Union Pacific Railroad Company v. Winecup Ranch, LLC et al

Filing 198

ORDER regarding motions in limine. • DENYING ECF Nos. 111 Union Pacific's first motion in limine; 112 Union Pacific's second motion in limine; 123 Union Pacific's fourth motion in limine; 139 U nion Pacific's fiffth and sixth motions in limine; 124 Union Pacific's seventh motion in limine; 126 Union Pacific's ninth motion in limine; 127 Union Pacific's tenth motion in limine; 141 Winecup' ;s first motion in limine; 143 Winecup's second motion in limine • DENYING WITHOUT PREJUDICE ECF Nos. 128 and 175 Union Pacific's eleventh and nineteenth motion in limine; 129 Union Pacific's twelfth motion in limine; 130 Union Pacific's thirteenth motion in limine; 131 Union Pacific's fourteenth motion in limine; 133 Union Pacific's sixteenth motion in limine; 134 Union Pacific's seventeenth moti on in limine; 150 Winecup's fourth motion in limine; 151 Winecup's fifth motion in limine • GRANTING ECF Nos. 132 Union Pacific's fifteenth motion in limine; 176 Union Pacific's twen tieth motion in limine; 149 Winecup's third motion in limine; 142 Union Pacific's motion to seal • GRANTING IN PART AND DENYING IN PART ECF Nos. 122 Union Pacific's third motion in limine; 125 Un ion Pacific's eighth motion in limine; 135 Union Pacific's eighteenth motion in limine; 152 Winecup's sixth motion in limine; 193 Union Pacific's twenty-first motion in limine • The parties are to submit an amended pretrial order within 45 days of the filing of this Order. Signed by Judge Larry R. Hicks on 12/4/2020. (Copies have been distributed pursuant to the NEF - LW)

Case 3:17-cv-00477-LRH-CLB Document 198 Filed 12/04/20 Page 1 of 47

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
UNION PACIFIC RAILROAD COMPANY, Case No. 3:17-cv-00477-LRH-CLB
a Delaware corporation,
ORDER
Plaintiff,

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v.
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WINECUP RANCH, LLC, an Idaho Limited
Liability Company; and WINECUP
GAMBLE, INC., a Nevada corporation; and
PAUL FIREMAN, an individual,

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Defendants.

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Before the court are a total of 27 motions in limine; 21 motions filed by Union Pacific

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Railroad Company (“Union Pacific”) (ECF Nos. 111, 112, 122, 123, 124, 125, 126, 127, 128, 129,

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130, 131, 132, 133, 134, 135, 139, 175, 176 & 193), and 6 motions in limine filed by Winecup

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Gamble, Inc. (“Winecup”) (ECF Nos. 141, 143, 149, 150, 151, 152). The parties timely responded.

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The Court has fully reviewed the record and considered the parties’ oral argument; for the reasons

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below, the Court grants in part and denies in part these motions.

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I.

BACKGROUND

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Union Pacific owns railroad track that runs through 23 Western states, a portion of which

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runs east/west across the Utah/Nevada state line and through Elko County, Nevada. ECF

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No. 89 ¶ 1. Winecup owned and managed the Dake Reservoir dam (ID #NV00109, legal

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description 189DN40 E70 07D) and 23 Mile dam (ID #NV00110, legal description 189CN42 E67

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15BA), 1 both located on Thousand Springs Creek, in Elko County, Nevada. Id. ¶¶ 2-4. On or about

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The record indicates that this dam is also known as 21 Mile dam. See ECF No. 154-2 at 5.
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February 8, 2017, the 23 Mile dam overtopped and breached in two locations. Id. ¶ 20; ECF No.

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108 ¶ 19. Union Pacific alleges that as a result of the dam’s failure, water flowed downstream, in

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part, to the Dake Reservoir dam, and that the Dake then eroded and breached, causing flooding

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and ultimately washing out a significant portion of Union Pacific’s railroad tracks. ECF No. 89

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¶¶ 22-24.

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Union Pacific filed its original complaint on August 10, 2017, against Winecup Gamble,

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Winecup Ranch, LLC, and Paul Fireman. ECF No. 1. Union Pacific has twice amended its

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complaint (ECF Nos. 37, 89), to which Winecup has answered (ECF No. 91). 2 Little pre-trial

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motion practice has occurred in this case other than the 27 pending motions in limine. The Court

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heard selected oral argument on four of these motions on June 25, 2020 (ECF No. 195), and rules

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on all now pending.

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II.

LEGAL STANDARD

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“A motion in limine is used to preclude prejudicial or objectionable evidence before it is

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presented to the jury.” Stephanie Hoit Lee & David N. Finley, Federal Motions in Limine § 1:1

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(2018). The decision on a motion in limine is consigned to the district court’s discretion—

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including the decision of whether to rule before trial at all. See Hawthorne Partners v. AT&T

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Techs., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993) (noting that a court may wait to resolve the

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evidentiary issues at trial, where the evidence can be viewed in its “proper context”). Motions in

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limine should not be used to resolve factual disputes or to weigh evidence, and evidence should

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not be excluded prior to trial unless the “evidence is clearly inadmissible on all potential grounds.”

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Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). Even then, rulings on

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these motions are not binding on the court, and the court may change such rulings in response to

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developments at trial. See Luce v. United States, 469 U.S. 38, 41 (1984).

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Generally, all relevant evidence is admissible. FED. R. EVID. 402. Evidence is relevant if

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“it has any tendency to make a fact more or less probable than it would be without the evidence.”

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FED. R. EVID. 401. The determination of whether evidence is relevant to an action or issue is

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Union Pacific’s first amended complaint no longer included defendant Winecup Ranch, LLC, and its
second amended complaint no longer included Paul Fireman. See ECF Nos. 37, 89.
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expansive and inclusive. See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384-87

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(2008). However, the court may exclude otherwise relevant evidence “if its probative value is

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substantially outweighed by the danger of” unfair prejudice. FED. R. EVID. 403. Further, evidence

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may be excluded when there is a significant danger that the jury might base its decision on emotion,

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or when non-party events would distract reasonable jurors from the real issues in a case. See

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Tennison v. Circus Circus Enterprises, Inc., 244 F.3d 684, 690 (9th Cir. 2001); United States v.

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Layton, 767 F.2d 549, 556 (9th Cir. 1985).

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III.

DISCUSSION
The parties have submitted a total of 27 motions in limine. The Court will address each in

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turn.
A. Union Pacific’s Motions in Limine
1. Union Pacific’s first motion in limine to exclude meteorological opinions of
Matthew Lindon and to appoint a neutral expert (ECF No. 111) and its second
motion in limine to exclude hydrological opinions of Matthew Lindon and to
appoint a neutral expert (ECF No. 112) are denied.

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Union Pacific motions the Court to exclude Winecup’s expert, Matthew Lindon, from

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providing opinions on meteorological and hydrological issues. ECF 111 at 3. Importantly, the

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parties dispute whether the February 2017 storm was greater or less than a 100-year storm event—

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Union Pacific’s expert concluded that the storm event did not exceed the 100-year event, while

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Winecup’s expert, Lindon, concluded that it did. In its first motion, Union Pacific argues that

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Lindon is not qualified to opine on meteorology because he does not hold a degree or certification

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in the field and his opinion should be excluded because he did not reliably apply accepted

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methodology to sufficient facts. ECF No. 111. In its second motion, though Union Pacific

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concedes that Lindon is qualified to opine on hydrology, it argues that his opinions should be

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excluded because his methodology and data were flawed. ECF No. 112. Additionally, Union

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Pacific requests the Court appoint a neutral expert to be either a technical advisor to the Court or

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expert witness. ECF Nos. 111 & 112. Winecup argues that Lindon is qualified to opine on both

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meteorological and hydrological issues, and that Union Pacific’s arguments do not go toward the

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admissibility of Lindon’s opinions, but only the weight, and amount to nothing more than a “battle
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of the experts.” ECF No. 120. Winecup further argues that neither a Daubert hearing nor a neutral

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expert are necessary. Id.

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The Court will not appoint a neutral expert

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Union Pacific requests the Court appoint a neutral expert to help the Court “understand”

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the scientific opinions of the parties’ experts. ECF Nos. 111 & 112. Winecup opposes this request

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as unnecessary. ECF No. 120. Federal Rule of Evidence 706 permits district courts, in their

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discretion, to appoint a neutral expert. FED. R. EVID. 706; Gorton v. Todd, 793 F.Supp.2d 1171,

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1178 (E.D. Cal. 2011). “Expert witnesses should not be appointed where they are not necessary or

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significantly useful for the trier of fact to comprehend a material issue in a case.” Johnson v.

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Dunnahoe, Case No. 1:08-cv-000640-LJO-DLB PC, 2013 WL 396009, at *2 (E.D. Cal. Jan. 31,

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2013). It is not common for courts to appoint neutral experts and “usually do so only in exceptional

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cases in which the ordinary adversary process does not suffice or when a case presents compelling

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circumstances warranting appointment of an expert.” Womack v. GEO Grp., Inc., No. CV-12-

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1524-PHX-SRB (LOA), 2013 WL 2422691, at *3 (D. Ariz. June 3, 2013) (citations and internal

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quotations omitted). And courts are hesitant to appoint a neutral expert when parties have retained

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their own qualified experts. See, e.g., Mallard Bay Drilling, Inc. v. Bessard, 145 F.R.D. 405, 406

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(W.D. La. 1993) (finding that because the parties retained their own qualified experts, the

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appointment of a neutral expert was “not likely to enlighten or enhance the ability of the Court to

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determine the pending issue.”).

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Here, both parties have retained their own experts, and as discussed below, all are qualified.

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“The fact that the parties’ experts have a divergence of opinion does not require the district court

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to appoint experts to aid in resolving such conflicts.” Oklahoma Natural Gas Co. v. Mahan &

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Rowsey, Inc., 786 F.2d 1004, 1007 (10th Cir. 1986) (citing Georgia-Pacific Corp. v. U.S., 640

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F.2d 328, 334 (Ct. Cl. 1980)). The Court finds that the legal issues and circumstances presented in

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this case are not so complex or exceptional that a neutral expert is needed to assist the trier of fact

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and, therefore, denies Union Pacific’s motion to do so.

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ii.

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Lindon is a qualified expert in hydrology and meteorology

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Union Pacific concedes that Lindon is a qualified expert in hydrology. ECF No. 111 at 16-

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17. Having reviewed Lindon’s declaration detailing his 40-year work history in the field of

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hydrology, including work in hydrological assessments and modeling, dam inspections, and

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evaluations, the Court agrees that Lindon is qualified to opine on hydrology issues. See ECF No.

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120-1.

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Union Pacific argues that Lindon is not a qualified expert in meteorology because he does

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not hold a degree or certificate in the field. ECF No. 111 at 16. While a degree or certificate in a

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certain area is helpful to support expert qualification, a witness can be qualified by “knowledge,

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skill, experience, [or] training,” as well as education. FED. R. EVID. 702. For 25 years, Lindon

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worked at the Utah Department of Natural Resources, Division of Water Rights, Dam Safety

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Section, in part, creating “hydrological models to simulate hypothetical storms and floods and re-

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create actual events, such as rain on snowpack events, that resulted in flooding and dam failures.”

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ECF No. 120-1 at 3. He has “significant experience with hydrometerorology, surface water

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hydrology, modeling, and dam safety hydrology.” Id. As a hydrologist, he regularly works with

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precipitation data, and is “familiar with analyzing and calculating precipitation numbers,”

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receiving formal training on this topic in addition to his years of experience. Id. at 4. He is “active

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in the science of meteorology, working constantly with meteorologists at the Division of Water

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Resources and Salt Lake City National Weather Service office to develop products and methods

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for calculations.” Id. He has taken continuing education courses in hydro-meteorology, and has

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“operated the National Weather Service Station for Park City, Utah for the past 26 years,

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measuring and reporting temperatures, snowfall, snowpack and precipitation daily.” Id. Finally, as

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an adjunct professor in Civil Engineering at the University of Utah, Lindon taught a graduate level

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course that included water management and hydrometeorology. Id. at 5. While Lindon may not be

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a meteorologist by degree, he is clearly qualified to conduct the meteorological calculations and

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consider those calculations in reaching his expert opinion regarding the dam failure and subsequent

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flooding. The Court finds Lindon is a qualified expert in meteorology and hydrology, as it relates

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to his opinions in this specific case.
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iii.

Lindon’s expert testimony is admissible

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Federal Rule of Evidence 702 governs the admissibility of expert testimony, providing:

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A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.

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FED R. EVID. 702. Expert testimony must rest on a reliable foundation and be relevant to the task

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at hand. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). There can be

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no dispute that Lindon’s expert testimony is relevant and advances a material aspect of Winecup’s

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case. Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (“Expert opinion testimony is relevant

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if the knowledge underlying it has a valid connection to the pertinent inquiry.” (internal quotation

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marks and citations omitted)). Lindon opines that the February 2017 flood event was greater than

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a 100-year flood event. As discussed in more detail below, whether Winecup’s dams could

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withstand certain flood events pertains directly to the standard of care and whether Winecup acted

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reasonably and are disputed questions of fact.

