301 responsetomotiontoexcludetestimonyjamesmonohan kroger e&a fulton combine

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI

KMART CORPORATION PLAINTIFF

VS. CIVIL ACTION NO. 1:11-CV-103-GHD-DAS

THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP, FULTON IMPROVEMENTS, LLC, KANSAS CITY SOUTHERN RAILWAY COMPANY, CITY OF CORINTH, THE UNITED STATES OF AMERICA, JOHN DOE, and ABC CORPORATION DEFENDANTS

JOINT RESPONSE TO MOTION IN LIMINE TO EXCLUDE TESTIMONY OF JAMES MONOHAN

COME NOW, The Kroger Co. (“Kroger”), E&A Southeast Limited Partnership

(“E&A”), and Fulton Improvements, LLC (“Fulton”)(collectively, the “Defendants”), by and

through their respective counsel of record, and file this their Joint Response to Motion in Limine

to Exclude Testimony of James Monohan, and in support thereof would state unto the Court the

following, to-wit:

1. On October 8, 2013, Kmart filed its Motion in Limine to Exclude Testimony of

James Monohan (“Kmart’s Motion”) and a supporting memorandum.1 [Doc. Nos. 263 and 264]

Kmart’s Motion seeks to exclude the testimony “of Mr. Monohan regarding flow rates.”2 [Doc.

No. 263 at 1]

2. Kmart argues that Monohan’s opinions regarding “flow rates” should be excluded

under FED.R.EVID. 702. Kmart asserts that Monohan’s analysis is unreliable because it is devoid

of factual support. Kmart’s primary position is as follows:

1 On October 24, 2013, the Court entered an order granting the motion filed by Kroger, E&A, and Fulton for an extension of time to respond to Kmart’s Motion, see Doc. No. 281; pursuant to that Order, Kroger, E&A, and Fulton have until November 1, 2013 to file their response. [Doc. No. 282] 2 Kmart’s Motion is apparently directed at only a portion of Mr. Monohan’s anticipated testimony.

Case: 1:11-cv-00103-GHD-DAS Doc #: 301 Filed: 11/01/13 1 of 22 PageID #: 5143

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Mr. Monohan seeks to critique the modeling performed by Kmart’s expert, John Krewson. But in doing so, Mr. Monohan relies on incorrect flow data and admits that he does not even know the correct flow data because he himself performed no modeling. Therefore, Mr. Monohan’s testimony regarding flow rates is not reliable and should be excluded.

[Doc. No. 264 at 1] However, as demonstrated herein, and in the Defendants’

contemporaneously filed memorandum in support, which is incorporated herein by reference,

Monohan’s opinions regarding flow rates are amply supported by the facts before the Court and

his training, education, and experience.

3. On May 2, 2011, Kmart filed its Complaint against Kroger, E&A, Fulton, Kansas

City Southern Railway Company (“KCSR”), the City of Corinth (“Corinth”), and the United

States of America (“United States”) based on claims arising from a flood which occurred on May

2, 2010. [Doc. No. 1 at 1, 5] In its Complaint, Kmart alleges its store in Corinth “incurred flood

damages as a result of Kroger’s location within a floodway, which was allowed pursuant to a

Letter of Map Revision.”3 [Doc. 1 at 1-2]

4. John R. Krewson submitted an expert report dated September 20, 2012 on behalf

of Kmart in order to “evaluate the causes and the extent of the flooding that occurred at the

[Kmart store in Corinth, Mississippi] on May 2, 2010”. [Exhibit C at 2] This expert report states

that, “[t]o determine the impact of the Kroger encroachment and general conditions of the flood

hazard at the time of the May 2, 2010 flood,” Krewson prepared a “HEC-RAS evaluation for the

site using as-built survey data and flows for the area listed in FEMA’s 2009 Flood Insurance

3 The building which houses the Kroger store was removed from the floodway by the Federal Emergency Management Agency (“FEMA”) through a “Letter of Map Revision Floodway Determination Document (Removal)” (the “LOMR”) issued on November 18, 2005, because of FEMA’s determination that the structure was inadvertently included in the floodway. [Exhibit A at 1] The removal of the Kroger store from the floodway was re-validated by FEMA for the new flood maps which became effective in September 2010. [Exhibit B, exhibit 2 thereto]


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Study.”4 [Exhibit C at 6] Krewson concluded in his report that “[t]he 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.” [Exhibit C at 7]

5. Kmart relies entirely upon the testimony of Krewson for its evidence that the

Kroger store caused flood damage to the Kmart store during the flood event of May 2, 2010.

