265 motiontoexcludetestimonyjohnkrewson e&a combine

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

KMART CORPORATION, PLAINTIFF

VS. CIV. ACT. NO. 1:11CV103-GHD-DAS

THE KROGER CO., et al DEFENDANTS

E&A SOUTHEAST LIMITED PARTNERSHIP’S

MOTION TO EXCLUDE THE OPINIONS

OF JOHN R. KREWSON

COMES NOW Defendant E&A Southeast Limited Partnership (“E&A”), by and through

its undersigned counsel, and files this, its Motion to Exclude the Opinions of John R. Krewson,

and in support thereof, would show unto the Court the following:

1. As set forth previously by this Court in its Memorandum Order Granting Kroger’s

Motion to Dismiss, “[i]n May 2010, flash floods hit portions of Arkansas, Kentucky, Tennessee

and northern Mississippi, resulting in extensive property damage and several fatalities.” See

Memorandum Order Granting Kroger’s Motion to Dismiss, attached hereto as Exhibit 1, at 1-2.

2. The Kmart store in Corinth, Mississippi was built in 1992 and is located in a

shopping center that is also anchored by a Kroger grocery store. Kmart (“Plaintiff”) alleges that

the Kroger store was built in a regulatory floodway and contends that as a result, the Kroger store

should have been leveled. See Complaint, attached hereto as Exhibit 2, at ¶ 14 and ¶ 16.

3. On November 18, 2005, FEMA issued a “Letter of Map Revision – Floodway”

(“LOMR”), determining that the Kroger building was inadvertently included in the floodway.

Case: 1:11-cv-00103-GHD-DAS Doc #: 265 Filed: 10/08/13 1 of 10 PageID #: 3202

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See LOMR, attached hereto as Exhibit 3. This LOMR revised the existing and subsequent

floodway maps. Id.

4. In regards to Defendant E&A, Plaintiff alleges the following: (1) that the Kroger

store was improperly located in a floodway that existed at the time the store was constructed and

during E&A’s ownership of the property; (2) that E&A improperly aided and supported the

issuance of a LOMAR [sic] for the Kroger store from FEMA in 2005, which allowed the Kroger

store to remain in the floodway; (3) that E&A was aware of the LOMAR [sic] and knowingly

and improperly allowed its building to remain in the floodway; (4) that the Kroger’s presence in

the floodway caused a displacement of water and a rise in the water level resulting in the flood

damage incurred at the neighboring Kmart store; and (4) that Kroger’s location within the

floodway also altered the water flow from standing water to a rushing, forceful water flow that

resulted in flood damage to the Kmart store.1 See Complaint, attached hereto as Exhibit 2, ¶¶ 29-

35.

5. Kmart retained John Krewson (“Krewson”), a professional engineer, to offer

opinions as to the causation of the May 2010 flooding of the Kmart store in Corinth, Mississippi.

6. “To determine the impact of the Kroger encroachment and general conditions of

the flood hazard of the time of the May 2, 2010 flood, [Krewson] prepared a preliminary HEC-

RAS evaluation for the site using as-built survey data and the flows for the area listed in

FEMA’s 2009 Flood Insurance Study.” See Exhibit 4, at 6.

7. According to the conclusions reached in his report, Krewson opined 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

1 Absent from Krewson’s conclusions is any mention of an altered flow of water related to the presence of the

Kroger building. See Krewson’s Report, attached here to as Exhibit 4, at 7.


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been protected by waterproofing, the Kmart store would have flooded, or had flooding occurred,

it would have occurred at such a depth that normal preventative actions by the store’s staff at the

time of the event would have been able to protect the store from damage.2 Id. at 7.

8. During his deposition testimony, Krewson admitted that he did not model the

actual flooding that occurred on May 2, 2010 when performing his HEC-RAS analysis; he

admitted there were mistakes in his data that affected the accuracy of the results; he admitted that

he could not testify that the Kmart store would have flooded regardless of the location of the

Kroger store; and that he did not account for all of the physical obstructions in the floodway that

could have affected the floodwaters. See Deposition of John R. Krewson, attached hereto as

Exhibit 5, at 112-13, 133, 176-77, 229, 234, 268, 287-88.

9. Based upon these flaws, the opinions of Krewson should be excluded because

they fail to satisfy the requirements of Rule 702 of the Federal Rules of Civil Procedure.

10. Rule 702 of the Federal Rules of Evidence provides:

A witness who is qualified by knowledge, skill, experience, training, or education

may testify in the form of an opinion or otherwise if (a) the expert’s scientific,

technical, or other specialized knowledge will help the trier of fact to understand

the evidence or to determine a fact in issue; (b) the testimony is based on

sufficient facts or data; (c) the testimony is the product of reliable principles and

methods; and (d) the expert has reliably applied the principles and methods to the

facts of the case.

