167. 130) is DENIED without prejudice. . Godwin further testified that he had reviewed Union Pacific's rerouting costs and crew costs as provided, and the number of trains per day. Winecup argues that Union Pacific should be precluded from offering evidence of negligence per se because it cannot be based on administrative regulations and the one statute that it believes Union Pacific pleads under this theory, NRS 535.030, also fails. Plaintiff conducted a deposition of Mr. Worden subpoenaing all of his documents (including ESI) regarding discussions of the sale of ranch and amendments, the damage to the property, the repairs of the property, breakage of dams, and insurance information. 150. 175-1. Winecup further argues that Razavian fails to offer an opinion that floodwater from the 23 Mile dam caused the washout at mile post 670.03. ECF No. Mar. However, Winecup may argue that it is not negligent or that a non-party is solely responsible, and Winecup may proffer admissible evidence in support thereof. Finally, as an adjunct professor in Civil Engineering at the University of Utah, Lindon taught a graduate level course that included water management and hydrometeorology. 152) is GRANTED in part and denied in part. Accordingly, the Court denies Union Pacific's tenth motion in limine (ECF No. Date of service: 03/16/2021. Womack v. GEO Grp., Inc., No. SEND MQ: Yes. Union Pacific's eighteenth motion in limine to bar Winecup from offering evidence or argument about preserving the Dake dam for pike (ECF No. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA. 37, 89), to which Winecup has answered (ECF No. Cases involving other real property matters not classified elsewhere, (#6) The Mediation Questionnaire for this case was filed on 07/29/2020. Newberry v. Cty. IT IS FURTHER ORDERED that Union Pacific's eleventh motion in limine to bar Rule 702 opinions (A) generally, if not in expert reports, and (B) specifically, from Luke Opperman (ECF No. Appellant Winecup Gamble, Inc. opening brief due 10/30/2020. (citing Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 744 n.3 (1996)). 1. Moreover, Opperman, Holt, and Quaglieri are all listed in the parties' joint pre-trial order as witnesses that both Union Pacific and Winecup may call, and both parties are well aware of the proposed testimony of each witness. Moore-Brown v. City of North Las Vegas Police Dep't, Federal Rule of Civil Procedure 26(a)(2)(A), Federal Rule of Civil Procedure 26(a)(2)(C), Federal Rule of Civil Procedure 26(b)(4)(D), Rule 26 of the Federal Rules of Civil Procedure, Rule 705 of the Federal Rules of Evidence. 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. 2004); see Mizzoni v. Allison, 2018 WL 3203623 at*5 (D. Nev. 2018) (citing to Zubulake). See Shaw v. CitiMortgage, Inc., 201 F.Supp.3d 1222, 1264 (D. Nev. 2016) (the company's serious lack of practices, policies and procedures to deal with and explain the company's positions and actions supported the Court's punitive damage award). 15. 2014) (quoting Primiano, 598 F.3d at 564). Confidential submissions may include any information relevant to mediation of the case and settlement potential, including, but not limited to, settlement history, ongoing or potential settlement discussions, non-litigated party related issues, other pending actions, and timing considerations that may impact mediation efforts.[11771335]. [20-16411] (AD) [Entered: 07/28/2020 06:44 PM], (#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. While questions regarding estimations of the percentage overflow that came from 23 Mile dam verses from the floodwater in the Loray Wash due to the storm, and whether the Loray Wash had overtopped its banks without the addition of floodwater from 23 Mile dam go to the issue of causation, those are ultimately for the jury to decide and are different questions from whether Razavian offered an opinion that floodwater from 23 Mile dam caused the washout. ECF No. (NRS 532.120, 535.010), provides: Union Pacific argues that these standards apply to both dams: it applies to 23 Mile dam because Winecup illegally, without proper approval, modified the outlet pipes in 1996 and was supposed to investigate the hydraulic adequacy of the dam with respect to flooding; and it applies to Dake dam because Winecup improperly abandoned the dam without applying for and having a decommissioning plan approved. 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. [21-15415] (AD) [Entered: 03/16/2021 06:44 PM], (#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. 2:19-CV-00520 | 2019-07-23, U.S. District Courts | Personal Injury | The Court therefore denies Winecup's fifth motion in limine without prejudice and reserves ruling on such evidence until it can be adjudged in the context of trial. ECF No. The parties are encouraged and permitted to file a stipulation requesting pre-admittance of any uncontested exhibits. 155-5. "); ECF No. However, Union Pacific may qualify for punitive damages for its claims of trespass and nuisance. 111) and its second motion in limine to exclude hydrological opinions of Matthew Lindon and to appoint a neutral expert (ECF No. 134. 