286 motioninopposition combine

Case: 1:11-cv-00103-GHD-DAS Doc #: 286 Filed: 10/25/13 1 of 14 PageID #: 4239

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION KMART CORPORATION,

PLAINTIFF

VS.

CIV. ACT. NO. 1:11CV103-GHD-DAS

THE KROGER CO., et al

DEFENDANTS

DEFENDANTS’ JOINT RESPONSE TO PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE OR LIMIT THE ANTICIPATED TRIAL TESTIMONY OF ROBERT H. ALEXANDER

COMES NOW, Defendants E&A Southeast Limited Partnership, The Kroger Co., Kansas City Southern Railway, and Fulton Improvements, LLC, by and through their attorneys, and respectfully submit their Response to Plaintiff’s Motion in Limine to Exclude or Limit the Anticipated Trial Testimony of Robert H. Alexander: Factual and Procedural Background As stated previously by this Court, From the evening of May 1, 2010 until the early morning hours of May 2, 2010, heavy rain pelted the Corinth, Mississippi area, causing nearby Elam Creek to flood. Plaintiff Kmart Corporation (“Kmart”) alleges that due to the acts and omissions of several Defendants the flood water rose and flowed forcefully in the back of the Corinth Kmart store, rushing in the rear doors and causing extensive damage to the store. The Corinth Kmart store was closed for repairs from the time of the May 2010 flood until February 2011, when the store reopened for business . . . . Kmart brings this action against Defendants The Kroger Co. (“Kroger”); E&A Southeast Limited Partnership; Fulton Improvements, LLC; Kansas City Southern Railway Company; and the City of Corinth. 1 See Memorandum Order Granting Kroger MTD, attached hereto as Exhibit 1, at 1-2.

1

Plaintiff initially sought damages arising out of a flooding event on April 27, 2011, but Plaintiff subsequently withdrew its allegations stemming from the 2011 flood.

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Although the Kmart store reopened in February, 2011, there exists a factual dispute as to whether nor not the store could have opened on an earlier date. As discussed more fully below, the contractor issued a certificate of completion for the flood damage repair on August 30, 2010; the Kroger store, which experienced the same flooding as Kmart, reopened in mid-June, 2010; Kmart’s rent was abated during the repair period and Kmart resumed paying rent in September, 2010; and there is correspondence from September 25, 2010 indicating that Kmart was undecided about whether or not the Corinth store would reopen. See Certificate of Completion and Correspondence dated September 25, 2010, attached hereto as Collective Exhibit 2.

Plaintiff retained Richard Azimov (“Azimov”), a certified public accountant, to provide a lost profits calculation for the Corinth Kmart store (“store”) as a result of the May 2010 flood.

Azimov calculated the lost profits of the store based upon a suspension period of ten months, beginning in May 2010 and ending when the store reopened in February 2011. Based upon his calculations he estimated the lost profits before taxes to be $1,621,529.00.

Defendants hired Robert H. Alexander, a certified public accountant employed by HORNE, LLP in Jackson, Mississippi. Mr. Alexander was asked to review Azimov’s expert report and other items included in the Damage Package of Kmart 4883 and provide an estimate of alleged damages. Mr. Alexander calculated Plaintiff’s lost profits related to the May 2010 flooding to be $328,986.00. His calculation of lost profits was based upon a period of restoration lasting from May 2010 until the end of September 2010.

On October 8, 2013, Plaintiff filed its Motion in Limine to Exclude or Limit the Anticipated Trial Testimony of Robert H. Alexander as to the “reasonableness of the period of restoration.” Plaintiff alleges that “[t]he reasonableness of any period of restoration is an impermissible legal conclusion that is to be made by the trier of fact… and Mr. Alexander, who

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is an accountant, is not qualified to testify regarding the reasonableness of the period of restoration because he is not a contractor or flood specialist, and has no direct training, knowledge or experience in opening or reopening a department store.” See Plaintiff’s Memorandum in Support of Motion in Limine, attached hereto as Exhibit 3, at 1. Although Azimov calculated his estimate of lost profits on a period of restoration that he chose, Plaintiff mistakenly contends that Mr. Alexander should not be entitled to do the same.

Applicable Law Under Rule 702 of the Federal Rules of Evidence, a witness may qualify as an expert by knowledge, skill, experience, training or education. When determining the admissibility of expert testimony, courts must consider whether the expert opinion is based on scientific knowledge (reliability) and whether the expert opinion will assist the trier of fact to understand or determine a fact in issue (relevance). Bingham v. Tunica Rest. Group. Inc., 2013 U.S. Dist.

