333 rebuttaltoresponsetoexcluderoberteley kmart combine

Case: 1:11-cv-00103-GHD-DAS Doc #: 333 Filed: 11/15/13 1 of 14 PageID #: 6303

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION KMART CORPORATION, Plaintiff As

CIV. ACT. NO. 1:11-CV-103-GHD-DAS

versus THE KROGER CO., et al.

Defendants REBUTTAL TO RESPONSE TO MOTION IN LIMINE TO EXCLUDE OR LIMIT THE TESTIMONY OF ROBERT ELEY May It Please The Court: Plaintiff, Kmart Corporation, submits this Rebuttal to the Response to Kmart’s Motion in limine to Exclude or Limit the Testimony of Robert Eley, the purported expert witness jointly retained by Defendants, Fulton Improvements, LLC, E&A Southeast Limited Partnership, and The Kroger Co. (collectively “Defendants”). Mr. Eley’s anticipated testimony that “no amount of caulking, waterproofing or protective membrane would have prevented water from entering the Kmart building during the flood event,”1 should be excluded or limited because, by his own admissions, he has no training or knowledge regarding at least one floodproofing measure (floodproof or watertight doors) suggested by Kmart and its expert, John R. Krewson. Mr. Eley’s broad assertion that no floodproofing measure would have prevented water from entering the Kmart building is, therefore, baseless and devoid of supporting data. Moreover, Mr. Eley’s testimony that “the City of Corinth correctly interpreted the pre-construction site survey data (Existing Conditions Plan), compared this data to the 1981 FIRM maps and properly concluded that the 1981 Flood Maps

1

See Robert Eley’s Expert Report (June 22, 2013), attached as Exhibit “A,” at 3.

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were incorrect, or inconsistent with the existing conditions on the ground at this location”2 should be excluded or limited because it constitutes a legal conclusion that impermissibly instructs the jury on which conclusions to reach in this matter.

I.

Law and Argument A.

This Court should disregard those portions of Defendants’ Response regarding the admissibility of the testimony of Kmart’s expert, Mr. John R. Krewson.

While this motion deals exclusively with the testimony of Mr. Eley, Defendants devote several paragraphs of their Opposition arguing that Kmart’s expert, John R. Krewson, should be excluded.3 Defendants previously devoted over seventy-five pages to the admissibility of Mr. Krewson’s testimony by filing separate motions to exclude his testimony. But the admissibility of Mr. Krewson’s testimony is not at issue in this motion and should not be considered as part of this motion. Defendant’s discussion of the admissibility of Mr. Krewson’s testimony is merely an attempt to distract this Court from the fact that the opinion of their expert, Mr. Eley, is unqualified and based on insufficient and unreliable information. The admissibility of Mr. Krewson’s testimony has already been briefed in prior motion practice and, to the extent that Defendants now argue this point, Kmart refers this court to its Omnibus Response in Opposition to the Motions to Exclude the Opinions of John R. Krewson filed by Kmart.4

2

Id.

3

See Doc. 300 at pp. 4, 6, 7.

4

See Doc. 321.

2

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B.

Mr. Eley’s testimony that no amount of flooding proofing measures would have prevented the flooding at Kmart’s store should be excluded because Mr. Eley is not qualified to offer the opinion and the opinion is based on insufficient information.

Defendants essentially argue that Mr. Eley’s testimony that no amount of floodproofing would have prevented the flooding at Kmart is admissible because it is based on his experience as a project engineer for residential and commercial development and as a civil engineer for residential and commercial design projects. The sole basis for Mr. Eley’s opinion is his alleged experience, as demonstrated by Mr. Eley’s testimony: Q:

Okay. Paragraph 3 says, “It is my opinion that no amount of caulking, waterproofing, or protective membrane would have prevented water from entering the Kmart building during the flood event. Did I read that correctly?

A:

Yes, sir.

Q:

What is that opinion based on?

A:

Thirty-five years of experience.

Q:

Okay.

A:

And an engineering degree.5

Yet despite his alleged experience, Mr. Eley admitted that he has no knowledge regarding all available sources of flood protection measures and thus he cannot reliably state that no flood prevention measures would have prevented the flooding at Kmart’s store.

In particular, Mr. Eley admitted that he had no knowledge regarding flood-proof doors or barriers, an example provided by Kmart and Mr. Krewson of a potential flood protection measure

5

See Deposition of Robert Eley (September 6, 2013), attached as Exhibit “B,” at p. 96, ll. 10-19.

