302 memoinsupportresponsetomotiontoexcludetestimonyjamesmonohan kroger e&a fulton by Milton Sandy

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI KMART CORPORATION VS.

PLAINTIFF CIVIL ACTION NO. 1:11-CV-103-GHD-DAS

THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP, FULTON IMPROVEMENTS, LLC, KANSAS CITY SOUTHERN RAILWAY COMPANY, CITY OF CORINTH, THE UNITED STATES OF AMERICA, JOHN DOE, and ABC CORPORATION

DEFENDANTS

JOINT MEMORANDUM OF AUTHORITIES IN SUPPORT OF RESPONSE TO MOTION IN LIMINE TO EXCLUDE TESTIMONY OF JAMES MONOHAN COME NOW, The Kroger Co. (“Kroger”), E&A Southeast Limited Partnership (“E&A”), and Fulton Improvements, LLC (“Fulton”)(collectively, the “Defendants”), by and through their respective counsel of record, and file this their Joint Memorandum of Authorities in Support of Response to Motion in Limine to Exclude Testimony of James Monohan, and in support thereof would state unto the Court the following, to-wit: I.

INTRODUCTION. Kmart Corporation (“Kmart”) argues in its Motion in Limine to Exclude Testimony of

James Monohan (“Kmart’s Motion”) that Monohan’s opinions regarding “flow rates” should be excluded under FED.R.EVID. 702. Kmart asserts that Monohan’s analysis is unreliable because it is devoid of factual support. However, as demonstrated herein, Monohan’s opinions regarding flow rates are amply supported by the facts before the Court and his training, education, and experience.

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II.

RELEVANT PROCEDURAL HISTORY AND FACTS. A.

Relevant Procedural History.

On May 2, 2011, Kmart filed its Complaint against Kroger, E&A, Fulton, Kansas City Southern Railway Company (“KCSR”), the City of Corinth (“Corinth”), and the United States of America (“United States”) based on claims arising from a flood which occurred on May 2, 2010. [Doc. No. 1 at 1, 5] In its Complaint, Kmart alleges its store in Corinth “incurred flood damages as a result of Kroger’s location within a floodway, which was allowed pursuant to a Letter of Map Revision.”1 [Doc. 1 at 1-2] John R. Krewson submitted an expert report dated September 20, 2012 on behalf of the Kmart in order to “evaluate the causes and the extent of the flooding that occurred at the [Kmart store in Corinth, Mississippi] on May 2, 2010”. [Exhibit C at 2] This expert report states that, “[t]o determine the impact of the Kroger encroachment and general conditions of the flood hazard at the time of the May 2, 2010 flood,” Krewson prepared a “HEC-RAS evaluation for the site using as-built survey data and flows for the area listed in FEMA’s 2009 Flood Insurance Study.”2 [Exhibit C at 6] Krewson concluded in his report that “[t]he presence of the Kroger as well as other buildings in the floodway increased the depth of flooding during the flood event of May 2, 2010, causing damage to Kmart.” [Exhibit C at 7] In his deposition, however, Krewson admitted that there was a mistake in his HEC-RAS analysis as it pertains to the claims that the Kroger store caused flooding at the Kmart store. [See Exhibit B at 117, 207-12]

The building which houses the Kroger store was removed from the floodway by the Federal Emergency Management Agency (“FEMA”) through a “Letter of Map Revision Floodway Determination Document (Removal)” (the “LOMR”) issued on November 18, 2005, because of FEMA’s determination that the structure was inadvertently included in the floodway. [Exhibit A at 1] The removal of the Kroger store from the floodway was re-validated by FEMA for the new flood maps which became effective in September 2010. [Exhibit B, exhibit 2 thereto] 2 HEC-RAS is a computer program which can be used to predict the behavior of water as it drains over land. [See Exhibit B at 186-93]

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On June 28, 2013, E&A, Fulton, and Kroger submitted to Plaintiff their respective expert designations. [Doc. Nos. 162, 163, and 164] E&A, Fulton, and Kroger each identified Monohan as an expert witness. Plaintiff took the deposition of Monohan on September 6, 2013. [Exhibit G at 1] On July 25, 2013, Kmart filed its Motion for Leave to File Amended Report of John R. Krewson, Motion to Continue Discovery Deadline, or, in the Alternative, Motion to Continue Trial Date. [Doc. No. 176 at 1] This Motion attached a new report from Krewson dated July 23, 2013. [Doc. No. 176-5] In support of said Motion, Kmart stated that, during Krewson’s deposition, it was discovered that the models he relied upon contained a mistake that affected the conclusions in his initial report. [Doc. No. 176 at 1] United States Magistrate Judge David A. Sanders entered an Order which denied Kmart’s request for leave for Krewson to amend his expert report. [Doc. No. 213 at 1] In response, Kmart filed Plaintiff’s Objections to the Magistrate Judge’s Order Denying Plaintiff’s Motion for Leave to File the Amended Report of John R. Krewson, see Doc. No. 227, and a memorandum in support. [Doc. No. 228] Thereafter, the District Court entered an order on September 27, 2013 advising that it would “consider an amendment of mathematical errors only,” and it requested that the Plaintiff submit “a proposed amendment of only mathematical errors in Krewson’s report, and further, that copies of this proposed amendment be timely furnished to Defendants.” [Doc. No. 243] On October 8, 2013, Kmart filed its Motion in Limine to Exclude Testimony of James Monohan and a supporting memorandum. [Doc. Nos. 263 and 264] Kmart’s Motion seeks to exclude the testimony “of Mr. Monohan regarding flow rates.”3 [Doc. No. 263 at 1] On October 24, 2013, the Court entered an order granting the motion filed by Kroger, E&A, and Fulton for 3

Kmart’s Motion is apparently directed at only a portion of Mr. Monohan’s anticipated testimony.

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an extension of time to respond to said Motion, see Doc. No. 281; pursuant to that Order, Kroger, E&A, and Fulton have until November 1, 2013 to file their response. [Doc. No. 282] On October 11, 2013, Kmart filed its Motion for Leave to File Amended Report of John R. Krewson pursuant to Court Order. [Doc. No. 271 at 1] This particular Motion attached a third report from Krewson dated October 11, 2013.4 [Doc. No. 271-1] B.

Statement of Relevant Facts.

Among the claims made by Kmart is that the building currently leased by Kroger for its retail location in Corinth caused a rise in the flood waters which occurred on May 2, 2010 and was one of the proximate causes of flooding in Kmart’s store. [See Doc. 1 at 4, 6] Kmart provided Defendants a copy of a report from its proposed expert, John R. Krewson, written on or about September 20, 2012. [Exhibit C at 1] A component of Krewson’s report is the allegation that a portion of the building which currently houses Kroger’s Corinth store is located in a “floodway.”5 [Exhibit C at 4] “To determine the impact of the Kroger encroachment and general conditions of the flood hazard at the time of the May 2, 2010 flood,” Krewson prepared a “HEC-RAS evaluation for the site using as-built survey data and flows for the area listed in FEMA’s 2009 Flood Insurance Study.” [Exhibit C at 6] HEC-RAS is a computer program which can be used to predict the behavior of water as it drains over land. [See Exhibit B at 186-93] Krewson agrees that the HEC-RAS program is like a bundle of principles that has been learned from drainage, physics, water, and hydraulics that can be used to create models by analyzing variables using certain constants. [See Exhibit B at 193] Krewson agreed that in order to get a sound model out of the HEC-RAS software you 4

