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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. 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. [21-15415] (AD) [Entered: 03/16/2021 06:44 PM], Docket(#2) Filed (ECF) Appellant Winecup Gamble, Inc. ECF No. IT IS FURTHER ORDERED that Union Pacific's fifth and sixth motions in limine to Bar Two Opinions of Derek Godwin (ECF No. The Winecup-Gamble Ranch contains 247,000 acres of deeded land and permitted grazing access to roughly 750,000 additional acres of public and private land. The Winecup and Gamble Ranch was put back together after the split in 1957, according to ranch history. Union Pacific does not argue that this modeling program is improper or not the industry standard model. 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. Winecup opposes the motion arguing that Opperman is not a retained expert, and therefore, it did not violate Rule 26 by not submitting a written expert report to Union Pacific. 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. Fla. 2018) ("[T]he issue of whether there was a force majeure or Act of God that caused the incident is an issue of fact, which cannot be decided on a motion to strike."). Id. 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. 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. 3:17-CV-00163-RCJ-WGC United States District Court, D. Nevada Signed Febr. iv. Full title:WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, Court:UNITED STATES DISTRICT COURT DISTRICT OF NEVADA. Second, Winecup argues that even if it does apply, it cannot have retroactive applicability. See ECF No. FED. 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. Id. The ranch, in 2016, was for sale again. R.R. 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." [12029509] (JBS) [Entered: 03/09/2021 01:23 PM], U.S. District Courts | Property | An Act of God "must be such a providential occurrence or extraordinary manifestation of the forces of nature that it could not reasonably have been foreseen, and the effect thereof avoided by the exercis[e] of reasonable prudence, diligence and care, or by the use of those means which the situation renders reasonable to employ." 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. 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. See ECF No. Winecup opposes, arguing that Union Pacific cites no authority or foundation for the Court on which to make such a ruling. 2014) (quoting Primiano, 598 F.3d at 564). Such that there is virtually no chance of its being exceeded."). 2011). The Court recognizes that "[i]t is time-consuming when counsel circulate exhibits among the jurors, and it disrupts the examination of witnesses, except where the physical qualities of an object are themselves relevant." And while "[i]n some cases, it may be cost-effective for counsel simply to provide jurors with individual binders containing indexed copies of selected exhibits central to the presentation at trial," electronic display systems that show everyone in the courtroom the exhibit simultaneously likewise "significantly assist jury involvement and comprehension and expediate trial." 150) is DENIED without prejudice. 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." They include Needle-and-Thread, Great Basin wild rye, Russian wild rye, Indian rice, crested wheat, bluebunch wheat, Sandberg blue, and bottlebrush squirrel tail. 143) is DENIED. 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. 1. ECF No. 112) are denied. Fifth, the ESI was deleted without the intent to deprive Defendant of evidence. Union Pacific argues that Winecup is barred from asserting an "Act of God" defense. ECF No. 139-4 at 4. Id. ECF Nos. The case status is Pending - Other Pending. (ECF No. 157-32 at 2. If expert opinions are not disclosed, "the party is not allowed to use that information or witness to supply evidence . 134. 89 22-24. Union Pacific requests the Court bar Winecup from admitting a paragraph of an email from a Union Pacific employee discussing traffic incidents with a Nevada Department of Transportation employee. Both parties appeal. Email. Id. ECF No. However, Union Pacific may qualify for punitive damages for its claims of trespass and nuisance. Winecup opposes this request as unnecessary. 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. Id. 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. 3:17-CV-00477 | 2017-08-10, U.S. District Courts | Other | 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. AnyLaw is the FREE and Friendly legal research service that gives you unlimited access to massive amounts of valuable legal data. The briefing schedule previously set by the court remains in effect. 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. IT IS FURTHER ORDERED that Union Pacific's sixteenth motion in limine to bar two words in an email with profane reference (ECF No. