320 answertomotionkellyblakemendrop kmartcombine

Case: 1:11-cv-00103-GHD-DAS Doc #: 320 Filed: 11/08/13 1 of 10 PageID #: 5940

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 REBUTTAL TO RESPONSE TO MOTION TO EXCLUDE TESTIMONY OF KELLY BLAKE MENDROP May It Please the Court: Plaintiff, Kmart Corporation, respectfully submits this Rebuttal to the Response to its Motion to Exclude Testimony of Kelly Blake Mendrop. Mr. Mendrop’s opinions regarding the effect of debris blockage in Elam Creek under KCSR’s bridge at milepost 328.10 on the flooding at Kmart’s store in Corinth, Mississippi on May 2, 2010 should be excluded because Mr. Mendrop’s opinions are based on models that use insufficient and unreliable data that does not accurately reflect the conditions of the KCSR bridge and the area between the bridge and the Kmart store at the time of the flood. Mr. Mendrop’s opinions are, therefore, unreliable and inadmissible.

I.

Law and Argument Mr. Mendrop’s testimony should be excluded because the models on which his opinions are

based use insufficient and unreliable data. Federal Rule of Evidence 702 requires that there be sufficient facts or data underlying proffered expert testimony.1 “[A]ny step that renders the analysis

1

FED. R. EVID. 702.

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unreliable . . . renders the expert testimony inadmissible.”2 Here, Mr. Mendrop’s analysis is unreliable because it is based on data that does not accurately reflect the conditions of the KCSR bridge, the Kmart store, or the area between the bridge and the Kmart store as those conditions existed at the time of the May 2010 flood event. Rather, as more fully explained in Kmart’s motion to exclude Mr. Mendrop’s testimony, the data relied on by Mr. Mendrop to prepare his models reflects those conditions as they existed over thirty years before the May, 2010 flood event.

Because Mr. Mendrop’s opinion is based on insufficient and unreliable data, his testimony is inadmissible under Federal Rule of Evidence 702.

A.

Mr. Mendrop’s analysis is unreliable because he did not use current data for the KCSR bridge in his models.

KCSR does not dispute that Mr. Mendrop did not conduct any surveying on the KCSR bridge to obtain data on the current condition of the bridge to input into his HEC-RAS (“Hydraulic Engineering Center - River Analysis System”) models.3 Indeed, Mr. Mendrop admitted that he did not do any investigation into any changes or additions to the bridge structure from the late 1970s and early 1980s to the present and did not account for any alterations or changes in the bridge in his report.4 Without conducting a current survey of the bridge, Mr. Mendrop could not have made an accurate assessment of the impact of the bridge on the flooding at Kmart’s store because it is unknown whether the bridge was exactly the same in May 2010 as it was over thirty years ago.

2

Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009) (citing Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 671 (5th Cir. 1999)).

3

See Deposition of Kelly Blake Mendrop, attached as Exhibit A, p. 54, ll. 2-4.

4

See id. at p. 79, l. 8 - p. 80, l. 21.

2

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KCSR’s argument that a current survey of the bridge was not necessary because Mr. Mendrop was modeling the impact of a debris field under the bridge and not the impact of the bridge itself is flawed. The testimony of Kmart’s expert, John R. Krewson, regarding his decision not to model the impact of the KCSR bridge on the flooding at Kmart’s store is instructive because it demonstrates both the necessity and complications of obtaining current survey data on the KCSR bridge to perform the relevant study. Mr. Krewson explained that to model the impact would have required him to make a number of assumptions regarding the KCSR bridge that might have resulted in an unrepresentative and unreliable model.5 Mr. Krewson further explained that the problem with running a model to determine the impact of the debris field under the KCSR bridge is that the KCSR bridge was a unique structure with two spans, two different elevations, and two different sets of piers relatively close together.6 Moreover, according to Mr. Krewson, “[t]he problem with the railroad bridge is it didn’t match the model - - the computer model itself did not fit that type of configuration.

And I would have had to trick the model or come up with some sort of composite section or otherwise come up with something, and the result would be unreliable in this condition, in a legal condition.”7 Mr. Krewson’s testimony demonstrates that to determine the impact of the debris field would have required obtaining current survey data of the existing KCSR bridge. Indeed, the complications involved in obtaining the data and fitting the KCSR bridge in the HEC-RAS model led Mr. Krewson to conclude that doing so might result in unreliable results. Mr. Mendrop, on the other hand,

5

See Depo. of John R. Krewson, attached as Exhibit B, p. 148, l. 1 - p. 149, l. 5.

6

See id. at p. 147, ll. 10-19.

7

See id. at p. 285, ll. 2-8.