LEXIS 50665 at *2 (N.D. Miss. April 8, 20130), citing Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 38 (Miss. 2003). “District courts have wide discretion in determining the admissibility of expert testimony.” Hobbs v. Legg Mason Inv. Counsel & Trust. Co., N.A., 2011 U.S. Dist.

LEXIS 7168 at *8 (N.D. Miss. Jan. 25, 2011), citing Moore v. Ashland Chem. Inc., 151 F.3d 269, 274 (5th Cir. 1998).

Rule 704 of the Federal Rules of Evidence abolished “the per se rule against testimony regarding ultimate issues of fact,” but it did “not open the door to all opinions.” Hobbs at *10, citing Owens v. Kerr-McGee Corp., 698 F.2d 236, 239-40 (5th Cir. 1983). However, “[a]lthough the qualifying of a witness as an expert does not render his every conclusion immune from challenge, the mere fact that an expert’s conclusion trenches upon a jury issue does not compel

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its exclusion.” United States v. Milton, 555 F.2d 1198 (5th Cir. 1987) (internal citation omitted).

For the reasons set forth below, Mr. Alexander’s testimony should not be excluded or limited.

Argument 1. Mr. Alexander’s testimony regarding the period of restoration is properly based on certain assumptions supported by factual evidence.

Plaintiff requests that this Court limit or exclude Mr. Alexander’s testimony to the extent he purports to “testify as to the reasonableness of the period of restoration.” See Pl. Mot., attached hereto as Exhibit 3 at 1. Ironically, Plaintiff’s motion seeks to exclude an opinion that Mr. Alexander never proffers. Nothing in Mr. Alexander’s report or deposition testimony reflects an impermissible expert opinion as to “the reasonableness of the period of restoration.”

Instead, Mr. Alexander sets forth facts to support why it was reasonable for him to assume that the period of restoration lasted until the end of September 2010.

In In re Bell Petroleum Servs., the Fifth Circuit concluded that it was not fatal to a party’s ability to show a reasonable basis for an expert’s opinion when that expert relied on certain assumptions. 3 F.3d 889, 904 (5th Cir. 1993). The court stated, “[e]xpert opinions frequently include assumptions. If those assumptions are well-founded and reasonable, and not inconsistent with the facts established by other competent evidence, they may be sufficiently reliable to support a conclusion that a reasonable basis for [the expert’s opinion] exists.” Id. (emphasis added). As such, Mr. Alexander’s testimony regarding the reasonableness of his assumptions for the period of restoration should not be excluded or limited.

In addition, “an expert may testify in response to a hypothetical question containing facts that have evidentiary support in the trial record. United States v. Garcia Abrego, 141 F.3d 142, 173 (5th Cir. 199), citing United States v. Levine, 80 F.3d 129, 135 (5th Cir. 1996), cert. denied, 136 L. Ed. 2d. 40, 117 S. Ct. 83 (1996); 2 JOHN HENRY WIGMORE, EVIDENCE §§ 674, 4

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679, 680 (Chadbourn rev. 1979). Defendants anticipate asking Mr. Alexander to assume certain facts in evidence and to give his opinions based upon these assumed facts. There is a sufficient factual basis to support such a hypothetical, and as such, Mr. Alexander’s testimony should not be excluded or limited prior to his trial testimony.

2. Mr. Alexander’s testimony does not reach a legal conclusion.

Despite Plaintiff’s allegation that Mr. Alexander’s testimony sets forth a legal conclusion, the Fifth Circuit has not labeled all references to the word “reasonable” in expert opinions to be legal conclusions. While Mr. Alexander uses “reasonable” when discussing the period of restoration, it is in the context of setting forth the factual bases of his opinions.

Mr. Azimov projects that the store suffered economic damages beginning with the flood event in May 2010 and continuing through February 2011, when the Kmart store No. 4883 (the “Store”) officially reopened. However, the contractor that performed the repairs following the flood event issued a certificate of completion on or about August 30, 2010. Additionally, Kmart’s rent was abated during the repair period and they resumed paying rent in September 2010. It would be reasonable to assume that Kmart could restock and reopen the Store by the end of September, and consequently this should be the end of the damage period. It appears that Kmart voluntarily delayed the opening of the Store until approximately March 2011…

See Alexander report, attached hereto as Exhibit 4, at 1.

