294 motionforleavetofileinexcessofpagelimits kmart combine

Case: 1:11-cv-00103-GHD-DAS Doc #: 294 Filed: 10/30/13 1 of 2 PageID #: 4591

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION KMART CORPORATION, Plaintiff CIV. ACT. NO. 1:11-CV-103-GHD-DAS versus THE KROGER CO., et al.

Defendants ______________________________________________________________________________ EX PARTE MOTION FOR LEAVE TO SUBMIT OMNIBUS OPPOSITION IN EXCESS OF PAGE LIMITS ______________________________________________________________________________ Plaintiff, Kmart Corporation, seeks leave of court to file an Omnibus Response in Opposition to the Motions in Limine to Exclude Expert Testimony of John R. Krewson by Defendants, The Kroger Co.,1 E&A Southeast Limited Partnership,2 Fulton Improvements, LLC (collectively “Defendants”) in excess of the page limits.3

While these Defendants filed a

separate motion in limine to exclude Mr. Krewson’s testimony, many of the arguments asserted by them are duplicative or very similar. In an effort to minimize the number of filings and the total number of pages for each response or opposition, Kmart seeks leave of Court to file an Omnibus Opposition to these three motions filed by Defendants. Kmart’s Omnibus Opposition to these motions consist of a total of thirty-six pages, including the signature page and certificate of service, which is barely one-page beyond the thirty-five page limit for one response or opposition as provided under Uniform Local Rule 7(b)(5). Consequently, for the sake of judicial

1 See Rec. Doc. 260.

2 See Rec. Doc. 266.

3 See Rec. Doc. 247.

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economy, efficiency, and brevity, Kmart seeks leave of Court to file an Omnibus Opposition in excess of the normal page limits for a single response or opposition.

Dated: October 30, 2012

/s/ Ryan O. Luminais ____________________________________ JAMES M. GARNER (La. Bar. No. 19589) JOHN T. BALHOFF, II (La. Bar. No. 24288) RYAN O. LUMINAIS (Miss. Bar. No. 101871) SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 rluminais@shergarner.com ATTORNEYS FOR KMART CORPORATION

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing has been served on all known counsel of record with the Clerk of Court using the CM/ECF system which will automatically send-email notification to all known counsel of record, this 30th day of October, 2013. /s/ Ryan O. Luminais _________________________________________ RYAN O. LUMINAIS

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION KMART CORPORATION, Plaintiff CIV. ACT. NO. 1:11-CV-103-GHD-DAS versus THE KROGER CO., et al.

Defendants ______________________________________________________________________________ OMNIBUS RESPONSE IN OPPOSITION TO THE MOTIONS TO EXCLUDE THE OPINIONS OF JOHN R. KREWSON FILED BY THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP, AND FULTON IMPROVEMENTS, LLC ______________________________________________________________________________ May It Please The Court: Plaintiff, Kmart Corporation, submits this Memorandum in Support of its Omnibus Response to the Motions to Exclude the Opinions of John R. Krewson filed by Defendants, The Kroger Co., E&A Southeast Limited Partnership, and Fulton Improvements, LLC (collectively “Defendants”). Defendants take a “shotgun approach” in seeking to exclude the opinions and anticipated trial testimony of Kmart’s professional engineer and hydrologist, Mr. Krewson, by each filing separate motions in limine. Defendants had previously filed a joint opposition to the Motion for Leave to Amend and Supplement Mr. Krewson’s expert report filed by Kmart,1 but now take an opportunity to file their own motions and devote over seventy-five pages in memoranda to that cause. Because many of the arguments made by the Defendants in support of their motions are duplicative, Kmart files this Omnibus Opposition and asks this Court to deny the Defendants’ motions for the following non-exclusive reasons as more fully demonstrated

1 See Defendants’ Response to Motion for Leave to File an Amended Expert Report of John R. Krewson, Rec. Doc. 187.

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below: 

Mr. Krewson, who is a professional engineer with over thirty-five years of experience, is qualified to give opinions in this case. Indeed, Defendants do not challenge Mr. Krewson’s qualifications.



In Wal-Mart Stores, Inc. v. Qore, Inc.,2 this Court found that it “is no position to hold that experts can never make mistakes. When a mistake is discovered and fixed it advances the cause of justice.” Mr. Krewson has already discovered and fixed his mistake as to the inconsistent flow values in his modeling. By fixing his inadvertent mistake as to the inconsistent flow values, Mr. Krewson’s Amended Flooding Evaluation submitted on October 11, 2013, in accordance with this Court’s Order, is reliable.



Mr. Krewson’s Amended Flooding Evaluation accurately and reliably depicts the impact of the Kroger building on the flooding at Kmart’s Corinth store. By adding other obstructions to Mr. Krewson’s modeling, the rise of the water level would increase, not decrease at Kmart’s store.



Defendants must sustain their own burden in establishing any comparative negligence. Defendants should not be allowed to exclude Mr. Krewson’s testimony because they failed to submit any evidence or testimony in support of their own affirmative defense.



Defendants’ arguments as to Mr. Krewson’s testimony regarding standard “freeboarding measures” does not affect the admissibility of his testimony.



This Court should either exclude or not give any weight to the affidavit of James N. Monohan, which is attached to E&A Southeast Limited Partnership’s and Fulton Improvement’s motions. Mr. Monohan’s affidavit does not meet the basic requirements of Rule 702 of the Federal Rules of Evidence and contain improper legal conclusions.



Mr. Krewson’s findings and conclusions are not contrary to law.



Mr. Krewson’s statements in his report are based on his thirty-five years of experience as to the customs, standards, and practices in the industry. Mr. Krewson has not offered any impermissible legal conclusions.



Mr. Krewson’s anticipated testimony about the availability of flood-proofing measures that could have been adopted by Fulton Improvements should not be excluded.

2 See 2009 WL 224908 (N.D. Miss. Jan. 28, 2009) (Mills, J.) (emphasis added).

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I.

Background On May 2, 2010, Kmart Store #4833 in Corinth, Mississippi was heavily damaged by

nearly two feet of high velocity flood water. As part of its negligence claims asserted in its Complaint, Kmart alleges that the actions and/or omissions of Kroger, Kansas City Southern Railway Company, E&A Southeast Limited Partnership, and Fulton Improvements caused or contributed to its damages, which include damage to merchandise, furniture, fixtures and equipment, building repair, other miscellaneous property damage, extra expense, and lost profits.3 In addition to its negligence claims, Kmart alleges contractual claims against Fulton Improvements by failing to keep the leased premises in a safe, dry, and tenantable condition and in good order and repair as required under Section 15(a) of the lease between Kmart and Fulton Improvements.4 A.

Mr. Krewson’s qualifications and experience.

To help support its claims in this action, Kmart retained John R. Krewson as an expert in professional civil engineering and hydrology. Mr. Krewson obtained a bachelor’s of science degree in Civil Engineering from the University of Tennessee at Knoxville.5 Mr. Krewson is a registered professional engineer with over thirty-five years of experience in planning, project management, engineering design, and loss evaluation.6 Mr. Krewson has worked in both the public and private sector.7 Mr. Krewson has prepared the designs and provided construction

3 See Kmart’s Complaint ¶¶ 23-62.

4 See id. ¶¶ 59-62.

5 See Declaration of John R. Krewson, attached to Kmart’s Omnibus Response to the Motion to Exclude the Opinion of John R. Krewson filed by the Kroger Co., E&E Southeast Limited Partnership, and Fulton Improvements, LLC (“Omnibus Response”)as Exhibit 1 ¶ 2.

6 See id. ¶ 3.

7 Id. 3

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management for over one thousand engineering projects, including comprehensive high schools, middle and elementary schools, hospital additions, churches, multifamily and single family residential developments, and commercial and industrial projects.8 Mr. Krewson is licensed and registered as a professional engineer in the States of Georgia and Florida.9 Mr. Krewson has extensive training and work-related experience in site draining and hydrology. Mr. Krewson has civil engineering design and construction experience in grading, storm drainage, detention and hydrology, streets and highways, parking lots, sanitary sewers, water systems, dam and reservoir designs, and erosion control.10 He has structural design and construction experience utilizing steel, concrete, and wood for both single and multi-level structures, including pre-engineered buildings, foundations, slabs, and retaining walls.11 Mr. Krewson has extensive working experience with hydrology related software, programs, and tools, including: AutoCAD Land Desk Top, AutoCAD Civil3D, and Hydraflow engineering design software, U.S. Army Corps of Engineers HEC-1, HEC-2 HEC-RAS, Check-RAS software, and RISA3D structural design software.12

Mr. Krewson also has extensive field

experience in construction and land surveying.13 In addition to his extensive work-related experience, Mr. Krewson also has served as a litigation consultant. Mr. Krewson has served as an expert witness and has provided engineering reports on both structural and civil engineering loss evaluation, including structural collapse,

8 Id. ¶ 4.

9 Id. ¶ 5.

10 Id. ¶ 6.

11 Id. ¶ 7.

12 Id. ¶ 8.

13 Id. ¶ 9.

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wind damage, water intrusion, site work design projects, and flood evaluations at all levels up to and including major river systems.

B.

Mr. Krewson inspected the store and site only days after the May 2, 2010 flood event.

Just days after the May 2, 2010 flood event, Mr. Krewson was contacted by Kmart to perform a flooding evaluation at its department store in Corinth, Mississippi.14 Mr. Krewson arrived at Kmart’s Corinth store on approximately May 6, 2010.15 When he arrived in Corinth, Mr. Krewson initially met with certain store staff, the store manager, and a long-time employee who had witnesses the flood event just days before.16 Mr. Krewson interviewed and spoke with them about the flood event on May 2, 2010.17 After speaking with people who witnessed the flood, Mr. Krewson then inspected the Fulton Shopping Center site by working outward from the store and determining how water was controlled from the store, how the storm drainage in the parking area worked, and where it flowed.18 Mr. Krewson evaluated the draining all around the Fulton Shopping Center site and then worked outward towards Elam Creek, which is a nearby stream.19

Mr. Krewson then

walked Elam Creek downstream to the Kansas City Southern Railway trestle at Milepost #328 then down to Highway 72, and then walked upstream on Elam Creek.20 After inspecting the Fulton Shopping Center area and walking near Elam Creek, Mr. Krewson then met with Mr. David Huwe, who was the floodplain administrator for the City of

14 See Excerpts of the Deposition Transcript of John R. Krewson, attached to Kmart’s Omnibus Response as Exhibit 2 at 25:10-17.

15 Id. at 25:3-9.

16 Id. 17 Id. 18 Id. at 26:13-25.

19 Id. 20 Id. 5

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Corinth.21 Mr. Krewson testified that Mr. Huwe told him that he was surprised about a 2005 LOMR obtained by E&A and that “he was pretty amazed” as to the language in the 2005 LOMR regarding an “inadvertent placement of the store in the floodplain.”22 On May 8, 2010, Mr. Krewson returned to Kmart’s Corinth store. Mr. Krewson then inspected the conditions around Elam Creek more closely and again inspected Kansas City Southern Railway’s trestle at Milepost #328. Mr. Krewson also revisited the overall site to evaluate the draining conditions.

Kmart and Mr. Krewson then retained Scott Engineering to perform an as-built survey of the Kmart and Kroger stores and the area surrounding the Fulton Shopping Center. Mr. Krewson used the information obtained from the surveying in his modeling. Scott Engineering also surveyed several cross-sections of Elam Creek and the area surrounding Elam Creek, which were also used by Mr. Krewson in his modeling. The purpose of the survey was to evaluate the overall surface elevations and ground conditions of the area surrounding the Fulton Shopping Center around the time of the May 2, 2010 flooding event.

C.

Mr. Krewson’s modeling and findings.

1.

Mr. Krewson’s original report.

In preparation of his original report, Mr. Krewson had prepared HEC-RAS models for the Kmart and Kroger sites using as-built survey data and the water flows for the area listed in FEMA 2009 Flood Insurance Study, which was issued only one year before the May 2010 flood event.23 Mr. Krewson prepared three runs to determine the impact of the Kroger store on the flooding at Kmart’s store in Corinth during the May 2, 2010 flood event. The first run was an

21 Id. at 27:21-28:18.

22 Id. 23 See John R. Krewson’s original Flooding Evaluation dated Sept. 20, 2012, attached to Kmart’s Omnibus Response as Exhibit 3.

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idealized model that assumed a fully maintained channel with no obstructions or encroachments in the floodway.24 In the second run, the Kroger store was added to the floodway and a rise in the flood of approximately one foot was found to occur.25 In the third run, to determine the impact of encroachments, obstructions, and overgrown banks, Mr. Krewson ran an idealized model that assumed a fully maintained channel with no obstructions or encroachments in the floodway, which resulted in a two-foot drop in the flood elevation at the Kmart site below the elevations found with the Kroger encroachment in the floodway.26 One factor that Mr. Krewson put into the HEC-RAS models was the peak discharge of Elam Creek.27 Mr. Krewson used the peak discharge of Elam Creek as 3,702 cubic feet per second (cfs) in his first and third HEC-RAS run data.28 The second HEC-RAS run data, which showed the impact of the Kroger store on the flooding at Kmart, Mr. Krewson used the peak discharge figure of 5,202 cfs.29 The inconsistency in the peak discharge used in the first and third runs and the peak discharge used in the second run led Mr. Krewson to conclude in his original report that the presence of the Kroger store caused a one-foot rise in the flooding at Kmart’s store during the May 2, 2010 flood.30 The peak discharge of 5,202 cfs should have been used in all three HEC-RAS runs.

