350 memoinsupportmotiontoamendjudgment kmart

Case: 1:11-cv-00103-GHD-DAS Doc #: 350 Filed: 01/15/14 1 of 18 PageID #: 6915

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 MEMORANDUM IN SUPPORT OF MOTION TO AMEND OR ALTER JUDGMENT May It Please the Court: 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. This Court should reconsider and amend or alter its Judgment to correct manifest errors of fact upon which the Judgment is based and to prevent the prejudice that will occur if the Judgment stands.

I.

Background As this Court is aware, at Mr. Krewson’s deposition on May 22, 2013, it was discovered for

the first time by Kmart and Mr. Krewson that the models relied on by Mr. Krewson in his Initial Flooding Evaluation dated September 20, 2012 (“Initial Report”) contained a mistake that affected the conclusions in his report. Specifically, Mr. Krewson used the incorrect figure of 3,702 cubic feet per second for the peak discharge of Elam Creek for the 100-year flood event for his first and third HEC-RAS run data.1 In the second HEC-RAS run data, which showed the impact of the Kroger

1 See Depo. of John R. Krewson at 117:3-5, attached as Exhibit “A”; see also Declaration of John R. Krewson ¶ 15 attached as Exhibit “B.”

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store on the flooding at Kmart, Mr. Krewson used the 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.2 The inconsistency in the peak discharge used in the first and third runs and the peak discharge used in the second run led Mr. Krewson to incorrectly conclude in his Initial Report that the presence of the Kroger store caused a one-foot rise in the flooding at Kmart’s store during the May 2, 2010 flood.3 The peak discharge of 5,202 cfs should have been used in all three HEC-RAS runs because it accounts for the convergence between Elam Creek and Turner Creek.4 After being made aware of the mistake as to the flow capacity, Mr. Krewson re-ran his models to address the error and prepared an Amended Flooding Evaluation dated July 23, 2013.5 The new model considered slightly different scenarios to compare than those that had been run in the original model. The results showed that even though the water level did not rise significantly than if there had been no Kroger store, the addition of the Kroger building caused the Kmart store to become exposed to more rapidly flowing water.6 Mr. Krewson states that it was reported that rapidly flowing water carrying debris along the back of the Kmart building resulted in damage to the rear door and that this was the cause of the water intruding into the Kmart building.7 This model corroborates the theory noted in Mr. Krewson’s Initial Report that an increased velocity of water

2 See Ex. A, Depo. of John. R. Krewson at 116:12-24; see also Ex. B, Declaration of John R. Krewson ¶ 15.

3

See Ex. A, Depo. of John. R. Krewson at 116:18-117:18.

4

See Ex. B, Declaration of John R. Krewson ¶ 17.

5

See John R. Krewson’s Amended Flooding Evaluation (Jul. 23, 2013), attached as Exhibit “C.”

6

See id. at 9.

7

See id.

2

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was what pushed debris through the Kmart doors during the flood by flowing water.

In light of the inadvertent mistake contained in his Initial Report, Kmart sought leave to submit Mr. Krewson’s amended report. On July 25, 2013, Kmart filed its Motion for Leave to file the amended report of Mr. Krewson after Defendants objected to the submission of an amended report.8 A hearing was held in front of Magistrate Judge Sanders on August 15, 2013. On August 21, 2013, Magistrate Judge Sanders issued a ruling denying Kmart’s motion.9 On September 4, 2013, Kmart filed Objections to the Magistrate Judge’s Ruling.10 On September 27, 2013, after considering Kmart’s Objections, this Court ruled that it would consider an amendment of mathematical errors only for Mr. Krewson’s hydrology report.11 In preparing the Amended Report in response to the Court’s Order, which was submitted on October 11, 2013 (“Amended Report”),12 Mr. Krewson revised the HEC-RAS flow data and the flow data discrepancy that appeared in his Initial Report, which was corrected from 3,702 cfs to 5,202 cfs.13 Additionally, the Manning N values contained in Mr. Krewson’s Initial Report were corrected. Mr. Krewson’s adjustment of the Manning N values became necessary when he corrected the flow rates for the three HEC-RAS runs to ensure that the model was reliable. Thus the correction of the Manning N value was a mathematical correction as well. When running HEC-RAS models, if one

8

See Rec. Doc. 176.

