However, that does not mean that section 2 would not be useful in proving duty and breach under the "reasonable man" standard: Union Pacific may present evidence that Winecup failed to act as a reasonable dam owner by failing to perform work necessary to safeguard life and property, as required by this statute. at 3. IT IS FURTHER ORDERED that Union Pacific's third motion in limine to facilitate efficient management of exhibits and testimony (ECF No. Id. 111) is DENIED. Winecup opposes the motion, arguing that it is permitted to argue and offer evidence that they are either not negligent or that another party is completely negligent. iv. 2:12-cv-01727-APG-NJK, 2014 WL 12646048, at *2 (D. Nev. May 28, 2014). Winecup motions the Court exclude the opinions and testimony of Union Pacific's hydrology expert, Daryoush Razavian, regarding the washout at mile post 670.030. IT IS FURTHER ORDERED that the clerk of the court shall close this case. at 44:19-45:1), inappropriate backup settings (Id. Gallo v. Union Pacific R.R. As part of the agreement, Defendant deposited a million dollars of earnest money in escrow. SEE ORDER FOR DETAILS. Union Pacific now seeks to bar Winecup and Rogers from presenting testimony that contradicts his answers to these same questions from his deposition. Johnson v. Dunnahoe, Case No. Date of service: 03/16/2021. Union Pacific motions the Court to exclude both Winecup's contributory negligence defense and Godwin's expert opinions that relate to this defense. Union Pacific motions the Court to bar Winecup from offering evidence of the Oroville Dam spillway failure and the weather and flood conditions that occurred in February 2017 in California and western Nevada. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . ECF No. 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. Accordingly, the Court grants Union Pacific's eighteenth motion in limine as it relates to the cited email and denies it without prejudice as it relates to the subject as a whole. The ranch, in 2016, was for sale again. The Court finds that Winecup has had more than enough time to consider this opinion and consult with its own expert on the subject such that it has not been prejudiced by Union Pacific's failure to disclose the opinion in Razavian's expert report. Read More . Specifically, the accountings of Plaintiff's ranch are pertinent to whether Plaintiff's interpretation of the contract amounts to an unenforceable penalty. Again, Winecup opposes, arguing that its supplemental disclosure was timely and sufficient under Federal Rule of Civil Procedure 26(a)(2)(C). 175-1. Additionally, the Court finds that Union Pacific's request that evidence of weather and flood conditions in watersheds other than in the "relevant one," with no definition of "relevant," is overly broad and the Court cannot make a ruling on that basis. Thitchener, 192 P.3d at 255. . On October 15, 2018, the parties exchanged initial disclosures of expert witnesses: the plaintiff disclosed three experts with reports, and five experts without reports, and defendant disclosed two experts with reports. ROBERT C. JONES United States District Judge ORDER Defendant moves for sanctions against Plaintiff alleging that its agents spoliated valuable electronically stored information (ESI). 168 at 2. . "Legal duties imposed on railroads by the common law fall within the scope of these broad phrases." Nor has Union Pacific pointed to anything in the record to support that the State Engineer has considered legal action against Winecup under this statute for a violation due to abandonment of the Dake. 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. Make your practice more effective and efficient with Casetexts legal research suite. Id. 80.) 34 Ex. 141-2 7-8. Whether an Act of God caused 23 Mile dam's failure and subsequent flooding and damage to Union Pacific's railroad tracks is an issue of fact for the jury. 3:17-CV-00163-RCJ-WGC (D. Nev. Jul. Union Pacific's thirteenth motion in limine to bar evidence or argument related to an "Act of God" defense (ECF No. For clarity, the Court address the parties' competing motions for exclusion together here. 170. No other issues will be entertained without leave of the Court. 