“As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration.” United States v. 14.38 Acres of Land, More or Less, Situated in Leflore County, Mississippi, 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chemical Co., 826 F.3d 420, 422 (5th Cir. 1987)). It is apparent that Mr. Alexander’s usage of the word “reasonable” in his report goes to the basis and source of his opinion and is an issue to be determined by the jury.

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In fact, the testimony that Plaintiff seeks to exclude is akin to the testimony allowed by the district court in United States v. Izydore, 167 F. 3d 213 (5th Cir. 1999). In Izydore, appellant’s argued that the bankruptcy trustee’s statement that the money “was not legally taken in my opinion” should have been excluded. However, the trial court disagreed. In upholding the trial court’s ruling, the Fifth Circuit was “not at all convinced that the phrase ‘it was not legally taken’ is a legal conclusion regarding the very specific issue of whether the appellants are guilty of conspiracy, wire fraud and bankruptcy.” Id. at 218. In fact, the court noted that the statement “merely explains the circumstances surrounding her attempt to recover the missing funds, and does not reflect on the criminal guilt or innocence of the appellants.”

This reasoning is directly in line with Alexander’s proffering of the circumstances surrounding the timeframe for which he estimated the period of restoration. Mr. Alexander is not testifying as to the cause or contributing factors of the flooding of the Kmart store. See Alexander Deposition, attached hereto as Exhibit 5, at 54. His testimony does not reach a legal conclusion and for these reasons should not be excluded or limited.

3. Mr. Alexander’s testimony regarding the period of restoration creates an issue

of material fact.

The “period of restoration,” 2 as defined frequently in insurance policies, ends on the earlier of (1) the date when the property at the described premises should be repaired, rebuilt or replaced with reasonable speed and similar quality; or (2) the date when business is resumed at a new permanent location. See Meadowcrest Living Ctr., LLC v. Hanover Ins. Co., 2008 U.S. Dist.

LEXIS 57977, 2008 WL 2959707, at *4 (E.D. La. July 30, 2008).

2

Mr. Alexander explained during his deposition. “The period of restoration does not cover a period where they could have opened and gone back into business but did not.” See Alexander Deposition, attached hereto as Exhibit 5, at 74.

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In Meadowcrest, the court concluded that determining the period of restoration created an issue of material fact and denied the motion for summary judgment. It is anticipated that both Plaintiff and Defendants will present factual evidence regarding the appropriate period of restoration. Plaintiff’s own expert, Azimov, based his calculation of damages on the assumption that the period of restoration ended on the date the Kmart store reopened. Mr. Alexander opined that the period of restoration ended at the end of September 2010. At his deposition, Mr. Alexander clarified that he determined the period of restoration utilized in his report.

Q.

(By Mr. Luminais) Who provided you with the period of restoration of five months from May of 2010 to the end of September 2010?

A.

That was my determination and – that was my determination.

Q.

So the attorneys didn’t provide you with that period of restoration?

A.

No, they did not.

Q.

When did you make that determination?

A. In the process of preparing the report.

See Alexander Deposition, attached hereto as Exhibit 5, at 57.

An expert is not bound to accept another party’s version of the facts and a failure to do so does not render the expert’s opinions inadmissible or unreliable. As the Federal Circuit explained in Micro Chemical, Inc. v. Lextron, Inc., 317 F.3d 1387, 1392 (Fed. Cir. 2003), When, as here, the parties’ experts rely on conflicting sets of facts, it is not the role of the trial court to evaluate the correctness of facts underlying one expert’s testimony. We find the Advisory Committee note to Rule 702 instructive in this regard: When facts are in dispute, experts sometimes reach different conclusions based on competing versions of the facts. The emphasis in the amendment on ‘sufficient facts or data’ is not intended to authorize a trial court to exclude an expert’s testimony on the ground that the court believes one version of the facts and not the other.

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See also Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249-50 (5th Cir. 2002) (holding that the jury was entitled to hear expert testimony and decide whether to accept or reject it after considering whether predicate facts on which expert relied were accurate). “[T]he Court’s role as gatekeeper is not meant to supplant the adversary system since ‘vigorous 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.’” Accident Ins. Co v. Classic Bldg. Design LLC, 2012 U.S. Dist. LEXIS 127250, 2012 WL 3913090 (S.D. Miss. September 7, 2012) * 36 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 579, 596 (1993)). Here, Plaintiff’s attempt to limit Mr. Alexander’s competing account of the period of restoration is misguided.

4. Plaintiff’s motion is premature.

As discussed by the Fifth Circuit in Owen v. Kerr-McGee, the distinction between “legal conclusions” and “ultimate issues of fact” can sometimes amount “to a simple turn of phrase.”

