258 memoinsupportinliminetoexcludetestimonyroberteley kmart by Milton Sandy

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION KMART CORPORATION, Plaintiff CIV. ACT. NO. 1:11-CV-103-GHD-DAS versus THE KROGER CO., et al. Defendants MEMORANDUM IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE OR LIMIT THE TESTIMONY OF ROBERT ELEY May It Please The Court: Plaintiff, Kmart Corporation, submits this Memorandum in Support of its Motion in Limine to Limit or Exclude the Testimony of Mr. Robert Eley, a purported expert witness supposedly jointly retained by Defendants, Fulton Improvements, LLC, E&A Southeast Limited Partnership, Kansas City Southern Railway Co., and The Kroger Co. (collectively “Defendants”). Mr. Eley’s anticipated testimony that “no amount of caulking, waterproofing or protective membrane would have prevented water from entering the Kmart building during the flood event,”1 should be excluded or limited for the following reasons: •

Mr. Eley conceded at his deposition that he has no training, knowledge or experience regarding at least one floodproofing measure — floodproof or watertight doors. Thus Mr. Eley is not qualified to offer a broad opinion as to whether any floodproofing measures would have prevented water from entering the Kmart building.

•

Mr. Eley’s opinion that no amount of floodproofing measures — specifically, floodproof doors — would have prevented water from entering the Kmart building in Corinth, Mississippi is not the product of reliable principles and methods, and is entirely devoid of supporting data.

See Robert Eley’s Expert Report (June 22, 2013), a true and correct copy of which is attached to Kmart’s Motion in Limine as Exhibit “A,” at 3.

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Additionally, Mr. Eley’s anticipated testimony that “the City of Corinth correctly interpreted the pre-construction site survey data (Existing Conditions Plan), compared this data to the 1981 FIRM maps and properly concluded that the 1981 Flood Maps were incorrect, or inconsistent with the existing conditions on the ground at this location”2 should be excluded or limited because it constitutes a legal conclusion that impermissibly instructs the jury on which conclusions to reach. I.

Background On May 2, 2011, Kmart filed its complaint to recover damages against Defendants as a result

of their negligent acts or omissions that caused or contributed to the flooding at Kmart’s Store No. 4833 in Corinth, Mississippi. Particularly, Kmart alleges that the location of the adjacent Kroger building and other obstructions, including those caused by KCSR at its nearby railway trestle, caused or contributed to over two feet of high velocity flood waters that entered mostly through the front entryway doors of Kmart’s Corinth store and caused damages to Kmart in excess of $3 million. A photograph depicting the rushing flood waters entering through the entryway doors is attached to Kmart’s Motion in Limine as Exhibit B.3 In addition to the negligence claims asserted against the Defendants, Kmart also alleges breach of contract claims against its landlord, Fulton Improvements, pursuant to a lease agreement between the parties, originally dated December 17, 1991. Kmart asserts that Fulton Improvements breached the lease by failing to keep the premises in a safe, dry, and tenantable condition as required

Id. This photograph was taken by a Kmart employee on May 2, 2010.

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under the terms and conditions of the lease. Specifically, Section 15(a) of the lease, titled “Repairs and Maintenance,” states: 15. Tenant shall make and pay for all maintenance, replacement and repair necessary to keep the demised premises in a good state of repair and tenantable condition, except for the following maintenance, replacement or repair which shall remain the Landlord’s sole responsibility: a.

all maintenance, replacement and repair to the roof, outer walls and structural portion of the buildings which shall be necessary to maintain the buildings in a safe, dry and tenantable condition and in good order and repair...4

Pursuant to the lease, Fulton Improvements, as landlord, is responsible for maintaining, replacing and repairing structural portions of the building to keep the building in a “safe, dry and tenantable condition.” None of the parties disputes that the water from the May 2, 2010 event entered the Kmart building through its entryway doors. Fulton Improvements failed to take the necessary precautions (i.e, installing floodproof or watertight doors) in order to maintain the structural portion (the entryway doors of the Kmart building) to keep the building in a “safe, dry and tenantable condition.” At the original request of Fulton Improvements’ counsel, Mr. Eley drafted a Report of Preliminary Findings, which is dated June 22, 2013. Mr. Eley obtained a degree in civil engineering in 1977 from Mississippi State University. Mr. Eley’s report contains Conclusions and Opinions, which state, in pertinent part: “It is my opinion that no amount of caulking, waterproofing or preventative membrane would have prevented water from entering the Kmart building during the

See Lease Agreement (December 17, 1991), a true and correct copy of which is attached to Kmart’s Motion in Limine as Exhibit “C” (emphasis added).