9

See Rec. Doc. 213.

10

See Rec. Doc. 227.

11

See Rec. Doc. 243.

12

See John R. Krewson’s second Amended Flooding Evaluation (Oct. 11, 2013), attached as Exhibit

13

See id. at 8; see also Ex. B, Declaration of John R. Krewson ¶ 17.

“D.”

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value is changed, other values might also need to change to maintain the validity of the model.

When Mr. Krewson prepared the HEC-RAS models using the incorrect 3,702 cfs flow rate value, he 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 channel.14 These Manning N values were selected based on the incorrect 3,702 cfs flow rate value.15 With the 3,702 flow rate value, these Manning N values allowed Mr. Krewson to calibrate the model and provided a flooding depth comparable to the 100-year flood in the FEMA’s 2009 Flood Insurance Study.16 Mr. Krewson 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.17 When Mr. Krewson 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.18 Thus, he had to re-calibrate the model by adjusting the Manning N values based on the higher flow rate value of 5,202 cfs.19 He used a Manning N value of 0.04 to represent a well-maintained Elam Creek channel and a Manning N value of 0.14 to represent an overgrown Elam Creek channel.20 These Manning N values allowed him to

14

See Ex. B, Declaration of John R. Krewson ¶ 22.

15

See id.

16

See id.

17

See id.

18

See id. ¶ 23.

19

See id.

20

See id.

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calibrate the model and provided a flooding depth comparable to the 100-year flood in the FEMA’s 2009 Flood Insurance Study based on the higher flow rate value.21 Finally, in order to comply with this Court’s order allowing the amendment of mathematical errors only, Mr. Krewson’s Amended Report considered re-calculated runs using the same scenarios described in his Initial Report dated September 20, 2012 and in his original modeling. The Amended Report does not use the scenarios described in the first amended report dated July 23, 2013 and in that re-run modeling.

Mr. Krewson concludes in his Amended Report that “[a] review of the flow and velocity data from the model show 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.”22 Mr. Krewson also opines that “[p]rior to the addition of the Kroger building the Kmart building was essentially outside the active overbank flow of water.”23 Additionally, Mr. Krewson concludes that “[w]hen the Kroger building was added, the overbank flood overlapped the combined building by 129 feet, increasing the exposure of the building to flowing water.”24 Mr. Krewson’s opinions are entirely consistent with Mr. Krewson’s Initial Report, which noted that rapidly flowing water carrying debris along the back of the Kmart building resulted in damage to the rear door and that this was the cause of the water intruding into the Kmart building.

21

See id.

22

Ex. D, John R. Krewson’s second Amended Flooding Evaluation (Oct. 11, 2013) at 8-9.

23

Id. at 9.

24

Id.

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On December 18, 2013, this Court issued an Order and Memorandum Opinion denying Kmart’s appeal of the magistrate judge’s denial of its motion for leave to file the July 25, 2013 amended report and denying the motion for leave to file the October 11, 2013 amended report that was submitted pursuant to this Court’s September 27, 2013 Order.25 II.

Law and Argument 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.26 In ruling on a Rule 59(e) motion “a district court should consider the following nonexclusive list of acts: (1) the reasons set forth by the movant justifying consideration of evidence or arguments that the movant failed to present in the underlying motion, (2) the importance of the reconsideration of the underlying motion to the movant’s case, (3) whether the reasons set forth by the movant justifying the reconsideration were available to the movant before they responded to the underlying motion and (4) the likelihood that the non-movants will suffer unfair prejudice if the motion is reconsidered.”27 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.

25

See Rec. Docs. 346-347.

26

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)).

27

Harrigill v. United States., 2004 WL 1595676, *1 (S.D. Miss., June 1, 2004) (citing Sturges v.

Moore, 73 Fed. Appx. 777, 778 (5th Cir.2003)), vacated on other grounds, 410 F. 3d 786 (5th Cir. 2005).

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A.

