Kawamura et al v. Boyd Gaming Corporation et al
Filing
235
ORDER Denying 207 Defendants' Motion for Summary Judgment. IT IS FURTHER ORDERED that 206 Defendants' Motion for Partial Summary Judgment is Denied. IT IS FURTHER ORDERED that 210 Defendants' Amended Renewed Motion to Exclude E xpert Testimony of Witness Ken Braustein is Denied, and 209 Defendants' Renewed Motion is Denied as moot. IT IS FURTHER ORDERED that 233 Defendants' Motion to Strike is Denied as moot. Signed by Judge James C. Mahan on 8/3/15. (Copies have been distributed pursuant to the NEF - PS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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CALVIN KAWAMURA and JEANIE
KAWAMURA,
ORDER
Plaintiff(s),
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v.
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Case No. 2:13-CV-203 JCM (GWF)
BOYD GAMING CORPORATION, et al.,
Defendant(s).
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Presently before the court is defendants Boyd Gaming Corporation and M.S.W., Inc., dba
Main Street Station Casino Brewery Hotel
(collectively defendants
judgment. (Doc. # 207). Plaintiff
motion for summary
filed a response,
(doc. # 215), and defendants filed a reply, (doc. # 225). Plaintiff then filed a sur-reply, (doc. #
229), and defendants filed a response to the sur-reply, (doc. # 230).1
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Plaintiff moved for leave to file a sur-reply in this matter. (Doc. # 226). Magistrate Judge
and allowed plaintiff to file a sur-reply and defendants to file a
response
-reply.
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James C. Mahan
U.S. District Judge
Plaintiff then impermissibly filed a reply to
response to its sur-reply. (Doc. #
232). Defendants filed a motion to strike
. (Doc. # 233). Plaintiff filed a response
to defendants motion to strike, (doc. # 234), asserting that the court granted him leave to file a
was due by July 24, 2015. (See doc. # 230). An automated deadline from
s it override the express
Magistrate Judge Foley expressly granted the plaintiff only a sur-reply, and defendants only a
response to the sur-reply. T
improperly filed reply to its surreply. Accordingly, the court will deny defendants motion to strike as moot.
Also before the court is
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motion for partial summary
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gross negligence and punitive damages claims. (Doc. # 206). Plaintiff filed a response, (doc. #
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213), and defendants filed a reply, (doc. # 223).
Finally
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amended renewed motion to exclude expert opinion
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testimony. (Doc. # 210).2 P
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court construes
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I.
to exclude. The
motion as a motion in limine.
Background
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state of Hawaii. The incident at issue occurred when the Kawamuras visited Las Vegas in May
2010.
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On or about May 26, 2010, the Kawamuras were gambling on the main casino floor of the
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Main Street Station Casino in downtown Las Vegas. At some point during the late evening to
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early morning hours, Calvin left Jeanie in search of the men s restroom. While in the restroom,
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Calvin, knocked him
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unconscious, and robbed him. Corson was homeless and had allegedly been hiding in the men s
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restroom.
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Paramedics transported Calvin to the emergency room, where he underwent several x-rays
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and CT scans. Emergency room physicians determined that Calvin sustained multiple fractures to
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his face and skull, and that his brain was bleeding.
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Calvin left the hospital on May 29, 2010, and the couple returned to Hawaii on June 2,
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2010. Calvin continued to experience complications from the assault, which required him to
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undergo additional CT scans and multiple burr hole evacuations.3 Plaintiff alleges that he and his
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wife live in constant fear that Calvin will suffer another brain bleed,
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that Calvin s cognitive abilities have declined significantly as a result of the attack.
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Defendants renewed motion to exclude expert opinion testimony, (doc. # 209), is moot.
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A burr hole evacuation is a medical procedure in which doctors drill a hole into the
James C. Mahan
U.S. District Judge
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Plaintiff has retained Ken Braunstein
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as an expert witness.
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Braunstein is an expert in casino security. Defendants filed a motion in limine to exclude
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ness testimony in federal
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court. (Doc. # 210).
II.
Legal standards
a. Summary judgment
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The Federal Rules of Civil Procedure provide for summary judgment when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
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a judgment as a matt
Fed. R. Civ. P. 56(a). A principal purpose of summary
Celotex Corp. v. Catrett,
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477 U.S. 317, 323-24 (1986).
In determining summary judgment, a court applies a burden-shifting analysis.
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party moving for summary judgment would bear the burden of proof at trial, it must come
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forward with evidence which would entitle it to a directed verdict if the evidence went
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uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the
C.A.R. Transp. Brokerage
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Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).