24 Id. 25 Id. 26 Id. at 5-6.

27 See Kmart’s Omnibus Response, Exhibit 2, Excerpts of the Deposition Transcript of John R. Krewson at 116:12-15.

28 Id. at 117:3-5; see also Exhibit 1, Declaration of John R. Krewson ¶¶ 15, 17.

29 See Kmart’s Omnibus Response, Exhibit 2, Excerpts of the Deposition Transcript of John. R. Krewson at 117:3-5.

30 Id. at 116:18-117:18.

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2.

Mr. Krewson’s Amended Flooding Evaluation

After being made aware of the mistake as to the flow capacity at his deposition on May 22, 2013, Mr. Krewson then re-ran his models to address the error and prepared an Amended Flooding Evaluation.31 Mr. Krewson found that, with the presence of the Kroger building only, there was a 1.1-foot rise in the flood compared to the benchmark model.32 With the presence of the Kmart building only, there was a rise of 1.0 feet relative to the benchmark model.33 With the Kmart and Kroger buildings combined, there was a rise of 0.9 feet relative to the benchmark model.34 Thus 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.35 But Mr. Krewson recognized in his Amended Flooding Evaluation that a review of the flow and velocity data from the model show that the addition of the Kroger building reduced the overbank width of flow at the building by 209 feet and increased the average velocity of the flow of the water at the Kmart building.36 These conditions increased the exposure of the Kmart building to flow water.37 In other words, without the presence of the Kroger building, the exterior of the Kmart store would only have been exposed to 1.0 foot of standing water; flowing water from the overbank would only have barely approached the Kmart store. (Water at the edge of a waterway often is more stationary, while the water closer to the center of the channel is flowing.) The

31 See John R. Krewson’s Amended Flooding Evaluation (Jul. 23, 2013), attached to Kmart’s Omnibus Response as Exhibit 4.

32 Id. 33 Id. 34 Id. 35 Id. 36 Id.; see also Declaration of John R. Krewson, Rec. Doc. 176-1 at ¶12.

37 See Kmart’s Omnibus Response, Exhibit 4, John R. Krewson’s Amended Flooding Evaluation (Jul. 23, 2013) at 9.

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addition of the Kroger building caused the Kmart store to become exposed to the rapidly flowing water, even though the water level did not rise signifcantly.38 Mr. Krewson states that it was reported that rapidly flowing water carrying debris along the back of the Kmart building resulted in damage to the rear door and that this was the cause of the water intruding into the Kmart building.39 This model corroborates eyewitness testimony that debris was pushed through the Kmart doors during the flood by flowing water.

3.

Kmart sought leave to amend Mr. Krewson’s findings.

In light of the inadvertent mistake contained in his initial flooding evaluation, Kmart sought leave to submit Mr. Krewson’s amended report. The Case Management Order required that Kmart provide its expert designations by April 8, 2013.40 The deadline was extended by this court to April 22, 2013. As a courtesy to the defendants, Kmart provided Mr. Krewson’s initial report to all parties on October 4, 2012, which was seven months before Kmart’s expert deadline.

On April 12, 2013, Kmart produced to defendants in response to discovery requests the HECRAS data used by Mr. Krewson to prepare his Initial Report. Defendants deposed Mr. Krewson on May 22, 2013. Kmart agreed to two extensions of the defendants’ expert reports, which were ultimately sent to Kmart on June 28, 2013.

On July 25, 2013, Kmart filed its Motion for Leave to file the amended report of Mr. Krewson after Defendants objected to the submission of an amended report.41 A hearing was held in front of Magistrate Judge Sanders on August 15, 2013. On August 21, 2013, Magistrate Judge Sanders issued a ruling denying Kmart’s motion.42

38 Id. 39 Id. 40 See Rec. Doc. 60.

41 See Rec. Doc. 176.

42 See Rec. Doc. 213.

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On September 27, 2013, this Court ruled that it would consider an amendment of mathematical errors only for Mr. Krewson’s hydrology report.43 In preparing his amended report in response to the Court’s order, which was submitted on October 11, 2013,44 Mr. Krewson revised the HEC-RAS flow data and the flow data discrepancy that appeared in his original report which was corrected from 3,702 cubic feet per second (cfs) to 5,202 cfs.45 Additionally, 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, 2010.46 Mr. Krewson’s proposed amended report pertains to re-calculated runs using the same scenarios described in his original report dated September 20, 2013 and in his original modeling. The proposed amended report does not use the scenarios described in the first amended report dated July 23, 2013 and in that re-run modeling. The court has not yet issued an order regarding Mr. Krewson’s Second Amended Report.

On September 20, 2013, Kansas City Southern Railway filed its Motion to Exclude Testimony of Mr. Krewson.47 Kmart opposed Kansas City Southern Railway’s motion on October 18, 2013.48 On October 2, 2013, Fulton Improvements filed its Motion to Exclude the Opinions of Kmart’s expert, Mr. Krewson.49 On October 8, 2013, Kroger filed its Motion to Exclude Testimony of Mr. Krewson.50 E&A Southeast Limited Partnership then filed its Motion

43 See Rec. Doc. 243.

44 See John R. Krewson’s second Amended Flooding Evaluation (Oct. 11, 2013), attached as Exhibit 5 at 8-9.

45 See Rec. Doc. 271.

46 Id. 47 See Rec. Docs. 240-41.

48 See Rec. Doc. 277.

49 See Rec. Doc. 247.

50 See Rec. Doc. 260.

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to Exclude Mr. Krewson’s testimony on the same day.51

In total, there are four motions

currently pending to exclude Mr. Krewson’s testimony. Kmart submits this Omnibus Opposition to the second through fourth motions filed by Kroger, E&A Southeast Limited Partnership, and Fulton Improvements.

II.

Law and Argument A.

Defendants do not challenge Mr. Krewson’s qualifications.

As a preliminary matter, there is no dispute that Mr. Krewson is qualified to offer his opinions and testimony in this case. Mr. Krewson has over thirty-five years of experience as a professional engineer. Mr. Krewson has prepared the designs and provided construction management for over one thousand engineering projects in both the public and private sector.

Mr. Krewson is very familiar with the computer programs and software to run hydrology models.

He has also offered consulting related services and expert related testimony as to flooding evaluations at all levels up to and including major river systems. Defendants do not challenge Mr. Krewson’s qualifications in their oppositions, but instead mostly scrutinize an inadvertent error made by him that he has already corrected.

B.

Mr. Krewson corrected the flow rates used in his original report so his opinions are not unreliable.

Indeed, Defendants devote a significant portion of their briefs asserting that Mr. Krewson’s testimony should be excluded on the grounds that the data relied upon by him was flawed.52 Specifically, Defendants seek to exclude Mr. Krewson’s anticipated testimony on the

51 See Rec. Doc. 266.

52 See, e.g., Fulton Improvement’s Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 3-5, 12-14, Rec. Doc. 247; E&A Southeast Limited Partnership’s Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 3-4, 6-8, Rec. Doc. 266; see also Kroger’s Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 5-10, 16-17, Rec. Doc. 260.

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grounds that he used inconsistent flow rates in two of the three models contained in his original report.

For example, E&A argues that “Krewson used an incorrect flow value that was

disproportionately larger than the flow value used on the other runs.”53 Fulton Improvements argues that “Krewson’s opinion that the Presence of the Kroger Caused or Contributed to KMart’s Damages is Inadmissible Because His Opinion is Unreliable As It Was Based On Erroneous Date.”54 Kroger argues that “Krewson’s Mistake Renders His Testimony as to the Kroger Store Inadmissible.”55 While Mr. Krewson’s original modeling contained an inadvertent mistake by using inconsistent flow rates of 3,702 cfs and 5,202 cfs, he has corrected that mistake and has submitted an Amended Flooding Evaluation in accordance with this Court’s order dated September 27, 2013.56 Mr. Krewson notes in his Amended Flooding Evaluation dated October 11, 2013 that “A review of the flow and velocity data from the model show that the addition of the Kroger to the Kmart building reduced the overbank width of flow at the building by 209 feet and increased the average velocity of flow at the building by 16 percent.”57 Mr. Krewson also opines that “[p]rior to the addition of the Kroger building the Kmart building was essentially outside the active overbank flow of water.”58 Additionally, Mr. Krewson concludes that “[w]hen the Kroger building was added, the overbank flood overlapped the combined building by 129

53 See E&A’s Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 5-7, Rec. Doc. 266.

54 See Fulton Improvement’s Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 12-14, Rec. Doc. 247.

55 See Kroger’s Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 16, Rec. Doc. 260.

56 See Kmart’s Motion for Leave to File Amended Report of John R. Krewson Pursuant to Court Order, Rec. Doc. 271.

57 See Kmart’s Omnibus Response, Exhibit 5, John R. Krewson’s second Amended Flooding Evaluation (Oct. 11, 2013) at 8-9.

58 Id. at 9.

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feet, increasing the exposure of the building to flowing water.”59 Mr. Krewson’s opinions are entirely consistent with eyewitness testimony that rapidly flowing water carrying debris along the back of the Kmart building resulted in damage to the rear door and that this was the cause of the water intruding into the Kmart building.

Defendants should not “cast stones” as to Mr. Krewson’s mathematical correction of the inconsistent flow rates that appeared in his first flooding evaluation. Defendants’ professional engineering and hydrology expert, James Monohan, testified at his deposition that “I personally don’t know what the correct flow rate is because I haven’t done any modeling.”60 Unlike, Mr. Krewson, who is more experienced than Mr. Monahan, Mr. Monohan did not do any modeling as he simply provided “commentary” to Mr. Krewson’s report.61 Additionally, without any actual support, Kroger avers in its Memorandum in Support that 5,202 cubic feet per second is the 500-year flood rate, not the 100-year flood rate.62 While Kroger references Page 9 of the National Flood Insurance Study of 2009 in support of its assertion, that page does not contain the flow rates for Elam Creek. Additionally, Kroger’s empty assertion is contrary to its own expert who testified that “I personally don’t know what the correct flow rate is.”63 Kroger’s attempt to now supplement its own expert’s omissions by misquoting a National Flood Insurance Study is hypocritical considering the position that it took regarding Kmart’s attempt to supplement Mr. Krewson’s report within the discovery deadline.

59 Id. 60 See Excerpts of the Deposition Transcript of James N. Monohan, attached to Kmart’s Omnibus Response as Exhibit 6 at 78:10-79:11.

61 See id. at 36:4-11, 43:7-12.

62 See Kroger’s Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 5-6, Rec. Doc. 260.

63 See Kmart’s Omnibus Response, Exhibit 6, Excerpts of the Deposition Transcript of James N. Monohan at 78:10-79:11.

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In Wal-Mart Stores, Inc. v. Qore, Inc.,64 a decision rendered by this Court, Chief Judge Mills found, “This Court is no position to hold that experts can never make mistakes.

When a mistake is discovered and fixed it advances the cause of justice.”65 In Qore, the plaintiff’s expert initially included the value of a fuel island canopy and store tank in his appraisal report and later removed them.66 The defendant argued that this error, along with other alleged problems associated with the plaintiff’s expert’s report, rendered the expert’s testimony unreliable and inadmissible.67 While this Court acknowledged those problems and found that the defendant’s counsel would certainly “illuminate these for the jury,”68 this Court found that the problems do not rise to the level to prevent the expert from testifying.

Here, Kmart has corrected the inconsistent flow rates used by Mr. Krewson in his original report. While Kmart submitted an amended report of Mr. Krewson after the plaintiff’s discovery deadline, the amended report was submitted in accordance with Rules 26(a)(2) and (e) of the Federal Rules of Civil Procedure. Rule 26(a)(2) provides that each party must supplement its expert disclosures when required under Rule 26(e). Rule 26(e) provides that: For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time the party’s pre-trial disclosures under Rule 26(a)(3) are due.

Here, pre-trial disclosures are not due until approximately one week before the pre-trial conference, which is scheduled to take place on February 3, 2014.69

64 See 2009 WL 224908 (N.D. Miss. Jan. 28, 2009) (Mills, J.) (emphasis added).

65 Id. at *4.

66 Id. 67 Id. 68 Id. 69 See Notice of Final Pre-Trial Conference, Rec. Doc. 63.

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submitted Mr. Krewson’s amended flooding evaluation promptly after the mistake was discovered.

C.

Defendants must sustain their burden on any argument as to comparative negligence — not Kmart.

Additionally, Kroger, E&A Southeast Limited Partnership, and Fulton Improvements (albeit very little) all assert that Mr. Krewson’s testimony should be excluded because he failed to model all the physical features in the floodplain area. Specifically, Defendants argue that Mr. Krewson’s anticipated testimony as to the presence of the Kroger building should be excluded because he failed to account for other encroachments or buildings in the floodplain. E&A Southeast Limited Partnership cites, for example, a portion of Mr. Krewson’s deposition testimony in which there is a discussion about other buildings that are located within the floodway depicted on the 2009 FEMA Flood Firm Panel.70 Additionally, Kroger asserts that Mr. Krewson “Failed to Account for Other Possible Causes of Damage to the Kmart Store on May 2, 2010.”71 Yet Defendants’ arguments are misguided, misplaced, and confuse the legal burden as to their affirmative defenses.

1.

Mr. Krewson modeled the impact of the Kroger building on the adjacent Kmart store. By adding other nearby buildings to his modeling, the water level in the models would only increase.