Defendants intend to oppose said Motion and seek to prohibit the introduction of Krewson’s “third bite at the apple,” and they will do so by a separate pleading. 5 It is undisputed, however, that FEMA removed the Kroger store from the floodway approximately five years prior to the flood made the subject of this action, which occurred on May 2, 2010. [Exhibit A at 1]

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have to be very deliberate and careful about the variables that you put into the program. [Exhibit B at 193-94] The flow rate of the flood water is one of the variables that must be manually entered into the HEC-RAS software; it is typed into a box on the screen of the computer. [Exhibit B at 199] Krewson admitted that he entered the data in his HEC-RAS models. [Exhibit B at 223] Krewson conducted three “runs” using the HEC-RAS software in connection with formulating his opinions. [Exhibit B at 112] According to him, the first run was based on an “unobstructed floodway and produced 100-year flood elevations on the site comparable with those shown in the 2009 Flood Insurance Study done by FEMA.” [Exhibit B at 113] The second run was done using the as-built section with the “Kroger obstruction in place”; Krewson claims that the second run revealed that there “ended up being a one-foot rise [at the Kmart site] when compared to the previous run without the Kroger obstruction.” [Exhibit B at 113-14] The third run using the HEC-RAS software was based on Krewson’s assumption that “the creek channel was clean and had . . . a low growth vegetation . . . and there were no floodway obstructions.” [Exhibit B at 115] The third run was an idealized model and did not have the Kroger store in it; it showed that the “water level dropped two feet” from the first run. [Exhibit B at 115] So, without the Kroger store and a cleaned Elam Creek, Krewson asserted that the third run showed a two foot drop in the water level. [Exhibit B at 116] Krewson testified that he used the flow rate data for his HEC-RAS modeling that is set forth in FEMA’s 2009 Flood Insurance Study. [Exhibit B at 195] In his first report, Krewson further elaborates on his HEC-RAS modeling: The initial study was based on an unobstructed floodway and produced 100 year flood elevations on the site comparable with those shown in the 2009 Flood Insurance Study, and on the FEMA FIRM panel. When the Kroger floodway 5

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encroachment was added to the cross sectional data, a rise in the flood of approximately 1.0 ft. was found to occur. This is also consistent with the data listed at the building location. It did not consider the poorly maintained channel of Elam Creek or the other channel and floodway obstructions found during our inspection of the site. To test the potential impact the encroachments, obstructions, and overgrown banks, an idealized HEC-RAS model was run that assumed a fully maintained channel with no obstructions or encroachments in the floodway. The result of this model was a drop in the flood elevation at the Kmart site of approximately 2.0 feet below the elevations found with the Kroger encroachment in the floodway. [Exhibit C at 6-7] Ultimately, Krewson concluded in his first report, inter alia, that “[t]he presence of the Kroger as well as other buildings in the floodway increased the depth of flooding during the flood event of May 2, 2010, causing damage to Kmart.” [Exhibit C at 7] Krewson admitted that in HEC-RAS runs one and three he used a flow rate of 3,702 cubic feet per second. [Exhibit B at 196] Neither runs one or three reflect the existence of the Kroger store. [Exhibit B at 196-97] According to Krewson, a flow rate of 3,702 cubic feet represents a 100-year flood. [Exhibit B, exhibit 12 thereto at 9] Krewson’s HEC-RAS run two, which reflects the existence of the Kroger store, used a flow rate of 5,202 cubic feet per second. [Exhibit B at 116, 197, 221-22] The inconsistent flow rate values were not easily detectable in Krewson’s September 20, 2012 report. [Exhibit E at ¶ 8] Those inconsistent values were only discovered through a “careful examination of the HEC-RAS computer code” by Monohan and would not have been found otherwise. [Exhibit E at ¶ 8] In Monohan’s opinion, the average lay person would not be able to locate the inconsistencies that he found and would also not be able to explain the impact of the inconsistencies as they relate to generating reliable results within the bounds of sound engineering practices from the HEC-RAS program. [Exhibit E at ¶ 8]

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During his deposition, Krewson was questioned about why he used different flow rate data in his HEC-RAS runs, and he gave the following testimony: Q:

And why did that number change?

It shouldn’t have.

I’m sorry?

It should not have.

It should not have? So, that’s a mistake?

I’m not sure which number is right, but, yes, there’s a conflict.

And that conflict would make a difference in the accuracy of those reports; would it not?

It would.

So you retract the opinions that you expressed based on those reports, obviously, if you made a mistake?

Since I haven’t had a chance to check it, now that you have pointed it out to me, I need to reevaluate it before I can assess the opinion.

Exhibit B at 117]6 After reviewing the data, Krewson admitted that the flood water levels in the HEC-RAS run that reflected the existence of the Kroger store, and which used a different flow rate figure than what he used for his other runs, matched perfectly with the opinion in his expert report that showed a rise of approximately one foot in the flood water due to the existence of that store. [Exhibit B at 207-12] When asked what that would lead him to conclude, Krewson testified as follows: Q:

So at least just comparing the text, Exhibit 4 seems to match up perfectly with what you said in your report that’s dated September 20th, 2012?

Yes.

Throughout this Memorandum, objections and other commentary of counsel have been omitted from quotations of deposition testimony. However, such matters appear in the supporting exhibits attached to Kroger’s Motion.

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And what would that lead us to conclude?

If the – Well, since the flow data is suspect, it leads me to conclude not much of anything at this point.

Well, what does it say about your opinion of a rise in one foot in your report dated September 20th, 2012?

Well, until I have a chance to check this, I don’t know what kind of comment to make because I really don’t really know the derivation of the 5,220. I don’t know how that would have occurred.

And would you agree with me that, just looking at the text, it certainly does appear that what you said in your report is based on what’s stated in Exhibit 4 as is?

Yes.

[Exhibit B at 212-13] Krewson also admitted that he was not trying to model the flooding that actually occurred on May 2, 2010 in connection with the creation of his opinions. [Exhibit B at 228-29] Krewson’s testimony in this regard is as follows: Q:

So we’re talking about an amount of rain that fell in a less than 24-hour period of time of between 6 and 13 inches of rainfall, correct?

Yes.

That’s what the report said?

But as I’ve described, there were a number of weather stations reporting, so it had different readings at – we had virtually no readings south of the city, and then you go north and you have 13.

I’m not talking about stations. I’m talking about time right now. You go on, though, and base all your report and your conclusions on this 24-hour period. Why did you do that?

It was the only baseline I had. I didn’t have any lower levels. I didn’t have a 12-hour level.

But it’s true based on this language you have got in your report before that certainly suggests a much higher volume of water coming through than what you go to base your reports on; ain’t that right? 8

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Base my report on? I think I’ve explained earlier that I was not trying to model the flood event that occurred on the site. I think that has already been discussed.

So you weren’t trying to model what happened on May 2nd, 2010?

I was not. I was trying to do a comparative model to see what the impact.

So are you telling me that based on all this work that you’ve done, you have got no opinion on what caused damage to the Kmart on May 2nd, 2010?

No, I have an opinion.

Well, what’s it based on?

It’s based on the comparative results of the models, if the models stand up.

If the models stand up?

That’s correct. I have agreed that there’s a problem in the model.

Yeah.

Okay, we have discussed that quite a few times.

Yes, we’ve discussed that quite a bit.

And I’ve said that I’m not at this point prepared to be able to make a judgment as to what that represents or how it affects the model. And that’s not going to change, so. . .

Yeah, see, I’m not talking about that anymore. I’m talking about something else. I’m talking about what your opinion is.

Well, I’m saying that –

And your opinion doesn’t relate to what actually happened on May 2nd, 2010, correct?