3

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conducted models without making any attempt to obtain data reflecting the current conditions of the bridge, but rather relied on thirty-year-old data not reflective of the actual condition of the bridge.

Because this data was necessary, Mr. Mendrop’s models are unreliable and his opinion based on these models should be excluded.

KCSR’s argument that Mr. Mendrop’s data was sufficient because the over thirty-year-old HEC-2 data that he obtained from the Federal Emergency Management Agency (“FEMA”) accounted for the KCSR bridge is erroneous. As Mr. Krewson explained, the KCSR bridge itself does not fit the standard bridge profile in HEC-RAS model. The HEC-RAS system is the predecessor to the HEC-2 system. Thus, it is not known what model FEMA used in the over thirtyyear-old HEC-2 data to account for the KCSR bridge. Mr. Mendrop, therefore, should have conducted the necessary analysis to independently obtain the current and correct profile of the bridge to prepare his HEC-RAS models and his failure to do so renders his opinion unreliable and inadmissible.

B.

Mr. Mendrop’s sole reliance on the FEMA data is flawed because the data does not account for topographical changes in the area that occurred between the origination of the FEMA data and the date of the flood event at issue in this matter.

KCSR further argues that because FEMA relied in part on over thirty-year-old data to create the 2010 Flood Insurance Rate Map (“FIRM”) for the subject area, then Mr. Mendrop was also justified in relying on the over thirty-year-old data. KCSR contends that the 2010 FIRM incorporates the same model reflected in the 1981 FIRM and that FEMA’s use of the 1981 model to develop the 2010 FIRM indicates the 1981 model still represents current hydraulic conditions at the Elam Creek location. But KCSR’s argument compares apples to oranges and ignores the purpose of FEMA’s

4

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Flood Insurance Study and FIRM maps. The 2010 FIRM relied on by Mr. Mendrop and KCSR was designed for flood insurance purposes. The Flood Insurance Study for the 2010 FIRM explicitly states that the “[f]lood elevations shown on the FIRM are primarily intended for insurance rating purposes.”8 Mr. Mendrop acknowledged in his deposition that the Flood Insurance Study and the 2010 FIRM were not made for the purpose of determining whether an obstruction in a floodway had an impact on a structure upstream of that obstruction.9 FEMA merely determined that it was not necessary, for flood insurance purposes, to change the base flood elevations for the area from the 1981 FIRM to the 2010 FIRM. Even if the base flood elevations did not change, however, as explained in Kmart’s motion to exclude Mr. Mendrop’s testimony, the topography of the subject area did change significantly over the thirty-plus years between the creation of the data relied on by Mr. Mendrop and the date of the flood. Yet Mr. Mendrop made only minimal efforts (visual inspections) and conducted limited surveying to account for these changes.

The relevant analysis here is whether obstructions in the underpass at KCSR’s bridge contributed to flooding at Kmart’s store on May 2, 2010, which is wholly different from determining base flood elevations. To make this determination, Mr. Mendrop should have conducted surveying to determine the topography of the entire subject area as it currently exists. By his own admission, Mr. Mendrop did not account for any alterations or changes in the bridge in his report.10 Mr.

8

See Exhibit A to Kmart’s Motion to Exclude Testimony of Kelly Blake Mendrop, Report of Mendrop Engineering Resources, appendix A, Flood Insurance Study, at p. 6.

9

See Ex. A, Depo. of Mendrop, at p. 49, ll. 14-19.

10

See id. at p. 80, ll. 19-21.

5

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Mendrop did not conduct a survey of the area around the Kmart store to determine the actual existing condition of that area prior to preparing his HEC-RAS models. He did not survey the parking lot for the Fulton Shopping Center, the fill area behind the shopping center or the detention pond near the shopping center.11 Mr. Mendrop also failed to survey the area between Fulton Drive and Elam Creek to obtain current and reliable data points for that area to use in his HEC-RAS modeling.12 Moreover, aside from the creek and channel of Elam Creek, Mr. Mendrop did not perform any surveying on any of the 2100-foot area between the KCSR bridge and the Kmart store.13 Indeed, he did not account for any alterations and changes in the topography from the late 1970s or early 1980s to the current date.14 FEMA’s decision not to change the base flood elevations for insurance purposes does not change the fact that from the time FEMA created the data to the time of the May 2, 2010 flood, there were major topographical changes that would impact the hydrology in the area. Indeed, KCSR does nothing to refute that Mr. Mendrop relied on the over thirty-year-old data to model the area around the Kmart store, despite the fact that the data was created more than ten years before the Kmart store was even built. The Kmart store was constructed in 1991 and the conditions at the site were significantly different prior to construction than the conditions of the area after construction of the Kmart store. The relevant construction drawings indicate that prior to the construction of the Kmart and Kroger stores in 1991, there were several buildings located in the area that is not the parking lot

11

See id. at p. 87, l. 1-11.