As a preliminary matter, Defendants confuse the burden of proof on allocation of fault between joint tortfeasors or comparative negligence. Defendants assume that Kmart maintains the burden of proof as to their own affirmative defense of comparative negligence. Based on that flawed assumption, Defendants then argue that Mr. Krewson’s testimony should be excluded

70 See E&A Southeast Limited Partnership’s Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 7-8, Rec. Doc. 266 71 See Kroger’s Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 17-20, Rec. Doc. 260.

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because he allegedly failed to model all the physical features in the floodplain. Yet Defendants’ arguments are both flawed legally and misguided as to Mr. Krewson’s modeling of the impact of the Kroger building.

Mississippi is a pure comparative negligence state.72 Under the comparative negligence doctrine, negligence is measured in terms of percentage, and any damage allowed shall be diminished in proportion to the amount of negligence or fault assigned to the plaintiff or other third-party.73 Under Mississippi Code § 85-5-7, which provides for the allocation of fault amount of joint tortfeasors, fault means: an act or omission of a person which is a proximate cause of injury or death to another person or persons, damages to property, tangible or intangible, or economic injury, including but not limited to negligence, malpractice, strict liability, absolute liability or failure to warn.

In Redecop v. Gerber,74 this Court found, “Because comparative negligence is an affirmative defense, the defendant has the burden to prove the applicability of that defense.”75 There, this Court found that the defendant did not submit sufficient proof regarding comparative negligence at trial.

Aside from confusing the legal burden, Defendants ignore that Mr. Krewson modeled the impact of only the Kroger building on the flooding at Kmart store. If Mr. Krewson were to add other physical features, like nearby buildings, then the rise of the water level or the displacement of water at Kmart’s Corinth store in the modeling would be greater, not less as Defendants’ erroneously infer as part of their argument.76 Consequently, Mr. Krewson’s findings and conclusions accurately depict the impact of the Kroger building on the flooding at Kmart’s

72 See Coho Resources, Inc. v. Chapman, 913 So. 2d 899 (Miss. 2005).

73 Id. 74 See No. 04-62, 2007 WL 120716 (N.D. Miss. Jan. 11, 2007) (Pepper, J.) 75 See id. at *2.

76 See Kmart’s Omnibus Response, Exhibit 1, Declaration of John R. Krewson ¶22.

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Corinth store. By adding other physical features, Mr. Krewson’s model would become less objective, and possibly even skewed against the Defendants. In that regard, Mr. Krewson’s modeling was consistent with the modeling done by Kansas City Southern Railway’s expert, Mr. Blake Mendrop, who also did not model other buildings in the floodway.

While E&A Southeast Limited Partnership and Fulton Improvements do not cite any decisions in support of their argument to exclude Mr. Krewson’s anticipated testimony on these grounds, Kroger devotes nearly two and one-half pages to string citations to support its argument.77 Because these citations are only string-cited, they are not helpful inasmuch as they are oblique statements of law, which are necessarily taken out of context. Regardless, none of these cases precludes Mr. Krewson from testifying because his modeling accomplished what he sought out to do, which was to determine the impact of the Kroger building on the flooding at the adjacent Kmart store.

There are many ways in which Defendants could have adequately supported their affirmative defenses in this case. Obviously, Defendants could have retained an expert to testify about whether any other obstructions in the floodway or floodplain would have increased the height of the flood waters at Kmart’s Corinth’s store. Again, Mr. Krewson isolated the effect of the size and presence of the Kroger building in his modeling, whereas Defendants’ expert in hydrology did not perform any modeling. Alternatively, Defendants could have submitted written discovery to Kmart on this issue or asked Mr. Krewson at his deposition to determine whether such a calculation could be performed (which could be done). Additionally, some courts will allow a party to submit mathematical calculations in advance of trial to an opposing party’s expert so that the expert is not forced to crunch the numbers in response to a series of

77 See Kroger’s Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 17-19, Rec. Doc. 260.

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questions while being cross-examined. Because Defendants elected not to proceed with any of these alternatives, they should not be rewarded by excluding Mr. Krewson from testifying at trial.

2.

Kroger’s arguments as to Mr. Krewson’s testimony regarding standard free-boarding measures does not affect the admissibility of his testimony.

Additionally, Kroger argues that Mr. Krewson’s testimony should be excluded on the grounds that he failed to consider whether the flooding of Kmart’s Corinth store resulted from its own conduct, which is another facet of comparative negligence that must be proven by Defendants — not Kmart.78 Specifically, Kroger cites a portion of Mr. Krewson’s report in which he discusses standard “free-boarding” measures, which are measures, like waterproofing or caulking, designed to help mitigate flood damages in areas of concern.79 Kroger asserts that Mr. Krewson’s opinions and conclusions as to standard free-boarding measures undermine his opinions and conclusions as to the cause of the flood damage.80 While these arguments by Kroger are factually misguided and incorrect, they do not affect the admissibility of Mr. Krewson’s testimony.

As a preliminary matter, Kroger’s arguments as to standard free-boarding measures, and whether Kmart approved the plans and specifications prepared by the landlord for its building, do not affect the admissibility of any testimony by Mr. Krewson. “Once a witness is qualified to give expert testimony, it is within the province of the trier of fact to give weight and credibility to the testimony.”81 Assuming arguendo that Kroger had any factual support for its arguments,

78 See Kroger’s Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 20-23, Rec. Doc. 260.

79 See id. at 20.

80 Id. 81 See Ladner v. Forest Gen. Hosp., 2013 WL 3776695 (S.D. Miss. Jul. 18, 2013) (Starrett, J.).

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which Kmart strongly denies, its arguments would still not affect the admissibility of Mr. Krewson’s anticipated testimony and findings.

Regardless, Kroger’s arguments are factually misguided. As to the specifications of the Kmart building, Kroger does not offer any evidence that Kmart approved of the design and specifications related to its building with the understanding that the adjacent Kroger building was located in a floodway. Indeed, the original plans and drawings as to the entire site development for the Fulton Shopping Center show that Kmart was led to believe by the landlord that the floodway was located well to the east of the future actual location of the Kroger building.82 This is the engineering and design map that Kmart relied upon in approving the location of its building. Robert Eley, a professional engineer retained by Defendants as an expert witness, testified that the original drawings and plans are inconsistent with FEMA’s depiction of the floodway: Q.

Okay. You agree with me that the Prime Engineering drawing C2, which we’ve labeled as Exhibit 3, is inconsistent with the depiction of the boundaries of the floodway in what we’ve labeled as Exhibit 4, which is the FIRM, flood insurance rate map, effective date of September 17, 2010:

A.

I do agree with that.

Q.

So those two things are just inconsistent. Right?

A.

That is exactly right.83

As such, Kmart was led to believe that the Fulton Shopping Center site was not located in a nearby floodway, which would lessen the need for any free-boarding measures to be taken by the landlord.

82 See PRIME Engineering Original Conditions Plan, attached to Kmart’s Omnibus Response as Exhibit 7. The red “x” denotes approximately where the Kroger building is located today. See also Exhibit 1, Declaration of John R. Krewson at ¶ 20.

83 See Excerpts of the Deposition Transcript of Robert Eley, attached to Kmart’s Omnibus Response as Exhibit 8 at 72:1-10.

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Similarly, as to the location and specifications of the adjoining Kroger building, the preexisting conditions map show that the location of the floodway well to the east of where it is depicted on the FEMA Firm Panel. Again, Kmart was led to believe that the adjoining Kroger building was not located in a floodway as depicted on the pre-existing conditions map.

Nonetheless, Kroger does not offer any evidence that its building is located in the exact location as to where it is generally depicted on Exhibit “B” to Kmart’s lease.

Additionally, as provided above, Kroger has the burden of establishing that Kmart is somehow at fault for the flooding at its Corinth store. Mr. Krewson, who is an expert witness for Kmart, is not offering any opinions or conclusions on behalf of Kroger or any of the other Defendants. While Kroger or the other Defendants may cross-examine Mr. Krewson at trial regarding these facts, they do not affect the admissibility of his testimony.

D.

This Court should not give any weight to the affidavit of James N. Monohan or any arguments made by Defendants using Mr. Monohan’s affidavit.

Additionally, Fulton Improvements and E&A Southeast Limited Partnership rely heavily on the affidavit of James N. Monahan to support their motions in limine. For example, Fulton Improvements relies on Mr. Monohan’s affidavit to support its argument addressed above as to the reliability of Mr. Krewson’s findings because he did not model other nearby buildings.84 Additionally, E&A Southeast Limited Partnership relies on Mr. Monohan’s affidavit to support its argument that Mr. Krewson “did not attempt to model the actual event” by supposedly not replicating the peak flood flow.85 Additionally, in his affidavit, Mr. Monohan attests that “Mr. Krewson’s opinion is not reliable from an engineering standpoint and cannot be relied upon to

84 See Fulton Improvements’ Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 14, Rec. Doc. 247.

85 See E&A Southeast Limited Partnership’s Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 8-10, Rec. Doc. 266.

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isolate and examine potential causal factors.”86 Neither Mr. Monohan’s affidavit nor any of the arguments made by Defendants using Mr. Monohan’s affidavit should be given any weight by this Court.

To be admissible, Mr. Monohan’s affidavit must first meet the requirements under Rule 702 of the Federal Rules of Evidence. Rule 702 provides, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of opinion or otherwise.” The trial court is responsible for ensuring that the proposed expert testimony is supported by “good grounds.” Additionally, the party offering the witness as an expert bears the burden of demonstrating that the proffered expert opinions are based upon accepted methodology and reliable data.87 Additionally, an affidavit must contain information that would allow the court to conclude that the averments are made on personal knowledge.88 Mr. Monohan’s affidavit does not meet those basic requirements. Mr. Monohan does not provide sufficient information to qualify him as a witness or support any of the opinions contained in his affidavit. Rather, Mr. Monohan simply attests that he is a licensed professional engineer and certified flood plain manager.89 Additionally, Mr. Monahan avers that “I am over 18 years old and am qualified to testify as to the matters contained herein.”90 Mr. Monohan’s conclusory statements contained in the opening of his affidavit are not sufficient to qualify him to as an expert. As provided above, the trial court is responsible for acting as the “gatekeeper” to

86 See Affidavit of James N. Monohan ¶ 3, Rec. Doc. 265-8.

87 See Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998).

88 See Thomas v. Atmos Energy Corp., 223 Fed. Appx. 369 (5th Cir. 2007).

89 See Affidavit of James N. Monohan (unnumbered paragraph), Rec. Doc. 265-8.

90 Id. (emphasis added).

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ensure that the proffered testimony is supported on “good grounds.” Mr. Monohan, on the other hand, is not the “gatekeeper,” so his self-serving conclusory statements are insufficient to meet the pre-requisites under Rule 702 of the Federal Rules of Evidence.

While Mr. Monohan’s affidavit could be ignored or excluded by the Court on those grounds alone, the affidavit also should not be given any weight because it contains legal conclusions. The trial court is supposed to act as the “gatekeeper” — not Mr. Monohan. Yet Mr. Monohan attempts to usurp the Court’s role by attesting that “Mr. Krewson’s opinion is not reliable from an engineering standpoint and cannot be relied upon to isolate and examine potential causal factors.”91 In Burlington Northern Railroad Co. v. Deatherage,92 this Court found that portions of an expert’s affidavit, in which he attempted to instruct the court on the law of preemption, should be stricken because an expert witness is not permitted to testify as to legal conclusions. Similarly, Mr. Monohan’s affidavit should be stricken or ignored by this Court, as well as the arguments made by Defendants based on his affidavit, because, in addition to usurping the Court’s role as “gatekeeper,” he attempts to instruct this Court as to the reliability of Mr. Krewson’s report.

Additionally, in his affidavit, Mr. Monohan pays lip service to the supposed correct flow capacity for Elam Creek and the actual conditions that he says should have been modeled, even though he never performed any modeling and admitted that he does not know the correct flow capacity for Elam Creek. In his affidavit, Mr. Monohan scrutinizes the flow capacity used by Mr. Krewson and criticizes Mr. Krewson for not using actual physical conditions in his HECRAS modeling. Yet, Mr. Monohan testified at his deposition that “No, I don’t know which one is the right one. I don’t know which one best matches what actually happened during the

91 Id. at 3.

92 See No. 3:95, 1997 WL 33384269 (N.D. Miss. May 21, 1997) (Biggers, J.).

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flood event of May 2nd, 2010.”93 While accusing Mr. Krewson of using an incorrect flow rate and not modeling actual conditions, Mr. Monohan did not even bother to find out which flow rate is correct and failed to model any conditions. In fact, in his expert report, he took a stab and chose the incorrect number, simply assuming that the higher flow rate of 5,702 cubic feet per second used in the initial Run 2 was incorrect and was the reason for the higher flood levels found by Mr. Krewson.

Additionally, while Defendants chastise Mr. Krewson as to his modeling, Mr. Monohan testified that “I personally don’t know what the correct flow rate is because I haven’t done any modeling.”94 Consequently, Defendants’ unwarranted attacks on Mr. Krewson and the opinions contained in his report are hypocritical at best.

D.

Mr. Krewson’s opinions are not contrary to law and are not founded on assumptions and speculation.

Additionally, Kroger and E&A Southeast Limited Partnership argue that Mr. Krewson’s opinions should be excluded as either being contrary to law or as being founded on assumptions and speculation.

