264 memoinsupportmotiontoexcludetestimonyjamesmonohan kmart

Case: 1:11-cv-00103-GHD-DAS Doc #: 264 Filed: 10/08/13 1 of 10 PageID #: 3192

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 TESTIMONY OF JAMES MONOHAN May It Please the Court: Plaintiff, Kmart Corporation, submits this Memorandum in Support of its Motion in Limine to Exclude Testimony of James Monohan, who is a purported expert witness on behalf of Defendants, Fulton Improvements, LLC, E&A Southeast Limited Partnership, and the Kroger Co. Mr. Monohan seeks to critique the modeling performed by Kmart’s expert, John Krewson. But in doing so, Mr. Monohan relies on incorrect flow data and admits that he does not even know the correct flow data because he himself performed no modeling. Therefore, Mr. Monohan’s testimony regarding flow rates is not reliable and should be excluded.

I.

Background On May 2, 2010, Kmart Store #4833 in Corinth, Mississippi was heavily damaged by over

two feet of high velocity flood water. As part of its negligence claims, Kmart alleges that actions and/or omissions of Kroger, Kansas City Southern Railway, E&A Southeast Limited Partnership, and Fulton Improvements caused or contributed to its damages.1 Kmart also alleges contractual 1

See Kmart’s Complaint ¶¶ 23-62.

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claims against Fulton Improvements by failing to keep the leased premises in a safe, dry, and tenantable condition as required under the lease.2 Kmart’s claims are supported in part by the expert opinion and analysis of John Krewson, Kmart’s hydrological engineering expert. Mr. Krewson had prepared HEC-RAS models for the Kmart and Kroger sites using as-built survey data and the water flows for the area listed in the Federal Emergency Management Agency’s [“FEMA”] 2009 Flood Insurance Study.3 Mr. Krewson prepared three runs to determine the impact of the Kroger store on the flooding at Kmart during the May 2, 2010 flood event.4 One factor that Mr. Krewson put into the HEC-RAS models was the peak discharge of Elam Creek, which figure was obtained from FEMA’s 2009 Flood Insurance Study.

The peak discharge at Elam Creek for the 100-year flood is 5,202 cubic feet per second (cfs).5 The 5,202 cfs peak discharge was used in Mr. Krewson’s original second HEC-RAS run data.6 However, the first and third runs of HEC-RAS data from the original model incorrectly used the peak discharge figure of 3,702 cfs.7 After this error was pointed out to Mr. Krewson during his deposition, Kmart moved to amend Mr. Krewson’s report. This Court recently granted leave for Mr. Krewson to

2

See id. ¶¶ 59-62.

3

See Kmart’s Motion in Limine to Exclude Testimony of James Monohan, Exhibit A, Report of James N. Monohan at 6.

4

See id.

5

See id. at Exhibit B, FEMA’s 2009 Flood Insurance Study at 5 (3,702 cfs for Elam Creek at US Hwy. 45, plus 1,500 cfs for Turner Creek at mouth).

6

See id. at Exhibit C, Depo. of John R. Krewson at p. 116, l. 12 - p. 117, l. 18.

7

See id. at p. 117, ll. 3-5.

2

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correct the mathematical errors in his report.8 The purported engineer expert of Defendants, James Monohan, also pointed out the discrepancy in flow rates found in Mr. Krewson’s original report.9 But Mr. Monohan’s report does not itself give the correct flow rates. Indeed, Mr. Monohan’s deposition testimony, discussed below, reveals that Mr. Monohan does not even know the correct flow rates, nor did he attempt even to model any flow rates himself. Mr. Monohan has no basis to challenge Mr. Krewson’s expert opinion on relevant flow rates related to the May 2, 2010 flood, and any such testimony offered by him on that subject should be excluded.

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.10

8

See Order Relative to Plaintiff’s Objections to Magistrate Judge’s Order Denying Request for Leave to File Amended Report [Doc. 243] (Sept. 27, 2013).

9

See Kmart’s Motion in Limine to Exclude Testimony of James Monohan, Exhibit A, Report of James N. Monohan at 5, 6, 8.

10

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

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As the United States Supreme Court has interpreted Rule 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc.,11 the Rule requires a 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.12 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.13 Third, the expert’s opinion must be relevant to the facts at issue.14 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.15 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.16 The party offering the evidence has the burden of proving that the expert’s methods

11

509 U.S. 579 (1993).

12

See id. at 588.

13

See id. at 589-91.

14

See id. at 591.

15

See id. at 597.

16

See id. at 593-94.

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are reliable.17 Finally, Daubert requires that the opinion be relevant to the case; that is that there must be “a valid . . . connection to the pertinent inquiry.”18 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.19 Testimony is reliable when it is based on scientific methods and procedures.20 An expert’s opinion is not sufficiently reliable to be admissible if the expert’s opinion is not based on sufficient facts or data.21 B.

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

Mr. Monohan’s testimony regarding flow rates should be excluded because his opinion is based on insufficient data. Federal Rule of Evidence 702 requires that there be sufficient facts or data underlying proffered expert testimony.22 “[A]ny step that renders the analysis unreliable . . . renders the expert testimony inadmissible.”23 Here, Mr. Monohan’s analysis is unreliable because it is devoid of factual support.

17

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

18

Daubert, 509 U.S. at 592.

19

See id. at 591.

20

See id.

21

See Lassiegne v. Taco Bell Corp., 202 F. Supp. 2d 512, 518 (E.D. La. 2002).