No.

Because your model was never intended to re-create those events; is that correct?

That’s correct. 9

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It was intended to create a hypothetical comparison?

Correct.

Okay. And you utilized the 100-year rainfall event in connection with that hypothetical comparison, right?

Correct.

... Q:

And yet you still use the 100 year model, or at least you intended to use the 100-year model, in your runs?

As I have explained, I was not trying to model that particular event. I selected the 100-year model as a representative model for the runs. I discussed the rainfall event specifically to make sure that I accepted the fact that it was, in your words, an act of God, or a unique and rare event, as opposed to the two-year storm or five-year storm, which would have indicated that, had the stores flooded, that there was a problem with the storm drain system; it was not a particular and unique event but a failure of the storm drain system on the site, or a blockage of a creek, or some other manmade or natural problem with the drainage system that caused the flooding.

... Q:

Is it possible that so much rain fell on May 2nd, 2010, that the Kroger building – Excuse me – the Kmart building would have flooded, regardless of whether the Kroger building was there or not?

It’s obviously possible.

Yes. Now, tell me how you, in creating these reports in your methodology and your data, how you can rule that out.

How I can rule out that it would have flooded so much that the Kroger store – or Kmart store would have flooded, no matter if Kroger was there or not?

Yes.

I don’t think I can rule it out, no.

As a matter of fact, your methodology doesn’t even account for that scenario, does it? Because you are using the 100-year rainfall event, and everything is tied to that, right? 10

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Yes.

[Exhibit B at 228-35 (emphasis added)]

Krewson testified that he was “trying to do a

comparative model” and that his opinion doesn’t relate to what actually happened on May 2, 2010 and was never intended to re-create those events. [Exhibit B at 229-30] Moreover, there were other buildings in the floodway that Krewson didn’t account for in his modeling; his explanation was that he “was trying to keep the model simple and direct” and “the study . . . was not intended to be a full complete model.” [Exhibit B at 238-39] Krewson also admitted that his methodology failed to take into account the possibility that it flooded so much on May 2, 2010 that the Kmart store would have flooded regardless of the presence of the Kroger store, even though he admitted that such a scenario was a possibility. [Exhibit B at 234-35] He further admitted that he could not rule out that scenario. [Exhibit B at 234] Kmart relies entirely upon the testimony of Krewson for its evidence that the Kroger store caused flood damage to the Kmart store during the flood event of May 2, 2010. [Exhibit D at 15-17] On June 28, 2013, Defendants provided to Kmart Monohan’s “Expert Review and Report on Mr. John R. Krewson’s Flooding Evaluation (dated September 20, 2012) and Deposition (dated May 22, 2013)” (“Monohan’s Report”). [Exhibit F at 1] In Monohan’s report, he explains why the “comparative” or “hypothetical” approach taken by Krewson in the modeling described during his deposition and in Krewson’s initial report was improper: FEMA has an established protocol which they use for Letter of Map Revision applicants, associated with proposed projects, whereby an older effective hydraulic model is updated to current conditions for use in evaluating the proposed project’s potential impacts. These procedures are found on pages 11 and 12 of FEMA’s Instructions for completing the Riverine Hydrology & Hydraulics Form (Appendix J). An engineer trying to substantiate claims that certain actions or inactions resulted in changes to flooding conditions should follow a similar sequence, which is listed below: 11

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Duplicate effective model – Recover and rerun the original HEC-2 model for the 1981 Flood Insurance Study for Elam Creek

Corrected effective model – Correct any model errors if appropriate, including adding structures that existed prior to the model’s development that were not captured

Existing conditions model – Update the model to conditions in place on May 2, 2010, including addition of structures that were added, removed, or modified after the original model’s development

Revised or Post-Project model(s) – Implement “what if” scenarios, such as the Kroger building not in place, or the stream channel conditions improved, etc.

This process, while more complicated than that approach used by Mr. Krewson, provides a much more defensible basis for drawing conclusions regarding the specific impact that certain physical alterations to Elam Creek’s channel or floodplain may have imposed on the flooding conditions on May 2, 2010. [Exhibit F at 5 (emphasis in original)] Monohan observes further that, apparently “[b]ased on his assessment of the rainfall magnitude being approximately the 100-year, Mr. Krewson chose to use the FEMA published 100-year flow on Elam Creek of 3,702 cubic feet per second (cfs) in his model runs, as listed in Table 1 of the Flood Insurance Study Report” and that the modeling used by Krewson “did not attempt to recreate the actual flow that was observed on May 2, 2010 for Elam Creek.” [Exhibit F at 5] Monohan states in his report that “the flow data should have been refined to as close as practicable [to] replicate the peak flood flow that actually occurred on Elam Creek on May 2, 2010, along the modeled reach.” [Exhibit F at 5] Monohan explains that Krewson, during his visit to the site after the flood, could have identified high water marks which could have been measured and surveyed to establish “more reliable estimates of the peak flood elevations at these locations.” [Exhibit F at 5] Monohan then explains the necessity of taking these measures:

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With the geometry data, as described in the previous section, appropriately reflecting the physical conditions in existence on May 2, 2010, the flood flow values in the HEC-RAS model could then be calibrated to reasonably match these high water observations along Elam Creek. Without developing a reasonable recreation of the actual flood conditions on May 2, 2010 as a starting point, the HEC-RAS modeling work has no sound basis from which to draw conclusions regarding what measurable effects on flooding this or that change in conditions would have yielded. . . . Mr. Krewson acknowledges (230:10, 13) that the model was not intended to re-create the actual flood events, but to create a hypothetical comparison. [Exhibit F at 5-6] Monohan concludes in his report that Krewson’s opinion is not reliable from an engineering standpoint because it is based on a “comparative” or “hypothetical” model and cannot be relied upon to isolate and examine potential causal factors. [See Exhibit F at 5-6] Even assuming that a “comparative” or “hypothetical” model could be used, or in other words would produce a reliable result from an engineering standpoint, Monohan further observes in his report that the flow rates used in the modeling were not the same: The most alarming discovery in the review of the HEC-RAS modeling is that a different flow file was used for Run 2 [which models the existence of the Kroger building]. Runs 1 and 3 used 100-year flood flows that match the FEMA Flood Insurance Study. As shown in Table 1 below, the 10, 50, and 100-year flow values are much greater for Run 2. ... After the discrepancy in flow values was brought to Mr. Krewson’s attention, he repeatedly stated that the inconsistency was a mistake, and acknowledges that it would change the accuracy of the reports (117:18). The HEC-RAS PrintoutsField Run.PDF indicate that the flow file used for Run 2 (3314-CorinthMS-.f02) was located in the same project working directory as the flow file used for Runs 1 and 3 (3314-CorinthMS-.f01) on Mr. Krewson’s personal computer. He acknowledges that the flow values are manually entered into the program (199:15). Also, as shown in Table 1, the difference between the FEMA values and the Run 2 values are 950, 1300, and 1500 for the 10, 50, and 100-year flows, respectively, which represent about a 40 percent increase from the original FEMA values. It is difficult to envision how at least the creation of the flow file was unintended, based on the similarity between the incorrect values’ digits and the original values’ digits, and the two files located in the same project folder. Note also that the inflated 100-year flow value for Run 2 is 302 cfs higher than the FEMA published 500-year flow value (4900 cfs) on Elam Creek at this location. 13

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[Exhibit F at 6 (Table 1 omitted)] Monohan concludes from his review of Krewson’s model and underlying data that the “abrupt rise [in flood water] is the result of the much higher flow value used for Run 2.” [Exhibit F at 7] Monohan later concludes, inter alia, in his report that the HEC-RAS flood study conducted by Krewson should have made a reasonable attempt to recreate the actual peak flow that occurred along the subject section of Elam Creek on May 2, 2010, adding that following this procedure “would provide a realistic baseline from which to isolate and examine potential causal factors.”