[Exhibit D at 15-17]

6. Krewson conducted three “runs” using the HEC-RAS software in connection with

formulating his opinions. [Exhibit B at 112] According to him, the first run was based on an

“unobstructed floodway and produced 100-year flood elevations on the site comparable with

those shown in the 2009 Flood Insurance Study done by FEMA.” [Exhibit B at 113] The

second run was done using the as-built section with the “Kroger obstruction in place”; Krewson

claims that the second run revealed that there “ended up being a one-foot rise [at the Kmart site]

when compared to the previous run without the Kroger obstruction.” [Exhibit B at 113-14] The

third run using the HEC-RAS software was based on Krewson’s assumption that “the creek

channel was clean and had . . . a low growth vegetation . . . and there were no floodway

obstructions.” [Exhibit B at 115] The third run was an idealized model and did not have the

Kroger store in it; it showed that the “water level dropped two feet” from the first run. [Exhibit

B at 115] So, without the Kroger store and a cleaned Elam Creek, Krewson asserted that the

third run showed a two foot drop in the water level. [Exhibit B at 116] Krewson testified that he

used the flow rate data for his HEC-RAS modeling that is set forth in FEMA’s 2009 Flood

Insurance Study. [Exhibit B at 195]

4 HEC-RAS is a computer program which can be used to predict the behavior of water as it drains over land. [See Exhibit B at 186-93]


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7. In his deposition, however, Krewson admitted that there was a mistake in his

HEC-RAS analysis as it pertains to the claims that the Kroger store caused flooding at the Kmart

store. [See Exhibit B at 117, 207-12] Krewson admitted that in HEC-RAS runs one and three he

used a flow rate of 3,702 cubic feet per second. [Exhibit B at 196] Neither runs one or three

reflect the existence of the Kroger store. [Exhibit B at 196-97] According to Krewson, a flow

rate of 3,702 cubic feet represents a 100-year flood. [Exhibit B, exhibit 12 thereto at 9]

Krewson’s HEC-RAS run two, which reflects the existence of the Kroger store, used a flow rate

of 5,202 cubic feet per second. [Exhibit B at 116, 197, 221-22] Krewson’s testimony indicates

that these flow rates should have been the same for all three runs. [Exhibit B at 117]

8. The inconsistent flow rate values were not easily detectable in Krewson’s

September 20, 2012 report. [Exhibit E at ¶ 8] Those inconsistent values were only discovered

through a “careful examination of the HEC-RAS computer code” by Monohan and would not

have been found otherwise. [Exhibit E at ¶ 8] In Monohan’s opinion, the average lay person

would not be able to locate the inconsistencies that he found and would also not be able to

explain the impact of the inconsistencies as they relate to generating reliable results within the

bounds of sound engineering practices from the HEC-RAS program. [Exhibit E at ¶ 8]

9. Krewson also admitted that he was not trying to model the flooding that actually

occurred on May 2, 2010 in connection with the creation of his opinions. [Exhibit B at 228-29]

Krewson testified that his model was never intended to re-create the events which occurred on

May 2, 2010 at the site made the subject of this litigation. [Exhibit B at 230] Krewson’s

testimony shows that he intended to use the flow rates for the 100-year flood model for each of

the runs in his HEC-RAS model. [Exhibit B at 230-31]


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10. On June 28, 2013, E&A, Fulton, and Kroger submitted to Plaintiff their respective

expert designations. [Doc. Nos. 162, 163, and 164] E&A, Fulton, and Kroger each identified

Monohan as an expert witness. Defendants provided to Kmart Monohan’s “Expert Review and

Report on Mr. John R. Krewson’s Flooding Evaluation (dated September 20, 2012) and

Deposition (dated May 22, 2013)” (“Monohan’s Report”), and a true and correct copy of

Monohan’s Report is attached hereto as Exhibit F.

11. In Monohan’s report, he explains why the “comparative” or “hypothetical”

approach taken by Krewson in the modeling described during his deposition and in Krewson’s

initial report was improper. [Exhibit F at 5] Monohan observes further that, apparently “[b]ased

on his assessment of the rainfall magnitude being approximately the 100-year, Mr. Krewson

chose to use the FEMA published 100-year flow on Elam Creek of 3,702 cubic feet per second

(cfs) in his model runs, as listed in Table 1 of the Flood Insurance Study Report” and that the

modeling used by Krewson “did not attempt to recreate the actual flow that was observed on

May 2, 2010 for Elam Creek.” [Exhibit F at 5] Monohan states in his report that “the flow data

should have been refined to as close as practicable [to] replicate the peak flood flow that actually

occurred on Elam Creek on May 2, 2010, along the modeled reach.” [Exhibit F at 5] Monohan

explains that Krewson, during his visit to the site after the flood, could have identified high water

marks which could have been measured and surveyed to establish “more reliable estimates of the

peak flood elevations at these locations.” [Exhibit F at 5] Monohan concludes in his report that

Krewson’s opinion is not reliable from an engineering standpoint because it is based on a

“comparative” or “hypothetical” model and cannot be relied upon to isolate and examine

potential causal factors. [See Exhibit F at 5-6]


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12. Even assuming that a “comparative” or “hypothetical” model could be used, or in

other words would produce a reliable result from an engineering standpoint, Monohan further

observes in his report that the flow rates used in the modeling were not the same. [Exhibit F at

6] Monohan concludes from his review of Krewson’s model and underlying data that the

“abrupt rise [in flood water] is the result of the much higher flow value used for Run 2.”

