Union Pacific requests that the Court order the parties to try to agree on (or submit competing) preliminary jury instructions relating to the statutes and regulations that apply to dam owners in Nevada. 3:12-cv-00344-RCJ-WGC, 2015 WL 260873, at *4 (D. Nev. Jan. 21, 2015) (emphasis in original). The duty to preserve commenced at least by this date. 124) is DENIED. ECF No. Union Pacific motions the Court to exclude both Winecup's contributory negligence defense and Godwin's expert opinions that relate to this defense. Joe Glascock is a General Manager at Winecup Gamble Ranch based in Montello, Nevada. /// /// ///. 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. 129. facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial." 135. The Court finds Lindon is a qualified expert in meteorology and hydrology, as it relates to his opinions in this specific case. However, Winecup may argue that it is not negligent or that a non-party is solely responsible, and Winecup may proffer admissible evidence in support thereof. B at 2. 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. 640 were here. If the jury finds in the affirmative, a subsequent proceeding will occur during which the parties will be permitted to present evidence of the financial condition of the defendant and the jury could award punitive damages. Union Pacific's fifteenth motion in limine to bar one paragraph in email referencing contract truck driver incidents (ECF No. Union Pacific also requests the Court take judicial notice of seven exhibits. Aerial Imaging Productions At nearly 1 million acres, the Winecup Gamble Ranch in north eastern Nevada, is a crowning achievement for us. Given the nature of the lost ESI, the Court finds that it must give the harshest sanction of a case dispositive ruling. Reading the parties' agreement as a whole, it is reasonably susceptible to more than one interpretation. IT IS FURTHER ORDERED that Union Pacific's thirteenth motion in limine to bar evidence or argument related to an "Act of God" defense (ECF No. And such communications took place shortly after the flood on February 21, 2017. B. Include Ninth Circuit case number in subject line. 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. See ECF No. Public Records Policy. (Id.) Second, Winecup argues that even if it does apply, it cannot have retroactive applicability. 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. (ECF No. The Offering Included All Owned Deeded Land, All Water Rights, Transfer of a Private-Use Year 'Round BLM Permit for 52,000 AUMs Plus All Machinery & Equipment. 3. Winecup Gamble, Inc. v. Gordon Ranch LP | D. Nevada | 03-17-2022 | www Because the agreement is ambiguous, we also vacate the denial of Winecup Gamble's motion for summary judgment. [21-15415] (AD) [Entered: 03/16/2021 06:44 PM], Docket(#2) Filed (ECF) Appellant Winecup Gamble, Inc. Union Pacific's seventh motion in limine to bar Winecup's contributory negligence defense and Derek Godwin's contributory negligence opinion (ECF No. 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. ECF No. 80.) [12101491] (DLM) [Entered: 05/04/2021 12:13 PM], (#7) Filed (ECF) Streamlined request for extension of time to file Opening Brief by Appellant Winecup Gamble, Inc.. New requested due date is 06/21/2021. REVERSED, VACATED, and . Razavian's February 27, 2019 deposition (occurring approximately two years before trial) and Razavian's January 17, 2020 declaration (provided approximately one year before trial) provide his opinion regarding the mile post 670.03 washout in great detail. Date of service: 03/16/2021. The amended agreement is certainly not susceptible only to the interpretation adopted by the district court, regarding whether the amendment sought to change or modify the detailed risk-of-loss scheme detailed in the terms of the parties' original agreement. R. EVID. 107 Ex. (#6) Filed order MEDIATION (SMC): This case is RELEASED from the Mediation Program. And emails by a party's agent or employee, when a proper foundation is laid, that shows the statements were made within the scope of employment, may constitute opposing party statements. ECF No. 107 Ex. vigorous cross-examination and presentation of contrary evidence, not exclusion, are the appropriate means of attacking whether Lindon used the "best" or "most accurate" data points, and therefore created an accurate model of the flood event. The most relevant evidence for these determinations would again be Mr. Worden's lost ESI. ECF No. Appellee Gordon Ranch LP answering brief due 07/21/2021. Union Pacific argues that due to the complexity of the Oroville Dam failure, evidence and argument on the topic would result in a "mini trial," and as the weather and flooding occurred outside the relevant watershed, the evidence is irrelevant. ECF No. 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. Jun. Godwin's opinion on rerouting is admissible. . ECF No. Id. If you do not agree with these terms, then do not use our website and/or services. Union Pac. Id. It is clear to the Court based on this argument that Union Pacific intends to offer the financial information as it relates to punitive damages. 