For example, Kroger asserts that Mr. Krewson’s report is “replete with

statements that the Kroger store is in a floodway.”95 Additionally, E&A Southeast Limited Partnership asserts that Mr. Krewson incorrectly assumed that the construction of the adjoining Kroger building did not comply with the federal regulations and that Mr. Krewson “incorrectly assumed that the Kroger building was still located within the floodway.”96 Additionally, Kroger and E&A vaguely assert that Mr. Krewson did not use the actual conditions in preparing his

93 See Kmart’s Omnibus Response, Exhibit 6, Excerpts of the Deposition Transcript of James D. Monohan at 78:10-79:11 (emphasis added).

94 Id. 95 See Kroger’s Memorandum in Support of Motion to Exclude John R. Krewson at 26, Rec. Doc. 260.

96 See E&A Southeast Limited Partnership’s Memorandum in Support of Motion to Exclude John R. Krewson at 10-13, Rec. Doc. 266.

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modeling.

Mr. Krewson’s findings and conclusions are consistent with the applicable law, including both federal and state law as to floodways and floodplains. For example, the Flood Damage Prevention Ordinance for the City of Corinth provides that “The flood hazards of City of Corinth are subject to period inundation which results in loss of life and property.” Additionally, the Ordinance provides that: These flood losses are caused by the cumulative effect of obstructions in floodplains causing increases in flood heights and velocities, and by the occupancy in flood hazard areas by uses vulnerable to floods or hazards to other lands which are inadequately elevated, flood-proofed, or otherwise unprotected from flood damages.97 Additionally, Section 4.1 of the FEMA 2009 Flood Insurance Study for Alcorn County, Mississippi provides that “Encroachments on floodplains, such as structures and fill, reduces the flood carrying capacity, increases the flood heights and velocities and increases flood hazards in areas beyond the encroachment itself.”98 In his Amended Flooding Evaluation, Mr. Krewson concludes that the presence of the Kroger store reduced the flooding width resulting increased velocities as anticipated by FEMA, increasing the flooding and impact on the Kmart store.99

As both the federal and state laws governing floodplains anticipated,

encroachments such as the Kroger building in the floodplain could increase the height or velocities of flood waters.

While Mr. Krewson’s findings and conclusions are consistent with both federal and state law, Defendants want to simply disregard the 1981 FEMA Flood Insurance Rate Map (“FIRM”)

97 See Flood Damage Prevention Ordinance (Corinth 00006), attached to Kmart’s Omnibus Response as Exhibit 9 (emphasis added).

98 See 2009 Flood Insurance Study for Alcorn County, Mississippi at 8, attached to Kmart’s Omnibus Response as Exhibit 10 (emphasis added).

99 See Kmart’s Omnibus Response, Exhibit 5, John R. Krewson’s second Amended Flooding Evaluation (Oct. 11, 2013) at 9.

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that existed at the time of the construction of the Fulton Shopping Center around 1992. As provided above, the original site development plans prepared by PRIME Engineer, a company retained by the landlord, showed the floodway boundary far to the east of where the Kroger building currently lies, whereas a portion of the Kroger building as-built would have been located within the floodway on the 1981 FEMA Firm. Indeed, Defendants have gone as far as saying that the 1981 FEMA FIRM is wrong, whereas the original construction drawings for the development of the Fulton Shopping Center that depicted the floodway are correct. Mr. Eley, a professional engineer retained by Defendants, testified in his deposition that the FEMA FIRM is wrong, but that the original site development plans by PRIME Engineering are correct, even though FEMA’s study was supported by a hydrologic report whereas the original site development plans were not supported by any scientific evidence.100 Consequently, Defendants’ attempt to exclude Mr. Krewson’s testimony as being “contrary to law” is hypocritical at best considering their own expert’s testimony.

Notably, Mr. Krewson’s testimony as to the construction of a portion of the Kroger building in a FEMA floodway is consistent with the scientific-based 1981 FEMA FIRM (which was in effect at the time the building’s construction), whereas the Defendants’ proposed expert’s findings are not. But the apparent inconsistencies between the 1983 FEMA Firm and the original site development plans are not the only twisted facts.

Indeed, E&A Southeast Limited

Partnership requested a letter of map amendment (LOMA), but received a letter of map revision (LOMR). As to the considerations listed in the LOMR obtained by E&A Southeast Limited

100 See Kmart’s Omnibus Response, Exhibit 8, Excerpts of the Deposition Transcript of Robert Eley at 72:11-73:20 (emphasis added).

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Partnership, the LOMR provides “INADVERTENT INCLUSION IN FLOODWAY.”101 Mr. Krewson testified that, just days after the May 2010 flooding event, he had a conversation with Mr. Huwe, who is the flood administrator for the City of Corinth, and both commented how they had never seen language like that in a LOMR.102 Additionally, Mr. Monohan, who was retained by Defendants, also testified that the language in the LOMR as to the “INADVERTENT INCLUSION IN FLOODWAY” was peculiar. Mr. Monohan testified that “Prior to this particular instance of it, I had not” seen a similar description as to the reason behind the LOMR.103 For these reasons, Mr. Krewson’s testimony about the location of the floodway at the time of the original construction of the Kroger building in 1992, and his commentary about the LOMR, are not contrary to law and, in fact, consistent with portions of Defendants’ own expert’s testimony.

Additionally, unlike Mr. Monohan and Defendants, Kmart spent several thousand dollars for a land surveyor, Scott Engineering. Scott Engineering actually surveyed the shopping center site and surrounding area, including Elam Creek, to find the elevation of the land. Additionally, Scott Engineering obtained several cross-section of the shopping center and Elam Creek, which Mr. Krewson used in his modeling. Neither Mr. Monohan nor Mr. Eley, who is Defendants’ other expert, actually surveyed the land, so they cannot genuinely suggest that Mr. Krewson did not use actual conditions, like elevations. Additionally, as provided above, Mr. Krewson used the flow-capacity of 5,202 cfs because that flow capacity is the rate for a 100 year flood, which the rainfall data suggest was approximate to the event on May 2, 2010. While Defendants may

101 See Exhibit “A” attached to Kroger’s Motion to Exclude Testimony of John R. Krewson, Rec. Doc. 259-1.

102 See Kmart’s Omnibus Response, Exhibit 2, Excerpts of the Deposition Transcript of John R. Krewson at 27:21-28:18.

103 See Kmart’s Omnibus Response, Exhibit 6, Excerpts of the Deposition Transcript of James D. Monohan at 27:3-15 (emphasis added).

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argue that the May 2, 2010 flood exceed a 100 year flood event, that argument is left for the jury to decide, and should not be the basis to exclude Mr. Krewson’s testimony.

E.

Mr. Krewson’s opinions do not constitute impermissible legal conclusions.

Kroger also seeks to exclude certain statements made in Mr. Krewson’s report as impermissible legal conclusions.104 Particularly, Kroger seeks to exclude certain commentary by Mr. Krewson in his report that are based on his thirty-five years of his experience, including: (1) standard free-boarding measures used in the construction of buildings in flood prone areas;105 (2) who creates the floodway boundaries and who enforces the restrictions related to those boundaries;106 (3) the difference between floodways and floodplains;107 (4) standard customs and practices behind the issuance of LOMR’s and LOMA’s.108 Yet none of the comments made in Mr. Krewson’s report tell the trier of fact what decision to reach, which is the standard governing whether an opinion constitutes a legal conclusion.

Rule 704 of the Federal Rules of Evidence provides that “testimony in the form of an opinion or inference otherwise inadmissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact,” but an expert is not permitted to tell the trier of fact, what decision should be reached.109 The 1972 Advisory Committee Notes to Rule 704 clarifies that this rule does not permit any opinion on the ultimate issue to be rendered. As the Advisory

104 See Kroger’s Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 26-29, Rec. Doc. 260.

105 Id. at 28.

106 Id. 107 Id. 108 Id. 109 See Fed. R. Evid. 704(a).

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Committee Notes indicate, the provisions of Rules 403, 701, and 702 “afford ample assurances against the admission of opinions which would merely tell the jury what result to reach.”110 None of the commentary contained in Mr. Krewson’s report instructs the jury as to what decision to reach. Comparatively, Kroger’s accounting expert seeks to testify as to the “reasonableness” of Kmart’s period of restoration following the May 2010 flood, which is squarely an issue to be decided by the jury.111 Rather, the portions of Mr. Krewson’s report cited

by Kroger in its memorandum all relate to Mr. Krewson’s thirty-five years of experience as a professional engineer and hydrologist. This anticipated testimony by Mr. Krewson squarely fits within the customs, standards, and practices of a professional engineer and hydrologist, which are readily admissible at trial.

F.

Mr. Krewson’s anticipated testimony and opinions regarding flood proofing measures that could have been taken by Fulton Improvements should not be excluded.

Finally, Fulton Improvements argues that Mr. Krewson’s anticipated testimony regarding the absence of any flood-proofing measures by Fulton Improvements (and examples of available flood-proofing measures) before the May 2010 flood event should be excluded.112 Particularly, Mr. Krewson states in each of his reports that: Despite the location of the building in a large and documented floodplain and floodway no actions such as caulking and waterproofing the exterior walls, or construction of a protective membrane around the building were done to protect the building.113

110 Id. 111 See Kmart’s Motion and Memorandum in Support to Exclude the Testimony of Robert H. Alexander, Rec. Docs. 255-56.

112 See Fulton Improvements Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 14-25, Rec. Doc. 247.

113 See, e.g., Kmart’s Omnibus Response. Exhibits 3-5, original Flooding Evaluation (Sept. 20, 2012), amended Flooding Evaluation (Jul. 23, 2013), amended Flooding Evaluation (Oct. 11, 2013).

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Kroger and E&A do not assert the same arguments as Fulton Improvements — presumably because Fulton Improvements is obligated under the lease to keep the premises in a “safe, dry, and tenantable condition,” whereas the other defendants do not have any lease agreement with Kmart.114 Mr. Krewson’s anticipated testimony about the absence of any floodproofing measures at Kmart’s Corinth store and the availability of such measures should be admissible and not stricken by this Court.

1.

Mr. Krewson’s anticipated testimony is not unreliable or conclusory.

As a preliminary mater, Fulton Improvements asserts that Mr. Krewson’s opinions as to the absence of any flood-proofing measures on the Kmart building are unreliable or conclusory.115 In his report, Mr. Krewson found that the Kmart building did not have any floodproofing measures.116 Mr. Krewson also offered illustrations of certain flood-proofing measures that were not present on the Kmart building, such as caulking and waterproofing of the exterior walls or construction of a protective membrane around the building.117 This illustrative list was not intended to exhaustive.

Indeed, Fulton Improvements questioned Mr. Krewson at his

deposition as to other available flood-proofing measures, and Mr. Krewson, in addition to the examples contained in his expert report, mentioned the availability of flood-proof exterior doors that are attached to a building or other structure.118 The purpose of the flood-proof door is to prevent the exterior doors from being broached by floodwaters, which is what happened in this

114 See Lease, attached to Kmart’s Omnibus Response as Exhibit 11.

115 See Fulton Improvements Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 14-17, Rec. Doc. 247.

116 See, e.g., Kmart’s Omnibus Response, Exhibits 3-5, original Flooding Evaluation (Sept. 20, 2012), amended Flooding Evaluation (Jul. 23, 2013), amended Flooding Evaluation (Oct. 11, 2013).

117 Id. 118 See Kmart’s Omnibus Response, Exhibit 2, Excerpts of the Deposition Transcript of John R. Krewson at 119:23-122:7.

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case.119 Fulton Improvements’ argument that Mr. Krewson’s report is insufficient or incomplete because he allegedly fails to explain the “how and why” of certain flood-proofing measures that did not exist at Kmart’s Corinth store is illogical.120 As provided more fully below, it is undisputed that Fulton Improvements did not incorporate any flood-proofing measures into its building leased by Kmart in Corinth. Mr. Krewson personally inspected the building and its plans and could not find any such measures, which is consistent with the testimony of Fulton Improvement’s corporate representative. As such, there is no “how and why” as to the absence of any flood-proofing measures because they simply did not exist.

Additionally, Mr. Krewson should also be allowed to testify that, had certain floodproofing measure been implemented, the store would not have flooded or the water levels inside the store would have been much more manageable as they had been in the past when the exterior doors did not break despite flooding around the building. In his Amended Flooding Evaluation dated October 11, 2013, Mr. Krewson concludes: It is our belief 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 not have flooded, or had flooding occurred, it would have occurred as 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.121 While Mr. Krewson is more than qualified to testify as an expert regarding the availability of flood-proofing products, like flood-poof exterior doors and their intended purpose,

119 Id. 120 See Fulton Improvements’ Memorandum in Support of Motion to Exclude John R. Krewson’s Testimony at 15-17, 21-22.

121 See, e.g., Kmart’s Omnibus Response, Exhibits 3-5, original Flooding Evaluation (Sept. 20, 2012), amended Flooding Evaluation (Jul. 23, 2013), amended Flooding Evaluation (Oct. 11, 2013).

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expert testimony is not needed in this area. Indeed, “The general rule in Mississippi is that expert testimony is not required where the facts surrounding the alleged negligence are easily comprehensible to a jury.”122 Here, the exterior roll-up door at Kmart was damaged by the high velocity floodwaters on May 2, 2010, which allowed flood water to flow throughout the store as shown by the attached photograph.123 Mr. Krewson can testify about the availability of floodproofing products, like flood-proof doors and the intent behind the doors to prevent rushing water from breaching the most vulnerable area of a building, i.e., the exterior door. That is what happened in this case, and those facts are easily comprehensible to any jury.

