[12048869] (BLS) [Entered: 03/22/2021 11:05 AM], (#2) Filed (ECF) Appellant Winecup Gamble, Inc. 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. . C.) However, Mr. Worden did not produce any ESI from his devices and admits that the ESI was lost from his electronic devices. . 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. Union Pacific further argues that Chapter 535 of the NAC specifies when certain regulations do not apply to dams in existence prior to March 15, 1951, which indicates that any regulation without that specific exclusion applies to all dams. B. (citation omitted). At that time, the Court would expect participating attorneys to appear in-person, but it would again leave it to each party's counsel to determine which of its witnesses would appear by video or in-person. This provision does not fix a standard legal duty; it is much too broad and leaves open to interpretation what work is necessary for dam owners to maintain and operate their dams safely. See Francis v. MSC Cruises, S.A., Case No. Additionally, Plaintiff has not produced any of Mr. Worden's accounting work papers, which is relevant to Defendant's case and covered by Defendant's subpoena. Include Ninth Circuit case number in subject line. 20106(a)(2). If expert opinions are not disclosed, "the party is not allowed to use that information or witness to supply evidence . Winecup Gamble, Inc. v. Ranch | 3:17-cv-00163-ART-CSD | D. Nev Id. . 36 Ex. 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. Co., Case No. Joe Glascock is a General Manager at Winecup Gamble Ranch based in Montello, Nevada. 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. Finally, one place to get all the court documents we need. Because the agreement is ambiguous, we also vacate the denial of Winecup Gamble's motion for summary judgment. 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. 107 Ex. 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. R. CIV. 1. 160-4 at 6. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . See ECF No. 122 at 2. 157-31; 157-32. 88.) 112.) On the other hand, harsher sanctions are available if the moving party shows that the nonmoving party acted with the intent to deprive the moving party of the information's use in the litigation, then the Court may (1) presume that the lost information was unfavorable to the party, (2) instruct the jury that it may or must presume the information was unfavorable to the party, or (3) dismiss the action or enter a default judgment. The optional reply brief is due 21 days from the date of service of the answering brief. Paul Fireman, Winecup Gamble, Inc. and Winecup Ranch, LLC: Case Number: 3:2017cv00477: Filed: August 10, 2017: Court: US District Court for the District of Nevada: Office: Reno Office: . 151) is denied without prejudice. 2:08-CV-01243-PMP-GWF, 2008 WL 11389168, at *5 (D. Nev. Dec. 30, 2008) ("Because punitive damages are not available for negligence claims, Plaintiffs are not entitled to pursue punitive damages for the negligence, negligent hiring, and negligent misrepresentation claims."). (Id.). The lead plaintiff in the lawsuit, Montreal resident Qing Wang, lost $11,720 to enrolment fees charged by C.S.T. 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. If you do not agree with these terms, then do not use our website and/or services. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The Ninth Circuit has held that the "[a]uthority to determine the victor in such a 'battle of expert witnesses' is properly reposed in the jury." eDiscovery Assistant 160-3 at 77. Further, while Winecup argues that Razavian's observations were "superficial," Winecup has given the Court no reason to discount Razavian's opinion that considering the "empirical data" he observed in the area of a flood is an unacceptable methodology for determining the flow of a flood. 49 U.S.C. In conducting his hydrology analysis, Razavian used a "Curved Number" of 92, which Lindon criticizes as being "too high." 3:17-CV-00477 | 2017-08-10, U.S. District Courts | Property | Union Pacific seeks to exclude Lindon's criticisms of its hydrology expert, Daryoush Razavian, regarding soil saturation. 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. 107 Ex. ECF No. (Id.) Lindon's criticism of Union Pacific's hydrology expert, Daryoush Razavian, are admissible. 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." The Court will not appoint a neutral expert. IT IS FURTHER ORDERED that the clerk of the court shall close this case. i. Winecup's contributory negligence defense is not preempted. 126) for a blanket ruling is denied. 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. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant settlement discussions while the appeal is pending. NAC 535.140. 175), are DENIED without prejudice. Winecup Gamble Ranch is part of the Agriculture industry, and located in Nevada, United States. 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. The Court will not preclude Union Pacific from presenting evidence and argument that a reasonable dam owner would have followed this regulation and maintained all dams to withstand the particular flood event based on the assigned hazard classification of its dam, including the flood standard. "); NAC 535.080 ("Probable maximum flood" means "a hypothetical flood whose magnitude is: 1. Given this pandemic, the Court will allow witnesses to appear by ZOOM video conferencing. 139 at 8. 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. 111 & 112. Winecup opposes, arguing that Union Pacific cites no authority or foundation for the Court on which to make such a ruling. It was not until May 13, 2020, that Winecup disclosed in its supplemental expert disclosure that it intended to call Opperman, Holt, and Quaglieri as non-retained experts. Ex. If the parties determine that a jury trial is necessary, the Court would likely not be able to set it before the middle of 2021 due to the backlog of criminal jury trials. Union Pacific's sixteenth motion in limine to bar two words in an email with profane reference (ECF No. 155-4 at 5; ECF No. ECF No. 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." 1) is DISMISSED WITH PREJUDICE. 156. The Court reiterates that the District Court has temporarily suspended all jury trials until further notice. ECF No. 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 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." MANUAL FOR COMPLEX LITIGATION (FOURTH) 12.32 (2004). The Court is satisfied that this procedure was effective at the time. As of December 2015, Federal Rule of Civil Procedure 37(e) provides the specificand onlybasis for sanctions for spoliation of ESI, which was substantially amended to accommodate advances in technology and provide uniformity among the circuits. FED. Tex. IT IS FURTHER ORDERED that Union Pacific's fifth and sixth motions in limine to Bar Two Opinions of Derek Godwin (ECF No. 3:17-cv-00477-LRH-CLB (D. Nev. Dec. 4, 2020). 7. The Court finds that both arguments go not to Lindon's methodology, but to the data imputed. Winecup Gamble argues that Razavian did not offer an opinion on the cause of the washout at mile post 670.03 in his initial report, offering his opinion for the first time during his deposition. 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. Union Pacific's first amended complaint no longer included defendant Winecup Ranch, LLC, and its second amended complaint no longer included Paul Fireman. ECF No. See FED. at 4. Winecup concedes that an accepted methodology includes using topographical survey data to determine if it is possible for water to escape one drainage and enter another. The amended order should include both the agreed amendments and those permitted by this Order. Winecup Gamble, Inc. v. Gordon Ranch LP | D. Nev. - Casemine ECF No. Winecup argues this would apply to all of Union Pacific's witnesses. ECF No. 107 Ex. The Court will not conflate the question of admissibility with the weight to be given the testimony by considering the persuasiveness of competing scientific methods; those questions are for the fact finder. "); ECF No. ECF No. To reach his opinion, Godwin considered the drainage area and peak flows for hypothetical storm eventsnothing in the record disputes that this is an appropriate method for making such a determination. Lindon's opinion on the subject remained the same in this disclosure as it was in his prior report. [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. . "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.'" 129) is DENIED without prejudice. The Court relies on its above statements of law regarding its gatekeeper function in determining the admissibility of expert testimony and sees no reason to reiterate it here. Federal Rule of Evidence 706 permits district courts, in their discretion, to appoint a neutral expert. Lindon is a qualified expert in hydrology and meteorology. See ECF No. 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. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. 20; ECF No. Winecup Gamble Ranch | Montello NV - Facebook IT IS FURTHER ORDERED that Union Pacific's second motion in limine to exclude hydrological opinions of Matthew Lindon and to appoint a neutral expert (ECF No. 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.
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