266 memoinsupportmotiontoexcludetestimonyjohnkrewson e&a

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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

DEFENDANT E&A SOUTHEAST LIMITED PARTNERSHIP’S MEMORANDUM IN

SUPPORT OF ITS

MOTION TO EXCLUDE THE OPINIONS

OF JOHN R. KREWSON

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

its attorneys, and respectfully submits its Memorandum of Law in support of its Motion to

Exclude the Opinions of Plaintiff’s Expert John Krewson:

Factual and Procedural Background

As stated previously by this Court,

From the evening of May 1, 2010 until the early morning hours of May 2, 2010,

heavy rain pelted the Corinth, Mississippi area, causing nearby Elam Creek to

flood. Plaintiff Kmart Corporation (“Kmart”) alleges that due to the acts and

omissions of several Defendants the flood water rose and flowed forcefully in the

back of the Corinth Kmart store, rushing in the rear doors and causing extensive

damage to the store. The Corinth Kmart store was closed for repairs from the

time of the May 2010 flood until February 2011, when the store reopened for

business . . . . Kmart brings this action against Defendants The Kroger Co.

(“Kroger”); E&A Southeast Limited Partnership; Fulton Improvements, LLC;

Kansas City Southern Railway Company; and the City of Corinth.1

See Memorandum Order Granting Kroger MTD, attached hereto as Exhibit 1, at

1-2.

1 Plaintiff initially sought damages arising out of a flooding event on April 27, 2011, but Plaintiff subsequently

withdrew its allegations stemming from the 2011 flood.

Case: 1:11-cv-00103-GHD-DAS Doc #: 266 Filed: 10/08/13 1 of 16 PageID #: 3271

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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. On

November 18, 2005, FEMA issued a “Letter of Map Revision – Floodway” (“LOMR”),

determining that the Kroger building was inadvertently included in the floodway. See LOMR,

attached hereto as Exhibit 3. This LOMR revised the existing and subsequent floodway maps.

Id.

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.2 See Complaint, attached hereto as Exhibit 2, ¶¶ 29-

35.

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. Krewson

is not a licensed engineer in the State of Mississippi and does not have any certifications in

2 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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floodplain management. See Krewson Deposition, attached hereto as Collective Exhibit 5, at

185. “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.

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 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.3

Id. at 7.

In reaching these conclusions, Krewson relied on incorrect data, incomplete records and

assumptions that are clearly refuted by evidence in this case; in addition, his subsequent

deposition testimony contradicted many of the opinions issued in his report. 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 Richard R. Krewson, attached hereto as Exhibit 5, at 112-13,

133, 176-77, 229, 234, 268, 287-88.

3 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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Based upon all of these flaws, the opinions and testimony of Krewson should be excluded

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

Applicable Law

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.

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). 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). The Court stated, “[p]roposed testimony must be supported by appropriate

validation – i.e., ‘good grounds,’ based on what is known.” Id. at 590, 113 S. Ct. 2786.

“Daubert directs that the district court determine admissibility under Rule 702 by

following the directions provided in Federal Rule of Evidence 104(a). Daubert, 509 U.S. at 592,

113 S. Ct. 2786. Rule 104(a) requires the trial judge to conduct preliminary fact-finding and

make a ‘preliminary assessment of whether the reasoning or methodology underlying the

testimony is scientifically valid and whether that reasoning or methodology properly can be

applied to the facts in issue.’” Reed v. Flores, 2010 U.S. Dist. LEXIS 128093 (N.D. Miss. Dec.

3, 2010) at *6, citing Daubert at 592-93, 113 S. Ct. 2786.


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In conjunction with that analysis, the court must “make certain that an expert, whether

basing testimony upon professional studies or personal experience, employs in the courtroom the

same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”

Black v. Food Lion, Inc., 171 F.3d 308, 311 (5th Cir. 1999) citing Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 147, 199 S. Ct. 1167 (1999).

Argument

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

damage to the Kmart store during the May 2010 flood.

The deponent at Kmart’s 30(b)(6)deposition agreed that what Mr. Krewson opined is

really the basis of this lawsuit. See Deposition of Dale Menendez, attached hereto as Exhibit 6, at

205, 224. (“And Krewson is a definite – he’s part of this. He is the expert who interviewed those

people and documented the cause of loss and put it all together in a report, bringing it all together

in a cumulative manner.”). For the reasons discussed below, Krewson’s opinions must be

excluded.

a. The data relied upon by Krewson is flawed.

