Case: 1:11-cv-00103-GHD-DAS Doc #: 319 Filed: 11/08/13 1 of 8 PageID #: 5928
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION KMART CORPORATION, Plaintiff CIV. ACT. NO. 1:11-CV-103-GHD-DAS versus THE KROGER CO., et al. Defendants _____________________________________________________________________________________________
REPLY MEMORANDUM IN RESPONSE TO DEFENDANTS’ OPPOSITION TO MOTION TO EXCLUDE OR LIMIT THE ANTICIPATED TRIAL TESTIMONY OF ROBERT H. ALEXANDER May It Please the Court: Plaintiff, Kmart Corporation, submits this Reply Memorandum in response to Defendants E&A Southeast Limited Partnership, The Kroger Co., Kansas City Southern Railway, and Fulton Improvements, LLC’s Joint Response to Kmart’s Motion in Limine to Exclude or Limit the Anticipated Trial Testimony of Mr. Robert H. Alexander. Defendants ultimately evade the question as to whether they plan to have Mr. Alexander testify at trial as to the reasonableness of the period of restoration in Kmart reopening its store in Corinth, Mississippi following the May 2, 2010 flood. While Mr. Alexander testified at his deposition that he would not likely provide an opinion at trial as to the reasonableness of Kmart’s period of restoration and that such a determination was ultimately to be made by the jury, Defendants’ evasive response suggest that they want to take a “wait and see” approach as to the scope of Mr. Alexander’s conclusions at trial. Contrary to Defendants’ arguments, Kmart’s narrowly tailored motion is ripe and can be decided by this Court without any further delay.
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I.
Defendants ignore Mr. Alexander’s own testimony. As a preliminary matter, Defendants ignore Mr. Alexander’s own view as to the scope of
his opinions in their response to Kmart’s motion. Concerned that Mr. Alexander may offer trial testimony as to the reasonableness of the period of restoration, Kmart asked Mr. Alexander at his deposition whether he would be offering any findings or conclusions as to the reasonableness of Kmart’s period of restoration. Mr. Alexander initially testified in his deposition that he is “not sure how to answer that.”1 When pressed further whether it would be fair to say that he would be offering that type of opinion at trial, Mr. Alexander testified that “No, I don’t think that directly that I would offer an opinion.”2 Additionally, Mr. Alexander agreed with Kmart’s counsel that an opinion as to the reasonableness of the period of restoration is a legal conclusion.3 Contrary to Mr. Alexander’s personal view as to the scope of his trial opinions, Defendants fail to squarely address whether Mr. Alexander would be offering a legal conclusion as to the reasonableness of the period of restoration at trial. By filing a response to Kmart’s motion, it suggests that Defendants plan to ask Mr. Alexander to testify at trial regarding the reasonableness of the period of restoration, which is consistent with the language used by Mr. Alexander in his expert report. Otherwise, Defendants could have notified the Court that they do not have any opposition to Kmart’s motion in accordance with Uniform Local Rule 7(b)(3). Yet in the first paragraph of their response, Defendants assert that “Nothing in Mr. Alexander’s report or deposition testimony reflects an impermissible expert opinion as to ‘the reasonableness 1
See Excerpts of the Deposition Transcript of Robert H. Alexander at 55:16-56:26, attached as Exhibit 2 to Motion in Limine to Exclude Testimony of Robert H. Alexander (Rec. Doc. 2).
2
Id. (emphasis added).
3
Id. 2
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of the period of restoration.’” But Defendants then evade this issue by asserting that “Plaintiff’s motion is premature” inasmuch as this issue should be addressed at trial. In other words, Defendants fail to give a straight answer on this narrow issue. Defendants should not be allowed to evade the issue as to whether Mr. Alexander will testify at trial as to the reasonableness of Kmart’s period of restoration at trial.
Kmart filed a
direct motion in limine on this exact issue. Yet Defendants’ response seems to contradict Mr. Alexander’s prior testimony as to whether he would be offering such an opinion at trial. While Kmart is not seeking to exclude Mr. Alexander from testifying outright as an expert witness at trial, it is seeking to limit Mr. Alexander’s testimony from invading upon an issue to be decided by the jury, i.e., the reasonableness of Kmart’s period of restoration. II.