[Exhibit F at 7] Monohan further observes that, “[b]ecause inconsistent flood flows were used

for HEC-RAS Runs 1 and 2, no conclusion can be drawn regarding the effect of the Kroger

building on the flood elevation at Kmart.” [Exhibit F at 9]

13. Plaintiff took the deposition of Monohan on September 6, 2013. [Exhibit G at 1]

During the deposition of Monohan, Kmart’s counsel questioned him regarding the inconsistent

flow rates used by Krewson in his first report:

Q: Well, let me ask you. I mean, is part of your opinions in this case that Mr. Krewson, in his modeling, used an incorrect flow capacity?

A: Are we talking about a flow rate?

Q: Yes. Cubic feet per second?

A: I believe my assertion is that he used inconsistent flow rates.

Q: Okay.

A: I don’t know whether they were necessarily correct or not, but they were inconsistent between the different runs.

Q: And you say that the 100-year flow rate, 5202 cubic feet per second is inflated. Right?

A: I believe I did say that.

Q: Okay. And you say that on page 6?

A: Okay. Yes.

Q: But that’s not correct. Right?


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A: Well, it’s inflated above the 100-year flood value for the other two runs.

Q: Well, but it’s not correct that 5202 cubic feet per second is an inflated 100-year flow. Right?

A: I have to ask you to restate that. I’m sorry.

Q: 5202 cubic feet per second is the correct flow rate for the 100-year storm at Elam Creek, where the Kmart-Kroger site, near the Kmart-Kroger site. Right?

A: No. That’s not my position at all.

Q: That’s not your position?

A: No.

. . .

Q: Okay. Mr. Mendrop testified yesterday and also said in his report that 4900 cubic feet per second is the correct flow rate for that area. Do you disagree with Mr. Mendrop?

A: I don’t agree or disagree. I don’t know. I personally don’t know what the correct flow rate is because I haven’t done any modeling.

Q: So you’re criticizing Mr. Krewson for using inconsistent flow rates, but you, yourself, don’t know which flow rate is the right one?

A: No, I don’t know which one is the right one. I don’t know which one best matches what actually happened during the flood event of May 2, 2010.

[Exhibit G at 78-79] In this testimony, Monohan maintains his position, as originally stated in

his report, that Krewson used inconsistent flow rate data in the HEC-RAS computer modeling on

which Krewson relies for his “comparative” or “hypothetical” analysis. Monohan further

explains that he does not know which flow rate is the “right” one for the subject property, i.e.

right in the sense of what the flow rate actually was on May 2, 2010 when the flood at issue took

place, because he has not done any modeling.

14. As to when he was asked in his deposition what was the “correct” flow value,

Monohan explains that his answer reflects that he has not done any modeling to estimate the


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May 2, 2010 Elam Creek flood flow. [Exhibit E at ¶7] Monohan, unlike Krewson, was never in

a position to collect the evidence necessary to perform reliable modeling. [See Exhibit E at

¶¶ 7-8] Of course, as Monohan observes, Krewson has not performed any such reliable

modeling either; instead, Krewson simply assumes the FEMA 100-year flow is a good match to

the actual flood with no physical evidence in support. [Exhibit E at ¶ 7]

15. Monohan totally rejects Krewson’s “comparative” or “hypothetical” analysis and

observes that governmental entities charged with handling such issues do not use Krewson’s

approach. [See Exhibit E at ¶¶ 4-7 and exhibit A thereto] Monohan explains that Krewson, in

his September 20, 2012 report, attempts to use the FEMA 100-year recurrence interval flow

value for his HEC-RAS evaluations but provides no evidence that the flood event of May 2,

2010 on Elam Creek at the Kmart location approximated this discharge value. [Exhibit E at ¶ 4]

Such evidence is necessary and would have been found in the form of high water marks along

the section of Elam Creek that was the focus of Krewson’s modeling. [Exhibit E at ¶ 4] This

evidence could have been collected by Krewson during his visits to the site shortly after the flood

at issue occurred. [Exhibit E at ¶ 4] However, it does not appear from Monohan’s review of

