349 motiontoamendoralterjudgment kmartcombine by Milton Sandy

Case: 1:11-cv-00103-GHD-DAS Doc #: 349 Filed: 01/15/14 1 of 3 PageID #: 6719

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 MOTION TO AMEND OR ALTER JUDGMENT Plaintiff, Kmart Corporation, submits this motion to amend or alter this Court’s December 18, 2013 Judgment denying Kmart’s motions for leave to file the amended reports of its hydrological engineering expert, John R. Krewson. A request to alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e) may be granted under the following circumstances: (1) to correct manifest errors of law or fact upon which judgment is based; (2) the availability of new evidence; (3) the need to prevent manifest injustice; or (4) an intervening change in controlling law.1 Here, Kmart asks this Court to reconsider its Judgment and alter or amend the Judgment to correct manifest errors of fact upon which the Judgment is based and to prevent the manifest injustice that will occur if Kmart is not permitted to present Mr. Krewson’s Amended Report to the jury. In support of its Motion, Kmart submits the following exhibits: •

Exhibit “A” - Excerpts to Deposition of John R. Krewson;

•

Exhibit “B” - Declaration of John R. Krewson;

•

Exhibit “C” - John R. Krewson’s Amended Flooding Evaluation, dated July 23,

See Shelter Ins. Co. v. Mercedes Benz, USA, 2006 WL 1601770, *1 (N.D. Miss. June 8, 2006) (citing In re Self, 172 F. Supp. 2d 813, 816 (W.D. La. 2001)).

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2013; •

Exhibit “D” - John R. Krewson’s second Amended Flooding Evaluation, dated October 11, 2013;

•

Exhibit “E” - John R. Krewson’s Initial Flooding Evaluation, dated September 20, 2012; and

•

Exhibit “F” - James N. Monohan’s Expert Review and Report on John R. Krewson’s Flooding Evaluation (dated September 20, 2012) and Deposition (dated May 22, 2013).

Accordingly, and for the reasons set forth in the Memorandum in Support of Motion to Amend or Alter Judgment, Kmart respectfully requests that this Court grant its motion and alter or amend the December 18, 2013 Judgment.

This the 15th day of January, 2014.

/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 15th day of January, 2014.

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

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EXHIBIT

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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 DECLARATION OF JOHN R. KREWSON STATE OF GEORGIA COUNTY OF COBB In accordance with 28 U.S.C. § 1746, I, John R. Krewson, state the following: 1.

My name is John R. Krewson.

I obtained a Bachelor’s of Science degree in Civil Engineering from the University of Tennessee at Knoxville in 1971.

I am a registered professional engineer with thirty-five years of experience in the public and private sector in planning, project management, engineering design, and loss evaluation.

I have prepared the designs and provided construction management for over one thousand engineering projects, including comprehensive high schools, middle and elementary schools, hospital additions, churches, multifamily and single family residential developments, and commercial and industrial projects.

I am licensed as a professional engineer in the States of Georgia (PE# 10228) and Florida (PE#68675).

EXHIBIT

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I have civil engineering design and construction experience in grading, storm drainage, detention and hydrology, street and highways, parking lots, sanitary sewers, water systems, dam and reservoir designs, and erosion control.

I have structural design and construction experience utilizing steel, concrete, and wood for both single and multi-level structures, including pre-engineered buildings, foundations, slabs, and retaining walls.

I have extensive experience with hydrology related software and programs, including AutoCad Land Desk Top, AutoCAD Civil 3D, and Hydraflow engineering design software; U.S. Army Corps of Engineers HEC-1, HEC-2, HEC-RAS, Check-RAS software; and RISA3D structural design software.

I am also experienced in the fields of constructions and land surveying.

10.

I have been retained by Kmart Corporation to act as a expert witness in this case as to the cause and/or contributing factors of the flood and/or water damage to the Kmart Store #4883 located at 118 Highway 72 West, Corinth, Mississippi.

11.

My original expert report in this matter was submitted to counsel for Kmart on or around September 20, 2012. My understanding is that it was then submitted to counsel for the defendants on or around October 4, 2012.

12.

Additionally, on April 2013, I submitted the HEC-RAS data that I used to prepare my original report to Kmartâ&#x20AC;&#x2122;s counsel in responding to a written discovery request from one of the defendants.

13.

On May 22, 2013, I was deposed by counsel for the defendants in Jackson, Mississippi. 2

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14.

During that deposition, I discovered for the first time that my report and findings contained a mistake that affected the finding and conclusions contained within my original report dated September 20, 2012.

15.

Specifically, my HEC-RAS run data, which showed the impact of the Kroger building on the flooding at the Kmart building, incorrectly compared two peak discharges. In my first and third HEC-RAS run data, I incorrectly used the peak discharge of 3,702 cubic feet per second (cfs). This figure represents the peak discharge of Elam Creek for the 100-year flood event as contained in the Federal Emergency Management Agency’s 2009 Flood Insurance Study for Alcorn County. In my second HEC-RAS run data, I used the correct peak discharge figure of 5,202 cfs, which represents the peak discharge at the intersection of Elam Creek and Turner Creek for the 100-year flood event according to FEMA’s 2009 Flood Insurance Study for Alcorn County.

16.

This led me to mistakenly originally conclude that the presence of the Kroger building caused a one foot rise in the flooding at Kmart’s store on May 2, 2010.

17.

In re-running the models for my latest Amended Flooding Evaluation dated October 11, 2013, I corrected the flow-rate of Elam Creek from 3,702 cubic feet per second to 5,202 cubic feet per second, which is the correct flow-rate to use in the modeling because it accounts for the convergence between Elam Creek and Turner Creek.

18.

Additionally, in my latest Amended Flooding Evaluation dated October 11, 2013, the Manning’s N values contained in my original Flooding Evaluation dated September 20, 2012 were corrected to reflect the conditions of the channel of Elam Creek and 3

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the flooding depths occurring at the time of the loss to Kmartâ&#x20AC;&#x2122;s store in Corinth, Mississippi on May 2, 2010. 19.

When I prepared the HEC-RAS models for my original expert report, I prepared different flow files. In one flow file, I used 3,702 cfs as the flow rate. However, after independently checking the validity of the flow rate, I discovered that it was incorrect because the subject drainage area was larger than what was represented by the 3,702 cfs flow rate. I kept the separate steady flow spreadsheet containing the 3,702 cfs data in the overall model for use in the event the flow rate in Elam Creek, independent of the additional flow of Turner Creek, proved useful at some point in evaluating the site. It is not unusual to maintain a number of different values and configurations in the HEC-RAS models. The ability to model and compare alternate flow and geometric regimes is one of the strengths of the HEC-RAS program.

20.

After discovering that the 3,702 flow rate value was incorrect, I created another flow file using 5,202 cfs as the flow rate value. I performed independent calculations to confirm that 5,202 cfs flow value was the correct value to represent the site.

21.

When I ran the models, however, I inadvertently failed to change the 3,702 cfs flow rate value for each of the three runs to the 5,202 cfs flow rate value. The use of inconsistent flow rates in the initial runs was in error and was not a conscious decision on my part.

22.

When I prepared the HEC-RAS models using the incorrect 3,702 cfs flow rate value, I used a Manning N value of 0.025 to represent a well-maintained Elam Creek Channel and a Manning N value of 0.04 to represent an overgrown Elam Creek 4

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channel. These Manning N values were selected based on the incorrect 3,702 cfs flow rate value. With the 3,702 flow rate value, these Manning N values allowed me to calibrate the model and provided a flooding depth comparable to the 100-year flood in the Federal Emergency Management’s Agency 2009 Flood Insurance Study. I selected the Manning N values to be able to compare the effect of an overgrown Elam Creek channel and the effect of a well-maintained Elam Creek channel on the flooding at Kmart’s store. 23.