Kmart’s motion to exclude Mr. Alexander is not premature. Defendants next argue that Kmart’s motion is premature, thereby further evading the
question as to whether they plan to have Mr. Alexander testify at trial as to the reasonableness of Kmart’s period of restoration. Defendants rely on this Court’s decision in Hobbs v. Legg Mason Investment Counsel & Trust Co.4 to support its argument as to prematurity. But that decision actually supports Kmart’s motion to exclude certain anticipated testimony of Mr. Alexander because Kmart’s motion is more narrowly tailed. In Hobbs, the Defendants sought to exclude the plaintiff’s expert from outright testifying at trial on the grounds that his expert report contained several legal conclusions. There, this Court warned the parties that it “shall not admit expert testimony that amounts to nothing more
4
See 2011 WL 304421 (N.D. Miss. Jan. 25, 2011) (Aycock, J.). 3
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than mere legal conclusions.”5 But the Court found that it would not outright preclude the plaintiff’s expert from testifying at trial and that it would “consider objections on a case-by-case basis.”6 Kmart followed the guidelines suggested by this Court in Hobbs. Unlike the defendant in Hobbs, Kmart did not file a motion in limine to exclude Mr. Alexander from outright testifying as an expert witness at trial. Indeed, Mr. Alexander may testify as an expert witness at trial as to Defendants’ calculation of Kmart’s claim for lost profits. Instead, Kmart only sought to preclude Mr. Alexander from testifying at trial as to the reasonableness of the period of restoration. Kmart’s narrow approach fits the type of “casey-by-case basis” that this Court envisioned in Hobbs. III.
Any factual issues surrounding the period of restoration does not allow Mr. Alexander to provide testimony that is otherwise inadmissible. Defendants also argue that this Court’s decision as to the scope of Mr. Alexander’s trial
testimony should be delayed because there are several factual disputes as to the period of restoration. Particularly, Defendants suggest that Kmart’s period of restoration should last until the end of September 2010, whereas Kmart argues that its period of restoration should last until February 2011 when it actually reopened its Corinth store.7 Notwithstanding these factual disputes, the ultimate question of whether Mr. Alexander can testify at trial as to a legal conclusion regarding the reasonableness of the period of restoration (which is beyond his qualifications and which lacks any methodology) does not change. 5
Id.
6
Id.
7
See Defendants’ Joint Response to Plaintiffs’ Motion in Limine to Exclude or Limit the Anticipated Trial Testimony of Robert H. Alexander at 2 (Rec. Doc. 286). 4
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As Kmart asserted in its instant motion, Defendants can ask Mr. Alexander in making his damage analysis at trial to assume that the period of restoration last until the end of September 2010. Kmart does not dispute the fundamental principle that an expert can offer an opinion based on an assumption. But Defendants go far beyond that principle by seemingly seeking to have Mr. Alexander testify at trial as the reasonableness of that assumption. This leap by Defendants invades an ultimate issue left to the trier of fact and for which Mr. Alexander is neither qualified nor does he provide a reliable methodology. By seeking to exclude Mr. Alexander from testifying at trial as to the reasonableness of the period of restoration, Kmart is not asking for the Court to accept its period of restoration over Defendants’ view. Additionally, Kmart’s narrow motion does not preclude Defendants from presenting any testimony or evidence at trial that may support a different period of restoration. Rather, Kmart’s motion simply seeks to preclude Mr. Alexander from testifying as to the reasonableness of Kmart’s period of restoration, and the Court should be allowed to address this issue in advance of trial. IV.
Mr. Alexander is not qualified to give an opinion as to the reasonableness of the period restoration and he provides no methodology. Notwithstanding the prematurity argument asserted by Defendants as to whether Mr.