The Judgment should be altered or amended to correct manifest errors of fact upon which the Judgment is based.

This Court should alter or amend its Judgment because it is based on manifest errors of fact.

Specifically, the Judgment is based on the incorrect assertion that Mr. Krewson’s Amended Report presents a new theory of recovery by Kmart. The Defendants argued, and this Court agreed, that Mr. Krewson should not be permitted to amend his report because when he corrected the figures in the Amended Report, his conclusions changed, which supposedly altered Kmart’s theory of recovery.

In its Memorandum Opinion, this Court found that the “difference in the water level alters Kmart’s entire theory of the case.”28 This Court further stated that Mr. Krewson could not “merely correct mathematical errors and revise numerical conclusions; he must revise his conclusions, and accordingly, Kmart must revise its theory of the case. The new theory of liability scarcely resembles the earlier theory — except that it involves damage to the Corinth Kmart store and a lot of flood water.”29 But Kmart has never altered its theory of recovery. From the inception of this lawsuit, Kmart alleged in its Complaint that the presence of the Kroger store within a floodway “altered the water flow from standing water to a rushing, forceful water flow.”30 Mr. Krewson’s Amended Report merely confirms Kmart’s theory and the eyewitness testimony noted in his Initial Report that flowing water carrying debris along the back of Kmart’s store resulted in damage to the rear door and that this caused the water to intrude into Kmart’s store.

28

Rec. Doc. 347 at 2.

29

Id. at 12.

30

Rec. Doc. 1, ¶ 16.

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Indeed, this same theory was discussed in Mr. Krewson’s Initial Report: As the morning [of May 2, 2010] progressed, water began rising rapidly around the Kmart. According to eyewitnesses, 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 flooding into the store.31 *

*

*

The location of the Kroger store in a floodway is a concern. As noted, approximately one half of the Kroger was built in a floodway for Elam Creek . . . . FEMA’s 2009 Flood Insurance Study for Alcorn County and Incorporated Areas, states: “Encroachment on floodplains, such as structures and fill, reduce the flood carrying capacity, increases the flood heights and velocities, and increases flood hazards in areas beyond the encroachment itself . . . .” *

*

*

. . . If earth fill or buildings or other structures are built in the flow pathway floodwaters rise and move faster and cause greater damage.32 * * * The construction of the Kroger and other structures in the known floodway of Elam Creek clearly 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.33 Even this Court admitted that Kmart’s theory of rushing water was in Mr. Krewson’s Initial Report, as it stated in its ruling: “On September 20, 2012, Krewson prepared his initial report, wherein he opined that flood water and debris had forcefully rushed into the Kmart store.”34 The

31

John R. Krewson’s Initial Flooding Evaluation (Sept. 20, 2012), attached as Exhibit “E” at 2 (emphasis added).

32

Id. at 4 (emphasis added).

33

Id. at 5 (emphasis added).

34

Rec. Doc. 347 at 2.

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allegations in Kmart’s Complaint and the above-quoted portion from Mr. Krewson’s Initial Report demonstrate that the notion that Mr. Krewson’s later recalculation of the water levels “alters Kmart’s entire theory of the case”35 is clearly wrong.

It was pursuant to Kmart’s motion and this Court’s order that Kmart submitted an amended report correcting the mathematical errors in Mr. Krewson’s report.

Kmart followed these

instructions and Mr. Krewson corrected the flood flow rate and the Manning N values in his HECRAS runs. The adjustment of the Manning N values were part of the corrections to the flood flow rates. Mr. Krewson had to revise the values to correlate with the higher flow rate of 5,202 cfs to present a representative HEC-RAS model. The corrections to the flood flow rates and Manning N values complied with this Court’s September 27, 2013 Order requesting an amendment to the mathematical errors in Mr. Krewson’s Initial Report. When Mr. Krewson revised the flood flow rates, the results of the HEC-RAS models were naturally different from the results in the initial evaluation. Of course, when the input in a model changes, the output also necessarily changes.