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To determine the reliability of the principles and methods used, the court looks to: (1)

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whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer

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review and publication; (3) the known or potential rate of error; (4) whether there are standards

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controlling the technique’s operation; and (5) whether the theory or technique has general

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acceptance within the relevant scientific community. Daubert, 509 U.S. at 592–94. “These factors

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are ‘meant to be helpful, not definitive, and the trial court has discretion to decide how to test an

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expert’s reliability as well as whether the testimony is reliable, based on the particular

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circumstances of the particular case.’” Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d

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807, 814 (9th Cir. 2014) (quoting Primiano, 598 F.3d at 564). The Court’s “inquiry into

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admissibility is a flexible one,” in which the Court acts only as a gatekeeper, not a factfinder. Id.

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at 813 (internal quotation marks and citations omitted). The court’s role is to “screen the jury from

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unreliable nonsense opinions, . . . not exclude opinions merely because they are impeachable.”

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Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., 738 F.3d 960, 969 (9th Cir. 2013) (internal

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quotation marks and citations omitted).

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The Court finds that Lindon’s opinions on both meteorology and hydrology are reliable.

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Lindon created a hydrological model that simulates the February 2017 flood using the Hydrologic

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Modeling System created by the Hydrologic Engineering Center within the U.S. Army Corps of

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Engineers (known as “HEC-HMS”). ECF No. 120-1 at 5. This model is “industry standard used

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by the Army Corps of Engineers . . . to simulate and re-create hydrologic process of watershed

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systems.” Id. Union Pacific does not argue that this modeling program is improper or not the

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industry standard model. See ECF No. 111-7 (Union Pacific’s hydrology expert declared that the

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HEC-HMS is an acceptable method to calculate runoff). Winecup further provides that the model

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is generally accepted in this scientific community and has been the subject of publications. See

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ECF No. 120-2 at 5 (“HEC-HMS and HEC-RAS are probably the most extensively applied water-

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related modeling systems in the world.”); ECF No. 120-3. Lindon used “data from the U.S.

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Geological Survey stream gages and Nation Weather Service stations to help form the model and

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calibrate the results.” ECF No. 120-1 at 5. Lindon declared that he checked and calibrated the

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model ultimately determining with a “high degree of confidence that the model accurately reflects”

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the February 2017 flood event. Id.

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Union Pacific attacks Lindon’s meteorology testimony, arguing that Lindon’s model used

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(1) an incorrect time period, and (2) the wrong weather station data. Lindon disputes both asserted

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errors. The Court finds that both arguments go not to Lindon’s methodology, but to the data

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imputed. This is a question of accuracy, not admissibility, and it is best left to the jury to consider

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the weight of this evidence. See Emblaze Ltd. v. Apple Inc., 52 F. Supp. 3d 949, 959 (N.D. Cal.

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2014) (“Even if data are imperfect, and more (or different) data might have resulted in a ‘better’

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or more ‘accurate’ estimate in the absolute sense, it is not the district court’s role under Daubert

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to evaluate the correctness of facts underlying an expert’s testimony. Questions about what facts

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are most relevant or reliable . . . are for the jury.”) (internal quotations and citations omitted)).

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Vigorous cross-examination and presentation of contrary evidence, not exclusion, are the

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appropriate means of attacking whether Lindon used the “best” or “most accurate” data points, and
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therefore created an accurate model of the flood event. See Daubert, 509 U.S at 596 (“Vigorous

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cross-examination, presentation of contrary evidence, and careful instruction on the burden of

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proof are the traditional and appropriate means of attacking shaky but admissible evidence.”).

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Union Pacific attacks Lindon’s hydrology testimony, arguing that (1) Lindon misapplied

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the “gage stream technique” and (2) used the wrong infiltration data. Lindon disputes that he erred

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as to either point. First, as to the gage stream technique, Union Pacific’s expert concluded that

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because none of the six streams Lindon relied on were located in the “relevant watershed,” this

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technique was “inferior” to the technique he used, the CN technique. Notably, Union Pacific’s

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expert did not conclude that the technique was generally improper. Again, whether a technique is

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better or worse than another, or whether the expert made a computational error, should be left to

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cross-examination and presentation of contrary evidence; it is not appropriate to exclude such

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expert testimony. The Court will not conflate the question of admissibility with the weight to be

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given the testimony by considering the persuasiveness of competing scientific methods; those

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questions are for the fact finder. See Ambrosini v. Labarraque, 101 F.3d 129, 141 (D.C. Cir. 1996)

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(“By attempting to evaluate the credibility of opposing experts and the persuasiveness of

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competing scientific studies, the district court conflated the questions of the admissibility of expert

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testimony and the weight appropriately to be accorded such testimony by a fact finder.”). Second,

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as to the infiltration data, disagreements over data imputes are again best left to cross-examination

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and presentation of contrary evidence.

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Any further errors asserted by Union Pacific regarding Lindon’s expert testimony are best

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left to cross-examination and presentation of contrary evidence as each goes to the weight of his

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testimony, not admissibility. 3

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iv.

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Lindon’s criticism of Union Pacific’s hydrology expert, Daryoush
Razavian, are admissible

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Union Pacific seeks to exclude Lindon’s criticisms of its hydrology expert, Daryoush

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Razavian, regarding soil saturation. In conducting his hydrology analysis, Razavian used a

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In Union Pacific’s second motion in limine, it further asserts that Lindon incorrectly opines that no
floodwater from the 23 Mile dam failure reached mile post 670.03 when it was washed out. This is the
subject of Winecup’s first motion in limine; therefore, Union Pacific’s arguments will be addressed below.
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“Curved Number” of 92, which Lindon criticizes as being “too high.” The Ninth Circuit has held

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that the “[a]uthority to determine the victor in such a ‘battle of expert witnesses’ is properly

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reposed in the jury.” Humetrix, Inc. v. Gemplus S.C.A., 268 F.3d 910, 919 (9th Cir. 2001) (citation

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omitted). When a party challenges the correctness of the opposing party’s expert’s testimony, “its

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recourse is not exclusion of the testimony, but, rather, refutation of it by cross-examination and by

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the testimony of its own expert witnesses.” Id.

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Lindon and Razavian are both experts in their fields but have come to differing conclusions

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on soil saturation. However, it is not for the Court to conclude which expert is correct; that is for

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the jury to decide. Lindon will be permitted to disagree with Razavian’s conclusions just as

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Razavian will be permitted to disagree with Lindon’s. That is part of the adversarial process—both

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sides present their expert’s opinions, challenging each other where they think the other erred, and

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then it is up to the jury to decide whom to believe. Accordingly, Union Pacific’s first and second

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motions in limine are denied.

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2. Union Pacific’s third motion in limine to facilitate efficient management of exhibits
and testimony (ECF No. 122) is granted in part and denied in part.

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Union Pacific’s third motion requests that the jurors be provided with three binders of pre-

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admitted exhibits (containing “200 or so” exhibits) at the outset of trial. ECF No. 122 at 2. Union

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Pacific argues that doing so would enable a smooth presentation of exhibits to the jury. Id. at 2-3.

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Additionally, Union Pacific does not object to Winecup providing jurors with their own binders.

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Id. at 3. Winecup objects to the presentation of exhibit binders arguing that doing so would require

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the court to rule on the admissibility of all contested exhibits prior to trial, and that given the

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number of exhibits, juror binders are “impractical, burdensome, and awkward.” ECF No. 158 at

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2-3.

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The Court recognizes that “[i]t is time-consuming when counsel circulate exhibits among

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the jurors, and it disrupts the examination of witnesses, except where the physical qualities of an

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object are themselves relevant.” MANUAL FOR COMPLEX LITIGATION (FOURTH) § 12.32 (2004).

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And while “[i]n some cases, it may be cost-effective for counsel simply to provide jurors with

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individual binders containing indexed copies of selected exhibits central to the presentation at
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trial,” electronic display systems that show everyone in the courtroom the exhibit simultaneously

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likewise “significantly assist jury involvement and comprehension and expediate trial.” Id. The

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Court finds that multiple exhibit binders each with a few hundred exhibits is impractical and

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unnecessary given the electronics available in the courtroom. This District’s courtrooms are fully

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equipped with an electronic exhibit display system that allows each juror to view exhibits on their

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own personal screen. The electronic display system further allows the parties to show the electronic

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exhibit to the witness first, before it is published to the jurors, and the witness may make useful

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electronic marks on the exhibit, such as circling or pointing to relevant portions. As the parties

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have already agreed to prepare their exhibits electronically, juror binders are unnecessarily

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redundant. See ECF No. 108 at 10. Additionally, the Court finds that the potential risk for jurors

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to view exhibits out of order, to lose focus during testimony, or be unable to take notes, weighs

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against providing such binders. The Court will however leave open the ability for parties to prepare

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jury binders solely for evidence that has been admitted during trial for the jurors to take with them

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into the jury room for deliberations if the parties prefer that over the electronic exhibits. However,

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electronic exhibits are capable of display on equipment in the jury room.

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Union Pacific also requests that the Court permit and provide a means for jurors to take

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notes. ECF No. 122 at 3. Winecup does not oppose this request. 4 ECF No. 158 at 2. “The decision

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of whether to allow the jury to take notes is left entirely to the discretion of the trial court.” United

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States v. Baker, 10 F.3d 1374, 1403 (9th Cir. 1993) (internal quotation marks omitted), overruled

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on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000). It is this Court’s

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practice to allow jurors to take notes and given the complexity of this case, the number of exhibits,

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and the scientific expert testimony expected to be presented, the Court sees no reason to deviate

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from this practice. In allowing note taking, the Court finds it appropriate to give jurors Ninth

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Circuit Model Jury Instruction 1.18 Taking Notes, or one comparable, that is agreed on by the

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Union Pacific certified that it had met and conferred with Winecup prior to filing this motion in limine, as
required by Local Rule LR II 16-3(a); however, Winecup does not oppose this request. 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.
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parties. Accordingly, Union Pacific’s third motion in limine (ECF No. 122) is granted in part and

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denied in part.

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3. Union Pacific’s fourth motion in limine to pre-admit exhibits for use in juror
binders (ECF No. 123) is denied.

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In conjunction with its third motion in limine, Union Pacific motions this Court to pre6
admit a number of exhibits (approximately 167) that would go in the requested juror binders. ECF
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No. 123. Winecup opposes the admittance of this contested evidence on relevancy and
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admissibility grounds arguing that whether these exhibits should be admitted should be determined
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within the context of trial. ECF No. 159. The Court agrees with Winecup. Additionally, the Court
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finds because the juror binders are unnecessary and impracticable, there is no need to pre-admit
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evidence for such binders. Union Pacific also requests the Court take judicial notice of seven
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exhibits. Winecup opposes, arguing that Union Pacific cites no authority or foundation for the
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Court on which to make such a ruling. Again, the Court agrees with Winecup: the Court cannot
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make a ruling on whether judicial notice is proper without sufficient information. Finally, Union
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Pacific requests leave to serve Rule 36 requests to establish admissibility of certain evidence. At
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this junction, Union Pacific should have witnesses that can testify to the authenticity and
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admissibility of the at-issue exhibits; reopening discovery so that Union Pacific can serve Rule 36
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requests is therefore, unnecessary. However, the Court is hopeful that the parties can agree upon
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the admissibility of exhibits as much as reasonably practicable.
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Accordingly, the Union Pacific’s fourth motion in limine to pre-admit exhibits for use in
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juror binders (ECF No. 123) is denied. The parties are encouraged to agree upon pre-admittance
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of any uncontested exhibits.
23
24

4. Union Pacific’s combined fifth and sixth motion in limine to bar two opinions of
Derek Godwin (ECF No. 139) is denied.

25
Winecup’s expert Derek Godwin provided opinions on three topics: (1) pre-flood design
26
structures at mileposts 670.03, 672.14, 677.32, and 679.28; (2) re-routing costs and the
27
reasonableness of the routes and costs; and (3) reconstruction costs and the reasonableness of
28
11

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1

replacement structures. ECF No. 139-4 at 4. Union Pacific’s combined fifth and sixth motion in

2

limine pertains to Godwin’s second and third opinions and argues that Godwin is not only

3

unqualified to render opinions on these issues, but has insufficient factual knowledge and lacks

4

any methodology to reach these opinions. ECF No. 139. Winecup opposes. ECF No. 160.

5

i.

6

Godwin’s a qualified expert in railroad rerouting, costs, and railroad
construction and design

7

Under Federal Rule of Evidence 702, a witness may be qualified as an expert based on his

8

or her knowledge, skill, experience, training, or education. Godwin’s curriculum vitae provides

9

that he has a degree in civil engineering with a concentration in “structures,” and holds professional

10

membership in the American Railway Engineering and Maintenance-of-Way Association, the

11

American Short Line and Regional Railroad Association, and the Regional Engineering-

12

Maintenance Suppliers Association. ECF No. 160-2. He further provides that he has been working

13

for Class 1 and shortline railroads since 2005, starting his own railroad engineering and

14

construction observation company in 2013. Id. Godwin declares that he has extensive experience

15

in railroad construction and design, and specializes in “railroad engineering, railroad construction

16

engineering, filed supervision, damage mitigation, working in hurricane, flood, and other

17

emergency situations, and rebuilding railroads to restore service as quickly and efficiently as

18

possible.” ECF No. 160-6 ¶ 2. He declares that he has been “personally involved with rerouting

19

for a Class 1 railroad approximately twelve times over the past six years.” Id. The Court finds that

20

this experience makes him qualified to offer opinions on rerouting, costs and repair, design, and

21

construction of railroads, bridges, and culverts. Union Pacific’s arguments against his

22

qualifications go to the weight of his testimony, not admissibility, and are best left to vigorous

23

cross-examination. See Daubert, 509 U.S. at 596.