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flood event.”5

Taken literally, Mr. Eley’s opinion in his report purports to excuse Fulton

Improvements’s failure to properly maintain the entryway doors of the building as required under lease by concluding that no floodproofing measures, including floodproof doors, would have prevented water from entering Kmart’s Corinth store. As demonstrated below, Kmart asks this Court to grant its motion in limine by excluding or limiting Mr. Eley’s anticipated trial testimony because: (1) he is not qualified to give the opinions he seeks to offer in this case; (2) his opinions and conclusions are unsupported by reliable methodologies and data, and are thus unreliable; and (3) his opinion constitutes a legal conclusion that impermissibly instructs the jury on which conclusions to reach. II.

Law and Argument A.

Legal standard governing the admissibility of expert testimony

The admission of expert testimony is governed by Federal Rule of Evidence 702, which provides: 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.6 As the United States Supreme Court has interpreted Rule 702, the Rule requires the Court to make three preliminary determinations. First, the expert witness must be qualified as an expert

See Exhibit A, Robert Eley’s Expert Report at 3. FED. R. EVID. 702.

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by virtue of his knowledge, skill, experience, training or education.7 Second, the expert’s opinion must be reliable, i.e., based on scientific, technical, or otherwise specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue.8 Third, the expert’s opinion must be relevant to the facts at issue.9 These preliminary determinations are often referred to as the “qualifications,” “reliability,” and “relevance” components of Rule 702. Rule 702, as it currently exists, was enacted in response to the Supreme Court’s ruling in Daubert. In Daubert, the Supreme Court made clear that district courts must act as gatekeepers to ensure that expert testimony is both relevant and reliable.10 The Court identified four non-exclusive factors to consider in evaluating the reliability of expert testimony: (1) whether the theory or technique has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance in the scientific community.11 The party offering the evidence has the burden of proving that the expert’s methods are reliable.12 Finally, Daubert requires that the opinion be relevant to the case; that is that there must be “a valid . . . connection to the pertinent inquiry.”13 As explained below, Mr. Eley’s analysis does not meet all of these qualifications.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588 (1993).

See id. at 589-91.

See id. at 591.

See id. at 597.

See id. at 593-94.

See Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc).

Daubert, 509 U.S. at 592.

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Mr. Eley is not qualified to offer an opinion that no amount of floodproofing measures — specifically, floodproof doors — would have prevented water from entering the Kmart building.

In his report, Mr. Eley concludes that no amount of floodproofing measures would have prevented water from entering the Kmart building in Corinth, Mississippi on May 2, 2010.14 Kmart’s counsel questioned Mr. Eley during his September 6, 2013 deposition about this opinion. When asked the hypothetical question of whether nearly two feet of water would have entered the Kmart store if a floodproof door was installed before May 2, 2010, Mr. Eley testified, “I don’t believe that a flood-proofing door alone would have prevented water from getting in this building. That’s my opinion.”15 Mr. Eley’s opinion is baseless. Mr. Eley has no expertise or knowledge regarding floodproof doors and he lacks any professional or personal experience whatsoever regarding floodproof doors. Mr. Eley admitted this deficiency during his deposition testimony: Q:

...you’re familiar with flood-proof doors, flood-barrier doors?

Actually, I’m not.

Okay. So you’re never used those in your construction?

I have not.

You’re not familiar with Presray Corporation, are you?

No, sir.

You’re not familiar with the flood barriers and watertight doors that they provide?

See Exhibit A, Robert Eley’s Expert Report at 3.

See Excerpts of the Deposition of Robert Eley, a true and correct copy of which is attached to Kmart’s Motion in Limine as Exhibit “D,” at 107:16-18.