Krewson’s September 20, 2012 report that he either collected or used such evidence. [Exhibit E

at ¶ 4]

16. While Krewson states in his September 20, 2012 report that his initial model

produced flood elevations comparable with those in the FEMA study, his initial model results

should instead be compared to the actual May 2, 2010 flood elevations in order to reach a

conclusion based “on sound and reliable engineering methods.” [Exhibit E at ¶ 5]

17. On July 25, 2013, Kmart filed its Motion for Leave to File Amended Report of

John R. Krewson, Motion to Continue Discovery Deadline, or, in the Alternative, Motion to


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Continue Trial Date. [Doc. No. 176 at 1] This Motion attached a second report from Krewson

dated July 23, 2013. [Doc. No. 176-5] In support of this Motion, Kmart explained that Krewson

discovered a mistake in his modeling during his deposition on May 22, 2013 regarding the

inconsistent flow rates. [Doc. No. 177 at 1-3] Kmart further explained in that pleading that

“when Mr. Krewson used the corrected figures, he found that the presence of the Kroger store

caused no significant difference in the rise of the flood at Kmart’s store.” [Doc. 177 at 4

(emphasis added)]

18. On August 21, 2013, United States Magistrate Judge David A. Sanders entered an

Order which denied Kmart’s request for leave for Krewson to amend his expert report. [Doc.

No. 213 at 1] Magistrate Judge Sanders concluded that Krewson’s second report, in fact,

presented a new theory of liability: “Because this second report presents a new theory of

liability, the court concludes that allowing an amendment at this late juncture would be

prejudicial to the defendants.” [Doc. No. 213 at 5]

19. In response, Kmart filed Plaintiff’s Objections to the Magistrate Judge’s Order

Denying Plaintiff’s Motion for Leave to File the Amended Report of John R. Krewson, see Doc.

No. 227, and a memorandum in support. [Doc. No. 228] Thereafter, the District Court entered

an order on September 27, 2013 advising that it would “consider an amendment of mathematical

errors only,” and it requested that the Plaintiff submit “a proposed amendment of only

mathematical errors in Krewson’s report, and further, that copies of this proposed amendment be

timely furnished to Defendants.” [Doc. No. 243]

20. On October 11, 2013, Kmart filed its Motion for Leave to File Amended Report of

John R. Krewson pursuant to Court Order.5 [Doc. No. 271 at 1] This particular Motion attached

5 As stated previously, Defendants intend to oppose said Motion and seek to prohibit the introduction of Krewson’s


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a third report from Krewson dated October 11, 2013. [Doc. No. 271-1] Kmart asserts that

“Krewson revised the HEC-RAS flow data and the flow data discrepancy that appeared in his

original report was corrected from 3,702 cubic feet per second (CFS) to 5,202 cfs.” [Doc. No.

271 at 1] Kmart further asserts that “the Manning N values contained in Mr. Krewson’s original

report were also corrected to reflect the conditions of the channel of Elam Creek and the flooding

depths occurring at the time of the loss to Kmart’s store in Corinth, Mississippi on May 2, 2010.”

[Doc. No. 271 at 1] In Krewson’s third and latest report, he explains that the HEC-RAS flow

rate data was revised and the flow data discrepancy was “corrected from 3702 cfs to 5202 cfs.”

[Doc. No. 271-1 at 8] Importantly, Krewson provides no explanation in his latest report for his

conclusion that the flow rate of 5,202 cfs is the “correct” flow rate that should be used in his

modeling. [See Doc. No. 271-1] Krewson advises in the October 11, 2013 report that the

“results of these models found that the addition of the Kroger store to the site resulted in [a] two

inch rise in the flood elevation compared to the flood elevation for the Kmart only site with no

Kroger.” [Doc. No. 271-1 at 8]

21. It was not until Plaintiff filed its Motion in Limine to Exclude Testimony of James

Monohan, Doc. No. 263, and its supporting memorandum that Kmart disclosed how Krewson

calculated what he contends to be the “correct” flow rate that should be used for his HEC-RAS

model. [Doc. No. 264 at 2 n. 5] Utilizing certain data in FEMA’s 2009 Flood Insurance Study,

Krewson has apparently added together the peak discharge value for a 100-year flood in Elam

Creek at Highway 45, i.e. 3,702 cfs, to the peak discharge value for a 100-year flood in Turner

Creek at its mouth on Elam Creek, i.e. 1,500 cfs, which yields a total of 5,202 cfs. [Doc. No.

264 at 2 n. 5] Again, as with Monohan’s third report, Kmart offers no explanation for why it is

“third bite at the apple” by a separate pleading.


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permissible to add these two peak discharge values together to arrive at a flow rate of 5,202 cfs

for Krewson’s model.