11. Under the Rules of Evidence, the trial judge must ensure that evidence that is

admitted is not only relevant but reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 113 S. Ct. 2786, 2795 (1993).

2 The only causative conclusion reached by Krewson that involves an allegation as to Defendant E&A stems from

the alleged presence a portion of the Kroger building within a floodway. All other conclusions are inapplicable to

Defendant E&A.


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12. In Daubert, the Supreme Court “charged trial judges with the responsibility of

acting as gatekeepers to exclude unreliable expert testimony.” See Advisory Committee’s Note

on 2000 Amendment of Fed. R. Evid. 701, citing Daubert, 509 U.S. 579, 113 S. Ct. 2786 (1993).

13. Plaintiff cannot show that the presence of the Kroger building caused any damage

to the Kmart store during the May 2010 flood.

14. Krewson concluded that based upon the HEC-RAS evaluation the Kroger

building caused a one (1) foot rise in the floodwaters that inundated the Kmart store. However,

as pointed out by defendants during his deposition, Krewson used an incorrect flow value that

was disproportionately larger than the flow value used on the other runs.

15. At his deposition, Krewson conceded that he did not know what the correct

numbers for the flow rates should be but that the conflict in the numbers affected the accuracy of

his report. Id. at 117.

16. Subsequently, Plaintiff attempted to amend Krewson’s report by using the correct

flow rates. Although the Court denied Plaintiff’s motion to amend Krewson’s report, the Court

noted that “[t]he proposed amended report shows that with the correct flow rates, the presence of

the Kroger building does not create a substantial rise in the level of the flood.” See Order,

attached hereto as Exhibit 7, at 3. In addition, “Krewson’s error meant the difference between a

reasoned theory of liability and no viable theory of liability relating to the alleged intrusion of the

Kroger building into the floodway.” Id. at 5.

17. “[A]ny step that renders the analysis unreliable … renders the expert’s testimony

inadmissible.” FED. R. EVID. 702 Advisory Committee’s Note (2000) (quoting In Re Paoli R.R.

Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994). Consequently, Krewson’s testimony should

be excluded.


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18. Krewson failed to model all of the physical features in the floodplain area.

Krewson relied solely on his HEC-RAS models to show that the Kroger building caused an

increase in the floodwater. However, he failed to include other physical features that might have

influenced the flow of the floodwaters. Krewson did not model the KCSR bridge nor did he

model other structures within the floodplain. Exhibit 5, at 287-88.

19. As set forth in the Affidavit of Jamie Monohan, “All physical features known to

be in place at the time of the flood, which can be represented in the model geometry, should have

been included in these HEC-RAS models… The reliable engineering standard for hydraulic

modeling requires all physical features that may have influenced the conveyance of the subject

floodwaters to be included in the model. Without including all physical features, the opinion of

Mr. Krewson is not reliable.” See Monohan Affidavit, attached here to as Exhibit 8.

20. Krewson never attempted to model the actual flooding of May 2, 2010 but instead

only attempted a hypothetical comparison to determine the impact of the Kroger’s store’s

presence.

21. Excluding that his “comparative model” is flawed, Krewson’s opinion based upon

the HEC-RAS modeling should be excluded because the comparative model fails to “speak

clearly and directly to the issue in dispute in the case,” and will only mislead or confuse the jury

in regards to the actual events of the May 2, 2010 flood. Daubert v. Merrell Dow Pharms., Inc.,

43 F.3d 1311, 1321 n. 17 (9th Cir. 1995).


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22. Krewson based a large portion of his report on unfounded assumptions.3

However, “the whole point of Daubert is that expert can’t ‘speculate.’ They need analytically

sounded bases for their opinions.” DePaepe v. GMC, 151 F.3d 715, 720 (7th Cir. 1998).

23. Krewson testified that when he first issued his report, he assumed that the

building construction did not comply with regulations, however, he later admitted that the

construction plans did not show the property in the floodway and the construction plans were

more detailed as to the actual property conditions. See Exhibit 5 at 244-45.

24. Krewson incorrectly assumed that the Kroger building was still located within the

floodway because the 2010 FEMA map did not redraw the floodway limits. (“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 is [sic] being the regulatory floodway.” Exhibit 4 at 3.).

25. Based upon his deposition testimony, Krewson’s assertion that the Kroger

building was in a floodway is incorrect. See Guillory v. Domtar Indust. Inc., 95 F.3d 1320, 1331

(5th Cir. 1996) (“Certainly nothing in Rule 703 requires a court to admit an opinion based on

facts that are indisputably wrong. Even if Rule 703 will not require a court to admit an opinion

based on facts that are indisputably wrong, general principles of relevance will. In other words,

an opinion based totally on incorrect facts will not speak to the case at hand and hence will be

irrelevant. In any event such an opinion will not advance the express goal of ‘assisting the trier

of fact’ under Rule 702.”).