129) is denied without prejudice. ECF No. The Wine Cup headquarters are located on a long, lonely stretch of state highway just north of Wells, Nev., and the Gamble is farther southeast, near the one-bar town of Montello. 111-7 (Union Pacific's hydrology expert declared that the HEC-HMS is an acceptable method to calculate runoff). While, Mr. Worden claimed that, "I could have deleted those emails right after the conversation," (ECF No. And, "[u]nless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." In April 2018, the parties deposed Holt and Quaglieri, and in April 2019, the parties deposed Opperman. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. 1996) ("By attempting to evaluate the credibility of opposing experts and the persuasiveness of competing scientific studies, the district court conflated the questions of the admissibility of expert testimony and the weight appropriately to be accorded such testimony by a fact finder."). The Secretary of Transportation is given broad discretion to "prescribe regulations and issue orders for every area of railroad safety . Cal. 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. SEE ORDER FOR DETAILS. He has taken continuing education courses in hydro-meteorology, and has "operated the National Weather Service Station for Park City, Utah for the past 26 years, measuring and reporting temperatures, snowfall, snowpack and precipitation daily." 108 at 10. IT IS FURTHER ORDERED that Union Pacific's seventh motion in limine to bar Winecup's contributory negligence defense and Derek Godwin's contributory negligence opinion (ECF No. SEND MQ: Yes. R. Civ. Godwin opines that had Union Pacific rebuilt the earthen embankments and culverts, the cost of the track repair would have been substantially less than "upgrading" to steel bridgesonly $4.28 million as opposed to the $18.5 million claimed by Union Pacific. Date of service: 07/29/2020. Union Pacific's fourth motion in limine to pre-admit exhibits for use in juror binders (ECF No. See Ambrosini v. Labarraque, 101 F.3d 129, 141 (D.C. Cir. Id. Appellant's optional reply brief is due 21 days after service of the answering brief. It was first added to the regulatory schedule in 2003, along with the definitions in NAC 535.055, Inflow design flood, and NAC 535.080, probable maximum flood. Case Summary. Co. v. Winecup Ranch, LLC, Case No. at 432. Transcript due 09/21/2020. However, Winecup argues that they should be permitted to ask questions about any expert or employee hired by the plaintiff that was not "in anticipation of litigation or to prepare for trial." Winecup opposes the motion arguing that whether the storm that caused the dam's failure was a historic storm event is a question for the jury and therefore, Winecup should be permitted to offer evidence of the historic storm. The district court granted the motion for judgment on the pleadings, thus denying the motion for summary judgment without considering the merits of that motion; it also found that neither party was entitled to an award of attorneys' fees. Id. Questions about what facts are most relevant or reliable . 193) is granted in part and denied in part. ECF No. ECF No. But the expert may be required to disclose those facts or data on cross-examination." 133) is DENIED without prejudice. 120-1 at 5. 127) is DENIED. Gallo v. Union Pacific R.R. Date of service: 07/28/2020. Id. Accordingly, Union Pacific's first and second motions in limine are denied. The Judges overseeing this case are Robert C. Jones and Valerie P. Cooke. at 3. 130) is denied without prejudice. He claimed that Plaintiff orally instructed him to preserve his ESI, (Id. Union Pacific requests the Court bar Winecup from admitting a portion of an email from a Union Pacific employee that contains the profane reference, "Sandbagging S.O.B's," arguing that if the email is admitted, the offending language should be redacted because it is irrelevant, unfairly prejudicial, and inadmissible opinion evidence. Union Pacific requests that the Court order the parties to try to agree on (or submit competing) preliminary jury instructions relating to the statutes and regulations that apply to dam owners in Nevada. Judgment on the pleadings should not have been granted, because the ambiguity described above and the dispute over the parties' intent when they amended their agreement presents a disputed issue of material fact. [12077160] (AF) [Entered: 04/16/2021 11:36 AM], (#5) MEDIATION CONFERENCE RESCHEDULED - DIAL-IN Assessment Conference, 04/14/2021, 9:30 a.m. Pacific Time (originally scheduled on 03/31/2021). 120. The Court finds Lindon is a qualified expert in meteorology and hydrology, as it relates to his opinions in this specific case. ECF No. [11762326] (JBS) [Entered: 07/22/2020 02:44 PM]. 175-1. 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. While 23 Mile dam is classified as a low hazard dam, meaning it carries a "very low probability of causing a loss of human life;" and a "reasonable probability of causing little, if any, economic loss or disruption in a lifeline," that does not negate a dam owner's statutory mandate to perform "work necessary to maintenance and operation which will safeguard life and property." Such that there is virtually no chance of its being exceeded."). 