22. According to Monohan, however, it is not permissible to add these two peak

discharge values together to calculate a flow rate of 5,202 cfs:

The 5,202 cfs value which Kmart claims to be correct in the motion to exclude a portion of my testimony is not correct. Kmart’s value of 5,202 cfs was computed by adding together the peak 100-year flow of Elam Creek at Highway 45 and the peak 100-year flow of Turner Creek at its mouth, which are listed in Table 1 of the FEMA Flood Insurance Study relied upon by Mr. Krewson. In accordance with sound engineering and hydrologic practices, peak flows on tributary streams typically can’t be added together because the flood peaks occur at different times.

[Exhibit E at ¶ 10 (emphasis added)] A smaller tributary’s peak flow occurs prior to the larger

tributary’s peak flow, due to the shorter travel time needed for the smaller tributary’s flood wave

to reach the confluence.6 [Exhibit E at ¶ 10] The peak flow of the combined tributaries at the

confluence is therefore less than the sum of the two tributary peak flows. [Exhibit E at ¶ 11]

Turner Creek, with a drainage area of 2.34 square miles, would peak prior to the peaking of Elam

Creek, which has a drainage area of 6.09 square miles, at their confluence near Highway 45.

[Exhibit E at ¶ 11] Consequently, Krewson’s methodology in this instance is flawed, and results

in an erroneous and unreliable estimation of the FEMA 100-year peak flow.7 [Exhibit E at ¶ 11]

23. In fact, even if one were to assume – solely for the sake of argument – that it was

appropriate to use the FEMA 100-year flow rate for Krewson’s evaluation, “then no modeling

would be necessary for [Monohan] to determine the peak flow rate for the property made the

subject of this litigation,” because “[i]t can be found in the HEC-2 computer code for the May

6 For the benefit of the Court, Monohan has provided an illustration that demonstrates this fact. [Exhibit E at 5] 7 In Monohan’s opinion, Krewson’s attempt to determine the FEMA 100-year peak flow by adding the two figures together from Table 1 of the FEMA Flood Insurance Study “suggests a lack of basic, fundamental knowledge in hydrology.” [Exhibit E at ¶ 12]


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1979 study of Elam Creek.” [Exhibit E at ¶ 9] This data is still the effective FEMA model for

Elam Creek, and the FEMA Flood Insurance Study on which Krewson relied in selecting flow

rate values is based on that data from 1979. [See Exhibit E at ¶ 9] While Krewson testified that

he could not find this data,8 see Krewson Depo. at 239, it “is still available from the FEMA

Library and was included as Appendix I in [Monohan’s] expert report.” [Exhibit E at ¶ 9] As

indicated by the HEC-2 computer code for the May 1979 study of Elam Creek, the FEMA 100-

year flow value for Elam Creek at the Kmart-Kroger building site is 4,900 cfs. [Exhibit E at ¶10]

24. The admissibility of expert testimony is governed by the standard articulated in

Daubert v. Merrell Dow. Pharms., Inc., 509 U.S. 579 (1993). Daubert provides that expert

testimony is admissible only upon a showing that the proffered testimony is both relevant and

reliable. See 509 U.S. at 589-94. Expert testimony is relevant when it is sufficiently related to

the facts of the case so that it will assist the trier of fact in understanding the evidence or

determining a fact at issue. See id. Reliability is shown when the testimony is based on

scientific methods and procedures. See id. The opinion in Daubert clearly mandates that

FED.R.EVID. 702 placed the responsibility of gatekeeper on the trial judge to assess proffered

expert testimony and “determine at the outset, pursuant to FED.R.EVID. 104(a), whether the

expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact.” See

Daubert, 509 U.S. at 592. This Court must fulfill a vital gatekeeping role that requires it to make

a threshold assessment of “whether the reasoning or methodology underlying the [expert]

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

applied to the facts in issue.” Daubert, 509 U.S. at 592-93.

8 According to Monohan, “Mr. Krewson’s failure to obtain and utilize the original HEC-2 model, which contains the FEMA 100-year peak flow for Elam Creek at Kmart, further suggests a lack of experience in working with FEMA Flood studies.” [Exhibit E at ¶12]


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25. Federal Rule of Evidence 702 requires a sound basis and a sound methodology,

properly applied to the facts of the case, before an opinion can be admitted into evidence:

A witness who is qualified as an expert 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 reliability applied the principles and methods to the facts of the case.

