127) is DENIED. 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. 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. 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. 141. Prior to the flood, there were earthen embankments and culverts at the washout locations. [12048869] (BLS) [Entered: 03/22/2021 11:05 AM], Docket(#3) The Mediation Questionnaire for this case was filed on 03/16/2021. Fourth, Defendant has shown that Plaintiff acted with the intent to deprive Defendant of the information. 128), and Union Pacific's related nineteenth motion in limine to preclude experts disclosed on May 13, 2020 (ECF No. On July 12, 2019, following this additional investigation, Winecup submitted its Supplemental Third Disclosure, which included survey information, photographs taken during the site visit, an updated model, and Lindon's conclusion that water from the 23 Mile dam did not cause the washout of the tracks at mile post 670.03. The Court finds Lindon is a qualified expert in meteorology and hydrology, as it relates to his opinions in this specific case. ECF No. Godwin's opinion on reconstruction costs is admissible. Because Union Pacific cannot rely on these administrative regulations to support negligence per se, the Court grants Winecup's motion as it relates to these and any other administrative regulation Union Pacific would consider proffering in support. 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." Winecup opposes the motion arguing that the relevance and prejudicial impact of the evidence is best determined at trial, and that Union Pacific provides no argument why lay opinion that certain people were "sandbagging" requires an expert. . Further, whether Winecup presents sufficient evidence during trial to support giving the jury an Act of God instruction must be determined at trial. The Federal Railroad Safety Act ("FRSA") was enacted "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 18-16463-CIV-SELTZER, 2018 WL 4693526, at *1 (S.D. (internal quotations and citations omitted)). Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. 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."). The case involved the sale of a ranch and whether $5 million in . 141-2 6. [11769971] (BLS) [Entered: 07/28/2020 05:05 PM], (#2) Filed (ECF) Appellant Winecup Gamble, Inc. 2004); see Mizzoni v. Allison, 2018 WL 3203623 at*5 (D. Nev. 2018) (citing to Zubulake). There can be no dispute that Godwin's opinion is relevant and advances a material aspect of Winecup's case: Godwin's opinion goes directly to the amount of damages Union Pacific should be permitted to recover if the jury reaches the issue. 128), and its related nineteenth motion in limine to preclude experts disclosed on May 13, 2020 (ECF No. Documentary footage of life and work on the Gamble division of the Winecup Gamble Ranch, Montello, Nevada. 126) is denied. 11. 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. ECF No. 44. Given this pandemic, the Court will allow witnesses to appear by ZOOM video conferencing. See ECF No. Make your practice more effective and efficient with Casetexts legal research suite. . 141-2 18), that is an argument best left for cross examination and goes toward the weight not the admissibility of Razavian's opinion. 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. "A motion in limine is used to preclude prejudicial or objectionable evidence before it is presented to the jury." Union Pacific attacks Lindon's meteorology testimony, arguing that Lindon's model used (1) an incorrect time period, and (2) the wrong weather station data. The district court based its decision on the fact that the terms of the parties' agreement, as amended, were clear and unambiguous on the critical question of whether the amendment was intended to shift or modify the risk-of-loss scheme. 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. 213.33 preempts Winecup from arguing that Union Pacific was contributorily negligence for maintaining culverts not sufficiently large enough to withstand a 50-year storm. Id. Union Pacific argues that doing so would enable a smooth presentation of exhibits to the jury. 34 Ex. 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. Winecup opposes this request, arguing that it would be prejudiced if it is not able to cross examine Union Pacific's witnesses in open court, and that such an extraordinary order that all of a party's witnesses appear by video is unprecedented. 8, 2020). The Court disagrees. ), In February 2017, after executing the amendment and before the closing date, substantial flooding damaged the property. See order for instructions and details. Id. 123) is DENIED. Accordingly, the Court denies Union Pacific's seventh motion in limine. (ECF No. 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.[11770017]. Furthermore, Winecup argues that "to the extent Union Pacific's testifying experts relied on information from a 'consulting' expert, that information would also be admissible," pursuant to Federal Rule of Evidence 705. Lindon will be permitted to disagree with Razavian's conclusions just as Razavian will be permitted to disagree with Lindon's. If expert opinions are not disclosed, "the party is not allowed to use that information or witness to supply evidence . & Constructors Inc., 880 F.2d 219, 221 (9th Cir. All foota. 150. However, the Advisory Committee Notes make clear that the 2015 amendment forecloses a court from imposing sanctions for spoliation of ESI under that basis. (See, e.g., ECF No. 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. 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). Id. 