342 replybriefinsupportofmotiontoexcludejohnrkrewson kroger

Case: 1:11-cv-00103-GHD-DAS Doc #: 342 Filed: 11/21/13 1 of 10 PageID #: 6619

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

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

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

REPLY BRIEF IN SUPPORT OF MOTION TO EXCLUDE TESTIMONY OF JOHN R. KREWSON COMES NOW, The Kroger Co. (“Kroger”), by and through its counsel of record, and files this its Reply Brief in Support of Motion to Exclude the Testimony of John R. Krewson, and in support thereof would state unto the Court as follows, to-wit: I.

KMART’S CANNOT RELY UPON MR. KREWSON’S RECENT “CORRECTIONS” IN OPPOSITION TO KROGER’S MOTION. Pursuant to the Order entered on August 2, 2013, the motion deadline in this matter was

October 8, 2013, see Doc. No. 202 at 1, and Kroger filed its Motion to Exclude the Testimony of John R. Krewson (“Kroger’s Motion”), as well as its supporting memorandum, on October 8, 2013. [Doc. Nos. 259 and 260] As of October 8, this matter was in the following procedural status as it relates to Mr. Krewson and his opinions.

Kmart filed a 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 (“Kmart’s Motion for Leave to File Amended Report”) on July 25, 2013, in which Kmart admitted that “the models relied on by Mr. Krewson contained a mistake that affected the conclusions contained in his Initial Report” (“Krewson’s September 20, 2012 Report”). [Doc. No. 176 at 1] Attached to

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Kmart’s Motion for Leave to File Amended Report was John R. Krewson’s Amended Flooding Evaluation dated July 23, 2013 (“Krewson’s July 23, 2013 Report”), which purported to correct mistake in Krewson’s September 20, 2012 Report. [Doc. No. 176-5; see also Doc. No. 176-1 at 2-3] Kmart’s Motion for Leave to File Amended Report was denied on August 21, 2013. [Doc. No. 213 at 7] 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 (“Plaintiff’s Objections”) and a supporting memorandum on September 4, 2013. [Doc. Nos. 227 and 228] The Court entered an Order on September 27, 2013 in which it advised that it would “consider an amendment of mathematical errors only” and requested that Kmart submit a “proposed amendment.” [Doc. No. 243 at 1] Three days after the expiration of the motion deadline and the filing of Kroger’s Motion, Kmart filed its Motion for Leave to File Amended Report of John R. Krewson Pursuant to Court Order on October 11, 2013, see Doc. No. 271, which attached John R. Krewson’s Amended Flooding Evaluation dated October 11, 2013 (“Krewson’s October 11, 2013 Report”). [Doc. No. 271-1] Mr. Krewson has not given a deposition regarding either his July 13, 2013 Report or his October 11, 2013 report.

Kmart argues that Mr. Krewson has “corrected” the flow rates used in his original report “so his opinions are not unreliable.” [See Doc. No. 321 at 11] However, neither Krewson’s July 13, 2013 Report nor Krewson’s October 11, 2013 Report are properly before the Court. Leave to amend was denied as to Krewson’s July 13, 2013 Report, see Doc. No. 213 at 7, and no order has been entered yet granting leave to amend as to Krewson’s October 11, 2013 Report. It is, therefore, procedurally improper for Kmart to contend that the admitted error in Krewson’s September 20, 2012 Report has been corrected by the above-referenced subsequent reports.

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Additionally, Krewson’s “corrections” are simply more improper and unreliable methodology. In its Motion in Limine to Exclude Testimony of James Monohan, Doc. No. 263, and its supporting memorandum, Kmart finally 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 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] 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 Kroger’s expert, James Monohan, the only certified floodplain manager named as an expert in this matter, 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 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.

[Doc. No. 301-5 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. [Doc. No. 301-5 at ¶ 10] The peak flow of the combined tributaries at the confluence is therefore less than the sum of the two tributary peak flows. [Doc. No. 301-5 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 3

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near Highway 45. [Doc. No. 301-5 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. [Doc. No. 301-5 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, the peak flow rate for the property made the subject of this litigation can be found in the HEC-2 computer code for the May 1979 study1 of Elam Creek. [Doc. No. 301-5 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, not 5,202 cfs as contended by Krewson. [Doc. No. 301-5 at ¶ 10] II.

KMART’S ARGUMENTS REGARDING COMPARATIVE NEGLIGENCE ARE MISPLACED. Because of Krewson’s failure to account for other possible causes of the flooding which

took place in the Kmart store on May 2, 2010, and because he failed to address whether it rained so much on that day that the Kmart store would have flooded regardless of the presence of the Kroger store, Kroger argues that Kmart cannot show that Krewson’s opinion that the presence of the Kroger store caused flood damage to the Kmart Store on May 2, 2010 satisfies the factors required by Daubert v. Merrell Dow. Pharms., Inc., 509 U.S. 579 (1993), and FED.R.EVID. 702, since the exclusion of alternative causes is required for a reliable causation opinion.

