District Court, D. Nevada, 2022

Wesco Insurance Company v. Smart Industries Corporation

District Court, D. Nevada · Decided August 15, 2022

Trial Court Opinion

1 ROBERT T. EGLET, ESQ.

Nevada Bar No. 3402 || BRITTNEY R. GLOVER, ESQ.

Nevada Bar No. 15412 || EGLET ADAMS 400 South 7" Street, 4" Floor || Las Vegas, Nevada 89101 Telephone: (702) 450-5400 || Facsimile: (702) 450-5451 Email: [email protected] 6 - and - THEODORE PARKER, III, ESQ.

Nevada Bar No. 4716 g || PARKER, NELSON & ASSOCIATES, CHTD.

2460 Professional Court, Suite 200 || Las Vegas, NV 89128 Telephone: 702-868-8000 Fax: 702-868-8001 || E-Mail: [email protected] Attorneys for Plaintiffs Jennifer Wyman, || Bear Wyman, and the Estate of Charles Wyman O 13 UNITED STATES DISTRICT COURT < DISTRICT OF NEVADA WESCO INSURANCE COMPANY, as subrogee | Case No. 2:16-cv-01206-JCM-NJK of its insured, NICKELS AND DIMES || INCORPORATED, > 18 Plaintiff, 19 STIPULATION AND ORDER TO vs. CONTINUE TRIAL (Second Request) SMART INDUSTRIES CORPORATION d/b/a 21 SMART INDUSTRIES CORP, MFG, an Iowa corporation, 23 Defendants.

1] || JENNIFER WYMAN, | individually; BEAR | CONSOLIDATED WITH WYMAN, a minor, by and through his natural | Case No. 2:16-cv-02378-JCM-CWH parent JENNIFER WYMAN; — JENNIFER || WYMAN and VIVIAN SOOF, as Joint Special Administrators of the ESTATE OF CHARLES || WYMAN; and SARA RODRIGUEZ, natural parent and guardian ad litem of JACOB WYMAN, 7 Plaintiffs, || vs. || SMART INDUSTRIES CORPORATION, d/b/a SMART INDUSTRIES CORP., MFG, an Iowa || corporation, HI-TECH SECURITY INC., a Nevada Dv corporation; WILLIAM ROSEBERRY; BOULEVARD VENTURES, LLC, a Nevada || corporation; DOES I thought V; DOES 1 thought 10; BUSINESS ENTITIES I through V; and ROE ||CORPORATIONS 11 through 20, inclusive, 15 Defendants.

5 17 || HI-TECH SECURITY, INC; and WILLIAM 1g || ROSEBERRY, 19 Third-Party Plaintiffs, Ilys.

NICKELS AND DIMES INCORPORATED, 73 Third-Party Defendant.

STIPULATION AND ORDER TO CONTINUE TRIAL (Second Request) COMES NOW, JENNIFER WYMAN, BEAR WYMAN, and THE ESTATE OF CHARLES WYMAN (hereinafter the “Plaintiffs”) by and through their attorneys of record 5g Robert T. Eglet, Esq. and Brittney R. Glover, Esq., of the law firm of EGLET ADAMS anc || Theodore Parker, II, Esq. of PARKER, NELSON & ASSOCIATES, CHTD; Plaintiffs, SARA || RODRIGUEZ parent and guardian of JACOB WYMAN, by and through their counsel of record || Cliff W. Marcek, Esq. and Thomas Schwartz, Esq.; SMART INDUSTRIES CORPORATION by and through its attorney of record, William H. Pruitt, Esq. and Joseph R. Meservy, Esq. o: BARRON & PRUITT; and WESCO INSURANCE COMPANY, by and through its attorney o: record, Peter Dubowsky, Esq. of DUBOWSKY LAW OFFICE, and hereby agree and □□□□□□□□□ to continue the September 12, 2022 trial date in this matter to this Court’s February 27, 2022 trial stack due to the unavailability of Plaintiffs’ liability expert, E.P. Hamilton, III, Ph.D., P.E. ° On January 19, 2022, the parties submitted their Joint Pretrial Order. See ECF No. 358 On February 3, 2022, this Court granted the parties Jomt Pretrial Order and set this case for jury D trial on the stacked calendar on September 12, 2022. See ECF No. 361. The Calendar Call in thi: 1B matter is set to be held on September 7, 2022 at 1:30 p.m. /d.