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No, sir.16 *

[And] you’ve never used flood-proofing doors, and you don’t have any knowledge of those doors?

No.17

It is apparent from Mr. Eley's deposition that he simply is not qualified to express an opinion as to whether any floodproofing measures — specifically, floodproof doors — would have prevented water from entering the Kmart building. Mr. Eley conceded that he knows absolutely nothing about floodproof doors, and as such, he cannot opine that such measures would have been ineffective on May 2, 2010. The Court should exercise its role as a gatekeeper and enter an order precluding Mr. Eley from testifying about floodproof doors, as he is not qualified to give the opinions he seeks to offer in this case. 2.

The methodology used by Mr. Eley to reach his conclusion is not sufficiently reliable as mandated by Daubert.

In order to be reliable, an expert’s opinion must be “grounded in the methods and procedures of science and ... be more than unsupported speculation or subjective belief.”18 Mr. Eley’s opinion in his report that “no amount of caulking, waterproofing or protective membrane would have prevented water from entering the Kmart building during the flood event”19 is not based on any

Id. at 98:6-17.

Id. at 107:19-21.

Accident Ins. Co. v. Classic Bldg. Design, LLC, 2012 WL 3913090 (S.D. Miss. Sept. 7, 2012), aff'd sub nom. Accident Ins. Co. v. Classic Bldg. Design, L.L.C., 2013 WL 4564846 (5th Cir. Aug. 29, 2013) (citing Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012)). 19

See Exhibit A, Robert Eley’s Expert Report at 3.

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reliable methods or supporting data. Mr. Eley’s opinion is based solely on “thirty-five years of experience,” and “an engineering degree.”20 But the United States Fifth Circuit of Appeals has held that “[w]ithout more than credentials and a subjective opinion, an expert's testimony that ‘it is so’ is not admissible.”21 In fact, Mr. Eley admits that his opinion that no floodproofing measures would have prevented water from entering the Kmart building is unsupported by any reliable methodologies or data: Q:

Okay. In forming your opinion, did you run any type of models to see whether your opinion is valid?

No, sir.

So you didn’t do any type of studies based upon the actual survey of the Kmart and Kroger building to see whether water, 22 inches of water, would have entered unto the that Kmart in connection with the May 2nd, 2010, event?

Quite frankly, I don’t think it needs to be studied.22

Further, in drawing his conclusions, Mr. Eley completely ignores an alternative floodproofing measure — floodproof doors. Indeed, a representative of the City of Corinth testified that at least two

See Exhibit D, Depo. of Robert Eley at 96:10-19.

Hathaway v. Bazany, 507 F.3d 312, 318 (5th Cir. 2007) (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir.1987)). 22

See Exhibit D, Depo. of Robert Eley at 97:11-21. In fact, Mr. Eley even admitted that he failed to inspect the Kmart building in preparation of his report: Q:

Because you didn’t inspect the Kmart and Kroger building in preparation of your report, you don’t know whether any membranes or caulking and flood-proof measures were done as to the building?

No, sir. I did not inspect the construction of the building, and I do not know specifically which caulking, or flood-proofing, or membrane was incorporated in the building.

Id. at 108:6-13 (emphasis added).

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buildings near the Kmart building have installed floodproof doors to prevent potential flooding.23 Because Mr. Eley opines that no floodproofing measures would have been effective, yet completely disregards the use of floodproof doors (as evidenced below in his deposition testimony), his opinion is baseless and wholly unreliable. It is completely illogical for Mr. Eley to conclude that no floodproofing measure would have prevented water from entering the Kmart building when he fails to consider every possible floodproofing measure. Mr. Eley concedes this exact point: Q:

So you didn’t review the [floodproof doors] in preparing your — making your conclusion. Right?

I did not.24

In O’Hara v. Travelers,25 the court excluded the deposition testimony of the plaintiff’s residential construction and repair expert because his testimony was both unreliable and irrelevant. In finding his testimony was unreliable, the court held that his opinion was “based upon insufficient facts, data, information and/or observations.”26 There, the plaintiff’s expert, in determining the value of the loss at issue, viewed only the exterior of the house several years after it was damaged and only after demolition had begun. His opinion was based only on three photographs of the property provided by the plaintiff, his limited viewing of the house, and whatever other information to what the plaintiff had told him.27

See Excerpts of the Deposition of David M. Huwe, a true and correct copy of which is attached to Kmart’s Motion in Limine as Exhibit “E,” at 68:20 to 69:12. 24

See Exhibit D, Depo. of Robert Eley at 98:18-21.

