278 memoinsupportresponsetokcsrmotiontoexclude 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 KMART’S MEMORANDUM IN SUPPORT OF RESPONSE TO KANSAS CITY SOUTHERN RAILWAY COMPANY’S MOTION TO EXCLUDE TESTIMONY OF JOHN R. KREWSON May It Please the Court: Plaintiff, Kmart Corporation, submits this Memorandum in Support of its Response to Kansas City Southern Railway Company’s Motion to Exclude Testimony of John R. Krewson. This Court should deny KCSR’s motion because, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmacies., Inc.1, Mr. Krewson’s expert testimony with respect to KCSR is relevant, reliable and helpful to the trier of fact and is therefore admissible. 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.”2 Specifically, Kmart alleged that KCSR permitted excessive debris to collect at its railroad bridge at mile 328.10 over Elam Creek and that the debris blockage contributed to flooding damage at Kmart’s store. Kmart

509 U.S. 579 (1993).

See Kmart’s Complaint, Doc. 1, ¶ 36.

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retained Mr. Krewson, an engineering expert, to investigate the causes of the flooding at Kmart’s store following the May 2, 2010 flood event. Mr. Krewson visited the site of the KCSR railroad underpass and noted that there was a “considerable debris field” at the underpass and that the “debris blocked approximately the lower quarter of the bridge opening.”3 Mr. Krewson took photographs of the debris field, which are attached to his Initial Report. Mr. Krewson also interviewed the Floodplain Administrator for the City of Corinth, Mr. David Huwe. Mr. Huwe indicated to Mr. Krewson that the “railroad had a poor record of maintenance and that the debris at the railroad bridge had been an ongoing problem for some time prior to the flood event.”4 Based on his observations of the site, his discussion with Mr. Huwe, and general hydrological engineering principles, Mr. Krewson opined that “[t]he lack of maintenance of the creek channel, coupled with obstructions and debris in the channel increased the depth of flooding and caused increased damage to the Kmart during the flood event of May 2, 2010.”5 In connection with the assignment, Mr. Krewson also prepared HEC-RAS (Hydrological Engineering Centers River Analysis System) models to determine the impact of the neighboring Kroger store on the flooding at the Kmart store, the results of which were discussed in his Initial Report. Mr. Krewson did not include the KCSR bridge or the debris field in the underpass in his HEC-RAS models and did not otherwise quantify the specific impact of the debris field at the underpass on the flooding at Kmart’s store. His conclusion that there was an impact of the railroad

See Initial Flooding Evaluation of John R. Krewson, dated September 20, 2012, attached as Exhibit A to Kmart’s Response to KCSR’s Motion to Exclude Testimony of John R. Krewson, at 5. 4

Id. at 6.

Id. at 7.

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underpass on the flooding is based on his expertise and understanding that obstructions downstream of the Kmart store impeded the flow of water during the storm, causing a backup of floodwater, which increased the depth of flooding at Kmart’s store. On May 22, 2013, the defendants deposed Mr. Krewson. Mr. Krewson was questioned regarding the HEC-RAS models and it was discovered for the first time by Mr. Krewson and Kmart that his models contained inconsistent flow rates and his conclusions in his Initial Report regarding the impact of the Kroger store on the flooding at Kmart were flawed. Mr. Krewson was also shown a photograph dated May 2, 2010 at his deposition by counsel for KCSR, which depicts the KCSR railroad bridge covered by floodwater and shows a lack a floating debris in that area. 6 After being made aware of the mistake in the HEC-RAS models at his deposition, Mr. Krewson re-ran his models to address the error and prepared an Amended Flooding Evaluation (“First Amended Report”).7 Kmart filed a motion for leave to file the First Amended Report on July 23, 2013. In addition to addressing the errors in his HEC-RAS models, Mr. Krewson also noted that the photograph of the railroad that he was shown at the deposition supported his contention that the debris field in the railroad underpass existed at the time of the May 2, 2010 flood.8 Mr. Krewson observed that there was no debris field floating upstream of the KCSR bridge in the photograph.9 He stated that for the debris to have resulted from the flood, there would have to have been a

See Exhibit 9 to Mr. Krewson’s deposition, photograph, Bates labeled Corinth00106, attached as Exhibit B to to Kmart’s Response to KCSR’s Motion to Exclude Testimony of John R. Krewson. 7

See John R. Krewson’s Amended Flooding Evaluation, dated July 23, 2013, attached as Exhibit C to Kmart’s Response to KCSR’s Motion to Exclude Testimony of John R. Krewson. 8

Id. at 8.