24

ii.

Godwin’s opinion on rerouting is admissible

25

Godwin provides two opinions regarding rerouting costs: (1) “[a]ll train traffic should have

26

been re-routed from (or near) Tecoma to (or near) Lucin on the No.2 track;” and (2) that other

27

washouts, not attributable to Winecup, prevented trains from moving, and therefore, Winecup is

28

not responsible for those rerouting costs. ECF No. 160-4 at 6. Godwin testified at his deposition
12

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1

that he was familiar with what railroads need to consider when addressing rerouting, including

2

which tracks were in service, crew variability, how many crews they have on standby, how many

3

trains are running per day. ECF No. 160-3 at 44. Godwin further testified that he had reviewed

4

Union Pacific’s rerouting costs and crew costs as provided, and the number of trains per day. Id.

5

at 45, 50.

6

There can be no dispute that Godwin’s opinion is relevant and advances a material aspect

7

of Winecup’s case: Godwin’s opinion goes directly to the amount of damages Union Pacific should

8

be permitted to recover if the jury reaches the issue. Union Pacific does not argue that the

9

considerations Godwin looked at, including tracks in service, crew variability, and trains per day,

10

are not to be considered in reaching such a conclusion on rerouting costs—its own expert Stephen

11

Dolezal considered characteristics for available tracks, which included run time between the end

12

points of damaged tracks, track speeds, expected train sizes, and siding and auxiliary track

13

availability. ECF No. 139 at 8. Rather, Union Pacific argues that its expert’s rerouting analysis

14

was more correct than Godwin’s opinion based on these considerations. Union Pacific’s arguments

15

to exclude Godwin’s opinion go not to admissibility, but to the weight and are best left to cross-

16

examination during trial; the exclusion is denied.

17

iii.

Godwin’s opinion on reconstruction costs is admissible

18

Prior to the flood, there were earthen embankments and culverts at the washout locations.

19

Union Pacific rebuilt these areas with steel bridges instead of rebuilding the embankments and

20

culverts. Godwin opines that had Union Pacific rebuilt the earthen embankments and culverts, the

21

cost of the track repair would have been substantially less than “upgrading” to steel bridges—only

22

$4.28 million as opposed to the $18.5 million claimed by Union Pacific. See ECF No. 160-4 at 26.

23

Godwin calculated the cost of rebuilding the embankments using data from RS Means 2018 and

24

adjusted the total to 2017 prices. Id. Godwin testified that the RS Means methodology is the

25

“industry standard” for estimating construction costs. ECF No. 160-3 at 77. Again, there can be

26

no dispute that Godwin’s opinion is relevant and advances a material aspect of Winecup’s case

27

and that the RS Means methodology for determining costs is standard in the industry. Union

28
13

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1

Pacific’s arguments in opposing Godwin’s testimony are best left to cross-examination and

2

presentation of opinion evidence by Union Pacific’s own experts rather than exclusion.

3

Winecup argues that Union Pacific should only be permitted to recover the cost of

4

replacing the culverts and embankments rather than the bridge “upgrade,” and that it does not

5

intend to argue whether culverts or bridges should have been built. The standard for calculating

6

damages is an important and critical issue in this case, but it has not been fully or properly briefed

7

by the parties: Winecup briefly noted the standard it believes is proper in its response to Union

8

Pacific’s combined fifth and sixth motion, while Union Pacific took the opportunity to argue for

9

its standard in a 13-page reply, without any further response from Winecup. Before deciding on

10

how damages are to be calculated, the Court will permit Winecup the opportunity to respond to

11

Union Pacific’s reply; briefing is not to exceed 15 pages of argument, excluding tables of contents

12

and authorities and administrative notices. No other issues will be entertained without leave of the

13

Court.

14
15

Therefore, Union Pacific’s fifth and sixth motions in limine are denied.

16

5. Union Pacific’s seventh motion in limine to bar Winecup’s contributory negligence
defense and Derek Godwin’s contributory negligence opinion (ECF No. 124) is
denied.

17

Union Pacific motions the Court to exclude both Winecup’s contributory negligence

18

defense and Godwin’s expert opinions that relate to this defense. Winecup opposes. ECF No. 161.

19

The Court will address each argument in turn.

20

i.

Winecup’s contributory negligence defense is not preempted

21

Union Pacific argues that 49 C.F.R. § 213.33 preempts Winecup from arguing that Union

22

Pacific was contributorily negligence for maintaining culverts not sufficiently large enough to

23

withstand a 50-year storm. Section 213.33 provides: “Each drainage or other water carrying facility

24

under or immediately adjacent to the roadbed shall be maintained and kept free of obstruction, to

25

accommodate expected water flow for the area concerned.” Winecup argues that this regulation

26

does not “substantially subsume the subject matter of” culvert size, and therefore, it cannot

27

preempt the state common law standard. Alternatively, even if the regulation did preempt the state

28

common law standard, the federal standard would apply and not preclude the defense itself.
14

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1

The Federal Railroad Safety Act (“FRSA”) was enacted “to promote safety in every area

2

of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. The

3

Secretary of Transportation is given broad discretion to “prescribe regulations and issue orders for

4

every area of railroad safety . . ..” Id. § 20103(a). The FRSA also includes an express preemption

5

provision: “A State may adopt or continue in force a law, regulation, or order related to railroad

6

safety or security until the Secretary of Transportation . . . prescribes a regulation or issues an order

7

covering the subject matter of the State requirement.” Id. § 20106(a)(2). “Legal duties imposed on

8

railroads by the common law fall within the scope of these broad phrases.” CSX Transp., Inc. v.

9

Easterwood, 507 U.S. 658, 664 (1993). The proponent of preemption must establish that the

10

regulations more than “touch upon” or “relate to” the subject matter—“pre-emption will lie only

11

if the federal regulations substantially subsume the subject matter of the relevant state law.” Id.

12

The Court agrees with the Gallo Court’s interpretation of the FRSA and the applicability

13

of preemption in the negligence context. Section 213.33 “only regulates the maintenance of

14

existing drainage;” the regulations “are otherwise silent on when additional drainage is required,

15

what kind of drainage is appropriate, and how drainage should be installed.” Gallo v. Union Pacific

16

R.R. Co., 372 F.Supp.3d 470, 484 (W.D. Tex. 2019). Here, culverts and earthen embankments

17

existed at the washed-out track locations. Winecup intends to introduce Godwin’s opinion as

18

evidence of what size culverts should be used based on the industry standard. While section 233.13

19

touches on drainage, it does not substantially subsume the subject matter—there is no specified

20

standard for culvert size or what type of culvert should be used in this circumstance. Moreover,

21

the Court finds that it would be illogical that a plaintiff would not be preempted from suing Union

22

Pacific under a negligence theory for failure to maintain appropriate drainage, but that a defendant

23

would not be able to assert an affirmative defense of contributory negligence for the same alleged

24

failure. Accordingly, the Court finds that section 213.33 does not preempt Winecup’s affirmative

25

defense.

26

ii.

Godwin’s opinions on pre-flood design structures are admissible

27

Next, Union Pacific argues that two of Godwin’s opinion related to Winecup’s contributory

28

negligence defense should be excluded: (1) Godwin opines that based on his experience in railroad
15

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1

construction and design, that it is industry standard that railroads throughout the country use

2

culverts large enough to handle flows associated with a 100-year storm; and (2) Godwin opines

3

that the culverts in place before the flood were not large enough to withstand a 50-year storm. As

4

the Court articulated above, Godwin is qualified to opine on such topics as railroad design and

5

construction, based on his training and experience, which includes opining on the industry standard

6

for culvert size in this context. And there can be no dispute that Godwin’s opinion is relevant and

7

advances a material aspect of Winecup’s case: Godwin’s opinion goes directly to whether Union

8

Pacific was contributorily negligent for the damaged tracks. To reach his opinion, Godwin

9

considered the drainage area and peak flows for hypothetical storm events—nothing in the record

10

disputes that this is an appropriate method for making such a determination. Likewise, Union

11

Pacific’s other arguments go to the weight of his testimony, not admissibility, and are best left to

12

vigorous cross examination.

13
14

Accordingly, the Court denies Union Pacific’s seventh motion in limine.

15

6. Union Pacific’s eighth motion in limine to bar evidence or argument that a nonparty is comparatively negligent (ECF No. 125) is granted in part and denied in
part.

16

Union Pacific requests that Winecup be barred from offering evidence or argument that a

17

non-party is comparatively negligent, arguing that, under Nevada law, such evidence is irrelevant.

18

ECF No. 125. Winecup opposes the motion, arguing that it is permitted to argue and offer evidence

19

that they are either not negligent or that another party is completely negligent. ECF No. 162.

20

Under Nevada law, a “jury may not apportion fault to non-parties, and evidence or

21

argumentation directed to showing non-parties’ comparative fault is therefore inadmissible.”

22

Phillips v. C.R. Bard, Inc., Case No. 3:12-cv-00344-RCJ-WGC, 2015 WL 260873, at *4 (D. Nev.

23

Jan. 21, 2015) (emphasis in original). However, “[n]othing in NRS 41.141 prohibits a party

24

defendant from attempting to establish that either no negligence occurred or that the entire

25

responsibility for a plaintiff’s injuries rests with nonparties[.]” Banks ex rel Banks v. Sunrise Hosp.,

26

102 P.3d 52, 67 (Nev. 2004). Therefore, the Court finds that under Nevada state law, Winecup is

27

not permitted to offer evidence that a non-party is comparatively negligent. However, Winecup

28

may argue that it is not negligent or that a non-party is solely responsible, and Winecup may proffer
16

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1

admissible evidence in support thereof. Accordingly, Union Pacific’s eighth motion in limine

2

(ECF No. 125) is granted in part and denied in part.

3
4

7. 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. 126) is denied.

5

Union Pacific argues that Winecup should be precluded from arguing before the jury that

6

any of Nevada’s dam statutes and regulations—Nevada Revised Statutes (“NRS”) 535.005 et seq.

7

and Nevada Administrative Code (“NAC”) 535.010 et seq.—do not apply to the Winecup dams.

8

ECF No. 126. Union Pacific cites several sections of the NRS and NAC that it argues plainly apply

9

to the Winecup dams, and letters from the State Engineer which show that Winecup was aware

10

that certain sections of these statutes and regulations applied to the dams. Id. Winecup does not

11

dispute that some of Nevada’s dam statutes and regulations apply to its 23 Mile and Dake dams;

12

however, it argues that a blanket ruling that it can’t argue that any of these regulations or statutes

13

do not apply is overbroad and contrary to a plain reading of many of the sections. ECF No. 163.

14

The Court agrees with Winecup: any ruling that Winecup is precluded from arguing that a

15

specific statute applies in this case must be made on a statute-by-statute/ regulation-by-regulation

16

basis. Accordingly, Union Pacific’s ninth motion in limine (ECF No. 126) for a blanket ruling is

17

denied. 5

18
19

8. Union Pacific’s tenth motion in limine requesting that the Court instruct the jury
before trial about certain laws that apply to Nevada dam owners (ECF No. 127) is
denied without prejudice.

20

Union Pacific requests that the Court order the parties to try to agree on (or submit

21

competing) preliminary jury instructions relating to the statutes and regulations that apply to dam

22

owners in Nevada. ECF No. 127. Union Pacific does not provide the actual language of a proposed

23

instruction, but simply lists the statutes and regulations upon which it proposes the parties craft

24

preliminary instructions. Id. Winecup opposes, arguing that the proposed instructions are improper

25

standard of care instructions for a negligence case, 6 the proposed list is biased in favor of Union

26

5

27
28

The Court notes Winecup raises such a specific argument in its second motion in limine—whether
Winecup can argue that NAC § 535.240 does not apply to its dams—which the Court addresses below.
6
Winecup’s second and third motions in limine also relates to the standard of care to be used in this
negligence case. 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.
17

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1

Pacific, and if the Court is inclined to give such instructions, then it should also preliminarily

2

instruct the jury as to all elements of negligence in a neutral and accurate manner. ECF No. 164.

3

The Court generally instructs the jury preliminarily on issues related to trial procedure, the

4

judge’s duties and role, and the jurors’ role and responsibilities in a civil case. As a general matter,

5

it does not instruct the jurors on substantive issues at that time. The Court finds that this trial

6

presents no extenuating circumstance or reason to deviate from this process, especially given that

7

the parties are not in agreement as to any of the proposed instructions. Accordingly, the Court

8

denies Union Pacific’s tenth motion in limine (ECF No. 127).

9
10
11

9. Union Pacific’s eleventh motion in limine to bar Rule 702 opinions (A) generally,
if not in expert reports, and (B) specifically, from Luke Opperman (ECF No. 128),
and its related nineteenth motion in limine to preclude experts disclosed on May
13, 2020 (ECF No. 175), are denied without prejudice.

