139) is denied. 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. 37, 89), to which Winecup has answered (ECF No. 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. 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. Union Pacific owns railroad track that runs through 23 Western states, a portion of which runs east/west across the Utah/Nevada state line and through Elko County, Nevada. 3. Additionally, Union Pacific requests the Court appoint a neutral expert to be either a technical advisor to the Court or expert witness. The Court agrees with Union Pacific that under Rule 26 of the Federal Rules of Civil Procedure, Winecup is prohibited from asking questions or offering evidence or argument about the plaintiff's consulting experts. 3:17-cv-00477-LRH-CLB (D. Nev. Dec. 4, 2020). See ECF No. Co. v. Mendelsohn, 552 U.S. 379, 384-87 (2008). He further provides that he has been working for Class 1 and shortline railroads since 2005, starting his own railroad engineering and construction observation company in 2013. It argues that alone is sufficient grounds for showing that it performed reasonable steps to preserve the ESIit is not. Winecup's second motion in limine to exclude evidence and argument that NAC section 535.240 applies to the 23 Mile and Dake dams (ECF No. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant settlement discussions. ECF No. Section 42.001(1) "plainly requires evidence that a defendant acted with a culpable state of mind," and the defendant's conduct "at a minimum, must exceed mere recklessness or gross negligence." ///. of San Bernardino, 750 F. App'x 534, 537 (9th Cir. ECF No. ECF No. 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. ///. 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. And while "[i]n some cases, it may be cost-effective for counsel simply to provide jurors with individual binders containing indexed copies of selected exhibits central to the presentation at trial," electronic display systems that show everyone in the courtroom the exhibit simultaneously likewise "significantly assist jury involvement and comprehension and expediate trial." As discussed in full below, the Court will permit Union Pacific to argue the issue of punitive damages. And the best part of all, documents in their CrowdSourced Library are FREE! ; ECF No. 157. See Tennison v. Circus Circus Enterprises, Inc., 244 F.3d 684, 690 (9th Cir. Id. 143) is denied. Again, Winecup opposes, arguing that its supplemental disclosure was timely and sufficient under Federal Rule of Civil Procedure 26(a)(2)(C). Contact. Ex. 111-7 31-33. 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."). Under Federal Rule of Evidence 702, a witness may be qualified as an expert based on his or her knowledge, skill, experience, training, or education. 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. The Court dismisses Plaintiff's complaint and enters judgment in favor of Defendant on its counterclaim. (ECF No. The Court agrees with Union Pacific that the email cited is hearsay that does not fall within Rule 803(20): whether a state or federal agency requested that the Dake dam be preserved for pike is not "general historical events important to" the Elko or Nevada community. "A motion in limine is used to preclude prejudicial or objectionable evidence before it is presented to the jury." 31). ), The Court ruled in favor of Defendant as a matter of law finding that the contract was unambiguous in its favor. 80 at 2. at 46:19-22), or some combination of these factors. 13. The provinces allowed casino games as well as horse tracks, and video lottery terminals. The State Engineer will assign all dams a hazard classification. Appellant's optional reply brief is due 21 days after service of the answering brief. Prior to the flood, there were earthen embankments and culverts at the washout locations. 150) is DENIED without prejudice. H at 1 (Privilege Log noting that Mr. Worden sent an email with the Bates Number "REV00000041" summarized as "Email re response to Margaret Ludewig" dated March 6, 2017.). The duty to preserve commenced at least by this date. It's about 100 miles from Elko, Nev . Co., 752 F.3d 807, 814 (9th Cir. 2018) (holding that the 2015 amendment to Rule 37(e) "foreclose[d] reliance on inherent authority" for sanctioning spoliation of ESI) (quoting Fed. Cnty. See Wyeth v. Rowatt, 244 P.3d 765, 775 (Nev. 2010). Union Pacific has presented no evidence or rule to support the Court's exclusion of any and all evidence or testimony on the issue. In Nevada, "[r]etroactivity is not favored," and courts generally interpret regulations to "only operate prospectively unless an intent to apply them retroactively is clearly manifested." 