160-3 at 44. R. CIV. WINECUP GAMBLE, INC., Plaintiff-Appellee, v. GORDON RANCH LP, Defendant-Appellant. R. CIV. The parties subsequently signed a three-page amendment to the agreement that changed the closing date and increased the earnest money to five million dollars. Union Pacific's fifteenth motion in limine to bar one paragraph in email referencing contract truck driver incidents (ECF No. ECF No. 2. 160-2. 3.) 5. 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."). 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. 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. (Id. 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. Cir. Before the court are a total of 27 motions in limine; 21 motions filed by Union Pacific Railroad Company ("Union Pacific") (ECF Nos. (Id.) Union Pacific motions the Court to bar Winecup from offering evidence of the Oroville Dam spillway failure and the weather and flood conditions that occurred in February 2017 in California and western Nevada. In 1996, DWR indicated that it appeared that new hydraulic controls were presented, and that plans and specifications for these plans needed to be submitted. Appellant Winecup Gamble, Inc. opening brief due 10/30/2020. 33 Ex. (internal quotations and citations omitted)). Though the Winecup Gamble does not cover 3 million acres anymore, it is still a large ranch operating on about 1,000,000 acres of the original ranch running Brangus and Angus cattle bred to Herefords. The Court considers the overall statutory and regulatory scheme and finds that the hazard classifications assigned by the State Engineer must be considered within the context of NAC 535.240. 20106(a)(2). 141) is denied. 133) is denied without prejudice. SEE ORDER FOR DETAILS. Winecup Gamble Ranch Location PO Box 249, Montello, Nevada, 89830, United States Description Industry Agriculture General Agriculture Discover more about Winecup Gamble Ranch Recent News About Erica Beck Scoops Intent Scoops about Winecup Gamble Ranch 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. The determination of whether evidence is relevant to an action or issue is expansive and inclusive. Union Pacific's ninth motion in limine to bar mention to the jury of the notion that Nevada's dam statutes and regulations do not apply to the Winecup dams due to their age (ECF No. 3. 171 at 4-5. ECF No. The trend, however, did not spread to the rest of the 10 provinces. Therefore, the Court finds that under Nevada state law, Winecup is not permitted to offer evidence that a non-party is comparatively negligent. IT IS FURTHER ORDERED that Union Pacific's ninth motion in limine to bar mention to jury of notion that Nevada's dam statutes and regulations do not apply to the Winecup dams due to their age (ECF No. 131), and reserves any ruling on this issue for trial. Godwin testified at his deposition that he was familiar with what railroads need to consider when addressing rerouting, including which tracks were in service, crew variability, how many crews they have on standby, how many trains are running per day. On or about February 8, 2017, the 23 Mile dam overtopped and breached in two locations. S.E.C. Id. If the parties determine that a jury trial is necessary, the Court would expect the 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. 139-4 at 4. 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. (citing Beaver Valley Power Co. v. Nat'l Eng'g & Contracting Co., 883 F.2d 1210, 1221 (3d. AnyLaw is the FREE and Friendly legal research service that gives you unlimited access to massive amounts of valuable legal data. The amended order should include both the agreed amendments and those permitted by this Order. ECF No. Daubert, 509 U.S. at 592-94. The Federal Railroad Safety Act ("FRSA") was enacted "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 11. 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. 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. 131) is DENIED without prejudice. 111) is DENIED. 111-7 35-42. Date of service: 07/28/2020. ECF No. Union Pacific requests the Court bar Winecup from asking questions or offering evidence or argument about "consulting experts," pursuant to Federal Rule of Civil Procedure 26(b)(4)(D). 3:20-CV-00029 | 2020-01-15, U.S. District Courts | Contract | Id. The district court based its decision on the fact that the terms of the parties' agreement, as amended, were clear and unambiguous on the critical question of whether the amendment was intended to shift or modify the risk-of-loss scheme. Fourth, Defendant has shown that Plaintiff acted with the intent to deprive Defendant of the information. Judgment was entered accordingly. [11769971] (BLS) [Entered: 07/28/2020 05:05 PM], (#2) Filed (ECF) Appellant Winecup Gamble, Inc. Id. . [12029509] (JBS) [Entered: 03/09/2021 01:23 PM]. Lindon created a hydrological model that simulates the February 2017 flood using the Hydrologic Modeling System created by the Hydrologic Engineering Center within the U.S. Army Corps of Engineers (known as "HEC-HMS"). ECF No. 158 at 2-3. 129) is denied without prejudice. 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. Countrywide Home Loans, Inc. v. Thitchener, 192 P.3d 243, 252-53 (Nev 2008) (citing Evans v. Dean Witter Reynolds, Inc., 5 P.3d 1043, 1052 (2000)). NRS 42.005(1). See Emblaze Ltd. v. Apple Inc., 52 F. Supp. 135. "); Shamnoski v. PG Energy, 579 Pa. 652, 671 (Pa. 2004) (reasoning that for a negligence per se holding, "the statute at issue would have to be so specific as to leave little question that a person or entity found in violation of it deviated from a reasonable standard of care." 161. 157-24 at 4. Similarly, in its second motion in limine, Union Pacific motions the Court to exclude Winecup's expert, Matthew Lindon, from testifying on the same subject. He has "significant experience with hydrometerorology, surface water hydrology, modeling, and dam safety hydrology." ECF No. Colony Ins. See, e.g., Mallard Bay Drilling, Inc. v. Bessard, 145 F.R.D. 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. 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. NAC 535.140. 