2012 WL 3062300 (S.D. Miss. July 26, 2012).

Id. at *9.

See id.

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The O’Hara court noted, “Where an expert’s opinion is based on insufficient information, the analysis is unreliable.”28 The expert in O’Hara did not consider the reports of the fire department or the engineer’s report, among other documents, in forming his opinion. Further, in excluding the expert’s testimony, the court held, “No one could form a reliable opinion regarding the cost to repair and/or construct a house on that meager basis.”29 Here, like the expert in O’Hara, Mr. Eley wholly failed to consider any reports or any other documentation in forming his opinion that floodproof doors would not have been an effective preventative measure if used by Kmart on May 2, 2010. Mr. Eley, like the plaintiff’s expert in O’Hara, could not have formed a reliable opinion on floodproofing measures — specifically, floodproof doors — on such a meager basis, as his opinion is entirely devoid of supporting data and is not the product of reliable principles and methods. As such, his conclusion that no preventative measures would have prevented water from entering the Kmart building during the flood event is nothing more than speculation, and is not sufficiently reliable as required under Daubert. Accordingly, like the court’s decision in O’Hara to exclude the testimony of the plaintiff’s expert, Mr. Eley’s anticipated testimony, too, should be excluded. B.

Mr. Eley’s opinion is inadmissible as it constitutes a legal conclusion that instructs the jury on the result to reach.

Rule 704 of the Federal Rules of Evidence indicates that “testimony in the form of an opinion or inference otherwise inadmissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact,” but an expert is not permitted to tell the trier of fact, what decision should

Id. (citing Seaman v. Seacor Marine LLC, 326 Fed. App’x 721, 725 (5th 2009)).

Id. at *9.

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be reached.30 The 1972 Advisory Committee Notes to Rule 704 clarifies that this rule does not permit any opinion on the ultimate issue to be rendered. As the Advisory Committee Notes indicate, the provisions of Rules 403, 701, and 702 “afford ample assurances against the admission of opinions which would merely tell the jury what result to reach.” In Owen v. Kerr-McGee Corp.,31 the Fifth Circuit addressed the types of expert opinions that are prohibited. In Owen, the defendant’s attorney asked its expert whether he had any opinion regarding the cause of the accident having considered all the evidence in the case. The plaintiff objected, and the trial court sustained the objection. On appeal, the defendant argued that the question was admissible under Rule 704, but the Fifth Circuit disagreed.32 Considering the 1972 Advisory Committee Notes to Rule 704, the Owen court found that the question at issue sought a legal conclusion and “would supply the jury with no information other than the expert’s view of how its verdict should read.”33 Rule 704 was not to be read so broadly and did not permit questions “which would merely tell the jury what result to reach . . . Nor is the rule intended to allow a witness to give legal conclusions.”34 In other words, as the court recognized in Trinity Yachts, LLC v. Thomas Rutherfoord, Inc.,35 “Opinions that provide legal conclusions are not

FED. R. EVID. 704(a).

698 F.2d 236 (5th Cir. 1983).

Id. at 239-40.

Id. at 240.

Id. (emphasis in original).

2013 WL 2406552 (S.D. Miss. May 31, 2013).

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helpful to the trier of fact and are therefore inadmissible.”36 In the present case, Mr. Eley’s opinions are exactly the type of opinions that are excluded under Rule 704 and Owen. Mr. Eley’s expert report states, in pertinent part: It is my opinion that the City of Corinth correctly interpreted the preconstruction site survey data (Existing Conditions Plan), compared this data to the 1981 FIRM maps and properly concluded that the 1981 Flood Maps were incorrect, or inconsistent with the existing conditions on the ground at this location.37 Mr. Eley recites what he believes to be the correct interpretation and proper conclusion by the City of Corinth of the site survey data against the data from the 1981 FIRM map. In his deposition testimony, however, Mr. Eley cannot point to any specific document or source that supports his opinion: Q:

Okay. Paragraph 2 says that, “It is my opinion that City of Corinth correctly interpreted pre-construction site survey data (existing conditions plan), compared this data to the 1981 FIRM map, and properly concluded that the 1981 flood maps were incorrect or inconsistent with the existing conditions on the ground at this location.” Did I read that correctly?