Thus, courts must exclude expert evidence that is not “based on sufficient facts or data,” that is

not “the product of reliable principles and methods,” or whose methods are not applied “reliably

to the facts of the case.” See id. “[A]ny step that renders the analysis unreliable . . . renders the

expert’s testimony inadmissible. This is true whether the step completely changes a reliable

methodology or merely misapplies that methodology.” 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))(emphasis

and omission in original). The trial court’s gatekeeping function requires more than simply

“taking the expert’s word for it.” See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d

1311, 1319 (9th Cir. 1995)(“We’ve been presented with only the experts’ qualifications, their

conclusions and their assurances of reliability. Under Daubert, that’s not enough.”).

26. Kmart complains that Monohan’s opinions regarding flow rates should be

excluded because “Monohan relies on incorrect flow data.” [Doc. No. 264 at 1] Implicit in this

contention is that Kmart, presumably through its proposed expert, Krewson, is now aware of the


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“correct” flow rate for the comparative HEC-RAS model that he performed.9 However, it is

clear that is not the case. Kmart now says that the flow rate for a 100-year event, i.e. the

allegedly “correct” flow rate, is 5,202 cfs, which has been calculated by adding the flow rate of

3,702 cfs for Elam Creek at US Highway 45 to the flow rate of 1,500 cfs for Turner Creek at its

mouth on Elam Creek, both of which were taken from a table in FEMA’s Flood Insurance Study

which sets for a summary of peak discharges for various flood events at a few select locations in

and around Corinth. [Doc. No. 264 at 2 n. 5] Kmart has offered no explanation to support the

proposition that it is permissible to simply add these two discharge values together. Indeed, it is

not permissible to simply add those two values together, and therefore, Kmart’s Motion should

fail because it is premised on an inaccurate factual assumption. As explained by Monohan, who

is the only proposed expert that is a certified floodplain manager, “[i]n accordance with sound

engineering and hydrologic practices, peak flows on tributary streams typically can’t be added

together because the flood peaks occur at different times.” [Exhibit E at ¶ 10]

27. Kmart’s argument, assuming that it was valid, would apply equally to its own

proposed expert Krewson. Based on testimony from Monohan’s deposition, Kmart complains

that Monohan “admits that he does not even know the correct flow data” and that for this reason

his testimony concerning flow rates should be excluded. [Doc. 264 at 1, 6-7] However, in

making this contention, Kmart overlooks the fact that its own proposed expert was unable to

identify the “correct” flow rate, i.e. the 100-year flow rate, during his deposition. Krewson was

asked about the inconsistent flow rates used in the runs that he performed with the HEC-RAS

9 During Krewson’s deposition, he was not able to identify which of the inconsistent flow rates used in his HEC-RAS runs was the “correct” one: “I’m not sure which number is right, but, yes, there’s a conflict.” [Exhibit B at 117]


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software, and he readily admitted that he did not know which of the rates was the “correct” one:

“I’m not sure which number is right, but, yes, there’s a conflict.” [Exhibit B at 117]

28. If the Court concludes that Monohan should not be permitted to testify regarding

flow rates, based on testimony during his deposition which Kmart claims shows that he did not

know the “correct” flow rate, then Krewson should not be permitted to testify as to the results of

his HEC-RAS model, based on testimony during his deposition which shows that he did not

know the “correct” flow rate either.

29. Kmart contends that Monohan’s testimony regarding flow rates should be

excluded because he performed no computer modeling. [Doc . No. 264 at 1] However, this

argument reflects a lack of basic, fundamental knowledge in hydrology and suggests a lack of

experience in working with FEMA flood studies, because Monohan’s opinions regarding flow

rates require no modeling.

30. Even if one were to assume – solely for the sake of argument – that it was

appropriate to use the FEMA 100-year flow rate for Krewson’s evaluation, “no modeling would

be necessary for [Monohan] to determine the peak flow rate for the property made the subject of

this litigation,” because “[i]t can be found in the HEC-2 computer code for the May 1979 study

of Elam Creek.” [Exhibit E at ¶ 9] This data is still the effective FEMA model for Elam Creek,

and the FEMA Flood Insurance Study on which Krewson relied in selecting flow rate values is

based on that data from 1979. [See Exhibit E at ¶ 9] While Krewson testified that he could not

find this data,10 see Krewson Depo. at 239, it “is still available from the FEMA Library and was

included as Appendix I in [Monohan’s] expert report.” [Exhibit E at ¶ 9] As indicated by the

10 According to Monohan, “Mr. Krewson’s failure to obtain and utilize the original HEC-2 model, which contains the FEMA 100-year peak flow for Elam Creek at Kmart, further suggests a lack of experience in working with FEMA Flood studies.” [Exhibit E at ¶12]


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HEC-2 computer code for the May 1979 study of Elam Creek, the FEMA 100-year flow value

for Elam Creek at the Kmart-Kroger building site is 4,900 cfs. [Exhibit E at ¶10] FEMA did the

modeling necessary to determine this flow rate over thirty years ago and still relies on the results

of that modeling today. One needs only to look up the figure in the HEC-2 computer code for

the May 1979 study of Elam Creek; no modeling is necessary. Consequently, Kmart’s Motion

should be denied because it is unnecessary for Monohan to perform any modeling to identify the

100-year flow value for Elam Creek at the Kmart-Kroger building site and because his opinions

are amply supported by the record and Monohan’s training, education, and experience.