[Exhibit F at 9]

Monohan further observes that,

“[b]ecause inconsistent flood flows were used for HEC-RAS Runs 1 and 2, no conclusion can be drawn regarding the effect of the Kroger building on the flood elevation at Kmart.” [Exhibit F at 9] During the deposition of Monohan, Kmart’s counsel questioned him regarding the inconsistent flow rates used by Krewson in his first report: Q:

Well, let me ask you. I mean, is part of your opinions in this case that Mr. Krewson, in his modeling, used an incorrect flow capacity?

Are we talking about a flow rate?

Yes. Cubic feet per second?

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

Okay.

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

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

I believe I did say that.

Okay. And you say that on page 6?

Okay. Yes. 14

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But that’s not correct. Right?

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

Well, but it’s not correct that 5202 cubic feet per second is an inflated 100-year flow. Right?

I have to ask you to restate that. I’m sorry.

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?

No. That’s not my position at all.

That’s not your position?

No.

... Q:

Okay. Mr. Mendrop testified yesterday and also said in his report that 4900 cubic feet per second is the correct flow rate for that area. Do you disagree with Mr. Mendrop?

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.

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

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 2, 2010.

[Exhibit G at 78-79] In this testimony, Monohan maintains his position, as originally stated in his report, that Krewson used inconsistent flow rate data in the HEC-RAS computer modeling on which Krewson relies for his “comparative” or “hypothetical” analysis.

Monohan further

explains that he does not know which flow rate is the “right” one for the subject property, i.e. right in the sense of what the flow rate actually was on May 2, 2010 when the flood at issue took place, because he has not done any modeling.

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Monohan totally rejects Krewson’s “comparative” or “hypothetical” analysis and observes that governmental entities charged with handling such issues do not use Krewson’s approach. [See Exhibit E at ¶¶ 4-7 and exhibit “A” thereto] Monohan explains that Krewson, in his September 20, 2012 report, attempts to use the FEMA 100-year recurrence interval flow value for his HEC-RAS evaluations but provides no evidence that the flood event of May 2, 2010 on Elam Creek at the Kmart location approximated this discharge value. [Exhibit E at ¶ 4] Such evidence is necessary and would have been found in the form of high water marks along the section of Elam Creek that was the focus of Krewson’s modeling. [Exhibit E at ¶ 4] This evidence could have been collected by Krewson during his visits to the site shortly after the flood at issue occurred. [Exhibit E at ¶ 4] However, it does not appear from Monohan’s review of Krewson’s September 20, 2012 report that he either collected or used such evidence. [Exhibit E at ¶ 4] Recording high water marks after a significant flood allows the analyst to characterize the magnitude of the flood event and estimate its actual recurrence interval as compared to published data. [Exhibit E at ¶ 5] Such information helps FEMA to verify published flood elevations in its flood insurance studies by comparing them to actual flood events that occur on the subject streams or rivers. [Exhibit E at ¶ 5] According to Monohan, Krewson should have used high water mark evidence to verify that the flood discharge values he chose for his HEC-RAS model of Elam Creek, with all significant physical obstructions such as bridges represented therein, actually reproduced the flood elevations experienced during the May 2, 2010 flood event. [Exhibit E at ¶ 5] Without this verification, Monohan observes that Krewson’s model results are unreliable. [Exhibit E at ¶ 5] While Krewson states in his September 20, 2012 report that his initial model produced flood elevations comparable with those in the FEMA study, his initial 16

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model results should instead be compared to the actual May 2, 2010 flood elevations in order to reach a conclusion based “on sound and reliable engineering methods.” [Exhibit E at ¶ 5] Monohan believes that Krewson’s entire approach is improper and unreliable: Mr. Krewson acknowledges in his May 22, 2013 deposition (pg 230, lines 10 and 13) that his model was not intended to re-create the actual flood event, but to create a hypothetical comparison. The May 2, 2010 flood of Elam Creek was not a hypothetical event. An estimate of the actual flood discharge is needed for the HEC-RAS model to provide a reliable re-creation of the actual flood that is at issue in this action. It is improper to obtain results based on a hypothetical flood event and extrapolate them to form conclusions regarding the actual flood event. Without developing a reasonable re-creation of the actual Elam Creek flood conditions of May 2, 2010, no reliable conclusions can be made regarding what measurable effects that this or that change in conditions, such as removing the Kroger building, would have yielded. [Exhibit E at ¶ 6 (emphasis added)] Unlike Krewson,7 Monohan was not in a position to collect high water mark data on Elam Creek because he first became involved in this matter more than three years after the May 2, 2010 flood. [Exhibit E at ¶ 7] Without access to reliable high water mark data, Monohan is not able to develop a HEC-RAS model that would reliably estimate the actual May 2, 2010 flood flow on Elam Creek. [Exhibit E at ¶ 7] As to his deposition when he was asked what was the “correct” flow value, Monohan explains that his answer reflects that he has not done any modeling to estimate the May 2, 2010 Elam Creek flood flow. [Exhibit E at ¶ 7] Monohan, unlike Krewson, was never in a position to collect the evidence necessary to perform reliable modeling. [See Exhibit E at ¶¶ 7-8] Of course, as Monohan observes, Krewson has not performed any such reliable modeling either; instead, Krewson simply assumes the FEMA 100-year flow is a good match to the actual flood with no physical evidence in support. [Exhibit E at ¶ 7]

Krewson testified that he inspected the site made the subject of this litigation for Kmart on May 6, 2010, which was only four days after the flood event. [Exhibit B at 25]

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On July 25, 2013, Kmart filed its Motion for Leave to File Amended Report of John R. Krewson, Motion to Continue Discovery Deadline, or, in the Alternative, Motion to Continue Trial Date. [Doc. No. 176 at 1] This Motion attached a second report from Krewson dated July 23, 2013. [Doc. No. 176-5] In support of said Motion, Kmart stated the following: At Mr. Krewson’s deposition on May 22, 2013, it was discovered for the first [time] that the models relied on by Mr. Krewson contained a mistake that affected the conclusions contained in his Initial Report. After being made aware of the mistake in the runs at his deposition, Mr. Krewson re-ran his models and prepared an Amended Report. In light of the mistake in Mr. Krewson’s Initial Report, Kmart seeks leave to file Mr. Krewson’s Amended Report. [Doc. No. 176 at 1; see also Doc. No. 177 at 1] Krewson made the same admission of a mistake in his declaration, also filed with the Court. [Doc. No. 176-1 at 2] Kmart attempted to explain Krewson’s mistake in a pleading filed with the Court: In preparation of his Initial Report, 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.[] 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.[] The first run was an idealized model that assumed a fully maintained channel with no obstructions or encroachments in the floodway.[] In the second run, the Kroger store was added to the floodway and a rise in the flood of approximately 1 foot was found to occur.[] In the third run, to determine the impact of encroachments, obstructions, and overgrown banks, Mr. Krewson ran an idealized model that assumed a fully maintained channel with no obstructions or encroachments in the floodway, which resulted in a 2-foot drop in the flood elevation at the Kmart site below the elevations found with the Kroger encroachment in the floodway.[] One factor that Mr. Krewson put into the HECRAS 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 3,702 cubic feet per second (cfs).[] The 3,702 cfs peak discharge is used in Mr. Krewson’s first and third HEC-RAS run data.[] However, the second HEC-RAS run data, which showed the impact of the Kroger store on the flooding at Kmart, incorrectly used the peak discharge figure of 5,202 cfs, which led Mr[.] Krewson to mistakenly conclude that the presence of the Kroger store caused a 1-foot rise in the flooding at the Kmart’s store during the May 2, 2010 flood.

