357 memoinsupportmotioninlimine e&akroger

Case: 1:11-cv-00103-GHD-DAS Doc #: 357 Filed: 01/21/14 1 of 14 PageID #: 7018

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

MEMORANDUM OF LAW IN SUPPORT OF 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 Memorandum of Law in support of their Joint Motion in Limine: Introduction 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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The Defendants and Kmart’s Complaint Fulton Improvements (“Fulton”) currently owns the building housing the Kroger and Kmart and did so at the time of the flood; E&A previously owned these two properties, and Kroger currently leases and occupies the Kroger space in the building. (See Complaint, Doc. No. 1).

Plaintiff Kmart argues that E&A is liable for the May 2010 Kmart flooding because it allowed the Kroger store to remain in its current location. (Id.) Kmart alleges Kroger is liable for continuing its occupation of the building. (Id.) Kmart, through its engineering expert John Krewson, and otherwise, has indicated that it will also argue at trial that a LOMR issued by FEMA on this property was improper. A LOMR is a letter of map revision, issued by the Federal Emergency Management Agency or “FEMA.” In this case, FEMA issued the LOMR in 2005, removing the Kroger property from the floodway.

According to the LOMR, the store had inadvertently been included in the FEMA floodway.

(See LOMR and Letter to Corinth from FEMA, Exhibit “B”). However, it appears to be Kmart’s position that even though the LOMR issued by FEMA removed the Kroger store from the regulatory floodway, the Defendants should have disregarded the LOMR and demolished the Kroger building. (See Complaint, Doc. 1 at ¶15, 54). It also appears that Kmart will argue that the issuance of the LOMR was somehow improper due to an alleged lack of public notice or study.

(See Krewson Report attached as Exhibit “C” at p.5 ).

In support of these claims, it is anticipated that Kmart will seek to introduce inadmissible evidence at the upcoming trial of this cause, including John Krewson’s admittedly flawed opinion, testimony concerning the alleged improper issuance of the LOMR, previous Corinth flooding events, installation of certain equipment at Kroger by Fulton, hearsay internet blogs/articles and

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conversations, and lay witness testimony regarding expert matters. For the reasons set forth below, it is respectfully submitted that this evidence should be excluded.

1.

John Krewson’s Opinions and Testimony Should Be Excluded for All of the Reasons Set Forth in Defendants’ Pending Daubert Motions.

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, 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.

2.

Articles, Blogs and Newsletters Referencing Flood Events in the Kmart Area Should Be Excluded Because They Are Hearsay and Irrelevant.

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. The argument appears to be that the Defendants can be liable if they knew the property was in a flood-prone area yet took inadequate measures to protect the Kmart from flooding.

Kmart has asserted that a December 1, 2001 article published in the Northeast Mississippi Daily Journal should have put the Defendants on notice of the potential for flooding.

Any article, blog, newsletter or periodical should be excluded for several reasons. First, 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. Because the newspaper article is hearsay within hearsay, it is respectfully submitted that it should not be considered by the Court. Id.; Cutting 3

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Underwater Technologies, USA, Inc. v. Eni US Operating Co., 671 F.3d 512, 515 (5th Cir. 2012).

Likewise, any other blog, newspaper, article or periodical which Kmart seeks to introduce should also be excluded as hearsay.

Second, the Fifth Circuit Court of Appeals has also noted that it has not found a case in which a single newspaper article can 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.

Evidence is relevant under FED.R.EVID. 401 if it (1) has a tendency to make any fact more or less probable than it would be without the evidence and (2) the fact is a consequence in determining the action.

As noted in the American Jurisprudence, Second Edition, No one is chargeable with constructive notice of . . . . matter printed in a newspaper, in the absence of a statute expressly authorizing such publication and declaring the effect of compliance with its terms, or unless it is actually seen by the person to be charged. This rule is not affected by the fact that the person to be charged is a subscriber to the paper or is in the habit of reading it. If it is presumed that a person knows every fact published in a daily paper merely because he or she is a subscriber or a habitual purchaser of it, the person would be safe only by ceasing to subscribe or else by reading every word of it. To do one would be a serious privation, and the other would place a heavy burden on the individual. The law puts no citizen to a choice of such evils.

58 Am. Jur. 2d Notice §22.

A news article is not evidence of constructive notice. Accordingly, the article (and any other similar article) is irrelevant because it cannot make the allegation the Defendants had notice more or less probable, nor is the article’s recitation of the weather event a consequence as to

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whether any other Defendant, was aware of Kmart’s propensity to flood. As such, this article, and any other such article which discusses previous floods, should be excluded.

3.

Any Reference to Any Previous Flood Events in the Kmart Area Should Be Excluded as Irrelevant Because Allowing This Evidence Could Also Prejudice and Mislead the Jury.

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.

With regard to the allegation that the Kroger building caused damage to Kmart, it is respectfully submitted that to make any previous weather event relevant to this allegation Kmart would have to show (1) the previous weather event was similar to the May 2010 subject event and (2) during this weather event the Kroger building caused Kmart damage. This Kmart has not done and cannot do.

First, 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 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.

4.

Any Reference to the Kroger Building Being in a Floodway Should Be Excluded Because the Kroger Building is Not in a Floodway.

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

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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.

In 2005, FEMA issued a LOMR removing the Kroger store site from the floodway.