12

Union Pacific motions the Court to prohibit Winecup from offering any expert witnesses,

13

including expert testimony from Luke Opperman, the Nevada Department of Water Resources

14

engineer who inspected both the 23 Mile Dam and the Dake Dam before and after the incident,

15

because he was not disclosed as an expert and Winecup failed to provide a written report as

16

required under Federal Rule of Civil Procedure 26(a)(2)(A)-(B). ECF No. 128. Winecup opposes

17

the motion arguing that Opperman is not a retained expert, and therefore, it did not violate Rule

18

26 by not submitting a written expert report to Union Pacific. ECF No. 165. Winecup further

19

argues that because Opperman is a neutral expert, deposed by both parties, and listed in Union

20

Pacific’s witness disclosures, Union Pacific will not be prejudiced by his testimony. Id. On May

21

13, 2020, two days before Winecup filed this opposition, it served Union Pacific with a

22

supplemental expert disclosure that provided that Winecup intended to call Luke Opperman, and

23

April Holt and Edward Quaglieri (additional individuals that inspected Winecup’s dams), as non-

24

retained experts. ECF No. 175-1. In response, Union Pacific moves in its nineteenth motion in

25

limine to preclude these three witnesses from offering expert testimony because of the late

26

disclosure. ECF No. 175. Again, Winecup opposes, arguing that its supplemental disclosure was

27

timely and sufficient under Federal Rule of Civil Procedure 26(a)(2)(C). ECF No. 190.

28
18

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1

Federal Rule of Civil Procedure 26(a)(2)(A) provides: “a party must disclose to the other

2

parties the identity of any witness it may use at trial to present evidence under Federal Rules of

3

Evidence 702, 703, or 705.” And, “[u]nless otherwise stipulated or ordered by the court, this

4

disclosure must be accompanied by a written report--prepared and signed by the witness--if the

5

witness is one retained or specially employed to provide expert testimony in the case or one whose

6

duties as the party’s employee regularly involve giving expert testimony.” FED. R. CIV. P.

7

26(a)(2)(B) (emphasis added). From a plain reading of this Rule, it is clear to the Court that a

8

written expert report is only required if the expert is retained. Here, neither party disputes that

9

Opperman, Holt, or Quaglieri are not retained experts, and therefore, if Winecup intends for them

10

to present evidence under Federal Rules of Evidence 702, 703, or 705, Winecup was only required

11

to disclose “(i) the subject matter on which the witness is expected to present evidence;” and “(ii)

12

a summary of the facts and opinions to which the witness is expected to testify.” FED. R. CIV. P.

13

26(a)(2)(C).

14

On October 15, 2018, the parties exchanged initial disclosures of expert witnesses: the

15

plaintiff disclosed three experts with reports, and five experts without reports, and defendant

16

disclosed two experts with reports. ECF No. 80 at 2. The parties stipulated to extend rebuttal expert

17

disclosures until November 19, 2018, at which time, Winecup disclosed two rebuttal witnesses.

18

Id.; ECF No. 175-2. In April 2018, the parties deposed Holt and Quaglieri, and in April 2019, the

19

parties deposed Opperman. It was not until May 13, 2020, that Winecup disclosed in its

20

supplemental expert disclosure that it intended to call Opperman, Holt, and Quaglieri as

21

non-retained experts. ECF No. 175-1.

22

While Winecup clearly could not have disclosed any of these experts at the initial October

23

2018 disclosure date (as none had yet to be deposed), Winecup could have disclosed that it

24

intended to call Holt and Quaglieri in its November 2018 rebuttal disclosure, and could have

25

disclosed Opperman well before May 13, 2020. Federal Rule of Civil Procedure 37(c)(1) provides

26

that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e),

27

the party is not allowed to use that information or witness . . . unless the failure was substantially

28

justified or is harmless.” The Court finds that while Winecup’s disclosure that it intends to have
19

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1

these witnesses testify as a non-retained experts was technically late, Union Pacific has not been

2

prejudiced by this late disclosure and it is harmless. Winecup provides that it only intends to have

3

these experts testify to that which is contained within their respective depositions and reports.

4

Moreover, Opperman, Holt, and Quaglieri are all listed in the parties’ joint pre-trial order as

5

witnesses that both Union Pacific and Winecup may call, and both parties are well aware of the

6

proposed testimony of each witness. See ECF No. 108 at 11. While Union Pacific argues that these

7

witnesses may not be qualified to offer opinion testimony, the Court reserves ruling on specific

8

testimony for trial. Therefore, the Court denies Union Pacific’s eleventh and nineteenth motions

9

in limine.

10
11

10. 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. 129) is denied without prejudice.

12

Union Pacific motions the Court to bar Winecup from offering evidence of the Oroville

13

Dam spillway failure and the weather and flood conditions that occurred in February 2017 in

14

California and western Nevada. ECF No. 129. Union Pacific argues that due to the complexity of

15

the Oroville Dam failure, evidence and argument on the topic would result in a “mini trial,” and

16

as the weather and flooding occurred outside the relevant watershed, the evidence is irrelevant. Id.

17

Winecup opposes the motion arguing that whether the storm that caused the dam’s failure was a

18

historic storm event is a question for the jury and therefore, Winecup should be permitted to offer

19

evidence of the historic storm. ECF No. 166.

20

The Court finds that whether the proffered evidence is relevant or if it would be unfairly

21

prejudicial is best determined at trial when it can be adjudged in context. Additionally, the Court

22

finds that Union Pacific’s request that evidence of weather and flood conditions in watersheds

23

other than in the “relevant one,” with no definition of “relevant,” is overly broad and the Court

24

cannot make a ruling on that basis. Accordingly, the Court denies Union Pacific’s twelfth motion

25

in limine without prejudice and reserves the issue for trial.

26

///

27

///

28

///
20

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1

11. Union Pacific’s thirteenth motion in limine to bar evidence or argument related to
an “Act of God” defense (ECF No. 130) is denied without prejudice.

2
3

Union Pacific argues that Winecup is barred from asserting an “Act of God” defense. Union

4

Pacific argues that because Winecup was required under Nevada law to maintain the 23 Mile dam

5

to withstand a 100-year flood event and the Dake dam to withstand a 1000-year flood event, the

6

failure of the dams and the subsequent flooding could not be considered “abnormal” or free from

7

“human assistance or influence” such that Winecup could prove the prima facia elements of the

8

defense. ECF No. 130. Winecup opposes this motion for two reasons: (1) because N.A.C. §

9

535.300 sets forth the requirement for new construction of dams, not existing dams; and (2)

10

because there is ample evidence that the storm that preceded 23 Mile dam’s failure, exceeded a

11

100-year flood event. ECF No. 167.

12

An Act of God “must be such a providential occurrence or extraordinary manifestation of

13

the forces of nature that it could not reasonably have been foreseen, and the effect thereof avoided

14

by the exercis[e] of reasonable prudence, diligence and care, or by the use of those means which

15

the situation renders reasonable to employ.” Alamo Airways, Inc. v. Benum, 374 P.2d 684, 686

16

(Nev. 1962). Whether an Act of God caused 23 Mile dam’s failure and subsequent flooding and

17

damage to Union Pacific’s railroad tracks is an issue of fact for the jury. See Francis v. MSC

18

Cruises, S.A., Case No. 18-16463-CIV-SELTZER, 2018 WL 4693526, at *1 (S.D. Fla. 2018)

19

(“[T]he issue of whether there was a force majeure or Act of God that caused the incident is an

20

issue of fact, which cannot be decided on a motion to strike.”). Further, whether Winecup presents

21

sufficient evidence during trial to support giving the jury an Act of God instruction must be

22

determined at trial. Accordingly, Union Pacific’s motion (ECF No. 130) is denied without

23

prejudice.

24
25

12. Union Pacific’s fourteenth motion in limine to bar evidence or argument about
consulting experts (ECF No. 131) is denied without prejudice.

26

Union Pacific requests the Court bar Winecup from asking questions or offering evidence

27

or argument about “consulting experts,” pursuant to Federal Rule of Civil Procedure 26(b)(4)(D).

28

ECF No. 131. Union Pacific argues that it had previously hired consulting experts early in the case
21

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1

who were eventually replaced by those now acting as testifying experts, which Winecup tried to

2

learn about during discovery. Id. Winecup does not oppose prohibiting asking questions or offering

3

evidence or argument about the plaintiff’s consulting experts, so long as “consulting expert” means

4

“expert employed only for trial preparation.” ECF No. 168 at 2. However, Winecup argues that

5

they should be permitted to ask questions about any expert or employee hired by the plaintiff that

6

was not “in anticipation of litigation or to prepare for trial.” Id. Furthermore, Winecup argues that

7

“to the extent Union Pacific’s testifying experts relied on information from a ‘consulting’ expert,

8

that information would also be admissible,” pursuant to Federal Rule of Evidence 705. Id.

9

Under Federal Rule of Civil Procedure 26(b)(4)(D), a party may not discover “by

10

interrogatories or deposition . . . facts known or opinions held by an expert who has been retained

11

or specially employed by another party in anticipation of litigation or to prepare for trial and who

12

is not expected to be called as a witness at trial.” Under Federal Rule of Evidence 705, “[u]nless

13

the court orders otherwise, an expert may state an opinion—and give the reasons for it—without

14

first testifying to the underlying facts or data. But the expert may be required to disclose those

15

facts or data on cross-examination.” “When experts serve as testifying witnesses, the discovery

16

rules generally require the materials reviewed or generated by them to be disclosed, regardless of

17

whether the experts actually rely on those materials as a basis for their opinions.” S.E.C. v. Reyes,

18

Case No. C 06-04435 CRB, 2007 WL 963422, at *1 (N.D. Cal. Mar. 30, 2007).

19

The Court agrees with Union Pacific that under Rule 26 of the Federal Rules of Civil

20

Procedure, Winecup is prohibited from asking questions or offering evidence or argument about

21

the plaintiff’s consulting experts. However, the Court also agrees with Winecup that if Union

22

Pacific’s testifying expert relied on information from a consulting expert, that information would

23

be admissible under Rule 705 of the Federal Rules of Evidence. The Court assumes that the parties

24

will follow these rules; therefore, it denies Union Pacific’s fourteenth motion in limine without

25

prejudice (ECF No. 131), and reserves any ruling on this issue for trial.

26

///

27

///

28

///
22

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1

13. Union Pacific’s fifteenth motion in limine to bar one paragraph in email referencing
contract truck driver incidents (ECF No. 132) is granted.

2
3

Union Pacific requests the Court bar Winecup from admitting a paragraph of an email from

4

a Union Pacific employee discussing traffic incidents with a Nevada Department of Transportation

5

employee. ECF No. 132. The offending language in the email states:

6

8

I was able to contact one NDOT manager. He told me that there were three 3
separate incidents with UP contract truck drivers yesterday (Sunday). One driver
entered the work area at a high rate of speed (over 55 MPH), one passed an NDOT
supervisor in her NDOT truck in a single lane area- almost forcing her off the road,
one went around a flagged instead of stopping. That has NDOT gun shy now.

9

ECF No. 132-1. Union Pacific argues that under Federal Rules of Evidence 402, 403, 701, and

10

702, this paragraph is irrelevant, unfairly prejudicial, and inadmissible hearsay without an

11

exception. Winecup argues that the email paragraph is neither irrelevant or prejudicial, and any

12

such ruling should be made at trial, and that it is not hearsay because it is an opposing party’s

13

statement pursuant to Federal Rule of Evidence 801(d)(2)(D).

7

14

A statement that is offered against an opposing party and “was made by the party’s agent

15

or employee on a matter within the scope of that relationship and while it existed” is not hearsay.

16

FED. R. EVID. 801(d)(2)(D). And emails by a party’s agent or employee, when a proper foundation

17

is laid, that shows the statements were made within the scope of employment, may constitute

18

opposing party statements. See Sea-Land Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808, 821 (9th

19

Cir. 2002) (finding that when proper foundation for the authenticity of an employee’s email has

20

been laid, and the email was sent within the scope of employment, the email is admissible under

21

Federal Rule of Evidence 801(d)(2)(D)). Here, the email communication between Union Pacific’s

22

employees appears to be within the scope of their employment. However, the statements contained

23

within the email are articulating what an NDOT manager told the Union Pacific employee.

24

Therefore, while the email itself is not hearsay, the at-issue statements contained within it are, and

25

an applicable hearsay exception is needed for them to be admissible. Winecup presents no such

26

exception that would apply. Accordingly, the Court grants Union Pacific’s fifteenth motion in

27

limine (ECF No. 132) on hearsay grounds.

28

///
23

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1
2

14. Union Pacific’s sixteenth motion in limine to bar two words in an email with
profane reference (ECF No. 133) is denied without prejudice.

3

Union Pacific requests the Court bar Winecup from admitting a portion of an email from a

4

Union Pacific employee that contains the profane reference, “Sandbagging S.O.B’s,” arguing that

5

if the email is admitted, the offending language should be redacted because it is irrelevant, unfairly

6

prejudicial, and inadmissible opinion evidence. ECF Nos. 133; 133-1. Winecup opposes the

7

motion arguing that the relevance and prejudicial impact of the evidence is best determined at trial,

8

and that Union Pacific provides no argument why lay opinion that certain people were

9

“sandbagging” requires an expert. ECF No. 170. The Court agrees with Winecup. Accordingly,

10

Union Pacific’s sixteenth motion is denied without prejudice and the Court reserves ruling on

11

whether the terminology is either irrelevant, unfairly prejudicial or overly technical such that an

12

expert is needed to testify, based on the context in which it is presented at trial.

13
14

15. 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. 134) is denied without prejudice.

15

During the deposition of Winecup’s designated Rule 30(b)(6) witness, James Rogers, he

16

testified that he “did not know” the answers to several of Union Pacific’s questions. ECF No. 134.

17

Union Pacific now seeks to bar Winecup and Rogers from presenting testimony that contradicts

18

his answers to these same questions from his deposition. Id. Winecup opposes this motion arguing

19

that Ninth Circuit precedent permits a 30(b)(6) deponent that answered “I don’t know” to

20

supplement, contextualize, and even contradict such statements at trial, and that a 30(b)(6)

21

deponent who answers “I don’t know” to questions outside the scope of the 30(b)(6) notice is not

22

penalized. ECF No. 171 at 4-5.

