Case: 1:11-cv-00103-GHD-DAS Doc #: 213 Filed: 08/21/13 1 of 7 PageID #: 1344
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION
KMART CORPORATION V.
PLAINTIFF CIVIL ACTION NO.1:11CV103-GHD-DAS
THE KROGER CO., et al.
DEFENDANTS
ORDER DENYING MOTION The plaintiff has moved for leave to file an amended expert report beyond the deadline for service of its designation; for an extension of discovery deadlines; and alternatively for a continuance of the trial date. The motion for continuance is before the trial judge and is reserved for his decision. This case arises out of a one-hundred-year flash flood in the Corinth, Mississippi, area on May 2, 2010. The Elam creek overflowed its banks. Water rushed into the building occupied by K-Mart, resulting in heavy inventory damage and substantial financial losses. The plaintiff filed the case on May 5, 2011, but the court stayed discovery from November, 2011, to September 7, 2012. The original case management order set the deadline for the plaintiff’s designation of experts for April 8, 2013, and the defendants’ deadline for designating experts for June 7, 2013. Since the filing of the present motion, the court extended the deadline for completing discovery from August 8, 2013, to September 8, 2013. The trial of this case is set to begin on February 24, 2014. The plaintiff has moved for leave to serve the amended report of its expert, John Krewson, a civil engineer, to correct a mistake made in running computer models that substantially undermines his report and opinions.
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Both K-Mart and Kroger occupy one building. Part of the plaintiff’s claim is that the portion of the building occupied by Kroger was built into the floodway for Elam Creek, thus impairing the capacity of the floodway to carry away flood waters. This intrusion into the floodway, plaintiff contends, worsened the flooding in the adjacent K-Mart store. The plaintiff has also claimed that other obstructions in the floodway and the overgrown banks of Elam Creek worsened the flooding experienced in K-Mart. Krewson began investigating this flood in the weeks immediately following the incident and prepared his expert report by September 20, 2012. Part of Krewson’s work was running a computer hydrology-related program (HEC-RAS) to simulate what would happen to the K-Mart store under different scenarios. In one computer model, Krewson used as-built survey information approximating the actual conditions during the flood. Another computer run assumed a floodway unobstructed by the Kroger building. He also ran a HEC-RAS model that assumed a fully maintained creek channel and no encroachments or obstructions in the floodway. Krewson opined that if the portion of the building occupied by Kroger had not been built, the floodwaters at K-Mart would have been one foot lower. He opined that without floodway obstructions – like the Kroger store – and adding a properly maintained creek channel, that flood waters at the K-Mart store would have been two feet lower. The plaintiff produced the computer data underlying Krewson’s reports and opinions to the defense in April, 2013, when it designated him as an expert, and the defendants’ experts discovered a major error. Krewson utilized a substantially different water-flow rate during one of the three runs – the one estimating the flood impact of the Kroger building. During his
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Case: 1:11-cv-00103-GHD-DAS Doc #: 213 Filed: 08/21/13 3 of 7 PageID #: 1346
deposition on May 22, 2013, defense counsel asked Krewson about the discrepancy, and he admitted the flow numbers should have been the same throughout all three computer runs. After his deposition, Krewson spent approximately two hundred hours working “to re-run the models to address the mistake and to evaluate the issues raised.”1 He has now determined that the flow rate used in the Kroger store run was the correct number, not the number used in the other two runs. His proposed revised report was dated July 23, 2013.2 The proposed amended report shows that with the correct flow rates, the presence of the Kroger building does not create a substantial rise in the level of the flood. Nevertheless, the new report offers the opinion that the presence of the Kroger building caused or contributed to the flooding in K-Mart. He asserts that it reduced the over bank flow of water by two hundred nine feet and increased the average velocity of the water flow by twenty percent. With new computer runs, Krewson estimated that flowing water, without the Kroger building, would barely reach the K-Mart building. The building would have been exposed to one foot of standing water, as opposed to flowing water, with the accompanying hazard of flood-borne debris.3 In determining whether to grant the motion, the court must decide whether or not good cause has been shown to modify the scheduling order. Fed.R.Civ.P. 16(b)(4). Four factors guide the court’s discretion in making this determination. The court must consider: “(1) the
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Krewson declaration, Exh A to this motion, ¶ 11.
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The new report is dated about one month after the defendants’ timely expert designations. This motion was filed on July 25, 2013, two weeks before the then extant discovery deadline. 3
The new report also references a photograph, first seen by the expert at his deposition in May 2013, as support for his opinions relating to the alleged liability of the defendant Kansas City Southern Railway Company regarding a debris field found at their bridge crossing over Elam Creek.