Alexander’s purported opinion as to the reasonableness of Kmart’s period of restoration qualifies as a legal conclusion, this Court is certainly in a position to render a decision as to whether Mr. Alexander is qualified to provide such an opinion. Additionally, this Court can render a decision as to the lack of methodology used by Mr. Alexander to support his opinion. In their opposition, Defendants assert that Mr. Alexander may be qualified to testify as to the reasonableness of the period of restoration because he has general knowledge in construction. 5
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Mr. Alexander testified at his deposition, however, that his knowledge is limited building his home and providing expert testimony in cases that may involve construction. Mr. Alexander admitted that he is not a licensed contractor and that he is not an expert in construction work.8 Mr. Alexander also admitted that his is not an engineer.9 Tellingly, Mr. Alexander admitted that he has “No expert knowledge” as to the steps that it takes to repair a department store that was damaged by a flood.10 Based on Mr. Alexander admitted lack of experience and qualifications, he should not be allowed to given any opinions at trial as to the reasonableness of the period of restoration. As to Mr. Alexander’s lack of reliable methodology, Mr. Alexander testified that he did not interview anyone in preparing his report as to the period of restoration.11 Mr. Alexander also testified that he did not speak with any of the contractors that performed any of the work on the Kmart building.12 Mr. Alexander also testified that he did not speak with anyone at Cotton Construction, which performed the building restoration work on behalf of Fulton Improvements, in preparing his report.13 Instead, Mr. Alexander, who is an accountant, simply relied on a certification of completion and a purported letter sent by Kmart to one of its employees of the Corinth store that has been redacted as to the addressee (without any explanation as to who
8
See Excerpts of the Deposition Transcript of Robert H. Alexander at 69:4-6 and 69:24-70:2, attached as Exhibit 2 to Motion in Limine to Exclude Testimony of Robert H. Alexander (Rec. Doc. 255-2).
9
See id. at 70:2-3.
10
See additional Excerpts of the Deposition Transcript of Robert H. Alexander, attached as Exhibit 1 at 70:10-21.
11
See id. at 70:24-71:13.
12
Id.
13
Id. 6
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redacted the information) and admittedly unauthenticated by any of the Defendants). Based on Mr. Alexander’s lack of qualifications in construction and restoration, his investigation is wholly insufficient. Additionally, Defendants fail to distinguish in their opposition the court’s opinion in O’Hara v. Travelers.14 There, the plaintiff’s expert, in determining the value of the loss at issue, viewed only the exterior of the house several years after it was damaged and only after demolition had begun.
His opinion was based only on three photographs of the property
provided by the plaintiff, his limited viewing of the house, and whatever other information to what the plaintiff had told him.15 The O’Hara court noted, “Where an expert’s opinion is based on insufficient information, the analysis is unreliable.”16 The expert in O’Hara did not consider the reports of the fire department or the engineer’s report, among other documents, in forming his opinion. Further, in excluding the expert’s testimony, the court held, “No one could form a reliable opinion regarding the cost to repair and/or construction a house on that meager basis.”17 Like the expert in O’Hara, Mr. Alexander’s anticipated testimony as to reasonableness of any period of restoration would be unreliable because he is not qualified to give any such testimony. V.
Conclusion Based on the foregoing reasons and those contained in Kmart’s motion and memorandum
in support, Kmart seeks to exclude or limit the anticipated expert testimony of Mr. Alexander as 14
2012 WL 3062300 (S.D. Miss. July 26, 2012).
15
See id.
16
Id. (citing Seaman v. Seacor Marine LLC, 326 Fed. App’x 721, 725 (5th 2009)).
17
Id. at *9. 7
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to the alleged reasonableness of Kmart’s period of restoration (or an alternative period of restoration suggested by Defendants) on the grounds that it constitutes an impermissible legal opinion or because he is not qualified to make that opinion and, as such, it would be unreliable. Respectfully submitted, /s/ Ryan O. Luminais ____________________________________ JAMES M. GARNER (La. Bar. No. 19589) JOHN T. BALHOFF, II (La. Bar. No. 24288) RYAN O. LUMINAIS (Miss. Bar. No. 101871) SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 ATTORNEYS FOR KMART CORPORATION
CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been served on all known counsel of record with the Clerk of Court using the CM/ECF system which will automatically send-email notification to all known counsel of record, this 8th day of November, 2013.
/s/ Ryan O. Luminais _________________________________________ RYAN O. LUMINAIS
8
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