160-3 at 77. (Id.) The firm also values strong cooperating relationships with reputable land brokers in the profession. (ECF No. Fifth, the ESI was deleted without the intent to deprive Defendant of evidence. 152) is granted in part and denied in part. 141 at 20-21. [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. Since, the Courts finds intentionality the harsher sanctions of Fed. Lastly, Union Pacific motions the Court to amend the pretrial order (ECF No. . Id. 1990). [11785954] (BLS) [Entered: 08/12/2020 08:52 AM], Docket(#6) The Mediation Questionnaire for this case was filed on 07/29/2020. Winecup's first motion in limine to exclude Union Pacific's expert Daryoush Razavian's testimony related to mile post 670.03 (ECF No. Public Records Policy. 5. 2002) (finding that when proper foundation for the authenticity of an employee's email has been laid, and the email was sent within the scope of employment, the email is admissible under Federal Rule of Evidence 801(d)(2)(D)). The Court notes Winecup raises such a specific argument in its second motion in liminewhether Winecup can argue that NAC 535.240 does not apply to its damswhich the Court addresses below. 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. Again, the Court agrees with Winecup: the Court cannot make a ruling on whether judicial notice is proper without sufficient information. ECF Nos. ECF Nos. "When experts serve as testifying witnesses, the discovery rules generally require the materials reviewed or generated by them to be disclosed, regardless of whether the experts actually rely on those materials as a basis for their opinions." CV-12-1524-PHX-SRB (LOA), 2013 WL 2422691, at *3 (D. Ariz. June 3, 2013) (citations and internal quotations omitted). ECF No. 2. Razavian declares that "[a]ccepted hydrological methodology requires a hydrologist to consider all of the above evidence in determining flow of flood water." Given the nature of the lost ESI, the Court finds that it must give the harshest sanction of a case dispositive ruling. ECF No. While this disclosure is technically untimely, it was harmless; therefore, the procedural failure does not provide a basis for exclusion under Rule 37. However, Plaintiff appealed, and the Ninth Circuit reversed and remanded holding that the intent of the parties was not clear as to whether they meant for the amendment to trump the original agreement's risk of loss language. 1:08-cv-000640-LJO-DLB PC, 2013 WL 396009, at *2 (E.D. Make your practice more effective and efficient with Casetexts legal research suite. Id. The Court finds that both arguments go not to Lindon's methodology, but to the data imputed. 2019), reassignment is appropriate to preserve the appearance of justice, see In re 3 Benvin, 791 F.3d 1096, 1104 (9th Cir. Tex. /// ///, ii. IT IS HEREBY ORDERED that Plaintiff's Motion for Sanctions (ECF NO. Mediation Questionnaire. Accordingly, the Union Pacific's fourth motion in limine to pre-admit exhibits for use in juror binders (ECF No. IT IS FURTHER ORDERED that Union Pacific's fourteenth motion in limine to bar evidence or argument about consulting experts (ECF No. Cnty. Confidential submissions may include any information relevant to mediation of the case and settlement potential, including, but not limited to, settlement history, ongoing or potential settlement discussions, non-litigated party related issues, other pending actions, and timing considerations that may impact mediation efforts.[11771335]. Union Pacific Railroad Company v. Winecup Ranch, LLC et al, Prime Healthcare Services - Reno, LLC v. Hometown Health Providers Insurance Company, Inc. et al, Elko Broadband Ltd. v. Haidermota BNR, Lawyers and Counsel with Offices in Islamadad, Islamic Republic of Pakistan et al. 151. Godwin testified at his deposition that he was familiar with what railroads need to consider when addressing rerouting, including which tracks were in service, crew variability, how many crews they have on standby, how many trains are running per day. 143) is DENIED. ), After remand, the parties reinitiated discovery. The Court finds that Lindon's opinions on both meteorology and hydrology are reliable. 111-7 31-33. Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. iv. The parties shall bear their own costs on appeal. R.R. Third, Plaintiff took reasonable steps to prevent the deletions. In the alternative, Defendant further requests that the Court prevent Plaintiff from relying on any evidence or testimony from Mr. Worden or give the jury an instruction that the deleted evidence is adverse to Plaintiff's claims and defenses. 111. The duty to preserve commenced at least by this date. Union Pacific rebuilt these areas with steel bridges instead of rebuilding the embankments and culverts. Specifically, Union Pacific requests that it be permitted to amend its witness list to include Fireman and Worden to testify via their respective depositions from Gordon Ranch, and add the information to the undisputed fact section of the Order. 