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. The optional reply brief is due 21 days from the date of service of the answering brief. Union Pacific motions the Court to bar Winecup from offering evidence or argument that the Fish & Game allegedly requested that the Dake dam be preserved for the pike they had put in it. 37, 89), to which Winecup has answered (ECF No. Defendant Winecup Gamble, Inc.'s ("Winecup") time to file a response to Union Pacific's ("Union Pacific") Motion for Clarification (ECF No. ECF No. 125) is GRANTED in part and DENIED in part, in accordance with this Order. Some are as large as 67,000 acres, adds Bates' associate David Packer. 6. ii. ECF No. 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. IT IS FURTHER ORDERED that Winecup's fifth motion in limine to exclude evidence and argument related to an Emergency Action Plan for the Dake Dam (ECF No. (emphasis added) While defendant's purported compliance with FAA regulations and maintenance protocols is, , No. 2. iv. FED. 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. ECF No. While Union Pacific argues that these witnesses may not be qualified to offer opinion testimony, the Court reserves ruling on specific testimony for trial. [20-16411] (AD) [Entered: 07/29/2020 06:44 PM], (#4) The Mediation Questionnaire for this case was filed on 07/28/2020. (Id.) ECF No. Case Summary. See Ringle v. Bruton, 86 P.3d 1032, 1037 (Nev. 2004) (holding that parol evidence may be considered to resolve ambiguity and determine the parties' intent). 120. 130) is DENIED without prejudice. Razavian declares that "[a]ccepted hydrological methodology requires a hydrologist to consider all of the above evidence in determining flow of flood water." Id. Mar. R. CIV. Bates Land Consortium has closed 640 transactions - encompassing nearly 2,600,000 acres of deeded land - approaching $2.70 billion in total value. Id. 88.) Winecup argues this would apply to all of Union Pacific's witnesses. at 3. 1:20-CV-00126 | 2020-09-29, U.S. District Courts | Personal Injury | 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. 91). The proponent of preemption must establish that the regulations more than "touch upon" or "relate to" the subject matter"pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." While a degree or certificate in a certain area is helpful to support expert qualification, a witness can be qualified by "knowledge, skill, experience, [or] training," as well as education. 175. "A contract is ambiguous if it is reasonably susceptible to more than one interpretation." 149) is granted. . See General Order 2020-03. P. 26(a)(2)(B)(i). 131) is denied without prejudice. Winecup does not oppose prohibiting asking questions or offering evidence or argument about the plaintiff's consulting experts, so long as "consulting expert" means "expert employed only for trial preparation." 149) is granted. See Hawthorne Partners v. AT&T Techs., Inc., 831 F. Supp. 132. The Court finds that the legal issues and circumstances presented in this case are not so complex or exceptional that a neutral expert is needed to assist the trier of fact and, therefore, denies Union Pacific's motion to do so. Cal. [20-16411] (AD) [Entered: 07/29/2020 06:44 PM], Docket(#5) Filed (ECF) Appellee Gordon Ranch LP Mediation Questionnaire. Union Pacific's sixteenth motion in limine to bar two words in an email with profane reference (ECF No. 2019). 176) is granted. 1. 133) is denied without prejudice. Ins. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA. Plaintiff admitted that Mr. Worden was the principal negotiator in forming the deal resulting in some text messages between him and Mr. Fireman. Winecup opposes, arguing that (1) it has not admitted these facts and they are not "undisputed;" (2) the facts are irrelevant; (3) Worden is a third-party witness whose deposition testimony is not admissible under Federal Rule of Evidence 801(d)(2) and Federal Rule of Civil Procedure 32(a)(8); and (4) that Union Pacific's failure to conduct this discovery during this case precludes it from now using the information. ECF Nos. Godwin's curriculum vitae provides that he has a degree in civil engineering with a concentration in "structures," and holds professional membership in the American Railway Engineering and Maintenance-of-Way Association, the American Short Line and Regional Railroad Association, and the Regional Engineering-Maintenance Suppliers Association. Union Pacific pleads in its second amended complaint that the following Nevada Administrative Codes impose a standard of conduct obligating Winecup to act in accordance: NAC 535.370, 535.040, 535.240, 535.320. 