When I corrected the flow rate values to 5,202 cfs for the amended report, the Manning N values that were used for the initial report ceased to be representative because they were developed to correlate with the lower flow rate of 3,702 cfs. Thus, I had to re-calibrate the model by adjusting the Manning N values based on the higher flow rate value of 5,202 cfs. I used a Manning N value of 0.04 to represent a wellmaintained Elam Creek channel and o Manning N value of 0.14 to represent an overgrown Elam Creek channel. These Manning N values allowed me to calibrate the model and provided a flooding depth comparable to the 100-year flood in the Federal Emergency Management’s Agency 2009 Flood Insurance Study based on the higher flow rate value.

24.

In my latest Amended Flooding Evaluation dated October 11, 2013, I made the following conclusions: (a)

The draining basin upstream from the Kmart site received rainfall that appears to approximate the 1-percent annual chance rainfall event (100 year storm). Using the FEMA 1-percent annual chance (100 year) flow data, and 5

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using a model with an overgrown channel similar to that existing at the time of the flood, flooding in Elam Creek exceeds the FEMA 1-percent annual chance (100 year flood) elevation and approaches the actual depths of flooding at the building reported. The presence of the Kroger store increased the impact and depth of flooding during the flood event of May 2, 2010 and caused damage to Kmart. (b)

The presence of the Kroger in the FEMA floodway reduced the flooding width resulting in increased velocities as anticipated by FEMA, increasing the depth of flooding and impact on the Kmart store in Corinth, Mississippi.

(c)

The lack of maintenance of the creek channel, coupled with obstructions and debris in the channel increased the depth of flooding and caused increased damage to the Kmart during the flood event of May 2, 2010.

(d)

Filling in the low area behind the Kmart and Kroger stores reduced the flood storage volume and likely increased the depth of flooding damage to Kmart.

(e)

Despite the location of the building in a large and documented floodplain and floodway, 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.

(f)

In my opinion, had the creek channel been maintained, had building construction in FEMAâ&#x20AC;&#x2122;s regulatory floodway been restricted, had the area behind the Kroger and Kmart stores not been filled, and had the building been protected by waterpoofing, the Kmart store would not have flooded, or had 6

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Amended Flooding Evaluation

Kmart # 4883 118 Highway 72 West Corinth, Mississippi 38834

Prepared For:

0112

Mr. John T. Balhoff, II Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112

EFI Global Job No: 98340-08794

July 23, 2013

Prepared By: EFI Global, Inc. 3039 Premiere Parkway Suite 700 Duluth, GA 30097

EXHIBIT

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3039 Premiere Parkway Suite 700 Duluth, GA 30097 Tel: 770-925-9600 Tel: 800-245-9601 Fax: 770-925-9649 www.efiglobal.com

July 23, 2013 Mr. John T. Balhoff, II Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112

Re:

Amended Flooding Evaluation Kmart # 4883 118 Highway 72 West Corinth, Mississippi 38834 EFI Global JN: 98340-08794

Dear Mr. Balhoff: Please find our amended report related to the flooding of Kmart store # 4883 at 118 Highway 72 West, in Corinth, Mississippi. This report re-calculates the HEC-RAS results shown in the original report of September 20, 2012. The HEC-RAS results used in the September 20, 2012 report were based on an inadvertent flow data discrepancy in the HEC-RAS model. The revised HEC-RAS model herein is expanded to review additional flooding scenarios at the site. This amendment also discusses and utilizes information concerning the Kmart Store # 4883 site that was not available for review at the time the September 20, 2012 report was submitted. The additional information includes the original construction plans for the site, debris at the railroad bridge, and the LOMR, LOMA, and Elevation Certificates approved at the site. For the purposes of this report, the front of Kmart store # 4883, hereinafter also referred to as Kmart, will be the side of the store facing the intersection of Highway 72 West and South Fulton Drive. Directions right and left will be based on a viewer facing Kmart from this intersection. Using this convention, the right side of the store faces South Fulton Drive, the left side of the store faces Highway 72 West, and the rear of the store faces State Street.

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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013

Background: The Kmart store is a large retail store located in a shopping center at the corner of Highway 72 West and South Fulton Drive in Corinth, Mississippi (Figure 1). The building housing the Kmart store has slab on grade, open plan, warehouse type construction with at-grade parking abutting the store on the front. Paved driveways are on the left side and rear of the store. The building housing Kmart also houses a Kroger Grocery store as a continuation of the building to the right of the Kmart. Both the Kmart and the Kroger stores were constructed in 1992 as a part of the overall development of the retail center. The two stores have the same floor elevation and share parking. The overall Kmart-Kroger retail center is a 16.29 acre tract located in a low area adjacent to Elam Creek, a large creek to the right of South Fulton Drive flowing north to south towards Highway 72 West. Parking for the Kmart and Kroger stores is at grade. Storm water runoff from the parking lot in front of the stores is collected in drop inlets and carried across South Fulton Drive in an underground pipe system to an existing detention facility located to the right of the site between South Fulton Drive and Elam Creek. Grades on the site are flat. Roof drainage for the Kmart and Kroger stores is provided by gutters and downspouts on the rear of the store buildings. The downspouts discharge onto splash blocks at grade with the asphalt pavements behind the stores. Runoff from pavement behind the stores drains away from the stores across the paving to the rear curb. The runoff is collected and discharged by several flumes through the curb into an existing ditch draining left to right parallel to the curb behind the buildings. Flow in the ditch is collected, along with runoff from the large grassed area behind the site, into a headwall for a 60 inch outfall storm drain. The 60 inch headwall is located approximately between the Kroger and the Kmart stores, behind the rear curb of the parking lot behind the stores. The 60 inch outfall pipe runs from the headwall back towards the building to a drop inlet in the pavement behind the Kroger store. From this inlet, the pipe runs to the right behind the Kroger store through a series of drop inlets and then across South Fulton Drive. The location of the outfall headwall for the 60 inch pipe once it crosses South Fulton Drive could not be determined. Based on the location of the existing buildings to the right of South Fulton Drive and an inspection of Elam Creek in the area, it is believed the pipe turns and runs parallel to South Fulton Drive toward Highway 72 West and eventually discharges into the existing detention facility noted above.