According to the LOMR, the store had inadvertently been included in the FEMA floodway. (See LOMR and Letter to Corinth from FEMA, Exhibit “B”). When the LOMR was issued removing Kroger from the floodway, it was effective. See 44 C.F.R. §4104(g). In short, the FEMA decision controls. In fact, Kmart’s engineering expert, John Krewson, confirmed as much in his deposition taken by the Defendants when he testified as follows: Q:

What if you want to take an existing building and you want someone to determine

that it’s no longer in a floodway or that it shouldn’t be in a floodway, that it was inadvertently in a floodway, who would decide whether it was or wasn’t?

A:

FEMA

Q:

And according to FEMA, the Kroger store is not in a floodway - -

Q:

As of today, right?

A:

That’s correct, yes.

Q:

And it wasn’t in a floodway in 2010 during the flood, right?

A:

No.

Q:

No. It was not in the floodway?

A:

It was not, no. According to FEMA.

(Exhibit “A”: Krewson deposition, page 258, line 16; page 259, line 11).

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Federal Rule of Evidence 401 sets forth the test for determining the relevancy of evidence.

Evidence is relevant if it (1) has a tendency to make any fact more or less probable than it would be without the evidence and (2) the fact is a consequence in determining the action. Here, the incorrect assertion that the Kroger building is in the floodway does not make any fact asserted by Kmart in this case more or less probable. The assertion is simply untrue, as admitted by Kmart’s own expert and as a consequence of the LOMR procedure and federal law.

Moreover, because “the Kroger building remaining in a floodway” is an untrue assertion, the assertion can be of no consequence in determining any liability issue in this case. As such, any testimony or evidence regarding Kroger remaining in a floodway should be excluded.

Additionally, even if this Court would find the assertion that the Kroger remains in the floodway somehow relevant under Rule 401 of the Federal Rules of Evidence, allowing Kmart to assert that the Kroger is in the floodway would do nothing but prejudice and mislead the jury and confuse the issues in this case. Rule 403 of the Federal Rules of Evidence allows this Court to exclude relevant evidence if the probative value of such evidence is substantially outweighed by a danger of prejudicing and misleading the jury or confusing the issues in this case, if such evidence is admitted.

Here, allowing Kmart to assert that the Kroger building is in a floodway would certainly prejudice and mislead the jury and confuse the issues presented, because the federal government has removed the Kroger from the floodway by virtue of the LOMR. Kmart’s own expert acknowledges as much. Under Federal Rule of Evidence 403, this Court should exclude any reference to the Corinth Kroger store being in a floodway when, put simply, it is not in a floodway.

To allow Kmart to suggest otherwise would prejudice and mislead the jury and confuse the issues.

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5.

Any Reference to the LOMR Being Improperly Issued Should Be Excluded Because This Court has Previously Ruled This Matter is Not a Part of Any Cause of Action in This Case.

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).

Because of this Court’s ruling, Kmart should not be allowed to present any evidence that the LOMR was improperly issued in this case or that the LOMR improperly allowed the Kroger to remain in the floodway. Such assertions by Kmart would be irrelevant under FED.R.EVID. 401 because this Court has found that Kmart cannot bring any negligence cause of action for the alleged impropriety of the LOMR except against FEMA (who has been dismissed from this lawsuit). As such, evidence as to whether the LOMR was properly issued or not has nothing to do with the causes of action against the remaining Defendants in this case.

Moreover, even if Kmart’s assertions regarding the propriety of the LOMR were somehow relevant, this Court should exclude such evidence because of the substantial danger that it would prejudice and mislead the jury and confuse the issues remaining in this case. See FED.R.EVID. 403.

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6.

Any Reference to the Property Being Located in a “Flood-Prone Area” as Such Allegation Was Not Alleged in the Complaint.

Plaintiff’s Complaint solely alleges damages stemming from Kroger’s presence in a

“floodway.” (See Complaint, Doc. No. 1). However, as noted, 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.

7.

Any Reference to a Replacement Valve Installed at Kroger Should be Excluded as Irrelevant and Because it is a Subsequent Remedial Measure.

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.

The installation of a backflow preventer at the Kroger building is irrelevant as it does not make any fact in this case more or less probable than it would be without the evidence. This is 9

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because this equipment installation addressed backflow issues at the Kroger store in June 2011.

This measure has nothing to do with the claim against the Defendants that the Kroger building’s presence caused the Kmart to flood in May 2010. In fact, Kmart’s expert has not even addressed the backflow preventer in his expert report. As such, this evidence should be excluded.

The evidence should also be excluded because the fact that Fulton paid for the installation of the backflow preventer is not a consequence in determining liability in this action. Kmart has not shown how the installation of the backflow preventer has anything to do with the Kroger’s presence allegedly causing Kmart to flood or with E&A’s alleged duty to install a protective membrane around the Kmart.

Finally, even if this Court would find the installation of the 2011 backflow preventer relevant, it is a subsequent remedial measure and the evidence should be excluded under FED.R.EVID. 407 for this additional reason.

FED.R.EVID. 407 provides: When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent remedial measures is not admissible to prove the negligence or culpable conduct in connection with the event.

First, there is no evidence that installation of the backflow preventer at the Kroger building prior to June 2011 would have mitigated the flood damage to the Kmart in 2010. But, even if there was such evidence, the installation is inadmissible as a subsequent remedial measure under FED.R.EVID. 407.

8.

Any Testimony Concerning Mr. Krewson’s Conversation with Mr. Huwe Should Be Excluded.

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 10

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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.

CONCLUSION For all of these reasons, the aforementioned testimony and evidence should be excluded by this Court.

Respectfully submitted, THE KROGER CO.

By: s/David A. Norris Of Counsel 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.

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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 13

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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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