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[Doc. No. 177 at 1-3 (footnotes omitted)] Kmart further explained in that pleading that “when Mr. Krewson used the corrected figures, he found that the presence of the Kroger store caused no significant difference in the rise of the flood at Kmart’s store.” [Doc. 177 at 4 (emphasis added)] On August 21, 2013, United States Magistrate Judge David A. Sanders entered an Order which denied Kmart’s request for leave for Krewson to amend his expert report. [Doc. No. 213 at 1] In his Order, Magistrate Judge Sanders commented regarding Krewson’s effort to “correct” his initial report: Krewson now says that each run should have used a flow rate of 5,202 cubic feet per second. Two of his original runs used a flow rate of 3,702 cubic feet per second. The difference because of this misstate was the difference between 1) finding a one foot rise in the flood waters at K-Mart because of the Kroger store and 2) finding the Kroger store’s presence resulted in no substantial change in the level of flood water at K-Mart. The substantial difference between the flow rates used in different runs, and the resulting crucial discrepancy in flood water levels lends credence to the defendants’ characterization of the error as glaring, and raises unanswered questions about why the error was not timely discovered. Krewson’s error meant the difference between a reasoned theory of liability and no viable theory of liability relating to the alleged intrusion of the Kroger building into the floodway. [Doc. No. 213 at 4-5] Magistrate Judge Sanders concluded that Krewson’s second report, in fact, presented a new theory of liability: “Because this second report presents a new theory of liability, the court concludes that allowing an amendment at this late juncture would be prejudicial to the defendants.” [Doc. No. 213 at 5] In response, Kmart filed Plaintiff’s Objections to the Magistrate Judge’s Order Denying Plaintiff’s Motion for Leave to File the Amended Report of John R. Krewson, see Doc. No. 227, and a memorandum in support. [Doc. No. 228] Thereafter, the District Court entered an order on September 27, 2013 advising that it would “consider an amendment of mathematical errors 19

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only,” and it requested that the Plaintiff submit “a proposed amendment of only mathematical errors in Krewson’s report, and further, that copies of this proposed amendment be timely furnished to Defendants.” [Doc. No. 243] On October 11, 2013, Kmart filed its Motion for Leave to File Amended Report of John R. Krewson pursuant to Court Order.8 [Doc. No. 271 at 1] This particular Motion attached a third report from Krewson dated October 11, 2013. [Doc. No. 271-1] Kmart asserts that “Krewson revised the HEC-RAS flow data and the flow data discrepancy that appeared in his original report was corrected from 3,702 cubic feet per second (CFS) to 5,202 cfs.” [Doc. No. 271 at 1] Kmart further asserts that “the Manning N values contained in Mr. Krewson’s original report were also corrected to reflect the conditions of the channel of Elam Creek and the flooding depths occurring at the time of the loss to Kmart’s store in Corinth, Mississippi on May 2, 2010.” [Doc. No. 271 at 1] Krewson’s third and latest report, dated October 11, 2013 makes the following comments regarding the HEC-RAS models he performed: To determine the impact of the Kroger encroachment and general conditions of the flood hazard at the time of the May 2, 2010 flood, a preliminary HEC-RAS evaluation was prepared for the site using as-built survey data and the flows for the area listed in FEMA’s 2009 Flood Insurance Study. As noted there was a discrepancy in this preliminary initial report. Two conflicting flow data values were used in preparing the model. This conflict resulted in a conclusion in the report that placement of the Kroger store in the floodway caused a rise in the flood of 1.0 feet. The original study also compared the overgrown existing Elam [C]reek channel with a theoretical well maintained channel and concluded that there would be a 2.0 foot drop in the water surface if the creek channel were well maintained. This report revises those values. For this amendment, the HEC-RAS flow data was revised and the flow data discrepancy was corrected from 3702 cfs to 5202 cfs. The Manning’s N values were also corrected to reflect the conditions of the channel and the flooding depths occurring at the time of the loss. This amended report pertains to re8

As stated previously, Defendants intend to oppose said Motion and seek to prohibit the introduction of Krewson’s “third bite at the apple” by a separate pleading.

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calculated runs using the same scenarios described in the original results dated September 20, 2012 and in the original modeling. This amended report does not use the scenarios described in the amended report dated July 23, 2013 and does not use the HEC-RAS model used in that report. [Doc. No. 271-1 at 8 (bold emphasis added)] Importantly, Krewson provides no explanation in his latest report for his conclusion that the flow rate of 5,202 cfs is the “correct” flow rate that should be used in his modeling. [See Doc. No. 271-1] Krewson advises in the October 11, 2013 report that the “results of these models found that the addition of the Kroger store to the site resulted in [a] two inch rise in the flood elevation compared to the flood elevation for the Kmart only site with no Kroger.” [Doc. No. 271-1 at 8] It was not until Plaintiff filed its Motion in Limine to Exclude Testimony of James Monohan, Doc. No. 263, and its supporting memorandum that Kmart disclosed how Krewson calculated what he contends to be the “correct” flow rate that should be used for his HEC-RAS model. [Doc. No. 264 at 2 n. 5] Utilizing certain data in FEMA’s 2009 Flood Insurance Study, Krewson has apparently added together the peak discharge value for a 100-year flood in Elam Creek at Highway 45, i.e. 3,702 cfs, to the peak discharge value for a 100-year flood in Turner Creek at its mouth, i.e. 1,500 cfs, which yields a total of 5,202 cfs. [Doc. No. 264 at 2 n. 5] Again, as with Monohan’s third report, Kmart offers no explanation for why it is permissible to add these two peak discharge values together to arrive at a flow rate of 5,202 cfs for Krewson’s model. According to Monohan, however, it is not permissible to add these two peak discharge values together to calculate a flow rate of 5,202 cfs: The 5,202 cfs value which Kmart claims to be correct in the motion to exclude a portion of my testimony is not correct. Kmart’s value of 5,202 cfs was computed by adding together the peak 100-year flow of Elam Creek at Highway 45 and the peak 100-year flow of Turner Creek at its mouth, which are listed in Table 1 of the FEMA Flood Insurance Study relied upon by Mr. Krewson. In accordance 21

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with sound engineering and hydrologic practices, peak flows on tributary streams typically can’t be added together because the flood peaks occur at different times. [Exhibit E at ¶ 10 (emphasis added)] A smaller tributary’s peak flow occurs prior to the larger tributary’s peak flow, due to the shorter travel time needed for the smaller tributary’s flood wave to reach the confluence.9 [Exhibit E at ¶ 10] The peak flow of the combined tributaries at the confluence is therefore less than the sum of the two tributary peak flows. [Exhibit E at ¶ 11] Turner Creek, with a drainage area of 2.34 square miles, would peak prior to the peaking of Elam Creek, which has a drainage area of 6.09 square miles, at their confluence near Highway 45. [Exhibit E at ¶ 11] Unless it is demonstrated through hydrologic modeling, which Krewson has not provided, that the peak flows for Elam and Turner Creeks would actually coincide at the confluence, i.e. occur at exactly the same time, then the peak discharge values of 3,702 and 1,500 cfs cannot be added together to predict the peak flow value below the confluence. [Exhibit E at ¶ 11] Consequently, Krewson’s methodology in this instance is flawed, and results in an erroneous and unreliable estimation of the FEMA 100-year peak flow.10 [Exhibit E at ¶ 11] In fact, even if one were to assume – solely for the sake of argument – that it was appropriate to use the FEMA 100-year flow rate for Krewson’s evaluation, “then no modeling would be necessary for [Monohan] to determine the peak flow rate for the property made the subject of this litigation,” because “[i]t can be found in the HEC-2 computer code for the May 1979 study of Elam Creek.” [Exhibit E at ¶ 9] This data is still the effective FEMA model for Elam Creek, and the FEMA Flood Insurance Study on which Krewson relied in selecting flow rate values is based on that data from 1979. [See Exhibit E at ¶ 9] While Krewson testified that 9