3

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that could have been taken to prevent flooding at Kmart’s store.6 At least one month prior to the Defendants’ expert designation deadline, both Defendants and Mr. Eley were aware that a floodproof door or barrier system was one of several options proposed by Kmart and Mr. Krewson as a potential flood protection measure.

On May 20, 2013, Kmart responded to Interrogatories

propounded by Fulton regarding the flood protection measures that should have been taken by Fulton to protect Kmart from flooding during the May 2, 2010 storm and stated as follows: Fulton had an obligation under its lease with Kmart to keep Kmart’s leased premises in a safe, dry, and tenantable condition. Fulton failed to take any necessary measure to protect Kmart’s store and to maintain a safe, dry, and tenantable condition as required under the lease, which caused the store to suffer flood damages as a result of the May 2, 2010 rain event. It was up to Kmart’s landlord, and not up to Kmart, to take these measures. The “protective membrane” referenced in Kmart’s Complaint was only one such protective measure that could have been adopted by Kmart’s landlord to keep the Kmart building in a safe, dry and tenantable condition during the May 2, 2010 flood. Nevertheless, by way of illustration only, Fulton could have used a silicone sealant around the base of the building. Fulton also could have provided a flood boot system as an extension of the outer wall of the Kmart store that hermetically seals in front of the building entry. Fulton also could have provided a water detention system so that flood water was adequately diverted to a detention pond and away from the Kmart building. Fulton could have maintained a drainage system at the site so that water was adequately drained away from Kmart’s property.7 Then, on May 22, 2013, Mr. Krewson testified regarding flood-proof doors and barriers as a potential flood prevention measure that could have been taken at Kmart’s store to prevent the flooding that occurred after the May 2, 2010 event. Mr. Eley was present at Mr. Krewson’s deposition, where he testified as follows: Q:

6

7

Are you suggesting that - - Well, let me rephrase that. How would that caulking and waterproof be put on the building, whatever the surface was?

Id., p. 98, ll. 2-21 and p. 107, ll. 19-21.

See Kmart’s Response to Fulton’s Interrogatory No. 11, attached as Exhibit “C” (emphasis added).

4

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A:

Well, caulk around windows, caulk around the openings, have to caulk around anything where water could enter, obviously. And somehow or another, you have to waterproof the wall, either with a waterproof sealant or using a physical barrier on the exterior of the wall.

Q:

How do you waterproof doors which are busted open by landscape timbers allowing the water to enter? How do you waterproof against that?

A:

Well, there’s a commercial product, in fact, there are a number of companies I think that do flood waterproofing. And the system that Sears Kmart has used is a barrier that is removable and can be put in place with several techniques. Some are mechanically operated, and they can be closed electronically. Some you have to - - the staff has to come out and actually place the barrier.

Q:

Where are the barriers located?

A:

It fits across the front of the door on the exterior of the door.

Q:

And you say Sears and Kmart have used those barriers?

A:

Yes.8

Mr. Krewson further explained that this same type of flood protection system could be extended around the entire building: Q:

All right. And you talk about this protective membrane. Tell me in more, in Mr. Balhoff’s term, in layman’s language what you mean by a protective membrane.

A:

Well, I mean, you can extend - - Well, there are systems where you can put out an inflatable. Actually, you fill it up with water around the perimeter of the building. It’s kind of extreme, but you can do that where you actually pump water in it and create a water enclosure around the building to protect the building.

I’ve never seen them when they didn’t - - weren’t able to protect the walls without a membrane, but you can also extend the barrier system around the building.

8

See Deposition of John R. Krewson (May 22, 2013), attached as Exhibit “D,” p. 119, l. 23 - p. 120,

l. 23.

5

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Q:

What do you mean a barrier system?

A:

The same system that’s used at the doors can be continued all the way around the building.9

Mr. Eley’s report is dated June 22, 2013 and the extended expert designation deadline for the Defendants was June 28, 2013. Thus, Mr. Eley had at least one month to consider Kmart’s discovery responses and Mr. Krewson’s testimony regarding the flood-proof doors and barriers, conduct research on the flood-proof doors and barriers, and then render an educated opinion. But Mr. Eley ignored this flood protection measure completely, and instead relied only on his alleged experience to make the generalized conclusion that no amount of flood protection measure would have prevented the flooding at Kmart’s store. Mr. Eley rendered this opinion despite the fact that he had no knowledge, and made no attempt to gain any knowledge, regarding the flood-proof door or barrier systems proposed by Kmart and Mr. Krewson as potential flood-protection measures.