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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013

Flooding Event: According to weather records on WeatherWarehouse.com, rain began falling in the Corinth area during the late evening of May 1, and the early morning of May 2, 2010. By 5:00 a.m., the records for Corinth show that 5.68 inches of rain had fallen. As the morning progressed, water began rising rapidly around the Kmart. According to the store manager, Mr. Matt Hausmann, water was building up and flowing along the rear of the building, putting stress on the rear doors of the store. Eventually, landscape timbers stored on site struck the doors with enough force to break open the doors, lodge in the opening, and allow water to flood into the store. The quantity of water overwhelmed the staffâ&#x20AC;&#x2122;s ability to control it. According to Mr. Hausmann, the water in the parking lot around the building was measured at a depth of 22 inches by City of Corinth employees. Photographs taken in the Kmart store show a water depth of approximately 1.5 feet. Mr. Hausmann stated that there was a similar depth of water in both the Kmart and the Kroger store. The water caused considerable damage to the buildings and the inventory of the both the Kmart and Kroger stores. The flooding in 2010 is very similar to flooding events that occurred on October 13, 2001 and November 18, 2001 as outlined in a report prepared by the engineering firm of Reaves Sweeney Marcom of Memphis, Tenn. Weather Data: The records for the area found on WeatherWarehouse.com show a rainfall event occurring overnight and during the morning of May 2, 2010 for the northern Mississippi and western Tennessee areas. Although hourly records for the area were not available, a review of the daily recording times and the pattern of rainfall distribution on area weather stations show that between 6 and 13 inches of rainfall fell during the period prior to 8:00 a.m., with the higher rainfall events occurring north of Corinth with Corinth being approximately on the southern extent of the heavy rainfall. Weather stations 10 or more miles south of Corinth and the Kmart site show relatively light rainfall accumulation, with the amount of rainfall recorded increasing with distance north of Corinth. Because Elam Creek, the creek that flooded the site, heads up approximately 6 miles north of the site and flows south to the site, the pattern of increased rainfall amounts north of the site increased the flooding impact on the Kmart site. Based on NOAA Technical Paper 40 for the Corinth area, the 24 hour 100 year rainfall event is 7.6 inches. Based on the weather records, it appears that the storm of May 2, 2010 may have approached the 100 year rainfall amount.

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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013

FEMA Flooding Data: The current FEMA Firm Panel for the site, panel 28003C0067 (Figure 3), shows that the majority of the site area, including all of the Kmart and the Kroger building, is located in the designated flood limits of Elam Creek. Elam Creek is large tributary creek having an upstream drainage area of over 6 square miles draining to the site of the Kmart building. At the store site, the creek has a large, well developed flood zone designated on the FIRM panel as an AE zone. AE zones are studied zones having established base flood elevations. The Firm Panel also shows an area along both banks of the creek that is designated as the regulatory floodway for the creek. According to the FIRM panel, approximately one half of the Kroger store is located in both the floodplain and also in the area FEMA has designated as being the regulatory floodway. The Kmart store is located in the floodplain only. According to a Letter of Map Revision issued for the site in 2005, the 100 year flood elevation for the building is 432.4. An Elevation Certificate for the site prepared on November 11, 2001 places the finished floor elevation of the building at 433.0, 0.6 feet above the elevation of the FEMA 100 year flood elevation. Based on an as-built survey prepared for the site as a part of this report, the exterior grades along the perimeter of the building vary from 431.8 and 432.2, meaning the lowest adjacent grades around the building are below the flood elevation. A review of the FEMA historic FIRM records determined that the flood elevation of Elam Creek is unchanged on the current FIRM from the 100 year flood elevations at the time of construction of the building. Typically, standard design and permitting practice require building floor elevations in flood prone areas, especially in designated flood areas to be at least 3.0 feet above the 100 year flooding elevation. In the case of the Kmart and the Kroger, this would place the floor elevations at 435.4, 2.4 feet higher than the actual floor elevation. Had the building been constructed with a floor elevation of 435.4, flooding would not have occurred during the storm of 2010. The review of the elevation of the building relative to the flood elevation would typically have been the responsibility of the City of Corinth building authorities. The location of the Kroger in the floodway is a concern. As noted, approximately one half of the Kroger was built in the floodway for Elam Creek. A review of aerial photography and the current FIRM for the site shows that a number of other buildings were also built in the floodway. According to records I have examined, the floodway shown on current FIRM is unchanged from the floodway shown on the prior FIRM panel, prior to the construction of the building. FEMAâ&#x20AC;&#x2122;s 2009 Flood Insurance Study for Alcorn County and Incorporated Areas, states:

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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013

“Encroachment on floodplains, such as structures and fill, reduces the flood carrying capacity, increases the flood heights and velocities, and increases flood hazards in areas beyond the encroachment itself. One aspect of floodplain management involves balancing the economic gain from floodplain development against the resulting increase in flood hazard. For purposes of the NFIP, a floodway is used as a tool to assist local communities in this aspect of floodplain management. Under this concept, the area of the 1-percent-annual-chance floodplain is divided into a floodway and a floodway fringe. The floodway is the channel of a stream plus any adjacent floodplain areas that must be kept free of encroachment so that the 1percent-annual-chance flood can be carried without substantial increases in flood heights. Minimum Federal standards limit such increases to 1.0 foot, provided that hazardous velocities are not produced. The floodways in this study are presented to local agencies as minimum standards that can be adopted directly or can be used as a basis for additional floodway studies.” Simply put, floodwaters must have an open, unobstructed flowing pathway along a creek. If earth fill or buildings or other structures are built in the flow pathway floodwaters rise and move faster and cause greater damage. When FEMA prepares their maps, they calculate what a reasonable flow pathway should be and show it as the “Floodway” on their maps. It is the responsibility of the cities and counties that issue building permits to enforce the restriction and make sure that the floodway is not blocked. The difference between the areas on the FEMA maps called the “Floodway” and the areas called the “Floodplain” is that nothing can be built in the “Floodway”, while careful construction is allowed in the “Floodplain” areas. The Kmart store is built entirely in the “Floodplain.” Approximately one half of the Kroger store is built in the “Floodway”, obstructing the flow of floodwater down the creek. The construction of the Kroger and other structures in the known floodway of Elam Creek increases the flood heights and potential for flooding, as well as for increased velocities, both of the factors involved in the flooding of the Kmart store. It is not known what regularity review was in place at the time the Kroger and other buildings were constructed in the floodway, but as the above quote from the Flood Insurance Study states, it is the responsibility of the local governing authority to control and prevent construction in the floodway. According to the August 30, 2010 volume of the “Federal Register”, Corinth, Mississippi, and Alcorn County, Mississippi were among the jurisdictions subject to suspension of community eligibility under the National Flood Insurance Program (NFIP) for non-compliance with the floodplain management requirements of the program. A review of the “Existing Conditions Plan” sheet C-2 dated 03/09/1992 from the original construction plans for the site prepared by Prime Engineering found the

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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013

elevation and location of the floodplain, and the location of the floodway to be substantially different from the floodplain and floodway shown on the FEMA FIRM panel for the area at the time. The floodway on the plans is shown south of Fulton Drive. The floodplain elevation on the plan sheet is approximately 430.8 which is 1.6 feet below the FEMA FIRM flood elevation shown on 1981 FIRM in force at the time. The derivation of the floodplain and floodway data shown on the plans is unknown. Although the Kroger and other structures along Elam Creek were constructed in the floodway without restriction, a review of FEMA’s records found that a “Letter of Map Revision” or LOMR was issued by FEMA in November 18, 2005, removing the Kroger property from the floodway due to “Inadvertent Inclusion in the Floodway 1”. The records do not indicate how the LOMR originated, or what studies, review or public notice was given prior to issuance. FEMA regulations require a flood study be done to determine the impact of the encroachment on flood elevations and velocities. The studies are submitted to FEMA for review and approval. No record was found of such a study. Issuance also requires that other affected property owners along the creek be notified, and public notice be made. No record of this was found. Once the studies and public notice are complete, the local governing and review agency responsible for flood management and oversight makes a final review of the LOMR and recommends approval. No record of this was found. Prior to the issuance of the FEMA’s Letter of Map Revision (LOMR) in 2005, other prior efforts had been made regarding the location of the buildings in the floodplain and floodway. Also in 2005, a Letter of Map Amendment (LOMA) was issued for the site. An Elevation Certificate was issued by FEMA in 2001. Note: The issuance of the LOMR, LOMA, and Elevation Certificate would have no impact on the physical presence of the buildings in the floodway or floodplain, or on the potential for flooding in any given flood event. These instruments would serve to reduce the cost of flood insurance for the buildings. The buildings are still shown in the floodplain and the floodway on the 2010 FEMA FIRM map for the site. Along with the placement of the Kroger and other structures in the regulatory floodway, several other conditions that would increase the flood elevations on the site were noted along the creek and in the floodplain at the time of the initial inspection: 

