262 memoinsupportmotiontoexcludetestimonykellyblakemendrop kmart

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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 TO EXCLUDE TESTIMONY OF KELLY BLAKE MENDROP May It Please the Court: Plaintiff, Kmart Corporation, respectfully moves this Court to exclude the testimony of Kelly Blake Mendrop, P.E., P.L.S., the purported expert witness of Defendant, Kansas City Southern Railway Company. Mr. Mendrop’s opinions regarding the effect of debris blockage in Elam Creek under KCSR’s bridge at milepost 328.10 on the flooding at Kmart’s store in Corinth, Mississippi on May 2, 2010 should be excluded because Mr. Mendrop’s opinions are based on models that use insufficient and unreliable data that does not accurately reflect the conditions of the KCSR bridge and the area between the bridge and the Kmart store at the time of the flood. Mr. Mendrop’s opinions are, therefore, unreliable and inadmissible.

I.

Background Kmart has alleged that KCSR “failed to maintain a railroad underpass in the vicinity of Store

4883 by leaving it cluttered with debris, which prevented water flow and displacement, thereby contributing to the flood damages incurred by Store 4883 on May 2, 2010.”1 KCSR retained

1

See Kmart’s Complaint, Doc. 1, ¶ 36.

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Mendrop Engineering Resources to analyze the impact of the alleged debris at the KCSR bridge underpass in Elam Creek on the flooding at Kmart’s store during the May 2010 flood event. Mr. Mendrop, the owner of Mendrop Engineering Resources, prepared a report in connection with the assignment, in which he opined that a 25% blockage at the KCSR railroad underpass would have had no impact on the flooding at Kmart’s store during the May 2010 flood event.2 Mr. Mendrop’s opinion is based on modeling that he prepared using the HEC-RAS (“Hydraulic Engineering Center - River Analysis System”) system.3 To prepare the HEC-RAS models, Mr. Mendrop utilized data he obtained from the Federal Emergency Management Agency (“FEMA”) that was prepared by FEMA to create the 1981 Flood Insurance Rate Maps for the area around Elam Creek in Corinth, Mississippi.4 Specifically, Mr. Mendrop obtained hard copy printouts of the HEC-2 modeling prepared by FEMA to create the 1981 FIRM maps. (The HEC-2 modeling system is the predecessor to the HEC-RAS system.5) The KCSR bridge was in place before the hydraulic models were developed by FEMA, and thus was included as part of the HEC-2 hydraulic models used to establish the base flood elevations in the subject area.6 Importantly, the HEC-2

2

See Report of Mendrop Engineering Resources, dated June, 2013, attached as Exhibit A to Kmart’s Motion to Exclude Testimony of Kelly Blake Mendrop at 9.

3

See id. at 8.

4

See id.

5

See id.

6

See id. at 5-6.

2

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modeling data relied on by Mr. Mendrop to prepare his HEC-RAS models was created prior to 1981, and, according to Mr. Mendrop, probably in the late 1970s, and is thus over thirty years old.7 Mr. Mendrop converted the thirty-plus-year-old HEC-2 data used by FEMA to prepare his HEC-RAS models to purportedly evaluate “normal existing conditions” and analyze the impact of the 25% blockage at the KCSR underpass on the Kmart store during a 100-year storm event and a 500-year storm event.8 He prepared two different HEC-RAS models. “Model A” was a base model and reflected the existing 100-year flood event water surface elevations and the 500-year flood event water surface elevations.9 “Model B” was developed to represent a condition of 25% blockage at the underpass of the KCSR bridge in Elam Creek.10 Mr. Mendrop compared the alleged “existing conditions” in Model A to the 25% blockage in Model B to identify any impacts of the debris blockage at the underpass on the existing floodplain.11 According to Mr. Mendrop, the HEC-RAS modeling indicated that a 25% blockage at the underpass in Elam Creek would not have caused a rise in the floodwaters at the Kmart site as a result of the May 2010 flood event.12 At his deposition, Mr. Mendrop admitted that he did not conduct any surveying on the KCSR bridge to obtain the current existing condition of the bridge before preparing his HEC-RAS models.13

7

See Excerpts to Deposition of Blake Kelly Mendrop, dated September 5, 2013, attached as Exhibit B to Kmart’s Motion to Exclude Testimony of Kelly Blake Mendrop, p. 89, l. 11-21.