4. 127) is denied without prejudice. At this junction, Union Pacific should have witnesses that can testify to the authenticity and admissibility of the at-issue exhibits; reopening discovery so that Union Pacific can serve Rule 36 requests is therefore, unnecessary. The parties agree that Nevada law governs the interpretation of their contract. P. 37(c)(1). While Lindon may not be a meteorologist by degree, he is clearly qualified to conduct the meteorological calculations and consider those calculations in reaching his expert opinion regarding the dam failure and subsequent flooding. 37, 89), to which Winecup has answered (ECF No. Union Pacific attacks Lindon's hydrology testimony, arguing that (1) Lindon misapplied the "gage stream technique" and (2) used the wrong infiltration data. Id. 112.) On or about February 8, 2017, the 23 Mile dam overtopped and breached in two locations. See order for instructions and details. 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. Id. 9. iii. Winecup's fourth motion in limine requests the Court exclude Union Pacific's claim of punitive damages. D.C. No. 6. "This general proposition should not be overstated, however, because it applies only where the purportedly conflicting evidence truly, and without good reason or explanation, is in conflict, i.e., where it cannot be deemed as clarifying or simply providing full context for the Rule 30(b)(6) deposition." Winecup opposes. Haystax: Posted 10/3/2016 21:32 (#5562551) Subject: Winecup-Gamble Ranch for sale: DV, NV: Thought you guys might like to see what one of the best ranches in the world looks . unless the failure was substantially justified or is harmless." Winecup Gamble, Inc v Gordon Ranch LP | 20-16411 - UniCourt 2015) (per curiam). Ins. Union Pacific's seventh motion in limine to bar Winecup's contributory negligence defense and Derek Godwin's contributory negligence opinion (ECF No. ECF No. For clarity, the Court address the parties' competing motions for exclusion together here. However, Plaintiff did nothing more than orally inform their chief negotiator and accountant to preserve the ESI, and Mr. Worden allowed his computer to be upgraded without backing up his information and did not suspend his company's aggressive deletion policy and backup settings to accommodate his duty to preserve evidence. Additionally, Union Pacific requests the Court appoint a neutral expert to be either a technical advisor to the Court or expert witness. at 43:14-25), upgrading to a new computer during this time (Id. Stephanie Hoit Lee & David N. Finley, Federal Motions in Limine 1:1 (2018). Additionally, Union Pacific does not object to Winecup providing jurors with their own binders. R. EVID. Here, there can be no dispute that the parties are not the same and the subject matter is differentthis is a negligence action while Gordon Ranch was a contract dispute. Winecup Gamble Ranch Location PO Box 249, Montello, Nevada, 89830, United States Description Industry Agriculture General Agriculture Discover more about Winecup Gamble Ranch Recent News About Erica Beck Scoops Intent Scoops about Winecup Gamble Ranch Generally, all relevant evidence is admissible. However, since the Court held its first jury trial in September, the numbers of infected individuals in Washoe County has increased significantly, and led District Court Chief Judge Du to implement General Order 2020-03, postponing all in-person jury trials until further notice. The Court agrees with Winecup. Documentary footage of life and work on the Gamble division of the Winecup Gamble Ranch, Montello, Nevada. As part of its holding, the Ninth Circuit noted that that the Court may consider parol evidence to resolve ambiguities in contractual language under Nevada law. ECF No. Additionally, in Mr. Fireman's deposition, he said that he spoke to Mr. Worden about the contract and amendment through personal meetings, telephone calls, text messages, and emails. [12048869] (BLS) [Entered: 03/22/2021 11:05 AM], (#2) Filed (ECF) Appellant Winecup Gamble, Inc. 133; 133-1. IT IS FURTHER ORDERED that Winecup's sixth motion in limine to exclude evidence and argument related to the financial condition of Winecup, Paul Fireman, and the sale of Winecup Gamble Ranch in 2019 (ECF No. Transcript due 09/21/2020. ECF No. Zubulake v. UBS Warburg LLC, 229 F.R.D. Ins. NAC 535.240 is the only place in Chapter 535 that explains, colloquially, that a significant hazard dam must withstand a 1000-year flood event and a low hazard dam must withstand a 100-year flood event. Id. ROBERT C. JONES United States District Judge ORDER Defendant moves for sanctions against Plaintiff alleging that its agents spoliated valuable electronically stored information (ESI). While these regulations do not provide the standard of care, evidence and argument related to NAC 532.240 may be presented to support a standard of care under the reasonable person standard. 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.
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