For the benefit of the Court, Monohan has provided an illustration that demonstrates this fact. [Exhibit E at 5] In Monohan’s opinion, Krewson’s attempt to determine the FEMA 100-year peak flow by adding the two figures together from Table 1 of the FEMA Flood Insurance Study “suggests a lack of basic, fundamental knowledge in hydrology.” [Exhibit E at ¶ 12]

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he could not find this data,11 see Exhibit B at 239, it “is still available from the FEMA Library and was included as Appendix I in [Monohan’s] expert report.” [Exhibit E at ¶ 9] As indicated by the HEC-2 computer code for the May 1979 study of Elam Creek, the FEMA 100-year flow value for Elam Creek at the Kmart-Kroger building site is 4,900 cfs. [Exhibit E at ¶ 10] III.

ARGUMENT. A.

Legal Standard under Daubert v. Merrell Dow. Pharms., Inc., 509 U.S. 579 (1993).

The admissibility of expert testimony is governed by the standard articulated in Daubert v. Merrell Dow. Pharms., Inc., 509 U.S. 579 (1993). Daubert provides that expert testimony is admissible only upon a showing that the proffered testimony is both relevant and reliable. See 509 U.S. at 589-94. Expert testimony is relevant when it is sufficiently related to the facts of the case so that it will assist the trier of fact in understanding the evidence or determining a fact at issue. See id. Reliability is shown when the testimony is based on scientific methods and procedures. See id. The opinion in Daubert clearly mandates that FED.R.EVID. 702 placed the responsibility of gatekeeper on the trial judge to assess proffered expert testimony and “determine at the outset, pursuant to FED.R.EVID. 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact.” See Daubert, 509 U.S. at 592. This Court must fulfill a vital gatekeeping role that requires it to make a threshold assessment of “whether the reasoning or methodology underlying the [expert] testimony is scientifically valid and of whether that reasoning and methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93. Throughout the evaluation, the “trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but 11

According to Monohan, “Mr. Krewson’s failure to obtain and utilize the original HEC-2 model, which contains the FEMA 100-year peak flow for Elam Creek at Kmart, further suggests a lack of experience in working with FEMA Flood studies.” [Exhibit E at ¶12]

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reliable.” Id. at 589. These “exacting standards of reliability,” Weisgram v. Marley Co., 528 U.S. 440, 442 (2000), require “more than subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590. Federal Rule of Evidence 702 requires a sound basis and a sound methodology, properly applied to the facts of the case, before an opinion can be admitted into evidence: 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 reliability applied the principles and methods to the facts of the case. Thus, courts must exclude expert evidence that is not “based on sufficient facts or data,” that is not “the product of reliable principles and methods,” or whose methods are not applied “reliably to the facts of the case.” See id. “[A]ny step that renders the analysis unreliable . . . renders the expert’s testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.” FED.R.EVID. 702 advisory committee’s note (2000)(quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994))(emphasis and omission in original). The trial court’s gatekeeping function requires more than simply “taking the expert’s word for it.” See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir. 1995)(“We’ve been presented with only the experts’ qualifications, their conclusions and their assurances of reliability. Under Daubert, that’s not enough.”). Under Rule 702, the proponent of the testimony has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence. 24

See

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Fed.R.Evid. 702 advisory committee’s note (2000)12(citing Bourjaily v. United States, 483 U.S. 171 (1987). The proponent of an expert’s testimony bears the burden of showing that it is admissible. Mathis v. Exxon Corp., 302 F. 3d 448, 459-60 (5th Cir. 2002). A party does not bear the burden of demonstrating the inadmissibility of the opposing side’s expert testimony. See Rieger v. Orlor, Inc., 427 F. Supp. 2d 99, 102 (D.Conn. 2006); Soldo v. Sandoz Pharms. Corp., 244 F. Supp. 2d 434, 534 (W.D. Pa. 2003). An expert’s “conclusions and methodology are not entirely distinct from one another,” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997), and the difference between an expert’s conclusions and methodology “has only limited practical import.” In re Paoli, 35 F.3d at 746. When a judge disagrees with the conclusions of an expert, it will generally be because he or she thinks that there is a mistake at some step in the investigative or reasoning process of that expert. See id. As part of its gatekeeping function, the court “must examine the expert’s conclusions in order to determine whether they could reliably flow from the facts known to the expert and the methodology used.” Oddi v. Ford Motor Co., F.3d 136, 146 (3d Cir. 2000)(citation omitted). In doing so, a court may “conclude that there is simply too great an analytical gap between the data and the opinion proffered,” and properly exclude the expert’s testimony. Joiner, 522 U.S. at 146.

12 “The language of Rule 702 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.” See Fed.R.Evid. 702 advisory committee’s note (2011).

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Kmart’s Motion Is Based on an Inaccurate Factual Premise.

Kmart complains that Monohan’s opinions regarding flow rates should be excluded because “Monohan relies on incorrect flow data.” [Doc. No. 264 at 1] Implicit in this contention is that Kmart, presumably through its proposed expert, Krewson, is now aware of the “correct” flow rate for the comparative HEC-RAS model that he performed.13 However, it is clear that is not the case. Krewson admits that, in performing his HEC-RAS model, he was not trying to model the flood that actually took place on May 2, 2010. [Exhibit B at 228-29] Instead, Krewson explained that he was trying to do a “comparative” model and that his opinion as to what caused damage to the Kmart store on May 2, 2010 is “based on the comparative results of [his] models, if the models stand up.”14 [Exhibit B at 229] Krewson’s opinion does not relate to what actually happened on May 2, 2010 because his model was never intended to re-create those events; rather, it was intended to create a hypothetical comparison. [Exhibit B at 230] This hypothetical comparison was intended to be based on the 100-year rainfall event for Elam Creek in Corinth, Mississippi at the site made the subject of this litigation. [Exhibit B at 230] Krewson intended to use the flow rate for the 100-year rainfall event for each of his three HEC-RAS runs. [Exhibit B at 230] Because the rainfall data that he had available suggested that Corinth received an amount of rain “that appeared to approach the 100-year rainfall event,” Krewson explained that he believed “it was reasonable to say that [Corinth] got the 100-year event.” [Exhibit B at 231] He therefore “selected the 100-year model as a representative model for the runs.” [Exhibit B

During Krewson’s deposition, he was not able to identify which of the inconsistent flow rates used in his HECRAS runs was the “correct” one: “I’m not sure which number is right, but, yes, there’s a conflict.” [Exhibit B at 117] 14 At this point in his testimony, Krewson forthrightly agreed the that his model was flawed: “That’s correct. I have agreed that there’s a problem in the model.” [Exhibit B at 229]

