McCabe v. Ramparts, Inc.

Filing 295

MINUTES OF PROCEEDINGS - Daubert/Motion Hearing held on 7/9/2012 before Judge Philip M. Pro. Crtrm Administrator: D. Sherwood; Pla Counsel: Robert W. Cottle, David A. Tanner; Def Counsel: Esther P. Holm, Jeffrey D. Olster, Dustin E . Woods; Court Reporter/FTR #: Joan Quiros, Henry Enriquez; Time of Hearing: 9:05 a.m.; Courtroom: 7C; Plaintiff's witnesses: David Grant Morrill, David Alfred Thompson; Defendant's witnesses: Michael Angelo Oostman . ORDERED Defendant's Motion in Limine 16 to Exclude Evidence that Luxor Violated any Statute or Regulation 240 and Plaintiff's Motion in Limine 13 to Exclude Evidence of Alcohol Consumption by Plaintiff 262 are GRANTED. Daubert/Motion Hearing continued to 7/10/2012 at 09:00 AM in LV Courtroom 7C before Judge Philip M. Pro. (SEE ATTACHED MINUTES). (Copies have been distributed pursuant to the NEF - DMS)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
KEVIN McCABE,

)
)
Plaintiff(s),
)
)
vs.
)
)
RAMPARTS, INC., d/b/a LUXOR)
HOTEL AND CASINO, etc.
)
)
Defendant(s).
)
PRESENT:

Case 2:08-CV-1232-PMP-GWF
MINUTES OF THE COURT
DATED: July 9, 2012

THE HONORABLE PHILIP M. PRO, U.S. DISTRICT JUDGE

DEPUTY CLERK: Donna Sherwood RECORDER: Joan Quiros, Henry Enriquez
COUNSEL FOR PLAINTIFF(S): David A. Tanner, Robert W. Cottle
COUNSEL FOR DEFENDANT(S): Esther P. Holm, Dustin E. Woods,
Jeffrey D. Olster
PROCEEDINGS: DAUBERT HEARING/HEARING ON PENDING MOTIONS IN LIMINE
9:05 a.m. Court convenes.
DAVID GRANT MORRILL, called on behalf of the Plaintiff, is sworn
and examined Mr. Tanner and Ms. Holm and questioned by the Court,
then is excused.
The Court hears the representations of Mr. Tanner as to opinions
relating to signage and pool depth he would seek to elicit from Mr.
Morrill at trial. Ms. Holm argues in opposition.
The Court finds as follows: The Court will not allow Mr. Morrill to
testify regarding compliance, or lack of compliance, with the
Nevada Administrative Code, as his testimony was that the signage
complied. The Court will further not allow Mr. Morrill to testify
as to what was reasonably visible to Plaintiff, McCabe, before he
dove into the pool as that is a consideration a jury can better
determine from evaluating all of the testimony and circumstantial
evidence in the case and is not a subject of expert testimony under
Rule 702. The remaining area of testimony concerning design of the
pool the Court will take under advisement and after the Court
reviews its notes and exhibits further, the Court will issue a
written ruling to what extent the Court will allow Mr. Morrill to
testify.

2:08-CV-1232-PMP-GWF
7/9/2012
Page 2

The Court hears the arguments of Mr. Olster and Mr. Tanner on
Defendants’ Motion in Limine 16 to Exclude Evidence That Luxor
Violated any Statute or Regulation [240].
The Court grants Defendants’ Motion in Limine 16 to Exclude
Evidence that Luxor Violated any Statute or Regulation [240]
because the granting of that motion effectively renders the second
claim for relief in Plaintiff’s Fourth Amended Complaint alleging
negligence per se to be a claim upon which Plaintiff could not,
under the circumstances of this case, be entitled to relief. The
Court will dismiss Plaintiff’s second claim for relief for
negligence per se from the Fourth Amended Complaint, which leaves
Plaintiff’s first cause of relief.
The Court hears the arguments of Mr. Cottle, Ms. Holm and Mr.
Olster on Plaintiff’s Motion in Limine 13 to Exclude Evidence of
Alcohol Consumption by Plaintiff [262].
The Court grants Plaintiff’s Motion in Limine 13 to Exclude
Evidence of Alcohol Consumption by Plaintiff [262] as follows: The
Court will not allow Mr. Elliott to testify about what a woman to
his left said about how many drinks McCabe had. The Court further
grants Plaintiff’s motion subject to reconsideration as to the AMR
records upon identification of the witness who authored the report.
11:30 a.m. Court stands at recess.
1:05 p.m. Court reconvenes.
DAVID ALFRED THOMPSON, called on behalf of the Plaintiff, is sworn
and examined by Mr. Cottle and Ms. Holm, then is excused.
The Court continues Mr. DeRosa to July 10th at 1:30 p.m.
2:54 p.m. Court stands at recess.
3:05 p.m. Court reconvenes.
MICHAEL ANGELO OOSTMAN, called on behalf of the Defendants, is
sworn and examined by Ms. Holm and Mr. Cottle, then is excused.

2:08-CV-1232-PMP-GWF
7/9/2012
Page 3
The Court confers with counsel on the line-up of experts for
tomorrow.
IT IS ORDERED the Daubert/Motion Hearing is continued to Tuesday,
July 10, 2012, at 9:00 a.m.
5:00 p.m. Court adjourns.
LANCE S. WILSON, CLERK
By:
/S/
Donna Sherwood, Deputy Clerk