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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013

record of maintenance and that the debris at the railroad bridge had been an ongoing problem for some time prior to the flood event. A picture of the flooded railroad bridge not available at the time of our initial report shows the bridge to be completely underwater. In the picture, there is no debris field floating upstream of the bridge. For the debris found behind the bridge at the time of our inspection to have resulted from debris floating downstream during the storm, there would have be a considerable amount of floating debris trapped behind the bridge when the water level dropped. The lack of a floating debris field in the picture indicates that the debris found behind the bridge after the flood were present prior to the flooding. Since they did not rise and float off during the flood, they apparently were present for a long enough time to become embedded behind the bridge. Pictures taken during our initial investigation (Figure19 thru 21) show a debris field upstream of the ridge on the floor of the creek. It was noted during the field survey done in August, 2010, approximately 3 months after the initial inspection, that the debris field had been removed. It is not known who cleaned up the debris. Pictures taken April 28, 2011 by others show another, larger debris field upstream of the bridge. 

A bridge for an abandoned railroad spur crossing Elam Creek remains in place with narrowly spaced abutments obstructing the creek channel.



The creek channel was badly overgrown with vegetation and poorly maintained. Near the spur railroad bridge noted above, utility and sanitary sewer pipes crossing the channel were apparently abandoned in place, obstructing the channel.



The approximately 4.5 acre grassed field immediately behind the Kmart and Kroger building was originally a number of feet lower in elevation. According to Mr. Huwe with the City of Corinth, the city filled the area over time with excess earth material from various projects around the city. Evidence that dumping of excess fill was still underway was found at the time of the initial inspection of the area (Figure 10). Filling the area reduced the flood storage and flood protection for the Kmart and Kroger building.

The report on the 2001 flooding by Reaves Sweeney Marcom noted above discussed the Elam Creek channel blockage, overgrown channel, and the railroad crossing and utility line impacts on the flooding.

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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013

HEC-RAS Flood Studies: To determine the impact of the Kroger encroachment and general conditions of the flood hazard at the time of the May 2, 2010 flood, we prepared a preliminary HECRAS evaluation for the site using as-built survey data and the flows for the area listed in FEMAâ&#x20AC;&#x2122;s 2009 Flood Insurance Study. As noted there was a discrepancy in this preliminary initial report. Conflicting flow data was used in preparing the model. This conflict resulted in a conclusion in the report that placement of the Kroger store in the floodway caused a rise in the flood of 1.0 feet. The original study also compared the overgrown existing Elam creek channel with a theoretical well maintained channel and concluded that there would be a 2.0 foot drop in the water surface if the creek channel were well maintained. For this amendment, the HEC-RAS flow data was revised and the flow data discrepancy was corrected. A new HEC-RAS model was prepared. In this new model three profiles were run. The initial profile was for the site assuming the Kmart and Kroger building were never built and the grades were at the surveyed elevation at the exterior of the building. This profile was used as a benchmark model. A second profile was run based on an unobstructed floodway with a channel having only light brush and weeds. This profile produced 100 year flood elevations on the site comparable with those shown in the 2009 Flood Insurance Study, and on the FEMA FIRM panel. The second profile was run with the Kroger building only, the Kmart building alone, and the combined Kmart- Kroger building. The model of the second profile with only the Kroger building determined that a rise of 1.10 feet occurred relative to the benchmark, slightly higher than the rise predicted by FEMAâ&#x20AC;&#x2122;s floodway calculation. The model of the Kmart building found a rise of 1.0 feet relative to the benchmark. The model of the Kmart-Kroger building also found a rise of 0.9 relative to the benchmark. Although the above calculations appear to indicate that the addition of the Kroger building to the Kmart building had no impact on the Kmart building, a review of the flow and velocity data from the model found that the addition of the Kroger to the Kmart building reduced the overbank width of flow at the building by 209 feet and increased the average velocity of flow at the building by 20 percent. Prior to the addition of the Kroger building the Kmart building was essentially outside the active overbank flow of water. When the Kroger building was added, the overbank flow overlapped the combined building by 114 feet, increasing the exposure of the building to flowing water. Rapidly flowing water carrying debris along the back of the Kmart building that damaged the rear door was reported as the cause of the water intruding into the Kmart building on the date of loss.

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During the flooding of 2010, water levels above the FEMA 100 year flood level were reported in the building. To test the potential impact of the overgrown banks along Elam Creek channel, a third HEC-RAS profile was run based on channel properties for high flows and a poorly maintained channel found in the documentation for the HEC-RAS model. This model reported water levels at the building comparable to the water levels found at the building during the 2010 flood indicating water levels at the site could occur at the 100 year flow level. Given the impact of the other building obstructions located in the floodway and floodplain that are not included in the model, it appears that the actual flow at the site was likely less than the 100 year event. The results the high flow-poorly maintained condition was compared to the result from the second profile which assumed a moderately well maintained channel without obstruction. The comparison of the two models found that for the Kmart-Kroger building, the poorly maintained channel resulted in a 1.4 feet rise when compared to the depth at the site with a maintained channel. When the water level from the third profile was compared to the benchmark profile, the flow was 2.3 feet higher than the benchmark which is also in line with reported events. Conclusions: 1. The drainage basin upstream from the Kmart site received rainfall that appears to approximate the 1-percent-annual-chance rainfall event (100 year storm). Using the FEMA 1-percent-annual-chance (100 year) flow data, and using a model with an overgrown channel similar to that existing at the time of the flood, flooding in Elam Creek exceeds the FEMA 1-percent-annual-chance (100 year flood) elevation and approaches the actual depths of flooding at the building reported. The presence of the Kroger store as well as other buildings in the floodway increased the impact and depth of flooding during the flood event of May 2, 2010 and caused damage to Kmart. 2. The lack of maintenance of the creek channel, coupled with obstructions and debris in the channel increased the depth of flooding and caused increased damage to the Kmart during the flood event of May 2, 2010. 3. Filling in the low area behind the Kmart and Kroger stores reduced the flood storage volume and likely increased the depth of flooding damage to Kmart. 4. Despite the location of the building in a large and documented floodplain and floodway with a documented history of recent damaging past floods, 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.

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It is our belief that: had the creek channel been maintained, had building construction in FEMA’s regulatory floodway been restricted, had the area behind the Kroger and Kmart stores not been filled, and had the building been protected by waterproofing, the Kmart store would not have flooded, or had flooding occurred, it would have been occurred at such a depth that normal preventive actions by the store’s staff at the time of the event would have been able to protect the store from damage. Qualifications Our services have been performed using that degree of skill and care ordinarily exercised under similar conditions by reputable members of EFI Global’s profession. If any additional information is encountered which relates to this evaluation, EFI Global reserves the right to review our conclusions and opinions accordingly. In some cases, additional studies may be warranted to fully evaluate concerns noted. Any verbal statements made before, during, or after the course of the investigation were made as a courtesy only and are not considered a part of this report. Closing EFI Global, Inc. appreciates the opportunity to provide consulting services to you in this matter. Please contact us should any questions arise concerning this report, or if we may be of further assistance. Sincerely, EFI Global, Inc.

