UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION KMART CORPORATION, Plaintiff As CIV. ACT. NO. 1:11-CV-103-GHD-DAS versus THE KROGER CO., et al. Defendants REBUTTAL TO RESPONSE TO MOTION IN LIMINE TO EXCLUDE OR LIMIT THE TESTIMONY OF ROBERT ELEY May It Please The Court: Plaintiff, Kmart Corporation, submits this Rebuttal to the Response to Kmart’s Motion in limine to Exclude or Limit the Testimony of Robert Eley, the purported expert witness jointly retained by Defendants, Fulton Improvements, LLC, E&A Southeast Limited Partnership, and The Kroger Co. (collectively “Defendants”). Mr. Eley’s anticipated testimony that “no 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 because, by his own 1 admissions, he has no training or knowledge regarding at least one floodproofing measure (flood- proof or watertight doors) suggested by Kmart and its expert, John R. Krewson. Mr. Eley’s broad assertion that no floodproofing measure would have prevented water from entering the Kmart building is, therefore, baseless and devoid of supporting data. Moreover, Mr. Eley’s testimony that “the 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 See Robert Eley’s Expert Report (June 22, 2013), attached as Exhibit “A,” at 3. 1 Case: 1:11-cv-00103-GHD-DAS Doc #: 333 Filed: 11/15/13 1 of 14 PageID #: 6303
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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
KMART CORPORATION,
PlaintiffAs CIV. ACT. NO. 1:11-CV-103-GHD-DAS
versus
THE KROGER CO., et al.
Defendants
REBUTTAL TO RESPONSE TO MOTION IN LIMINETO EXCLUDE OR LIMIT THE TESTIMONY OF ROBERT ELEY
May It Please The Court:
Plaintiff, Kmart Corporation, submits this Rebuttal to the Response to Kmart’s Motion in
limine to Exclude or Limit the Testimony of Robert Eley, the purported expert witness jointly
retained by Defendants, Fulton Improvements, LLC, E&A Southeast Limited Partnership, and The
Kroger Co. (collectively “Defendants”). Mr. Eley’s anticipated testimony that “no 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 because, by his own1
admissions, he has no training or knowledge regarding at least one floodproofing measure (flood-
proof or watertight doors) suggested by Kmart and its expert, John R. Krewson. Mr. Eley’s broad
assertion that no floodproofing measure would have prevented water from entering the Kmart
building is, therefore, baseless and devoid of supporting data. Moreover, Mr. Eley’s testimony that
“the 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
See Robert Eley’s Expert Report (June 22, 2013), attached as Exhibit “A,” at 3.1
were incorrect, or inconsistent with the existing conditions on the ground at this location” should2
be excluded or limited because it constitutes a legal conclusion that impermissibly instructs the jury
on which conclusions to reach in this matter.
I. Law and Argument
A. This Court should disregard those portions of Defendants’ Response regardingthe admissibility of the testimony of Kmart’s expert, Mr. John R. Krewson.
While this motion deals exclusively with the testimony of Mr. Eley, Defendants devote
several paragraphs of their Opposition arguing that Kmart’s expert, John R. Krewson, should be
excluded. Defendants previously devoted over seventy-five pages to the admissibility of Mr.3
Krewson’s testimony by filing separate motions to exclude his testimony. But the admissibility of
Mr. Krewson’s testimony is not at issue in this motion and should not be considered as part of this
motion. Defendant’s discussion of the admissibility of Mr. Krewson’s testimony is merely an
attempt to distract this Court from the fact that the opinion of their expert, Mr. Eley, is unqualified
and based on insufficient and unreliable information. The admissibility of Mr. Krewson’s testimony
has already been briefed in prior motion practice and, to the extent that Defendants now argue this
point, Kmart refers this court to its Omnibus Response in Opposition to the Motions to Exclude the
B. Mr. Eley’s testimony that no amount of flooding proofing measures would haveprevented the flooding at Kmart’s store should be excluded because Mr. Eleyis not qualified to offer the opinion and the opinion is based on insufficientinformation.