Hobbs v. Legg Mason Inv. Counsel & Trust Co., 2011 U.S. Dist. LEXIS 7168, 2011 WL 304421 at *11 (N.D. Miss. Jan. 25, 2011), citing Owen v. Kerr-McGee, 698 F. 2d 236, 240 (5th Cir. 1983). As such, Plaintiff’s motion is untimely because these issues are better addressed at trial.

“The task of separating impermissible questions which call for overbroad or legal responses from permissible questions is not a facile one.” Owen, 698 F. 2d at 240. In Owen, the court cited the Advisory Committee Notes to Rule 704 for how to distinguish impermissible and permissible questions which depended on the type of response that would be elicited. Any apprehension on behalf of Plaintiff regarding Mr. Alexander’s anticipated testimony is more aptly addressed by this Court during trial.

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In Hobbs v. Legg Mason Inv. Counsel & Trust Co., Judge Aycock declined to exclude expert testimony before trial and said objections would be considered on a case-by-case basis.

2011 U.S. Dist. LEXIS 7168, 2011 WL 304421, at *5. In rejecting the motion, the court examined the Fifth Circuit’s opinion in Owen, the very case relied upon by Plaintiff. In Owen, the trial court sustained counsel’s first objection to a question asked of the expert because the question sought a legal conclusion, however, the court overruled counsel’s objection to the second question which was very similar to the first question. Id. at *14, citing Owen, 698 F.2d at 240. Recognizing the distinction hangs on the type of questions asked by counsel, the court noted “[t]herefore, it appears that where the ‘ultimate issues of fact’ in a case track closely with ‘legal conclusions,’ and expert’s opinion may often be rendered admissible or inadmissible by a mere change in phrasing.” Id. In addition, because there are several factual disputes regarding why the Kmart store did not reopen until February 2011, and because this time-frame dispute lies at the heart of Mr. Alexander’s testimony, this Court will be in a much better position to evaluate the bases for his testimony after hearing the evidence presented at trial. For these reasons, the exclusion or limitation of Mr. Alexander’s testimony is premature at this point.

5. Mr. Alexander set forth sufficient testimony that he is qualified and his opinions are based on more than speculation or subjective belief.

Plaintiff alleges that “Mr. Alexander is not qualified to give an opinion as to the reasonableness of a period of restoration nor is his methodology reliable.” See Plaintiff’s Memorandum, attached hereto as Exhibit 3, at 9. However, “a witness qualified as an expert is not strictly confined to his area of practice, but may testify concerning related applications….”

Meadowcrest Living Ctr. LLC. v. Hanover Ins. Co., 2008 U.S. Dist LEXIS 57977 at *18 (E.D. La. July 30, 2008). “[T]he heart of Daubert is relevance and reliability. As long as some 9

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reasonable indication of qualifications is adduced, the court may admit the evidence without abdicating its gatekeeping function. After that qualifications become an issue for the trier of fact, rather than for the court in its gatekeeping capacity.” Hobbs, at *8, citing Rushing v.

Kansas City Southern, 185 F.3d 496, 507 (5th Cir. 1999) (citing Daubert, 509 U.S. at 596, 113 S. Ct. 2786)).

Mr. Alexander’s deposition testimony demonstrates that he has sufficient experience and knowledge to testify as to his opinions in this case.

Q.

Do you have any experience in construction?

A.

Yes.

Q.

What experience do you have in construction?

A.

I have experience professionally. We do a good bit of construction work in our firm. I’ve testified in construction cases before. . . . . See Alexander Deposition, attached here to as Exhibit 5, at 69.

….

Q.

(by Mr. Luminais) Aside from whatever experience that you’ve had in building your home, you don’t know, sort of, generally what it takes from soup to nuts to repair or restore a commercial building that was damaged by flood?

A.

I have general knowledge of that, yes. I’ve had cases where that was an issue and have gotten background information on that. Id. at 70.

Contrary to Plaintiff’s assertion, Mr. Alexander’s period of restoration was based on more than speculation or subjective belief. He sets forth several factors that he relied upon when making this decision, which include: the certificate of completion issued on or about August 30, 2010 indicating that the repairs to the building were complete; the abatement of Kmart’s rent through August 2010 and Kmart’s resumption of rent payment September 2010. See Alexander Report, attached hereto as Exhibit 4, at 1. In addition, Mr. Alexander testified that he considered additional grounds for Kmart delaying reopening the store, including the financial difficulties of

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Kmart and its bankruptcy, information contained in Kmart’s 10-Ks, its closing of numerous stores, as well as correspondence from Kmart to an employee which indicated that Plaintiff was undecided about reopening the Corinth store. See Alexander Deposition, attached hereto as Exhibit 5 at 61-62.

