251 supplementtomotiontoexcludejohnkrewsontestimony kcsr kmart

Case: 1:11-cv-00103-GHD-DAS Doc #: 251 Filed: 10/04/13 1 of 7 PageID #: 2242

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION KMART CORPORATION VS.

PLAINTIFF CIVIL ACTION NO. 1:11-CV-103-GHD-DAS

THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP; FULTON IMPROVEMENTS LLC; THE KANSAS CITY SOUTHERN RAILWAY COMPANY; CITY OF CORINTH; THE UNITED STATES OF AMERICA; JOHN DOE; AND ABC CORPORATION DEFENDANTS ______________________________________________________________________________ DEFENDANT THE KANSAS CITY SOUTHERN RAILWAY COMPANY’S SUPPLEMENT TO ITS MOTION TO EXCLUDE TESTIMONY OF JOHN R. KREWSON ______________________________________________________________________________ COMES NOW Defendant The Kansas City Southern Railway Company (“KCSR”), in light of this Court’s Order Relative to Plaintiff’s Objections to Magistrate Judge’s Order Denying Request for Leave to File Amended Report [Doc 243], and files this Supplement to its previously filed Motion to Exclude Testimony of John R. Krewson [Doc 240] and Memorandum [Doc 241] in support (“Daubert motion”).

In support of this Supplement, KCSR would

respectfully show unto the Court the following: 1.

On September 27, 2013 this Court issued an Order [Doc 243] on Plaintiff Kmart

Corporation’s Motion for Leave to File Amended Report of John R. Krewson [Doc 176] that it “will consider an amendment of mathematical errors only.” Because this Court’s ruling does not affect the validity of KCSR’s pending Daubert motion to strike Krewson, KCSR files this Supplement to highlight why its Daubert motion remains valid and ripe for adjudication by this Court.

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2.

In this flood case, Plaintiff has designated engineering expert John R.

Krewson (“Krewson”) to offer an opinion that KCSR failed to adequately maintain a railroad underpass free of excessive debris and that such debris prevented water flow and displacement in and around Elam Creek, thereby contributing to the flood damages incurred by Plaintiff at Kmart Store #4883 in Corinth, Mississippi, on May 2, 2010. See Complaint [Doc 1]. 1 3.

On May 22, 2013, Defendants, including KCSR, took Krewson’s deposition.

During that deposition, Krewson admitted that he could not say any debris was present under KCSR’s bridge before the flood, and that in preparing his HEC-RAS engineering models, he did not model either the KCSR bridge over Elam Creek or the alleged debris beneath the bridge.

Indeed, Krewson testified that since his models did not account for debris blockage at the KCSR bridge, as alleged by Plaintiff, he could draw no conclusions regarding the impact of such debris on flood levels at the Kmart store. [See Docs 240, 241].

4.

On July 25, 2013, more than three months after Plaintiff’s expert

designation deadline, Plaintiff filed a Motion for Leave to File Amended Report of John R. Krewson [Doc 176]. Plaintiff sought to correct certain errors in Krewson’s HEC-RAS engineering model calculations, which form the predicate for his expert opinions in this case. In his proposed new report, Krewson still failed to model the KCSR bridge or any alleged debris beneath the bridge. Instead, Krewson opined that an additional post-flood “picture of the flooded railroad bridge” indicates that “debris found behind the bridge after the flood were present prior to the flooding.” [Doc 238-2 at 8]. This was the only change in Krewson’s supplemental report 1

Pursuant to this Court’s amended scheduling order [Doc 61, 129], Plaintiff’s expert designations were due April 22, 2013.

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that applied to KCSR, given that Krewson never included KCSR in its models.

5.

On August 21, 2013, the Magistrate Judge denied Plaintiff’s motion.

[Doc 213]. In general, the Magistrate Judge rejected Plaintiff’s attempt to “remodel” the flood, but specifically rejected Plaintiff’s attempt to “supplement [its expert’s] 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.” [Doc 213 at 5 n.4]. The Magistrate Judge emphasized that it was undisputed by the parties that the photograph of the KCSR bridge in question was produced in discovery on October 4, 2012, months before Krewson’s deposition.

[Doc 213 at 5 n.4]. Thus, the photograph was available, if not at the time of Krewson’s initial report, prepared in September 2012, then more than six months before Plaintiff’s expert designation deadline of April 22, 2013. The Magistrate Judge concluded that “there is no excuse for the failure to tender in a timely manner the proposed supplemental opinions regarding Kansas City Southern . . . . The plaintiff is responsible for any failure to provide this evidence to its expert in a timely manner.” [Doc 213 at 5 (emphasis added)].

6.

On September 4, 2013, Plaintiff, pursuant to Local Rule 72(a)(1)(A), filed

Objections to the Magistrate Judge’s Order. [Docs 227 and 228]. However, in its Objections, Plaintiff did not challenge the Magistrate Judge’s ruling disallowing Plaintiff to supplement its report with regard to the additional post-flood photograph. 2 7.