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at 233] Krewson further admitted that the flow rate for the runs he made with the HEC-RAS software shouldn’t vary from run to run. [Exhibit B at 117] Consequently, if one were to accept for the sake of argument that Krewson’s methodology would produce a reliable result, which Kroger disputes, the “correct” flow rate to be used for each of the three runs Krewson performed with the HEC-RAS software would be the flow rate for a 100-year event for Elam Creek in Corinth, Mississippi at the site made the subject of this litigation. Kmart now says that the flow rate for a 100-year event, i.e. the allegedly “correct” flow rate, is 5,202 cfs, which has been calculated by adding the flow rate of 3,702 cfs for Elam Creek at US Highway 45 to the flow rate of 1,500 cfs for Turner Creek at its mouth on Elam Creek, both of which were taken from a table in FEMA’s Flood Insurance Study which sets for a summary of peak discharges for various flood events at a few select locations in and around Corinth. [Doc. No. 264 at 2 n. 5] Kmart has offered no explanation to support the proposition that it is permissible to simply add these two discharge values together. Indeed, it is not permissible to simply add those two values together, and therefore, Kmart’s Motion should fail because it is premised on an inaccurate factual assumption. As explained by Monohan, who is the only proposed expert that is a certified floodplain manager, “[i]n accordance with sound engineering and hydrologic practices, peak flows on tributary streams typically can’t be added together because the flood peaks occur at different times.” [Exhibit E at ¶ 10] Such adding will not produce reliable results because a smaller tributary’s peak flow occurs prior to the larger tributary’s peak flow, due to the shorter travel time needed for the smaller tributary’s flood wave to reach the confluence. [Exhibit E at ¶ 10] The peak flow of the combined tributaries at the confluence is therefore less than the sum of the two tributary peak flows. [Exhibit E at ¶ 11] Turner Creek has a much smaller drainage area 27

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than Elam Creek and would, therefore, peak prior to the peaking of Elam Creek at their confluence near Highway 45. [Exhibit E at ¶ 11] Consequently, adding together the peak flow discharge figures for Turner and Elam Creeks results in an erroneous and unreliable estimation of the FEMA 100-year peak flow. [Exhibit E at ¶ 11] As stated above, Kmart’s Motion is based on the contention that Kmart and its proposed expert, Krewson, is now aware of the “correct” flow rate, i.e. the 100-year event, for the comparative HEC-RAS model that he performed. Since that contention is factually inaccurate, Kmart’s Motion is due to be denied. C.

Kmart’s Argument, Assuming It Was Valid, Would Apply Equally to Its Own Proposed Expert.

Based on testimony from Monohan’s deposition, Kmart complains that Monohan “admits that he does not even know the correct flow data” and that for this reason his testimony concerning flow rates should be excluded. [Doc. 264 at 1, 6-7] However, in making this contention, Kmart overlooks the fact that its own proposed expert was unable to identify the “correct” flow rate, i.e. the 100-year flow rate, during his deposition. Krewson was asked about the inconsistent flow rates used in the runs that he performed with the HEC-RAS software, and he readily admitted that he did not know which of the rates was the “correct” one: “I’m not sure which number is right, but, yes, there’s a conflict.” [Exhibit B at 117] Krewson admitted that the inconsistent flow rates he used would make a difference in the accuracy of his modeling, but when asked if he would retract the opinions that he expressed based on that modeling, he replied as follows: “Since I haven’t had a chance to check it, now that you have pointed it out to me, I need to reevaluate it before I can assess the opinion.” [Exhibit B at 117]

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If the Court concludes that Monohan should not be permitted to testify regarding flow rates, based on testimony during his deposition which Kmart claims shows that he did not know the “correct” flow rate, then Krewson should not be permitted to testify as to the results of his HEC-RAS model, based on testimony during his deposition which shows that he did not know the “correct” flow rate either. D.

Monohan’s Opinions Regarding the Flow Rate Require No Modeling.

Kmart contends that Monohan’s testimony regarding flow rates should be excluded because he performed no computer modeling. [Doc . No. 264 at 1] However, this argument reflects a lack of basic, fundamental knowledge in hydrology and suggests a lack of experience in working with FEMA flood studies. Even if one were to assume – solely for the sake of argument – that it was appropriate to use the FEMA 100-year flow rate for Krewson’s evaluation, “no modeling would be necessary for [Monohan] to determine the peak flow rate for the property made the subject of this litigation,” because “[i]t can be found in the HEC-2 computer code for the May 1979 study of Elam Creek.” [Exhibit E at ¶ 9] This data is still the effective FEMA model for Elam Creek, and the FEMA Flood Insurance Study on which Krewson relied in selecting flow rate values is based on that data from 1979. [See Exhibit E at ¶ 9] While Krewson testified that he could not find this data,15 see Krewson Depo. at 239, it “is still available from the FEMA Library and was included as Appendix I in [Monohan’s] expert report.” [Exhibit E at ¶ 9] As indicated by the HEC-2 computer code for the May 1979 study of Elam Creek, the FEMA 100-year flow value for Elam Creek at the Kmart-Kroger building site is 4,900 cfs. [Exhibit E at ¶ 10] FEMA did

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the modeling necessary to determine this flow rate over thirty years ago and still relies on the results of that modeling today. One needs only to look up the figure in the HEC-2 computer code for the May 1979 study of Elam Creek; no modeling is necessary. Moreover, given the testimony of Kmart’s proposed expert, Krewson, during his deposition, which Monohan attended, and the documents provided to the Defendants on which Krewson relied, it defies logic for Kmart to contend that Monohan’s testimony regarding flow rates should be excluded because it lacks factual support. Krewson admitted in his deposition that the inconsistent flow rates used in the three runs he performed with the HEC-RAS software would affect the accuracy of his opinions. [See Exhibit B at 117] Monohan identified the inconsistent flow rates from the HEC-RAS printouts upon which Krewson himself relied. [Exhibit F at 6] Given the admissions of Krewson in his deposition and the HEC-RAS printouts upon which he relied, which plainly show the inconsistency, Monohan’s opinions regarding flow rates is amply supported by the record, given Monohan’s training, education, and experience. Consequently, Kmart’s Motion should be denied because it is unnecessary for Monohan to perform any modeling to identify the 100-year flow value for Elam Creek at the Kmart-Kroger building site and because his opinions are amply supported by the record and Monohan’s training, education, and experience. E.

Kmart’s Reliance upon Coffey v. Dowley Manufacturing, Inc. Is Misplaced.

Kmart relies upon Coffey v. Dowley Manufacturing, Inc., 187 F.Supp.2d 958 (M.D.Tenn. 2002), in arguing that Monohan’s opinions regarding flow rates should be excluded. However, even a cursory examination of the facts and the analysis used by the court in Coffey shows that it does not support Kmart’s argument; in fact, Coffey tends to support the argument that Krewson’s opinions should be excluded. 30