22

See FED. R. EVID. 702.

23

Pax v. Brush Engineered Materials, Inc., 555 F.3d 383 (5th Cir. 2009) (citing Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 670-71 (5th Cir. 1999)).

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One of the conclusions in Mr. Monohan’s report is that because Mr. Krewson used inconsistent flow rates for his original HEC-RAS runs, “no conclusion can be drawn regarding the effect of the Kroger building on the flood elevation at Kmart.”24 Aside from the fact that this Court has allowed Mr. Krewson to correct these inadvertent inconsistencies, Mr. Monohan admitted that he does not even know what are the correct flow rates, nor did he do any modeling himself. In fact, his report and deposition testimony attempted to characterize the 5,702 cfs figure as the incorrect, or “inflated,” figure,25 when it is in fact the correct figure. Specifically, Mr. Mendrop testified: Q:

[I]s part of your opinions in this case that Mr. Krewson, in his modeling, used an incorrect flow capacity?

A:

Are we talking about a flow rate?

Q:

Yes. Cubic feet per second?

A:

I believe my assertion is that he used inconsistent flow rates.

Q:

Okay.

A:

I don’t know whether they were necessarily correct or not, but they were inconsistent between the different runs.

Q:

And you say that the 100-year flow rate, 5202 cubic feet per second is inflated. Right?

A:

I believe I did say that.

Q:

Okay. And you say that on page 6?

A:

Okay. Yes.

Q:

But that’s not correct. Right?

24

Kmart’s Motion in Limine to Exclude Testimony of James Monohan, Exhibit A, Report of James N. Monohan at 9, ¶ 7.

25

Id. at 6.

6

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* A:

*

*

Well, it’s inflated above the 100-year flood value for the other two runs. *

*

*

Q:

5202 cubic feet per second is the correct flow rate for the 100-year storm at Elam Creek, where the Kmart-Kroger site, near the Kmart-Kroger site.

Right?

A:

No. That’s not my position at all. *

Q:

*

*

You disagree with Blake Mendrop of Kansas City Southern Railway Company? *

*

*

A:

I don’t agree or disagree. I don’t know. I personally don’t know what the correct flow rate is because I haven’t done any modeling.

Q:

So you’re criticizing Mr. Krewson for using inconsistent flow rates, but you, yourself, don’t know which flow rate is the right one? *

A:

*

*

No, I don’t know which one is the right one. I don’t know which one best matches what actually happened during the flood event of May 2nd, 2010.26

This Court does not need an expert to point out inconsistent data. Therefore, Mr. Monohan’s testimony on this issue is unnecessary in the first place. And Mr. Krewson is correcting the inconsistency anyway. Further, even with the benefit of discovering the inconsistency in Mr. Krewson’s original runs, Mr. Monohan did not even bother to find out which flow rate is correct.

His opinion on this issue lacks reliability. In fact, in his report, he took a stab and chose the incorrect

26

Kmart’s Motion in Limine to Exclude Testimony of James Monohan, Exhibit D, Depo. of James N. Monohan, p. 78, l. 10 - p. 79, l. 11.

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number, simply assuming that the higher flow rate of 5,702 cfs used in the initial Run 2 was incorrect and was the reason for the higher flood levels found by Mr. Krewson.27 In Coffey v. Dowley Manufacturing Inc.,28 the court excluded the testimony of the plaintiff’s expert because the expert’s opinions were based on insufficient facts and data. In Coffey, the plaintiff was injured while using a tool known as a Super Hub Shark that was manufactured by the defendant.29 The plaintiffs retained an expert in mechanical engineering, who, after performing a computerized analysis, determined that the tool was defective.30 The plaintiffs’ expert prepared an initial report and a final, revised report, which included a second computerized analysis.31 The defendants challenged the expert’s testimony, arguing that the report did not conform with Federal Rule of Evidence 702.32 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.33 The court determined that the second computerized analysis was based on “hypothesized ‘guesstimations’ regarding a number of important variables.”34 The court was persuaded by evidence submitted by the defendants that more than one parameter assumed by the

27

Kmart’s Motion in Limine to Exclude Testimony of James Monohan, Exhibit A, Report of James N. Monohan at 6.

28

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

29

See id. at 961.

30

See id. at 962.

31

See id.

32

See id. at 963.

33

See id. at 974.

34

Id.

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plaintiff’s expert in conducting his analysis was incorrect or speculative.35 The court held that the expert’s “analysis was not based on sufficient facts and data; it was based on hypotheses and ‘guesstimations’ that have little grounding in actual physical realities.”36 Accordingly, the court excluded the expert’s testimony.

Mr. Monohan’s testimony regarding flow rates should similarly be excluded because it is not based on sufficient and reliable facts and data. He merely pointed out an inconsistency in another expert’s underlying data, and then guessed what the proper data was, based on the output from that other expert’s report. Mr. Monohan has done no expert analysis of his own on this issue whatsoever.

Mr. Monohan’s opinion relies on insufficient data and should be excluded by this Court, pursuant to Rule 702 of the Federal Rules of Evidence.

III.

Conclusion Mr. Mendrop’s testimony regarding flow rates should be excluded because his opinion on

that issue is based on a guess and on no modeling of his own. Accordingly, Kmart asks that this Court grant its motion and exclude the testimony of Mr. Monohan regarding flow rates.

35

See id.

36

Id.

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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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