Defendants essentially argue that Mr. Eley’s testimony that no amount of floodproofing
would have prevented the flooding at Kmart is admissible because it is based on his experience as
a project engineer for residential and commercial development and as a civil engineer for residential
and commercial design projects. The sole basis for Mr. Eley’s opinion is his alleged experience, as
demonstrated by Mr. Eley’s testimony:
Q: Okay. Paragraph 3 says, “It is my opinion that no amount of caulking,waterproofing, or protective membrane would have prevented water from entering the Kmart building during the flood event. Did I read that correctly?
A: Yes, sir.
Q: What is that opinion based on?
A: Thirty-five years of experience.
Q: Okay.
A: And an engineering degree.5
Yet despite his alleged experience, Mr. Eley admitted that he has no knowledge regarding all
available sources of flood protection measures and thus he cannot reliably state that no flood
prevention measures would have prevented the flooding at Kmart’s store.
In particular, Mr. Eley admitted that he had no knowledge regarding flood-proof doors or
barriers, an example provided by Kmart and Mr. Krewson of a potential flood protection measure
See Deposition of Robert Eley (September 6, 2013), attached as Exhibit “B,” at p. 96, ll. 10-19.5
that could have been taken to prevent flooding at Kmart’s store. At least one month prior to the6
Defendants’ expert designation deadline, both Defendants and Mr. Eley were aware that a flood-
proof door or barrier system was one of several options proposed by Kmart and Mr. Krewson as a
potential flood protection measure. On May 20, 2013, Kmart responded to Interrogatories
propounded by Fulton regarding the flood protection measures that should have been taken by Fulton
to protect Kmart from flooding during the May 2, 2010 storm and stated as follows:
Fulton had an obligation under its lease with Kmart to keep Kmart’s leased premisesin a safe, dry, and tenantable condition. Fulton failed to take any necessary measureto protect Kmart’s store and to maintain a safe, dry, and tenantable condition asrequired under the lease, which caused the store to suffer flood damages as a resultof the May 2, 2010 rain event. It was up to Kmart’s landlord, and not up to Kmart,to take these measures. The “protective membrane” referenced in Kmart’sComplaint was only one such protective measure that could have been adopted byKmart’s landlord to keep the Kmart building in a safe, dry and tenantable conditionduring the May 2, 2010 flood. Nevertheless, by way of illustration only, Fultoncould have used a silicone sealant around the base of the building. Fulton also couldhave provided a flood boot system as an extension of the outer wall of the Kmartstore that hermetically seals in front of the building entry. Fulton also could haveprovided a water detention system so that flood water was adequately diverted to adetention pond and away from the Kmart building. Fulton could have maintained adrainage system at the site so that water was adequately drained away from Kmart’sproperty. 7
Then, on May 22, 2013, Mr. Krewson testified regarding flood-proof doors and barriers as a potential
flood prevention measure that could have been taken at Kmart’s store to prevent the flooding that
occurred after the May 2, 2010 event. Mr. Eley was present at Mr. Krewson’s deposition, where he
testified as follows:
Q: Are you suggesting that - - Well, let me rephrase that. How would thatcaulking and waterproof be put on the building, whatever the surface was?
Id., p. 98, ll. 2-21 and p. 107, ll. 19-21.6
See Kmart’s Response to Fulton’s Interrogatory No. 11, attached as Exhibit “C” (emphasis added).7
A: Well, caulk around windows, caulk around the openings, have to caulkaround anything where water could enter, obviously. And somehow oranother, you have to waterproof the wall, either with a waterproof sealant orusing a physical barrier on the exterior of the wall.
Q: How do you waterproof doors which are busted open by landscape timbersallowing the water to enter? How do you waterproof against that?
A: Well, there’s a commercial product, in fact, there are a number of companiesI think that do flood waterproofing. And the system that Sears Kmart hasused is a barrier that is removable and can be put in place with severaltechniques. Some are mechanically operated, and they can be closedelectronically. Some you have to - - the staff has to come out and actuallyplace the barrier.
Q: Where are the barriers located?
A: It fits across the front of the door on the exterior of the door.
Q: And you say Sears and Kmart have used those barriers?
