Case: 1:11-cv-00103-GHD-DAS Doc #: 306 Filed: 11/04/13 1 of 6 PageID #: 5691
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION KMART CORPORATION
PLAINTIFF
VS.
CIVIL ACTION NO. 1:11-CV-103-GHD-DAS
THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP; FULTON IMPROVEMENTS LLC; THE KANSAS CITY SOUTHERN RAILWAY COMPANY; CITY OF CORINTH; THE UNITED STATES OF AMERICA; JOHN DOE; AND ABC CORPORATION
DEFENDANTS
______________________________________________________________________________ JOINDER OF DEFENDANT, THE KANSAS CITY SOUTHERN RAILWAY COMPANY, IN THE OTHER DEFENDANTS’ JOINT RESPONSE TO PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED EXPERT REPORT OF JOHN R. KREWSON ______________________________________________________________________________ COMES NOW, Defendant The Kansas City Southern Railway Company (“KCSR”) and hereby files its Joinder to the Other Defendants’ Joint Response to Plaintiff’s Motion for Leave to File an Amended Expert Report of John R. Krewson (“Krewson”). I.
INTRODUCTION
The other Defendants 1 have filed a Joint Response in opposition to Plaintiff’s Motion for Leave to File an Amended Expert Report of John R. Krewson. (See Doc 305). KCSR joins in this Joint Response. Beyond this, KCSR files this separate Joinder to highlight for the Court that while Plaintiff should not be allowed to file Krewson’s amended report, the report, even if allowed, does nothing to correct the deficiencies in Plaintiff’s original report as to KCSR since Krewson’s same flawed assumption of excessive debris under KCSR’s bridge and his continued failure to model the assumed debris invalidate his causation opinions contained therein. 1
The other Defendants are The Kroger Co., E & A Southeast Limited Partnership, and Fulton Improvements, LLC.
Case: 1:11-cv-00103-GHD-DAS Doc #: 306 Filed: 11/04/13 2 of 6 PageID #: 5692
Therefore, there is no reason to delay adjudication of KCSR’s previously filed Daubert motion to strike Krewson’s testimony [Doc 240] and its Motion for Summary Judgment [Doc 253]. II.
FACTUAL BACKGROUND
KCSR adopts the factual background and arguments set forth in Defendants’ Joint Response [Doc 305]. In addition, KCSR incorporates by reference the explanation set forth in its Supplement to its Daubert motion to strike Krewson [Doc 251] as to why Plaintiff’s attempt to amend Krewson’s report does not affect the ripeness of KCSR’s Daubert motion or its Motion for Summary Judgment. In short, in Krewson’s original report [Doc 240-3], he offered opinions that there was excessive debris amounting to a 25% blockage under the KCSR bridge. After Krewson admitted in his deposition that he could not say there was debris under the KCSR bridge at the time of the flood, see Doc 241 at 5, Plaintiff tried to amend Krewson’s report to add an opinion based on an additional photograph Krewson first saw at his deposition. See Doc 176-5. The Magistrate specifically rejected Plaintiff’s untimely attempt to buttress Krewson’s opinion that there was debris under KCSR’s bridge by reference to the photograph, which was produced to Plaintiff months before Krewson’s deposition. [Doc 213 at 5 n. 4]. Significantly, in Plaintiff’s Objections to the Magistrate’s ruling, Plaintiff did not specifically argue that the Magistrate erred with regard to the photograph. [Doc 227]. And, in the District Judge’s ruling on Plaintiff’s objection, this Court said that it would consider an amendment of “mathematical errors only.” [Doc 243]. The photograph is not a “mathematical error.” In response to the District Judge’s ruling, Plaintiff’s renewed motion to amend Krewson’s report [Doc 271] did not include reference to the photograph. See Doc 271-1. Further, in neither Krewson’s original report nor his amended report did he model the KCSR bridge or the alleged debris to determine if it 2
Case: 1:11-cv-00103-GHD-DAS Doc #: 306 Filed: 11/04/13 3 of 6 PageID #: 5693
affected flooding at Kmart. Given the foregoing, even if the amended report is allowed, as to KCSR’s alleged liability for flood levels at Kmart, Krewson’s initial report would still constitute the only evidence from Krewson available to Plaintiff. KCSR has filed a Daubert motion to exclude the opinions of Krewson set forth in his initial report. Specifically, KCSR argues that there is no reliable basis for Krewson’s opinion that there was excessive debris under the KCSR bridge, much less for his opinion that the debris amounted to 25% blockage. In addition, KCSR has moved to exclude Krewson’s opinions on the basis that Krewson did not model the KCSR bridge or the alleged debris beneath it (which Krewson admits), and thus, has demonstrated no causal link between the alleged debris (even assuming arguendo such debris was present at the time of the flood) and the flood level at Kmart. [Doc 240]. 2 In addition to KCSR’s Daubert motion, KCSR has filed a Motion for Summary Judgment on the basis that Plaintiff has no evidence of negligence by KCSR, has no evidence of any debris under the KCSR bridge, and regardless, cannot prove that any debris (assuming such existed) impacted Kmart. [Doc 253]. Because Plaintiff relies solely upon Krewson for its allegations against KCSR, KCSR’s Motion for Summary Judgment in large part overlaps its Daubert motion.
