The most relevant evidence for these determinations would again be Mr. Worden's lost ESI. Ranch shifts focus to soil organic matter - Hay and Forage Union Pacific argues that Lindon is not a qualified expert in meteorology because he does not hold a degree or certificate in the field. 3:19-CV-00700 | 2019-11-20. 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. 132) is granted. 4. Accordingly, Union Pacific's third motion in limine (ECF No. 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. 157. Godwin calculated the cost of rebuilding the embankments using data from RS Means 2018 and adjusted the total to 2017 prices. ECF No. 5. Why is this public record being published online? 157-31; 157-32. 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. In its second motion in limine, Union Pacific argues that Lindon's opinions regarding the cause of the mile post 670.03 washout should be excluded because he "ignored considerable evidence" that Razavian relied upon for his own opinion. 150. L at 62:23-63:19. Union Pacific's arguments to exclude Godwin's opinion go not to admissibility, but to the weight and are best left to cross-examination during trial; the exclusion is denied. Winecup opposes, arguing that Union Pacific cites no authority or foundation for the Court on which to make such a ruling. AnyLaw is the FREE and Friendly legal research service that gives you unlimited access to massive amounts of valuable legal data. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . 132. 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. 150) is denied without prejudice. 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. A reasonable party would have foreseen litigation on the horizon as soon as the parties began exchanging communications expressing their competing interpretations of the contract and the amendment. 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. ECF No. 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. 18-16463-CIV-SELTZER, 2018 WL 4693526, at *1 (S.D. The provinces allowed casino games as well as horse tracks, and video lottery terminals. P. 32(a)(3) ("An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4)."). 167. 176) is GRANTED. Gamble Ranch - Straddling the Wyoming & Utah Border Id. 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. ; ECF No. Make your practice more effective and efficient with Casetexts legal research suite. Union Pacific argues that doing so would enable a smooth presentation of exhibits to the jury. [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. OWNER BELIEVES THERE MAY BE MORE THAN 100,000 ACRE FEET OF WATER. 107, Ex. 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." 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. 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. 155-4 at 5; ECF No. R. CIV. Plaintiff admits that the sole action they took was to inform Mr. Worden to preserve relevant documents, who then relayed this message to his IT department at his accounting firm. 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." 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. A at 43:24-25), he also admits that the emails could have been deleted later by receiving a new computer or by failing to change his backup setting (Id. ECF No. at 432. Federal Rule of Evidence 702 governs the admissibility of expert testimony, providing: To determine the reliability of the principles and methods used, the court looks to: (1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; (4) whether there are standards controlling the technique's operation; and (5) whether the theory or technique has general acceptance within the relevant scientific community. Accordingly, Union Pacific's nineteenth motion in limine is granted. R. CIV. 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. Date of service: 07/29/2020. The State Engineer will assign all dams a hazard classification. R. CIV. ECF No. Winecup objects to the presentation of exhibit binders arguing that doing so would require the court to rule on the admissibility of all contested exhibits prior to trial, and that given the number of exhibits, juror binders are "impractical, burdensome, and awkward." Winecup Gamble, Inc. v. Gordon Ranch LP | D. Nevada | 03-17-2022 | www 2014) (quoting Primiano, 598 F.3d at 564). ON-SITE RAIL SPUR AND 2 LANDING STRIPS. [20-16411] (AD) [Entered: 07/28/2020 06:44 PM], (#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. Accordingly, the Court grants Union Pacific's fifteenth motion in limine (ECF No. Get free access to the complete judgment in Winecup Gamble, Inc. v. Ranch on CaseMine. Since, the Courts finds intentionality the harsher sanctions of Fed. Co. v. Colorado Cas. The Court finds that whether the proffered evidence is relevant or if it would be unfairly prejudicial is best determined at trial when it can be adjudged in context. See ECF Nos. 143. The FRSA also includes an express preemption provision: "A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation . Defendant shall receive the return of its five million dollar earnest money with interest. The Court will address each in turn. 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.). A Test Site for How to Monitor Success. [12029509] (JBS) [Entered: 03/09/2021 01:23 PM]. ECF No. This case has been set for trial a number of times; the most recent setting for August 2020 was vacated due to the COVID-19 pandemic. 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." (Id. at a trial, unless the failure was substantially justified or is harmless." 3:17-CV-00477 | 2017-08-10, U.S. District Courts | Property | Questions about what facts are most relevant or reliable . First, Winecup argues that a plain reading of the text of NAC 535.240 shows that the applicability of the statute is limited to approval for new construction, reconstruction, or alterations, but it does not apply to dams in existence before the statute went into effect that have not been modified or altered. However, without reference to that section, the amendment contained the clause: "Notwithstanding anything to the contrary in the Agreement, the Earnest Money, as increased by the Additional Earnest Money, shall be nonrefundable under all circumstances other than a default by Seller." 