31. Kmart relies upon Coffey v. Dowley Manufacturing, Inc., 187 F.Supp.2d 958

(M.D.Tenn. 2002), in arguing that Monohan’s opinions regarding flow rates should be excluded.

However, even a cursory examination of the facts and the analysis used by the court in Coffey

shows that it does not support Kmart’s argument; in fact, Coffey tends to support the argument

that Krewson’s opinions should be excluded. Kmart asserts that the court in Coffey excluded an

expert’s testimony because it did not rest upon sufficient facts and data, based on the court’s

determination that the expert’s analysis was based on hypothesized “guesstimations” regarding a

number of important variables and evidence that more than one parameter assumed by the expert

was incorrect or speculative. [Doc. No. 264 at 8-9] However, it is not Monohan who has

engaged in “guesstimations”; rather, it is Kmart’s own proposed expert that has done so.

32. Krewson testified that he was “trying to do a comparative model” and that his

opinion doesn’t relate to what actually happened on May 2, 2010 and was never intended to re-

create those events. [Exhibit B at 229-30] Krewson admits that his model was intended to create

a “hypothetical comparison.” [Exhibit B at 230] Krewson utilized the 100-year rainfall event in


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connection with his hypothetical comparison based on his assumption that the “area received an

amount [of rain] that appeared to approach the 100-year rainfall event.” [Exhibit B at 230-31]

33. Monohan rejects Krewson’s entire hypothesized approach and his use of

estimations of rainfall utilized in Krewson’s model. [Exhibit F at 5] Monohan states in his

report that “the flow data should have been refined to as close as practicable [to] replicate the

peak flood flow that actually occurred on Elam Creek on May 2, 2010, along the modeled

reach.” [Exhibit F at 5] Monohan explains that Krewson, in his September 20, 2012 report,

attempts to use the FEMA 100-year recurrence interval flow value for his HEC-RAS evaluations

but provides no evidence that the flood event of May 2, 2010 on Elam Creek at the Kmart

location approximated this discharge value. [Exhibit E at ¶ 4] Such evidence is necessary and

would have been found in the form of high water marks along the section of Elam Creek that was

the focus of Krewson’s modeling. [Exhibit E at ¶ 4] This evidence could have been collected by

Krewson during his visits to the site shortly after the flood at issue occurred. [Exhibit E at ¶ 4]

According to Monohan, Krewson should have used high water mark evidence to verify that the

flood discharge values he chose for his HEC-RAS model of Elam Creek, with all significant

physical obstructions such as bridges represented therein, actually reproduced the flood

elevations experienced during the May 2, 2010 flood event. [Exhibit E at ¶ 5] Without this

verification, Monohan observes that Krewson’s model results are unreliable. [Exhibit E at ¶ 5]

34. Consequently, Coffey lends no support to Kmart’s argument that Monohan’s

opinions regarding flow rates should be excluded. Instead, it tends to support the Defendants’

argument that Krewson’s opinions should be excluded.

35. In support of its Motion, Kmart asserts that “[t]his Court recently granted leave

for Mr. Krewson to correct the mathematical errors in his report,” citing this Court’s Order of


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September 27, 2013, see Doc. No. 243, and states further that “this Court has allowed Mr.

Krewson to correct these inadvertent inconsistencies.” [Doc. No. 264 at 2-3, 6] However, the

Order of September 27 does not grant such leave; instead, the Order states that “the Court will

consider an amendment of mathematical errors only.” [Doc. No. 243 at 1] The Order clearly

contemplates the submission of a proposed amendment which the Court may or may not allow:

“In the event the Court allows any modification of the expert report, the Court acknowledges that

a continuance of certain pretrial and trial settings might become appropriate.” [Doc. No. 243

at 1] Kmart’s misstatement of the September 27 Order provides no support for its Motion as to

Monohan.