Further, Fulton Improvements’ reliance on this Court’s decision in Williams v. Daimler Chrysler Corp.124 is misplaced. There, the plaintiffs submitted an expert report one-page in length,125 whereas Mr. Krewson’s reports exceeds ten pages (not including exhibits) and contains a

well documented background as to the location of the Kmart and Kroger’s stores, the

construction of those stores, and the drainage patterns.

Additionally, in response to the

defendant’s motion to exclude testimony, the plaintiff in Daimler Chrysler failed to address any of the arguments made by the defendant. Indeed, this Court recognized multiple times in its opinion in that case that the plaintiff’s responses “to the motions to exclude the plaintiff’s experts are almost completely devoid of any authorities or analysis.

The responses proffer mere

conclusory statements.” 126 The Court found that the “plaintiff’s response is clearly inadequate to sustain the plaintiff’s burden in demonstrating that Van Sweden’s testimony will be reliable

122 See Travelers Cas. & Surety Co., v. Ernst & Young, LLP, 542 F.3d 475, 491 (5th Cir. 2008) (citing Wal-Mart Stores, Inc. v. Johnson, 807 So. 2d 382 (Miss. 2002).

123 See photograph taken on May 2, 2010 of water flowing through Kmart’s Corinth store, attached to Kmart’s Omnibus Response as Exhibit 12.

124 See No. 06-188, 2008 WL 4449558 (N.D. Miss. Jul. 22, 2008) (Pepper, J.).

125 Id. at *4.

126 Id. at *5.

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pursuant to Rule 702.”127 The Court found that the “failure was not harmless and clearly prejudiced the defendants”128 and that the report should be stricken pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure.

Comparatively, Mr. Krewson’s report is more complete and thorough than the expert report of Mr. Eley, who was retained by Fulton Improvements. Mr. Eley’s expert report is only four pages, but the first page merely lists the documents that he relied upon and the fourth page is almost entirely a signature page.129 Additionally, Mr. Eley concludes on the third page of his report that “no amount of caulking, waterproofing or protective membrane would have prevented water from entering the Kmart building during a flood event.”130 Mr. Eley testified that the basis for his opinion was “thirty-five years of experience” and “an engineering degree.”131 While Kmart denies that Mr. Krewson’s findings are unreliable and/or conclusory as asserted by Fulton Improvements, any omission by Mr. Krewson is harmless under Rule 37(c)(1) of the Federal Rules of Civil Procedure. Kmart submitted the expert report of Mr. Krewson to Defendants over seven months before the plaintiff’s deadline. Defendants deposed Mr. Krewson for nearly seven hours, which included a lengthy discussion regarding flood-proofing measures.

Fulton Improvements has designated two experts, Mr. Eley and Mr. Monohan, to testify regarding flood-proofing measures. In its Initial Disclosures exchanged on or about September 21, 2012, Kmart identified Mr. Krewson as a potential witness to testify as to “his opinions of the acts or omissions of the Defendants that increased the flood elevations at the subject area.”132 Additionally, Mr. Krewson has also been identified as a fact witness as to flood prevention

127 Id. *6.

128 Id. at *5.

129 See Expert Report of Robert B. Eley, attached to Kmart’s Omnibus Response as Exhibit 13.

130 Id. 131 See Exhibit 8, Excerpts of the Deposition Transcript of Robert E. Eley at 96:10-19.

132 See Kmart’s Initial Disclosures (Sept. 21, 2012), attached to Kmart’s Omnibus Response as Exhibit 13.

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measures.133 Further, Kmart has also identified one of its employees, Todd Lemmert, to testify regarding “possible flood prevention measures that could have been taken by Kmart’s landlord to protect the Kmart building from flood damage.”134 Additionally, Kroger and E&A Southeast Limited Partnership have not objected to this portion of Mr. Krewson’s testimony. For these reasons, there is no harm in allowing Mr. Krewson to testify regarding these matters, and Fulton Improvements has not shown otherwise.

2.

Mr. Krewson’s anticipated testimony is not inconsistent with Fulton Improvements’ failure to take any measures whatsoever to prevent flooding at its development.

Additionally, Fulton Improvements devotes nearly four pages of its memorandum arguing that “Mr. Krewson’s Opinion Does Not Take Into Account Documents Generated by Kmart at the Time of the Flooding.”135 By relying on certain e-mails and other internal documents produced by Kmart, Fulton Improvements argues that Kmart ignores the facts of this case as to the spontaneous nature of the flooding that occurred on May 2, 2010.136 Yet Fulton Improvements’s arguments assume that the examples of flood-proofing measures offered by Mr. Krewson would not have already been in place. In other words, Mr. Krewson’s anticipated testimony about the availability of flood-proofing measures assumes that these measures would have been in place long before the May 2010 flood event, not quickly assembled as suggested by Fulton Improvements. Fulton Improvements’s corporate representative, Donna Earnhart, admitted, however, that it failed to take any flood-proofing or

133 See Kmart’s Supplemental Responses to Kroger’s First Set of Interrogatories (Answer to Interrogatory No. 2), attached to Kmart’s Omnibus Response as Exhibit 14.

134 Id. 135 See Fulton Improvements’ Memorandum in Support of Motion to Exclude Testimony at 17-21, Rec. Doc. 247.

136 Id. 33

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safeguard measures whatsoever as to Kmart’s Corinth store prior to the May 2010 flood.137 Contrary to Fulton Improvements’ arguments, Mr. Krewson did not ignore any “known facts.”138 Indeed, Mr. Krewson’s anticipated testimony and opinion that “no actions” were taken

by Fulton Improvements is consistent with the testimony of Fulton Improvements’s corporate representative, Ms. Earnhart. These actions, like a flood-proof door, caulking, waterproofing the exterior walls, etc., should have been in place long before the May 2010 flood event, but Fulton Improvements failed to take any action.

3.

Mr. Krewson’s testimony regarding the absence of either flood-proof exterior doors and/or caulking and water-proofing is admissible.

Fulton Improvements again argues that Mr. Krewson’s opinions as to the availability of certain flood-proofing measures, like a flood-proof door or caulking and water-proofing, should be inadmissible as being incomplete.139 As provided above, Mr. Krewson should be allowed to testify regarding the availability of flood-proof doors as a preventative measure because it is another example of the types of measures that were absent from Kmart’s Corinth store.

Additionally, the availability of those types of measures is something that is easily comprehensible to a jury without the need for expert testimony. Thus Mr. Krewson should be allowed to testify regarding the availability of these measures regardless of whether any of his opinions or conclusions are stricken by this Court. Nevertheless, it also falls within his expertise to opine whether their measure would have prevented the flow and velocity of waters from entering the store. Kmart has also identified one of its employees, Mr. Todd Lemmert, who can

137 See Excerpts of the Deposition Transcript of Fulton Improvement’s Corporate Representative, attached to Kmart’s Omnibus Response as Exhibit 14 at 125:25-127:10.

138 See Fulton Improvements’ Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 20, Rec. Doc. 247.

139 Id. at 22-24.

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discuss such measures that have been used at other Kmart stores.140 Additionally, Fulton Improvements argues that Mr. Krewson finding that the Kmart building did not have any caulking or waterproofing should be excluded because Mr. Krewson could not recall the materials used in the construction of the building at the time of his deposition.141 Yet Fulton Improvements ignores that Mr. Krewson testified from his memory but that he would “have to check it.”142 Fulton Improvements’s reliance on this Court’s decision in Daimler Chrysler143 is misplaced because the expert in that decision did not actually inspect the automobile in question, whereas Mr. Krewson inspected the Kmart store and its surrounding just days after the May 2010 flood. Conversely, Fulton Improvements’s expert, Mr. Eley, who is offering opinions as to the effect of flood-proofing measures, did not visit the site at any time in connection with forming his opinions.144 4.

Mr. Krewson’s anticipated testimony regarding blow-up protective membranes is also admissible.

Finally, Fulton Improvements argues that Mr. Krewson’s anticipated testimony regarding a blow-up protective membrane should also be excluded.145 As provided above, Mr. Krewson listed a blow-up protective membrane as an example of a flood-protective measure that Fulton Improvements failed to incorporate into the building. Like the other flood-proofing measures, a

140 See Kmart’s Omnibus Response, Exhibit 14, Kmart’s Supplemental Responses to Kroger’s First Set of Interrogatories (Answer to Interrogatory No. 2).

141 See Fulton Improvements Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 22-24, Rec. Doc. 247.

142 See Kmart’s Omnibus Response, Exhibit 2, Excerpts of the Deposition Transcript of John R. Krewson at 119:7-13.

143 See 2008 WL 4449558 at *4 (“It is undisputed that Dr. Smith never inspected the actual vehicle, its air bag, or any exemplars of an air bag in reaching his opinions.”)

144 See Kmart’s Omnibus Response, Exhibit 8, Excerpts of the Deposition Transcript of Robert B. Eley at 26:19-27:3, 108:6-13.

145 See Fulton Improvements’ Memorandum in Support of Motion to Exclude Testimony of John R. Krewson at 24-25, Rec. Doc. 247.

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blow-up membrane is something well planned and orchestrated, so Defendants’ argument as to the spontaneous nature of the May 2010 flood event is inapposite. While Mr. Krewson did not actually “test” a blow-up membrane at the Corinth store, he should be allowed to testify regarding the intended use of those types of membranes and devices at other buildings.

III.

Conclusion Based on the foregoing reasons, Kmart asks this Court to deny the motions in limine to

exclude Mr. Krewson’s testimony filed by Kroger, Fulton Improvements, and E&A Southeast Limited Partnership.

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 Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 ATTORNEYS FOR KMART CORPORATION

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing has been served on all known counsel of record with the Clerk of Court using the CM/ECF system which will automatically send-email notification to all known counsel of record, this 30th day of October, 2013. /s/ Ryan O. Luminais _________________________________________ RYAN O. LUMINAIS

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION KMART CORPORATION, Plaintiff CIV. ACT. NO. 1:11-CV-103-GHD-DAS versus THE KROGER CO., et al.

Defendants DECLARATION OF JOHN R. KREWSON STATE OF GEORGIA COUNTY OF COBB In accordance with 28 U.S.C. § 1746, I, John R. Krewson, state the following: 1.

My name is John R. Krewson.

2.

I obtained a Bachelor’s of Science degree in Civil Engineering from the University of Tennessee at Knoxville in 1971.

3.

I am a registered professional engineer with thirty-five years of experience in the public and private sector in planning, project management, engineering design, and loss evaluation.

4.

I have prepared the designs and provided construction management for over one thousand engineering projects, including comprehensive high schools, middle and elementary schools, hospital additions, churches, multifamily and single family residential developments, and commercial and industrial projects.

5.

I am licensed as a professional engineer in the States of Georgia (PE# 10228) and Florida (PE#68675).

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6.

I have civil engineering design and construction experience in grading, storm drainage, detention and hydrology, street and highways, parking lots, sanitary sewers, water systems, dam and reservoir designs, and erosion control.

7.

I have structural design and construction experience utilizing steel, concrete, and wood for both single and multi-level structures, including pre-engineered buildings, foundations, slabs, and retaining walls.

8.

I have extensive experience with hydrology related software and programs, including AutoCad Land Desk Top, AutoCAD Civil 3D, and Hydraflow engineering design software; U.S. Army Corps of Engineers HEC-1, HEC-2, HEC-RAS, Check-RAS software; and RISA3D structural design software.

9.

I am also experienced in the fields of constructions and land surveying.

10.

I have been retained by Kmart Corporation to act as a expert witness in this case as to the cause and/or contributing factors of the flood and/or water damage to the Kmart Store #4883 located at 118 Highway 72 West, Corinth, Mississippi.

11.

My original expert report in this matter was submitted to counsel for Kmart on or around September 20, 2012. My understanding is that it was then submitted to counsel for the defendants on or around October 4, 2012.

12.

Additionally, on April 2013, I submitted the HEC-RAS data that I used to prepare my original report to Kmart’s counsel in responding to a written discovery request from one of the defendants.

13.

On May 22, 2013, I was deposed by counsel for the defendants in Jackson, Mississippi.

2

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14.

During that deposition, I discovered for the first time that my report and findings contained a mistake that affected the finding and conclusions contained within my original report dated September 20, 2012.

15.

Specifically, my second HEC-RAS run data, which showed the impact of the Kroger building on the flooding at the Kmart building, incorrectly compared two peak discharges.

16.

This led me to mistakenly originally conclude that the presence of the Kroger building caused a one foot rise in the flooding at Kmart’s store on May 2, 2010.

17.

In re-running the models for my latest Amended Flooding Evaluation dated October 11, 2013, I corrected the flow-rate of Elam Creek from 3,702 cubic feet per second to 5,202 cubic feet per second, which is the correct flow-rate to use in the modeling because it accounts for the convergence between Elam Creek and Turner Creek.

18.

Additionally, in my latest Amended Flooding Evaluation dated October 11, 2013, the Manning N values contained in my original Flooding Evaluation dated September 20, 2012 were 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.

19.

