Case: 1:11-cv-00103-GHD-DAS Doc #: 356 Filed: 01/21/14 1 of 8 PageID #: 6973
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION KMART CORPORATION PLAINTIFF VS.
CIVIL ACTION NO.: 1:11-CV-103-GHD-JAD
THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP; FULTON IMPROVEMENTS, LLC; KANSAS CITY SOUTHERN RAILWAY COMPANY; CITY OF CORINTH; THE UNITED STATES OF AMERICA; JOHN DOE; AND ABC CORPORATION
DEFENDANTS
JOINT MOTION IN LIMINE OF E&A SOUTHEAST LIMITED PARTNERSHIP AND THE KROGER CO. COME NOW, Defendants E&A Southeast Limited Partnership (“E&A”) and The Kroger Co. (“Kroger”) (collectively “the Defendants”), and respectfully submit this Joint Motion in Limine and respectfully request this Court in limine to instruct the Plaintiff Kmart Corporation (“Kmart”), Plaintiff’s witnesses, and Plaintiff’s attorneys to refrain from testifying, mentioning or inferring, directly or indirectly, in any manner whatsoever, in the presence of the jury, the following matters: 1.
This case involves a May 2, 2010 flash flood in Corinth, Mississippi. Kmart’s
own engineering expert, John Krewson, admits it exceeded a 100 year flood event. (See Krewson Deposition at p. 86-87, attached as Exhibit “A”). Nevertheless, Plaintiff Kmart has sued the Defendants arguing that the presence of the Kroger store, located in the same building adjacent to the Kmart, caused nearly two feet of water to enter the Kmart building during the flash flood. (See Complaint, Doc. No. 1).
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2.
Defendants E&A and Kroger have filed Daubert motions seeking to exclude the
opinion testimony of Kmart’s engineering expert John Krewson. (See Docs. 259, 260, 265 and 266).
For all of the reasons set forth in those motions and supporting briefs, which are
incorporated herein by reference, John Krewson’s opinion testimony, including any deposition testimony or opinion in his expert report, should be excluded under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), its progeny, and Federal Rule of Evidence 702. 3.
Through discovery, it has become apparent that Kmart will attempt to introduce
evidence of previous flooding events in the subject area through newspaper articles, newsletters and internet blogs. These matters should be excluded because the Fifth Circuit Court of Appeals has held that newspaper articles “are inadmissible hearsay.” James v. Texas Collin County, 535 F.3d 365, 374 (5th Cir. 2008). In this case, the newspaper article is hearsay and the blog in which the article is reproduced is also hearsay. Thus, the newspaper article is hearsay within hearsay. A single newspaper article cannot serve as constructive notice, even if that article was published in a national newspaper (which this article was not). See Dodson v. Hillcrest Securities, Corp., 1996 WL 459770 *8 (5th Cir. 1996). As such, the article is irrelevant in this case to show constructive notice of the previous floods as to any Defendants. Further, any such article would be irrelevant under Rule 401 of the Federal Rules of Evidence because a news article is not evidence of constructive notice. 4.
It is also anticipated that Kmart will attempt to introduce evidence of previous flood
events through witness testimony, not just hearsay internet blogs, articles, and newsletters. However, any testimony of any kind regarding previous flooding events should be excluded as irrelevant. Each weather event is a distinct event with unique circumstances. Kmart cannot show that the facts and circumstances surrounding the 2001 flood (or any other flood) mirror the
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subject 2010 flood. More importantly, Kmart has not produced any witness or other evidence which would show how, in any previous flood, the presence of the Kroger building caused damages to the Kmart building. In order to make any previous weather event relevant, Kmart’s engineer should have to determine whether the Kroger’s presence (during these specific previous weather events) caused damage to the Kmart store. This Kmart has not done. 5.
It is anticipated that Kmart will also attempt to introduce evidence that the Kroger
building is in a floodway, either by witness testimony or through demonstrative evidence, including maps of the subject area. Because this assertion is contrary to federal law and the facts in this case, such testimony should be excluded as irrelevant. Additionally, the assertion that the Kroger is in the floodway will do nothing but prejudice and mislead the jury and confuse the issues in this case, and therefore, it should be inadmissible under Rule 403 of the Federal Rules of Evidence. 6.
It is anticipated that Kmart will seek to introduce testimony that the LOMR was
improperly issued with regard to the Kroger building. However, this matter has already been decided by this Court, making this assertion irrelevant to the remaining issues in the case. Specifically, this Court found that any challenge to the issuance of a LOMR falls “squarely within the ambit of the NFIA.” This Court found a challenge to the issuance of the LOMR could only be brought against FEMA (who issues the LOMR) and, since FEMA has already been dismissed from this case, this Court found that there could be no presentation of evidence by Kmart that the LOMR “improperly permitted the Kroger store to remain in the floodway.” (See Memorandum Opinion, Doc. No. 208 at page 7). Moreover, even if Kmart’s assertions regarding the propriety of the LOMR were somehow relevant, this Court should exclude such evidence because of the
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substantial danger that it would prejudice and mislead the jury and confuse the issues remaining in this case. See FED.R.EVID. 403. 7.
The Court should exclude any reference to the subject property being located in a
“flood-prone area” as such allegation was not made in the Complaint. Plaintiff’s Complaint solely alleges damages stemming from Kroger’s presence in a “floodway.” (See Complaint, Doc. No. 1). It has been shown that the Kroger store was not and is not located in a floodway. Thus, Plaintiff has, in subsequent pleadings, argued that Defendants’ alleged knowledge of the property in a “flood-prone area” is sufficient to support a negligence claim. Evidence of the property being located in a “flood-prone area” is irrelevant to the allegations contained within the Complaint. As such, this evidence would only prejudice and mislead the jury, thus confusing the issues of this case.