23

“A corporation generally cannot present a theory of the facts that differs from that

24

articulated by the designated Rule 30(b)(6) representative.” Snapp v. United Transportation

25

Union, 889 F.3d 1088, 1103 (9th Cir. 2018) (quoting 7 James Wm. Moore et al., Moore’s Federal

26

Practice § 30.25[3] (3d ed. 2016)) (emphasis provided by Snapp). “This general proposition

27

should not be overstated, however, because it applies only where the purportedly conflicting

28

evidence truly, and without good reason or explanation, is in conflict, i.e., where it cannot be
24

Case 3:17-cv-00477-LRH-CLB Document 198 Filed 12/04/20 Page 25 of 47

1

deemed as clarifying or simply providing full context for the Rule 30(b)(6) deposition.” Id.

2

Moreover,

3

6

the testimony of a Rule 30(b)(6) deponent does not absolutely bind the corporation
in the sense of a judicial admission, but rather is evidence that, like any other
deposition testimony, can be contradicted and used for impeachment purposes. The
Rule 30(b)(6) testimony is also not binding against the organization in the sense
that the testimony can be corrected, explained and supplemented, and the entity is
not “irrevocably” bound to what the fairly prepared and candid designated deponent
happens to remember during the testimony.

7

Id. at 1104 (quoting 7 James Wm. Moore, et al., Moore’s Federal Practice § 30.15[3] (3d ed.

8

2016)). Given this binding Ninth Circuit precedent, the Court cannot make a blanket ruling that

9

Winecup may not proffer testimony other than the “I don’t know” answers Rogers articulated

10

during his deposition to specific questions. Rather, the Court must make a ruling based in the

11

context of trial whether any answer provided merely corrects, explains, or supplements the

12

deposition testimony, or if it truly contradicts it. Accordingly, Union Pacific’s seventeenth motion

13

in limine is denied without prejudice, and the Court reserves ruling for trial.

4
5

14
15

16. Union Pacific’s eighteenth motion in limine to bar Winecup from offering evidence
or argument about preserving the Dake dam for pike (ECF No. 135) is denied in
part and granted in part.

16

Union Pacific motions the Court to bar Winecup from offering evidence or argument that

17

the Fish & Game 7 allegedly requested that the Dake dam be preserved for the pike they had put in

18

it. ECF No. 135. Union Pacific cites an email from Bill Nisbet to James Rogers, in which he states:

19

I recall some correspondence and discussion with David Walker in [the] 90s about
Dake: one agency (state engineer) recommended he breach the dam; another agency
(fish & game) wanted it preserved, for the pike they had placed in it. He was caught
in the middle.

20
21
22

ECF No. 135-1. Union Pacific argues that whether an agency wanted to preserve the dam is

23

irrelevant and is further triple hearsay. Winecup opposes the motion arguing that the information

24

contained within the cited email is admissible under Federal Rule of Evidence 803(20) as a hearsay

25

exception for a reputation in a community concerning general history. Alternatively, it argues that

26

even if the email is inadmissible, that does not mean that Winecup should be barred from

27
28

7

It is unclear whether the parties are referring to the Federal or State agency.
25

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1

presenting any evidence regarding why it may have not decommissioned the Dake dam if Union

2

Pacific opens the door to such evidence and argument. ECF No. 172.

3

The Court agrees with Union Pacific that the email cited is hearsay that does not fall within

4

Rule 803(20): whether a state or federal agency requested that the Dake dam be preserved for pike

5

is not “general historical events important to” the Elko or Nevada community. However, the Court

6

agrees with Winecup that whether the email is admissible is a different question from whether

7

evidence or argument regarding the preservation of the dam for pike is admissible. Union Pacific

8

has presented no evidence or rule to support the Court’s exclusion of any and all evidence or

9

testimony on the issue. Accordingly, the Court grants Union Pacific’s eighteenth motion in limine

10

as it relates to the cited email and denies it without prejudice as it relates to the subject as a whole.

11

17. Union Pacific’s twentieth motion in limine to permit Union Pacific’s witnesses to
testify by video (ECF No. 176) is granted.

12
13

Union Pacific moves this Court to permit its witnesses that must travel by plane or more

14

than three hours by car 8 to testify via videoconference. ECF No. 176. Union Pacific argues that

15

good cause appears to permit videoconferencing under Federal Rule of Civil Procedure 43(a) due

16

to the COVID-19 pandemic. Id. Winecup opposes this request, arguing that it would be prejudiced

17

if it is not able to cross examine Union Pacific’s witnesses in open court, and that such an

18

extraordinary order that all of a party’s witnesses appear by video is unprecedented. ECF No. 191.

19

This case has been set for trial a number of times; the most recent setting for August 2020

20

was vacated due to the COVID-19 pandemic. ECF No. 195. At the time of this writing, the

21

undersigned has presided over one criminal in-person jury trial since the COVID-19 lockdown

22

orders went into effect in early March 2020, which included hearing from both witnesses in-person

23

and via ZOOM video conferencing. The Court took numerous safety precautions in the courtroom

24

to ensure that all participants, attorneys, witnesses, and the Court staff, were protected, which

25

included installing plexiglass partitions and implementing sanitization protocols. The Court is

26

satisfied that this procedure was effective at the time.

27

///

28

8

Winecup argues this would apply to all of Union Pacific’s witnesses. ECF No. 191 at 2, n.1.
26

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1

However, since the Court held its first jury trial in September, the numbers of infected

2

individuals in Washoe County has increased significantly, and led District Court Chief Judge Du

3

to implement General Order 2020-03, postponing all in-person jury trials until further notice.

4

Given this pandemic, the Court will allow witnesses to appear by ZOOM video conferencing. The

5

Court is open to presiding over a bench trial via ZOOM video conferencing if the parties are

6

amendable to such a solution. In that case, participating attorneys would appear in-person, and the

7

Court would leave it to each party’s counsel to determine which of its witnesses would appear by

8

video or in-person. If the parties determine that a jury trial is necessary, the Court would likely not

9

be able to set it before the middle of 2021 due to the backlog of criminal jury trials. At that time,

10

the Court would expect participating attorneys to appear in-person, but it would again leave it to

11

each party’s counsel to determine which of its witnesses would appear by video or in-person. The

12

Court notes that it is open to hearing any other mutually agreeable alternative to the options

13

suggested by the Court as this case proceeds. Accordingly, Union Pacific’s nineteenth motion in

14

limine is granted.

15
16

18. Union Pacific’s motion in limine to amend the Pretrial Order (ECF No. 193) is
granted in part and denied in part.

17

Lastly, Union Pacific motions the Court to amend the pretrial order (ECF No. 108) to add

18

information learned in the depositions of Paul Fireman and Clay Worden in Winecup Gamble, Inc.

19

v. Gordon Ranch, LP, 3:17-cv-00163, related to Winecup’s financial situation. ECF No. 193.

20

Specifically, Union Pacific requests that it be permitted to amend its witness list to include Fireman

21

and Worden to testify via their respective depositions from Gordon Ranch, and add the information

22

to the undisputed fact section of the Order. Id. Winecup opposes, arguing that (1) it has not

23

admitted these facts and they are not “undisputed;” (2) the facts are irrelevant; (3) Worden is a

24

third-party witness whose deposition testimony is not admissible under Federal Rule of Evidence

25

801(d)(2) and Federal Rule of Civil Procedure 32(a)(8); and (4) that Union Pacific’s failure to

26

conduct this discovery during this case precludes it from now using the information.

27

The Ninth Circuit has made clear that district courts “should generally allow amendments

28

of pretrial orders provided three criteria are met: (1) no substantial injury will be occasioned to the
27

Case 3:17-cv-00477-LRH-CLB Document 198 Filed 12/04/20 Page 28 of 47

1

opposing party, (2) refusal to allow the amendment might result in injustice to the movant, and (3)

2

the inconvenience to the court is slight.” Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. 1996),

3

as amended (Jan. 15, 1997) (internal quotation marks and citation omitted). The Court has “broad

4

discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly

5

trial,” which includes “the power to exclude or admit expert testimony, and to exclude testimony

6

of witnesses whose use at trial is in bad faith or would unfairly prejudice an opposing party.”

7

Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980) (internal citations omitted).

8

Paul Fireman was Winecup’s sole shareholder and was initially a named party in the suit.

9

It is clear to the Court that Fireman was, at least to some extent, an agent of Winecup, and Winecup

10

makes no argument to the contrary. See FED. R. CIV. P. 32(a)(3) (“An adverse party may use for

11

any purpose the deposition of a party or anyone who, when deposed, was the party’s officer,

12

director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).”). Winecup only argues

13

that Fireman’s deposition should be excluded as irrelevant and fails to make any showing that it

14

will be substantially injured if the testimony is permitted. As discussed in full below, the Court

15

will permit Union Pacific to argue the issue of punitive damages. However, pursuant to Nevada

16

law, no information related to the financials of the defendant is permitted prior to the jury making

17

a determination that punitive damages are warranted. The Court will not exclude Union Pacific

18

from offering Fireman’s deposition testimony at this time. However, Union Pacific may present

19

this evidence only in the secondary proceeding to determine the amount of punitive damages,

20

should the case reach this proceeding. Additionally, because the Court is best positioned to rule on

21

relevancy issues at trial when it can consider the evidence in context, the Court will reserve ruling

22

on the relevancy of Fireman’s testimony until that second proceeding as well. The Court finds that

23

allowing Union Pacific to amend the pretrial order on this issue will not result in injustice to

24

Winecup and any inconvenience to the Court is slight.

25

Conversely, Clay Worden was never an employee of Winecup, and testified in Gordon

26

Ranch in his individual capacity, not as a corporate witness or agent of Winecup. Under Federal

27

Rule of Civil Procedure 32(a)(8), the deposition from an earlier action “may be used in a later

28

action involving the same subject matter between the same parties.” Here, there can be no dispute
28

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1

that the parties are not the same and the subject matter is different—this is a negligence action

2

while Gordon Ranch was a contract dispute. The Court finds that exclusion of Worden’s deposition

3

will not result in injustice to Union Pacific—it is still permitted to present evidence of Winecup’s

4

financial situation through Fireman should this case reach the punitive damages phase.

5

Finally, because Winecup has not “admitted” the facts as presented by Union Pacific, the

6

Court will not permit Union Pacific to add the information to the “undisputed facts” section of the

7

pretrial order. Union Pacific may add these facts to the statement of contested issues of fact and

8

Winecup will likewise be permitted to list the facts contested. The Court finds that because this

9

case has not been set for trial, this amendment to the pretrial order will not inconvenience the Court

10

and does not prejudice either party. Further, Union Pacific indicates that the parties have separately

11

agreed to amend the pretrial order to add trial exhibits. Accordingly, the Court grants in part and

12

denies in part Union Pacific’s twenty-first motion in limine to amend the pretrial order.
B. Winecup’s Motions in Limine

13
14

1. Winecup’s first motion in limine to exclude Union Pacific’s expert Daryoush
Razavian’s testimony related to mile post 670.03 (ECF No. 141) is denied.

15
16

Winecup motions the Court exclude the opinions and testimony of Union Pacific’s

17

hydrology expert, Daryoush Razavian, regarding the washout at mile post 670.030. ECF No. 141.

18

Similarly, in its second motion in limine, Union Pacific motions the Court to exclude Winecup’s

19

expert, Matthew Lindon, from testifying on the same subject. Razavian opines that floodwater

20

from 23 Mile dam split as it came downhill with some water heading toward the Dake dam while

21

other water reached the tracks at mile post 670, causing a build-up of water that ultimately caused

22

the washout of Union Pacific’s tracks at mile post 670.03. ECF No. 111-7 ¶¶ 31-33. Winecup’s

23

expert, Matthew Lindon, disagrees and opines that the washout was caused by water from the

24

Loray Wash and that floodwater from the 23 Mile dam could not have caused that track washout

25

because the timing evidence shows that water from 23 Mile dam could not have reached mile post

26

670.03 at the time it was washed out. ECF No. 141-2 ¶¶ 7-8. For clarity, the Court address the

27

parties’ competing motions for exclusion together here.

28

///
29

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1
2

Union Pacific’s late disclosure regarding Razavian’s opinion on the
washout at mile post 670.03, while untimely, is harmless and
Razavian’s opinions on the subject are admissible.

3

Winecup Gamble argues that Razavian did not offer an opinion on the cause of the washout

4

at mile post 670.03 in his initial report, offering his opinion for the first time during his deposition.

5

ECF No. 141 at 20-21. Razavian’s expert report concludes the following regarding the cause of

6

track washouts:

7
8
9
10
11

i.

16. The flood surge that was initiated from Dake, with its ferocious forces and
velocity travelled downstream causing breach of the downstream State Highway
233 and subsequently washout of UPRR track embankments/culverts at MP 672.14,
MP 677.32, and MP 679.32.
17. UPRR’s track embankment/culvert washouts was a direct result of the
destructive forces of the flood surge caused by failure of the 23-Mile Dam and
Dake’s spillway/embankment.

