parties' experts have a divergence of opinion does not require the district court to appoint experts to aid in resolving such conflicts." Transcript ordered by 08/21/2020. See Wyeth v. Rowatt, 244 P.3d 765, 775 (Nev. 2010). (ECF No. (Id.) ECF No. Reading the parties' agreement as a whole, it is reasonably susceptible to more than one interpretation. [11785954] (BLS) [Entered: 08/12/2020 08:52 AM], Docket(#6) The Mediation Questionnaire for this case was filed on 07/29/2020. Again, the Court agrees with Winecup: the Court cannot make a ruling on whether judicial notice is proper without sufficient information. ECF No. 1:08-cv-000640-LJO-DLB PC, 2013 WL 396009, at *2 (E.D. Winecup's fifth motion in limine to exclude evidence and argument related to an Emergency Action Plan for the Dake dam (ECF No. 111-7 31-33. He has "significant experience with hydrometerorology, surface water hydrology, modeling, and dam safety hydrology." Previously, Joe was a Student at King Ranch and also held pos itions at Roaring Springs Ranch Club. (See, e.g., ECF No. Union Pacific argues that it had previously hired consulting experts early in the case who were eventually replaced by those now acting as testifying experts, which Winecup tried to learn about during discovery. LARRY R. HICKS UNITED STATES DISTRICT JUDGE. Given this pandemic, the Court will allow witnesses to appear by ZOOM video conferencing. However, the Court is hopeful that the parties can agree upon the admissibility of exhibits as much as reasonably practicable. The parties are encouraged and permitted to file a stipulation requesting pre-admittance of any uncontested exhibits. Winecup argues that Union Pacific should only be permitted to recover the cost of replacing the culverts and embankments rather than the bridge "upgrade," and that it does not intend to argue whether culverts or bridges should have been built. 125. at 43:14-25), upgrading to a new computer during this time (Id. IT IS THEREFORE ORDERED that Union Pacific's first motion in limine to exclude meteorological opinions of Matthew Lindon and to appoint a neutral expert (ECF No. Id. Union Pacific also requests that the Court permit and provide a means for jurors to take notes. R. EVID. Union Pacific argues that because Winecup was required under Nevada law to maintain the 23 Mile dam to withstand a 100-year flood event and the Dake dam to withstand a 1000-year flood event, the failure of the dams and the subsequent flooding could not be considered "abnormal" or free from "human assistance or influence" such that Winecup could prove the prima facia elements of the defense. Winecup objects to the presentation of exhibit binders arguing that doing so would require the court to rule on the admissibility of all contested exhibits prior to trial, and that given the number of exhibits, juror binders are "impractical, burdensome, and awkward." It also appears that the denial was not based on an assessment of the materials the parties had produced in connection with that motion, which materials may also be considered by the district court on remand. ECF No. at 48:8-13), and that he told his IT department to preserve the relevant ESI (Id. Research the case of Winecup Gamble, Inc. v. Gordon Ranch LP, from the D. Nevada, 03-16-2022. Additionally, Plaintiff has not produced any of Mr. Worden's accounting work papers, which is relevant to Defendant's case and covered by Defendant's subpoena. 157-2 at 66; 157-28. Mediation Questionnaire due on 03/16/2021. Rather, "proof of a deviation from an administrative regulation is only evidence of negligence; not negligence per se," and likewise, "proof of compliance with such a regulation" is not proof of due care, but simply evidence of such care. Next, Union Pacific argues that two of Godwin's opinion related to Winecup's contributory negligence defense should be excluded: (1) Godwin opines that based on his experience in railroad construction and design, that it is industry standard that railroads throughout the country use culverts large enough to handle flows associated with a 100-year storm; and (2) Godwin opines that the culverts in place before the flood were not large enough to withstand a 50-year storm. Union Pacific alleges that as a result of the dam's failure, water flowed downstream, in part, to the Dake Reservoir dam, and that the Dake then eroded and breached, causing flooding and ultimately washing out a significant portion of Union Pacific's railroad tracks. He declares that he has been "personally involved with rerouting for a Class 1 railroad approximately twelve times over the past six years." Therefore, the Court finds that under Nevada state law, Winecup is not permitted to offer evidence that a non-party is comparatively negligent. That is part of the adversarial processboth sides present their expert's opinions, challenging each other where they think the other erred, and then it is up to the jury to decide whom to believe. The Court will not appoint a neutral expert. The provinces allowed casino games as well as horse tracks, and video lottery terminals. In its second motion, though Union Pacific concedes that Lindon is qualified to opine on hydrology, it argues that his opinions should be excluded because his methodology and data were flawed. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . In the 2012 inspection report, it is noted that the spillway should be cleared of all debris and vegetation, however, in 2016, the inspection report provides that the spillway has lost its design capacity due to vegetation growing and earthen materials sluffing from the hillside. 4. Accordingly, the Court denies Union Pacific's twelfth motion in limine without prejudice and reserves the issue for trial. 111, 112, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 139, 175, 176 & 193), and 6 motions in limine filed by Winecup Gamble, Inc. ("Winecup") (ECF Nos. [11769734] [20-16411] (Jordan, David) [Entered: 07/28/2020 03:34 PM], Docket(#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. See order for instructions and details. 167. Winecup argues that Lindon is qualified to opine on both meteorological and hydrological issues, and that Union Pacific's arguments do not go toward the admissibility of Lindon's opinions, but only the weight, and amount to nothing more than a "battle of the experts." Union Pacific's twentieth motion in limine to permit Union Pacific's witnesses to testify by video (ECF No. Likewise, Union Pacific's other arguments go to the weight of his testimony, not admissibility, and are best left to vigorous cross examination. Date of service: 07/28/2020. Union Pacific provides that it does not intend to proffer any evidence related to non-party Paul Fireman. C 06-04435 CRB, 2007 WL 963422, at *1 (N.D. Cal. Winecup only argues that Fireman's deposition should be excluded as irrelevant and fails to make any showing that it will be substantially injured if the testimony is permitted. Id. 4. R. EVID. 139. We are so incredibly thankful that Patrick Bates and David Packer of Bates Land Consortium, Inc chose us to produce this mammoth of a marketing video. unless the failure was substantially justified or is harmless." 7. Finally, because Winecup has not "admitted" the facts as presented by Union Pacific, the Court will not permit Union Pacific to add the information to the "undisputed facts" section of the pretrial order. 157-24 at 4. The Court notes that it is open to hearing any other mutually agreeable alternative to the options suggested by the Court as this case proceeds. As discussed above, Razavian's opinion the subject was first disclosed during his February 2017 deposition. B. Why is this public record being published online? ON-SITE RAIL SPUR AND 2 LANDING STRIPS. 160-6 2. The State Engineer will assign all dams a hazard classification. wine cup ranch llc. 135. First, the Court agrees with Winecup that under Nevada law, a violation of an administrative regulation cannot form the basis of negligence per se because "it lacks the force and effect of a substantive legislative enactment." These facts are sufficient for the Court to draw an inference that Mr. Worden acted intentionally. ECF Nos. 129. Id. [12029509] (JBS) [Entered: 03/09/2021 01:23 PM]. P. 37 Advisory Committee Notes to the 2015 Amendment). ECF No. Second, Winecup argues that even if it does apply, it cannot have retroactive applicability. ECF No. Make your practice more effective and efficient with Casetexts legal research suite.
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