Id.

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considerable amount of floating debris trapped behind the bridge when the water level dropped.10 The lack of floating debris in the picture suggests that debris found behind the bridge after the flood was present prior to the flooding and that because the debris did not rise and float off during the flood, it was likely there long enough for the debris to become embedded behind the bridge.11 The defendants opposed Kmart’s motion for leave to file Mr. Krewson’s First Amended Report. After hearing on the matter, Magistrate Judge David Sanders issued a ruling denying Kmart leave to amend Mr. Krewson’s report. Thereafter, Kmart filed objections to the magistrate judge’s ruling. On September 27, 2013, this Court issued a ruling stating that it would consider an amendment of mathematical errors in Mr. Krewson’s Initial Report. On October 11, 2013, pursuant to this Court’s Order, Kmart filed a motion for leave to file a second Amended Report to amend the mathematical errors in Mr. Krewson’s Initial Report (“Second Amended Report”).12 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 10

Id.

In its original motion, KCSR argued that Mr. Krewson’s testimony was inadmissible to the extent he created HEC-RAS models because those models were based on erroneous data. However, KCSR filed a supplemental motion in which it concedes that to the extent KCSR argued in its original motion that Mr. Krewson’s testimony should be excluded due to the mathematical errors that were discovered at his deposition, this Court should not consider those arguments as they are not ripe for consideration in light of this Court’s Order permitting Kmart to submit an amendment of Mr. Krewson’s report to address the errors in the HEC-RAS model data.

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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.13 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.14 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.15 Third, the expert’s opinion must be relevant to the facts at issue.16 These preliminary determinations are often referred to as the “qualifications,” “reliability,” and “relevance” components of Rule 702. Trial courts should “ensure expert witnesses have employed reliable principles and methods in reaching their conclusions,” but the courts should not judge the expert’s conclusions.17 Indeed, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”18 “As a general rule, questions relating to the bases and sources of an expert’s opinion

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

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

See id. at 589-91.

See id. at 591.

Riley v. Ford Motor Co., 2011 WL 2728266, *4 (S.D. Miss. 2011), citing Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). 18

U.S. v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996).

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affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration.”19 B.

Mr. Krewson’s expert testimony regarding KCSR is admissible because it is relevant, reliable, and helpful to the trier of fact. 1.

Mr. Krewson’s testimony regarding the debris blockage in the KCSR railroad underpass at the time of the flood event is reliable.

Contrary to KCSR’s assertions, Mr. Krewson’s testimony regarding debris blockage beneath the KCSR bridge prior to the May 2, 2010 flood event has a reliable basis and is not “sheer speculation” on the part of Mr. Krewson.

KCSR argues that Mr. Krewson’s opinion is

impermissible “time-extrapolated” testimony as he assumes that because debris existed after the flood, it must have existed at the time of the flood. But Mr. Krewson did not merely assume the debris existed on May 2, 2010 because he observed a debris field days after the flood event. Rather, Mr. Krewson’s opinion that debris existed at the time of the flood is based on his observation that there was debris embedded in the underpass, which suggested a permanence of the debris field. His expert opinion is also based on his conversation with Mr. Huwe, the City’s Floodplain Administration, regarding KCSR’s failure to maintain the underpass prior to the flood event. Moreover, Mr. Krewson’s opinion regarding the existing debris field was confirmed by the photograph that was shown to Mr. Krewson by KCSR’s counsel at his deposition, which suggests that because there is no floating debris, the debris field was present at the time of the flood event. Mr. Krewson’s opinions regarding the debris field are reliable and would assist the trier of fact in deciding whether the debris field was indeed present at the time of the flood event. In Mr. Krewson’s expert opinion, his observations in the days following the flood event suggested that the 19

Id. at 1077.

