FED. The parties are reminded that the meet-and-confer is not perfunctory, and the parties should not seek Court intervention unless they have reached an impasse and have no other choice but to seek the Court's guidance. Union Pacific does not argue that the considerations Godwin looked at, including tracks in service, crew variability, and trains per day, are not to be considered in reaching such a conclusion on rerouting costsits own expert Stephen Dolezal considered characteristics for available tracks, which included run time between the end points of damaged tracks, track speeds, expected train sizes, and siding and auxiliary track availability. 3.) [12048869] (BLS) [Entered: 03/22/2021 11:05 AM], (#2) Filed (ECF) Appellant Winecup Gamble, Inc. Stephanie Hoit Lee & David N. Finley, Federal Motions in Limine 1:1 (2018). Winecup argues that this regulation does not "substantially subsume the subject matter of" culvert size, and therefore, it cannot preempt the state common law standard. 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. S.E.C. 108.) (See, e.g., ECF No. 193) is granted in part and denied in part. 107 Ex. 37, 89), to which Winecup has answered (ECF No. Lastly, Union Pacific motions the Court to amend the pretrial order (ECF No. Id. 157-24 at 4. ECF Nos. (Id.) 127) is denied without prejudice. Cal. Accordingly, the Court finds that section 213.33 does not preempt Winecup's affirmative defense. NRS 42.005(1). 124) is DENIED. The parties shall bear their own costs on appeal. 4 (Letter between counsel noting a telephone conversation on February 21, 2017 between counsel discussing their legal positions).) 111-7 31-33. 191 at 2, n.1. However, Union Pacific may qualify for punitive damages for its claims of trespass and nuisance. 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. The parties have submitted a total of 27 motions in limine. The Court finds that allowing Union Pacific to amend the pretrial order on this issue will not result in injustice to Winecup and any inconvenience to the Court is slight. For clarity, the Court address the parties' competing motions for exclusion together here. ECF No. The Court reiterates that the District Court has temporarily suspended all jury trials until further notice. First, the evidence shows that the ESI was deleted after a duty arose to preserve it. Accordingly, the late disclosure was harmless, and Lindon will be permitted to testify on the subject. This model is "industry standard used by the Army Corps of Engineers . Before deciding on how damages are to be calculated, the Court will permit Winecup the opportunity to respond to Union Pacific's reply; briefing is not to exceed 15 pages of argument, excluding tables of contents and authorities and administrative notices. R. CIV. 88.) 7125918, at *24 (D. Nev. Dec. 4,, Full title:UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Plaintiff, v, Court:UNITED STATES DISTRICT COURT DISTRICT OF NEVADA. Union Pacific has twice amended its complaint (ECF Nos. 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. 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.[11770017]. 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. Union Pacific has presented no evidence or rule to support the Court's exclusion of any and all evidence or testimony on the issue. The following definitions are relevant to making this determination: (1) oppression means "despicable conduct that subjects a person to cruel and unjust hardship with conscious disregard of the rights of the person"; (2) fraud means "intentional misrepresentation, deception or concealment of a material fact known to the person with the intent to deprive another person of his or her rights or property or to otherwise injure another person"; (3) malice, express or implied, means "conduct which is intended to injure a person or despicable conduct which is engaged in with a conscious disregard of the rights or safety of others"; and (4) conscious disregard means "the knowledge of the probable and harmful consequences of a wrongful act and a willful and deliberative failure to act to avoid these consequences." Margrave, 878 P.2d at 293; see Bielar v. Washoe Health Sys., Inc., 306 P.3d 360, 364 (Nev. 2013) ("[E]very word [in a contract] must be given effect if at all possible.") 120-1. ii. For 25 years, Lindon worked at the Utah Department of Natural Resources, Division of Water Rights, Dam Safety Section, in part, creating "hydrological models to simulate hypothetical storms and floods and re-create actual events, such as rain on snowpack events, that resulted in flooding and dam failures." ECF No. 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. ECF No. 1. R.R. SMITH, Circuit Judges, and OLGUIN, District Judge. . (Id. The offending language in the email states: A statement that is offered against an opposing party and "was made by the party's agent or employee on a matter within the scope of that relationship and while it existed" is not hearsay. While Union Pacific pleads that it "may rely on additional statutes and administrative codes that may become known to be applicable in the future," it does not list any Nevada Revised Statute that would provide the basis for its negligence per se claim. ECF No. Nevertheless, Mr. Worden claims that he does not have the emails anymore as a result of a company policy to not preserve emails (Id. Federal Rule of Evidence 706 permits district courts, in their discretion, to appoint a neutral expert. 125) is granted in part and denied in part. Union Pacific provides that it does not intend to proffer any evidence related to non-party Paul Fireman. ECF No. 34 Ex. 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. "A statutory violation is negligence per se if the injured party belongs to the class of persons whom the statute was intended to protect, and the injury suffered is of the type the statute was intended to prevent." WINECUP GAMBLE, INC., Plaintiff-Appellee, v. GORDON RANCH LP, Defendant-Appellant. Accordingly, the Court denies Union Pacific's twelfth motion in limine without prejudice and reserves the issue for trial. 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: . 111. B at 2. 120-2 at 5 ("HEC-HMS and HEC-RAS are probably the most extensively applied water-related modeling systems in the world. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . The Court finds that the legal issues and circumstances presented in this case are not so complex or exceptional that a neutral expert is needed to assist the trier of fact and, therefore, denies Union Pacific's motion to do so. The Court finds that while Winecup's disclosure that it intends to have these witnesses testify as a non-retained experts was technically late, Union Pacific has not been prejudiced by this late disclosure and it is harmless. ECF No. Following the Nevada Supreme Court in Thitchener, as a matter of law, a plaintiff is not entitled to pursue punitive damages on negligence claims. IT IS FURTHER ORDERED that Union Pacific's eighteenth motion in limine to bar Winecup from offering evidence or argument about preserving the Dake dam for pike (ECF No. Id. Defendant moves for sanctions against Plaintiff alleging that its agents spoliated valuable electronically stored information (ESI). Motions in limine should not be used to resolve factual disputes or to weigh evidence, and evidence should not be excluded prior to trial unless the "evidence is clearly inadmissible on all potential grounds." Tex. In April 2018, the parties deposed Holt and Quaglieri, and in April 2019, the parties deposed Opperman. [12050510] (BLS) [Entered: 03/23/2021 10:57 AM], Docket(#4) MEDIATION CONFERENCE SCHEDULED - DIAL-IN Assessment Conference, 03/31/2021, 12:00 p.m. PACIFIC Time. The Court is satisfied that this procedure was effective at the time. 195. Here, the email communication between Union Pacific's employees appears to be within the scope of their employment. 107 Ex. 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. 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. Razavian declares that "[a]ccepted hydrological methodology requires a hydrologist to consider all of the above evidence in determining flow of flood water." Both parties appeal. 2004); see Mizzoni v. Allison, 2018 WL 3203623 at*5 (D. Nev. 2018) (citing to Zubulake). "When experts serve as testifying witnesses, the discovery rules generally require the materials reviewed or generated by them to be disclosed, regardless of whether the experts actually rely on those materials as a basis for their opinions." 10. Accordingly, the Court enters such a sanction and closes the case. Id. Union Pacific argues that because Winecup was required under Nevada law to maintain the 23 Mile dam to withstand a 100-year flood event and the Dake dam to withstand a 1000-year flood event, the failure of the dams and the subsequent flooding could not be considered "abnormal" or free from "human assistance or influence" such that Winecup could prove the prima facia elements of the defense.
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