8

See Ex. A, Report of Mendrop at 8-9.

9

See id.

10

See id.

11

See id.

12

See id.

13

See Ex. B, Depo. of Mendrop at p. 79, l. 8 - p. 80, l. 21.

3

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Moreover, aside from the channel of Elam Creek, Mr. Mendrop did not conduct any surveying on the 2100-foot area between the KCSR underpass and the Kmart store.14 Rather, Mr. Mendrop relied on the thirty-plus-year-old HEC-2 data produced by FEMA to create the 1981 FIRM maps. Thus the data used by Mr. Mendrop to represent the KCSR bridge and the area between the bridge and the Kmart store in the HEC-RAS modeling does not represent “normal existing conditions,” but rather, represents the KCSR bridge and the area between the bridge and Kmart’s store as it existed over thirty years before the May, 2010 flood event.

II.

Law and Argument A.

Legal standard governing 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.15 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 by virtue of his knowledge, skill, experience, training or education.16 Second, the expert’s opinion must be reliable, i.e., based on scientific, technical, or otherwise specialized knowledge that will

14

See id. at p. 90, l. 20 - p. 91, l. 1.

15

FED. R. EVID. 702 (emphasis added).

16

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

4

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assist the trier of fact to understand the evidence or determine a fact in issue.17 Third, the expert’s opinion must be relevant to the facts at issue.18 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.19 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.20 The party offering the evidence has the burden of proving that the expert’s methods are reliable.21 Finally, Daubert requires that the opinion be relevant to the case; that is that there must be “a valid . . . connection to the pertinent inquiry.”22 Expert testimony is admissible only upon a showing that the proffered testimony is both relevant and reliable. Testimony is relevant when it is sufficiently related to the facts of the case such that it will assist the trier of fact in understanding the evidence or determining a fact at issue.23

17

See id. at 589-91.

18

See id. at 591.

19

See id. at 597.

20

See id. at 593-94.

21

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

22

Daubert, 509 U.S. at 592.

23

See id. at 591.

5

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Testimony is reliable when it is based on scientific methods and procedures.24 An expert’s opinion is not sufficiently reliable to be admissible if the expert’s opinion is not based on sufficient facts or data.25 Where “there is simply too great an analytical gap between the data and the opinion proffered” the expert opinion is speculative and should be stricken.26 “Such speculative opinions are unhelpful to the trier of fact.”27 Here, Mr. Mendrop’s opinion relies on models that contain insufficient, outdated, and unreliable data. Mr. Mendrop’s opinions do not help the trier of fact and should be excluded.

B.

Mr. Mendrop’s testimony is inadmissible because it relies on insufficient and unreliable data.

Mr. Mendrop’s testimony should be excluded because the models on which his opinions are based use insufficient and unreliable data. Federal Rule of Evidence 702 requires that there be sufficient facts or data underlying proffered expert testimony.28 “[A]ny step that renders the analysis unreliable...renders the expert testimony inadmissible.”29

Here, Mr. Mendrop’s analysis is

unreliable because it is based on data that does not accurately reflect the conditions of the KCSR bridge or the area between the bridge and the Kmart store as those conditions existed at the time of

24

See id.

25

Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009) (citing Curtis v.

M&S Petroleum, Inc., 174 F.3d 661, 671 (5th Cir. 1999)).

26

Previto v. Ryobi North Am., Inc., 766 F.Supp.2d 759 (S.D. Miss. 2010) (citing General Elec.

Co. v. Joiner, 522 U.S. 136, 146 (1997)).

27

28

29

Id. (citing Kemp v. Biolab, Inc., 2005 WL 1595669, *6 (S.D. Miss. 2005).

FED. R. EVID. 702.

Paz, 555 F.3d at 388 (citing Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 670-71 (5th Cir.

1999)).

6

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the May 2010 flood event. Rather, the data relied on by Mr. Mendrop to prepare his HEC-RAS models reflects those conditions as they existed over thirty years before the May, 2010 flood event.

Because Mr. Mendrop’s opinion is based on insufficient and unreliable data, his testimony is inadmissible under Federal Rule of Evidence 702.