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Beyond these two grounds for excluding Krewson’s opinions, KCSR, like the other Defendants, also asserted in its Daubert motion that Kmart’s report should be thrown out in its entirety because of the inconsistent flow rates Krewson used in his report. [Doc 241 at 22-25]. This is the only part of KCSR’s motion that may be affected by Plaintiff’s motion to amend Krewson’s report. However, the parts of KCSR’s Daubert motion concerning the assumed presence of debris and Krewson’s failure to model the alleged debris are independent of the portions of KCSR’s Daubert motion addressing Krewson’s flawed flow rates.
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III.
ARGUMENT
A. Allowing Krewson’s Amended Report is Not Proper for the Reasons Set Forth in the Joint Response of the Other Defendants. KCSR completely joins in the Other Defendants’ Joint Response to Plaintiff’s Motion for Leave to File an Amended Expert Report of John R. Krewson [Doc 305]. As set forth in the Joint Response, Krewson’s amended report not only changes the flow rates, but also the “Manning n” values which reflect the condition of the creek channel. That these changes are not just corrections of “mathematical errors” is made obvious by the fact that with these changes, Krewson’s opinion changes from one regarding the level of flood water, to one involving the speed and the velocity of the water. Compare Doc 240-3 (original report) to Doc 271-1 (proposed amended report). B. Even if Krewson’s Amended Report is Allowed, Such Does Not Affect the Ripeness of KCSR’s Daubert Motion and Motion for Summary Judgment. Even if Krewson’s amended report is allowed (which it should not be), such does not affect the ripeness of KCSR’s Daubert and summary judgment motions. The amended report, while radically changing Krewson’s models and opinions as to the alleged effect of the Kroger store on flooding at Kmart, does not in any way change the fact that Krewson has no basis for his assumption of excessive debris, or 25% blockage, under the KCSR bridge; and Krewson still has no basis for testifying as to any causal link between the assumed 25% debris blockage and flooding at Kmart since, even in his amended report, he does not model the assumed debris blockage. IV.
CONCLUSION
For the above reasons, KCSR joins in the Joint Response of the other Defendants in opposition to Plaintiff’s motion to file an amended report with regard to Krewson. KCSR also
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Case: 1:11-cv-00103-GHD-DAS Doc #: 306 Filed: 11/04/13 5 of 6 PageID #: 5695
respectfully submits that the amended report, even should it be allowed, does not affect the ripeness of KCSR’s Daubert motion or Motion for Summary Judgment. This the 4th day of November, 2013. Respectfully submitted, THE KANSAS CITY SOUTHERN RAILWAY COMPANY
BY: /s/ Linda F. Cooper CHARLES E. ROSS (MSB #5683) W. McDONALD NICHOLS (MSB #3847) LINDA F. COOPER (MSB #102901) Attorneys for Defendant KCSR
OF COUNSEL WISE CARTER CHILD & CARAWAY, P.A. 600 Heritage Building 401 East Capitol Street Post Office Box 651 Jackson, Mississippi 39205-0651 Telephone: (601) 968-5500 Facsimile: (601) 968-5593
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Case: 1:11-cv-00103-GHD-DAS Doc #: 306 Filed: 11/04/13 6 of 6 PageID #: 5696
CERTIFICATE OF SERVICE I, Linda F. Cooper, one of the attorneys for Defendant The Kansas City Southern Railway Company, do hereby certify a copy of the above and foregoing has been served on all known counsel of record with the Clerk of the Court using the CM/ECF system which will automatically send email notification to all known counsel of record. This the 4th day of November, 2013.
/s/ Linda F. Cooper LINDA F. COOPER
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