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debris was present in the underpass at the time of the flood. In its motion, KCSR relies on deposition testimony by Mr. Krewson in which he states that the debris field could have been from the flood itself as opposed to the debris field being an indication that the debris existed prior to the flood event. However, Mr. Krewson qualified his statement and testified further that there was a level of permanence to the debris field that supported his opinion that the debris was present on May 2, 2010. Specifically, Mr. Krewson testified that “[t]he debris under the bridge was intermingled with stones and gravel, and it appeared to have some permanence. There was more loose timber on top, and then there was kind of a heavier layer underneath.”20 Thus, Mr. Krewson’s opinion that the debris was present prior to the flood event was not merely based on the fact that there was debris present days after the flood event. Mr. Krewson’s experience led him to conclude that the level of permanence of the debris field suggested the debris field existed on May 2, 2010. Mr. Krewson’s opinion regarding the debris field is both relevant and reliable, and therefore helpful to the trier of fact. Mr. Krewson’s reliance on his conversation with Mr. Huwe only further supports his opinion that there was a debris field in the underpass at the time of the May 2, 2010 flood event. According to Mr. Krewson, when he mentioned the debris field to Mr. Huwe, Mr. Huwe indicated that the City had an ongoing problem with KCSR keeping the underpass free from obstruction.21 Mr. Huwe testified that Mr. Krewson’s recollection of their conversation regarding KCSR was a fair and

See Deposition of John R. Krewson, attached as Exhibit D to Kmart’s Response to KCSR’s Motion to Exclude Testimony of John R. Krewson, at p. 159, l. 2-5. 21

See id. at p. 28, ll. 17-24.

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accurate assessment.22 Moreover, Mr. Huwe agreed that the problem with debris in the railroad underpass existed prior to the May 2, 2010 flood: Q:

But you mentioned that Mr. Krewson’s statement about that conversation with the railroad company, you said it was a fair and accurate assessment, and there was a mentioning of the ongoing problems. So that ongoing problem would have occurred before May of 2010; right?

Possible.

Well, you wouldn’t have been able to predict the future at that time; right?

Yeah. But I don’t know what date — I suppose there’s a date when he stopped and saw me.

You mentioned that was on or around May 6 or 7?

Of?

Of 2010.

Just a couple of days after the —

Yes, sir.

Okay. It would probably have been before then.

It would have been before the May 2010 flooding event?

Right.23

Mr. Huwe’s statements coupled with the permanent condition of the debris field following the flood event led Mr. Krewson to conclude that the debris field existed prior to the flood event.

See Deposition of David Huwe, attached as Exhibit E to Kmart’s Response to KCSR’s Motion to Exclude Testimony of John R. Krewson, at p. 88, l. 24 - p. 89, l. 14. 23

See id. at p. 96, l. 8 - p. 97, l. 3.

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KCSR relies on Braswell v. Illinois Central Railroad Co.24, to argue that there is no reliable basis for Mr. Krewson’s opinion regarding that the debris field was present at the time of the flood, but the facts in that case are distinguishable from the facts in this matter. In Braswell, the plaintiff alleged that a railroad was negligent in maintaining a bridge over a waterway, resulting in debris accumulation under the bridge, which restricted flow of flood waters and caused damage to plaintiff’s property.25 The plaintiff’s expert, based on his personal observation of the river after the flood, concluded the railroad’s negligence resulted in the flood damages to the plaintiff’s property.26 The district court granted the defendant’s Daubert motion and, after trial, issued a directed verdict for the defendant.27 The Fifth Circuit Court of Appeals affirmed the district court’s dismissal of the plaintiff’s case against the railroad, finding that no eyewitnesses could explain what occurred at the bridge at the time of flooding.28 The Fifth Circuit did not, however, address whether the plaintiff’s expert was properly excluded because the plaintiff did not appeal that issue.29 The Fifth Circuit noted that the photographs of the flooding two days after the event did not assist the jury in determining whether there was debris at the time of the flooding and whether it obstructed the river’s flow at the time of the flood.30

250 F.3d 738 (5th Cir. 2001).

Braswell, 250 F.3d 738, *1.

Id.