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. No other issues will be entertained without leave of the Court. Winecup's first motion in limine to exclude Union Pacific's expert Daryoush Razavian's testimony related to mile post 670.03 (ECF No. The subject property, commonly known as the Winecup Gamble Ranch ("the Property"), comprises approximately 247,500 deeded acres, rights to federal grazing permits covering approximately 558,080 acres, and Nevada state grazing rights covering approximately 142,800 acres. Gordon Ranch attempted to purchase real property located in northern Nevada from Winecup Gamble in 2016. That means, under Nevada law, punitive damages proceedings are bifurcated. Given the nature of the lost ESI, the Court finds that it must give the harshest sanction of a case dispositive ruling. ECF No. 112, 2:15-22.) 34 Ex. Ins. Mediation Questionnaire due on 03/16/2021. Winecup intends to introduce Godwin's opinion as evidence of what size culverts should be used based on the industry standard. 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. 157-2 at 66; 157-28. 154-2 at 5. 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. On May 13, 2020, two days before Winecup filed this opposition, it served Union Pacific with a supplemental expert disclosure that provided that Winecup intended to call Luke Opperman, and April Holt and Edward Quaglieri (additional individuals that inspected Winecup's dams), as non-retained experts. ECF No. Because we find that the parties' agreement is ambiguous and because the district court does not appear to have considered this issue previously, we do not address Gordon Ranch's argument that the earnest money cannot be awarded to Winecup, because such an award would necessarily render the earnest money provisions of the parties' agreement an unenforceable penalty clause. "Generally speaking, supplementation of an expert report is proper where it is based on new information obtained after the expert disclosure deadline and the supplemental report was served before the time for pretrial disclosures." [21-15415] (AD) [Entered: 03/16/2021 06:44 PM], Docket(#2) Filed (ECF) Appellant Winecup Gamble, Inc. But the expert may be required to disclose those facts or data on cross-examination." See Daubert, 509 U.S. at 596. ii. The following definitions are relevant to making this determination: (1) oppression means "despicable conduct that subjects a person to cruel and unjust hardship with conscious disregard of the rights of the person"; (2) fraud means "intentional misrepresentation, deception or concealment of a material fact known to the person with the intent to deprive another person of his or her rights or property or to otherwise injure another person"; (3) malice, express or implied, means "conduct which is intended to injure a person or despicable conduct which is engaged in with a conscious disregard of the rights or safety of others"; and (4) conscious disregard means "the knowledge of the probable and harmful consequences of a wrongful act and a willful and deliberative failure to act to avoid these consequences." See ECF No. Union Pacific's twelfth motion in limine to bar evidence or argument about (A) the Oroville Dam spillway failure, or (B) weather or (C) flood conditions in watersheds west of the relevant one (ECF No. 250,000 ACRES DEEDED LAND WITH GRAZING RIGHTS ON OVER 1,000,000 ACRES. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . 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. Accordingly, the Court denies Union Pacific's twelfth motion in limine without prejudice and reserves the issue for trial. Though not addressed in Winecup's motion, Union Pacific argues that it also pleads violations of NRS 535.010 to support its negligence per se theory. WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, LP, a Texas limited partnership, Defendant Case No. 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). See ECF No. B at 2. ECF No. Date of service: 07/28/2020. Union Pacific rebuilt these areas with steel bridges instead of rebuilding the embankments and culverts. at 3. While this disclosure is technically untimely, it was harmless; therefore, the procedural failure does not provide a basis for exclusion under Rule 37. Appellee Gordon Ranch LP answering brief due 06/07/2021. The optional reply brief is due 21 days from the date of service of the answering brief. Id. Godwin further testified that he had reviewed Union Pacific's rerouting costs and crew costs as provided, and the number of trains per day. ECF No. iii. Banks ex rel Banks v. Sunrise Hosp., 102 P.3d 52, 67 (Nev. 2004). 1989) (reviewing the district court's interpretation of a contract de novo). ), Plaintiff argues against sanctions asserting the following defenses: First, the deletions did not amount to any deprivation of evidence to Defendant claiming that it has produced all of the material, non-privileged ESI through other sources in spite of the deletions. The Court finds that allowing Union Pacific to amend the pretrial order on this issue will not result in injustice to Winecup and any inconvenience to the Court is slight. 161. 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. Razavian declares that "[a]ccepted hydrological methodology requires a hydrologist to consider all of the above evidence in determining flow of flood water." The briefing schedule previously set by the court is amended as follows: appellant's opening brief is due May 21, 2021; appellee's answering brief is due June 21, 2021; appellant's optional reply brief is due within 21 days from the service date of the answering brief. [11770779] [20-16411] (Lundvall, Pat) [Entered: 07/29/2020 01:50 PM], (#3) MEDIATION ORDER FILED: By 08/11/2020, counsel to email Circuit Mediator regarding settlement potential. The three owners of the province's five franchises filed the lawsuit in Quebec Superior Court on Feb. 14. Because Winecup's arguments go to the weight of Razavian's opinion on the subject, not admissibility of his opinions, the Court denies Winecup's first motion in limine (ECF No. Joe Glascock is a General Manager at Winecup Gamble Ranch based in Montello, Nevada. 