26. “The exclusion of alternative causes is necessary for a reliable causation opinion.”

Green v. La. Dep’t of Pub. Safety & Corr., 2010 U.S. Dist. LEXIS 39182 at *14 (W.D. La. April

19, 2010) (citing Michaels v. Avitech, Inc., 202 F.3d 746, 753 (5th Cir. 2000).

3 “And then you tried to get your model to match up with theirs, which basically made the assumption that this was

the 100-year runoff flood event in your model, right? Yes.” Exhibit 5 at 267; “The first model has assumptions.” Id.

at 183.


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27. Not only did Krewson fail to include the other buildings in the floodway in his

HEC-RAS modeling, but also Krewson conceded that he could not say that the Kmart store

would have flooded regardless of the presence of the Kroger store, nor could he rule out that

possibility. Exhibit 5 at 234.

28. Based upon these factors, Krewson’s opinions must be excluded because “[t]he

inadequate treatment of other potential causes necessarily undermines the reliability of an

expert’s opinion.” Green, at*15, citing Brown v. Parker-Hannifin Corp., 919 F.2d 308, 311-12

(5th Cir. 1990).

29. For the reasons set forth herein, and as further as forth in E&A’s supporting

memorandum which is contemporaneously-filed herewith and incorporated herein by reference,

Krewson’s opinions should be excluded because they fail to satisfy the standards of Daubert and

Rule 702 and is other inadmissible under Rule 401.

30. In support of its Motion, E&A relies upon the pleadings filed in this action, its

supporting memorandum, and the following exhibits:

a. Exhibit 1: Memorandum Order Granting Kroger MTD

b. Exhibit 2: Complaint

c. Exhibit 3: “Letter of Map Revision – Floodway” (“LOMR”)

d. Exhibit 4: Krewson’s Report

e. Exhibit 5: Deposition of John R. Krewson

f. Exhibit 6: Deposition of Dale Menendez

g. Exhibit 7: Order denying Motion to Amend

h. Exhibit 8: Affidavit of Jamie Monohan

THIS, the 8th

day of October, 2013.


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Respectfully submitted,

E&A SOUTHEAST LIMITED PARTNERSHIP

BY:

/s/Mary Clift Abdalla MARY CLIFT ABDALLA (Miss. Bar No. 102734)

WALTER GARNER WATKINS, III (Miss. Bar No. 100314)

WALTER GARNER WATKINS, JR. (Miss. Bar No. 6988)

Forman Perry Watkins Krutz & Tardy LLP

200 South Lamar Street, Suite 100

Jackson, MS 39201

Telephone: (601) 973-5967

CERTIFICATE OF SERVICE

I, the undersigned Mary Clift Abdalla, one of the attorneys for E & A, hereby certify that

I have this day served electroincially using the ECF system, a true and correct copy of the

foregoing document 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: [email protected]

Edley H. Jones III

David A. Norris

Stephen F. Schelver

McGLINCHEY STAFFORD, PLLC

City Center South, Suite 1100

200 South Lamar Street (Zip - 39201)

Post Office Drawer 22949

Jackson, Mississippi 39225-2949

Telephone: (769) 524-2300

Facsimile: (769) 524-2333

Email: [email protected]; [email protected]

[email protected]


mailto:[email protected]



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Gerald Haggart Jacks

JACKS, ADAMS & NORQUIST, P.A.

P. O. Box 1209

Cleveland, MS 38732-1209


Jamie Ferguson Jacks

JACKS, ADAMS & NORQUIST, P.A.

P. O. Box 1209

Cleveland, MS 38732-1209


Charles E. Ross

WISE, CARTER, CHILD & CARAWAY

P. O. Box 651

Jackson, MS 39205-0651


Terry Dwayne Little

DANIEL, COKER, HORTON & BELL - Oxford

P.O. Box 1396

Oxford, MS 38655


Wilton V. Byars , III

DANIEL, COKER, HORTON & BELL

P.O. Box 1396

Oxford, MS 38655


Linda F. Cooper

WISE CARTER CHILD & CARAWAY, P.A.

P.O. Box 651

Jackson, MS 39205-0651

THIS, the 8th day of October 2013.

/s/ Mary Clift Abdalla

Mary Clift Abdalla

OF COUNSEL:


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FORMAN PERRY WATKINS KRUTZ & TARDY, LLP

200 South Lamar St. 100

Jackson, Mississippi 39201

Post Office Box 22608

Jackson, Mississippi 39225-2608

Phone: (601) 960-8600

Facsimile: (601) 960-8613


Case: 1:11-cv-00103-GHD-DAS Doc #: 265-1 Filed: 10/08/13 1 of 2 PageID #: 3212

265 motiontoexcludetestimonyjohnkrewson e&a combine

Documents

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kroger encroachment

john krewson krewson

femas regulatory floodway