John R. Krewson Engineering Consultant

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John R. Krewson, PE

FIGURE 1 - OVERALL SITE

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FIGURE 2 – CLOSE AERIAL VIEW OF SITE

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FIGURE 3 – FEMA FIRM PANEL OF THE SITE Panel No.2803C0067C Effective Date: Sept. 17, 2010

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FIGURE 4 FRONT VIEW OF KMART AND KROGER

FIGURE 5 LEFT SIDE OF THE KMART

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FIGURE 6 VIEW ALONG THE FRONT OF KMART LOOKING FROM THE LEFT SIDE

FIGURE 7 VIEW ALONG THE REAR OF KMART LOOKING FROM THE LEFT SIDE

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FIGURE 8 LEFT SIDE OF KMART LOOKING FROM THE REAR CORNER WITH TYPICAL DROP INLET IN FOREGROUND

FIGURE 9 TYPICAL DOWN DRAIN ON REAR OF BUILDING

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FIGURE 10 CURB CUT IN REAR PARKING CURB NEAR LEFT SIDE OF KMART WITH DITCH BEYOND

FIGURE 11 FLUME THROUGH CURB BEHIND KMART

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FIGURE 5 12 DITCH BEHIND KMART

FIGURE 13 GRASSED FIELD IN AREA THAT WAS FILLED IN BEHIND THE SITE WITH NEW FILL IN THE BACKGROUND

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FIGURE 14 INLET TO 60 INCH PIPE COLLECTING WATER FROM THE DITCH BEHIND THE SITE

FIGURE 15 VIEW OF THE FIELD BEIND THE SITE NEAR THE RIGHT CORNER OF KROGER

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FIGURE 16 PILE OF FILL MATERIAL IN THE FIELD BEHIND THE SITE WITH KMART AND KROGER IN THE BACKGROUND

FIGURE 17 RIGHT SIDE OF THE KROGER LOOKING BACK TOWARD HIGHWAY 72 WEST

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FIGURE 18 FLOODING DEBRIS IN THE FENCE ON THE RIGHT SIDE OF THE ROAD RUNNING BESIDE KROGER

FIGURE 19 LOOKING UPSTREAM AT DEBRIS FIELD AT RAILROAD BRIDGE SOUTHEAST OF THE SITE

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FIGURE 20 LOOKING DOWNSTREAM AT DEBRIS FIELD AT RAILROAD BRIDGE

FIGURE 21 DEBRIS FIELD AT RAILROAD BRIDGE

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FIGURE 5 22 ABANDONED UTILITY LINES OBSTRUCTING ELAM CREEK WITH SPUR RAILROAD BRIDGE OBSTRUCTION AND OVERGROWN CHANNEL

FIGURE 23 OVERGROWN AND UNMAINTAINED CREEK CHANNEL

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FIGURE 24 TREE AND OVERGROWN AND UNMAINTAINED CREEK CHANNEL AT BRIDGE

FIGURE 25 OVERGROWN SPUR RAILROAD BRIDGE WITH UTILITY OBSTRUCTIONS IN BACKGROUND

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Amended Flooding Evaluation

Kmart # 4883 118 Highway 72 West Corinth, Mississippi 38834

Prepared For:

0112

Mr. John T. Balhoff, II Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112

EFI Global Job No: 98340-08794

October 11, 2013

Prepared By: EFI Global, Inc. 3039 Premiere Parkway Suite 700 Duluth, GA 30097

EXHIBIT

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 2 of 24 PageID #: 6761

3039 Premiere Parkway Suite 700 Duluth, GA 30097 Tel: 770-925-9600 Tel: 800-245-9601 Fax: 770-925-9649 www.efiglobal.com

October 11, 2013 Mr. John T. Balhoff, II Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112

Re:

Amended Flooding Evaluation Kmart # 4883 118 Highway 72 West Corinth, Mississippi 38834 EFI Global JN: 98340-08794

Dear Mr. Balhoff: Please find our amended report related to the flooding of Kmart store # 4883 at 118 Highway 72 West, in Corinth, Mississippi. This report re-calculates the HEC-RAS results shown in the original report of September 20, 2012. The HEC-RAS results used in the September 20, 2012 report were based on an inadvertent flow data discrepancy in the HEC-RAS model. For the purposes of this report, the front of Kmart store # 4883, hereinafter also referred to as Kmart, will be the side of the store facing the intersection of Highway 72 West and South Fulton Drive. Directions right and left will be based on a viewer facing Kmart from this intersection. Using this convention, the right side of the store faces South Fulton Drive, the left side of the store faces Highway 72 West, and the rear of the store faces State Street. Background: The Kmart store is a large retail store located in a shopping center at the corner of Highway 72 West and South Fulton Drive in Corinth, Mississippi (Figure 1). The building housing the Kmart store has slab on grade, open plan, warehouse type construction with at-grade parking abutting the store on the front. Paved driveways

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are on the left side and rear of the store. The building housing Kmart also houses a Kroger Grocery store as a continuation of the building to the right of the Kmart. Both the Kmart and the Kroger stores were constructed in 1992 as a part of the overall development of the retail center. The two stores have the same floor elevation and share parking. The overall Kmart-Kroger retail center is a 16.29 acre tract located in a low area adjacent to Elam Creek, a large creek to the right of South Fulton Drive flowing north to south towards Highway 72 West. Parking for the Kmart and Kroger stores is at grade. Storm water runoff from the parking lot in front of the stores is collected in drop inlets and carried across South Fulton Drive in an underground pipe system to an existing detention facility located to the right of the site between South Fulton Drive and Elam Creek. Grades on the site are flat. Roof drainage for the Kmart and Kroger stores is provided by gutters and downspouts on the rear of the store buildings. The downspouts discharge onto splash blocks at grade with the asphalt pavements behind the stores. Runoff from pavement behind the stores drains away from the stores across the paving to the rear curb. The runoff is collected and discharged by several flumes through the curb into an existing ditch draining left to right parallel to the curb behind the buildings. Flow in the ditch is collected, along with runoff from the large grassed area behind the site, into a headwall for a 60 inch outfall storm drain. The 60 inch headwall is located approximately between the Kroger and the Kmart stores, behind the rear curb of the parking lot behind the stores. The 60 inch outfall pipe runs from the headwall back towards the building to a drop inlet in the pavement behind the Kroger store. From this inlet, the pipe runs to the right behind the Kroger store through a series of drop inlets and then across South Fulton Drive. The location of the outfall headwall for the 60 inch pipe once it crosses South Fulton Drive could not be determined. Based on the location of the existing buildings to the right of South Fulton Drive and an inspection of Elam Creek in the area, it is believed the pipe turns and runs parallel to South Fulton Drive toward Highway 72 West and eventually discharges into the existing detention facility noted above. Flooding Event: According to weather records on WeatherWarehouse.com, rain began falling in the Corinth area during the late evening of May 1, and the early morning of May 2, 2010. By 5:00 a.m., the records for Corinth show that 5.68 inches of rain had fallen. As the morning progressed, water began rising rapidly around the Kmart. According to the store manager, Mr. Matt Hausmann, water was building up and flowing along the rear of the building, putting stress on the rear doors of the store. Eventually, landscape timbers stored on site struck the doors with enough force to break open the doors,