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. In that case, participating attorneys would appear in-person, and the Court would leave it to each party's counsel to determine which of its witnesses would appear by video or in-person. [12050510] (BLS) [Entered: 03/23/2021 10:57 AM], (#4) MEDIATION CONFERENCE SCHEDULED - DIAL-IN Assessment Conference, 03/31/2021, 12:00 p.m. PACIFIC Time. . 157-31; 157-32. at 2-3. Second, as to the infiltration data, disagreements over data imputes are again best left to cross-examination and presentation of contrary evidence. 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. 2013) (internal quotation marks and citations omitted). S.E.C. See Francis v. MSC Cruises, S.A., Case No. (ECF No. 166. However, it is not for the Court to conclude which expert is correct; that is for the jury to decide. WINECUP GAMBLE, INC., Plaintiff-Appellee, v. GORDON RANCH LP, Defendant-Appellant. Amended briefing schedule: Appellant Winecup Gamble, Inc. opening brief due 06/21/2021. See order for instructions and details. As the ranch's manager, Rogers offered Winecup-Gamble as a test site for the researchers. 139. And there can be no dispute that Godwin's opinion is relevant and advances a material aspect of Winecup's case: Godwin's opinion goes directly to whether Union Pacific was contributorily negligent for the damaged tracks. 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)). Public Records Policy. The Court notes that this repair does not show up in either the 2012 or 2016 inspection report which would indicate the repair was made sometime between 2003 and 2012. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant settlement discussions. Second, Winecup addresses Nevada Revised Statute 535.030, which it claims also cannot provide the basis for Union Pacific's negligence per se claim. REVERSED, VACATED, and . 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. Cal. Winecup's fifth motion in limine to exclude evidence and argument related to an Emergency Action Plan for the Dake dam (ECF No. 135. Additionally, the Ninth Circuit left open the Defendant's claim that the Plaintiff's interpretation amounts to an unenforceable penalty clause. 120-1 at 5. Union Pacific's arguments on exclusion go to the weight of Lindon's testimony, not its admissibility, and are best left to cross examination and testimony by its own expert. Conversely, Clay Worden was never an employee of Winecup, and testified in Gordon Ranch in his individual capacity, not as a corporate witness or agent of Winecup. 6. The ranch, in 2016, was for sale again. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Plaintiff, v. WINECUP RANCH, LLC, an Idaho Limited Liability Company; and WINECUP GAMBLE, INC., a Nevada corporation; and PAUL FIREMAN, an individual, Defendants. In addition to other research goals, Rogers hopes that the scientists will work with ranchers from the ground up to develop outcome-based grazing metrics that are relevant to how ranchers manage their operations. Generally, all relevant evidence is admissible. 190. 111) is DENIED. winecup gamble ranch. ECF No. Mar. Second, Defendant has not established that the deletions occurred prior to a duty to preserve ESI. Winecup and Gordon Ranch entered into a Purchase and Sale Agreement with an effective date of October 18, 2016 (the "Purchase Agreement") for sale of approximately 247,500 acres, together with other real and personal property rights, interests, and cattle, in Elko County, Nevada. IT IS FURTHER ORDERED that Winecup's second motion in limine to exclude evidence and argument that NAC 535.240 applies to the 23 Mile and Dake dams (ECF No. 3. Id. Mediation Questionnaire due on 07/29/2020. The Court finds that exclusion of Worden's deposition will not result in injustice to Union Pacificit is still permitted to present evidence of Winecup's financial situation through Fireman should this case reach the punitive damages phase. Plaintiff relied on the amendment to say that the earnest money was not refundable for casualty losses. 17. Lindon declared that he checked and calibrated the model ultimately determining with a "high degree of confidence that the model accurately reflects" the February 2017 flood event. See NRS 535.030. Federal Rule of Civil Procedure 26(a)(2)(A) provides: "a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rules of Evidence 702, 703, or 705." Accordingly, the Court denies Union Pacific's tenth motion in limine (ECF No. Get free access to the complete judgment in Winecup Gamble, Inc. v. Ranch on CaseMine. Id. Ins. (Id.) Lindon used "data from the U.S. Geological Survey stream gages and Nation Weather Service stations to help form the model and calibrate the results." ECF No. These two actsmodification and abandonmentconstitute the "construction, reconstruction, or alterations" contemplated in NRS 535.010. A 43:2-7.) [12077160] (AF) [Entered: 04/16/2021 11:36 AM], Docket(#5) MEDIATION CONFERENCE RESCHEDULED - DIAL-IN Assessment Conference, 04/14/2021, 9:30 a.m. Pacific Time (originally scheduled on 03/31/2021). ECF No. 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. ECF No. The Court reiterates that the District Court has temporarily suspended all jury trials until further notice.
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