12

ECF No. 141-4 at 17. The Court agrees with Winecup that this limited information does not

13

specifically indicate that Razavian’s opinion is that water from the 23 Mile dam caused the

14

washout at mile post 670.03. However, his deposition testimony makes this opinion clear:

15

Q. Where did the water that washed out the embankment of -- at Milepost
670.03 come from?
A. In my opinion, majority of it was the flood pulse from breach of 23 Mile
Dam.
...
Q. How did [the flood water] get to 670.03 without going through the Dake
Reservoir spillway?
A. There is a waterway, the Loray Wash, reaches Thousand Springs Creek
downstream from Dake. So the runoff that washed out 670.03 went back into Loray
Wash and ran along the track on the west side of the track and -- and showed up
and merged with runoff that came through Dake.
...
A. My aerial observation and topographic map of the area suggests that a
portion -- during high level of flooding, a portion of runoff does indeed splits and
goes towards 670.03 without going to -- through Dake.
...
A. The runoff associated with the flood pulse coming from 23 Mile Dam
that splits or bypassed Dake Reservoir in the form of sheet flow or overland flow
bypassed Loray Wash, reached to the track, overtopped the track.
And once it overtopped the track, it was concentrated. And as we can see in
this photo, was concentrated into the channel.
So all the water that’s -- that came in the form of overland runoff was concentrated
in a channel. And that was the destructive force of the flow that washed out the
track and largely stayed within the channel until that runoff reached back to Loray
Wash.

16
17
18
19
20
21
22
23
24
25
26
27
28

ECF No. 141-5 at 8-9, 22.
30

Case 3:17-cv-00477-LRH-CLB Document 198 Filed 12/04/20 Page 31 of 47

1

Rule 26 of the Federal Rules of Civil Procedure states that an expert must provide “a

2

complete statement of all opinions the witness will express and the basis and reasons for them.”

3

FED. R. CIV. P. 26(a)(2)(B)(i). If expert opinions are not disclosed, “the party is not allowed to use

4

that information or witness to supply evidence . . . at a trial, unless the failure was substantially

5

justified or is harmless.” FED. R. CIV. P. 37(c)(1). Razavian’s February 27, 2019 deposition

6

(occurring approximately two years before trial) and Razavian’s January 17, 2020 declaration

7

(provided approximately one year before trial) provide his opinion regarding the mile post 670.03

8

washout in great detail. The Court finds that Winecup has had more than enough time to consider

9

this opinion and consult with its own expert on the subject such that it has not been prejudiced by

10

Union Pacific’s failure to disclose the opinion in Razavian’s expert report. While this disclosure

11

is technically untimely, it was harmless; therefore, the procedural failure does not provide a basis

12

for exclusion under Rule 37.

13

Winecup also argues that Razavian’s opinion on the subject should be excluded under

14

Federal Rule of Evidence 702 because he does not rely on sufficient facts or data and does not use

15

or apply reliable principles and methods to reach his opinion. 9 Razavian provides that his opinion

16

on the mile post 670.03 washout is based on (1) his personal aerial observations and photographs

17

taken of the area during a February 11, 2018 helicopter ride; (2) the lay of the vegetation in the

18

area and damage to track embankments; (3) review of a topographic map of the area and the

19

features of the land; (4) a photograph take by a news helicopter the day of the flood; (5) the

20

presence of ice blocks on the tracks between mile post 669 at 670; and (6) an account in the Elko

21

Daily from an NDOT Sheriff who noted that the water went around the Dake Reservoir. ECF No.

22

141-5 at 9-10, 12, 30-32; ECF No. 111-7 ¶¶ 35-42.

23

hydrological methodology requires a hydrologist to consider all of the above evidence in

24

determining flow of flood water.” ECF No. 111-7 ¶ 43.

Razavian declares that “[a]ccepted

25

Winecup concedes that an accepted methodology includes using topographical survey data

26

to determine if it is possible for water to escape one drainage and enter another. ECF No. 141 at 6.

27
28

9

The Court relies on its above statements of law regarding its gatekeeper function in determining the
admissibility of expert testimony and sees no reason to reiterate it here. See Part III.A.1.iii.
31

Case 3:17-cv-00477-LRH-CLB Document 198 Filed 12/04/20 Page 32 of 47

1

While it argues that Razavian’s use of a topographical quadrangle map does not provide enough

2

detail to map the flooding in the area (ECF No. 141-2 ¶ 18), that is an argument best left for cross

3

examination and goes toward the weight not the admissibility of Razavian’s opinion. Further,

4

while Winecup argues that Razavian’s observations were “superficial,” Winecup has given the

5

Court no reason to discount Razavian’s opinion that considering the “empirical data” he observed

6

in the area of a flood is an unacceptable methodology for determining the flow of a flood.

7

Winecup further argues that Razavian fails to offer an opinion that floodwater from the 23

8

Mile dam caused the washout at mile post 670.03. The Court disagrees. Razavian testified that it

9

was his opinion that the “destructive force” of the runoff associated with the “flood pulse” from

10

the 23 Mile dam failure washed out the tracks. While questions regarding estimations of the

11

percentage overflow that came from 23 Mile dam verses from the floodwater in the Loray Wash

12

due to the storm, and whether the Loray Wash had overtopped its banks without the addition of

13

floodwater from 23 Mile dam go to the issue of causation, those are ultimately for the jury to

14

decide and are different questions from whether Razavian offered an opinion that floodwater from

15

23 Mile dam caused the washout. Because Winecup’s arguments go to the weight of Razavian’s

16

opinion on the subject, not admissibility of his opinions, the Court denies Winecup’s first motion

17

in limine (ECF No. 141).

18

ii.

19

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.

20

As discussed above, Razavian’s opinion the subject was first disclosed during his February

21

2017 deposition. After Winecup became aware of these opinions, its own expert, Lindon,

22

conducted an additional investigation to determine the cause of the washout, including an on-the-

23

ground field inspection of the Loray Wash and a topographical survey of the area. ECF No. 141-2

24

¶ 6. On July 12, 2019, following this additional investigation, Winecup submitted its Supplemental

25

Third Disclosure, which included survey information, photographs taken during the site visit, an

26

updated model, and Lindon’s conclusion that water from the 23 Mile dam did not cause the

27

washout of the tracks at mile post 670.03. Id.

28

///
32

Case 3:17-cv-00477-LRH-CLB Document 198 Filed 12/04/20 Page 33 of 47

1

“Generally speaking, supplementation of an expert report is proper where it is based on

2

new information obtained after the expert disclosure deadline and the supplemental report was

3

served before the time for pretrial disclosures.” Colony Ins. Co. v. Colorado Cas. Ins. Co., Case

4

No. 2:12-cv-01727-APG-NJK, 2014 WL 12646048, at *2 (D. Nev. May 28, 2014). Here, the

5

material in the supplemental disclosure relates to Lindon’s analysis after hearing Razavian’s

6

opinion from his February 2017 deposition. Lindon’s opinion on the subject remained the same in

7

this disclosure as it was in his prior report. And Union Pacific and Razavian have had this

8

supplemental disclosure since July 12, 2019. While supplementation almost a year a half after the

9

deposition is untimely, the Court finds that Union Pacific has had more than enough time to

10

consider this opinion and consult with its own expert on the subject such that it has not not been

11

prejudiced by this supplemental disclosure. Accordingly, the late disclosure was harmless, and

12

Lindon will be permitted to testify on the subject.

13

In its second motion in limine, Union Pacific argues that Lindon’s opinions regarding the

14

cause of the mile post 670.03 washout should be excluded because he “ignored considerable

15

evidence” that Razavian relied upon for his own opinion. ECF No. 112 at 10-12. Union Pacific’s

16

arguments on exclusion go to the weight of Lindon’s testimony, not its admissibility, and are best

17

left to cross examination and testimony by its own expert. Accordingly, the Court denies Union

18

Pacific’s requested exclusion.

19
20

2. Winecup’s second motion in limine to exclude evidence and argument that NAC
section 535.240 applies to the 23 Mile and Dake dams (ECF No. 143) is denied.

21

Winecup motions the Court to exclude Union Pacific from arguing or presenting evidence

22

that NAC § 535.240 applies to the 23 Mile or Dake dams. ECF No. 143. Specifically, Winecup

23

argues that this administrative regulation only provides the design standard for new construction

24

of dams, not a standard of care for existing dam owners, and even if it did set forth a standard of

25

care, the regulation cannot be applied retroactively to Winecup’s dams because both were

26

constructed prior to March 15, 1951. Id. Winecup concedes that the Nevada Department of Water

27

Resources classified the 23 Mile dam as a low hazard dam and the Dake dam as a significant

28

hazard dam. Id. at 3. Based on these classifications, Union Pacific argues that pursuant to NAC
33

Case 3:17-cv-00477-LRH-CLB Document 198 Filed 12/04/20 Page 34 of 47

1

§ 535.240, Winecup was required to “construct, operate, and maintain,” the 23 Mile dam to

2

withstand a 100-year flood event, and the Dake dam to withstand a 1000-year flood event. ECF

3

No. 89 ¶¶ 16, 32, 50; ECF No. 154.

4

First, Winecup argues that a plain reading of the text of NAC § 535.240 shows that the

5

applicability of the statute is limited to approval for new construction, reconstruction, or

6

alterations, but it does not apply to dams in existence before the statute went into effect that have

7

not been modified or altered. This regulation, titled Requirements for approval. (NRS 532.120,

8

535.010), provides:

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1. Except as otherwise provided in NAC 535.220, to obtain the approval of the State
Engineer pursuant to NRS 535.010, the plans and specifications must, in addition
to all other applicable requirements, demonstrate to the satisfaction of the State
Engineer that:
(a) The dam and reservoir are able to accommodate the inflow design flood
for the tributary watershed without the failure of the dam or any other
unintended release of water.
(b) The inflow design flood selected is appropriate given the intended
purpose, hazard classification and size of the dam.
2. For the purposes of this section, the inflow design flood used for design purposes
must not, except as otherwise provided in subsection 3, be less than:
(a) A probable maximum flood, if the dam:
(1) Is classified as high hazard or is a large dam and classified as
significant hazard; or
(2) Lacks one or more spillways.
(b) A flood whose annual chance of exceedence is 0.1 percent, if the dam is
a small or medium dam and is classified as significant hazard.
(c) A flood whose annual chance of exceedence is 1 percent, for all other
dams.
3. The State Engineer will approve plans that use an inflow design flood which is
less than those set forth in subsection 2 if the applicant provides an incremental
damage analysis that demonstrates, to the satisfaction of the State Engineer, that a
lesser event is appropriate.
4. An applicant may use one or more watershed diversion structures in lieu of
spillways for the protection of a dam embankment so long as:
(a) The impoundment created by the embankment so protected is
temporary; and
(b) The diversion structures are designed to accommodate the greater of the
inflow design flood or five times the expected life of the impoundment.
5. A dam must have freeboard adequate to prevent overtopping by wave run-up and
reservoir fetch above the storm surcharge elevation. The adequacy of the freeboard
must be demonstrated by evidence satisfactory to the State Engineer in the form of:
(a) A wave run-up and reservoir fetch calculation; or
(b) Proof that the freeboard is not less than 3 feet above the storm surcharge
elevation.
6. As used in this section, “storm surcharge elevation” means the elevation that the
water surface would reach if the inflow design flood of a dam were added to a
reservoir that is at its maximum conservation elevation.
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1

NRS § 535.010 provides that this approval process pertains to “construction, reconstruction or

2

alteration” of the dams. Winecup argues that neither 23 Mile dam nor Dake dam have been

3

reconstructed or altered, and therefore, NAC § 535.240 does not apply. Winecup further argues

4

that pursuant to NAC § 353.300, because the dams were in existence prior to March 15, 1951, it

5

did not need approval to impound water, i.e. “maintain” the dams; and thus, these dams are not

6

held to the flood standards in NAC § 535.240.

7

Union Pacific argues that these standards apply to both dams: it applies to 23 Mile dam

8

because Winecup illegally, without proper approval, modified the outlet pipes in 1996 and was

9

supposed to investigate the hydraulic adequacy of the dam with respect to flooding; and it applies

10

to Dake dam because Winecup improperly abandoned the dam without applying for and having a

11

decommissioning plan approved. ECF No. 154. These two acts—modification and

12

abandonment—constitute the “construction, reconstruction, or alterations” contemplated in NRS

13

§ 535.010. Union Pacific further argues that Chapter 535 of the NAC specifies when certain

14

regulations do not apply to dams in existence prior to March 15, 1951, which indicates that any

15

regulation without that specific exclusion applies to all dams.

16

NAC § 535.240 is the only place in Chapter 535 that explains, colloquially, that a

17

significant hazard dam must withstand a 1000-year flood event and a low hazard dam must

18

withstand a 100-year flood event. 10 The State Engineer will assign all dams a hazard classification.

19

See NAC § 535.140. It is uncontested that 23 Mile dam is classified as a low hazard dam, and

20

Dake dam as a significant hazard dam. 11 The State Engineer is also authorized to inspect all dams

21

and order dam owners to make modifications and alterations necessary for safety, which

22

presumably is based on the hazard classification of the dam. See NRS § 535.030. The Court

23
10

24
25
26
27
28

See NAC § 535.055 (“Inflow design flood” means “a hypothetical flood of a given magnitude that is used
to determine the design of a dam and its related hydraulic features.”); NAC § 535.080 (“Probable maximum
flood” means “a hypothetical flood whose magnitude is: 1. The Largest that could be expected from the
most severe combination of critical meteorological and hydrological conditions that are reasonably possible
for the region in which the dam is located; and 2. Such that there is virtually no chance of its being
exceeded.”).
11
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.” NAC § 535.140.
35

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1

considers the overall statutory and regulatory scheme and finds that the hazard classifications

2

assigned by the State Engineer must be considered within the context of NAC § 535.240. And,

3

necessarily, the regulation must apply to all dams, not just those in existence after March 15, 1951.