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Braswell is distinguishable because here, the issue is the reliability and admissibility of Mr. Krewson’s expert testimony. In Braswell, the Fifth Circuit did not address whether the plaintiff’s expert’s testimony was admissible because the plaintiff did not appeal the trial court’s exclusion of the expert testimony.31 The Fifth Circuit reviewed the trial court’s grant of dismissal and determined there was no expert testimony or other facts to assist the jury to determine whether there was debris at the time of the flooding in that case.32 Here, however, there is a photograph that was taken on the date of the flood event that supports Mr. Krewson’s conclusion that the debris field was present in the KCSR underpass at the time of the flood.33 Mr. Krewson had already formed this opinion prior to being shown the photograph at his deposition by KCSR’s own counsel. When Mr. Krewson went to prepare his Amended Report to address the errors in his HEC-RAS modeling regarding the impact of the Kroger store on the flooding at Kmart, he reflected upon the photograph and determined that it supported his opinion that the debris field existed on May 2, 2010. Although KCSR would have this Court ignore the very photograph that it introduced at Mr. Krewson’s deposition, the photograph is relevant evidence that is informative regarding the condition of the railroad underpass at the time of the flood. The photograph shows that there was no debris field floating upstream of the KCSR bridge in the photograph. For the debris to have resulted from the flood, there would have to have been a considerable amount of floating debris trapped behind the bridge when the water level dropped. The lack of floating debris in the picture suggests that debris found behind the bridge after the flood was present prior to the flooding and that because the debris did not rise and float off

Id.

See Ex. B, photograph.

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during the flood, it was likely there long enough for the debris to become embedded behind the bridge. The photograph, therefore, confirms Mr. Krewson’s initial opinion that the debris field was present at the time of the flood event. 2.

Mr. Krewson’s opinion that the debris field at the KCSR railroad underpass contributed to the flooding at Kmart’s store is admissible because it is the product of reliable hydrological principles.

Mr. Krewson’s opinion that the obstructions in Elam Creek, including the debris field at the KCSR railroad underpass, contributed to the flooding is based on his expertise and basic hydrological principles. The fact that Mr. Krewson did not conduct modeling to quantify the impact of the debris field in the railroad underpass on the flooding at Kmart’s store does not render his opinion unreliable. Mr. Krewson opined that when there are obstructions, such as a debris field, in a creek, such as Elam Creek, those obstructions will impede the flow of water and contribute to the depth of flooding in an area. The KCSR railroad underpass is located in Elam Creek downstream of Kmart’s store. Any obstruction in the creek at the time of the flood would have impeded the flow of water during the storm. That impediment caused the floodwaters to backup, which contributed to the depth of flooding at Kmart’s store. Mr. Krewson’s opinion that “[t]he lack of maintenance of the creek channel, coupled with obstructions and debris in the channel increased the depth of flooding and caused increased damage to the Kmart during the flood event of May 2, 2010”34 is based on sound, general principles of hydrology. That a debris field will contribute to the depth of flooding in an area is evidenced by the fact that the HEC-RAS program has a model for determining the impact of a debris field. KCSR’s expert, Kelly Blake Mendrop, acknowledged in his affidavit attached to 34

See Ex. A, Initial Report of Krewson at 7.

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KCSR’s motion that the HEC-RAS model has a routine for modeling debris called the “floating pier debris” that is used to model the effect of debris blockage at a bridge for its impact on an upstream structure.35 Indeed, even Mr. Huwe, the City’s Floodplain Administrator, recognized this basic concept: Q:

And we were talking about the debris field and Elam Creek near the Kansas City Southern Railroad track. That’s not something that the City wants to be in the creek; right? *

They would always like their creeks to be clear of all debris.

And why is that?

It’s unsightly, for one thing. But, you know, you would think that any debris that does get caught up will tend to impede the water flow.36

It is not disputed that Mr. Krewson did not prepare a model to quantify the specific impact of the debris field under the KCSR bridge, but that does not mean that there was no impact. Mr. Krewson explained at his deposition that because the bridge is a complex structure, it could not be modeled using conventional HEC-RAS modeling without manipulating the model. Mr. Krewson testified: The problem with the railroad bridge is it didn’t match the model — the computer model itself did not fit that type of configuration. And I would have had to trick the model or come up with some sort of composite section or otherwise come up with something and the result would be unreliable in this condition, in a legal condition.