134. Owners Russell Wilkins and Martin Wunderlich had divided the ranch in 1945. Lindon will be permitted to disagree with Razavian's conclusions just as Razavian will be permitted to disagree with Lindon's. That means, under Nevada law, punitive damages proceedings are bifurcated. R. CIV. Union Pacific Railroad Company v. Winecup Ranch, LLC et al, Elko Broadband Ltd. v. Haidermota BNR, Lawyers and Counsel with Offices in Islamadad, Islamic Republic of Pakistan et al, Vincent G. Dimaggio v. Jacqueline L. Stoever. NRS 42.005(1). Upon remand, we instruct the Chief Judge of the District of Nevada to assign this case to a different judge, Full title:WINECUP GAMBLE, INC., Plaintiff-Appellant, v. GORDON RANCH LP, Court:UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. Id. During the deposition of Winecup's designated Rule 30(b)(6) witness, James Rogers, he testified that he "did not know" the answers to several of Union Pacific's questions. Cases involving other real property matters not classified elsewhere, (#6) The Mediation Questionnaire for this case was filed on 07/29/2020. Defendant rejected the property and demanded a return of its earnest money arguing (1) that the amendment did not change the original contract provision that placed the risk of loss on Plaintiff's shoulders and (2) that Plaintiff's interpretation of the contract provision is not a liquidated damages clause but an unenforceable penalty clause as five million dollars was not an accurate prediction of Plaintiff's damages. In Union Pacific's second motion in limine, it further asserts that Lindon incorrectly opines that no floodwater from the 23 Mile dam failure reached mile post 670.03 when it was washed out. 7125918, at *24 (D. Nev. Dec. 4,, Full title:UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Plaintiff, v, Court:UNITED STATES DISTRICT COURT DISTRICT OF NEVADA. The Court generally instructs the jury preliminarily on issues related to trial procedure, the judge's duties and role, and the jurors' role and responsibilities in a civil case. Id. P. 26(a)(2)(B)(i). The Court does not presently address the request for attorney's fees. [21-15415] (AD) [Entered: 03/16/2021 06:44 PM], Docket(#2) Filed (ECF) Appellant Winecup Gamble, Inc. ECF No. Id. 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. IT IS FURTHER ORDERED that Union Pacific's fifteenth motion in limine to bar one paragraph in an email referencing contract truck driver incidents (ECF No. [11769971] (BLS) [Entered: 07/28/2020 05:05 PM], Docket(#2) Filed (ECF) Appellant Winecup Gamble, Inc. C at 6.) Rather, Union Pacific argues that its expert's rerouting analysis was more correct than Godwin's opinion based on these considerations. Id. Contact. Winecup does not dispute that some of Nevada's dam statutes and regulations apply to its 23 Mile and Dake dams; however, it argues that a blanket ruling that it can't argue that any of these regulations or statutes do not apply is overbroad and contrary to a plain reading of many of the sections. Winecup's fourth motion in limine requests the Court exclude Union Pacific's claim of punitive damages. [11769734] [20-16411] (Jordan, David) [Entered: 07/28/2020 03:34 PM], Docket(#7) MEDIATION ORDER FILED: This case is RELEASED from the Mediation Program. Union Pacific argues that Winecup should be precluded from arguing before the jury that any of Nevada's dam statutes and regulationsNevada Revised Statutes ("NRS") 535.005 et seq. Date of service: 07/29/2020. While ultimately whether to award punitive damages is a question for the jury, the district court must first make a "threshold determination that a defendant's conduct is subject to this form of civil punishment." at 45, 50. Federal Rule of Civil Procedure 37(c)(1) provides that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness . Lindon created a hydrological model that simulates the February 2017 flood using the Hydrologic Modeling System created by the Hydrologic Engineering Center within the U.S. Army Corps of Engineers (known as "HEC-HMS"). Winecup motions the Court to exclude Union Pacific from arguing or presenting evidence that NAC 535.240 applies to the 23 Mile or Dake dams. Union Pacific's twentieth motion in limine to permit Union Pacific's witnesses to testify by video (ECF No. Transcript due 09/21/2020. The Court recognizes that "[i]t is time-consuming when counsel circulate exhibits among the jurors, and it disrupts the examination of witnesses, except where the physical qualities of an object are themselves relevant." In the court application, the franchisees are . Given these facts, a jury could reasonably find that a failure to complete safety measures as directed by the DWR over approximately 20 years constituted conscious disregard. The parties timely responded. 2016)) (emphasis provided by Snapp). Id. (Id.) Id. Following the Nevada Supreme Court in Thitchener, as a matter of law, a plaintiff is not entitled to pursue punitive damages on negligence claims. ), In February 2017, after executing the amendment and before the closing date, substantial flooding damaged the property. Winecup did not undertake a program for investigation of the hydraulic adequacy of 23 Mile dam with respect to flood and seeping under a full hydraulic head, admittedly a safety concern, as noted in the 2003 inspection report under long term actions (3 years). Here, both parties have retained their own experts, and as discussed below, all are qualified. Alamo Airways, Inc. v. Benum, 374 P.2d 684, 686 (Nev. 1962). Transcript ordered by 08/21/2020. Union Pacific provides that it does not intend to proffer any evidence related to non-party Paul Fireman. Close to I-80. Id. winecup