36. Kmart argues that the “Court does not need an expert to point out inconsistent

data” and that, “[t]herefore, Mr. Monohan’s testimony on this issue is unnecessary in the first

place.” [Doc. No. 264 at 7] Kmart fails to explain, however, how a lay person would locate and

then determine the impact of those inconsistencies on Krewson’s opinions. As explained by

Monohan, the inconsistent flow rate values were not easily detectable in Krewson’s September

20, 2012 report. [Exhibit E at ¶ 8] Those inconsistent values were only discovered through a

“careful examination of the HEC-RAS computer code” by Monohan and would not have been

found otherwise. [Exhibit E at ¶ 8] In Monohan’s opinion, the average lay person would not be

able to locate the inconsistencies that he found and would also not be able to explain the impact

of the inconsistencies as they relate to generating reliable results within the bounds of sound

engineering practices from the HEC-RAS program. [Exhibit E at ¶ 8] Consequently, the only

evidence before the Court strongly indicates that expert testimony regarding the Krewson’s

inconsistent flow rates is necessary and entirely relevant.


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37. For the reasons set forth herein, and as further set forth in Defendants’ supporting

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

Kmart’s Motion should be denied.

38. In support of their Response, Defendants rely upon the pleadings filed in this

action, their supporting memorandum, and the following exhibits:

Exhibit A: Letter of Map Revision from FEMA.

Exhibit B: Excerpts of Deposition of John R. Krewson.

Exhibit C: Flooding Evaluation by John R. Krewson.

Exhibit D: Plaintiff’s Responses to The Kroger Co.’s First Set of Interrogatories.

Exhibit E: Affidavit of James N. Monohan, P.E., C.F.M.

Exhibit F: Expert Review and Report on Mr. John R. Krewson’s Flooding Evaluation (dated September 20, 2012) and Deposition (dated May 22, 2013).

Exhibit G: Excerpts of Deposition of James N. Monohan, P.E., C.F.M.

THIS, the 1st day of November 2013.

Respectfully submitted, THE KROGER CO. By: s/ David A. Norris Of Counsel

Edley H. Jones III (MSB No. 3201) David A. Norris (MSB No. 100616) McGLINCHEY STAFFORD, PLLC City Center South, Suite 1100 200 South Lamar Street (Zip - 39201) Post Office Drawer 22949 Jackson, Mississippi 39225-2949 Telephone: (769) 524-2314 Facsimile: (769) 524-2333 [email protected]; [email protected]


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E&A SOUTHEAST LIMITED PARTNERSHIP By: s/ Mary Clift Abdalla Of Counsel

Mary Clift Abdalla (MSB No. 102734) Walter Garner Watkins, III (MSB No. 100314) Walter Garner Watkins, Jr. (MSB No. 6988) Forman Perry Watkins Krutz & Tardy LLP 200 South Lamar Street Jackson, Mississippi 39201 Telephone: (601) 960-8600 Facsimile: (601) 960-8613 [email protected] [email protected] [email protected]

FULTON IMPROVEMENTS, LLC By: s/ Jamie F. Jacks Of Counsel

Jamie F. Jacks (MSB No. 101881) Gerald H. Jacks JACKS LUCIANO, P.A. P.O. Box 1209 Cleveland, Mississippi 38732 Telephone: (662) 843-6171 Facsimile: (662) 843-6176 [email protected] [email protected]


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CERTIFICATE OF SERVICE

I, the undersigned David A. Norris, McGlinchey Stafford PLLC, hereby certify that on

this day, I electronically filed the foregoing with the Clerk of the Court using the ECF system,

which sent notification of such filing 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] Mary Clift Abdalla FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC 200 S. Lamar Street, Suite 100 Jackson, MS 39201 Email: [email protected] Walter G. Watkins , Jr. FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC P.O. Box 22608 Jackson, MS 39225-2608 Email: [email protected] Walter Garner Watkins , III FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC P.O. Box 22608 Jackson, MS 39225-2608 Email: [email protected] Gerald Haggart Jacks JACKS LUCIANO, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: [email protected] Jamie Ferguson Jacks JACKS LUCIANO, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: [email protected]


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Charles E. Ross WISE, CARTER, CHILD & CARAWAY P. O. Box 651 Jackson, MS 39205-0651 Email: [email protected] Terry Dwayne Little DANIEL, COKER, HORTON & BELL - Oxford P.O. Box 1396 Oxford, MS 38655 Email: [email protected] Wilton V. Byars , III DANIEL, COKER, HORTON & BELL P.O. Box 1396 Oxford, MS 38655 Email: [email protected] John Evans Gough , Jr. U.S. ATTORNEY'S OFFICE - Oxford 900 Jefferson Avenue Oxford, MS 38655-3608 Email: [email protected] Linda F. Cooper WISE CARTER CHILD & CARAWAY, P.A. P.O. Box 651 Jackson, MS 39205-0651

and I hereby certify that I have mailed by United States Postal Service the document to the

following non-ECF participants:

None

THIS, the 1st day of November 2013.

s/ David A. Norris David A. Norris 276220.2


Case: 1:11-cv-00103-GHD-DAS Doc #: 301-1 Filed: 11/01/13 1 of 2 PageID #: 5165

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