Union Pacific may add these facts to the statement of contested issues of fact and Winecup will likewise be permitted to list the facts contested. 112) is DENIED. 91). at 2-3. And, necessarily, the regulation must apply to all dams, not just those in existence after March 15, 1951. iii. 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. 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. Union Pacific's arguments in opposing Godwin's testimony are best left to cross-examination and presentation of opinion evidence by Union Pacific's own experts rather than exclusion. 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." The Ninth Circuit has made clear that district courts "should generally allow amendments of pretrial orders provided three criteria are met: (1) no substantial injury will be occasioned to the opposing party, (2) refusal to allow the amendment might result in injustice to the movant, and (3) the inconvenience to the court is slight." [11785954] (BLS) [Entered: 08/12/2020 08:52 AM], (#5) Filed (ECF) Appellee Gordon Ranch LP Mediation Questionnaire. 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. Id. 31). 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. "A statutory violation is negligence per se if the injured party belongs to the class of persons whom the statute was intended to protect, and the injury suffered is of the type the statute was intended to prevent." The Court agrees with Winecup. The parties are encouraged and permitted to file a stipulation requesting pre-admittance of any uncontested exhibits. 111-7 31-33. 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. 112 at 10-12. Co. v. Gen. Elec. Accordingly, the Court denies Union Pacific's twelfth motion in limine without prejudice and reserves the issue for trial. 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. 108 19. Again, Winecup opposes, arguing that its supplemental disclosure was timely and sufficient under Federal Rule of Civil Procedure 26(a)(2)(C). 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. When a moving party satisfies these three prerequisites, two kinds of sanctions are available, but each requires proof of an additional element. 152) is granted in part and denied in part. 1) is DISMISSED WITH PREJUDICE. [12048869] (BLS) [Entered: 03/22/2021 11:05 AM], (#2) Filed (ECF) Appellant Winecup Gamble, Inc. C 06-04435 CRB, 2007 WL 963422, at *1 (N.D. Cal. FED. 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. 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. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . 123) is denied. 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." WINECUP GAMBLE, INC., Plaintiff-Appellant, v. GORDON RANCH LP, Defendant-Appellee. The Court agrees with Winecup. 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. 107 Ex. Godwin declares that he has extensive experience in railroad construction and design, and specializes in "railroad engineering, railroad construction engineering, filed supervision, damage mitigation, working in hurricane, flood, and other emergency situations, and rebuilding railroads to restore service as quickly and efficiently as possible." In Winecup Gamble, Inc. v. Gordon Ranch, LP, 2021 WL 2481861 (9 th Cir. D.C. No. Under Federal Rule of Civil Procedure 26(b)(4)(D), a party may not discover "by interrogatories or deposition . 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. Finally, one place to get all the court documents we need. R. EVID. The parties have submitted a total of 27 motions in limine. 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. And such communications took place shortly after the flood on February 21, 2017. Winecup's late Supplemental Third Disclosure regarding Lindon's rebuttal opinion on the washout at mile post 670.03, while untimely, is harmless, and Lindon's opinions are admissible. B. 125) is granted in part and denied in part. 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. 20; ECF No. 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. 2:19-CV-00414 | 2019-06-17, U.S. District Courts | Contract | 3:20-CV-00029 | 2020-01-15, U.S. District Courts | Contract | Given the nature of the lost ESI, the Court finds that it must give the harshest sanction of a case dispositive ruling. 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. 132. ECF No. 2011). at 3. 4 (Letter between counsel noting a telephone conversation on February 21, 2017 between counsel discussing their legal positions).) Winecup's second and third motions in limine also relates to the standard of care to be used in this negligence case. However, there is also evidence in the record that DWR instructed Winecup to complete specific tasks that were not done: The 1996 inspection report for 23 Mile dam indicates that the "wing walls at the downstream invert should have the concrete repaired," and this repair was again noted in the 2003 report. 120-1 at 5. 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. 5. 2001); United States v. Layton, 767 F.2d 549, 556 (9th Cir. 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. 193) is GRANTED in part and DENIED in part in accordance with this Order. ECF No. Of Clark v. LB Props., Inc., 315 P.3d 294, 296 (Nev. 2013) (internal quotation marks and citations omitted). ), Presently, Defendant moves for sanctions against Plaintiff alleging that Mr. Worden and Mr. Fireman, acting as Plaintiff's agents, spoliated the ESI. The duty to preserve commenced at least by this date. This communication will be kept confidential, if requested, and should not be filed with the court. Under the umbrella of ROGER, the amount of collaborative work . The language of the amendment does not specifically state that this result was desired or intended, and, in the absence of such a clear statement of the parties' intent, we find that the parties' agreement is ambiguous in this particular respect. Godwin testified that the RS Means methodology is the "industry standard" for estimating construction costs. 108.) Transcript due 09/21/2020. Union Pacific cites several sections of the NRS and NAC that it argues plainly apply to the Winecup dams, and letters from the State Engineer which show that Winecup was aware that certain sections of these statutes and regulations applied to the dams. From a plain reading of this Rule, it is clear to the Court that a written expert report is only required if the expert is retained. 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. (ECF No. Plaintiff had imposed an oral litigation hold that proved insufficient and a good deal of ESI went missing. IT IS FURTHER ORDERED that Union Pacific's seventeenth motion in limine to bar Winecup from providing trial testimony that contradicts its Rule 30(b)(6) witness's deposition testimony (ECF No. 160-3 at 77. P. 37 Advisory Committee Notes to the 2015 Amendment). 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. 