In my latest Amended Flooding Evaluation dated October 11, 2013, I made the following conclusions: (a)

The draining basin upstream from the Kmart site received rainfall that appears to approximate the 1-percent annual chance rainfall event (100 year storm). Using the FEMA 1-percent annual chance (100 year) flow data, and

3

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using a model with an overgrown channel similar to that existing at the time of the flood, flooding in Elam Creek exceeds the FEMA 1-percent annual chance (100 year flood) elevation and approaches the actual depths of flooding at the building reported. The presence of the Kroger store increased the impact and depth of flooding during the flood event of May 2, 2010 and caused damage to Kmart. (b)

The presence of the Kroger in the FEMA floodway reduced the flooding width resulting in increased velocities as anticipated by FEMA, increasing the depth of flooding and impact on the Kmart store in Corinth, Mississippi.

(c)

The lack of maintenance of the creek channel, coupled with obstructions and debris in the channel increased the depth of flooding and caused increased damage to the Kmart during the flood event of May 2, 2010.

(d)

Filling in the low area behind the Kmart and Kroger stores reduced the flood storage volume and likely increased the depth of flooding damage to Kmart.

(e)

Despite the location of the building in a large and documented floodplain and floodway, no actions such as caulking and waterproofing the exterior walls, or construction of a protective membrane around the building were done to protect the building.

(f)

In my opinion, 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 waterpoofing, the Kmart store would not have flooded, or

4

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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 not have been able to protect the store from damage.

20.

Additionally, I was asked to mark an “x” at the approximate location of where the Kroger building would appear on the Prime Engineering Survey, which is attached as Exhibit 7 to Kmart’s Omnibus Opposition. While that survey was done prior to the construction of the Kroger building, the location of the building as it exist today would be located approximately where the “x” appears on the survey.

21.

The location of the floodway as it appears on the Prime Engineering Survey, which is attached as Exhibit 7 to Kmart’s Omnibus Opposition, and as it appears the prior FEMA FIRM Panels for Corinth, Missisisippi are inconsistent.

22.

Additionally, if asked to model the other buildings or structures that appear in the floodway, my opinion would be that the rise in the water level at the Kmart store in Corinth, Mississippi would increase, not decrease, but I have not done that modeling yet.

23.

I declare under penalty of law that the foregoing is true and correct.

_____________________________________ _____ _ ____ _ _______ JOHN R. KREWSON

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Amended Flooding Evaluation

Kmart # 4883 118 Highway 72 West Corinth, Mississippi 38834

Prepared For:

0112

Mr. John T. Balhoff, II Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112

EFI Global Job No: 98340-08794

July 23, 2013

Prepared By: EFI Global, Inc. 3039 Premiere Parkway Suite 700 Duluth, GA 30097

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3039 Premiere Parkway Suite 700 Duluth, GA 30097 Tel: 770-925-9600 Tel: 800-245-9601 Fax: 770-925-9649 www.efiglobal.com

July 23, 2013 Mr. John T. Balhoff, II Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112

Re:

Amended Flooding Evaluation Kmart # 4883 118 Highway 72 West Corinth, Mississippi 38834 EFI Global JN: 98340-08794

Dear Mr. Balhoff: Please find our amended report related to the flooding of Kmart store # 4883 at 118 Highway 72 West, in Corinth, Mississippi. This report re-calculates the HEC-RAS results shown in the original report of September 20, 2012. The HEC-RAS results used in the September 20, 2012 report were based on an inadvertent flow data discrepancy in the HEC-RAS model. The revised HEC-RAS model herein is expanded to review additional flooding scenarios at the site.

This amendment also discusses and utilizes information concerning the Kmart Store # 4883 site that was not available for review at the time the September 20, 2012 report was submitted. The additional information includes the original construction plans for the site, debris at the railroad bridge, and the LOMR, LOMA, and Elevation Certificates approved at the site.

For the purposes of this report, the front of Kmart store # 4883, hereinafter also referred to as Kmart, will be the side of the store facing the intersection of Highway 72 West and South Fulton Drive. Directions right and left will be based on a viewer facing Kmart from this intersection. Using this convention, the right side of the store faces South Fulton Drive, the left side of the store faces Highway 72 West, and the rear of the store faces State Street.

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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013

Background: The Kmart store is a large retail store located in a shopping center at the corner of Highway 72 West and South Fulton Drive in Corinth, Mississippi (Figure 1). The building housing the Kmart store has slab on grade, open plan, warehouse type construction with at-grade parking abutting the store on the front. Paved driveways are on the left side and rear of the store. The building housing Kmart also houses a Kroger Grocery store as a continuation of the building to the right of the Kmart. Both the Kmart and the Kroger stores were constructed in 1992 as a part of the overall development of the retail center. The two stores have the same floor elevation and share parking.

The overall Kmart-Kroger retail center is a 16.29 acre tract located in a low area adjacent to Elam Creek, a large creek to the right of South Fulton Drive flowing north to south towards Highway 72 West. Parking for the Kmart and Kroger stores is at grade. Storm water runoff from the parking lot in front of the stores is collected in drop inlets and carried across South Fulton Drive in an underground pipe system to an existing detention facility located to the right of the site between South Fulton Drive and Elam Creek. Grades on the site are flat.

Roof drainage for the Kmart and Kroger stores is provided by gutters and downspouts on the rear of the store buildings. The downspouts discharge onto splash blocks at grade with the asphalt pavements behind the stores. Runoff from pavement behind the stores drains away from the stores across the paving to the rear curb. The runoff is collected and discharged by several flumes through the curb into an existing ditch draining left to right parallel to the curb behind the buildings.

Flow in the ditch is collected, along with runoff from the large grassed area behind the site, into a headwall for a 60 inch outfall storm drain.

The 60 inch headwall is located approximately between the Kroger and the Kmart stores, behind the rear curb of the parking lot behind the stores. The 60 inch outfall pipe runs from the headwall back towards the building to a drop inlet in the pavement behind the Kroger store. From this inlet, the pipe runs to the right behind the Kroger store through a series of drop inlets and then across South Fulton Drive. The location of the outfall headwall for the 60 inch pipe once it crosses South Fulton Drive could not be determined. Based on the location of the existing buildings to the right of South Fulton Drive and an inspection of Elam Creek in the area, it is believed the pipe turns and runs parallel to South Fulton Drive toward Highway 72 West and eventually discharges into the existing detention facility noted above.

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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013

Flooding Event: According to weather records on WeatherWarehouse.com, rain began falling in the Corinth area during the late evening of May 1, and the early morning of May 2, 2010.

By 5:00 a.m., the records for Corinth show that 5.68 inches of rain had fallen. As the morning progressed, water began rising rapidly around the Kmart. According to the store manager, Mr. Matt Hausmann, water was building up and flowing along the rear of the building, putting stress on the rear doors of the store. Eventually, landscape timbers stored on site struck the doors with enough force to break open the doors, lodge in the opening, and allow water to flood into the store. The quantity of water overwhelmed the staff’s ability to control it. According to Mr. Hausmann, the water in the parking lot around the building was measured at a depth of 22 inches by City of Corinth employees. Photographs taken in the Kmart store show a water depth of approximately 1.5 feet. Mr. Hausmann stated that there was a similar depth of water in both the Kmart and the Kroger store. The water caused considerable damage to the buildings and the inventory of the both the Kmart and Kroger stores.

The flooding in 2010 is very similar to flooding events that occurred on October 13, 2001 and November 18, 2001 as outlined in a report prepared by the engineering firm of Reaves Sweeney Marcom of Memphis, Tenn.

Weather Data: The records for the area found on WeatherWarehouse.com show a rainfall event occurring overnight and during the morning of May 2, 2010 for the northern Mississippi and western Tennessee areas. Although hourly records for the area were not available, a review of the daily recording times and the pattern of rainfall distribution on area weather stations show that between 6 and 13 inches of rainfall fell during the period prior to 8:00 a.m., with the higher rainfall events occurring north of Corinth with Corinth being approximately on the southern extent of the heavy rainfall. Weather stations 10 or more miles south of Corinth and the Kmart site show relatively light rainfall accumulation, with the amount of rainfall recorded increasing with distance north of Corinth.

Because Elam Creek, the creek that flooded the site, heads up approximately 6 miles north of the site and flows south to the site, the pattern of increased rainfall amounts north of the site increased the flooding impact on the Kmart site. Based on NOAA Technical Paper 40 for the Corinth area, the 24 hour 100 year rainfall event is 7.6 inches. Based on the weather records, it appears that the storm of May 2, 2010 may have approached the 100 year rainfall amount.

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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013

FEMA Flooding Data: The current FEMA Firm Panel for the site, panel 28003C0067 (Figure 3), shows that the majority of the site area, including all of the Kmart and the Kroger building, is located in the designated flood limits of Elam Creek. Elam Creek is large tributary creek having an upstream drainage area of over 6 square miles draining to the site of the Kmart building. At the store site, the creek has a large, well developed flood zone designated on the FIRM panel as an AE zone. AE zones are studied zones having established base flood elevations. The Firm Panel also shows an area along both banks of the creek that is designated as the regulatory floodway for the creek.

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 as being the regulatory floodway. The Kmart store is located in the floodplain only.

According to a Letter of Map Revision issued for the site in 2005, the 100 year flood elevation for the building is 432.4. An Elevation Certificate for the site prepared on November 11, 2001 places the finished floor elevation of the building at 433.0, 0.6 feet above the elevation of the FEMA 100 year flood elevation. Based on an as-built survey prepared for the site as a part of this report, the exterior grades along the perimeter of the building vary from 431.8 and 432.2, meaning the lowest adjacent grades around the building are below the flood elevation. A review of the FEMA historic FIRM records determined that the flood elevation of Elam Creek is unchanged on the current FIRM from the 100 year flood elevations at the time of construction of the building. Typically, standard design and permitting practice require building floor elevations in flood prone areas, especially in designated flood areas to be at least 3.0 feet above the 100 year flooding elevation. In the case of the Kmart and the Kroger, this would place the floor elevations at 435.4, 2.4 feet higher than the actual floor elevation. Had the building been constructed with a floor elevation of 435.4, flooding would not have occurred during the storm of 2010. The review of the elevation of the building relative to the flood elevation would typically have been the responsibility of the City of Corinth building authorities.

The location of the Kroger in the floodway is a concern. As noted, approximately one half of the Kroger was built in the floodway for Elam Creek. A review of aerial photography and the current FIRM for the site shows that a number of other buildings were also built in the floodway. According to records I have examined, the floodway shown on current FIRM is unchanged from the floodway shown on the prior FIRM panel, prior to the construction of the building. FEMA’s 2009 Flood Insurance Study for Alcorn County and Incorporated Areas, states:

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“Encroachment on floodplains, such as structures and fill, reduces the flood carrying capacity, increases the flood heights and velocities, and increases flood hazards in areas beyond the encroachment itself. One aspect of floodplain management involves balancing the economic gain from floodplain development against the resulting increase in flood hazard. For purposes of the NFIP, a floodway is used as a tool to assist local communities in this aspect of floodplain management. Under this concept, the area of the 1-percent-annual-chance floodplain is divided into a floodway and a floodway fringe. The floodway is the channel of a stream plus any adjacent floodplain areas that must be kept free of encroachment so that the 1percent-annual-chance flood can be carried without substantial increases in flood heights. Minimum Federal standards limit such increases to 1.0 foot, provided that hazardous velocities are not produced. The floodways in this study are presented to local agencies as minimum standards that can be adopted directly or can be used as a basis for additional floodway studies.”

Simply put, floodwaters must have an open, unobstructed flowing pathway along a creek. If earth fill or buildings or other structures are built in the flow pathway floodwaters rise and move faster and cause greater damage. When FEMA prepares their maps, they calculate what a reasonable flow pathway should be and show it as the “Floodway” on their maps. It is the responsibility of the cities and counties that issue building permits to enforce the restriction and make sure that the floodway is not blocked.

The difference between the areas on the FEMA maps called the “Floodway” and the areas called the “Floodplain” is that nothing can be built in the “Floodway”, while careful construction is allowed in the “Floodplain” areas. The Kmart store is built entirely in the “Floodplain.” Approximately one half of the Kroger store is built in the “Floodway”, obstructing the flow of floodwater down the creek.

The construction of the Kroger and other structures in the known floodway of Elam Creek increases the flood heights and potential for flooding, as well as for increased velocities, both of the factors involved in the flooding of the Kmart store. It is not known what regularity review was in place at the time the Kroger and other buildings were constructed in the floodway, but as the above quote from the Flood Insurance Study states, it is the responsibility of the local governing authority to control and prevent construction in the floodway. According to the August 30, 2010 volume of the “Federal Register”, Corinth, Mississippi, and Alcorn County, Mississippi were among the jurisdictions subject to suspension of community eligibility under the National Flood Insurance Program (NFIP) for non-compliance with the floodplain management requirements of the program.

A review of the “Existing Conditions Plan” sheet C-2 dated 03/09/1992 from the original construction plans for the site prepared by Prime Engineering found the

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elevation and location of the floodplain, and the location of the floodway to be substantially different from the floodplain and floodway shown on the FEMA FIRM panel for the area at the time. The floodway on the plans is shown south of Fulton Drive. The floodplain elevation on the plan sheet is approximately 430.8 which is 1.6 feet below the FEMA FIRM flood elevation shown on 1981 FIRM in force at the time.

The derivation of the floodplain and floodway data shown on the plans is unknown.

Although the Kroger and other structures along Elam Creek were constructed in the floodway without restriction, a review of FEMA’s records found that a “Letter of Map Revision” or LOMR was issued by FEMA in November 18, 2005, removing the Kroger property from the floodway due to “Inadvertent Inclusion in the Floodway 1”.