See FED.R.EVID. 403. “[W]hen a plaintiff pleads one claim but tries to prove another, it is
error for a trial court to allow the plaintiffs to argue the unpled issue at trial.” Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., 48 So.3d 976, 995 (Fla. 3d DCA 2010). Kmart only pled allegations stemming from Kroger’s alleged presence in a floodway and cannot now introduce evidence of “flood-prone area” to prove its case. 8.
It is anticipated that Kmart will attempt to introduce evidence that, in 2011, Fulton
installed a backflow preventer with check valve at the subject Kroger store. First, this back flow preventer installation is irrelevant under FED.R.EVID. 401 as it (1) does not have a tendency to make any fact more or less probable than it would be without the evidence and (2) the fact is not a consequence in determining the action. Further, even if it is somehow relevant, it should be excluded as a subsequent remedial measure. See FED.R.EVID. 407.
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9.
It is anticipated that Kmart will attempt to introduce evidence of an alleged
conversation between Mr. Krewson and Mr. David Huwe, Director of Community Development and Planning for the City of Corinth. Plaintiff has previously indicated that Mr. Huwe commented that he “had never seen language like that in a LOMR”. (See Doc. No. 310 at p. 22). This Court has already decided that any reference regarding an allegation of impropriety surrounding the issuance of the LOMR is not a part of a cause of action in this case. As such, any statements regarding the LOMR made by Mr. Huwe are irrelevant to this case. More importantly, any testimony relating to statements made by Mr. Huwe during this conversation would constitute inadmissible hearsay and should not be allowed. FED.R.EVID. 802. 10.
In support of its Motion, Kroger and E&A rely upon the pleadings filed in this
action, their supporting memorandum, and the following exhibits: Exhibit A:
Excerpts of the Deposition of John Krewson.
Exhibit B:
LOMR and Letter to Corinth from FEMA.
Exhibit C:
Krewson Report.
WHEREFORE, premises considered, Kroger and E&A respectfully request this Court in limine to instruct the Plaintiff, Plaintiff’s witnesses, and Plaintiff’s attorneys to refrain from testifying, mentioning or inferring, directly or indirectly, in any manner whatsoever, in the presence of the jury, the matters identified herein. Said Defendants further pray for general relief. This, the 21st day of January 2014. Respectfully submitted, THE KROGER CO.
By: s/David A. Norris Of Counsel
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Edley H. Jones III (MSB No. 3201) David A. Norris (MSB No. 100616) McGLINCHEY STAFFORD, PLLC City Center South, Suite 1100 200 South Lamar Street (Zip - 39201) Post Office Drawer 22949 Jackson, Mississippi 39225-2949 Telephone: (769) 524-2314 Facsimile: (769) 524-2333 dnorris@mcglinchey.com ejones@mcglinchey.com Attorneys for The Kroger Co. E&A SOUTHEAST LIMITED PARTNERSHIP
By: s/Mary Clift Abdalla Of Counsel
Mary Clift Abdalla (MSB No. 102734) Walter Garner Watkins, III (MSB No. 100314) Walter Garner Watkins, Jr. (MSB No. 6988) FORMAN PERRY WATKINS KRUTZ & TARDY LLP 200 South Lamar Street, Suite 100 Jackson, Mississippi 39201 Telephone: (601) 973-5967 Facsimile: (601) 960-8613 AbdallaMC@fpwk.com Attorneys for E&A Southeast Limited Partnership
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CERTIFICATE OF SERVICE I, the undersigned David A. Norris, McGlinchey Stafford PLLC, hereby certify that on this day, I electronically filed the foregoing with the Clerk of the Court using the ECF system, which sent notification of such filing to the following: Ryan O. Lumainis James M. Garner John T. Balhoff, II SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC 909 Poydras Street, 28th Floor New Orleans, LA 70112 Email: rluminais@shergarner.com Mary Clift Abdalla FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC 200 S. Lamar Street, Suite 100 Jackson, MS 39201 Email: abdallamc@fpwk.com Walter G. Watkins , Jr. FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC P.O. Box 22608 Jackson, MS 39225-2608 Email: wwatkins@fpwk.com Walter Garner Watkins , III FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC P.O. Box 22608 Jackson, MS 39225-2608 Email: trey@fpwk.com Gerald Haggart Jacks JACKS LUCIANO, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: gjacks@jlpalaw.com Jamie Ferguson Jacks JACKS LUCIANO, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: jjacks@jlpalaw.com
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Charles E. Ross WISE, CARTER, CHILD & CARAWAY P. O. Box 651 Jackson, MS 39205-0651 Email: cer@wisecarter.com Terry Dwayne Little DANIEL, COKER, HORTON & BELL - Oxford P.O. Box 1396 Oxford, MS 38655 Email: tlittle@danielcoker.com Wilton V. Byars , III DANIEL, COKER, HORTON & BELL P.O. Box 1396 Oxford, MS 38655 Email: wbyars@danielcoker.com John Evans Gough , Jr. U.S. ATTORNEY'S OFFICE - Oxford 900 Jefferson Avenue Oxford, MS 38655-3608 Email: john.gough@usdoj.gov Linda F. Cooper WISE CARTER CHILD & CARAWAY, P.A. P.O. Box 651 Jackson, MS 39205-0651 and I hereby certify that I have mailed by United States Postal Service the document to the following non-ECF participants: None THIS, the 21st day of January 2014.
s/ David A. Norris David A. Norris
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