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explanation for the failure to [submit a complete report on time]; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.” Reliance Ins. Co. v. Louisiana Land and Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997) (citing Geiserman v. MacDonald, 893 D. 2d 787, 791 (5th Cir. 1990)). The court concurs with the defendants’ argument that both the first and third factor weigh against allowing a deviation from the scheduling order and concludes that the motion should therefore be denied. The plaintiff has submitted that the error in the original report is comparable to a clerical error and was an error in inputting data. While that may or may not be true, the expert had a prolonged period – from September 2012 until April 2013 – when the designation was done to check his work and find this error. The error is also serious and substantial. A small discrepancy in the figures used or the results achieved might make an error more difficult to suspect or discern. That is not the case here. Krewson now says that each run should have used a flow rate of 5,202 cubic feet per second. Two of his original runs used a flow rate of 3,702 cubic feet per second. The difference because of this mistake was the difference between 1) finding a one foot rise in the flood waters at K-Mart because of the Kroger store and 2) finding the Kroger store’s presence resulted in no substantial change in the level of flood water at K-Mart. The substantial difference between the flow rates used in different runs, and the resulting crucial discrepancy in flood water levels lends credence to the defendants’ characterization of the error as glaring, and raises unanswered questions about why the error was not timely discovered.
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Krewson’s error meant the difference between a reasoned theory of liability and no viable theory of liability relating to the alleged intrusion of the Kroger building into the floodway. What Krewson has apparently done in nearly two hundred hours of work to deal “with the issues raised” by his error has been to begin again and create a new theory of liability. The facts to support this claim have been present in eye-witness accounts since the beginning of this case. Both of Krewson’s reports reference witnesses describing how landscape timbers carried by flood waters damaged and breached the back door at K-Mart resulting in flood water rushing into the store. The theory of liability is captured in the plaintiff’s complaint. But until July 25, 2013, there was no reported expert testimony or computer modeling to support a theory that moving water, as opposed to a higher level of water, was a contributing cause to K-Mart’s flood damage. This proof could have been developed from the onset of this litigation. The court also is advised that the expert made changes to his assumptions about creek bank vegetation and maintenance, changes for which the plaintiff has offered no explanation. The court finds the excuses offered for the failure to provide a timely accurate expert report weigh against allowing the amendment.4 Because this second report presents a new theory of liability, the court concludes that allowing an amendment at this late juncture would be prejudicial to the defendants. Here the defendants have invested tens of thousands of dollars in the development of expert testimony. Allowing the amendment would render this time and effort wasted. While the plaintiff has
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The court finds there is no excuse for the failure to tender in a timely manner the proposed supplemented opinions regarding Kansas City Southern. For that reason alone, the court may find that no good cause has been shown. The expert wishes to supplement his opinion about the condition of the KCS bridge and its impact on the flood event, by referencing a photograph the expert first saw at his deposition in May 2013. KCS advised the court, without contradiction, that it produced the photograph to the plaintiff in October 2012. The plaintiff is responsible for any failure to provide this evidence to its expert in a timely manner.
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offered to make Krewson available for another deposition at its expense, the defendants would incur additional attorneys’ fees and expert witness fees to attend the deposition. The defendants would incur expert witness fees for reviewing the new report and the underlying computer data, a stack of documents apparently nearing one foot in height. It is also possible that the defendants would have to seek out, hire, and pay new experts. An amendment might mean the defendants would need to prepare their own HEC-RAS computer models in rebuttal, a process all agree is expensive. Additionally, the court does not share the plaintiff’s optimism about the potential impact of allowing the amendment and the present trial date. While agreeable to a continuance, the plaintiff contends that the parties can complete discovery and motions without disrupting the Februay 24, 2014 trial date. Allowing the amendment would require resetting most deadlines in this complex litigation. Should the court continue the trial, the conflicts in the schedules of the busy lawyers cited by the plaintiff as grounds for extending case management deadlines, will not disappear. To the contrary, the court is convinced that granting this motion would make a continuance necessary and unavoidable. While a trial continuance may be considered by the court as a means to cure a discovery violation, “the absence of a compelling explanation” for the failure to provide timely, accurate expert disclosure coupled with “the potential prejudice to the defendant[s] mitigate against allowing a continuance. West v. Drury Co., 2008 WL 5169682, *3 (N.D. Miss. Dec. 9, 2008). Finally, the court finds that the request for a further extension of discovery has not been supported by a showing of good cause.
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Case: 1:11-cv-00103-GHD-DAS Doc #: 213 Filed: 08/21/13 7 of 7 PageID #: 1350
IT IS ORDERED as follows: 1. The plaintiff’s motion for leave to file the amended expert witness report is denied. 2. The plaintiff’s motion to extend the discovery deadline is denied. SO ORDERED this the 21st day of August, 2013.
/s/ David A. Sanders UNITED STATES MAGISTRATE JUDGE
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