Mr. Mendrop did not conduct any surveying on the KCSR bridge to obtain data on the current condition of the bridge to input in his HEC-RAS models.30 Mr. Mendrop explained that he did not have “track time” to access the right of way to perform surveying on the bridge.31 According to Mr. Mendrop, for him to obtain “track time” to conduct the surveying would have required KCSR to stop any train utilizing the track over Elam Creek. Instead, Mr. Mendrop relied on data that is over thirty years old to perform his analysis and prepare his HEC-RAS models. Mr. Mendrop admitted that he did not do any investigation into any changes or additions to the bridge structure from the late 1970s and early 1980s to the present and did not account for any alterations or changes in the bridge in his report.32 Specifically, Mr. Mendrop testified: Q:

Let’s talk about the KCS Bridge at mile marker 328.10. You earlier said that you did not survey the bridge, right?

A:

Correct.

Q:

Okay. In running your models you used the 30-plus-year-old survey data to perform your analysis and runs?

A:

Yes.

30

See Ex. B, Depo. of Mendrop, p. 54, ll. 2-4.

31

See id. at p. 53, l. 5 - p. 54, l. 1.

32

See id. at p. 79, l. 8 - p. 80, l. 21.

7

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Q:

So then that data that you used was from sometime in the 19 – late 1970s, early 1980s, as to the bridge?

A:

Well, the way that the HEC-2 model, those bridge routines were a little different than they are today; and when you input that data, sometimes you have to go look and make sure that the bridge data that was there, it’s been properly transposed. And that’s where going into the field, looking and seeing we got the right number of piles, you know, number of spans, and make sure the bridge data that they had modeled was still somewhat representative to what’s in the field.

Q:

Okay. So when — to be clear, when you run — when you did your runs, you used the 30-plus-year-old survey to perform your analysis; right?

A:

Yes.

Q:

And whatever inspections you did, visual inspections, you used to compare what you saw —

A:

Yes.

Q:

— versus what was in the 30-plus-year-old runs?

A:

Yes.

Q:

And you didn’t do any investigation as to any changes or additions to the bridge structure from 1981 to today, right?

A:

No.

Q:

So you didn’t account for any alterations or changes in the bridge in your report, right?

A:

No.33

Despite using thirty-year-old data and failing to account for any changes or additions to the KCSR bridge in that thirty-plus-year span of time, Mr. Mendrop alleges that his base HEC-RAS

33

See id.

8

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model, “Model A”, represents normal “existing conditions.”34 “Model A,” however, cannot represent “existing conditions” because the model represents the KCSR bridge not as it currently exists, but as it existed over thirty years ago. The geometry of the KCSR bridge could be completely different than it was in the late 1970s or early 1980s, when the data relied on by Mr. Mendrop was developed. Without a current survey of the bridge, Mr. Mendrop could not have made an accurate assessment of the impact of the bridge on the flooding at Kmart’s store because it is unknown whether the bridge was exactly the same in May 2010 as it was over thirty years ago. Therefore, Mr. Mendrop’s models are flawed and unreliable.

Mr. Mendrop also relied on the thirty-plus-year-old data to model the area around the Kmart store, despite the fact that the data was created more than ten years before the Kmart store was even built. Mr. Mendrop did not conduct a survey of the area around the Kmart store to determine the actual existing condition of that area prior to preparing his HEC-RAS models. He did not survey the parking lot for the Fulton Shopping Center, the fill area behind the shopping center or the detention pond near the shopping center.35 Indeed, the only surveying conducted by Mr. Mendrop on the Kmart store was limited to a finished floor location of the Kmart store: Q:

Okay. Mr. Mendrop, did you or your company perform any survey of the site locations that comprise the Fulton Shopping Center?

A:

The — I believe our surveys, without going — without going through every data point, they were limited to an approximate finished floor location, a finished floor for the K-mart or Kroger, I’m not sure exactly which one, but

34

See Ex. A, Report of Mendrop at 8.

35

See Ex. B, Depo. of Mr. Mendrop, p. 87, l. 1-11.

9

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just to see if it was close or from an elevation standpoint to what’s been presented on the maps and by others, so...36 *

*

*

Q:

So to be clear, that aside from the finished floors at the Kroger and K-Mart building, you or your team did not perform any surveying of the area — the entire area that comprises the Fulton Shopping Center?