130) is denied without prejudice. 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. Razavian provides that his opinion on the mile post 670.03 washout is based on (1) his personal aerial observations and photographs taken of the area during a February 11, 2018 helicopter ride; (2) the lay of the vegetation in the area and damage to track embankments; (3) review of a topographic map of the area and the features of the land; (4) a photograph take by a news helicopter the day of the flood; (5) the presence of ice blocks on the tracks between mile post 669 at 670; and (6) an account in the Elko Daily from an NDOT Sheriff who noted that the water went around the Dake Reservoir. Given the nature of the lost ESI, the Court finds that it must give the harshest sanction of a case dispositive ruling. ///. ECF No. 15, 2021) (unpublished), the Ninth Circuit reversed entry of terminating sanctions, vacated the judgment, and remanded for further proceedings. Winecup opposes this motion arguing that Ninth Circuit precedent permits a 30(b)(6) deponent that answered "I don't know" to supplement, contextualize, and even contradict such statements at trial, and that a 30(b)(6) deponent who answers "I don't know" to questions outside the scope of the 30(b)(6) notice is not penalized. 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. at 46:19-22), or some combination of these factors. Union Pacific's arguments against his qualifications go to the weight of his testimony, not admissibility, and are best left to vigorous cross-examination. Federal Rule of Evidence 706 permits district courts, in their discretion, to appoint a neutral expert. FED. Winecup may motion the Court to reconsider this determination based on the evidence presented at trial. Winecup argues that because the Dake dam did not fail or overtop, whether Winecup failed to submit an emergency action plan for the dam, as all significant hazard dam owners are required to do under NAC 535.320, is irrelevantthere can be no causal connection between Union Pacific's injury and Winecup's failure to submit the plan. 141). [21-15415] (AD) [Entered: 03/16/2021 06:44 PM], (#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. Winecup owned and managed the Dake Reservoir dam (ID #NV00109, legal description 189DN40 E70 07D) and 23 Mile dam (ID #NV00110, legal description 189CN42 E67 15BA), both located on Thousand Springs Creek, in Elko County, Nevada. IT IS FURTHER ORDERED that Winecup's fourth motion in limine to exclude evidence and argument that Union Pacific is entitled to punitive damages (ECF No. 89 1. 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. He is "active in the science of meteorology, working constantly with meteorologists at the Division of Water Resources and Salt Lake City National Weather Service office to develop products and methods for calculations." ECF No. However, the Court is hopeful that the parties can agree upon the admissibility of exhibits as much as reasonably practicable. Continued monitoring of the seepage area is noted in both the 2012 and 2016 reports. But the expert may be required to disclose those facts or data on cross-examination." 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. While supplementation almost a year a half after the deposition is untimely, the Court finds that Union Pacific has had more than enough time to consider this opinion and consult with its own expert on the subject such that it has not not been prejudiced by this supplemental disclosure. 108) to add information learned in the depositions of Paul Fireman and Clay Worden in Winecup Gamble, Inc. v. Gordon Ranch, LP, 3:17-cv-00163, related to Winecup's financial situation. (Id.) 1986) (citing Georgia-Pacific Corp. v. U.S., 640 F.2d 328, 334 (Ct. Cl. 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. Additionally, the Ninth Circuit left open the Defendant's claim that the Plaintiff's interpretation amounts to an unenforceable penalty clause. 111. Appellant Winecup Gamble, Inc. opening brief due 10/30/2020. Union Pacific does not allege a claim for gross negligence, but simply makes a claim for negligence. 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. Godwin provides two opinions regarding rerouting costs: (1) "[a]ll train traffic should have been re-routed from (or near) Tecoma to (or near) Lucin on the No.2 track;" and (2) that other washouts, not attributable to Winecup, prevented trains from moving, and therefore, Winecup is not responsible for those rerouting costs. Given this pandemic, the Court will allow witnesses to appear by ZOOM video conferencing. ECF No. 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). for two RESP plans he'd opened for his two children, the lawsuit alleges. R. EVID. 108.) 112) is DENIED. (Id.) 17. Description PROPERTY HAS A PROVEN SOURCE OF AT LEAST 60,000 ACRE FEET OF WATER AND ALL RIGHTS TO THAT WATER. 193) is granted in part and denied in part. 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 . "Expert witnesses should not be appointed where they are not necessary or significantly useful for the trier of fact to comprehend a material issue in a case." . Union Pacific does not argue that this modeling program is improper or not the industry standard model. It is this Court's practice to allow jurors to take notes and given the complexity of this case, the number of exhibits, and the scientific expert testimony expected to be presented, the Court sees no reason to deviate from this practice. 107 Ex. (ECF No. Id. First, the evidence shows that the ESI was deleted after a duty arose to preserve it. Id. See ECF No. See Emblaze Ltd. v. Apple Inc., 52 F. Supp. [11769971] (BLS) [Entered: 07/28/2020 05:05 PM], (#2) Filed (ECF) Appellant Winecup Gamble, Inc. Union Pacific concedes that Lindon is a qualified expert in hydrology. 1. 