Yes, sir.

Okay.

You did read it correctly.

Id. at *3 (citing Fed. R. Evid. 702; United States v. Izydore, 167 F.3d 213, 218 (5th Cir.1999); see also Peters v. City of Waveland, 2012 WL 1854311, *2 (S.D. Miss. Feb. 20, 2012); BNY Mellon, N.A. v. Affordable Holdings, Inc., 2011 WL 2746301, *2 (N.D. Miss. July 12, 2011) (“[T]o make it abundantly clear [ ], it is axiomatic that an expert is not permitted to provide legal opinions, legal conclusions, or interpret legal terms; those roles fall solely within the province of the court.”) (quoting Roundout Valley Cent. Sch. Dist. v. Coneco Corp., 321 F. Supp. 2d 469, 480 (N.D.N.Y. 2004); Jones v. Reynolds, 2008 WL 2095679, *12 (N.D. Miss. May 16, 2008) (“To the extent that [the plaintiff’s expert] asserts legal conclusions and conclusions as to the ultimate fact, his expert testimony is to be struck.”); Shoemake v. Rental Serv. Corp., 2008 WL 215818, *3 (S.D. Miss. Jan. 22, 2008) (finding that the expert’s testimony should be limited to the extent it purports to make legal conclusions). 37

See Exhibit A, Robert Eley’s Expert Report at 3 (emphasis added).

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You don’t have any direct knowledge of whether that happened. Right?

Well, the fact that the building is – exists and they allowed it to be constructed. There was a – I think there’s some meeting minutes where they approved the construction of the project. I think it would be a pretty logical conclusion that they reviewed it and approved it. In fact, I think there’s some documentation to that effect.

Okay.

Although I can’t specifically tell you where or what it is as I sit here today.

In preparing your report, you didn’t speak with anyone from the City of Corinth who made the determination that you said it made as to correctly interpreting the preconstruction site survey data?

I did not speak to anyone.

Because you weren’t a part of that determination. Right?

I was not part of it.38

In summary, Mr. Eley’s opinion is precisely the kind Rule 704 was intended to avoid. Although Mr. Eley may be permitted to testify regarding his opinion as to the purported differences in the two sets of data, he should not be permitted to testify whether the City of Corinth’s interpretation was correct or consistent. Mr. Eley’s conclusion that the City of Corinth properly concluded that the 1981 Flood Maps were incorrect, or inconsistent with the existing conditions is no different than the proffered expert opinion in Owen. Mr. Eley is similarly providing the legal conclusions to be drawn from the evidence and telling the jury what result to reach. Under Rule 704

See Exhibit D, Depo. of Robert Eley at 93:6 to 94:11 (emphasis added); see also Walker v. George Koch Sons, Inc., 2009 WL 837729 (S.D. Miss. Mar. 27, 2009) (finding that the expert witness “will not be permitted to state legal conclusions [...] especially if the conclusion has no logical connection to his expertise or to his methodology.”)

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and Owen, those opinions are inadmissible. III.

Conclusion For the foregoing reasons, Kmart respectfully requests that this Court grant its motion in

limine and exclude the testimony of Robert Eley.

Respectfully submitted,

/s/ Ryan O. Luminais ___________________________________________ JAMES M. GARNER (La. Bar. No. 19589) JOHN T. BALHOFF, II (La. Bar. No. 24288) RYAN O. LUMINAIS (Miss. Bar. No. 101871) SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 ATTORNEYS FOR KMART CORPORATION

CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been served on all known counsel of record with the Clerk of Court using the CM/ECF system which will automatically send-email notification to all known counsel of record, this 8th day of October, 2013.

/s/ Ryan O. Luminais _________________________________________ RYAN O. LUMINAIS