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. ECF No. at 3. 170. 120. Id. ECF No. 141 at 6. 111-7 35-42. 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." 3:20-CV-00293 | 2020-05-18, U.S. District Courts | Contract | 5. winecup gamble ranch llc. 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[.]" 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. to simulate and re-create hydrologic process of watershed systems." See order for instructions and details. B at 23:14-21.) AnyLaw is the FREE and Friendly legal research service that gives you unlimited access to massive amounts of valuable legal data. [11769734] [20-16411] (Jordan, David) [Entered: 07/28/2020 03:34 PM], Docket(#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. 193. ECF No. 122) is GRANTED in part and DENIED in part in accordance with this Order. 151) is denied without prejudice. 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. 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. (ECF No. IT IS FURTHER ORDERED that Union Pacific's fourteenth motion in limine to bar evidence or argument about consulting experts (ECF No. Union Pacific Railroad Company v. Winecup Ranch, LLC et al Here, there can be no dispute that the parties are not the same and the subject matter is differentthis is a negligence action while Gordon Ranch was a contract dispute. However, Mr. Worden performed most of the negotiations for Plaintiff in reaching the agreement and amendment generating numerous emails and text messages with Mr. Fireman and others that allegedly no longer exist as well as other lost ESI. Id. Appellant's optional reply brief is due 21 days after service of the answering brief. Public Records Policy. ECF No. at 45, 50. 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. 132) on hearsay grounds. R. EVID. The Court's "inquiry into admissibility is a flexible one," in which the Court acts only as a gatekeeper, not a factfinder. Godwin's opinion on reconstruction costs is admissible. 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." Jan. 31, 2013). Price v. Sinnott, 460 P.2d 837, 839-40 (Nev. 1969). 33 Ex. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . 167. 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." Mediation Questionnaire. If expert opinions are not disclosed, "the party is not allowed to use that information or witness to supply evidence . See Part III.A.1.iii. On or about February 8, 2017, the 23 Mile dam overtopped and breached in two locations. 3.) Winecup opposes the admittance of this contested evidence on relevancy and admissibility grounds arguing that whether these exhibits should be admitted should be determined within the context of trial. It also helps that the Winecup Gamble has so many pastures to choose from. Godwin calculated the cost of rebuilding the embankments using data from RS Means 2018 and adjusted the total to 2017 prices. 155. Cancellation and Refund Policy, Privacy Policy, and WINECUP GAMBLE, INC., Plaintiff-Appellee, v. GORDON RANCH LP, Defendant-Appellant. Close to I-80. 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. 127). 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. During the deposition of Winecup's designated Rule 30(b)(6) witness, James Rogers, he testified that he "did not know" the answers to several of Union Pacific's questions. R. EVID. 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. Winecup argues that Union Pacific should only be permitted to recover the cost of replacing the culverts and embankments rather than the bridge "upgrade," and that it does not intend to argue whether culverts or bridges should have been built. 142) is GRANTED, as exhibits 10 and 11 contain information Union Pacific has marked "Confidential" under the Court's April 17, 2018 protective order and the request to seal is unopposed by Winecup. 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. ECF No. At nearly a million acres, the Winecup Gamble Ranch, a mountainous Nevada spread hard up against the Utah border, puts Rhode Island to shame. 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. ECF No. 157-24 at 4. Date of service: 03/16/2021. Winecup further argues that because Opperman is a neutral expert, deposed by both parties, and listed in Union Pacific's witness disclosures, Union Pacific will not be prejudiced by his testimony. Union Pacific's first amended complaint no longer included defendant Winecup Ranch, LLC, and its second amended complaint no longer included Paul Fireman. (internal quotations and citations omitted)). Shot over two years on the spring wagon. The record supports that Winecup had policies and procedures for monitoring and inspecting the dams, including the water level, inflow, and operational controls. 1. He claimed that Plaintiff orally instructed him to preserve his ESI, (Id. Fifth, the ESI was deleted without the intent to deprive Defendant of evidence. 34 Ex. Of Clark v. LB Props., Inc., 315 P.3d 294, 296 (Nev. 2013) (internal quotation marks and citations omitted).