Krewson’s report concludes that “[t]the presence of the Kroger as well as other buildings

in the floodway increased the depth of flooding during the flood event of May 2, 2010, causing

damage to Kmart.” See Exhibit 4, at 7.

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. As this was only “a

comparative model” as testified to by Mr. Krewson and not an exact model, the flow volumes

had to be consistent to show what effect, if any, that the presence of the Kroger store had on the


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flood. Because inconsistent flood flows were used for the HEC-RAS runs, no conclusion can be

drawn regarding the effect of the Kroger building on the flood elevation at Kmart.

Q. So are you telling me that based on all this work that you’ve done, you have got

no opinion on what caused damage to the Kmart on May 2nd, 2010?

A. No, I have an opinion.

Q. Well, what’s it based on?

A. It’s based on the comparative results of the models, if the models stand up.

Q. If the models stand up?

A. That’s correct. I have agreed that there’s a problem in the model. Page 229

(emphasis added).

…..

Q. But, I mean, the whole point of that though is your flow rate needs to be right, if

you’re going to have an accurate model?

A. Yes…. That’s right. See Exhibit 5, at 268.

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. In fact, the data Krewson utilized to show that the presence of the Kroger building

caused a rise in the flood level was a flow rate in excess of the 500-year flood event. Krewson

used the flow rate for the 100-year flood event for the other two runs. Krewson admitted that

500-year floods are extremely rare events that are not reasonably foreseeable. Id. at 219-20.

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


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

building into the floodway.” Id. at 5.

Plaintiff’s awareness of Krewson’s mistakes yet continued reliance on his opinions

directly conflicts with its burden of showing that Krewson’s opinions are reliable. “The party

sponsoring the expert testimony has the burden of showing that the expert’s findings and

conclusions are based upon the scientific method and, therefore, are reliable. ‘This requires some

objective, independent validation of the expert’s methodology. The expert’s assurances that he

has utilized generally accepted scientific methodology in insufficient.’” Reed v. Flores, 2010

U.S. Dist. LEXIS 128093 at *6 (N.D. Miss. Dec. 3, 2010), quoting Moore v. Ashland Chem.,

Inc., 151 F.3d 269, 276 (5th Cir. 1998).

Krewson agreed that it was important to be “very deliberate and careful about the

variables” put into the HEC-RAS model, but this step in his analysis is flawed and unreliable.

See Exhibit 5 at 193-94. “[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.

2. 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.

Q. Exhibit 8 is an aerial – a 2010 aerial with the floodway and the floodplain

delineated on it. Can you take a look at that?

A. Okay.


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Q. And you notice that there are several buildings, a portion of which are –

all of which are in the floodway are circled in blue. Do you see that?

A. Yes.

Q. Did you model any of those buildings in any of your models?

A. I did not.

Q. But they were there at the time of the flood; is that correct?

A. That’s correct.

Q. And your model did not take any of those into account?

A. That’s correct. Id. at 176-77.

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 Affidavit of Jamie Monohan, attached hereto as Exhibit 8.

3. Krewson did not attempt to model the actual event.

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.

As Krewson conceded:

Q. So you weren’t trying to model what happened on May 2nd, 2010?

A. I was not. I was trying to do a comparative model to see that the impact.

Q. So are you telling me that based on all this work that you’ve done, you have got

no opinion on what caused damage to the Kmart on May 2nd, 2010?


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A. No, I have an opinion.

Q. Well, what’s it based on?

A. It’s based on the comparative results of the models, if the models stand up.

Exhibit 5, at 229.

….

Q. Why didn’t you actually use the data from the May 1st and 2

nd, 2010, storm as

opposed to some 2009 study?

A. Well, as we have discussed earlier, I didn’t have hard numbers on either the

rainfall event or the flood event, so it would have been very difficult and probably

impossible to do.

Q. You might have reached a different result, too, right?

A. I don’t think so, not the -- The result being a comparative result, it’s important to

understand that I wasn’t trying to demonstrate a specific number value, but to

come up with a comparative result. Id. at 112-113.