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lodge in the opening, and allow water to flood into the store. The quantity of water overwhelmed the staffâ&#x20AC;&#x2122;s ability to control it. According to Mr. Hausmann, the water in the parking lot around the building was measured at a depth of 22 inches by City of Corinth employees. Mr. Hausmann stated that there was a similar depth of water in both the Kmart and the Kroger store. The water caused considerable damage to the buildings and the inventory of the both the Kmart and Kroger stores. Weather Data: The records for the area found on WeatherWarehouse.com show a rainfall event occurring overnight and during the morning of May 2, 2010 for the northern Mississippi and western Tennessee areas. Although hourly records for the area were not available, a review of the daily recording times and the pattern of rainfall distribution on area weather stations show that between 6 and 13 inches of rainfall fell during the period prior to 8:00 a.m., with the higher rainfall events occurring north of Corinth with Corinth being approximately on the southern extent of the heavy rainfall. Weather stations 10 or more miles south of Corinth and the Kmart site show relatively light rainfall accumulation, with the amount of rainfall recorded increasing with distance north of Corinth. Because Elam Creek, the creek that flooded the site, heads up approximately 6 miles north of the site and flows south to the site, the pattern of increased rainfall amounts north of the site increased the flooding impact on the Kmart site. Based on NOAA Technical Paper 40 for the Corinth area, the 24 hour 100 year rainfall event is 7.6 inches. Based on the weather records, it appears that the storm of May 2, 2010 may have approached the 100 year rainfall amount. FEMA Flooding Data: The current FEMA Firm Panel for the site, panel 28003C0067 (Figure 3), shows that the majority of the site area, including all of the Kmart and the Kroger building, is located in the designated flood limits of Elam Creek. Elam Creek is large tributary creek having an upstream drainage area of over 6 square miles draining to the site of the Kmart building. At the store site, the creek has a large, well developed flood zone designated on the FIRM panel as an AE zone. AE zones are studied zones having established base flood elevations. The Firm Panel also shows an area along both banks of the creek that is designated as the regulatory floodway for the creek. According to the FIRM panel, approximately one half of the Kroger store is located in both the floodplain and also in the area FEMA has designated as being the regulatory floodway. The Kmart store is located in the floodplain only. According to a Letter of Map Revision issued for the site in 2005, the 100 year flood elevation for the building is 432.4. An Elevation Certificate for the site prepared on

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November 11, 2001 places the finished floor elevation of the building at 433.0, 0.6 feet above the elevation of the FEMA 100 year flood elevation. Based on an as-built survey prepared for the site as a part of this report, the exterior grades along the perimeter of the building vary from 431.8 and 432.2, meaning the lowest adjacent grades around the building are below the flood elevation. A review of the FEMA historic FIRM records determined that the flood elevation of Elam Creek is unchanged on the current FIRM from the 100 year flood elevations at the time of construction of the building. Typically, standard design and permitting practice require building floor elevations in flood prone areas, especially in designated flood areas to be at least 3.0 feet above the 100 year flooding elevation. In the case of the Kmart and the Kroger, this would place the floor elevations at 435.4, 2.4 feet higher than the actual floor elevation. Had the building been constructed with a floor elevation of 435.4, flooding would not have occurred during the storm of 2010. The review of the elevation of the building relative to the flood elevation would typically have been the responsibility of the City of Corinth building authorities. The location of the Kroger in the floodway is a concern. As noted, approximately one half of the Kroger was built in the floodway for Elam Creek. A review of aerial photography and the current FIRM for the site shows that a number of other buildings were also built in the floodway. According to records I have examined, the floodway shown on current FIRM is unchanged from the floodway shown on the prior FIRM panel, prior to the construction of the building. FEMA’s 2009 Flood Insurance Study for Alcorn County and Incorporated Areas, states: “Encroachment on floodplains, such as structures and fill, reduces the flood carrying capacity, increases the flood heights and velocities, and increases flood hazards in areas beyond the encroachment itself. One aspect of floodplain management involves balancing the economic gain from floodplain development against the resulting increase in flood hazard. For purposes of the NFIP, a floodway is used as a tool to assist local communities in this aspect of floodplain management. Under this concept, the area of the 1-percent-annual-chance floodplain is divided into a floodway and a floodway fringe. The floodway is the channel of a stream plus any adjacent floodplain areas that must be kept free of encroachment so that the 1percent-annual-chance flood can be carried without substantial increases in flood heights. Minimum Federal standards limit such increases to 1.0 foot, provided that hazardous velocities are not produced. The floodways in this study are presented to local agencies as minimum standards that can be adopted directly or can be used as a basis for additional floodway studies.” Simply put, floodwaters must have an open, unobstructed flowing pathway along a creek. If earth fill or buildings or other structures are built in the flow pathway floodwaters rise and move faster and cause greater damage. When FEMA prepares their maps, they calculate what a reasonable flow pathway should be and show it as

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the “Floodway” on their maps. It is the responsibility of the cities and counties that issue building permits to enforce the restriction and make sure that the floodway is not blocked. The difference between the areas on the FEMA maps called the “Floodway” and the areas called the “Floodplain” is that nothing can be built in the “Floodway”, while careful construction is allowed in the “Floodplain” areas. The Kmart store is built entirely in the “Floodplain.” Approximately one half of the Kroger store is built in the “Floodway”, obstructing the flow of floodwater down the creek. The construction of the Kroger and other structures in the known floodway of Elam Creek increases the flood heights and potential for flooding, as well as for increased velocities, both of the factors involved in the flooding of the Kmart store. It is not known what regularity review was in place at the time the Kroger and other buildings were constructed in the floodway, but as the above quote from the Flood Insurance Study states, it is the responsibility of the local governing authority to control and prevent construction in the floodway. According to the August 30, 2010 volume of the “Federal Register”, Corinth, Mississippi, and Alcorn County, Mississippi were among the jurisdictions subject to suspension of community eligibility under the National Flood Insurance Program (NFIP) for non-compliance with the floodplain management requirements of the program. A review of the “Existing Conditions Plan” sheet C-2 dated 03/09/1992 from the original construction plans for the site prepared by Prime Engineering found the elevation and location of the floodplain, and the location of the floodway to be substantially different from the floodplain and floodway shown on the FEMA FIRM panel for the area at the time. The floodway on the plans is shown south of Fulton Drive. The floodplain elevation on the plan sheet is approximately 430.8 which is 1.6 feet below the FEMA FIRM flood elevation shown on 1981 FIRM in force at the time. The derivation of the floodplain and floodway data shown on the plans is unknown. Although the Kroger and other structures along Elam Creek were constructed in the floodway without restriction, a review of FEMA’s records found that a “Letter of Map Revision” or LOMR was issued by FEMA in November 18, 2005, removing the Kroger property from the floodway due to “Inadvertent Inclusion in the Floodway 1”. The records do not indicate how the LOMR originated, or what studies, review or public notice was given prior to issuance. FEMA regulations require a flood study be done to determine the impact of the encroachment on flood elevations and velocities. The studies are submitted to FEMA for review and approval. No record was found of such a study. Issuance also requires that other affected property owners along the creek be notified, and public notice be made. No record of this was found. Once the studies and public notice are complete, the local governing and review agency

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responsible for flood management and oversight makes a final review of the LOMR and recommends approval. No record of this was found. Prior to the issuance of the FEMA’s Letter of Map Revision (LOMR) in 2005, other prior efforts had been made regarding the location of the buildings in the floodplain and floodway. Also in 2005, a Letter of Map Amendment (LOMA) was issued for the site. An Elevation Certificate was issued by FEMA in 2001. Note: The issuance of the LOMR, LOMA, and Elevation Certificate would have no impact on the physical presence of the buildings in the floodway or floodplain, or on the potential for flooding in any given flood event. These instruments would serve to reduce the cost of flood insurance for the buildings. The buildings are still shown in the floodplain and the floodway on the 2010 FEMA FIRM map for the site. Along with the placement of the Kroger and other structures in the regulatory floodway, several other conditions that would increase the flood elevations on the site were noted along the creek and in the floodplain at the time of the initial inspection: 

