Kawamura et al v. Boyd Gaming Corporation et al, No. 2:2013cv00203 - Document 235 (D. Nev. 2015)

Court Description: ORDER Denying 207 Defendants' Motion for Summary Judgment. IT IS FURTHER ORDERED that 206 Defendants' Motion for Partial Summary Judgment is Denied. IT IS FURTHER ORDERED that 210 Defendants' Amended Renewed Motion to Exclude E xpert Testimony of Witness Ken Braustein is Denied, and 209 Defendants' Renewed Motion is Denied as moot. IT IS FURTHER ORDERED that 233 Defendants' Motion to Strike is Denied as moot. Signed by Judge James C. Mahan on 8/3/15. (Copies have been distributed pursuant to the NEF - PS)

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Kawamura et al v. Boyd Gaming Corporation et al Doc. 235 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 8 CALVIN KAWAMURA and JEANIE KAWAMURA, ORDER Plaintiff(s), 9 v. 10 11 Case No. 2:13-CV-203 JCM (GWF) BOYD GAMING CORPORATION, et al., Defendant(s). 12 13 14 15 16 17 18 Presently before the court is defendants Boyd Gaming Corporation and M.S.W., Inc., dba Main Street Station Casino Brewery Hotel (collectively defendants judgment. (Doc. # 207). Plaintiff motion for summary filed a response, (doc. # 215), and defendants filed a reply, (doc. # 225). Plaintiff then filed a sur-reply, (doc. # 229), and defendants filed a response to the sur-reply, (doc. # 230).1 19 20 1 21 22 Plaintiff moved for leave to file a sur-reply in this matter. (Doc. # 226). Magistrate Judge and allowed plaintiff to file a sur-reply and defendants to file a response -reply. 23 24 25 26 27 28 Plaintiff then impermissibly filed a reply to response to its sur-reply. (Doc. # . (Doc. # 233). Plaintiff filed a response 232). Defendants filed a motion to strike to defendants motion to strike, (doc. # 234), asserting that the court granted him leave to file a was due by July 24, 2015. (See doc. # 230). An automated deadline from s it override the express Magistrate Judge Foley expressly granted the plaintiff only a sur-reply, and defendants only a response to the sur-reply. T improperly filed reply to its surreply. Accordingly, the court will deny defendants motion to strike as moot. James C. Mahan U.S. District Judge Dockets.Justia.com Also before the court is 1 motion for partial summary 2 gross negligence and punitive damages claims. (Doc. # 206). Plaintiff filed a response, (doc. # 3 213), and defendants filed a reply, (doc. # 223). Finally 4 amended renewed motion to exclude expert opinion 5 testimony. (Doc. # 210).2 P 6 court construes 7 I. to exclude. The motion as a motion in limine. Background 8 9 10 state of Hawaii. The incident at issue occurred when the Kawamuras visited Las Vegas in May 2010. 11 On or about May 26, 2010, the Kawamuras were gambling on the main casino floor of the 12 Main Street Station Casino in downtown Las Vegas. At some point during the late evening to 13 early morning hours, Calvin left Jeanie in search of the men s restroom. While in the restroom, 14 Calvin, knocked him 15 unconscious, and robbed him. Corson was homeless and had allegedly been hiding in the men s 16 restroom. 17 Paramedics transported Calvin to the emergency room, where he underwent several x-rays 18 and CT scans. Emergency room physicians determined that Calvin sustained multiple fractures to 19 his face and skull, and that his brain was bleeding. 20 Calvin left the hospital on May 29, 2010, and the couple returned to Hawaii on June 2, 21 2010. Calvin continued to experience complications from the assault, which required him to 22 undergo additional CT scans and multiple burr hole evacuations.3 Plaintiff alleges that he and his 23 wife live in constant fear that Calvin will suffer another brain bleed, 24 that Calvin s cognitive abilities have declined significantly as a result of the attack. 25 26 27 2 Defendants renewed motion to exclude expert opinion testimony, (doc. # 209), is moot. 28 3 A burr hole evacuation is a medical procedure in which doctors drill a hole into the James C. Mahan U.S. District Judge -2- Plaintiff has retained Ken Braunstein 1 as an expert witness. 2 Braunstein is an expert in casino security. Defendants filed a motion in limine to exclude 3 ness testimony in federal 4 5 court. (Doc. # 210). II. Legal standards a. Summary judgment 6 7 8 The Federal Rules of Civil Procedure provide for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 9 10 a judgment as a matt Fed. R. Civ. P. 56(a). A principal purpose of summary Celotex Corp. v. Catrett, 11 12 13 477 U.S. 317, 323-24 (1986). In determining summary judgment, a court applies a burden-shifting analysis. 14 party moving for summary judgment would bear the burden of proof at trial, it must come 15 forward with evidence which would entitle it to a directed verdict if the evidence went 16 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the C.A.R. Transp. Brokerage 17 18 19 20 Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an 21 22 party faile 23 which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 323-24. If the 24 moving party fails to meet its initial burden, summary judgment must be denied and the court See Adickes v. S.H. Kress & Co., 398 U.S. 25 26 144, 159-60 (1970). 