A:

Not a detailed survey, no.37

The Kmart and Kroger stores were constructed in 1991, at least ten years after FEMA developed the HEC-2 data relied on by Mr. Mendrop. The as-built drawings created in connection with the construction of the Kmart and Kroger buildings show that the conditions at the Fulton Shopping Center site were significantly different in 1991 than they were before the Kmart and Kroger stores were built.38 For example, an “Existing Conditions Plan - Composite,” “Demolition Plans,” and a “Site Plan” were prepared in connection with the construction. The “Existing Conditions Plan - Composite” shows the condition of the Fulton Shopping Center site prior to construction of the Kmart and Kroger stores.39 The “Demolition Plan” drawings indicate which existing buildings were to be demolished in connection with the construction.40 The “Site Plan” drawing shows the Fulton Shopping Center site after construction of the Kmart and Kroger stores.41

36

Id. at p. 83, l. 5-14

37

Id. at p. 84, l. 13-18.

38

See construction drawings, attached in globo as Exhibit C to Kmart’s Motion to Exclude Testimony of Kelly Blake Mendrop 39

See id. at KM-01071-01072.

40

See id. at KM-01071 and KM-01073-01074.

41

See id. at KM-00027.

10

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A review of these drawings clearly shows that prior to construction of the Kmart and Kroger stores in 1991, there were several buildings located in the area that is now the parking lot for the Fulton Shopping Center. The buildings were demolished to create the flat-surfaced lot. Thus the construction plans demonstrate that in the ten years between the creation of the data relied on by Mr. Mendrop and the construction of the Kmart and Kroger stores, the area in front of the Fulton Shopping Center was altered dramatically from containing several buildings in the area to a flatsurfaced parking lot with no buildings. Mr. Mendrop’s models, however, assume that the area in front of the Kmart and Kroger stores contains several buildings when in fact the area is a flat surface.

This change alone would impact the hydrology in and around the area of the Kmart store. Mr. Mendrop’s failure to conduct a comprehensive survey of the area surrounding the Kmart store renders his modeling unreliable because it does not reflect the condition of the Fulton Shopping Center as it existed in 1991 when the Kmart store was built, much less the condition of the area during the May 2010 flood event.

Mr. Mendrop also failed to survey the area between Fulton Drive and Elam Creek to obtain current and reliable data points for that area to use in his HEC-RAS modeling.42 Moreover, aside from the creek and channel of Elam Creek, Mr. Mendrop did not perform any surveying on any of the 2100-foot area between the KCSR bridge and the Kmart store: Q:

So starting at the railroad trestle 328.10 that you circled, and going upstream in the areas as depicted within the floodway, aside from the creek and channel of Elam Creek, you didn’t do any type of surveying of the other areas; right?

A:

No, jut creek and channel, other — well, other than what we had already pointed out with maybe a few shots in some of these open areas and a few shots on the creek.

42

See Ex. B, Depo. of Mendrop, p. 87, l. 16-23.

11

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Q:

So as to — as to the information that was inputted in your model, the two model runs that you ran as specified in your report on Page 8, Model A and B, aside from whatever surveying you did of the creek and channel, the other surveying information that you relied upon was the 30-plus-year old surveying information obtained from FEMA; right?

A:

Yes.

Q:

And that was — so that was done sometime in the late 1970s?

A:

Late ‘70s, I think, probably.

Q:

Before the construction of the Kroger and K-Mart building?

A:

Yes.

Q:

Twenty years before the — well, 12 or 14 years before the construction of those buildings?

A:

Yeah, late ‘70s and ‘80s.

Q:

So your — the models that you did, Model A and B, did not account for any alterations and changes in that topography from 1978, 1979, to the current date; right?

A:

No.

Q:

What’s that?

A:

No.43 *

*

*

Q:

My question to you was, the modeling that you did, you used 30-plus-yearold data that’s contained with the 1981 FEMA study and the 2010 FEMA study as to site conditions to make a study of current conditions; right?

A:

Yes.44

43

Id., p. 89, l. 2 - p. 90, l. 12.

44

Id., p. 90, l. 20 - p. 91, l. 1.