Southeast of the Kmart near Highway 72, at the point where Kansas Southern Railroad’s north-south railroad line crosses Elam Creek on a timber bridge, a considerable debris field was noted upstream of the bridge. The debris blocked approximately the lower quarter of the bridge opening. Mr. David Huwe, the Director of Community Development and Planning for the City of Corinth stated during an interview in his office that the railroad had a poor record of maintenance and that the debris at the railroad bridge had been an ongoing problem for some time prior to the flood event. Pictures taken during our initial investigation (Figure19 thru 21) show a debris field upstream of the ridge on the floor of the creek. It was noted during the field survey done in August, 2010, approximately 3 months after the initial inspection, that the debris field had been removed. It is not known who cleaned up the debris. Pictures taken April 28, 2011 by others show another, larger debris field upstream of the bridge.



A bridge for an abandoned railroad spur crossing Elam Creek remains in place with narrowly spaced abutments obstructing the creek channel.



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

HEC-RAS Flood Studies: To determine the impact of the Kroger encroachment and general conditions of the flood hazard at the time of the May 2, 2010 flood, a preliminary HEC-RAS evaluation was prepared for the site using as-built survey data and the flows for the area listed in FEMA’s 2009 Flood Insurance Study. As noted there was a discrepancy in this preliminary initial report. Two conflicting flow data values were used in preparing the model. This conflict resulted in a conclusion in the report that placement of the Kroger store in the floodway caused a rise in the flood of 1.0 feet. The original study also compared the overgrown existing Elam creek channel with a theoretical well maintained channel and concluded that there would be a 2.0 foot drop in the water surface if the creek channel were well maintained. This report revises those values. For this amendment, the HEC-RAS flow data was revised and the flow data discrepancy was corrected from 3702 cfs to 5202 cfs. The Manning’s N values were also corrected to reflect the conditions of the channel and the flooding depths occurring at the time of the loss. This amended report pertains to re-calculated runs using the same scenarios described in the original results dated September 20th, 2012 and in the original modeling. This amended report does not use the scenarios described in the amended report dated July 23, 2013 and does not use the HECRAS model used in that report. Three models were run. The first model was run with the Kmart building alone. The second model was the combined Kmart- Kroger building. In these models, the N values were set based on the overgrown channel as it existed at the time of loss. The results of these models found that the addition of the Kroger store to the site resulted in two inch rise in the flood elevation compared to the flood elevation for the Kmart only site with no Kroger. The models showed water levels at the store site that were approximately comparable to the water levels reported at the time of the flood. A third model was run based on an unobstructed floodway with no Kroger and a channel having only light brush and grasses as would be appropriate for a properly maintained channel. This profile produced 100 year flood elevations on the site comparable with those shown in the 2009 Flood Insurance Study, and on the FEMA FIRM panel.

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Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

A review of the flow and velocity data from the model found that the addition of the Kroger to the Kmart building reduced the overbank width of flow at the building by 193 feet and increased the average velocity of flow at the building by 16 percent. Prior to the addition of the Kroger building the Kmart building was essentially outside the active overbank flow of water. When the Kroger building was added, the overbank flow overlapped the combined building by 129 feet, increasing the exposure of the building to flowing water. Flowing water carrying debris along the back of the Kmart building that damaged the rear door was reported as the cause of the water intruding into the Kmart building on the date of loss. During the flooding of 2010, water levels above the FEMA 100 year flood level were reported in the building. This model reported water levels at the building comparable to the water levels found at the building during the 2010 flood indicating water levels at the site during the flood could occur at the 100 year flow level. Given the impact of the other building obstructions located in the floodway and floodplain that are not included in the model, it appears that the actual flow at the site was likely less than the 100 flooding year event. Conclusions: 1. The drainage basin upstream from the Kmart site received rainfall that appears to approximate the 1-percent-annual-chance rainfall event (100 year storm). Using the FEMA 1-percent-annual-chance (100 year) flow data, and using a model with an overgrown channel similar to that existing at the time of the flood, flooding in Elam Creek exceeds the FEMA 1-percent-annual-chance (100 year flood) elevation and approaches the actual depths of flooding at the building reported. The presence of the Kroger store increased the impact and depth of flooding during the flood event of May 2, 2010 and caused damage to Kmart. 2. The presence of the Kroger in the FEMA floodway reduced the flooding width resulting increased velocities as anticipated by FEMA, increasing the depth of flooding and the impact on the Kmart store. 3. The lack of maintenance of the creek channel, coupled with obstructions and debris in the channel increased the depth of flooding and caused increased damage to the Kmart during the flood event of May 2, 2010. 4. Filling in the low area behind the Kmart and Kroger stores reduced the flood storage volume and likely increased the depth of flooding damage to Kmart. 5. Despite the location of the building in a large and documented floodplain and floodway no actions such as caulking and waterproofing the exterior walls, or

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 10 of 24 PageID #: 6769

Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

construction of a protective membrane around the building were done to protect the building. It is our belief that: had the creek channel been maintained, had building construction in FEMA’s regulatory floodway been restricted, had the area behind the Kroger and Kmart stores not been filled, and had the building been protected by waterproofing, the Kmart store would not have flooded, or had flooding occurred, it would have been occurred at such a depth that normal preventive actions by the store’s staff at the time of the event would have been able to protect the store from damage. Qualifications Our services have been performed using that degree of skill and care ordinarily exercised under similar conditions by reputable members of EFI Global’s profession. If any additional information is encountered which relates to this evaluation, EFI Global reserves the right to review our conclusions and opinions accordingly. In some cases, additional studies may be warranted to fully evaluate concerns noted. Any verbal statements made before, during, or after the course of the investigation were made as a courtesy only and are not considered a part of this report. Closing EFI Global, Inc. appreciates the opportunity to provide consulting services to you in this matter. Please contact us should any questions arise concerning this report, or if we may be of further assistance. Sincerely, EFI Global, Inc.

John R. Krewson Engineering Consultant

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 11 of 24 PageID #: 6770

Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

FIGURE 1 - OVERALL SITE

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 12 of 24 PageID #: 6771

Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

FIGURE 2 – CLOSE AERIAL VIEW OF SITE

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 13 of 24 PageID #: 6772

Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

FIGURE 3 – FEMA FIRM PANEL OF THE SITE Panel No.2803C0067C Effective Date: Sept. 17, 2010

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 14 of 24 PageID #: 6773 Partridge Residence EFI No.: 98340-09777 April 25, 2011

FIGURE 4 FRONT VIEW OF KMART AND KROGER

FIGURE 5 LEFT SIDE OF THE KMART

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 15 of 24 PageID #: 6774 Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

FIGURE 6 VIEW ALONG THE FRONT OF KMART LOOKING FROM THE LEFT SIDE

FIGURE 7 VIEW ALONG THE REAR OF KMART LOOKING FROM THE LEFT SIDE

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 16 of 24 PageID #: 6775 Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

FIGURE 8 LEFT SIDE OF KMART LOOKING FROM THE REAR CORNER WITH TYPICAL DROP INLET IN FOREGROUND

FIGURE 9 TYPICAL DOWN DRAIN ON REAR OF BUILDING

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 17 of 24 PageID #: 6776 Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