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Kmart asserts that the court in Coffey excluded an expert’s testimony because it did not rest upon sufficient facts and data, based on the court’s determination that the expert’s analysis was based on hypothesized “guesstimations” regarding a number of important variables and evidence that more than one parameter assumed by the expert was incorrect or speculative. [Doc. No. 264 at 8-9] However, it is not Monohan who has engaged in “guesstimations”; rather, it is Kmart’s own proposed expert that has done so. Krewson testified that he was “trying to do a comparative model” and that his opinion doesn’t relate to what actually happened on May 2, 2010 and was never intended to re-create those events. [Exhibit B at 229-30] Krewson admits that his model was intended to create a “hypothetical comparison.” [Exhibit B at 230] Krewson utilized the 100-year rainfall even in connection with his hypothetical comparison based on his assumption that the “area received an amount [of rain] that appeared to approach the 100-year rainfall event.” [Exhibit B at 230-31] In his deposition, Krewson elaborated on this assumption further: I think the report states – the report states that the area received an amount that appeared to approach the 100-year rainfall event. I don’t say it is the 100year rainfall event. And I say it appeared to, based on the data I had. I did not draw a conclusion and say that is the 100-year event. I can’t tell you that it was a 100-year event. I can’t tell you it was greater than the 100-year event or less. And, in fact, in some places on the site, in some places south of the city, they had very little rainfall. As it moved north, it could very well have exceeded the 100-year event. But as a representative number trying to not underestimate or not overestimate, it appeared to me that it was reasonable to say that it got the 100year event. [Exhibit B at 230] Monohan rejects Krewson’s entire hypothesized approach and his use of estimations of rainfall utilized in Krewson’s model. [Exhibit F at 5] Monohan states in his report that “the flow data should have been refined to as close as practicable [to] replicate the 31

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peak flood flow that actually occurred on Elam Creek on May 2, 2010, along the modeled reach.” [Exhibit F at 5] Monohan explains that Krewson, in his September 20, 2012 report, attempts to use the FEMA 100-year recurrence interval flow value for his HEC-RAS evaluations but provides no evidence that the flood event of May 2, 2010 on Elam Creek at the Kmart location approximated this discharge value. [Exhibit E at ¶ 4] Such evidence is necessary and would have been found in the form of high water marks along the section of Elam Creek that was the focus of Krewson’s modeling. [Exhibit E at ¶ 4] This evidence could have been collected by Krewson during his visits to the site shortly after the flood at issue occurred. [Exhibit E at ¶ 4] According to Monohan, Krewson should have used high water mark evidence to verify that the flood discharge values he chose for his HEC-RAS model of Elam Creek, with all significant physical obstructions such as bridges represented therein, actually reproduced the flood elevations experienced during the May 2, 2010 flood event. [Exhibit E at ¶ 5] Without this verification, Monohan observes that Krewson’s model results are unreliable. [Exhibit E at ¶ 5] Consequently, Coffey lends no support to Kmart’s argument that Monohan’s opinions regarding flow rates should be excluded. Instead, it tends to support the Defendants’ argument that Krewson’s opinions should be excluded. F.

Kmart Has Not Been Granted Leave for Krewson to Correct the Errors in His First Report.

In support of its Motion, Kmart asserts that “[t]his Court recently granted leave for Mr. Krewson to correct the mathematical errors in his report,” citing this Court’s Order of September 27, 2013, see Doc. No. 243, and states further that “this Court has allowed Mr. Krewson to correct these inadvertent inconsistencies.” [Doc. No. 264 at 2-3, 6] However, the Order of September 27 does not grant such leave; instead, the Order states that “the Court will consider an amendment of mathematical errors only.” [Doc. No. 243 at 1] The Order clearly 32

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contemplates the submission of a proposed amendment which the Court may or may not allow: “In the event the Court allows any modification of the expert report, the Court acknowledges that a continuance of certain pretrial and trial settings might become appropriate.” [Doc. No. 243 at 1] The text of the Order clearly shows that no such leave has been granted yet. Kmart’s misstatement of the September 27 Order provides no support for its Motion as to Monohan. G.

Expert Testimony Is Necessary to Identify the Inconsistencies in Krewson’s Report.

Kmart argues that the “Court does not need an expert to point out inconsistent data” and that, “[t]herefore, Mr. Monohan’s testimony on this issue is unnecessary in the first place.” [Doc. No. 264 at 7] Kmart fails to explain, however, how a lay person would locate and then determine the impact of those inconsistencies on Krewson’s opinions. As explained by Monohan, the inconsistent flow rate values were not easily detectable in Krewson’s September 20, 2012 report. [Exhibit E at ¶ 8] Those inconsistent values were only discovered through a “careful examination of the HEC-RAS computer code” by Monohan and would not have been found otherwise. [Exhibit E at ¶ 8] In Monohan’s opinion, the average lay person would not be able to locate the inconsistencies that he found and would also not be able to explain the impact of the inconsistencies as they relate to generating reliable results within the bounds of sound engineering practices from the HEC-RAS program. [Exhibit E at ¶ 8] Consequently, the only evidence before the Court strongly indicates that expert testimony regarding the Krewson’s inconsistent flow rates is necessary and entirely relevant. IV.

CONCLUSION. For the reasons set forth herein, Kmart’s Motion seeking to exclude Monohan’s

testimony regarding flow rates should be denied. 33

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THIS, the 1st day of November, 2013. Respectfully submitted, THE KROGER CO.

By: s/ David A. Norris Of Counsel

Edley H. Jones III (MSB No. 3201) David A. Norris (MSB No. 100616) McGLINCHEY STAFFORD, PLLC City Center South, Suite 1100 200 South Lamar Street (Zip - 39201) Post Office Drawer 22949 Jackson, Mississippi 39225-2949 Telephone: (769) 524-2314 Facsimile: (769) 524-2333 dnorris@mcglinchey.com; ejones@mcglinchey.com

E&A SOUTHEAST LIMITED PARTNERSHIP

By: s/ Mary Clift Abdalla Of Counsel

Mary Clift Abdalla (MSB No. 102734) Walter Garner Watkins, III (MSB No. 100314) Walter Garner Watkins, Jr. (MSB No. 6988) Forman Perry Watkins Krutz & Tardy LLP 200 South Lamar Street Jackson, Mississippi 39201 Telephone: (601) 960-8600 Facsimile: (601) 960-8613 abdallamc@fpwk.com trey@fpwk.com wwatkins@fpwk.com

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FULTON IMPROVEMENTS, LLC

By: s/ Jamie F. Jacks Of Counsel

Jamie F. Jacks (MSB No. 101881) Gerald H. Jacks JACKS LUCIANO, P.A. P.O. Box 1209 Cleveland, Mississippi 38732 Telephone: (662) 843-6171 Facsimile: (662) 843-6176 jjacks@jlpalaw.com gjacks@jlpalaw.com

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CERTIFICATE OF SERVICE I, the undersigned David A. Norris, McGlinchey Stafford PLLC, hereby certify that on this day, I electronically filed the foregoing with the Clerk of the Court using the ECF system, which sent notification of such filing to the following: Ryan O. Luminais 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 Mary Clift Abdalla FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC 200 S. Lamar Street, Suite 100 Jackson, MS 39201 Email: abdallamc@fpwk.com Walter G. Watkins , Jr. FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC P.O. Box 22608 Jackson, MS 39225-2608 Email: wwatkins@fpwk.com Walter Garner Watkins , III FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC P.O. Box 22608 Jackson, MS 39225-2608 Email: trey@fpwk.com Gerald Haggart Jacks JACKS LUCIANO, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: gjacks@jlpalaw.com Jamie Ferguson Jacks JACKS LUCIANO, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: jjacks@jlpalaw.com 36

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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 Wilton V. Byars , III DANIEL, COKER, HORTON & BELL P.O. Box 1396 Oxford, MS 38655 Email: wbyars@danielcoker.com John Evans Gough , Jr. U.S. ATTORNEY'S OFFICE - Oxford 900 Jefferson Avenue Oxford, MS 38655-3608 Email: john.gough@usdoj.gov Linda F. Cooper WISE CARTER CHILD & CARAWAY, P.A. P.O. Box 651 Jackson, MS 39205-0651 and I hereby certify that I have mailed by United States Postal Service the document to the following non-ECF participants: None THIS, the 1st day of November 2013.

s/ David A. Norris David A. Norris 275932.8