14 The parties respectfully request that the September 12, 2022 trial date in this matter be continued to this Court’s February 27, 2023 trial stack. The Wyman Plaintiffs recently discoverec || that their lability expert, EP. Hamilton, II, Ph.D., P-E., will not be available until □□□□□□□□□ || 19, 2022 to meet with Plaintiffs’ counsel. See Affidavit of Deborah R. Black, attached as Exhibi || “1.” As such, Dr. Hamilton will be unavailable to testify at the September 12, 2022 trial. /d bebe] 19 || Moreover, as this trial is anticipated to last twenty-one (21) days, the September 12, 2022 tria || stack conflicts with counsel for Wesco, Peter Dubowsky’s, Jewish holidays, which begin or || September 23, 2022.

22 In the interests of fairness and justice and for good cause shown, the parties request < || continuance of the September 12, 2022 trial date until this Court’s February 27, 2023 trial stack This request is not made for the purposes of undue delay and is brought in good faith. In light □□ the foregoing, and in an attempt to avoid prejudicing all parties involved, the parties hereby stipulate to continue the trial date in this matter from September 12, 2022 to this Court’s February 27, 2023 trial stack. The parties further respectfully request that the motion in limine deadline be || extended in accordance with the new trial date pursuant to LR 16-3.

2 Respectfully submitted by: Approved as to Form and Content by: 3 DATED this 12th day of August, 2022. DATED this 12th day of August, 2022. /s/ Brittney R. Glover, Esq. /s/ Joseph R. Meservy, Esq.

5 TRACY A. EGLET, ESQ. WILLIAM H. PRUITT, ESQ.

Nevada Bar No. 6419 Nevada Bar No. 6783 6 BRITTNEY R. GLOVER, ESQ. JOSEPH R. MESERVY, ESQ.

7 Nevada Bar No. 15412 Nevada Bar No. 14088 EGLET ADAMS BARRON & PRUITT, LLP 8 400 South Seventh Street, Suite 400 3890 West Ann Road Las Vegas, Nevada 89101 North Las Vegas, Nevada 89031 9 Attorneys for Plaintiffs Attorneys for Defendant J SMART INDUSTRIES CORPORATION 10 JENNIFER WYMAN, BEAR WYMAN; and ESTATE OF CHARLES WYMAN iil 7 DATED this 12th day of August, 2022. DATED this 12th day of August, 2022.

13 /s/ Cliff W. Marcek, Esq. /s/ Peter Dubowsky, Esq.

Q CLIFF W. MARCEK, ESQ. PETER DUBOSWKY, ESQ. < 14 Nevada Bar No. 5061 Nevada Bar No. 4972 CLIFF W. MARCEK, P.C. DUBOWSKY LAW OFFICE, CHTD 15 411 E. Bonneville Ave. 300 South Fourth Street, Suite 1020 Las Vegas, Nevada 89101 Las Vegas, Nevada 89101 La 16 Attorneys for Plaintiffs Attorneys for WESCO INSURANCE CO. Ly 17 SARA RODRIQUEZ, parent and guardian Of JACOB WYMAN l ORDER 2 Based upon the Stipulation of the parties hereto, and for good cause, IT IS HEREB‘ || ORDERED, that the trial date in this matter is continued from September 12, 2022 to Februar ||27, 2023, at 9:00 a.m. The Calendar call currently set for September 7, 2022, is continued t || February 22, 2023 at 1:30 p.m.

6 IT IS FURTHER ORDERED that the motion in limine deadline 1s extended in || accordance with the new trial date pursuant to LR 16-3.

DATED August 15, 2022.

10 oe Ais ©. Malan aan ED'STATES DISTRICT JUDGE Q 13 < 14 I ed From: Peter Dubowsky To: Brittney Glover Ce: Joseph R. Meservy; Cliff Marcek; Bianca Marx Subject: Re: Wyman, et. al. v. Smart - SAO Continue Trial Date: Friday, August 12, 2022 12:05:20 PM Attachments: uc.png You may affix my signature.

Peter Dubowsky, Esq.

DUBOWSKY LAW OFFICE, CHTD.