FIGURE 10 CURB CUT IN REAR PARKING CURB NEAR LEFT SIDE OF KMART WITH DITCH BEYOND

FIGURE 11 FLUME THROUGH CURB BEHIND KMART

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 18 of 24 PageID #: 6777 Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

FIGURE 5 12 DITCH BEHIND KMART

FIGURE 13 GRASSED FIELD IN AREA THAT WAS FILLED IN BEHIND THE SITE WITH NEW FILL IN THE BACKGROUND

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 19 of 24 PageID #: 6778 Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

FIGURE 14 INLET TO 60 INCH PIPE COLLECTING WATER FROM THE DITCH BEHIND THE SITE

FIGURE 15 VIEW OF THE FIELD BEIND THE SITE NEAR THE RIGHT CORNER OF KROGER

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 20 of 24 PageID #: 6779 Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

FIGURE 16 PILE OF FILL MATERIAL IN THE FIELD BEHIND THE SITE WITH KMART AND KROGER IN THE BACKGROUND

FIGURE 17 RIGHT SIDE OF THE KROGER LOOKING BACK TOWARD HIGHWAY 72 WEST

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 21 of 24 PageID #: 6780 Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

FIGURE 18 FLOODING DEBRIS IN THE FENCE ON THE RIGHT SIDE OF THE ROAD RUNNING BESIDE KROGER

FIGURE 19 LOOKING UPSTREAM AT DEBRIS FIELD AT RAILROAD BRIDGE SOUTHEAST OF THE SITE

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 22 of 24 PageID #: 6781 Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

FIGURE 20 LOOKING DOWNSTREAM AT DEBRIS FIELD AT RAILROAD BRIDGE

FIGURE 21 DEBRIS FIELD AT RAILROAD BRIDGE

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 23 of 24 PageID #: 6782 Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

FIGURE 5 22 ABANDONED UTILITY LINES OBSTRUCTING ELAM CREEK WITH SPUR RAILROAD BRIDGE OBSTRUCTION AND OVERGROWN CHANNEL

FIGURE 23 OVERGROWN AND UNMAINTAINED CREEK CHANNEL

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-4 Filed: 01/15/14 24 of 24 PageID #: 6783 Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

FIGURE 24 TREE AND OVERGROWN AND UNMAINTAINED CREEK CHANNEL AT BRIDGE

FIGURE 25 OVERGROWN SPUR RAILROAD BRIDGE WITH UTILITY OBSTRUCTIONS IN BACKGROUND

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 1 of 23 PageID #: 6784

EXHIBIT

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 2 of 23 PageID #: 6785

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 3 of 23 PageID #: 6786

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 4 of 23 PageID #: 6787

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 5 of 23 PageID #: 6788

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 6 of 23 PageID #: 6789

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 7 of 23 PageID #: 6790

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 8 of 23 PageID #: 6791

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 9 of 23 PageID #: 6792

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 10 of 23 PageID #: 6793

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 11 of 23 PageID #: 6794

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 12 of 23 PageID #: 6795

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 13 of 23 PageID #: 6796

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 14 of 23 PageID #: 6797

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 15 of 23 PageID #: 6798

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 16 of 23 PageID #: 6799

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 17 of 23 PageID #: 6800

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 18 of 23 PageID #: 6801

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 19 of 23 PageID #: 6802

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 20 of 23 PageID #: 6803

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 21 of 23 PageID #: 6804

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 22 of 23 PageID #: 6805

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-5 Filed: 01/15/14 23 of 23 PageID #: 6806

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 1 of 108 PageID #: 6807

EXHIBIT

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 2 of 108 PageID #: 6808

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 3 of 108 PageID #: 6809

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 4 of 108 PageID #: 6810

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 5 of 108 PageID #: 6811

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 6 of 108 PageID #: 6812

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 7 of 108 PageID #: 6813

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 8 of 108 PageID #: 6814

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 9 of 108 PageID #: 6815

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 10 of 108 PageID #: 6816

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 11 of 108 PageID #: 6817

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 12 of 108 PageID #: 6818

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 13 of 108 PageID #: 6819

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 14 of 108 PageID #: 6820

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 15 of 108 PageID #: 6821

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 16 of 108 PageID #: 6822

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 17 of 108 PageID #: 6823

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 18 of 108 PageID #: 6824

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 19 of 108 PageID #: 6825

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 20 of 108 PageID #: 6826

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 21 of 108 PageID #: 6827

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 22 of 108 PageID #: 6828

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 23 of 108 PageID #: 6829

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 24 of 108 PageID #: 6830

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 25 of 108 PageID #: 6831

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 26 of 108 PageID #: 6832

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 27 of 108 PageID #: 6833

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 28 of 108 PageID #: 6834

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 29 of 108 PageID #: 6835

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 30 of 108 PageID #: 6836

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 31 of 108 PageID #: 6837

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 32 of 108 PageID #: 6838

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 33 of 108 PageID #: 6839

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 34 of 108 PageID #: 6840

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 35 of 108 PageID #: 6841

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 36 of 108 PageID #: 6842

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 37 of 108 PageID #: 6843

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 38 of 108 PageID #: 6844

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 39 of 108 PageID #: 6845

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 40 of 108 PageID #: 6846

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 41 of 108 PageID #: 6847

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 42 of 108 PageID #: 6848

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 43 of 108 PageID #: 6849

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 44 of 108 PageID #: 6850

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 45 of 108 PageID #: 6851

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 46 of 108 PageID #: 6852

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 47 of 108 PageID #: 6853

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 48 of 108 PageID #: 6854

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 49 of 108 PageID #: 6855

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 50 of 108 PageID #: 6856

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 51 of 108 PageID #: 6857

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 52 of 108 PageID #: 6858

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 53 of 108 PageID #: 6859

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 54 of 108 PageID #: 6860

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 55 of 108 PageID #: 6861

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 56 of 108 PageID #: 6862

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 57 of 108 PageID #: 6863

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 58 of 108 PageID #: 6864

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 59 of 108 PageID #: 6865

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 60 of 108 PageID #: 6866

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 61 of 108 PageID #: 6867

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 62 of 108 PageID #: 6868

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 63 of 108 PageID #: 6869

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 64 of 108 PageID #: 6870

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 65 of 108 PageID #: 6871

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 66 of 108 PageID #: 6872

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 67 of 108 PageID #: 6873

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 68 of 108 PageID #: 6874

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 69 of 108 PageID #: 6875

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 70 of 108 PageID #: 6876

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 71 of 108 PageID #: 6877

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 72 of 108 PageID #: 6878

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 73 of 108 PageID #: 6879

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 74 of 108 PageID #: 6880

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 75 of 108 PageID #: 6881

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 76 of 108 PageID #: 6882

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Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 78 of 108 PageID #: 6884

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 79 of 108 PageID #: 6885

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Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 81 of 108 PageID #: 6887

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 82 of 108 PageID #: 6888

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 83 of 108 PageID #: 6889

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Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 85 of 108 PageID #: 6891

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 86 of 108 PageID #: 6892

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 87 of 108 PageID #: 6893

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 88 of 108 PageID #: 6894

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 89 of 108 PageID #: 6895

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 90 of 108 PageID #: 6896

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 91 of 108 PageID #: 6897

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 92 of 108 PageID #: 6898

Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 93 of 108 PageID #: 6899

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Case: 1:11-cv-00103-GHD-DAS Doc #: 349-6 Filed: 01/15/14 96 of 108 PageID #: 6902

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