27 If the moving party satisfies its initial burden, the burden then shifts to the opposing party 28 to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith James C. Mahan U.S. District Judge -3- 1 Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the 2 opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient 3 T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’ n, 4 5 6 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely 7 on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 8 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and 9 allegations of the pleadings and set forth specific facts by producing competent evidence that 10 shows a genuine issue for trial. See Celotex, 477 U.S. at 324. 11 determine the 12 truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, 13 Inc., 477 U.S. 242, 249 (1986). 14 justifiable inferences are to be drawn in his favor 15 nonmoving party is merely colorable or is not significantly probative, summary judgment may be 16 granted. See id. at 249-50. 17 Id. at 255. But if the evidence of the b. Motion in limine 18 evidence is 19 in limine are procedural mechanisms by which the court 20 can make evidentiary rulings in advance of trial, often to preclude the use of unfairly prejudicial 21 evidence. United States v. Heller, 551 F.3d 1108, 1111-12 (9th Cir. 2009); Brodit v. Cambra, 350 22 F.3d 985, 1004-05 (9th Cir. 2003). 23 in limine rulings, the 24 nt authority to manage the course of 25 Luce v. United States, 469 U.S. 38, 41 n.4 (1980). Motions in limine may be used to 26 exclude or admit evidence in advance of trial. See Fed. R. Evid. 103; United States v. Williams, 27 939 F.2d 721, 723 (9th Cir 28 admit impeachment evidence under Federal Rule of Evidence 609). James C. Mahan U.S. District Judge in limine that prosecution could -4- 1 Judges have broad discretion when ruling on motions in limine. See Jenkins v. Chrysler 2 Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); see also Trevino v. Gates, 99 F.3d 911, 922 (9th 3 4 5 [I]n limine rulings are not binding on the trial judge [who] may always change his mind 6 Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce, 7 469 U.S. at 41 (noting that in limine rulings are always subject to change, especially if the evidence 8 unfolds in an unanticipated manner). 9 all evidence contemplated by the motion will be admitted at trial. Denial merely means that 10 without the context of trial, the court is unable to determine whether the evidence in question 11 Conboy v. Wynn Las Vegas, LLC, no. 2:11-cv-1649-JCM-CWH, 2013 WL 12 13 14 in limine does not necessarily mean that 1701069, at *1 (D. Nev. April 18, 2013). c. Expert testimony An expert witness may testify at trial if the s Fed. R. Evid. 702. A 15 expert 16 17 he testimony is based upon sufficient facts or data; (2) the testimony is the 18 product of reliable principles and methods, and (3) the witness has applied the principles and 19 Id.; see also Kumho Tire v. Carmichael, 526 U.S. 137, 20 141 (1999). Expert testimony is liberally admitted under the Federal Rules of Evidence. See 21 Daubert, 509 U.S. at 588 (noting that Rule 702 22 and their general approach of rela 23 R. Evid. 702 (advisory committee notes to 2000 amendments) see also Fed. expert testimony is 24 estimony or evidence admitted is not 25 26 Daubert, -scientific 27 testimony . . . , the Daubert factors (peer review, publication, potential error rate, etc.) simply are 28 not applicable to this kind of testimony, whose reliability depends heavily on the knowledge and James C. Mahan U.S. District Judge -5- Hangarter v. Provident 1 2 Life & Accident Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004) (citations omitted). In such cases, the trial court s gatekeeping role under Daubert involves probing the 3 4 expert s knowledge and experience. See id. at 1018. is the proponent of the expert who has Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th 5 6 Cir. 1996). 7 preponderance of the evidence. See Daubert, 509 U.S. at 592 n. 10 (citation omitted). 8 III. Admissibility of the expert s proposed testimony must be established by a Discussion 9 10 generally, which stem from the events of May 26, 2010. (Doc. # 207). Seemingly in the 11 alternative, defendants also move for partial summary judgment in their favor on the issues of 12 gross negligence and punitive damages in regards to the events of May 26, 2010. (Doc. # 206). 