12

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Mr. Mendrop’s reliance on the thirty-plus-year-old data instead of actual current surveyed conditions shows that, contrary to his assertion, his HEC-RAS models do not reflect “existing conditions.” Mr. Mendrop has not taken any action to account for any changes in the topography of the area in the thirty-year span of time and his opinions are, therefore, based on a model that relies on outdated and unreliable data that has no relevance to the actual condition of the subject area.

In Elliot v. Amadas Industries, Inc., the court found that the plaintiff’s expert’s opinions were not based on sufficient facts and data and excluded the testimony.45 In Elliot, the plaintiff was injured while repairing a peanut combine and sued the manufacturer of the machine.46 The plaintiff’s expert rendered opinions regarding design defects in the peanut combine and a lack of warnings for the machine.47 He based his opinions on his review of pleadings; discovery requests and responses; the plaintiff’s medical records; photographs; operating manuals and parts catalogs for combine models not at issue in the case; a combine guide; “service school” documents for a combine model not at issue in the case; and OSHA regulations.48 The expert did not examine the combine at issue and did not examine documents specific to the combine at issue because he did not know the specific model of the combine involved in the accident.49 The court determined that the expert’s opinions were based on insufficient facts and data and his analysis was, therefore, unreliable.50

45

796 F.Supp.2d 796 (S.D. Miss. 2011).

46

See id. at 799.

47

See id. at 800.

48

See id. at 807.

49

See id. at 807-808.

50

See id. at 808.

13

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Similarly, in Coffey v. Dowley Manufacturing Inc., the court excluded the testimony of the plaintiff’s expert because the expert’s opinions were based on insufficient facts and data.51 In Coffey, the plaintiff was injured while using a tool known as a Super Hub Shark that was manufactured by the defendant.52 The plaintiffs retained an expert in mechanical engineering, who, after performing a computerized analysis, determined that the tool was defective.53 The plaintiffs’ expert prepared an initial report and a final, revised report, which included a second computerized analysis.54 The defendants challenged the expert’s testimony, arguing that the report did not conform with Federal Rule of Evidence 702.55 The court agreed and excluded the expert’s testimony because it was not based on sufficient facts and data, and would therefore not assist the jury in making a factual determination.56 The court determined that the second computerized analysis was based on “hypothesized ‘guesstimations’ regarding a number of important variables.”57 The court was persuaded by evidence submitted by the defendants that more than one parameter assumed by the plaintiff’s expert in conducting his analysis was incorrect or speculative.58 The court held that the expert’s “analysis was not based on sufficient facts and data; it was based on hypotheses and

51

187 F. Supp. 2d 958 (M.D. Tenn. 2002).

52

See id. at 961.

53

See id. at 962.

54

See id.

55

See id. at 963.

56

See id. at 974.

57

Id.

58

See id.

14

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‘guesstimations’ that have little grounding in actual physical realities.”59 Accordingly, the court excluded the expert’s testimony.

Like the expert testimony in Elliot and Coffey, Mr. Mendrop’s testimony should be excluded because it is not based on sufficient and reliable facts and data, but rather on thirty-year-old data that does not reflect the actual physical condition of the KCSR bridge or the area between the bridge and the Kmart store. In Elliot, the expert relied on documents that were not specific to the type of machine at issue in that case, and thus the court determined the information was insufficient and the expert’s analysis was unreliable. Similarly, Mr. Mendrop relies on data that is not relevant to the current conditions of the KCSR bridge and the topography of the area between the bridge and the Kmart store. Mr. Mendrop used outmoded computer technology and unreliable and outdated data regarding the condition and configuration of the KCSR bridge and topography of the area between the bridge and the Kmart store. Mr. Mendrop has presented expert testimony relying on what is, for all practical purposes, a completely different site than what existed at the time of the May 2010 flood. Mr. Mendrop’s opinion relies on insufficient and unreliable data, and accordingly it should be excluded by this Court, pursuant to Rule 702 of the Federal Rules of Evidence.

III.

Conclusion Mr. Mendrop’s testimony should be excluded because the models on which his opinions

are based contain insufficient and unreliable data. Therefore, Kmart asks that this Court grant its motion and exclude the testimony of Mr. Mendrop.

59

Id.

15

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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

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