344 replybriefinsupportofmotiontoexcludejohnrkrewson e&a

Case: 1:11-cv-00103-GHD-DAS Doc #: 344 Filed: 11/21/13 1 of 9 PageID #: 6681

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION KMART CORPORATION,

PLAINTIFF

VS.

CIV. ACT. NO. 1:11CV103-GHD-DAS

THE KROGER CO., et al

DEFENDANTS

DEFENDANT E&A SOUTHEAST LIMITED PARTNERSHIP’S REPLY IN SUPPORT OF ITS MOTION TO EXCLUDE THE OPINIONS OF JOHN R. KREWSON

COMES NOW, Defendant E&A Southeast Limited Partnership (“E&A”), by and through its attorneys, and respectfully submits this reply in support of its motion to exclude the opinions of Plaintiff’s expert John Krewson.

As set forth in E&A motion’s to exclude the opinions of John R. Krewson [Doc. 265] and the memorandum in support thereof [Doc. 266], the opinions of John R. Krewson should be excluded because Krewson’s data is admittedly flawed and his opinions rely upon the flawed data, because he failed to properly model the physical conditions surrounding the flood, because he failed to model the actual flood, because he relied upon assumptions and speculation, and because he failed to take into account alternative causes of the flooding of the Kmart store.

In its omnibus response, Plaintiff sets forth numerous arguments which lack merit and misconstrue the facts in evidence. As to the issues raised by Defendant E&A’s motion, Plaintiff asserts that Mr. Krewson has corrected his errors, that Defendant bears the burden of proving comparative negligence, that including all of the physical features in Mr. Krewson’s modeling would have increased the water level of the flood, that the affidavit of Jamie Monohan is 1

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unreliable, and that Mr. Krewson’s opinions are not founded on assumptions and speculation.

Defendant E&A will only address the issues that warrant clarification in this reply.

Argument 1. Mr. Krewson’s opinions are unreliable because the data he relies upon is flawed.

A large portion of Plaintiff’s omnibus response to Defendants’ motions to exclude the testimony of John R. Krewson relies upon the opinions set forth in Krewson’s Amended Report, dated October 11, 2013. Plaintiff states “Mr. Krewson corrected the flow rates used in his original report so his opinions are not unreliable.” Doc. 321 at 11. This statement is incorrect.

Mr. Krewson’s corrections have not been admitted in this case. This Court entered an order that it would consider an amendment of the mathematical errors only within Mr. Krewson’s report.

Doc. 243. As such, the only report properly before the Court is Krewson’s original report which relies upon flawed data.

Additionally, Plaintiff’s reliance on Wal-Mart Stores, Inc. v. Qore, Inc., 2009 U.S. Dist.

LEXIS 6145 (N.D. Miss. 2009) is misguided. In Qore, it was undisputed that even though Plaintiff’s expert made a mistake which was later corrected, this error was unimportant. Id. at *10. Even the defendant in Qore admitted the error was unimportant. Id. Plaintiff cannot concede that the errors made by Mr. Krewson are unimportant. In fact, Plaintiff’s Memorandum in Support of Motion for Leave to File Amended Report of John R. Krewson clearly states that the mistake made by Mr. Krewson “affected the conclusions in his report.” Doc. 177 at 1. Thus, the reasoning by the Court in Qore regarding “minor errors” made by an expert does not address the fatal flaw made by Plaintiff’s expert in this case. 1

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It must also be noted that Plaintiff relies on Qore without knowledge of how the expert’s error came to light and without the timeframe of the correction of this error. These issues are highly pertinent in regards to Defendants’ position that amendment of Mr. Krewson’s report should be denied.

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Faced with the pending motion deadline in this case, Defendant E&A must rely solely upon the original report of Mr. Krewson for the basis of the motion to exclude his testimony.

Consequently, Mr. Krewson’s conclusion 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” is unreliable. See Doc. 321 at 5.

2. Krewson’s failure to model all of the physical features of the floodway and the actual flooding goes to his methodology not a theory of comparative negligence.

Plaintiff is misguided in its assertion that Defendants are attempting to prove comparative negligence by utilizing Krewson’s HEC-RAS modeling. This is not the case.

Defendant E&A has issue with the modeling because it fails to accurately depict the circumstances surrounding the flood. Mr. Krewson did not comply with standard engineering protocol when “cherry-picking” what to include in his HEC-RAS model. Doc. 265-8. (“All physical features known to be in place at the time of the flood, which can be represented in model geometry, should have been included in the HEC-RAS models… The reliable engineering standard for hydraulic modeling requires all physical features that may have influenced the conveyance of the floodwaters to be included in the model.”).