…..

Q. How many times have you used it to try to replicate a flood to determine the case?

A. Never that I know of. Id. at 132.

….

Q. So you did not use the HEC-RAS model in this case to determine the cause of the

flood on May 2nd

, 2010?

A. No. I think, as I testified earlier, I was using to make comparative analysis of the

effects of changes in the floodway in the channel. Id. at 133.

According to the affidavit of Jamie Monohan, the flow data should have been refined to

replicate the peak flood flow that actually occurred on Elam Creek on May 2, 2010. If he had

chosen to do so, Krewson could have identified high water marks, such as the debris show in

Figure 18 of the Krewson report, when he visited the site immediately following the May 2010

flood. “These high water marks could have been flagged or quickly measured height above


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grade and later surveyed to establish more reliable estimates of the peak flood elevations at these

locations.” See Exhibit 8. 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).

4. Krewson’s opinions are founded on assumptions and speculation.

Krewson based a large portion of his report on unfounded assumptions.4 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).

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 (“When I wrote the report, that was

my intent. But since I’ve seen the construction plans, it appears that it complied, as far as an

outside review would have been, because on the construction plans that’s out of the floodway

and floodplain as shown on the construction drawings.”).

Q. So you have looked at the original construction plans?

A. Yes.

Q. And you say that it shows these two buildings not being in the floodplain?

A. That’s correct.

4 “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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Q. Does it also show them being -- Does it also show that they are not in the

floodway?

A. That’s correct. Id. at 241-242.

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.).

However, the FEMA revalidation letter explains that “since the new FEMA maps dated

September 17, 2010 will not be revised as a result of these Letter of Map Change cases, they

remain in effect and continue to clarify the FIRM’s depiction of these properties (including the

Kroger property).

Q. … You have suggested several times in your report that the Kroger store is

located in a floodway?

A. Yes.

Q. All right. Based on the LOMR issued by FEMA, that’s not a true statement, is it?

A. On FEMA’s map, it’s in the floodway, so I’m not sure exactly how to answer that.

Q. Well, the whole purpose of the LOMR was to take the Kroger building out of the

floodway, was it not?

A. That’s true.

….

Q. And for the record, identify that document, please, since you are looking at it and

I’m not.

A. It’s a letter from the Federal Emergency Management Agency dated August 3rd

or

31 --….. addressed to Mayor Latch of the City of Corinth.

Q. And what’s the substance of that letter?

A. It revalidates the determination for properties and/or structures in the reference

community as described in the Letters of Map Change previously issued by the


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Department of Homeland Security’s Federal Management Agency, FEMA, on the

dates listed on the enclosed table.

“As of the effective date shown, will revise the Effective National Flood

Insurance Program, NFIP, map dated September 17, 2010, and will remain in

effect until superseded.”

Q. Is there an attachment to that letter?

A. Yes.

Q. And what is that attachment?

A. It’s a list of three -- I guess they’re all LOMAs or LOMCs.

Q. And is the Kroger store identified, maybe not by name, but by property

description?

A. Yes. Well, Kroger at Fulton, yes.

Q. You did not see this until yesterday?

A. No. Exhibit 5 at 67-70.

….

Q. And according to FEMA, the Kroger store is not in a floodway 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. Id. at 259.

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


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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.”). As such, Krewson’s opinion regarding Kroger’s presence in a floodway should be

excluded.

5. Krewson failed to rule out alternative causes.

“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). 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. 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).

CONCLUSION

Because Krewson’s data is admittedly flawed and his opinions rely upon the flawed data,

because he failed to properly model the actual conditions, because he relied upon assumptions

and speculation, and because he failed to take into account alternative causes of the flooding of

the Kmart store, Krewson’s expert opinions in this matter should be excluded.

Date: October 8, 2013

Respectfully submitted,

E&A SOUTHEAST LIMITED PARTNERSHIP

BY:


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/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]

Gerald Haggart Jacks

JACKS, ADAMS & NORQUIST, P.A.

P. O. Box 1209

Cleveland, MS 38732-1209


mailto:[email protected]



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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


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266 memoinsupportmotiontoexcludetestimonyjohnkrewson e&a