The records do not indicate how the LOMR originated, or what studies, review or public notice was given prior to issuance. FEMA regulations require a flood study be done to determine the impact of the encroachment on flood elevations and velocities.

The studies are submitted to FEMA for review and approval. No record was found of such a study. Issuance also requires that other affected property owners along the creek be notified, and public notice be made. No record of this was found. Once the studies and public notice are complete, the local governing and review agency responsible for flood management and oversight makes a final review of the LOMR and recommends approval. No record of this was found.

Prior to the issuance of the FEMA’s Letter of Map Revision (LOMR) in 2005, other prior efforts had been made regarding the location of the buildings in the floodplain and floodway. Also in 2005, a Letter of Map Amendment (LOMA) was issued for the site. An Elevation Certificate was issued by FEMA in 2001.

Note: The issuance of the LOMR, LOMA, and Elevation Certificate would have no impact on the physical presence of the buildings in the floodway or floodplain, or on the potential for flooding in any given flood event. These instruments would serve to reduce the cost of flood insurance for the buildings. The buildings are still shown in the floodplain and the floodway on the 2010 FEMA FIRM map for the site.

Along with the placement of the Kroger and other structures in the regulatory floodway, several other conditions that would increase the flood elevations on the site were noted along the creek and in the floodplain at the time of the initial inspection: 

Southeast of the Kmart near Highway 72, at the point where Kansas Southern Railroad’s north-south railroad line crosses Elam Creek on a timber bridge, a considerable debris field was noted upstream of the bridge. The debris blocked approximately the lower quarter of the bridge opening. Mr. David Huwe, the Director of Community Development and Planning for the City of Corinth stated during an interview in his office that the railroad had a poor

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record of maintenance and that the debris at the railroad bridge had been an ongoing problem for some time prior to the flood event.

A picture of the flooded railroad bridge not available at the time of our initial report shows the bridge to be completely underwater. In the picture, there is no debris field floating upstream of the bridge. For the debris found behind the bridge at the time of our inspection to have resulted from debris floating downstream during the storm, there would have be a considerable amount of floating debris trapped behind the bridge when the water level dropped. The lack of a floating debris field in the picture indicates that the debris found behind the bridge after the flood were present prior to the flooding. Since they did not rise and float off during the flood, they apparently were present for a long enough time to become embedded behind the bridge.

Pictures taken during our initial investigation (Figure19 thru 21) show a debris field upstream of the ridge on the floor of the creek. It was noted during the field survey done in August, 2010, approximately 3 months after the initial inspection, that the debris field had been removed. It is not known who cleaned up the debris. Pictures taken April 28, 2011 by others show another, larger debris field upstream of the bridge. 

A bridge for an abandoned railroad spur crossing Elam Creek remains in place with narrowly spaced abutments obstructing the creek channel.



The creek channel was badly overgrown with vegetation and poorly maintained. Near the spur railroad bridge noted above, utility and sanitary sewer pipes crossing the channel were apparently abandoned in place, obstructing the channel.



The approximately 4.5 acre grassed field immediately behind the Kmart and Kroger building was originally a number of feet lower in elevation. According to Mr. Huwe with the City of Corinth, the city filled the area over time with excess earth material from various projects around the city. Evidence that dumping of excess fill was still underway was found at the time of the initial inspection of the area (Figure 10). Filling the area reduced the flood storage and flood protection for the Kmart and Kroger building.

The report on the 2001 flooding by Reaves Sweeney Marcom noted above discussed the Elam Creek channel blockage, overgrown channel, and the railroad crossing and utility line impacts on the flooding.

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HEC-RAS Flood Studies: To determine the impact of the Kroger encroachment and general conditions of the flood hazard at the time of the May 2, 2010 flood, we prepared a preliminary HECRAS evaluation for the site using as-built survey data and the flows for the area listed in FEMA’s 2009 Flood Insurance Study. As noted there was a discrepancy in this preliminary initial report. Conflicting flow data was used in preparing the model. This conflict resulted in a conclusion in the report that placement of the Kroger store in the floodway caused a rise in the flood of 1.0 feet. The original study also compared the overgrown existing Elam creek channel with a theoretical well maintained channel and concluded that there would be a 2.0 foot drop in the water surface if the creek channel were well maintained.

For this amendment, the HEC-RAS flow data was revised and the flow data discrepancy was corrected. A new HEC-RAS model was prepared. In this new model three profiles were run. The initial profile was for the site assuming the Kmart and Kroger building were never built and the grades were at the surveyed elevation at the exterior of the building. This profile was used as a benchmark model. A second profile was run based on an unobstructed floodway with a channel having only light brush and weeds. This profile produced 100 year flood elevations on the site comparable with those shown in the 2009 Flood Insurance Study, and on the FEMA FIRM panel. The second profile was run with the Kroger building only, the Kmart building alone, and the combined Kmart- Kroger building.

The model of the second profile with only the Kroger building determined that a rise of 1.10 feet occurred relative to the benchmark, slightly higher than the rise predicted

by FEMA’s floodway calculation. The model of the Kmart building found a rise of 1.0 feet relative to the benchmark. The model of the Kmart-Kroger building also found a rise of 0.9 relative to the benchmark.

Although the above calculations appear to indicate that the addition of the Kroger building to the Kmart building had no impact on the Kmart building, a review of the flow and velocity data from the model found that the addition of the Kroger to the Kmart building reduced the overbank width of flow at the building by 209 feet and increased the average velocity of flow at the building by 20 percent. Prior to the addition of the Kroger building the Kmart building was essentially outside the active overbank flow of water. When the Kroger building was added, the overbank flow overlapped the combined building by 114 feet, increasing the exposure of the building to flowing water. Rapidly flowing water carrying debris along the back of the Kmart building that damaged the rear door was reported as the cause of the water intruding into the Kmart building on the date of loss.

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During the flooding of 2010, water levels above the FEMA 100 year flood level were reported in the building. To test the potential impact of the overgrown banks along Elam Creek channel, a third HEC-RAS profile was run based on channel properties for high flows and a poorly maintained channel found in the documentation for the HEC-RAS model. This model reported water levels at the building comparable to the water levels found at the building during the 2010 flood indicating water levels at the site could occur at the 100 year flow level. Given the impact of the other building obstructions located in the floodway and floodplain that are not included in the model, it appears that the actual flow at the site was likely less than the 100 year event.

The results the high flow-poorly maintained condition was compared to the result from the second profile which assumed a moderately well maintained channel without obstruction. The comparison of the two models found that for the Kmart-Kroger building, the poorly maintained channel resulted in a 1.4 feet rise when compared to the depth at the site with a maintained channel. When the water level from the third profile was compared to the benchmark profile, the flow was 2.3 feet higher than the benchmark which is also in line with reported events.

Conclusions: 1. The drainage basin upstream from the Kmart site received rainfall that appears to approximate the 1-percent-annual-chance rainfall event (100 year storm). Using the FEMA 1-percent-annual-chance (100 year) flow data, and using a model with an overgrown channel similar to that existing at the time of the flood, flooding in Elam Creek exceeds the FEMA 1-percent-annual-chance (100 year flood) elevation and approaches the actual depths of flooding at the building reported. The presence of the Kroger store as well as other buildings in the floodway increased the impact and depth of flooding during the flood event of May 2, 2010 and caused damage to Kmart.

2. The lack of maintenance of the creek channel, coupled with obstructions and debris in the channel increased the depth of flooding and caused increased damage to the Kmart during the flood event of May 2, 2010.

3. Filling in the low area behind the Kmart and Kroger stores reduced the flood storage volume and likely increased the depth of flooding damage to Kmart.

4. Despite the location of the building in a large and documented floodplain and floodway with a documented history of recent damaging past floods, no actions such as caulking and waterproofing the exterior walls, or construction of a protective membrane around the building were done to protect the building.

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It is our belief 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 not have flooded, or had flooding occurred, it would have been occurred at such a depth that normal preventive actions by the store’s staff at the time of the event would have been able to protect the store from damage.

Qualifications Our services have been performed using that degree of skill and care ordinarily exercised under similar conditions by reputable members of EFI Global’s profession.

If any additional information is encountered which relates to this evaluation, EFI Global reserves the right to review our conclusions and opinions accordingly. In some cases, additional studies may be warranted to fully evaluate concerns noted.

Any verbal statements made before, during, or after the course of the investigation were made as a courtesy only and are not considered a part of this report.

Closing EFI Global, Inc. appreciates the opportunity to provide consulting services to you in this matter. Please contact us should any questions arise concerning this report, or if we may be of further assistance.

Sincerely, EFI Global, Inc.

John R. Krewson Engineering Consultant

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John R. Krewson, PE

FIGURE 1 - OVERALL SITE

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FIGURE 2 – CLOSE AERIAL VIEW OF SITE

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FIGURE 3 – FEMA FIRM PANEL OF THE SITE Panel No.2803C0067C Effective Date: Sept. 17, 2010

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FIGURE 4 FRONT VIEW OF KMART AND KROGER

FIGURE 5 LEFT SIDE OF THE KMART

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FIGURE 6 VIEW ALONG THE FRONT OF KMART LOOKING FROM THE LEFT SIDE

FIGURE 7 VIEW ALONG THE REAR OF KMART LOOKING FROM THE LEFT SIDE

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FIGURE 8 LEFT SIDE OF KMART LOOKING FROM THE REAR CORNER WITH TYPICAL DROP INLET IN FOREGROUND

FIGURE 9 TYPICAL DOWN DRAIN ON REAR OF BUILDING

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FIGURE 10 CURB CUT IN REAR PARKING CURB NEAR LEFT SIDE OF KMART WITH DITCH BEYOND

FIGURE 11 FLUME THROUGH CURB BEHIND KMART

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FIGURE 5 12 DITCH BEHIND KMART

FIGURE 13 GRASSED FIELD IN AREA THAT WAS FILLED IN BEHIND THE SITE WITH NEW FILL IN THE BACKGROUND

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FIGURE 14 INLET TO 60 INCH PIPE COLLECTING WATER FROM THE DITCH BEHIND THE SITE

FIGURE 15 VIEW OF THE FIELD BEIND THE SITE NEAR THE RIGHT CORNER OF KROGER

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FIGURE 16 PILE OF FILL MATERIAL IN THE FIELD BEHIND THE SITE WITH KMART AND KROGER IN THE BACKGROUND

FIGURE 17 RIGHT SIDE OF THE KROGER LOOKING BACK TOWARD HIGHWAY 72 WEST

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FIGURE 18 FLOODING DEBRIS IN THE FENCE ON THE RIGHT SIDE OF THE ROAD RUNNING BESIDE KROGER

FIGURE 19 LOOKING UPSTREAM AT DEBRIS FIELD AT RAILROAD BRIDGE SOUTHEAST OF THE SITE

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FIGURE 20 LOOKING DOWNSTREAM AT DEBRIS FIELD AT RAILROAD BRIDGE

FIGURE 21 DEBRIS FIELD AT RAILROAD BRIDGE

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FIGURE 5 22 ABANDONED UTILITY LINES OBSTRUCTING ELAM CREEK WITH SPUR RAILROAD BRIDGE OBSTRUCTION AND OVERGROWN CHANNEL

FIGURE 23 OVERGROWN AND UNMAINTAINED CREEK CHANNEL

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FIGURE 24 TREE AND OVERGROWN AND UNMAINTAINED CREEK CHANNEL AT BRIDGE

FIGURE 25 OVERGROWN SPUR RAILROAD BRIDGE WITH UTILITY OBSTRUCTIONS IN BACKGROUND

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Amended Flooding Evaluation

Kmart # 4883 118 Highway 72 West Corinth, Mississippi 38834

Prepared For:

0112

Mr. John T. Balhoff, II Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112

EFI Global Job No: 98340-08794

October 11, 2013

Prepared By: EFI Global, Inc. 3039 Premiere Parkway Suite 700 Duluth, GA 30097

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3039 Premiere Parkway Suite 700 Duluth, GA 30097 Tel: 770-925-9600 Tel: 800-245-9601 Fax: 770-925-9649 www.efiglobal.com

October 11, 2013 Mr. John T. Balhoff, II Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112

Re:

Amended Flooding Evaluation Kmart # 4883 118 Highway 72 West Corinth, Mississippi 38834 EFI Global JN: 98340-08794

Dear Mr. Balhoff: Please find our amended report related to the flooding of Kmart store # 4883 at 118 Highway 72 West, in Corinth, Mississippi. This report re-calculates the HEC-RAS results shown in the original report of September 20, 2012. The HEC-RAS results used in the September 20, 2012 report were based on an inadvertent flow data discrepancy in the HEC-RAS model.

For the purposes of this report, the front of Kmart store # 4883, hereinafter also referred to as Kmart, will be the side of the store facing the intersection of Highway 72 West and South Fulton Drive. Directions right and left will be based on a viewer facing Kmart from this intersection. Using this convention, the right side of the store faces South Fulton Drive, the left side of the store faces Highway 72 West, and the rear of the store faces State Street.

Background: The Kmart store is a large retail store located in a shopping center at the corner of Highway 72 West and South Fulton Drive in Corinth, Mississippi (Figure 1). The building housing the Kmart store has slab on grade, open plan, warehouse type construction with at-grade parking abutting the store on the front. Paved driveways

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are on the left side and rear of the store. The building housing Kmart also houses a Kroger Grocery store as a continuation of the building to the right of the Kmart. Both the Kmart and the Kroger stores were constructed in 1992 as a part of the overall development of the retail center. The two stores have the same floor elevation and share parking.