107 Ex. 2. Co. v. Mendelsohn, 552 U.S. 379, 384-87 (2008). Here, the material in the supplemental disclosure relates to Lindon's analysis after hearing Razavian's opinion from his February 2017 deposition. Union Pacific moves this Court to permit its witnesses that must travel by plane or more than three hours by car to testify via videoconference. 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. The Federal Railroad Safety Act ("FRSA") was enacted "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 134) is denied without prejudice. 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. IT IS FURTHER ORDERED that 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. 3:17-CV-00163 | 2017-03-16, U.S. District Courts | Property | Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. Moreover. Additionally, Union Pacific does not object to Winecup providing jurors with their own binders. Therefore, the Court finds that only the drastic case dispositive sanctions are appropriate in this case. 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]. But the expert may be required to disclose those facts or data on cross-examination." See ECF No. On or about February 8, 2017, the 23 Mile dam overtopped and breached in two locations. UniCourt uses cookies to improve your online experience, for more information please see our Privacy Policy. Accordingly, Union Pacific's eighth motion in limine (ECF No. 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. (Id. ECF No. Id. In allowing note taking, the Court finds it appropriate to give jurors Ninth Circuit Model Jury Instruction 1.18 Taking Notes, or one comparable, that is agreed on by the parties. (ECF No. 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. See Emblaze Ltd. v. Apple Inc., 52 F. Supp. These two actsmodification and abandonmentconstitute the "construction, reconstruction, or alterations" contemplated in NRS 535.010. Third, some of the lost ESI is not attainable through additional discovery. (emphasis added) While defendant's purported compliance with FAA regulations and maintenance protocols is, , No. Further, Union Pacific indicates that the parties have separately agreed to amend the pretrial order to add trial exhibits. Id. Judgment was entered accordingly. 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. And, neither Mr. Fireman nor Mr. Worden are able of producing these text messages. Because the agreement is ambiguous, we also vacate the denial of Winecup Gamble's motion for summary judgment. However, it is not for the Court to conclude which expert is correct; that is for the jury to decide. [21-15415] (AD) [Entered: 03/16/2021 06:44 PM], Docket(#2) Filed (ECF) Appellant Winecup Gamble, Inc. Extremely limited rainfall, roughly 7 inches annually, makes . 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. "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." Winecup's third motion in limine to exclude argument related to Union Pacific's claim for negligence per se (ECF No. ECF No. WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, LP, a Texas limited partnership, Defendant. 3:20-CV-00293 | 2020-05-18, U.S. District Courts | Contract | ECF No. 20101. Id. [12100962] [21-15415] (Jordan, David) [Entered: 05/04/2021 09:06 AM], Docket(#6) Filed order MEDIATION (SMC): This case is RELEASED from the Mediation Program. [11762326] (JBS) [Entered: 07/22/2020 02:44 PM]. See NAC 535.055 ("Inflow design flood" means "a hypothetical flood of a given magnitude that is used to determine the design of a dam and its related hydraulic features. The electronic display system further allows the parties to show the electronic exhibit to the witness first, before it is published to the jurors, and the witness may make useful electronic marks on the exhibit, such as circling or pointing to relevant portions. Why is this public record being published online? Additionally, the Ninth Circuit did not rule on whether Plaintiff's interpretation of the contract constituted a penalty clause. Accordingly, the Court enters such a sanction and closes the case. (Id.). (ECF No. Having reviewed Lindon's declaration detailing his 40-year work history in the field of hydrology, including work in hydrological assessments and modeling, dam inspections, and evaluations, the Court agrees that Lindon is qualified to opine on hydrology issues. Since, the Courts finds intentionality the harsher sanctions of Fed. The Court finds that this experience makes him qualified to offer opinions on rerouting, costs and repair, design, and construction of railroads, bridges, and culverts. 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. (ECF No. Therefore, the Court finds that under Nevada state law, Winecup is not permitted to offer evidence that a non-party is comparatively negligent. 111 at 16. (ECF No. 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. "); ECF No. 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. 402. Only 7 inches of precipitation is received annually. 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. Accordingly, the Court finds that section 213.33 does not preempt Winecup's affirmative defense. IT IS FURTHER ORDERED that Union Pacific's sixteenth motion in limine to bar two words in an email with profane reference (ECF No. The schedule is set as follows: Appellant Winecup Gamble, Inc. [20-16411] (AD) [Entered: 07/28/2020 06:44 PM], (#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. The clause would be an enforceable liquidated damages provision if the amount was a good faith effort to estimate the actual damages, but an unenforceable penalty if the amount is disproportionate to the actual damages sustained. 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[.]" 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. ECF No. 1. (See, e.g., ECF No. ECF No. 190. If expert opinions are not disclosed, "the party is not allowed to use that information or witness to supply evidence . 135) is DENIED in part and GRANTED in part. See order for instructions and details. ii. 124) is denied. The lawsuit would cover athletes who were training and competing between 2010 and 2020, and seeks compensation of $250,000 for punitive damages, as well as moral damages in the amount of $12,000 . Until that secondary proceeding, Union Pacific is precluded from introducing evidence related to Winecup's financial situation or the sale of the Winecup ranch; Winecup's sixth motion is granted in part and denied in part. 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. Aerial Imaging Productions At nearly 1 million acres, the Winecup Gamble Ranch in north eastern Nevada, is a crowning achievement for us. CV-12-1524-PHX-SRB (LOA), 2013 WL 2422691, at *3 (D. Ariz. June 3, 2013) (citations and internal quotations omitted). [21-15415] (AD) [Entered: 03/16/2021 06:44 PM], (#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL.

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