In contrast, when the nonmoving party bears the burden of proving the claim or defense,
the moving party can meet its burden in two ways: (1) by presenting evidence to negate an
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party faile
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which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 323-24. If the
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moving party fails to meet its initial burden, summary judgment must be denied and the court
See Adickes v. S.H. Kress & Co., 398 U.S.
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144, 159-60 (1970).
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If the moving party satisfies its initial burden, the burden then shifts to the opposing party
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to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith
James C. Mahan
U.S. District Judge
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Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the
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opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient
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T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’ n,
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809 F.2d 626, 631 (9th Cir. 1987).
In other words, the nonmoving party cannot avoid summary judgment by relying solely
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on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d
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1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and
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allegations of the pleadings and set forth specific facts by producing competent evidence that
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shows a genuine issue for trial. See Celotex, 477 U.S. at 324.
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determine the
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truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby,
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Inc., 477 U.S. 242, 249 (1986).
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justifiable inferences are to be drawn in his favor
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nonmoving party is merely colorable or is not significantly probative, summary judgment may be
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granted. See id. at 249-50.
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Id. at 255. But if the evidence of the
b. Motion in limine
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evidence is
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in limine are procedural mechanisms by which the court
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can make evidentiary rulings in advance of trial, often to preclude the use of unfairly prejudicial
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evidence. United States v. Heller, 551 F.3d 1108, 1111-12 (9th Cir. 2009); Brodit v. Cambra, 350
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F.3d 985, 1004-05 (9th Cir. 2003).
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in limine rulings, the
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nt authority to manage the course of
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Luce v. United States, 469 U.S. 38, 41 n.4 (1980). Motions in limine may be used to
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exclude or admit evidence in advance of trial. See Fed. R. Evid. 103; United States v. Williams,
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939 F.2d 721, 723 (9th Cir
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admit impeachment evidence under Federal Rule of Evidence 609).
James C. Mahan
U.S. District Judge
in limine that prosecution could
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Judges have broad discretion when ruling on motions in limine. See Jenkins v. Chrysler
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Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); see also Trevino v. Gates, 99 F.3d 911, 922 (9th
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[I]n limine rulings are not binding on the trial judge [who] may always change his mind
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Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce,
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469 U.S. at 41 (noting that in limine rulings are always subject to change, especially if the evidence
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unfolds in an unanticipated manner).
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all evidence contemplated by the motion will be admitted at trial. Denial merely means that
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without the context of trial, the court is unable to determine whether the evidence in question
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Conboy v. Wynn Las Vegas, LLC, no. 2:11-cv-1649-JCM-CWH, 2013 WL
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in limine does not necessarily mean that
1701069, at *1 (D. Nev. April 18, 2013).
c. Expert testimony
An expert witness may testify at trial if the
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Fed. R. Evid. 702. A
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expert
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he testimony is based upon sufficient facts or data; (2) the testimony is the
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product of reliable principles and methods, and (3) the witness has applied the principles and
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Id.; see also Kumho Tire v. Carmichael, 526 U.S. 137,
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141 (1999). Expert testimony is liberally admitted under the Federal Rules of Evidence. See
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Daubert, 509 U.S. at 588 (noting that Rule 702
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and their general approach of rela
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R. Evid. 702 (advisory committee notes to 2000 amendments)
see also Fed.
expert testimony is
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estimony or evidence admitted is not
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Daubert,
-scientific
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testimony . . . , the Daubert factors (peer review, publication, potential error rate, etc.) simply are
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not applicable to this kind of testimony, whose reliability depends heavily on the knowledge and
James C. Mahan
U.S. District Judge
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Hangarter v. Provident
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Life & Accident Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004) (citations omitted).
In such cases, the trial court s gatekeeping role under Daubert involves probing the
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expert s knowledge and experience. See id. at 1018.
is the proponent of the expert who has
Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th
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Cir. 1996).
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preponderance of the evidence. See Daubert, 509 U.S. at 592 n. 10 (citation omitted).
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III.
Admissibility of the expert s proposed testimony must be established by a
Discussion
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generally, which stem from the events of May 26, 2010. (Doc. # 207). Seemingly in the
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alternative, defendants also move for partial summary judgment in their favor on the issues of
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gross negligence and punitive damages in regards to the events of May 26, 2010. (Doc. # 206).