Defendants also complain that Mr. Krewson did not mention flood-proof doors in his Initial Flooding Evaluation dated September 20, 2012. But Mr. Krewson’s report provided an illustrative, not exclusive, list of potential flood protection measures that could have been taken to protect the Kmart building from flooding. Mr. Krewson stated in his report: “Despite the location of the building in a large and documented floodplain, no actions such as caulking and waterproofing the exterior walls, or construction of a protective membrane around the building were done to protect the building.”10 Mr. Krewson was not providing an exclusive list of available flood protection measures, but rather pointing out that there were no flood protection measures taken, such as

9

Id., p. 122, ll. 4-21.

10

See Initial Flooding Evaluation of John R. Krewson (September 20, 2012), attached as Exhibit “E,”

at 8.

6

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caulking, waterproofing the exterior walls, or construction of a protective membrane, to prevent the flooding at Kmart’s store.11 Additionally, as discussed above, the flood-proof doors and barriers were discussed in Kmart’s discovery responses and at Mr. Krewson’s deposition and Mr. Eley had sufficient time to research the potential effectiveness of these flood protection systems.

Further, just as in the O’Hara v. Travelers12 case, there is simply no reliable basis for Mr. Eley’s opinion and it should be excluded. Mr. Eley’s alleged experience is not, by itself, a sufficient basis for Mr. Eley to opine that no flood proofing method or special door would have prevented the flooding at Kmart’s store, particularly when Mr. Eley admitted that he was not knowledgeable about all available flood prevention measures. Contrary to Defendants’ argument, Mr. Eley must be familiar with all available types of flood proofing measures if he wants to support his superlative opinion that no available type of flood proofing measure would have prevented the flooding at Kmart’s store.

Additionally, the fact that the flooding in Kmart’s store may have approached 22 inches is not proof that no flood prevention measure would have prevented water from entering Kmart’s store.

Defendants argue that because there were 22 inches of water in Kmart’s store, Mr. Eley did not have to be familiar with flood-proof doors to render his opinion, but only had to be familiar with the building construction and the effect of hydrostatic pressure on the building. This argument fails for several reasons. Mr. Eley did not visit the site nor did he inspect the construction of the Kmart building and, thus was not familiar with the building construction from this aspect.13

11

Id.

12

2012 WL 3062300 (S.D. Miss. July 26, 2012).

13

See Ex. C, Depo. of Eley, p. 26, ll. 19-27 and p. 108, ll. 6-13.

7

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Additionally, Mr. Eley made no attempt to model or otherwise demonstrate the effect of hydrostatic pressure on the building when certain flood protection measures, such as the flood-proof doors or barriers, were in place and thus has no reliable support for this opinion.

Mr. Eley’s testimony that water would have entered through the walls and weep-holes in the brick is similarly unsupported. Indeed, the testimony of Mr. Krewson and Kmart’s corporate representative, Mr. Dale Menendez, suggests that a flood barrier above 22 inches could have been constructed around the entire Kmart building as a flood protection measure. Mr. Krewson testified that the flood barrier system could have been extended beyond the doors and around an entire building.14 Mr. Menendez, testified that these flood-proof barriers could be built well above two feet: But there’s not enough time to always sandbag. Well, then you can boot a building, hermeticallly seal the exterior of the building to height of four foot, two foot, six foot, or whatever is required, and caulk and seal the perimeter And when the floodwaters - - and you are reaching waters that are coming to flood level, you have the Kmart team know that they are in a flood zone, and ask that they install the floodgates. They hook on hinges. You slap them and lock them shut, and it acts as an outer wall and keeps the water outside, so that you’re maintaining drainage.15 Mr. Eley does not explain how water, in that instance, would have entered into the building. This further evidences that Mr. Eley has no support for his opinion that no flood protection measure would have prevented the flooding at Kmart’s store.

14

See Ex. E, Depo. of Krewson, p. 122, ll. 4-21.

15

See Deposition of Dale Menendez (July 19, 2013), attached as Exhibit “F,” p. 248, l. 21 - p 249,

l. 7.

8

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Mr. Eley is not qualified to express an opinion as to whether any floodproofing measures — specifically, floodproof doors — would have prevented water from entering the Kmart building. Mr. Eley conceded that he knows absolutely nothing about floodproof doors, and as such, he cannot opine that such measures would have been ineffective on May 2, 2010. Moreover, Mr. Eley’s opinion is not the product of reliable principles and methods and is entirely devoid of supporting data. Accordingly, this Court should exercise its role as a gatekeeper and enter an order precluding Mr. Eley from testifying about floodproof doors.