After correcting the flow rate and calibrating the model by adjusting the Manning N values to reflect the higher flow rate, Mr. Krewson concluded that “a review of the flow and velocity data from the model show 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.”36 Thus Mr. Krewson’s conclusions do not present a new claim against Defendants. Again, from the outset of this litigation, Kmart has alleged that the location of the Kroger store “altered the

35

Id.

36

Ex. D, John R. Krewson’s second Amended Flooding Evaluation (Oct. 11, 2013) at 8-9.

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water flow from standing water to a rushing, forceful water flow.”37 Mr. Krewson began amending his report to determine, using corrected figures, whether the Kroger store contributed to the flooding at the Kmart store. In the process, Mr. Krewson confirmed by reviewing the flow and velocity data from his models that the Kroger store reduced the overbank width of flow and increased the average velocity of the flow of the water at Kmart’s building, which increased the exposure of the Kmart building to flow water.38 Mr. Krewson’s tests confirmed that the addition of the Kroger building caused the Kmart store to become exposed to the rapidly flowing water.39 Therefore, the conclusions in Mr. Krewson’s Amended Report do not constitute a new theory of causation or a new claim by Kmart, but merely correct data input and output, which also corroborates eyewitness testimony and the allegations already contained in Kmart’s Complaint. It should be of no surprise that when Mr. Krewson corrected the flood flow rates, the specific results and conclusions of his evaluation would change.

In the Memorandum Opinion, this Court stated that in his first amended report, “Krewson opines that if the Kroger store had not been located partially in the regulatory floodway, Kmart would have been exposed to standing water — not rushing, flowing water and debris as he had originally thought.”40 First, this critique is irrelevant to this case because it is the second Amended Report that is sought to be introduced pursuant to this Court’s earlier order. Second, that first

37

Rec. Doc. 1, ¶ 16.

38

See Ex. D, John R. Krewson’s second Amended Flooding Evaluation (Oct. 11, 2013) at 8-9.

39

See id.

40

Rec. Doc. 347 at 2-3.

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Amended Report indeed stated that the Kroger building was subjected to flowing water.41 Third, in his Initial Report, Mr. Krewson noted that according to eyewitnesses, water was flowing along the rear of the building, putting stress on the rear doors of the store and that debris struck the doors with enough force to break open the doors and allow water to flood into the store.42 Thus, Mr. Krewson has always recognized that increased flowing water contributed to the flooding at Kmart’s store.

Defendants cannot deny that they were aware of Kmart’s theory that a rushing, forceful water flow contributed to the flooding at Kmart’s store, as Defendants’ own expert, James N. Monohan, discussed the flow velocities in his report critiquing Mr. Krewson’s Initial Report.43 Mr. Monohan included an entire section on “Flow Velocities” in his report wherein he compared the velocities in Mr. Krewson’s initial HEC-RAS runs. Although Mr. Monohan noted that there were differences between the runs in the velocities, he stated that it was impossible for him to determine how much of the difference was due to Kroger’s location and how much was the result of the inconsistent flow rates in Mr. Krewson’s initial HEC-RAS runs.44 Defendants and their experts were clearly aware of Kmart’s allegation that the presence of the Kroger store caused a forceful flow of water that contributed to the flooding at Kmart’s store, yet Defendants complain that this is somehow a new theory of causation.

41

See Ex. C, John R. Krewson’s Amended Flooding Evaluation (Jul. 23, 2013) at 9.

42

See Ex. E, John R. Krewson’s Initial Flooding Evaluation (Sept. 20, 2012) at 2-3.

43

See James N. Monohan’s Expert Review and report on Mr. John R. Krewson’s Flooding Evaluation (dated September 20, 2012) and Deposition (dated May 22, 2013) at 8, attached as Exhibit “F.” 44

See id.

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The Amended Report does not assert any new theory of causation against any defendant.