gamble ranch llc. 2-4. The State Engineer is also authorized to inspect all dams and order dam owners to make modifications and alterations necessary for safety, which presumably is based on the hazard classification of the dam. Id. A at 14.) ECF No. However, Mr. Worden performed most of the negotiations for Plaintiff in reaching the agreement and amendment generating numerous emails and text messages with Mr. Fireman and others that allegedly no longer exist as well as other lost ESI. Id. 122) is granted in part and denied in part. 108.) Id. The lead plaintiff in the lawsuit, Montreal resident Qing Wang, lost $11,720 to enrolment fees charged by C.S.T. See Daubert, 509 U.S at 596 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."). . FED. ECF No. In 1996, the inspection report provided that the spillway appeared undersized. However, the Court agrees with Winecup that whether the email is admissible is a different question from whether evidence or argument regarding the preservation of the dam for pike is admissible. If you do not agree with these terms, then do not use our website and/or services. 1993) (finding that because the parties retained their own qualified experts, the appointment of a neutral expert was "not likely to enlighten or enhance the ability of the Court to determine the pending issue."). Despite Mr. Worden's prominent role with Plaintiff and with this deal in particular, Mr. Worden has not produced any ESI from his devices to Defendant. ECF No. Union Pacific's late disclosure regarding Razavian's opinion on the washout at mile post 670.03, while untimely, is harmless and Razavian's opinions on the subject are admissible. Additionally, the Court finds because the juror binders are unnecessary and impracticable, there is no need to pre-admit evidence for such binders. Story continues below advertisement. . 141 at 6. Accordingly, Union Pacific's sixteenth motion is denied without prejudice and the Court reserves ruling on whether the terminology is either irrelevant, unfairly prejudicial or overly technical such that an expert is needed to testify, based on the context in which it is presented at trial. 3:17-CV-00477 | 2017-08-10, U.S. District Courts | Other | The Court has "broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial," which includes "the power to exclude or admit expert testimony, and to exclude testimony of witnesses whose use at trial is in bad faith or would unfairly prejudice an opposing party." Appellant Winecup Gamble, Inc. opening brief due 10/30/2020. WINECUP GAMBLE, INC., Plaintiff-Appellant, v. GORDON RANCH LP, Defendant-Appellee. Again, the Court agrees with Winecup: the Court cannot make a ruling on whether judicial notice is proper without sufficient information. LARRY R. HICKS UNITED STATES DISTRICT JUDGE. These two actsmodification and abandonmentconstitute the "construction, reconstruction, or alterations" contemplated in NRS 535.010. Accordingly, the Court denies Union Pacific's seventh motion in limine. 195. WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, LP, a Texas limited partnership, Defendant. In response, Union Pacific moves in its nineteenth motion in limine to preclude these three witnesses from offering expert testimony because of the late disclosure. 164. 127). Banks ex rel Banks v. Sunrise Hosp., 102 P.3d 52, 67 (Nev. 2004). However, pursuant to Nevada law, no information related to the financials of the defendant is permitted prior to the jury making a determination that punitive damages are warranted. 120-2 at 5 ("HEC-HMS and HEC-RAS are probably the most extensively applied water-related modeling systems in the world. ROBERT C. JONES United States District Judge. iii. See ECF No. Continued monitoring of the seepage area is noted in both the 2012 and 2016 reports. Moore et al., Moore's Federal Practice 30.25[3] (3d ed. 640 were here. Union Pacific's first motion in limine to exclude meteorological opinions of Matthew Lindon and to appoint a neutral expert (ECF No. 154. This short-term action was again noted in the 2016 inspection report which would indicate that Winecup had failed to provide these plans for 20 years. WINECUP GAMBLE, INC., Plaintiff-Appellee, v. GORDON RANCH LP, Defendant-Appellant. [12029509] (JBS) [Entered: 03/09/2021 01:23 PM]. Winecup concedes that the Nevada Department of Water Resources classified the 23 Mile dam as a low hazard dam and the Dake dam as a significant hazard dam. 190. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA. prescribes a regulation or issues an order covering the subject matter of the State requirement." unless the failure was substantially justified or is harmless." Again, whether a technique is better or worse than another, or whether the expert made a computational error, should be left to cross-examination and presentation of contrary evidence; it is not appropriate to exclude such expert testimony.
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