See

Michaels v. Avitech, Inc., 202 F.3d 746, 753 (5th Cir. 2000).

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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 Doc. No. 301-5 at ¶ 9] While Krewson testified that he could not find this data,1 see Doc. No. 301-2 at 239, it “is still available from the FEMA Library and was included as Appendix I in [Monohan’s] expert report.” [Doc. No. 301-5 at ¶ 9]

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As was amply discussed in the supporting memorandum to Kroger’s Motion, the exclusion of alternative causes is a matter of reliability, and thus a Daubert, issue. [See Doc. No. 260 at 17-20] As such, Kmart’s contention that these are comparative negligence issues for which the burden of proof is on the Defendants is misplaced.

III.

KREWSON’S OPINION REMAINS CONTRARY TO LAW. In response to Kroger’s argument that Krewson’s opinions regarding the location of the

Kroger store as being in a floodway are contrary to law, Kmart asserts that Defendants “want to simply disregard the 1981 FEMA Flood Insurance Rate Map (‘FIRM’) that existed at the time of the construction of the Fulton Shopping Center around 1992.” [Doc. No. 321 at 24-25 (emphasis in original omitted)] Rather, it is Kmart who wants to ignore the fact that FEMA removed the Kroger store from the floodway approximately five years prior to the occurrence of the May 2, 2010 flood which is the subject of this suit. [See Doc. No. 259-1 at 1] Moreover, 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. [Doc. No. 259-2, exhibit 2 thereto] It was FEMA, the entity responsible for creating the maps in the first place, which made this determination.

Krewson’s repeated references to the Kroger store being in a floodway are thus contrary to law and inadmissible under FED.R.EVID. 702. See Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 387 F.Supp. 2d 794, 806 (N.D.Ill. 2005).

IV.

KMART HAS FAILED TO SHOW THAT KREWSON’S REPORT DOES NOT CONTAIN NUMEROUS IMPERMISSIBLE LEGAL CONCLUSIONS. Kroger identified in its supporting memorandum a number of impermissible legal

conclusions set forth in Krewson’s September 20, 2012 Report. [Doc. No. 260 at 28-29] In response, Kmart argues that “none of the comments made in Mr. Krewson’s report tell the trier of fact what decision to reach, which is the standard governing whether an opinion constitutes a 5

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legal conclusion.” [Doc. No. 321 at 27] Kmart relies upon FED.R.EVID. 704 for this contention.

[Doc. No. 321 at 27] The Fifth Circuit has repeatedly held that opinion testimony about “what the law is” or some expert’s understanding about what the law means is impermissible. See United States v.

Rothenburg, 328 Fed. App’x. 897, 902 (5th Cir. 2009); see also C.P. Interests, Inc. v. California Pools, Inc., 238 F.3d 690, 687 (5th Cir. 2001)(expert witness may not offer conclusions of law); Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983); Snap-Drape, Inc. v.

Commissioner of Internal Revenue, 98 F.3d 194, 198 (5th Cir. 1996).

Rule 704 does nothing to change this longstanding prohibition. See Adalman v. Baker, Watts & Co., 807 F. 2d 359 (4th Cir. 1986), abrogated on other grounds by Pinter v. Dahl, 486 U.S. 622 (1988)(“In earlier days, the proscription of testimony on the ‘ultimate issue’ was, in the commoner patterns, based on the conclusion that such testimony ‘usurped the province of the jury.’ Rule 704(a) removes that proscription, but it should not, and does not, permit the expert witness to usurp the province of the judge.”). Although an expert may testify as to the ultimate issue in a case, per Rule 704, such testimony must not amount to legal conclusions; it is for the judge alone to instruct the jury on the applicable principles of law. See Shahid v. City of Detroit, 889 F.2d 1543, 1547-1548 (6th Cir. 1989). Indeed, the Fifth Circuit has “repeatedly held that [Rule 704] does not allow an expert to render conclusions of law.” Snap-Drape, Inc. v. C.I.R., 98 F. 3d 194, 198 (5th Cir. 1996). Consequently, Kmart’s reliance on Rule 704 is misplaced.

V.

CONCLUSION. For the foregoing reasons, Kroger respectfully requests this Court to enter an order

granting Kroger’s Motion and excluding the testimony of Krewson.

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THIS, the 21st day of November 2013.

Respectfully submitted, THE KROGER CO.

By: s/David A. Norris Of Counsel

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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

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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. Lumainis James M. Garner John T. Balhoff, II SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC 909 Poydras Street, 28th Floor New Orleans, LA 70112 Email: rluminais@shergarner.com 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 9

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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 21st day of November 2013.

s/ David A. Norris David A. Norris

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