See Ex. B to KCSR’s Motion to Exclude Testimony of John R. Krewson, Affidavit of Mendrop

at ¶ 9. 36

See Ex. E, Depo. of Huwe at p. 102, l. 15 - p. 103, l. 1 (emphasis added).

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I could not say, as we talked about when you filled, you said what if it was an inch, or what if it was 4 inches, or what if it was an inch. I didn’t think that anything I did with the railroad bridges would give me a number that would work that I could stand on and say that was good.37 Mr. Krewson chose not to model the railroad to quantify the exact impact of the debris field on the flooding at Kmart because he determined that to do so would have required him to stretch the model to a point that might not draw reliable conclusions. Nonetheless, Mr. Krewson’s opinion that the debris field would have impacted the flooding at the Kmart store by causing a backup of floodwaters upstream is admissible because, as discussed, it is based on general and reliable hydrological principles. Further, while KCSR maintains that Mr. Krewson’s opinion is unreliable because he did not model the bridge and debris field, Mr. Krewson is of the contrary opinion that his model would become unreliable if he were forced to model the bridge with its stuck debris field. This is the classic example of two competing theories. Kmart submits that the proper way to deal with them is to present them to the trier of fact and see which one is accepted. This Court should not strike Mr. Krewson’s opinion simply because it conflicts the opinion of another. 3.

Mr. Krewson’s testimony regarding KCSR should not be entirely excluded because Mr. Krewson should be permitted to rebut the testimony of KCSR’s expert, Kelly Blake Mendrop.

KCSR’s request to exclude entirely the testimony of Mr. Krewson with regard to KCSR is further improper because Mr. Krewson should be permitted to rebut the testimony of KCSR’s expert, Kelly Blake Mendrop. At the request of KCSR, Mr. Mendrop prepared HEC-RAS models to determine the impact of a debris field on the flooding at Kmart’s store. Mr. Mendrop converted thirty-plus-year-old HEC-2 data used by the Federal Emergency Management Agency to prepare

See Ex. D, Depo. of Krewson at p. 285, ll. 2-14.

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HEC-RAS models to purportedly evaluate “normal existing conditions” and analyze the impact of a 25% blockage at the KCSR underpass on the Kmart store during a 100-year storm event and a 500year storm event.38 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.39 “Model B” was developed to represent a condition of 25% blockage at the underpass of the KCSR bridge in Elam Creek.40 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.41 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. As more fully discussed in Kmart’s Motion to Exclude Testimony of Kelly Blake Mendrop, 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 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 opinions based on these models that rely on insufficient and irrelevant data should therefore be excluded. However, if Mr. Mendrop’s testimony stands, then certainly Mr. Krewson

See Report of Mendrop Engineering Resources, attached as Exhibit F to Kmart’s Response to KCSR’s Motion to Exclude Testimony of John R. Krewson at 8-9. 39

See id.

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should be permitted to rebut Mr. Mendrop’s faulty opinion that a 25% debris blockage would have no impact on flooding at Kmart’s store. Mr. Krewson, therefore, should not be precluded from presenting testimony regarding the impact of debris in the underpass of the KCSR bridge on the flooding damage at Kmart and KCSR’s motion to exclude Mr. Krewson’s testimony in its entirety should be denied. III.

Conclusion Mr. Krewson’s testimony regarding the impact of the debris field at the KCSR railroad

underpass is relevant, reliable, and helpful to the trier of fact. Mr. Krewson has explained why a conclusion can be drawn that debris existed at the bridge before the flood, which is supported in part by photographic evidence submitted by KCSR. Further, the ridge was not modeled by Mr. Krewson because in his expert opinion, such modeling would have de-stabilized his model. Mr. Krewson’s opinion should be able to be presented to the trier of fact in this case, which trier will determine the strength of each expert’s opinion. Mr. Krewson’s testimony is admissible under Federal Rule of Evidence 702 and Daubert. Accordingly, this Court should deny KCSR’s motion to exclude Mr. Krewson’s testimony. This the 18th day of October 18, 2013.

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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 18th day of October, 2013. /s/ Ryan O. Luminais _________________________________________ RYAN O. LUMINAIS