300 South Fourth Street 10th Floor- Suite 1020 Las Vegas, NV 89101 Ph. (702) 360.3500 Fx. (702) 360.3515 www.dubowskylaw.com a LAW OFFICE, curv.

On Aug 12, 2022, at 11:59 AM, Brittney Glover <[email protected]> wrote: <WYMAN 20220812 SAO Continue Trial.docx> From: Cliff Marcek To: Brittney Glover; Joseph Meservy; Peter Dubowsky Cc: Bianca Marx Subject: RE: Wyman, et. al. v. Smart - SAO Continue Trial Date: Friday, August 12, 2022 12:43:30 PM Attachments: image009 png image010.png image011.png image012.png image013.png You can affix my signature.

CLIFF W. MARCEK, P.C.

411 E. Bonneville, Suite 390 Las Vegas, NV 89101 Telephone: (702) 366-7076 Facsimile: (702) 366-7078 Email: [email protected] (Firm) Board Certified Personal Injury Law Specialist American Association of Jus ice Past President — Nevada Justice Associa ion Million Dollar Advocates Forum The National Trial Lawyers Top 100 Trial Lawyers (2008,2014) The American Society of Legal Advocates Keenan Trial Institute

DO NOT read, copy or disseminate this communication unless you are the intended addressee. This e-mail communication contains confidential and/or privileged information intended only for the addressee. If you have this communication in error, please call us (collect) immediately at (702) 366-7076 and ask to speak to the sender of the communication. Also, please e-mail the sender and notify the sender immediately that you have received the communication in error From: Brittney Glover <bglover @egletlaw.com> Sent: Friday, August 12, 2022 12:00 PM To: Joseph Meservy <[email protected]>; Peter Dubowsky <peter @dubowskylaw com>; Cliff Marcek <cwmarcek@marceklaw com> Cc: Bianca Marx <bmarx@egletlaw com> Subject: Wyman, et. al. v. Smart - SAO Continue Trial Counsel, It is my understanding that all parties have agreed to request a continuance of the trial date in this matter. Please find attached the SAO to Continue the September 12, 2022 trial date until the February 27, 2023 trial stack. Please review for form and content and let me know if you have any changes, or if we may affix your e-signature and submit to Chambers.

Thank you.

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Petenga /eae kee) po am “al Rt ae 1h E eee This transmission (including any attachments) may contain confidential information, privileged material (including material protected by the solicitor-client or other applicable privileges), or constitute non-public information. Any use of this information by anyone other than the intended recipient is prohibited. If you have received this transmission in error, please immediately reply to the sender and delete this information from your system. Use, dissemination, distribution, or reproduction of this transmission by unintended recipients is not authorized and may be unlawful.

From: Brittney Glover To: Joseph Meservy; Giff Marcek; Peter Dubowsky Cc: Bianca Marx Subject: RE: Wyman, et. al. v. Smart - SAO Continue Trial Date: Friday, August 12, 2022 3:08:00 PM Attachments: WYMAN 20220812 SAO Continue Trial docx image004.png image005.pnq image006.png image007.png image008.png image009.png 6] 0 ZUNE Sse ee ee eee Ca Pech □□□ Brittney R Glover, Esq nese □ FAG ne a p: (702) 450-5400 BRITTNEY R. GLOVER, ESQ. w: www.egletlaw.com FF PERTTI PRE a: 400 South 7th Street, Suite #400 Las Vegas, NV 89101 io Rear Wie cy □□□ ca) fa (Ge = Petenga /eae kee) po am “al Ris iz This transmission (including any attachments) may contain confidential information, privileged material (including material protected by the solicitor-client or other applicable privileges), or constitute non-public information. Any use of this information by anyone other than the intended recipient is prohibited. If you have received this transmission in error, please immediately reply to the sender and delete this information from your system. Use, dissemination, distribution, or reproduction of this transmission by unintended recipients is not authorized and may be unlawful.

From: Joseph Meservy <JMeservy@lvnvlaw com> Sent: Friday, August 12, 2022 2:59 PM To: Cliff Marcek <cwmarcek@marceklaw com>; Brittney Glover <bglover@egletlaw com>; Peter Dubowsky <[email protected]> Cc: Bianca Marx <bmarx@egletlaw com> Subject: RE: Wyman, et. al. v. Smart - SAO Continue Trial With my minor proposed edits, you may affix my e-signature and submit.