13 a. Negligence 14 Plaintiff sues defendants on a negligent security theory. To prevail, a plaintiff generally 15 must show that: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached 16 that duty; ( 17 suffered damages. Perez v. Las Vegas Med. Ctr., 805 P.2d 589, 590 (Nev. 1991). In a negligence 18 action, the court should consider summary judgment with caution. See Sims v. Gen. Tel. & Elec., 19 815 P.2d 151 (Nev. 1991). The court will examine each element for any triable issues of material 20 fact. Accordingly, the first inquiry is whether defendants owed any duty to plaintiff. (4) the plaintiff i. Duty 21 22 Plaintiff argues that defendants were negligent because they owed a duty to plaintiff and 23 the other guests of Main Street Station to place adequate security near the restroom where plaintiff 24 was robbed. 25 Nevada law evaluates the foreseeability element of duty in innkeeper liability cases by 26 27 crimes committed on the premises. Doud v. Las Vegas Hilton Corp., 864 P. 2d 796, 800-01 (Nev. 28 1993). Plaintiff and his expert maintain that Main Street Station Hotel and Casino James C. Mahan U.S. District Judge -6- has 1 fifteen 2 3 entire United States. (Doc. # 213 at 11). 4 Defendants do not deny that their casino is in an inherently dangerous neighborhood. 5 However, defendants assert that Main Street Station is not inherently dangerous simply because 6 its surrounding neighborhood is dangerous. Defendants ol 7 The court finds 8 Any business 9 that opens its doors to the public is likely to be affected by the segment of the public that lives 10 closest to its premises. Neighborhood crime statistics would provide important information for 11 analyzing the foreseeability 12 Plaintiff offers evidence of prior crimes at Main Street Station and maintains that these 13 crimes are sufficiently similar to his assault and robbery. Plaintiff notes an attempted robbery 14 outside another of the 15 restroom. (Doc. # 215 at 28). Plaintiff also notes numerous other incidents involving transients 16 loitering in casino restrooms, undesirables stalking casino patrons, and other assaults and 17 batteries on the premises. (Doc. # 215 at 28-29). s 18 Defendants counter that none of the prior crimes noted by plaintiff involved a serious 19 injury. (Doc. # 225 at 12-13). However, the foreseeability standard is silent as to whether a given 20 crime must involve a similar degree of injury to the victim to be considered a prior similar crime. 21 22 restrooms. A reasonable jury could conclude that defendants had notice of enough prior similar 23 crimes to conclude that a crime in or around a restroom was foreseeable. The location and character of 24 casino and the prior similar crimes committed 25 inside the casino all indicate that a jury could find that the assault against plaintiff was foreseeable. 26 Therefore, triable issues of fact exist as to whether defendants owed a duty to plaintiff. 27 Accordingly, the court will deny 28 ... James C. Mahan U.S. District Judge motion for summary judgment. -7- 1 b. Gross negligence and punitive damages i. Gross negligence 2 3 Gross negligence is very great negligence, or the absence of slight diligence, or the want 4 of even scant care . . . [or] indifference to present legal duty . . . [or] utter forgetfulness of legal 5 Hart v. Kline, 116 P.2d 672, 672 (Nev. 1941). 6 The Ninth Circuit has gross in [a] particular case is a matter of fact that must Chem. Bank v. 7 8 9 Sec. Pac. Nat’ l Bank, 20 F.3d 375 (9th Cir. 1994). However, 10 for discovery and upon motion, against a party who fails to make a showing sufficient to establish 11 the existence of an element 12 burden of proof at trial. Celotex, 477 U.S. at 322. 13 Plaintiff alleges that conduct was grossly negligent because the stagnant 14 policies and procedures in Main Street Station 15 enter the casino and commit crimes. (Doc. # 213 at 11). Further, plaintiff alleges that defendants 16 they trained their casino 17 security to focus more on watching the flow of casino money than protecting casino guests. 18 Plaintiff maintains that these shortcomings prove that defendants were grossly negligent. 19 20 to Defendants respond in two ways. First, they assert that the actions casino security personnel took after the attack amounted to reasonable care, or at least rose to the lev 21 them to evade accusations of gross negligence. Plaintiff responds by stating that 22 post-accident actions have no bearing on whether they took enough pre-accident steps 23 24 to prove that they were not grossly negligent when they failed to protect plaintiff. Second, defendants maintain that Corson attacked plaintiff so quickly as to make the 25 harm plaintiff endured completely unforeseeable. Defendants state that the homeless assailant 26 entered the restroom, attacked the plaintiff, and left 27 28 James C. Mahan U.S. District Judge all within one minute (Doc. # 223 at 15). Defendants base their assertion that they were not grossly negligent largely on Racine v. PHW Las Vegas, LLC, 46 F. Supp. 3d 1028 (D. Nev. 2014), which is not binding on this court. -8- 1 In Racine, a man sexually assaulted a female guest at the Planet Hollywood Resort and Casino 2 after he had been following several other female guests. The Racine court found that Planet 3 Hollywood was not grossly negligent because it ; that the security personnel contacted Las Vegas 4 5 Metropolitan Police Department; 46 F. Supp. 3d at 1044. 