Plaintiff’s omnibus response lacks any factual or evidentiary bases supporting the manner in which Mr. Krewson performed his HEC-RAS modeling. “Daubert directs that the district court determine admissibility under Rule 702 by following the directions provided in Federal Rule of Evidence 104(a). Daubert, 509 U.S. at 592, 113 S. Ct. 2786. Rule 104(a) requires the trial judge to conduct preliminary fact-finding and make a ‘preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.’” Reed v. Flores, 2010 U.S. Dist. LEXIS 128093 (N.D. Miss. Dec. 3, 2010) at *6, citing Daubert at 592-93, 113 S. Ct. 3

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2786. Plaintiff has yet to provide sufficient support for the reasoning behind Mr. Krewson’s failure to accurately model the physical features of the area surrounding the Kmart.

Also concerning is Plaintiff’s assertion that “[i]f Mr. Krewson were to add other physical features, like nearby buildings, then the rise of the water level or the displacement of water at Kmart’s Corinth store in the modeling would be greater, not less as Defendants’ erroneously infer as part of their argument. See Kmart’s Omnibus Response, Exhibit 1, Declaration of John R. Krewson ¶22.” Doc. 321 at 16. This statement is unfounded since it is impossible to know what the result would be because such modeling has not been performed. In fact, Mr. Krewson’s affidavit clearly states that the result is unknown because the modeling has not been done.

Not only did Krewson not model other physical features present in the floodway, but he also failed to model the actual flood. These omissions, combined with Krewson’s testimony that he could not say that the Kmart store would have flooded regardless of the present of the Kroger store, exemplify Krewson’s failure to rule out alternative causes. “The inadequate treatment of other potential causes necessarily undermines the reliability of an expert’s opinions. Green v.

La. Dep’t of Pub. Safety & Corr., 2010 U.S. Dist. LEXIS 39182 at *15, citing Brown v. ParkerHannifin Corp., 919 F.2d 308, 311-12 (5th Cir. 1990). Thus, Plaintiff’s argument that Defendants bear the burden of proving comparative negligence is misplaced because it is clear that Krewson failed to address other potential causes of the flooding which renders his opinions unreliable.

3. Jamie Monohan’s affidavit is appropriate.

This Court should give weight to the affidavit of Jamie Monohan. Mr. Monohan is a licensed professional engineer, and he is the only certified floodplain manager named as an expert in this matter. Doc. 265-8. Moreover, Mr. Monohan’s expert designation and other

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affidavits in this case present sufficient information to qualify him as a witness or support the opinions contained in his affidavit. See Jackson v. United States Kids Golf, LLC, 2009 U.S. Dist.

LEXIS 17147 at *7 (E.D. Tex.) (holding that expert’s designation could encompass opinions included in expert’s affidavit).

In fact, the testimony that Plaintiff seeks to exclude is akin to the testimony allowed by the district court in United States v. Izydore, 167 F. 3d 213 (5th Cir. 1999). In Izydore, appellant’s argued that the bankruptcy trustee’s statement that the money “was not legally taken in my opinion” should have been excluded. However, the trial court disagreed. In upholding the trial court’s ruling, the Fifth Circuit was “not at all convinced that the phrase ‘it was not legally taken’ is a legal conclusion regarding the very specific issue of whether the appellants are guilty of conspiracy, wire fraud and bankruptcy.” Id. at 218. In fact, the court noted that the statement “merely explains the circumstances surrounding her attempt to recover the missing funds, and does not reflect on the criminal guilt or innocence of the appellants.”

Plaintiff’s assertion that Mr. Monohan usurps this Court’s role by allegedly instructing this Court “as to the reliability of Mr. Krewson’s report” is misleading. Doc. 321 at 22. The “reliability” as discussed by Mr. Monohan is in conjunction with his assessment from “a reliable engineering standard.” Doc. 265-8. His testimony does not reach a legal conclusion and for these reasons should not be excluded or limited.

4. Mr. Krewson’s opinions are founded on assumptions and speculation and are contrary to law.

Despite this Court’s instruction that “Plaintiff is not entitled to offer evidence to prove the allegations concerning the issuance of the LOMR”, Plaintiff continues to argue that there are “twisted facts” surrounding the FIRMs, construction plans and issuance of the LOMR. Doc. 208

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at 7. Additionally, Kmart continues to rely on Krewson’s opinions that the Kroger store is located in the floodway.