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . winecup gamble inc. winecup gamble ranch people. The existing briefing schedule remains in effect. The State Engineer will assign all dams a hazard classification. Union Pacific motions the Court to exclude Winecup's expert, Matthew Lindon, from providing opinions on meteorological and hydrological issues. (See, e.g., ECF No. Id. We are so incredibly thankful that Patrick Bates and David Packer of Bates Land Consortium, Inc chose us to produce this mammoth of a marketing video. 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. Get free access to the complete judgment in Winecup Gamble, Inc. v. Ranch on CaseMine. Plaintiff admitted that Mr. Worden was the principal negotiator in forming the deal resulting in some text messages between him and Mr. Fireman. Federal Rule of Civil Procedure 37(c)(1) provides that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness . Transcript ordered by 08/21/2020. In 1996, the inspection report provided that the spillway appeared undersized. In the event of a dam failure, a significant hazard dam carries a "(1) reasonable probability of causing loss of life; or (2) high probability of causing extensive economic loss or disruption in a lifeline;" and a low hazard dam carries a "(1) Very low probability of causing a loss of human life; and (2) Reasonable probability of causing little, if any, economic loss or disruption in a lifeline." 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." (See, e.g., ECF No. 34 Ex. 111 & 112. Appellant Winecup Gamble, Inc. opening brief due 10/30/2020. Lindon will be permitted to disagree with Razavian's conclusions just as Razavian will be permitted to disagree with Lindon's. 132) is granted. C. Patrick Bates 801-560-4259 cpb@bateslandco.com. Here, culverts and earthen embankments existed at the washed-out track locations. [11769971] (BLS) [Entered: 07/28/2020 05:05 PM], (#2) Filed (ECF) Appellant Winecup Gamble, Inc. 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. And the best part of all, documents in their CrowdSourced Library are FREE! at 4 (citing Ringle v. Bruton, 86 P.3d 1032, 1037).) In Zubulake, the court held that it was insufficient for a party to send a litigation hold letter to an IT department without ensuring that "all relevant information (or at least sources of relevant information) is discovered," "that relevant information is retained on a continuing basis," and "that relevant nonprivileged material is produced to the opposing party." 34 Ex. However, they do not currently have these texts messages, and Mr. Fireman admitted that no one had searched his phone to attempt to preserve the text messages. 141-2 6. Whether an Act of God caused 23 Mile dam's failure and subsequent flooding and damage to Union Pacific's railroad tracks is an issue of fact for the jury. 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. Razavian's expert report concludes the following regarding the cause of track washouts: Rule 26 of the Federal Rules of Civil Procedure states that an expert must provide "a complete statement of all opinions the witness will express and the basis and reasons for them." 129) is DENIED without prejudice. [11762326] (JBS) [Entered: 07/22/2020 02:44 PM]. 403. Id. 112. Cir. Once a prevailing party has been determined, that party should be allowed to request or move for an award of reasonable attorneys' fees, as such an award is available to the prevailing party under the plain terms of the agreement. 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." ECF No. 107, Ex. Second, Defendant has not established that the deletions occurred prior to a duty to preserve ESI. IT IS FURTHER ORDERED that Plaintiff's Complaint (ECF No. 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. Reading the parties' agreement as a whole, it is reasonably susceptible to more than one interpretation. The schedule is set as follows: Appellant Winecup Gamble, Inc. 250,000 ACRES DEEDED LAND WITH GRAZING RIGHTS ON OVER 1,000,000 ACRES. 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). Lindon disputes that he erred as to either point. P. 37(e). . [11769971] (BLS) [Entered: 07/28/2020 05:05 PM], Docket(#2) Filed (ECF) Appellant Winecup Gamble, Inc. 135. While, Mr. Worden claimed that, "I could have deleted those emails right after the conversation," (ECF No. "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." ECF No. SMITH, Circuit Judges, and OLGUIN, District Judge. "A corporation generally cannot present a theory of the facts that differs from that articulated by the designated Rule 30(b)(6) representative." 131), and reserves any ruling on this issue for trial. IT IS FURTHER ORDERED that Union Pacific's third motion in limine to facilitate efficient management of exhibits and testimony (ECF No. 2:12-cv-01727-APG-NJK, 2014 WL 12646048, at *2 (D. Nev. May 28, 2014). 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.