6 7 ntained video surveillance of Plaintiff responds that defendants misinterpret Racine. Plaintiff asserts that defendants 8 actions are distinguishable from 9 Hollywood took steps before Ms. Racin 10 in Racine because Planet , while defendants simply took corrective steps only after Corson attacked him. 11 The care involved in tort analysis focuses on the reasonable care a defendant takes to 12 plaintiff from sustaining a foreseeable injury. Kensinger v. E.I. Du Pont de 13 14 15 Nemours, 244 Fed. Appx. 114, 115-16 (9th Cir. 2007). post-accident actions does not absolve defendants from a finding of gross negligence as a matter of law. Therefore, the court will deny partial summary judgment motion. ii. Punitive damages 16 17 focus on their security A plaintiff must demonstrate by clear and convincing evidence that the defendant is 18 guilty of oppression, fraud, or express or implied malice in order to receive an award of punitive 19 damages. N.R.S. § 42.005(1). This standard 20 clear as to leave no substantial doubt. Wynn v. Smith, 16 P.3d 424, 431 (Nev. 2001), that the . Countrywide Home Loans, Inc. v. Thitchener, 21 22 23 192 P.3d 243, 255 (Nev. 2008). Where a plaintiff has not met this burden, the court may deny a claim for punitive 24 damages as a matter of law. See e.g., Warmbrodt v. Blanchard, 692 P.3d 1282, 1286 (Nev. 25 1984) (superseded by statute on other grounds) (holding permissible a trial court s refusal to give 26 a punitive damages instruction where evidence to support such damages had not been received in 27 the case). 28 James C. Mahan U.S. District Judge -9- 1 Defendants maintain that plaintiff does not have clear and convincing evidence of 2 punitive damages, and they state that plaintiff pleads the boilerplate language for punitive 3 damages without alleging any specific facts showing oppression, fraud, or malice. Plaintiff 4 alleges that defendants acted with either oppression or implied malice when they deliberately 5 failed of vagrants stalking their patrons in 6 7 Further, plaintiff alleges that failure to keep watch over their patrons was 8 deliberate because the casino and 9 money during scheduled pit drops and slot drops. (Doc. # 215 at 9-12). 10 Plaintiff offers this explanation as an alternative to other possible theories for 11 conduct, such as gross or simple negligence. The court finds that enough evidence exists to 12 allow a factfinder to determine whether defendants acted with oppression or implied malice. 13 Therefore, the court will deny 14 gross negligence and punitive damages. 15 16 partial motion for summary judgment on the issues of c. Motion in limine – expert testimony Defendants seek to exclude Ken . Braunstein has 17 served as an expert witness for casino security cases for over 35 years. Presumably, Braunstein 18 will opine that defendants were grossly negligent for failing to post adequate security near the 19 restroom where plaintiff was assaulted. 20 In his December 22, 2014, deposition, Braunstein refers to a report in which he drew four 21 conclusions: (1) that 22 poorly managed; (3) that 23 that the casino failed to follow its own procedures. (Doc. # 210-1). 24 security is inadequate; (2) that the Main Street Station casino is hiring process for casino security officers is lacking; and (4) Defendants seek to exclude testimony. According to defendants, 25 opinions include legal conclusions that could 26 (Doc. # 210 at 2). 27 28 James C. Mahan U.S. District Judge of the case. Fed. R. Evid. 704. opinion as to [his] legal conclusion, i.e., an opinion on an ultimate issue of law. Similarly, - 10 - 1 2 Nationwide Transport Finance v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th Cir. 2008) 3 (internal citations and quotations omitted). The court finds that Braunstein, based on his specialized knowledge in the field, may offer 4 5 his expert opinion on 6 However, Braunstein may not instruct the jury that defendants were negligent as a matter of law 7 when they made their security decisions. Accordingly, the court will deny 8 exclude the expert testimony of Ken Braunstein. 9 IV. degree of negligence in regards to its security practices. motion to Conclusion 10 Accordingly, 11 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED 12 summary judgment, (doc. # 207), be, and the same hereby is, DENIED. 13 IT IS FURTHER ORDERED 14 # 206), be, and the same hereby is, DENIED. 15 amended renewed motion to exclude the 16 expert testimony of witness Ken Braunstein, (doc. # 210), be, and the same hereby is, DENIED. 209), is DENIED as moot. 17 18 I 19 as moot. 20 21 22 , (doc. # 233), is DENIED DATED August 3, 2015. __________________________________________ UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 James C. Mahan U.S. District Judge - 11 -

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