4

Second, Winecup argues that even if it does apply, it cannot have retroactive applicability.

5

In Nevada, “[r]etroactivity is not favored,” and courts generally interpret regulations to “only

6

operate prospectively unless an intent to apply them retroactively is clearly manifested.” Cnty. Of

7

Clark v. LB Props., Inc., 315 P.3d 294, 296 (Nev. 2013) (internal quotation marks and citations

8

omitted). However, “if a regulation is a first-time interpretive regulation, application to preexisting

9

issues may be permissible.” Id. (citing Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 744

10

n.3 (1996)). The Court finds that NAC § 535.240 is not a “first-time” interpretive regulation. It

11

was first added to the regulatory schedule in 2003, along with the definitions in NAC § 535.055,

12

Inflow design flood, and NAC § 535.080, probable maximum flood. However, each regulation

13

was enacted under the authority of NRS § 532.120, which confers upon the State Engineer the

14

power to make such rules and regulations as may be necessary for the proper and orderly execution

15

of its powers. Thus, these regulations are not interpretive, but legislative and should not apply

16

retroactively.

17

While these regulations do not provide the standard of care, evidence and argument related

18

to NAC § 532.240 may be presented to support a standard of care under the reasonable person

19

standard. The Court will not preclude Union Pacific from presenting evidence and argument that

20

a reasonable dam owner would have followed this regulation and maintained all dams to withstand

21

the particular flood event based on the assigned hazard classification of its dam, including the flood

22

standard. Therefore, the Court denies Winecup’s motion to preclude any mention of this

23

regulation.

24
25

3. Winecup’s third motion in limine to exclude argument related to Union Pacific’s
claim for negligence per se (ECF No. 149) is granted.

26

Winecup argues that Union Pacific should be precluded from offering evidence of

27

negligence per se because it cannot be based on administrative regulations and the one statute that

28

it believes Union Pacific pleads under this theory, NRS § 535.030, also fails. ECF No. 149. Union
36

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1

Pacific argues that not only does NRS § 535.030 provide an appropriate basis for its negligence

2

per se claim, but so does NRS § 535.010. ECF No. 155.

3

First, the Court agrees with Winecup that under Nevada law, a violation of an

4

administrative regulation cannot form the basis of negligence per se because “it lacks the force and

5

effect of a substantive legislative enactment.” Price v. Sinnott, 460 P.2d 837, 839-40 (Nev. 1969).

6

Rather, “proof of a deviation from an administrative regulation is only evidence of negligence; not

7

negligence per se,” and likewise, “proof of compliance with such a regulation” is not proof of due

8

care, but simply evidence of such care. Id. at 840. Union Pacific pleads in its second amended

9

complaint that the following Nevada Administrative Codes impose a standard of conduct

10

obligating Winecup to act in accordance: NAC §§ 535.370, 535.040, 535.240, 535.320. ECF No.

11

89 ¶ 32. While Union Pacific pleads that it “may rely on additional statutes and administrative

12

codes that may become known to be applicable in the future,” it does not list any Nevada Revised

13

Statute that would provide the basis for its negligence per se claim. Because Union Pacific cannot

14

rely on these administrative regulations to support negligence per se, the Court grants Winecup’s

15

motion as it relates to these and any other administrative regulation Union Pacific would consider

16

proffering in support.

17

Second, Winecup addresses Nevada Revised Statute § 535.030, which it claims also cannot

18

provide the basis for Union Pacific’s negligence per se claim. “A statutory violation is negligence

19

per se if the injured party belongs to the class of persons whom the statute was intended to protect,

20

and the injury suffered is of the type the statute was intended to prevent.” Atkinson v. MGM Grand

21

Hotel, Inc., 98 P.3d 678, 680 (Nev. 2004). NRS § 535.030, titled Inspection of dams by State

22

Engineer; powers of State Engineer to protect life or property, provides:

23
24
25
26
27
28

1. The State Engineer from time to time shall:
(a) Make inspections of dams at state expense for the purpose of
determining their safety; and
(b) Require owners to perform at their expense such work as may be
necessary to supply the State Engineer with information as to the safety of
such dams.
2. The owners shall perform at their expense any other work necessary to
maintenance and operation which will safeguard life and property.
3. If at any time the condition of any dam becomes so dangerous to the safety of
life or property as not to permit sufficient time for the issuance and enforcement of
an order relative to the maintenance or operation thereof, the State Engineer may,
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1

4

if he or she deems it necessary, immediately employ the following remedial
measures to protect either life or property:
(a) Lower the water level by releasing water from the reservoir.
(b) Completely empty the reservoir.
(c) Take such other steps as may be essential to safeguard life and property.
4. The provisions of this section shall not apply to works constructed by the United
States Bureau of Reclamation or the United States Army Corps of Engineers.

5

By a plain reading of section 1 of this statute, the State Engineer determines what work is necessary

6

to maintain the safety of the dam. Section 3 of this statute further supports this reading as it

7

provides specific instances when the State Engineer can act to protect life and property.

8

Additionally, the title of this statute, specifically indicating the powers of the State Engineer to

9

protect life or property, further supports this reading. Here, per the State Engineer’s September

10

2016 Inspection Report (the inspection completed approximately five months before the February

11

2017 flood event), there were “no conditions that require immediate attention” to maintain the 23

12

Mile dam. See ECF No. 155-6. Accordingly, the record does not support a finding that Winecup

13

violated the State Engineer’s orders.

2
3

14

Section 2 provides that the owner is responsible for other maintenance that is necessary to

15

safeguard life and property. This provision does not fix a standard legal duty; it is much too broad

16

and leaves open to interpretation what work is necessary for dam owners to maintain and operate

17

their dams safely. See Sagebrush, Ltd. v. Carson City, 660 P.2d 1013, 1015 (Nev. 1983) (“Whether

18

a legislative enactment provides a standard of conduct in the particular situation presented by the

19

plaintiff is a question of statutory interpretation and construction for the court.”); Shamnoski v. PG

20

Energy, 579 Pa. 652, 671 (Pa. 2004) (reasoning that for a negligence per se holding, “the statute

21

at issue would have to be so specific as to leave little question that a person or entity found in

22

violation of it deviated from a reasonable standard of care.” (citing Beaver Valley Power Co. v.

23

Nat’l Eng’g & Contracting Co., 883 F.2d 1210, 1221 (3d. Cir. 1989)). Therefore, as a matter of

24

law, the Court finds that section 2 of this statute cannot form the basis of a negligence per se claim

25

and Winecup’s motion is granted. However, that does not mean that section 2 would not be useful

26

in proving duty and breach under the “reasonable man” standard: Union Pacific may present

27

evidence that Winecup failed to act as a reasonable dam owner by failing to perform work

28

necessary to safeguard life and property, as required by this statute.
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1

Though not addressed in Winecup’s motion, Union Pacific argues that it also pleads

2

violations of NRS § 535.010 to support its negligence per se theory. This statute, titled

3

Construction, reconstruction or alteration of dam: Permit to appropriate water required; notice;

4

approval of plans and specifications; inspection; exemptions; penalty, provides:

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

1. Any person proposing to construct a dam in this state shall, before beginning
construction, obtain from the State Engineer a permit to appropriate, store and use
the water to be impounded by or diverted by the dam.
2. Any such person obtaining or possessing such a permit shall:
(a) Before constructing, reconstructing or altering in any way any dam,
notify the State Engineer thereof; and
(b) Where the dam is or will be 20 feet or more in height, measured from
the downstream toe to the crest of the dam, or is less than 20 feet in height
and will impound more than 20 acre-feet of water, submit to the State
Engineer in triplicate plans and specifications thereof for approval 30 days
before construction is to begin.
3. The State Engineer shall examine such plans and specifications and if the State
Engineer approves them the State Engineer shall return one copy with such
approval to the applicant. If the State Engineer disapproves any part of the plans
and specifications the State Engineer shall return them to the applicant for
correction or revision.
4. The construction and use of any dam is prohibited before approval of the plans
and specifications by the State Engineer.
5. The State Engineer may at any time inspect or cause to be inspected the
construction work while it is in progress to determine that it is being done in
accordance with the approved plans and specifications.
6. This section applies to new construction, reconstruction and alteration of old
structures.
7. The provisions of this section relating to approval of plans and specifications and
inspection of dams do not apply to works constructed by the United States Bureau
of Reclamation or the United States Army Corps of Engineers; but such federal
agencies shall file duplicate plans and specifications with the State Engineer.
8. Any person beginning the construction of any dam before approval of the plans
and specifications by the State Engineer, or without having given the State Engineer
30 days' advance notice of any proposed change, reconstruction or alteration
thereof, is guilty of a misdemeanor. Each day of violation of this section constitutes
a separate offense and is separately punishable.

22

Setting aside the fact that Union Pacific failed to plead this statute, the Court still finds it

23

inapplicable. Union Pacific argues that when Winecup modified the outlet pipes for the 23 Mile

24

dam in 1996 without submitting plans or specifications, that was a violation of this statute and

25

forms the basis of its claim. While this may have been a violation of the statute, it occurred nearly

26

20 years prior to the 2017 flood incident. The 2016 inspection report mentions that over the short

27

term (1 year), the “outlet should be exercised through its full range of motion at least twice per

28

year,” and “[p]lans or other information should be submitted to this office to document the current
39

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1

outlet controls, which may have been installed prior to 1995.” The report makes no indication that

2

Winecup violated this (or any other) statute nor does the record support that the Division of Water

3

Resources ever sought to remedy a violation of this statute over the 20-year period. Accordingly,

4

the Court finds any potential violation of this statute in 1996 is too far removed from the 2017

5

flood to form the basis of a negligence per se argument now.

6

Union Pacific further argues that Winecup “abandoned” the Dake dam which constitutes

7

an “alteration” within the meaning of NRS § 535.010 and required Winecup to submit a plan for

8

approval, which it failed to do. There is evidence within the record that in 2008 Winecup was

9

considering breaching the Dake dam; the correspondence indicated that it was awaiting more

10

information from the State Engineer and that an inspection of the dam occurred in February 2009.

11

See ECF No. 155-4 at 5; ECF No. 155-5. But Union Pacific does not point to any evidence in the

12

record of “abandonment.” Nor has Union Pacific pointed to anything in the record to support that

13

the State Engineer has considered legal action against Winecup under this statute for a violation

14

due to abandonment of the Dake. The Court therefore finds that Union Pacific has failed to provide

15

a statute upon which to argue negligence per se; Winecup’s motion (ECF No. 149) is granted.

16
17

4. Winecup’s fourth motion in limine to exclude evidence and argument that Union
Pacific is entitled to punitive damages (ECF No. 150) is denied without prejudice.

18

Winecup’s fourth motion in limine requests the Court exclude Union Pacific’s claim of

19

punitive damages. ECF No. 150. Under Nevada law, punitive damages are available in a

20

negligence suit “where it is proven by clear and convincing evidence that the defendant has been

21

guilty of oppression, fraud or malice, express or implied[.]” NRS § 42.005(1). While ultimately

22

whether to award punitive damages is a question for the jury, the district court must first make a

23

“threshold determination that a defendant’s conduct is subject to this form of civil punishment.”

24

Countrywide Home Loans, Inc. v. Thitchener, 192 P.3d 243, 252-53 (Nev 2008) (citing Evans v.

25

Dean Witter Reynolds, Inc., 5 P.3d 1043, 1052 (2000)). The following definitions are relevant to

26

making this determination: (1) oppression means “despicable conduct that subjects a person to

27

cruel and unjust hardship with conscious disregard of the rights of the person”; (2) fraud means

28

“intentional misrepresentation, deception or concealment of a material fact known to the person
40

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1

with the intent to deprive another person of his or her rights or property or to otherwise injure

2

another person”; (3) malice, express or implied, means “conduct which is intended to injure a

3

person or despicable conduct which is engaged in with a conscious disregard of the rights or safety

4

of others”; and (4) conscious disregard means “the knowledge of the probable and harmful

5

consequences of a wrongful act and a willful and deliberative failure to act to avoid these

6

consequences.” NRS § 42.001(1)-(4). Section 42.001(1) “plainly requires evidence that a

7

defendant acted with a culpable state of mind,” and the defendant’s conduct “at a minimum, must

8

exceed mere recklessness or gross negligence.” Thitchener, 192 P.3d at 255.

9

Union Pacific does not allege a claim for gross negligence, but simply makes a claim for

10

negligence. See ECF No. 89. Following the Nevada Supreme Court in Thitchener, as a matter of

11

law, a plaintiff is not entitled to pursue punitive damages on negligence claims. See Madrigal v

12

Treasure Island Corp., Case No. 2:08-CV-01243-PMP-GWF, 2008 WL 11389168, at *5 (D. Nev.

13

Dec. 30, 2008) (“Because punitive damages are not available for negligence claims, Plaintiffs are

14

not entitled to pursue punitive damages for the negligence, negligent hiring, and negligent

15

misrepresentation claims.”). However, Union Pacific may qualify for punitive damages for its

16

claims of trespass and nuisance. See Land Baron Ivs., Inc. v. Bonnie Springs Family LP, 356 P.3d

17

511, 522 (Nev. 2015) (affirming an award of punitive damages for a nuisance counterclaim);

18

Parkinson v. Winniman, 344 P.2d 677, 678 (Nev. 1959) (holding that an award of exemplary

19

damages was proper upon proof of intentional trespass).