FEMA removed the Kroger store from the floodway with the issuance of the LOMR [Doc 267-4] and revalidated the LOMR in conjunction with issuance of new flood maps in September of 2010 [Doc 267-14]. See Guillory v. Domtar Indust. Inc., 95 F.3d 1320, 1331 (5th Cir. 1996) (“Certainly nothing in Rule 703 requires a court to admit an opinion based on facts that are indisputably wrong. Even if Rule 703 will not require a court to admit an opinion based on facts that are indisputably wrong, general principles of relevance will. In other words, an opinion based totally on incorrect facts will not speak to the case at hand and hence will be irrelevant. In any event such an opinion will not advance the express goal of ‘assisting the trier of fact’ under Rule 702.”). As such, Krewson’s opinion regarding Kroger’s presence in a floodway should be excluded.

Plaintiff’s reliance on David Huwe’s alleged statement to Mr. Krewson is impermissible because those statements constitute hearsay that is not “the sort reasonably relied upon in the experts’ field.” See Factory Mutual Insurance Co. v. Alon USA L.P., 705 F.3d 518, 523 (5th Cir. 2013), citing Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 387 F.Supp.2d 794, 808 (N.D. Ill. 2005) (“Rule 703 ‘was not intended to abolish the hearsay rule and to allow a witness, under the guise of giving expert testimony, to in effect become the mouthpiece of the witnesses on whose statements or opinions the expert purports to base his opinion.”). As such, this evidence is inadmissible to refute E&A’s motion to exclude Mr. Krewson.

Additionally, Plaintiff asserts that it was the only party to hire a land surveyor, Scott Engineering, to determine the elevation of the site. However, the very base floor elevation certification submitted in conjunction with the LOMR application was prepared by Scott

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Engineering. See Doc 267-8. Pursuant to the elevation certificate, the Kroger was above the 100 year flood level.

CONCLUSION Because Krewson’s data is admittedly flawed and his opinions rely upon the flawed data, because he failed to properly model the actual conditions, because he relied upon assumptions and speculation, and because he failed to take into account alternative causes of the flooding of the Kmart store, Krewson’s expert opinions in this matter should be excluded.

Date: November 21, 2013

Respectfully submitted, E&A SOUTHEAST LIMITED PARTNERSHIP BY: /s/ Mary Clift Abdalla

_

MARY CLIFT ABDALLA (Miss. Bar No. 102734) WALTER GARNER WATKINS, III (Miss. Bar No. 100314) WALTER GARNER WATKINS, JR. (Miss. Bar No. 6988) Forman Perry Watkins Krutz & Tardy LLP 200 South Lamar Street, Suite 100 Jackson, MS 39201 Telephone: (601) 973-5967

CERTIFICATE OF SERVICE I, the undersigned Mary Clift Abdalla, one of the attorneys for E & A, hereby certify that I have this day served electroincially using the ECF system, a true and correct copy of the foregoing document to the following:

Ryan O. Lumainis James M. Garner 7

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John T. Balhoff, II SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC 909 Poydras Street, 28th Floor New Orleans, LA 70112 Email: rluminais@shergarner.com Edley H. Jones III David A. Norris Stephen F. Schelver McGLINCHEY STAFFORD, PLLC City Center South, Suite 1100 200 South Lamar Street (Zip - 39201) Post Office Drawer 22949 Jackson, Mississippi 39225-2949 Telephone: (769) 524-2300 Facsimile: (769) 524-2333 Email: ejones@mcglinchey.com; dnorris@mcglinchey.com sschelver@mcglinchey.com Gerald Haggart Jacks JACKS, ADAMS & NORQUIST, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: gjacks@jacksadamsnorquist.com Jamie Ferguson Jacks JACKS, ADAMS & NORQUIST, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: jjacks@jacksadamsnorquist.com 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 8

Case: 1:11-cv-00103-GHD-DAS Doc #: 344 Filed: 11/21/13 9 of 9 PageID #: 6689

Oxford, MS 38655 Email: wbyars@danielcoker.com Linda F. Cooper WISE CARTER CHILD & CARAWAY, P.A. P.O. Box 651 Jackson, MS 39205-0651

THIS, the 21st day of November 2013. /s/Mary Clift Abdalla Mary Clift Abdalla

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