257 motioninliminetoexcludetestimonyroberteley kmart combine

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

MOTION IN LIMINE TO EXCLUDE OR LIMIT TESTIMONY OF ROBERT ELEY

Plaintiff, Kmart Corporation, moves to exclude the proposed testimony of Robert Eley, a

purported expert witness supposedly jointly retained by Defendants, Fulton Improvements, LLC,

E&A Southeast Limited Partnership, Kansas City Southern Railway Co., and The Kroger Co.

(collectively ADefendants@), because Mr. Eley=s analysis does not meet all the elements of Federal

Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. 1

$ Mr. Eley conceded at his deposition that he has no training, knowledge or experience regarding at least one floodproofing measure C floodproof or watertight doors. Thus Mr. Eley is not qualified to offer a broad opinion as to whether

Mr. Eley=s

anticipated testimony that Ano amount of caulking, waterproofing or protective membrane would

have prevented water from entering the Kmart building during the flood event,@ should be

excluded or limited for the following reasons:

any

floodproofing measures would have prevented water from entering the Kmart building.

$ Mr. Eley=s opinion that no amount of floodproofing measures C specifically, floodproof doors C would have prevented water from entering the Kmart building in Corinth, Mississippi is not the product of reliable principles and methods, and is entirely devoid of supporting data.

1 509 U.S. 579 (1993).

Case: 1:11-cv-00103-GHD-DAS Doc #: 257 Filed: 10/08/13 1 of 3 PageID #: 2590

In addition, Mr. Eley=s anticipated testimony that Athe City of Corinth correctly

interpreted the pre-construction site survey data (Existing Conditions Plan), compared this data

to the 1981 FIRM maps and properly concluded that the 1981 Flood Maps were incorrect, or

inconsistent with the existing conditions on the ground at this location@ should be excluded or

limited because it constitutes a legal conclusion that impermissibly instructs the jury on which

conclusions to reach.

In support of its Motion, Kmart submits the following:

$ Exhibit AA@ - Robert Eley=s Expert Report (June 22, 2013) $ Exhibit AB@ - A photograph depicting the rushing flood waters entering

through the entryway doors $ Exhibit AC@ - Lease Agreement (December 17, 1991)

$ Exhibit AD@ - Deposition of Robert Eley

$ Exhibit AE@ - Deposition of David M. Huwe

Accordingly, Kmart respectfully requests that this Court grant its Motion to Exclude the proffered expert testimony of Robert Eley.

/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


3

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 8th day of October, 2013.

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


Case: 1:11-cv-00103-GHD-DAS Doc #: 257-1 Filed: 10/08/13 1 of 4 PageID #: 2593




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257 motioninliminetoexcludetestimonyroberteley kmart combine