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."). (emphasis added) While defendant's purported compliance with FAA regulations and maintenance protocols is, , No. As a hydrologist, he regularly works with precipitation data, and is "familiar with analyzing and calculating precipitation numbers," receiving formal training on this topic in addition to his years of experience. Id. The parties stipulated to extend rebuttal expert disclosures until November 19, 2018, at which time, Winecup disclosed two rebuttal witnesses. 160-2. REVERSED, VACATED, and . See order for instructions and details. A presumption that the lost information was unfavorable to Plaintiff or an adverse jury instruction would not sufficiently cure Defendant's prejudice. 157-24 at 3-4. 3:20-CV-00293 | 2020-05-18. Cases involving other real property matters not classified elsewhere, (#8) Streamlined request [7] by Appellant Winecup Gamble, Inc. to extend time to file the brief is approved. Id. (See, e.g., ECF No. The ranch, in 2016, was for sale again. Defendant moves for sanctions against Plaintiff alleging that its agents spoliated valuable electronically stored information (ESI). 422 (S.D.N.Y. 11. (ECF No. 158 at 2. 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. 107 Ex. 2:19-CV-00414 | 2019-06-17, U.S. District Courts | Contract | Winecup's expert Derek Godwin provided opinions on three topics: (1) pre-flood design structures at mileposts 670.03, 672.14, 677.32, and 679.28; (2) re-routing costs and the reasonableness of the routes and costs; and (3) reconstruction costs and the reasonableness of replacement structures. ECF No. In Winecup's sixth and final motion in limine, it motions the Court to exclude evidence and argument related to the financial condition of Winecup, Paul Fireman, or the sale of Winecup Gamble Ranch in 2019, as it is irrelevant and would be unfairly prejudicial. Id. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA. 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." 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." Accordingly, the Court finds that section 213.33 does not preempt Winecup's affirmative defense. 112. Plaintiff declined to repair the property. The optional reply brief is due 21 days from the date of service of the answering brief. 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. [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). Joe Glascock's Phone Number and Email Last Update. Winecup Gamble, Inc. v. Ranch - casetext.com 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. 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. 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 Winecup clearly could not have disclosed any of these experts at the initial October 2018 disclosure date (as none had yet to be deposed), Winecup could have disclosed that it intended to call Holt and Quaglieri in its November 2018 rebuttal disclosure, and could have disclosed Opperman well before May 13, 2020. The Court agrees with Winecup: any ruling that Winecup is precluded from arguing that a specific statute applies in this case must be made on a statute-by-statute/ regulation-by-regulation basis. . Union Pacific's sixteenth motion in limine to bar two words in an email with profane reference (ECF No. 157-2 at 10-15, 26, 30, 52. 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.[12043697]. Moore et al., Moore's Federal Practice 30.25[3] (3d ed. Viewing a thread - Winecup-Gamble Ranch for sale See General Order 2020-03. Banks ex rel Banks v. Sunrise Hosp., 102 P.3d 52, 67 (Nev. 2004). 706; Gorton v. Todd, 793 F.Supp.2d 1171, 1178 (E.D. 20106(a)(2). Id. At nearly a million acres, the Winecup Gamble Ranch, a mountainous Nevada spread hard up against the Utah border, puts Rhode Island to shame. Mar. 122) is GRANTED in part and DENIED in part in accordance with this Order. 191. 2014) ("Even if data are imperfect, and more (or different) data might have resulted in a 'better' or more 'accurate' estimate in the absolute sense, it is not the district court's role under Daubert to evaluate the correctness of facts underlying an expert's testimony. in conjunction with its third motion in limine, Union Pacific motions this Court to pre-admit a number of exhibits (approximately 167) that would go in the requested juror binders. Accordingly, Union Pacific's ninth motion in limine (ECF No. Union Pacific's motion in limine to amend the Pretrial Order (ECF No. This communication will be kept confidential, if requested, and should not be filed with the court. [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. 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. 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. R. Civ. Mediation Questionnaire due on 03/16/2021. "These factors are 'meant to be helpful, not definitive, and the trial court has discretion to decide how to test an expert's reliability as well as whether the testimony is reliable, based on the particular circumstances of the particular case.'" Terminating Sanctions Reversed After Oral Litigation Hold Goes Awry 134) is DENIED without prejudice. Pursuant to Nevada Revised Statutes 42.005(4), "[e]vidence of the financial condition of the defendant is not admissible for the purpose of determining the amount of punitive damages to be assessed until the commencement of the subsequent proceeding to determine the amount of exemplary or punitive damages to be assessed." 1989) (reviewing the district court's interpretation of a contract de novo). 10. Winecup's second and third motions in limine also relates to the standard of care to be used in this negligence case. A, 45:18-46:13.) The facts and procedural history are familiar to the parties and are restated here only to the extent necessary to resolve the issues. Id. Winecup Gamble Ranch has 1,500 acres of pivot-irrigated fields and another 500 acres under wheel and flood irrigation. WINECUP GAMBLE, INC. V. GORDON RANCH LP, No. 20-16411 (9th Cir. 2021) (See, e.g., ECF No. 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. Ins. Winecup's first motion in limine to exclude Union Pacific's expert Daryoush Razavian's testimony related to mile post 670.03 (ECF No.