A: Yes. 8
Mr. Krewson further explained that this same type of flood protection system could be
extended around the entire building:
Q: All right. And you talk about this protective membrane. Tell me in more, inMr. Balhoff’s term, in layman’s language what you mean by a protectivemembrane.
A: Well, I mean, you can extend - - Well, there are systems where you can putout an inflatable. Actually, you fill it up with water around the perimeter ofthe building. It’s kind of extreme, but you can do that where you actuallypump water in it and create a water enclosure around the building to protectthe building.
I’ve never seen them when they didn’t - - weren’t able to protect the wallswithout a membrane, but you can also extend the barrier system around thebuilding.
See Deposition of John R. Krewson (May 22, 2013), attached as Exhibit “D,” p. 119, l. 23 - p. 120,8
Additionally, Mr. Eley made no attempt to model or otherwise demonstrate the effect of hydrostatic
pressure on the building when certain flood protection measures, such as the flood-proof doors or
barriers, were in place and thus has no reliable support for this opinion.
Mr. Eley’s testimony that water would have entered through the walls and weep-holes in the
brick is similarly unsupported. Indeed, the testimony of Mr. Krewson and Kmart’s corporate
representative, Mr. Dale Menendez, suggests that a flood barrier above 22 inches could have been
constructed around the entire Kmart building as a flood protection measure. Mr. Krewson testified
that the flood barrier system could have been extended beyond the doors and around an entire
building. Mr. Menendez, testified that these flood-proof barriers could be built well above two14
feet:
But there’s not enough time to always sandbag. Well, then you can boot a building,hermeticallly seal the exterior of the building to height of four foot, two foot, six foot,or whatever is required, and caulk and seal the perimeter
And when the floodwaters - - and you are reaching waters that are coming to floodlevel, you have the Kmart team know that they are in a flood zone, and ask that theyinstall the floodgates. They hook on hinges. You slap them and lock them shut, andit acts as an outer wall and keeps the water outside, so that you’re maintainingdrainage. 15
Mr. Eley does not explain how water, in that instance, would have entered into the building. This
further evidences that Mr. Eley has no support for his opinion that no flood protection measure
would have prevented the flooding at Kmart’s store.
See Ex. E, Depo. of Krewson, p. 122, ll. 4-21. 14
See Deposition of Dale Menendez (July 19, 2013), attached as Exhibit “F,” p. 248, l. 21 - p 249,15
of opinions which would merely tell the jury what result to reach.” “Opinions that provide legal
conclusions are not helpful to the trier of fact and are therefore inadmissible.” 18
Mr. Eley’s opinion should be excluded because he recites what he believes to be the correct
interpretation and proper conclusion by the City of Corinth of the site survey data against the data
from the 1981 map. When questioned about the 1981 FIRM map, which shows that half of the
Kroger store is within a floodway, Mr. Eley testified that the Kroger store was incorrectly included
in the floodway. His observation was based on the construction drawings that were developed for
construction of the Kmart and Kroger stores. Those drawings have the Kroger store outside of a
floodway.
Mr. Eley’s opinion is precisely the kind Rule 704 was intended to avoid. Although Mr. Eley
may be permitted to testify regarding his opinion as to the purported differences in the two sets of
data, he should not be permitted to testify whether the City of Corinth’s interpretation was correct.
The Defendants’ reliance on United States v. Izydore is misplaced. In allowing the bankruptcy19
trustee’s opinion that money was not legally taken, the court noted that the trustee was not testifying
Trinity Yachts, LLC v. Thomas Rutherfoord, Inc., 2013 WL 2406552, *3 (S.D. Miss. May 31,18
2013) (citing Fed. R. Evid. 702; United States v. Izydore, 167 F.3d 213, 218 (5th Cir.1999); see also Petersv. City of Waveland, 2012 WL 1854311, *2 (S.D. Miss. Feb. 20, 2012); BNY Mellon, N.A. v. AffordableHoldings, Inc., 2011 WL 2746301, *2 (N.D. Miss. July 12, 2011) (“[T]o make it abundantly clear [ ], it isaxiomatic that an expert is not permitted to provide legal opinions, legal conclusions, or interpret legal terms;those roles fall solely within the province of the court.”) (quoting Roundout Valley Cent. Sch. Dist. v. ConecoCorp., 321 F. Supp. 2d 469, 480 (N.D.N.Y. 2004); Jones v. Reynolds, 2008 WL 2095679, *12 (N.D. Miss.May 16, 2008) (“To the extent that [the plaintiff’s expert] asserts legal conclusions and conclusions as to theultimate fact, his expert testimony is to be struck.”); Shoemake v. Rental Serv. Corp., 2008 WL 215818, *3(S.D. Miss. Jan. 22, 2008) (finding that the expert’s testimony should be limited to the extent it purports tomake legal conclusions).