12

See id. at p. 87, l. 16-23. .

13

14

See id. at p. 90, l. 20 - p. 91, l. 1.

See id. at p. 90, ll. 13-17.

6

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for the Fulton Shopping Center. The buildings were demolished to create a flat-surfaced lot. The construction drawings reveal that the area of the Kmart store was altered dramatically after the store was constructed. Mr. Mendrop’s models, however, necessarily assume that the area in front of the Kmart and Kroger stores contains several buildings when in fact the area is a flat surface. This change alone would impact the hydrology in and around the area of the Kmart store. Yet Mr. Mendrop admittedly did nothing to account for these changes in his models.

KCSR’s statement that FEMA’s decision to rely on the 1981 FIRM data for creation of the 2010 FIRM because the data still represents the current conditions at the Elam Creek location is pure speculation. There are several reasons that FEMA might have elected not to collect new data when creating the 2010 FIRM, for example, budgetary reasons or the lack of available resources. Local economic or political reasons could have come into play as changing base flood elevations can have a big impact on local communities. KCSR and Mr. Mendrop do not know the motivations behind FEMA’s decision to rely on the over thirty-year-old data to create the 2010 FIRM and KCSR cannot represent that the data reflects the conditions of the subject area because Mr. Mendrop did not conduct the surveying necessary to verify that the data did in fact represent current conditions.

Without this data, Mr. Mendrop’s models are unreliable and his opinions based on those models should be excluded.

KCSR contends that because Mr. Krewson relied on the 2010 FIRM data to prepare his report, he also necessarily used the same HEC-2 data Mendrop accessed and used. But Mr. Krewson’s models did not rely solely on the 2010 FIRM. Mr. Krewson also requested and obtained current as-built survey data of the area at issue.15 Indeed, this as-built survey data was readily 15

See Ex. B, Depo. of Krewson, p. 146, l. 16 - p. 147, l. 4.

7

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available to Mr. Mendrop. Mr. Mendrop acknowledged in his deposition that all available data is relevant when running models to determine the effect of an obstruction on flooding at an area upstream of the obstruction.16 Mr. Mendrop could have utilized the as-built survey data obtained by Mr. Krewson for his models, but he chose instead to rely on the thirty-plus-year old data that does not accurately reflect the existing conditions of the subject area.

Moreover, FEMA’s Flood Insurance Study relied on by Mr. Mendrop did contain updated flow rate information different from the data used for the 1981 FIRM that Mr. Mendrop ignored in favor of the outdated, thirty-plus-year old flow rate data. In his analysis, Mr. Mendrop used 4,900 cubic feet per second as the flow rate for Elam Creek in a 100-year flood event, which he obtained from the thirty-plus-year old HEC-2 data. But the 2010 Flood Insurance Study lists the flow rate at Elam Creek for the 100-year flood event as 3,702 cfs.17 Thus, Mr. Mendrop used outdated data in favor of the current data in the Flood Insurance Study that he allegedly relied on in conducting his models.

The Elliot v. Amadas Industries, Inc.18 and Coffey v. Dowley Manufacturing Inc.19 cases discussed in Kmart’s motion to exclude Mr. Mendrop’s testimony are instructive because in those cases, as here, the expert testimony was unreliable because it was based on insufficient facts and data. Mr. Mendrop relied on data that is not relevant to the current conditions of the KCSR bridge and the topography of the area between the bridge and the Kmart store. Mr. Mendrop used 16

See Ex. A, Depo. of Mendrop, p. 82, ll. 13-21.

17

See Exhibit A to Kmart’s Motion to Exclude Testimony of Kelly Blake Mendrop, Report of Mendrop Engineering Resources, appendix A, Flood Insurance Study, at p. 5.

18

796 F.Supp.2d 796 (S.D. Miss. 2011).

19

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

8

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unreliable and outdated data regarding the condition and configuration of the KCSR bridge and topography of the area between the bridge and the Kmart store. Mr. Mendrop has presented expert testimony relying on what is, for all practical purposes, a completely different site than what existed at the time of the May 2010 flood. Mr. Mendrop’s opinion relies on insufficient and unreliable data, and accordingly it should be excluded by this Court, pursuant to Rule 702 of the Federal Rules of Evidence.

II.

Conclusion For the foregoing reasons, and for the reasons explained in Kmart’s Motion to Exclude the

Testimony of Kelly Blake Mendrop, Kmart requests that this court grant its motion and exclude the testimony of Mr. Mendrop.

This the 8th day of November, 2013.

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

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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

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EXHIBIT

A

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EXHIBIT

B

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