Q.

You’re aware that the Kmart store in Corinth ultimately opened sometime in February or March of 2011?

A.

Yes.

Q.

You didn’t consider that though in your assumption of the five-month restoration?

A.

Yes, I considered that. That’s the date it reopened.

Q.

But you disagreed with that?

A.

I think it reopened that day. I disagree with the fact that it took that long after construction was complete and they had already started the move in, you know, Kmart had access to the building prior to 8/31, and the letter that seems to indicate they’re terminating employees after the building has been put back in shape. So, yes.

And then I considered the fact that it reopened late. And I believe it reopened late for a variety of reasons, which are not directly related to the people in this lawsuit that are liable or may be liable. Id. at 71-72.

Mr. Alexander reached his conclusion regarding the period of restoration by examining the facts of this case, as did Plaintiff’s own expert. He testified to having professional experience in prior construction cases and in cases regarding periods of restoration. As such, he is qualified to testify as to his opinions and has presented sufficient facts to support his testimony.

CONCLUSION Because Mr. Alexander’s testimony is properly based on assumptions supported by factual evidence, his testimony does not reach a legal conclusion but rather creates an issue of material fact, and his opinions are relevant and reliable, Plaintiff’s Motion in Limine to Exclude 11

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or Limit the Anticipated Trial Testimony of Mr. Alexander should be denied. Additionally, Plaintiff’s Motion is premature because any apprehension on behalf of Plaintiff regarding Mr. Alexander’s anticipated testimony is more aptly addressed by this Court during trial.

Date: October 25, 2013

Respectfully submitted, BY: /s/ Mary Clift Abdalla MARY CLIFT ABDALLA (Miss. Bar No. 102734) WALTER GARNER WATKINS, III (Miss. Bar No. 100314) WALTER GARNER WATKINS, JR. (Miss. Bar No. 6988) Attorneys for E&A Southeast Limited Partnership /s/ Jamie F. Jacks JAMIE F. JACKS (Miss. Bar No. 101881) GERALD H. JACKS (Miss. Bar No. 3232) Attorneys for Fulton Improvements, LLC /s/ David A. Norris DAVID A. NORRIS (Miss. Bar No. 100616) Attorney for the Kroger Co. /s/ Linda F. Cooper CHARLES E. ROSS (Miss. Bar No. 5683) W. McDONALD NICHOLS (Miss. Bar No. 3847) LINDA F. COOPER (Miss. Bar No. 102901) Attorneys for Defendant KCSR

CERTIFICATE OF SERVICE

I, the undersigned Mary Clift Abdalla, one of the attorneys for E & A, hereby certify that I have this day served electronically using the ECF system, a true and correct copy of the foregoing document to the following:

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Ryan O. Lumainis James M. Garner John T. Balhoff, II SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC 909 Poydras Street, 28th Floor New Orleans, LA 70112 Email: rluminais@shergarner.com Edley H. Jones III David A. Norris Stephen F. Schelver McGLINCHEY STAFFORD, PLLC City Center South, Suite 1100 200 South Lamar Street (Zip - 39201) Post Office Drawer 22949 Jackson, Mississippi 39225-2949 Telephone: (769) 524-2300 Facsimile: (769) 524-2333 Email: ejones@mcglinchey.com; dnorris@mcglinchey.com sschelver@mcglinchey.com Gerald Haggart Jacks JACKS, ADAMS & NORQUIST, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: gjacks@jacksadamsnorquist.com Jamie Ferguson Jacks JACKS, ADAMS & NORQUIST, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: jjacks@jacksadamsnorquist.com Charles E. Ross WISE, CARTER, CHILD & CARAWAY P. O. Box 651 Jackson, MS 39205-0651 Email: cer@wisecarter.com Terry Dwayne Little DANIEL, COKER, HORTON & BELL - Oxford P.O. Box 1396 Oxford, MS 38655 Email: tlittle@danielcoker.com

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Wilton V. Byars , III DANIEL, COKER, HORTON & BELL P.O. Box 1396 Oxford, MS 38655 Email: wbyars@danielcoker.com Linda F. Cooper WISE CARTER CHILD & CARAWAY, P.A. P.O. Box 651 Jackson, MS 39205-0651

THIS, the 25th day of October 2013. /s/ Mary Clift Abdalla Mary Clift Abdalla

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