20

A reasonable jury could find punitive damages are warranted if it finds that Winecup acted

21

with conscious disregard of the downstream property owners. The record supports that Winecup

22

had policies and procedures 12 for monitoring and inspecting the dams, including the water level,

23

inflow, and operational controls. ECF No. 157-2 at 10-15, 26, 30, 52. However, there is also

24

evidence in the record that DWR instructed Winecup to complete specific tasks that were not done:

25

The 1996 inspection report for 23 Mile dam indicates that the “wing walls at the downstream invert

26

should have the concrete repaired,” and this repair was again noted in the 2003 report. ECF Nos.

27

12

28

See Shaw v. CitiMortgage, Inc., 201 F.Supp.3d 1222, 1264 (D. Nev. 2016) (the company’s serious lack
of practices, policies and procedures to deal with and explain the company’s positions and actions supported
the Court’s punitive damage award).
41

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1

157-24, 157-28. The Court notes that this repair does not show up in either the 2012 or 2016

2

inspection report which would indicate the repair was made sometime between 2003 and 2012.

3

Winecup did not undertake a program for investigation of the hydraulic adequacy of 23 Mile dam

4

with respect to flood and seeping under a full hydraulic head, admittedly a safety concern, as noted

5

in the 2003 inspection report under long term actions (3 years). ECF Nos. 157-2 at 66; 157-28.

6

Continued monitoring of the seepage area is noted in both the 2012 and 2016 reports. See ECF

7

Nos. 157-31; 157-32. In 1996, DWR indicated that it appeared that new hydraulic controls were

8

presented, and that plans and specifications for these plans needed to be submitted. ECF No. 157-

9

24 at 3-4. This short-term action was again noted in the 2016 inspection report which would

10

indicate that Winecup had failed to provide these plans for 20 years. ECF No. 157-32 at 2. In 1996,

11

the inspection report provided that the spillway appeared undersized. ECF No. 157-24 at 4. In the

12

2012 inspection report, it is noted that the spillway should be cleared of all debris and vegetation,

13

however, in 2016, the inspection report provides that the spillway has lost its design capacity due

14

to vegetation growing and earthen materials sluffing from the hillside. ECF Nos. 157-31; 157-32.

15

While 23 Mile dam is classified as a low hazard dam, meaning it carries a “very low probability

16

of causing a loss of human life;” and a “reasonable probability of causing little, if any, economic

17

loss or disruption in a lifeline,” that does not negate a dam owner’s statutory mandate to perform

18

“work necessary to maintenance and operation which will safeguard life and property.” 13 Given

19

these facts, a jury could reasonably find that a failure to complete safety measures as directed by

20

the DWR over approximately 20 years constituted conscious disregard. Accordingly, Union

21

Pacific has made a threshold showing which could support punitive damages; Winecup’s fourth

22

motion in limine is denied without prejudice. 14

23
24

5. Winecup’s fifth motion in limine to exclude evidence and argument related to an
Emergency Action Plan for the Dake dam (ECF No. 151) is denied without
prejudice.

25

Winecup argues that because the Dake dam did not fail or overtop, whether Winecup failed

26

to submit an emergency action plan for the dam, as all significant hazard dam owners are required

27
28

13
14

NAC § 535.140; NRS § 535.030.
Winecup may motion the Court to reconsider this determination based on the evidence presented at trial.
42

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1

to do under NAC § 535.320, is irrelevant—there can be no causal connection between Union

2

Pacific’s injury and Winecup’s failure to submit the plan. ECF No. 151. Union Pacific argues that

3

the Dake dam’s inoperable outlet and failed embankment section near the spillway intensified the

4

flood waters and contributed to the damage to Union Pacific’s tracks, and had an emergency action

5

plan been in place, these inadequacies would have been addressed. ECF No. 156. The Court finds

6

that whether such evidence is relevant is best determined at trial. The Court therefore denies

7

Winecup’s fifth motion in limine without prejudice and reserves ruling on such evidence until it

8

can be adjudged in the context of trial.

9
10

6. 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. 152) is granted in part and denied in part.

11

In Winecup’s sixth and final motion in limine, it motions the Court to exclude evidence

12

and argument related to the financial condition of Winecup, Paul Fireman, or the sale of Winecup

13

Gamble Ranch in 2019, as it is irrelevant and would be unfairly prejudicial. ECF No. 152. Union

14

Pacific provides that it does not intend to proffer any evidence related to non-party Paul Fireman.

15

ECF No. 157. Union Pacific further argues that evidence of Winecup’s financial condition is “to

16

allow the jury to fully evaluate the decades of neglect, to see it was not due to financial straits but

17

was fully calculated and intentional with an eye to profits.” Id.

18

It is clear to the Court based on this argument that Union Pacific intends to offer the

19

financial information as it relates to punitive damages. Pursuant to Nevada Revised Statutes

20

§ 42.005(4), “[e]vidence of the financial condition of the defendant is not admissible for the

21

purpose of determining the amount of punitive damages to be assessed until the commencement

22

of the subsequent proceeding to determine the amount of exemplary or punitive damages to be

23

assessed.” That means, under Nevada law, punitive damages proceedings are bifurcated. See

24

Wyeth v. Rowatt, 244 P.3d 765, 775 (Nev. 2010). During the initial proceeding, the jury will decide

25

whether Winecup acted with oppression, fraud, or malice. If the jury finds in the affirmative, a

26

subsequent proceeding will occur during which the parties will be permitted to present evidence

27

of the financial condition of the defendant and the jury could award punitive damages. Until that

28

secondary proceeding, Union Pacific is precluded from introducing evidence related to Winecup’s
43

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1

financial situation or the sale of the Winecup ranch; Winecup’s sixth motion is granted in part and

2

denied in part.

3

IV.

CONCLUSIONS

4

IT IS THEREFORE ORDERED that Union Pacific’s first motion in limine to exclude

5

meteorological opinions of Matthew Lindon and to appoint a neutral expert (ECF No. 111) is

6

DENIED.

7

IT IS FURTHER ORDERED that Union Pacific’s second motion in limine to exclude

8

hydrological opinions of Matthew Lindon and to appoint a neutral expert (ECF No. 112) is

9

DENIED.

10

IT IS FURTHER ORDERED that Union Pacific’s third motion in limine to facilitate

11

efficient management of exhibits and testimony (ECF No. 122) is GRANTED in part and

12

DENIED in part in accordance with this Order.

13

IT IS FURTHER ORDERED that Union Pacific’s fourth motion in limine to pre-admit

14

exhibits for use in juror binders (ECF No. 123) is DENIED. The parties are encouraged and

15

permitted to file a stipulation requesting pre-admittance of any uncontested exhibits.

16

IT IS FURTHER ORDERED that Union Pacific’s fifth and sixth motions in limine to Bar

17

Two Opinions of Derek Godwin (ECF No. 139) is DENIED. Winecup may submit a response to

18

Union Pacific’s reply regarding the standard to be used for damages, within 14 days of the filing

19

of this Order. Briefing is not to exceed 15 pages of argument, excluding tables of contents and

20

authorities and administrative notices. No other issues will be entertained without leave of the

21

Court.

22

IT IS FURTHER ORDERED that Union Pacific’s seventh motion in limine to bar

23

Winecup’s contributory negligence defense and Derek Godwin’s contributory negligence opinion

24

(ECF No. 124) is DENIED.

25

IT IS FURTHER ORDERED that Union Pacific’s eighth motion in limine to bar evidence

26

or argument that a non-party is comparatively negligent (ECF No. 125) is GRANTED in part

27

and DENIED in part, in accordance with this Order.

28

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Case 3:17-cv-00477-LRH-CLB Document 198 Filed 12/04/20 Page 45 of 47

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IT IS FURTHER ORDERED that Union Pacific’s ninth motion in limine to bar mention

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to jury of notion that Nevada’s dam statutes and regulations do not apply to the Winecup dams due

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to their age (ECF No. 126) is DENIED.

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IT IS FURTHER ORDERED that Union Pacific’s tenth motion in limine requesting that

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the Court instruct the jury before trial about certain laws that apply to Nevada dam owners (ECF

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No. 127) is DENIED.

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IT IS FURTHER ORDERED that Union Pacific’s eleventh motion in limine to bar Rule

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702 opinions (A) generally, if not in expert reports, and (B) specifically, from Luke Opperman

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(ECF No. 128), and Union Pacific’s related nineteenth motion in limine to preclude experts

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disclosed on May 13, 2020 (ECF No. 175), are DENIED without prejudice

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IT IS FURTHER ORDERED that Union Pacific’s twelfth motion in limine to Bar Evidence

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or Argument about (A) the Oroville Dam Spillway Failure, or (B) Weather or (C) Flood Conditions

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in Watersheds West of the Relevant One (ECF No. 129) is DENIED without prejudice.

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IT IS FURTHER ORDERED that Union Pacific’s thirteenth motion in limine to bar

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evidence or argument related to an “Act of God” defense (ECF No. 130) is DENIED without

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prejudice.

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IT IS FURTHER ORDERED that Union Pacific’s fourteenth motion in limine to bar
evidence or argument about consulting experts (ECF No. 131) is DENIED without prejudice.
IT IS FURTHER ORDERED that Union Pacific’s fifteenth motion in limine to bar one
paragraph in an email referencing contract truck driver incidents (ECF No. 132) is GRANTED.
IT IS FURTHER ORDERED that Union Pacific’s sixteenth motion in limine to bar two
words in an email with profane reference (ECF No. 133) is DENIED without prejudice.

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IT IS FURTHER ORDERED that Union Pacific’s seventeenth motion in limine to bar

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Winecup from providing trial testimony that contradicts its Rule 30(b)(6) witness’s deposition

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testimony (ECF No. 134) is DENIED without prejudice.

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IT IS FURTHER ORDERED that Union Pacific’s eighteenth motion in limine to bar

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Winecup from offering evidence or argument about preserving the Dake dam for pike (ECF No.

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135) is DENIED in part and GRANTED in part.
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Case 3:17-cv-00477-LRH-CLB Document 198 Filed 12/04/20 Page 46 of 47

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IT IS FURTHER ORDERED that Union Pacific’s twentieth motion in limine to permit

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Union Pacific witnesses to testify by video (ECF No. 176) is GRANTED. The Court reiterates

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that is open to presiding over a bench trial via ZOOM video conferencing if the parties are

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amendable to such a solution. In that case, participating attorneys would appear in-person, and the

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Court would leave it to each party’s counsel to determine which of its witnesses would appear by

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video or in-person. If the parties determine that a jury trial is necessary, the Court would expect

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the participating attorneys to appear in-person, but it would again leave it to each party’s counsel

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to determine which of its witnesses would appear by video or in-person. The Court notes that it is

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open to hearing any other mutually agreeable alternative to the options suggested by the Court as

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this case proceeds.
IT IS FURTHER ORDERED that Winecup’s first motion in limine to exclude Daryoush

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Razavian’s testimony related to mile post 670.03 (ECF No. 141) is DENIED.

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IT IS FURTHER ORDERED that Winecup’s second motion in limine to exclude evidence

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and argument that NAC § 535.240 applies to the 23 Mile and Dake dams (ECF No. 143) is

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DENIED.
IT IS FURTHER ORDERED that Winecup’s third motion in limine to exclude argument

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related to Union Pacific’s claim for negligence per se (ECF No. 149) is GRANTED.

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IT IS FURTHER ORDERED that Winecup’s fourth motion in limine to exclude evidence

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and argument that Union Pacific is entitled to punitive damages (ECF No. 150) is DENIED

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without prejudice.

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IT IS FURTHER ORDERED that Winecup’s fifth motion in limine to exclude evidence

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and argument related to an Emergency Action Plan for the Dake Dam (ECF No. 151) is DENIED

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without prejudice.

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IT IS FURTHER ORDERED that Winecup’s sixth motion in limine to exclude evidence

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and argument related to the financial condition of Winecup, Paul Fireman, and the sale of Winecup

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Gamble Ranch in 2019 (ECF No. 152) is GRANTED in part and denied in part.

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Case 3:17-cv-00477-LRH-CLB Document 198 Filed 12/04/20 Page 47 of 47

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IT IS FURTHER ORDERED that Union Pacific’s twenty-first motion in limine to amend

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the Pretrial Order (ECF No. 193) is GRANTED in part and DENIED in part in accordance with

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this Order.

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IT IS FURTHER ORDERED that Union Pacific’s motion to seal (ECF No. 142) is

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GRANTED, as exhibits 10 and 11 contain information Union Pacific has marked “Confidential”

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under the Court’s April 17, 2018 protective order and the request to seal is unopposed by Winecup.

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IT IS FURTHER ORDERED that the parties are to submit an amended pretrial order within

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45 days of the filing of this Order. The amended order should include both the agreed amendments

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and those permitted by this Order. The Court reiterates that the District Court has temporarily

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suspended all jury trials until further notice. See General Order 2020-03. While the Court expects

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in-person jury trials to resume in early 2021, the parties should consider the constraints of holding

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a civil jury trial during the COVID-19 pandemic as they proceed with the litigation of this matter

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and in determining whether a bench trial via ZOOM video conferencing is a feasible option.

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IT IS SO ORDERED.

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DATED this 4th day of December, 2020.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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