Rather, Mr. Krewson’s Amended Report corrects a mathematical error in his HEC-RAS runs, as was requested by this Court in its September 27, 2013 Order. Once Mr. Krewson input the corrected figures, the output necessarily changed, such as water depth and velocity of water. The theory that the Defendants’ presence in the floodway and failure to mitigate that presence, however, has not changed. The Amended Report merely confirms what has been Kmart’s theory of causation all along. As explained above, the original theory in Kmart’s Complaint and in Mr. Krewson’s Initial Report was an increase in water depth and an increase in water velocity. The theory borne out by the second Amended Report is a minimal increase in water depth compared to the water depth if there had been no Kroger (a two-inch increase) and an increase in water velocity. Because this Court’s Judgment is based on the incorrect statement that Mr. Krewson’s Amended Report alters Kmart’s theory of recovery, Kmart asks this Court to reconsider and alter or amend its Judgment and permit Kmart to file Mr. Krewson’s Amended Report.

B.

The judgment should be altered or amended to prevent manifest injustice.

Moreover, manifest injustice will occur if Kmart is not permitted to amend Mr. Krewson’s report. As discussed in the briefing on this issue, Federal Rule of Civil Procedure 16(b) allows a scheduling order to be modified for good cause. To determine good cause, courts look at: (1) the explanation for the failure to meet the deadline; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.45 In the Memorandum Opinion, this Court discusses the first, third and fourth factors at length, but

45

See Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997) (emphasis

added).

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largely ignores the second factor — the importance of Mr. Krewson’s testimony in the Amended Report to Kmart’s case. However, consideration of this factor bears out the injustice that will occur if Kmart is not permitted to amend Mr. Krewson’s report.

As this Court and all parties have recognized, an amendment to the Initial Report is vitally important to Kmart’s case because it confirms that the Defendants’ actions contributed to the flooding at Kmart’s store. The refusal to allow an amendment of the Initial Report will no doubt result in manifest injustice to Kmart. Indeed, without an amended report, Kmart will be forced to rely on a flawed report even though the proposed Amended Report supports Kmart’s claim that the Kroger store’s presence in the floodway contributed to Kmart’s damages. Kmart will be unable to provide the correct data to the jury even though the error was discovered and corrected months in advance of trial. The United States Fifth Circuit Court of Appeals has recognized that “[t]he goal of grand jury proceedings, of criminal trials, and of civil trials is to resolve a dispute by gathering the facts and arriving at the truth.”46 Further, “virtually every judicial inquiry begins with the goal of developing the facts. The basis of justice is the truth and our system frowns upon impediments to ascertaining the truth.”47 The importance of the Amended Report to Kmart’s prosecution of the case requires that Kmart be allowed to submit the correct information to the jury. The denial of Kmart’s request serves as an impediment to the jury’s ability to ascertain the truth, resulting in manifest injustice to Kmart. If this error were first discovered on the stand at trial, surely Mr. Krewson would be able to explain himself, subject to Defendants’ questioning. It makes no sense to disallow Mr. Krewson from amending his report when the error was discovered months before

46

Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1578 (5th Cir. 1989).

47

In re Dinnan, 661 F.2d 426, 427 (5th Cir. 1981).

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trial, with the penalty being that Mr. Krewson is altogether disallowed from presenting the correct figures and calculations.

As for the other three factors for allowing an amendment, this Court should reconsider its reasoning. For the first factor — explanation of the failure to submit a timely report — this Court opined that Mr. Krewson had from September 2012 to April 2013 to discovery the flow rate error.48 But what reason would he have had to revisit those numbers during that time? Defendants waited until May 22, 2013 to depose him and to challenge his findings. Further, the data is printed out on pages and pages of numbers and tables. This Court also noted that the Amended Report appears to be a new theory of recovery against Defendant Kansas City Southern Railway Company based upon a photograph produced to Kmart in October 2012.49 But Mr. Krewson’s Initial Report contained photographs of the railroad tressle with debris blocking water flow50 and Mr. Krewson opined in his Initial Report that debris and obstructions in the Elam Creek channel, such as those present in the photographs, contributed to the flooding at Kmart’s store.51 Mr. Krewson’s opinion that the debris under the KCSR railroad bridge existed at the time of the flood was based on his observation that there was debris embedded in the underpass, which suggested a permanence of the debris field,52 and on his conversation with David Huwe, the City’s Floodplain Administration, regarding KCSR’s

48

See Rec. Doc. 347 at 5.

49

See id.