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a. Negligence
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Plaintiff sues defendants on a negligent security theory. To prevail, a plaintiff generally
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must show that: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached
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that duty; (
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suffered damages. Perez v. Las Vegas Med. Ctr., 805 P.2d 589, 590 (Nev. 1991). In a negligence
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action, the court should consider summary judgment with caution. See Sims v. Gen. Tel. & Elec.,
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815 P.2d 151 (Nev. 1991). The court will examine each element for any triable issues of material
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fact. Accordingly, the first inquiry is whether defendants owed any duty to plaintiff.
(4) the plaintiff
i. Duty
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Plaintiff argues that defendants were negligent because they owed a duty to plaintiff and
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the other guests of Main Street Station to place adequate security near the restroom where plaintiff
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was robbed.
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Nevada law evaluates the foreseeability element of duty in innkeeper liability cases by
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crimes committed on the premises. Doud v. Las Vegas Hilton Corp., 864 P. 2d 796, 800-01 (Nev.
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1993). Plaintiff and his expert maintain that Main Street Station Hotel and Casino
James C. Mahan
U.S. District Judge
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has
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fifteen
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entire United States. (Doc. #
213 at 11).
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Defendants do not deny that their casino is in an inherently dangerous neighborhood.
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However, defendants assert that Main Street Station is not inherently dangerous simply because
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its surrounding neighborhood is dangerous. Defendants
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The court finds
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Any business
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that opens its doors to the public is likely to be affected by the segment of the public that lives
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closest to its premises. Neighborhood crime statistics would provide important information for
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analyzing the foreseeability
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Plaintiff offers evidence of prior crimes at Main Street Station and maintains that these
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crimes are sufficiently similar to his assault and robbery. Plaintiff notes an attempted robbery
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outside another of the
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restroom. (Doc. # 215 at 28). Plaintiff also notes numerous other incidents involving transients
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loitering in casino restrooms, undesirables stalking casino patrons, and other assaults and
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batteries on the premises. (Doc. # 215 at 28-29).
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Defendants counter that none of the prior crimes noted by plaintiff involved a serious
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injury. (Doc. # 225 at 12-13). However, the foreseeability standard is silent as to whether a given
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crime must involve a similar degree of injury to the victim to be considered a prior similar crime.
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restrooms. A reasonable jury could conclude that defendants had notice of enough prior similar
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crimes to conclude that a crime in or around a restroom was foreseeable.
The location and character of
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casino and the prior similar crimes committed
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inside the casino all indicate that a jury could find that the assault against plaintiff was foreseeable.
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Therefore, triable issues of fact exist as to whether defendants owed a duty to plaintiff.
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Accordingly, the court will deny
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...
James C. Mahan
U.S. District Judge
motion for summary judgment.
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b. Gross negligence and punitive damages
i. Gross negligence
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Gross negligence is very great negligence, or the absence of slight diligence, or the want
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of even scant care . . . [or] indifference to present legal duty . . . [or] utter forgetfulness of legal
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Hart v. Kline, 116 P.2d 672, 672 (Nev. 1941).
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The Ninth Circuit has
gross in [a] particular case is a matter of fact that must
Chem. Bank v.
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Sec. Pac. Nat’ l Bank, 20 F.3d 375 (9th Cir. 1994).
However,
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for discovery and upon motion, against a party who fails to make a showing sufficient to establish
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the existence of an element
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burden of proof at trial. Celotex, 477 U.S. at 322.
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Plaintiff alleges that
conduct was grossly negligent because the stagnant
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policies and procedures in Main Street Station
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enter the casino and commit crimes. (Doc. # 213 at 11). Further, plaintiff alleges that defendants
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they trained their casino
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security to focus more on watching the flow of casino money than protecting casino guests.
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Plaintiff maintains that these shortcomings prove that defendants were grossly negligent.
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to
Defendants respond in two ways. First, they assert that the actions casino security
personnel took after the attack amounted to reasonable care, or at least rose to the lev
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them to evade accusations of gross negligence. Plaintiff responds by stating that
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post-accident actions have no bearing on whether they took enough pre-accident steps
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to prove that they were not grossly negligent when they failed to protect plaintiff.
Second, defendants maintain that Corson attacked plaintiff so quickly as to make the
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harm plaintiff endured completely unforeseeable. Defendants state that the homeless assailant
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entered the restroom, attacked the plaintiff, and left
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James C. Mahan
U.S. District Judge
all within one minute (Doc. # 223 at 15).
Defendants base their assertion that they were not grossly negligent largely on Racine v.
PHW Las Vegas, LLC, 46 F. Supp. 3d 1028 (D. Nev. 2014), which is not binding on this court.