Sincerely, Joseph R. Meservy, Esq.

Barron & Pruitt, LLP LAWYERS This transmission and any attached files are privileged, confidential or otherwise the exclusive property of the intended recipient or the law firm of Barron & Pruitt, LLP. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is strictly prohibited. If you have received this transmission in error, please contact us immediately by e- mail by hitting reply or telephone (702) 870-3940 and promptly destroy the original transmission and its attachments.

From: Joseph Meservy Sent: Friday, August 12, 2022 2:15 PM To: 'Cliff Marcek' <cwmarcek@marceklaw com>; Brittney Glover <[email protected]>; Peter Dubowsky <peter@dubowskylaw com> Ce: Bianca Marx <bmarx@egletlaw com> Subject: RE: Wyman, et. al. v. Smart - SAO Continue Trial Hi All, | have a couple very minor edits to suggest and am just waiting on Bill (who is in trial) to confirm that the date proposed works for us. | hope to have that answer by tonight.

The edits: (1) Please substitute WILLIAM H. PRUITT, ESQ. (Bar No. 6783) for David Barron, Esq. in the signature block; (2) | believe Amanda Vogler-Heaton, Esq. is no longer with Dubowsky Law Office, Chtd., right? If so, probably best to remove her from the signature block as well.; (3) On page 3:19-20, there length of trial is listed as “up to three weeks” but we informed the Court trial would be “21 days” in the Joint Pretrial Order, and | would prefer using that language.

Sincerely, Joseph R. Meservy, Esq.

From: Cliff Marcek [mailto [email protected]] Sent: Friday, August 12, 2022 12:43 PM To: Brittney Glover <bglover@egletlaw com>; Joseph Meservy </[email protected]>; Peter Dubowsky <[email protected]> Cc: Bianca Marx <bmarx@egletlaw com> Exhibit “1” AFFIDAVIT OF DEBORAH R. BLACK IN SUPPORT OF STIPULATION AND ORDER TO CONTINUE TRIAL STATE OF TEXAS ) COUNTY OF TRAVIS I, DEBORAH R. BLACK, being duly sworn, states and declares as follows: 1. I am over the age of eighteen (18) and a citizen of the United States of America. I have personal knowledge of the following and if called as a witness I could, and would, competently testify as follows: 2. I am the Vice-President of Hamilton & Associates, and I am the individual responsible for managing E.P. Hamilton III, Ph.D., P.E.’s calendaring, scheduling, and general availability.

3. Dr. Hamilton is currently out of the country until August 30, 2022.

4, Upon his return, Dr. Hamilton will not be available until September 19, 2022 to meet with Plaintiffs’ counsel.

5. Unfortunately, Dr. Hamilton will be unavailable to testify at the September 12, 2022 trial.

6. Dr. Hamilton has the ability to make himself available for trial purposes during the first two weeks of March 2023.

7. I declare under penalty of perjury that the foregoing is true and correct.

FURTHER AFFIANT SAYETH NAUGHT DATED this teks, of August, 2022.

DEBORAH R. BLAC SUBSCRIBED and SWORN to BEFORE me this mh day of August, 2022.

SAG JANELLE ETHERINGTON valk beg Ce March 7, 2026 TARY PUBLIC WESCO INSURANCE COMPANY vs. SMART INDUSTRIES CORPORATION (U.S. District Court Case No. Case No. 2:16-cv-01206-JCM-NJK)

PLAINTIFFS JENNIFER WYMAN, BEAR WYMAN, AND THE ESTATE OF CHARLES WYMAN’S STIPULATION AND ORDER TO CONTINUE TRIAL EXHIBIT 1

AFFIDAVIT AFFIDAVIT OF DEBORAH R. BLACK IN SUPPORT OF STIPULATION AND ORDER TO CONTINUE TRIAL STATE OF TEXAS ) COUNTY OF TRAVIS I, DEBORAH R. BLACK, being duly sworn, states and declares as follows: 1. I am over the age of eighteen (18) and a citizen of the United States of America. I have personal knowledge of the following and if called as a witness I could, and would, competently testify as follows: 2. I am the Vice-President of Hamilton & Associates, and I am the individual responsible for managing E.P. Hamilton III, Ph.D., P.E.’s calendaring, scheduling, and general availability.