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. However, "if a regulation is a first-time interpretive regulation, application to preexisting issues may be permissible." ECF Nos. 176) is granted. Previously, Joe was a Student at King Ranch and also held pos itions at Roaring Springs Ranch Club. Because the agreement is ambiguous, we also vacate the denial of Winecup Gamble's motion for summary judgment. Cnty. 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. 12. 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." D.C. No. 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." (#6) Filed order MEDIATION (SMC): This case is RELEASED from the Mediation Program. ECF No. Mason v. Fakhimi, 865 P.2d 333, 335 (Nev. 1993) (citing Haromy v. Sawyer, 654 P.2d 1022, 1023 (Nev. 1982). This is the subject of Winecup's first motion in limine; therefore, Union Pacific's arguments will be addressed below. Union Pacific motions the Court to exclude both Winecup's contributory negligence defense and Godwin's expert opinions that relate to this defense. Winecup does not dispute that some of Nevada's dam statutes and regulations apply to its 23 Mile and Dake dams; however, it argues that a blanket ruling that it can't argue that any of these regulations or statutes do not apply is overbroad and contrary to a plain reading of many of the sections. See ECF No. Under Federal Rule of Evidence 705, "[u]nless the court orders otherwise, an expert may state an opinionand give the reasons for itwithout first testifying to the underlying facts or data. Union Pacific's combined fifth and sixth motion in limine to bar two opinions of Derek Godwin (ECF No. Winecup opposes this request as unnecessary. 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. 80 at 2. The Honorable Fernando M. Olguin, United States District Judge for the Central District of California, sitting by designation. 801(d)(2)(D). Co., 372 F.Supp.3d 470, 484 (W.D. Winecup provides that it only intends to have these experts testify to that which is contained within their respective depositions and reports. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . 1986) (citing Georgia-Pacific Corp. v. U.S., 640 F.2d 328, 334 (Ct. Cl. Additionally, the Ninth Circuit did not rule on whether Plaintiff's interpretation of the contract constituted a penalty clause. [11770779] [20-16411] (Lundvall, Pat) [Entered: 07/29/2020 01:50 PM], Docket(#4) The Mediation Questionnaire for this case was filed on 07/28/2020. ECF No. . 422 (S.D.N.Y. The Ranch owns extraordinary water rights for 2,500 acres of productive irrigated crop land and 8,750 acres of strong irrigated and sub-irrigated pasture plus . Id. IT IS FURTHER ORDERED that Winecup's fifth motion in limine to exclude evidence and argument related to an Emergency Action Plan for the Dake Dam (ECF No. Extremely limited rainfall, roughly 7 inches annually, makes . Given this pandemic, the Court will allow witnesses to appear by ZOOM video conferencing. See General Order 2020-03. 175. 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." 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. It is not common for courts to appoint neutral experts and "usually do so only in exceptional cases in which the ordinary adversary process does not suffice or when a case presents compelling circumstances warranting appointment of an expert." 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." Union Pacific further argues that evidence of Winecup's financial condition is "to allow the jury to fully evaluate the decades of neglect, to see it was not due to financial straits but was fully calculated and intentional with an eye to profits." Specifically, the accountings of Plaintiff's ranch are pertinent to whether Plaintiff's interpretation of the contract amounts to an unenforceable penalty. Winecup Gamble Ranch corporate office is located in #1 Winecup Rd, Montello, Nevada, 89830, United States and has 4 employees. Mar. unless the failure was substantially justified or is harmless." 9. IT IS FURTHER ORDERED that Union Pacific's third motion in limine to facilitate efficient management of exhibits and testimony (ECF No. While a degree or certificate in a certain area is helpful to support expert qualification, a witness can be qualified by "knowledge, skill, experience, [or] training," as well as education. 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. The Court directs readers to Part III.B.2-3 below for a larger discussion on this issue, as it is related but not entirely on point to Union Pacific's tenth motion in limine. 34 Ex. 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. Appellant Winecup Gamble, Inc. opening brief due 10/30/2020. [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). Accordingly, the late disclosure was harmless, and Lindon will be permitted to testify on the subject. 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. Joe Glascock's Phone Number and Email Last Update. Id. 151) is DENIED without prejudice. And, necessarily, the regulation must apply to all dams, not just those in existence after March 15, 1951. Date of service: 03/16/2021. 120-1 at 3. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA. And such communications took place shortly after the flood on February 21, 2017. The Court took numerous safety precautions in the courtroom to ensure that all participants, attorneys, witnesses, and the Court staff, were protected, which included installing plexiglass partitions and implementing sanitization protocols. Under Nevada law, the question of "[w]hether or not a document is ambiguous is a question of law for the court." The Court notes that this repair does not show up in either the 2012 or 2016 inspection report which would indicate the repair was made sometime between 2003 and 2012. ECF No. Union Pacific provides that it does not intend to proffer any evidence related to non-party Paul Fireman. ECF No. Lindon disputes both asserted errors. 134) is denied without prejudice. Some of the most important evidence for this inquiry would be the work papers of Plaintiff's accountant, Mr. Worden, who no longer has any ESI on his devices regarding this case. If you do not agree with these terms, then do not use our website and/or services.
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