50

See Ex. E, John Krewson’s Initial Flooding Evaluation (Sept. 20, 2012) at Figures 19-21.

51

See id. at 7.

52

See Ex. A, Depo. of John R. Krewson at 159:2-5.

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failure to maintain the underpass prior to the flood event.53 Mr. Krewson’s theory was confirmed by the photograph that was shown to Mr. Krewson by KCSR’s counsel at his deposition, which suggests that because there is no floating debris, the debris field was present at the time of the flood event. Mr. Krewson can comment on the same theory that always has been advanced even when referring to a photograph produced by one of the defendants in discovery. Regardless, Mr. Krewson’s Amended Report was produced when it was produced because of the well-documented flow rate error and not because of tardiness. In fact, Kmart produced the Amended Report within this Court’s deadline. This Court should find the timing of the report excusable under the facts of this case.

For the third factor — prejudice from submission of the Amended Report — this Court found that Defendants would be prejudiced by incurring new attorneys’ fees, travel costs, expert costs, and deposition costs. But those costs pale in comparison to the prejudice to Kmart. Kmart has suffered approximately $3 million in damages resulting from the claims asserted in this case. Yet Defendants and this Court brush that consideration aside, in light of Defendants’ litigation costs, because of a mathematical error made by Kmart’s expert, which error was corrected months before trial. Again, Kmart suggests that the prejudice to its case far outweighs the supposed prejudiced suffered if Defendants have to litigate this case further.

In Wal-Mart Stores, Inc. v. Qore, Inc.,54 a decision rendered by this Court, Chief Judge Mills found, “This Court is no position to hold that experts can never make mistakes. When a

53

See id. at 28:17-24.

54

2009 WL 224908 (N.D. Miss. Jan. 28, 2009) (Mills, J.) (emphasis added).

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mistake is discovered and fixed it advances the cause of justice.”55 In Qore, the plaintiff’s expert initially included the value of a fuel island canopy and store tank in his appraisal report and later removed them.56 The defendant argued that this error, along with other alleged problems associated with the plaintiff’s expert’s report, rendered the expert’s testimony unreliable and inadmissible.57 While this Court acknowledged those problems and found that the defendant’s counsel would certainly “illuminate these for the jury,”58 this Court found that the problems do not rise to the level to prevent the expert from testifying. Here, the denial of Kmart’s request to submit the Amended Report will result in manifest injustice as it prevents Kmart from presenting to the jury what all parties know to be the correct information in this matter.

For the fourth factor — the availability of a continuance to cure any resulting prejudice from the submission of the Amended Report — this Court simply found that because the untimeliness of Kmart’s report could not be explained and because the report would prejudice Defendants, a continuance would not be justified.59 This conclusory finding skirts the issue. As Kmart explained previously, it has offered to pay Mr. Krewson’s travel and deposition costs. And as further explained, Defendants’ experts have done no modeling of their own. They merely hoped that Mr. Krewson’s error would prove his downfall and they would not have to advance any supportable positions of their own. If this Court allows Mr. Krewson to present a correct model, Defendants

55

Id. at *4.

56

See id.

57

See id.

58

Id.

59

See Rec. Doc. 347 at 7.

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would have to do no work other than that which they arguably should have had to do in the first place. It should not count as “prejudice” to Defendants in working up the merits of a case when Defendants voluntarily chose a different tack to use a simple error to discredit Kmart’s case.

III.

Conclusion For the foregoing reasons, Kmart respectfully requests that this Court grant its Motion to

Amend or Alter its Judgment and permit Kmart to submit the Amended Report of John Krewson.

This the 15th day of January, 2014.

Respectfully submitted, /s/ Ryan O. Luminais ____________________________________ JAMES M. GARNER (La. Bar. No. 19589) JOHN T. BALHOFF, II (La. Bar. No. 24288) RYAN O. LUMINAIS (Miss. Bar. No. 101871) SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 ATTORNEYS FOR KMART CORPORATION

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CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been served on all known counsel of record with the Clerk of Court using the CM/ECF system which will automatically send-email notification to all known counsel of record, this 15th day of January, 2014.

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

18