On September 20, 2013, before this Court ruled on Plaintiff’s Objections to

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Plaintiff has thus waived any objection to that portion of the Magistrate Judge’s ruling. See Fed. R. Civ. 72(a); Sattiewhite v. Scott, 1995 WL 295892 at * 4 (5th Cir. 1995) (party who does not specifically object to Magistrate Judge’s findings of fact, conclusions of law, or analysis on a particular point is foreclosed from making such objections on appeal).

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the Magistrate Judge’s Order, KCSR filed its Daubert motion and supporting memorandum.

[Doc 240, 241]. The memorandum sets forth in three sections why Krewson’s testimony is unreliable under FRE 702 and Daubert: 1) In Section I, KCSR explains that Krewson’s testimony that debris beneath KCSR’s bridge contributed to flooding at Kmart Store #4883 should be excluded because Krewson assumed the existence of debris at the time of the May 2, 2010 flood with no reliable basis for his assumption; 2) In Section II, KCSR explains that even assuming arguendo that there was debris at KCSR’s bridge at the time of the flood, Krewson’s testimony regarding the impact of such debris on flooding at the Kmart store should be excluded because Krewson never modeled the KCSR bridge and alleged debris beneath it; and 3) In Section III, KCSR explains that beyond the fact that Krewson did not model the KCSR bridge and any alleged debris beneath it, his models are also unreliable in general because they are otherwise based on insufficient and erroneous data. See Docs 240, 241.

8.

The District Judge’s ruling that the Court will “consider an amendment [to

Krewson’s report] of mathematical errors only” [Doc 243] in no way affects the Magistrate Judge’s ruling disallowing Plaintiff to amend its expert report specifically as to KCSR since the additional post-flood photograph does not constitute a “mathematical error.”

Further, the

“mathematical errors” that Plaintiff seeks to amend go to Krewson’s HEC-RAS models, and his conclusions based on those models, which do not address KCSR’s alleged liability in this case since Krewson never modeled the KCSR bridge or alleged debris. See Docs 240, 241. Thus, as to KCSR, Krewson’s original report and deposition testimony are still the only evidence from Krewson available to Plaintiff, and KCSR’s Daubert motion to exclude Krewson’s testimony contained in that report and deposition remains valid as to Sections 1 and II of KCSR’s motion.

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Given that Sections I and II of KCSR’s motion address Krewson’s impermissible assumption of debris and the fact that, even assuming the existence of such assumed debris, Krewson never modeled the bridge and assumed debris and could therefore draw no conclusions about the impact of the assumed debris on the flood at Kmart, this Court need not consider Section III of KCSR’s argument in order to fully adjudicate KCSR’s motion.

Thus, KCSR respectfully

suggests that Section III of KCSR’s motion and memorandum in support could be held in abeyance pending final resolution of Plaintiff’s Objections to Magistrate Judge’s Order, without such abeyance impacting the Court’s ability to rule on Sections I and II of KCSR’s Daubert motion.

9.

Given that the District Judge’s ruling does not alter the Magistrate Judge’s

order denying its motion to amend Krewson’s report as to KCSR, and further given that KCSR’s Daubert motion is not predicated on “mathematical errors” contained in Krewson’s models, but rather on Krewson’s assumption of debris beneath KCSR’s bridge at the time of the flood and his failure to model the KCSR bridge and such assumed debris beneath it, KCSR’s motion remains ripe for adjudication.

WHEREFORE, PREMISES CONSIDERED, Defendant The Kansas City Southern Railway Company respectfully requests that this Court grant its Motion to Exclude the proffered expert testimony of John R. Krewson in its entirety.

THIS the 4th day of October, 2013.

Respectfully submitted, THE KANSAS CITY SOUTHERN RAILWAY COMPANY 5

Case: 1:11-cv-00103-GHD-DAS Doc #: 251 Filed: 10/04/13 6 of 7 PageID #: 2247

BY:/s/ Linda F. Cooper CHARLES E. ROSS (MSB #5683) W. McDONALD NICHOLS (MSB #3847) LINDA F. COOPER (MSB #102901) Attorneys for Defendant KCSR

OF COUNSEL WISE CARTER CHILD & CARAWAY, P.A. 600 Heritage Building 401 East Capitol Street Post Office Box 651 Jackson, Mississippi 39205-0651 Telephone: (601) 968-5500 Facsimile: (601) 968-5593

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Case: 1:11-cv-00103-GHD-DAS Doc #: 251 Filed: 10/04/13 7 of 7 PageID #: 2248

CERTIFICATE OF SERVICE

I, Linda F. Cooper, one of the attorneys for Defendant, The Kansas City Southern Railway Company, do hereby certify a copy of the above and foregoing has been served on all known counsel of record with the Clerk of the Court using the CM/ECF system which will automatically send email notification to all known counsel of record.

This the 4th day of October, 2013. /s/Linda F. Cooper LINDA F. COOPER

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