C.

Mr. Eley’s opinion regarding the City of Corinth’s conclusions related to the 1981 Flood Maps is inadmissible because it is a legal conclusion.

Mr. Eley’s opinion that “the City of Corinth correctly interpreted the pre-construction site survey data (Existing Conditions Plan), compared this data to the 1981 FIRM maps and properly concluded that the 1981 Flood Maps were incorrect, or inconsistent with the existing conditions on the ground at this location”16 should be excluded or limited because it is a legal conclusion that impermissibly instructs the jury on the conclusions to reach in this matter.

Rule 704 of the Federal Rules of Evidence indicates that “testimony in the form of an opinion or inference otherwise inadmissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact,” but an expert is not permitted to tell the trier of fact, what decision should be reached.17 The 1972 Advisory Committee Notes to Rule 704 clarifies that this rule does not permit any opinion on the ultimate issue to be rendered. As the Advisory Committee Notes indicate, the provisions of Rules 403, 701, and 702 “afford ample assurances against the admission

16

See Ex. A, Eley Report at 3.

17

FED. R. EVID. 704(a).

9

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of opinions which would merely tell the jury what result to reach.” “Opinions that provide legal conclusions are not helpful to the trier of fact and are therefore inadmissible.”18 Mr. Eley’s opinion should be excluded because he recites what he believes to be the correct interpretation and proper conclusion by the City of Corinth of the site survey data against the data from the 1981 map. When questioned about the 1981 FIRM map, which shows that half of the Kroger store is within a floodway, Mr. Eley testified that the Kroger store was incorrectly included in the floodway. His observation was based on the construction drawings that were developed for construction of the Kmart and Kroger stores. Those drawings have the Kroger store outside of a floodway.

Mr. Eley’s opinion is precisely the kind Rule 704 was intended to avoid. Although Mr. Eley may be permitted to testify regarding his opinion as to the purported differences in the two sets of data, he should not be permitted to testify whether the City of Corinth’s interpretation was correct.

The Defendants’ reliance on United States v. Izydore19 is misplaced. In allowing the bankruptcy trustee’s opinion that money was not legally taken, the court noted that the trustee was not testifying

18

Trinity Yachts, LLC v. Thomas Rutherfoord, Inc., 2013 WL 2406552, *3 (S.D. Miss. May 31, 2013) (citing Fed. R. Evid. 702; United States v. Izydore, 167 F.3d 213, 218 (5th Cir.1999); see also Peters v. City of Waveland, 2012 WL 1854311, *2 (S.D. Miss. Feb. 20, 2012); BNY Mellon, N.A. v. Affordable Holdings, Inc., 2011 WL 2746301, *2 (N.D. Miss. July 12, 2011) (“[T]o make it abundantly clear [ ], it is axiomatic that an expert is not permitted to provide legal opinions, legal conclusions, or interpret legal terms; those roles fall solely within the province of the court.”) (quoting Roundout Valley Cent. Sch. Dist. v. Coneco Corp., 321 F. Supp. 2d 469, 480 (N.D.N.Y. 2004); Jones v. Reynolds, 2008 WL 2095679, *12 (N.D. Miss.

May 16, 2008) (“To the extent that [the plaintiff’s expert] asserts legal conclusions and conclusions as to the ultimate fact, his expert testimony is to be struck.”); Shoemake v. Rental Serv. Corp., 2008 WL 215818, *3 (S.D. Miss. Jan. 22, 2008) (finding that the expert’s testimony should be limited to the extent it purports to make legal conclusions).

19

167 F. 3d 213 (5th Cir. 1999).

10

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as an expert witness when she made the statement.20 Moreover, the trustee made the statement while discussing her efforts to account for missing money and the court found the opinion was more accurately described not as whether the appellants were guilty of certain crimes, but whether a certain sum of money belonged to the appellants in that matter.21 Here, Mr. Eley is not “simply opining as to how the City of Corinth reached its conclusion to allow the project to move forward when, at the time of the Kroger construction, the LOMR had not yet been issued.” Rather, Mr. Eley is offering the legal conclusion for the purpose of telling the jury what result to reach in this litigation. Kmart has alleged that the Kroger store was improperly located in a floodway and that Kroger’s presence in the floodway contributed to the flooding at Kmart’s store. Mr. Eley’s testimony that the City correctly concluded that the 1981 Flood Maps were incorrect with relation to the location of the Kroger store touches the cause of the flooding at Kmart’s store and is an improper legal conclusion.