as an expert witness when she made the statement. Moreover, the trustee made the statement while20
discussing her efforts to account for missing money and the court found the opinion was more
accurately described not as whether the appellants were guilty of certain crimes, but whether a
certain sum of money belonged to the appellants in that matter. 21
Here, Mr. Eley is not “simply opining as to how the City of Corinth reached its conclusion
to allow the project to move forward when, at the time of the Kroger construction, the LOMR had
not yet been issued.” Rather, Mr. Eley is offering the legal conclusion for the purpose of telling the
jury what result to reach in this litigation. Kmart has alleged that the Kroger store was improperly
located in a floodway and that Kroger’s presence in the floodway contributed to the flooding at
Kmart’s store. Mr. Eley’s testimony that the City correctly concluded that the 1981 Flood Maps
were incorrect with relation to the location of the Kroger store touches the cause of the flooding at
Kmart’s store and is an improper legal conclusion.
Moreover, Mr. Eley’s opinion is solely based on his alleged experience. Mr. Eley testified:
Q: So you’re saying, that when FEMA and its consultants did a hydraulic study,which Prime Engineering did not do, it didn’t do any type of surveying of thearea to determine the location of the boundaries of the flood map, of thefloodway and floodplain?
A: That’s almost certainly true.
Q: That’s your position?
A: I don’t know it - - almost 100 percent of the time, that would be true.
A: Thirty-five years of practicing engineering and dealing with flood maps andelevations, and I know what the methodology is that goes into producing - - 22
Indeed, Mr. Eley cannot point to any specific document or source that supports his opinion:
Q: Okay. Paragraph 2 says that, “It is my opinion that City of Corinth correctlyinterpreted pre-construction site survey data (existing conditions plan), compared thisdata to the 1981 FIRM map, and properly concluded that the 1981 flood maps wereincorrect or inconsistent with the existing conditions on the ground at this location.”Did I read that correctly?
A: Yes, sir.
Q: Okay.
A: You did read it correctly.
Q: You don’t have any direct knowledge of whether that happened. Right?
A: Well, the fact that the building is – exists and they allowed it to be constructed. There was a – I think there’s some meeting minutes where they approved theconstruction of the project. I think it would be a pretty logical conclusion that theyreviewed it and approved it. In fact, I think there’s some documentation to thateffect.
Q: Okay.
A: Although I can’t specifically tell you where or what it is as I sit here today.
Q: In preparing your report, you didn’t speak with anyone from the City of Corinth whomade the determination that you said it made as to correctly interpreting the pre-construction site survey data?
A: I did not speak to anyone.
Q: Because you weren’t a part of that determination. Right?
See Ex. B, Depo. of Eley, p. 52, l. 11 - p. 53, l. 5. 22
There is no reliable basis for Mr. Eley to state how the City reached the conclusion or whether that
conclusion was correct because he admitted that he had no reliable information to support his
opinion. Accordingly, Mr. Eley’s opinions are inadmissible and should be excluded.
II. Conclusion
For the foregoing reasons and for the reasons more fully explained in Kmart’s motion to
exclude or limit Mr. Eley’s testimony, Kmart respectfully requests that this Court grant its motion
in limine and exclude the testimony of Robert Eley.
This the 15th day of November, 2013.
Respectfully submitted,
/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 FloorNew Orleans, Louisiana 70112Telephone: (504) 299-2100Facsimile: (504) 299-2300ATTORNEYS FOR KMART CORPORATION
See id., p. 93, l. 6 - p. 94, l. 11(emphasis added). 23