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In Racine, a man sexually assaulted a female guest at the Planet Hollywood Resort and Casino
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after he had been following several other female guests. The Racine court found that Planet
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Hollywood was not grossly negligent because it
; that the security personnel contacted Las Vegas
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Metropolitan Police Department;
46 F. Supp. 3d at 1044.
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ntained video surveillance of
Plaintiff responds that defendants misinterpret Racine. Plaintiff asserts that defendants
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actions are distinguishable from
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Hollywood took steps before Ms. Racin
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in Racine because Planet
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only after Corson attacked him.
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The care involved in tort analysis focuses on the reasonable care a defendant takes to
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plaintiff from sustaining a foreseeable injury. Kensinger v. E.I. Du Pont de
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Nemours, 244 Fed. Appx. 114, 115-16 (9th Cir. 2007).
post-accident actions does not absolve defendants from a finding of gross negligence as
a matter of law. Therefore, the court will deny
partial summary judgment motion.
ii. Punitive damages
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focus on their security
A plaintiff must demonstrate by clear and convincing evidence that the defendant is
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guilty of oppression, fraud, or express or implied malice in order to receive an award of punitive
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damages. N.R.S. § 42.005(1). This standard
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clear as to leave no substantial doubt. Wynn v. Smith, 16 P.3d 424, 431 (Nev. 2001), that the
. Countrywide Home Loans, Inc. v. Thitchener,
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192 P.3d 243, 255 (Nev. 2008).
Where a plaintiff has not met this burden, the court may deny a claim for punitive
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damages as a matter of law. See e.g., Warmbrodt v. Blanchard, 692 P.3d 1282, 1286 (Nev.
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1984) (superseded by statute on other grounds) (holding permissible a trial court s refusal to give
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a punitive damages instruction where evidence to support such damages had not been received in
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the case).
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James C. Mahan
U.S. District Judge
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Defendants maintain that plaintiff does not have clear and convincing evidence of
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punitive damages, and they state that plaintiff pleads the boilerplate language for punitive
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damages without alleging any specific facts showing oppression, fraud, or malice. Plaintiff
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alleges that defendants acted with either oppression or implied malice when they deliberately
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failed
of vagrants stalking their patrons in
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Further, plaintiff alleges that
failure to keep watch over their patrons was
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deliberate because the casino and
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money during scheduled pit drops and slot drops. (Doc. # 215 at 9-12).
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Plaintiff offers this explanation as an alternative to other possible theories for
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conduct, such as gross or simple negligence. The court finds that enough evidence exists to
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allow a factfinder to determine whether defendants acted with oppression or implied malice.
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Therefore, the court will deny
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gross negligence and punitive damages.
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partial motion for summary judgment on the issues of
c. Motion in limine – expert testimony
Defendants seek to exclude Ken
. Braunstein has
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served as an expert witness for casino security cases for over 35 years. Presumably, Braunstein
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will opine that defendants were grossly negligent for failing to post adequate security near the
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restroom where plaintiff was assaulted.
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In his December 22, 2014, deposition, Braunstein refers to a report in which he drew four
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conclusions: (1) that
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poorly managed; (3) that
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that the casino failed to follow its own procedures. (Doc. # 210-1).
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security is inadequate; (2) that the Main Street Station casino is
hiring process for casino security officers is lacking; and (4)
Defendants seek to exclude
testimony. According to defendants,
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opinions include legal conclusions that could
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(Doc. # 210 at 2).
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James C. Mahan
U.S. District Judge
of the case.
Fed. R. Evid. 704.
opinion as to [his] legal conclusion, i.e., an opinion on an ultimate issue of law. Similarly,
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Nationwide Transport Finance v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th Cir. 2008)
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(internal citations and quotations omitted).
The court finds that Braunstein, based on his specialized knowledge in the field, may offer
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his expert opinion on
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However, Braunstein may not instruct the jury that defendants were negligent as a matter of law
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when they made their security decisions. Accordingly, the court will deny
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exclude the expert testimony of Ken Braunstein.
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IV.
degree of negligence in regards to its security practices.
motion to
Conclusion
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Accordingly,
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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
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summary judgment, (doc. # 207), be, and the same hereby is, DENIED.
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IT IS FURTHER ORDERED
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# 206), be, and the same hereby is, DENIED.
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amended renewed motion to exclude the
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expert testimony of witness Ken Braunstein, (doc. # 210), be, and the same hereby is, DENIED.
209), is DENIED as moot.
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as moot.
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, (doc. # 233), is DENIED
DATED August 3, 2015.
__________________________________________
UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge
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