Moreover, Mr. Eley’s opinion is solely based on his alleged experience. Mr. Eley testified: Q:

So you’re saying, that when FEMA and its consultants did a hydraulic study, which Prime Engineering did not do, it didn’t do any type of surveying of the area to determine the location of the boundaries of the flood map, of the floodway and floodplain?

A:

That’s almost certainly true.

Q:

That’s your position?

A:

I don’t know it - - almost 100 percent of the time, that would be true.

Q:

You don’t have any evidence to support that?

20

See id. at 218.

21

See id.

11

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A:

Thirty-five years of experience.

Q:

You don’t have any documents to support that?

A:

Thirty-five years of practicing engineering and dealing with flood maps and elevations, and I know what the methodology is that goes into producing - -22

Indeed, Mr. Eley cannot point to any specific document or source that supports his opinion: Q:

Okay. Paragraph 2 says that, “It is my opinion that City of Corinth correctly interpreted pre-construction site survey data (existing conditions plan), compared this data to the 1981 FIRM map, and properly concluded that the 1981 flood maps were incorrect or inconsistent with the existing conditions on the ground at this location.”

Did I read that correctly?

A:

Yes, sir.

Q:

Okay.

A:

You did read it correctly.

Q:

You don’t have any direct knowledge of whether that happened. Right?

A:

Well, the fact that the building is – exists and they allowed it to be constructed.

There was a – I think there’s some meeting minutes where they approved the construction of the project. I think it would be a pretty logical conclusion that they reviewed it and approved it. In fact, I think there’s some documentation to that effect.

Q:

Okay.

A:

Although I can’t specifically tell you where or what it is as I sit here today.

Q:

In preparing your report, you didn’t speak with anyone from the City of Corinth who made the determination that you said it made as to correctly interpreting the preconstruction site survey data?

A:

I did not speak to anyone.

Q:

Because you weren’t a part of that determination. Right?

22

See Ex. B, Depo. of Eley, p. 52, l. 11 - p. 53, l. 5.

12

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A:

I was not part of it.23

There is no reliable basis for Mr. Eley to state how the City reached the conclusion or whether that conclusion was correct because he admitted that he had no reliable information to support his opinion. Accordingly, Mr. Eley’s opinions are inadmissible and should be excluded.

II.

Conclusion For the foregoing reasons and for the reasons more fully explained in Kmart’s motion to

exclude or limit Mr. Eley’s testimony, Kmart respectfully requests that this Court grant its motion in limine and exclude the testimony of Robert Eley.

This the 15th 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

23

See id., p. 93, l. 6 - p. 94, l. 11(emphasis added).

13

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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 15th day of November, 2013.

/s/ Ryan O. Luminais _________________________________________ RYAN O. LUMINAIS

14

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EXHIBIT

B

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EXHIBIT

C

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EXHIBIT

D

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EXHIBIT

E

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 2 of 23 PageID #: 6361

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 3 of 23 PageID #: 6362

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 4 of 23 PageID #: 6363

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 5 of 23 PageID #: 6364

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 6 of 23 PageID #: 6365

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 7 of 23 PageID #: 6366

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 8 of 23 PageID #: 6367

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 9 of 23 PageID #: 6368

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 10 of 23 PageID #: 6369

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 11 of 23 PageID #: 6370

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 12 of 23 PageID #: 6371

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 13 of 23 PageID #: 6372

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 14 of 23 PageID #: 6373

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 15 of 23 PageID #: 6374

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 16 of 23 PageID #: 6375

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 17 of 23 PageID #: 6376

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 18 of 23 PageID #: 6377

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 19 of 23 PageID #: 6378

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 20 of 23 PageID #: 6379

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 21 of 23 PageID #: 6380

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 22 of 23 PageID #: 6381

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 23 of 23 PageID #: 6382

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-6 Filed: 11/15/13 1 of 4 PageID #: 6383

EXHIBIT

F

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-6 Filed: 11/15/13 2 of 4 PageID #: 6384

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-6 Filed: 11/15/13 3 of 4 PageID #: 6385

Case: 1:11-cv-00103-GHD-DAS Doc #: 333-6 Filed: 11/15/13 4 of 4 PageID #: 6386