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. 3:17-cv-00163-RCJ-VPC MEMORANDUM Appeal from the United States District Court for the District of NevadaRobert Clive Jones, District Judge, Presiding Argued and Submitted December 17, 2018 San Francisco, California Before: CALLAHAN and N.R. United States v. Baker, 10 F.3d 1374, 1403 (9th Cir. 2:19-CV-00520 | 2019-07-23, U.S. District Courts | Personal Injury | Appellant's optional reply brief is due 21 days after service of the answering brief. At the time of this writing, the undersigned has presided over one criminal in-person jury trial since the COVID-19 lockdown orders went into effect in early March 2020, which included hearing from both witnesses in-person and via ZOOM video conferencing. Id. Union Pacific motions the Court to prohibit Winecup from offering any expert witnesses, including expert testimony from Luke Opperman, the Nevada Department of Water Resources engineer who inspected both the 23 Mile Dam and the Dake Dam before and after the incident, because he was not disclosed as an expert and Winecup failed to provide a written report as required under Federal Rule of Civil Procedure 26(a)(2)(A)-(B). Appellant Winecup Gamble, Inc. opening brief due 10/30/2020. However, the Court also agrees with Winecup that if Union Pacific's testifying expert relied on information from a consulting expert, that information would be admissible under Rule 705 of the Federal Rules of Evidence. Based on these classifications, Union Pacific argues that pursuant to NAC 535.240, Winecup was required to "construct, operate, and maintain," the 23 Mile dam to withstand a 100-year flood event, and the Dake dam to withstand a 1000-year flood event. Appellee Gordon Ranch LP answering brief due 07/21/2021. Plaintiff advocated for and successfully obtained a remand from the Ninth Circuit instructing this Court to comb through the parol evidence to determine the intent of the parties regarding the objective interpretation of the contractthe very information that its primary negotiator ought to possess. 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. He declares that he has been "personally involved with rerouting for a Class 1 railroad approximately twelve times over the past six years." Judgment was entered accordingly. 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. 141. 5. 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. 4. See Land Baron Ivs., Inc. v. Bonnie Springs Family LP, 356 P.3d 511, 522 (Nev. 2015) (affirming an award of punitive damages for a nuisance counterclaim); Parkinson v. Winniman, 344 P.2d 677, 678 (Nev. 1959) (holding that an award of exemplary damages was proper upon proof of intentional trespass). ECF No. Winecup's fourth motion in limine requests the Court exclude Union Pacific's claim of punitive damages. 160-3 at 77. 107 Ex. While this disclosure is technically untimely, it was harmless; therefore, the procedural failure does not provide a basis for exclusion under Rule 37. 131) is DENIED without prejudice. 191 at 2, n.1. In Winecup Gamble, Inc. v. Gordon Ranch, LP, 2021 WL 2481861 (9 th Cir. 112, 2:15-22.) Before deciding on how damages are to be calculated, the Court will permit Winecup the opportunity to respond to Union Pacific's reply; briefing is not to exceed 15 pages of argument, excluding tables of contents and authorities and administrative notices. Union Pacific does not argue that the considerations Godwin looked at, including tracks in service, crew variability, and trains per day, are not to be considered in reaching such a conclusion on rerouting costsits own expert Stephen Dolezal considered characteristics for available tracks, which included run time between the end points of damaged tracks, track speeds, expected train sizes, and siding and auxiliary track availability. 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. The standard for calculating damages is an important and critical issue in this case, but it has not been fully or properly briefed by the parties: Winecup briefly noted the standard it believes is proper in its response to Union Pacific's combined fifth and sixth motion, while Union Pacific took the opportunity to argue for its standard in a 13-page reply, without any further response from Winecup.
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