Case: 1:11-cv-00103-GHD-DAS Doc #: 364 Filed: 01/27/14 1 of 3 PageID #: 7133
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 RESPONSE TO THE KROGER CO.’S MOTION IN LIMINE Plaintiff, Kmart Corporation, submits this Response to Kroger’s Motion in Limine. This Court should not consider Kroger’s motion because it was not timely filed. Pursuant to the Case Management Order, the deadline to file motions in limine was January 20, 2014, but Kroger filed its motion on January 21, 2014. Thus, the motion is untimely and should not be considered by this Court. Moreover, this Court should deny Kroger’s motion to the extent it seeks to exclude the testimony of Kmart’s expert, John R. Krewson, because, as more fully set forth in Kmart’s Response to Kroger’s Motion to Exclude Mr. Krewson’s Opinion and in Kmart’s Motion to Amend or Alter Judgment, Mr. Krewson’s testimony is relevant, reliable and helpful to the trier of fact. Additionally, Kroger’s motion should be denied to the extent it seeks to exclude evidence of previous flood events and regarding the “flood-prone” nature of the subject area because this evidence is relevant to Kmart’s negligence claim against Kroger. Kroger can be found negligent if it knew or should have known that its property was in a floodway or a flood-prone area, yet took inadequate measures to protect Kmart against the risk of flooding. Indeed, this Court has already recognized that Kmart has a viable negligence claim against Kroger for Kroger’s failure to maintain