The overall Kmart-Kroger retail center is a 16.29 acre tract located in a low area adjacent to Elam Creek, a large creek to the right of South Fulton Drive flowing north to south towards Highway 72 West. Parking for the Kmart and Kroger stores is at grade. Storm water runoff from the parking lot in front of the stores is collected in drop inlets and carried across South Fulton Drive in an underground pipe system to an existing detention facility located to the right of the site between South Fulton Drive and Elam Creek. Grades on the site are flat.

Roof drainage for the Kmart and Kroger stores is provided by gutters and downspouts on the rear of the store buildings. The downspouts discharge onto splash blocks at grade with the asphalt pavements behind the stores. Runoff from pavement behind the stores drains away from the stores across the paving to the rear curb. The runoff is collected and discharged by several flumes through the curb into an existing ditch draining left to right parallel to the curb behind the buildings.

Flow in the ditch is collected, along with runoff from the large grassed area behind the site, into a headwall for a 60 inch outfall storm drain.

The 60 inch headwall is located approximately between the Kroger and the Kmart stores, behind the rear curb of the parking lot behind the stores. The 60 inch outfall pipe runs from the headwall back towards the building to a drop inlet in the pavement behind the Kroger store. From this inlet, the pipe runs to the right behind the Kroger store through a series of drop inlets and then across South Fulton Drive. The location of the outfall headwall for the 60 inch pipe once it crosses South Fulton Drive could not be determined. Based on the location of the existing buildings to the right of South Fulton Drive and an inspection of Elam Creek in the area, it is believed the pipe turns and runs parallel to South Fulton Drive toward Highway 72 West and eventually discharges into the existing detention facility noted above.

Flooding Event: According to weather records on WeatherWarehouse.com, rain began falling in the Corinth area during the late evening of May 1, and the early morning of May 2, 2010.

By 5:00 a.m., the records for Corinth show that 5.68 inches of rain had fallen. As the morning progressed, water began rising rapidly around the Kmart. According to the store manager, Mr. Matt Hausmann, water was building up and flowing along the rear of the building, putting stress on the rear doors of the store. Eventually, landscape timbers stored on site struck the doors with enough force to break open the doors,

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lodge in the opening, and allow water to flood into the store. The quantity of water overwhelmed the staff’s ability to control it. According to Mr. Hausmann, the water in the parking lot around the building was measured at a depth of 22 inches by City of Corinth employees. Mr. Hausmann stated that there was a similar depth of water in both the Kmart and the Kroger store. The water caused considerable damage to the buildings and the inventory of the both the Kmart and Kroger stores.

Weather Data: The records for the area found on WeatherWarehouse.com show a rainfall event occurring overnight and during the morning of May 2, 2010 for the northern Mississippi and western Tennessee areas. Although hourly records for the area were not available, a review of the daily recording times and the pattern of rainfall distribution on area weather stations show that between 6 and 13 inches of rainfall fell during the period prior to 8:00 a.m., with the higher rainfall events occurring north of Corinth with Corinth being approximately on the southern extent of the heavy rainfall. Weather stations 10 or more miles south of Corinth and the Kmart site show relatively light rainfall accumulation, with the amount of rainfall recorded increasing with distance north of Corinth.

Because Elam Creek, the creek that flooded the site, heads up approximately 6 miles north of the site and flows south to the site, the pattern of increased rainfall amounts north of the site increased the flooding impact on the Kmart site. Based on NOAA Technical Paper 40 for the Corinth area, the 24 hour 100 year rainfall event is 7.6 inches. Based on the weather records, it appears that the storm of May 2, 2010 may have approached the 100 year rainfall amount.

FEMA Flooding Data: The current FEMA Firm Panel for the site, panel 28003C0067 (Figure 3), shows that the majority of the site area, including all of the Kmart and the Kroger building, is located in the designated flood limits of Elam Creek. Elam Creek is large tributary creek having an upstream drainage area of over 6 square miles draining to the site of the Kmart building. At the store site, the creek has a large, well developed flood zone designated on the FIRM panel as an AE zone. AE zones are studied zones having established base flood elevations. The Firm Panel also shows an area along both banks of the creek that is designated as the regulatory floodway for the creek.

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 as being the regulatory floodway. The Kmart store is located in the floodplain only.

According to a Letter of Map Revision issued for the site in 2005, the 100 year flood elevation for the building is 432.4. An Elevation Certificate for the site prepared on

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November 11, 2001 places the finished floor elevation of the building at 433.0, 0.6 feet above the elevation of the FEMA 100 year flood elevation. Based on an as-built survey prepared for the site as a part of this report, the exterior grades along the perimeter of the building vary from 431.8 and 432.2, meaning the lowest adjacent grades around the building are below the flood elevation. A review of the FEMA historic FIRM records determined that the flood elevation of Elam Creek is unchanged on the current FIRM from the 100 year flood elevations at the time of construction of the building. Typically, standard design and permitting practice require building floor elevations in flood prone areas, especially in designated flood areas to be at least 3.0 feet above the 100 year flooding elevation. In the case of the Kmart and the Kroger, this would place the floor elevations at 435.4, 2.4 feet higher than the actual floor elevation. Had the building been constructed with a floor elevation of 435.4, flooding would not have occurred during the storm of 2010. The review of the elevation of the building relative to the flood elevation would typically have been the responsibility of the City of Corinth building authorities.

The location of the Kroger in the floodway is a concern. As noted, approximately one half of the Kroger was built in the floodway for Elam Creek. A review of aerial photography and the current FIRM for the site shows that a number of other buildings were also built in the floodway. According to records I have examined, the floodway shown on current FIRM is unchanged from the floodway shown on the prior FIRM panel, prior to the construction of the building. FEMA’s 2009 Flood Insurance Study for Alcorn County and Incorporated Areas, states: “Encroachment on floodplains, such as structures and fill, reduces the flood carrying capacity, increases the flood heights and velocities, and increases flood hazards in areas beyond the encroachment itself. One aspect of floodplain management involves balancing the economic gain from floodplain development against the resulting increase in flood hazard. For purposes of the NFIP, a floodway is used as a tool to assist local communities in this aspect of floodplain management. Under this concept, the area of the 1-percent-annual-chance floodplain is divided into a floodway and a floodway fringe. The floodway is the channel of a stream plus any adjacent floodplain areas that must be kept free of encroachment so that the 1percent-annual-chance flood can be carried without substantial increases in flood heights. Minimum Federal standards limit such increases to 1.0 foot, provided that hazardous velocities are not produced. The floodways in this study are presented to local agencies as minimum standards that can be adopted directly or can be used as a basis for additional floodway studies.”

Simply put, floodwaters must have an open, unobstructed flowing pathway along a creek. If earth fill or buildings or other structures are built in the flow pathway floodwaters rise and move faster and cause greater damage. When FEMA prepares their maps, they calculate what a reasonable flow pathway should be and show it as

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the “Floodway” on their maps. It is the responsibility of the cities and counties that issue building permits to enforce the restriction and make sure that the floodway is not blocked.

The difference between the areas on the FEMA maps called the “Floodway” and the areas called the “Floodplain” is that nothing can be built in the “Floodway”, while careful construction is allowed in the “Floodplain” areas. The Kmart store is built entirely in the “Floodplain.” Approximately one half of the Kroger store is built in the “Floodway”, obstructing the flow of floodwater down the creek.

The construction of the Kroger and other structures in the known floodway of Elam Creek increases the flood heights and potential for flooding, as well as for increased velocities, both of the factors involved in the flooding of the Kmart store. It is not known what regularity review was in place at the time the Kroger and other buildings were constructed in the floodway, but as the above quote from the Flood Insurance Study states, it is the responsibility of the local governing authority to control and prevent construction in the floodway. According to the August 30, 2010 volume of the “Federal Register”, Corinth, Mississippi, and Alcorn County, Mississippi were among the jurisdictions subject to suspension of community eligibility under the National Flood Insurance Program (NFIP) for non-compliance with the floodplain management requirements of the program.

A review of the “Existing Conditions Plan” sheet C-2 dated 03/09/1992 from the original construction plans for the site prepared by Prime Engineering found the elevation and location of the floodplain, and the location of the floodway to be substantially different from the floodplain and floodway shown on the FEMA FIRM panel for the area at the time. The floodway on the plans is shown south of Fulton Drive. The floodplain elevation on the plan sheet is approximately 430.8 which is 1.6 feet below the FEMA FIRM flood elevation shown on 1981 FIRM in force at the time.

The derivation of the floodplain and floodway data shown on the plans is unknown.

Although the Kroger and other structures along Elam Creek were constructed in the floodway without restriction, a review of FEMA’s records found that a “Letter of Map Revision” or LOMR was issued by FEMA in November 18, 2005, removing the Kroger property from the floodway due to “Inadvertent Inclusion in the Floodway 1”.

The records do not indicate how the LOMR originated, or what studies, review or public notice was given prior to issuance. FEMA regulations require a flood study be done to determine the impact of the encroachment on flood elevations and velocities.

The studies are submitted to FEMA for review and approval. No record was found of such a study. Issuance also requires that other affected property owners along the creek be notified, and public notice be made. No record of this was found. Once the studies and public notice are complete, the local governing and review agency

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responsible for flood management and oversight makes a final review of the LOMR and recommends approval. No record of this was found.

Prior to the issuance of the FEMA’s Letter of Map Revision (LOMR) in 2005, other prior efforts had been made regarding the location of the buildings in the floodplain and floodway. Also in 2005, a Letter of Map Amendment (LOMA) was issued for the site. An Elevation Certificate was issued by FEMA in 2001.

Note: The issuance of the LOMR, LOMA, and Elevation Certificate would have no impact on the physical presence of the buildings in the floodway or floodplain, or on the potential for flooding in any given flood event. These instruments would serve to reduce the cost of flood insurance for the buildings. The buildings are still shown in the floodplain and the floodway on the 2010 FEMA FIRM map for the site.

Along with the placement of the Kroger and other structures in the regulatory floodway, several other conditions that would increase the flood elevations on the site were noted along the creek and in the floodplain at the time of the initial inspection: 

Southeast of the Kmart near Highway 72, at the point where Kansas Southern Railroad’s north-south railroad line crosses Elam Creek on a timber bridge, a considerable debris field was noted upstream of the bridge. The debris blocked approximately the lower quarter of the bridge opening. Mr. David Huwe, the Director of Community Development and Planning for the City of Corinth stated during an interview in his office that the railroad had a poor record of maintenance and that the debris at the railroad bridge had been an ongoing problem for some time prior to the flood event.

Pictures taken during our initial investigation (Figure19 thru 21) show a debris field upstream of the ridge on the floor of the creek. It was noted during the field survey done in August, 2010, approximately 3 months after the initial inspection, that the debris field had been removed. It is not known who cleaned up the debris. Pictures taken April 28, 2011 by others show another, larger debris field upstream of the bridge.



A bridge for an abandoned railroad spur crossing Elam Creek remains in place with narrowly spaced abutments obstructing the creek channel.



The creek channel was badly overgrown with vegetation and poorly maintained. Near the spur railroad bridge noted above, utility and sanitary sewer pipes crossing the channel were apparently abandoned in place, obstructing the channel.

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

The approximately 4.5 acre grassed field immediately behind the Kmart and Kroger building was originally a number of feet lower in elevation. According to Mr. Huwe with the City of Corinth, the city filled the area over time with excess earth material from various projects around the city. Evidence that dumping of excess fill was still underway was found at the time of the initial inspection of the area (Figure 10). Filling the area reduced the flood storage and flood protection for the Kmart and Kroger building.

HEC-RAS Flood Studies: To determine the impact of the Kroger encroachment and general conditions of the flood hazard at the time of the May 2, 2010 flood, a preliminary HEC-RAS evaluation was prepared for the site using as-built survey data and the flows for the area listed in FEMA’s 2009 Flood Insurance Study. As noted there was a discrepancy in this preliminary initial report. Two conflicting flow data values were used in preparing the model. This conflict resulted in a conclusion in the report that placement of the Kroger store in the floodway caused a rise in the flood of 1.0 feet. The original study also compared the overgrown existing Elam creek channel with a theoretical well maintained channel and concluded that there would be a 2.0 foot drop in the water surface if the creek channel were well maintained. This report revises those values.

For this amendment, the HEC-RAS flow data was revised and the flow data discrepancy was corrected from 3702 cfs to 5202 cfs. The Manning’s N values were also corrected to reflect the conditions of the channel and the flooding depths occurring at the time of the loss. This amended report pertains to re-calculated runs using the same scenarios described in the original results dated September 20th, 2012 and in the original modeling. This amended report does not use the scenarios described in the amended report dated July 23, 2013 and does not use the HECRAS model used in that report.

Three models were run. The first model was run with the Kmart building alone. The second model was the combined Kmart- Kroger building. In these models, the N values were set based on the overgrown channel as it existed at the time of loss.

The results of these models found that the addition of the Kroger store to the site resulted in two inch rise in the flood elevation compared to the flood elevation for the Kmart only site with no Kroger. The models showed water levels at the store site that were approximately comparable to the water levels reported at the time of the flood.

A third model was run based on an unobstructed floodway with no Kroger and a channel having only light brush and grasses as would be appropriate for a properly maintained channel. This profile produced 100 year flood elevations on the site comparable with those shown in the 2009 Flood Insurance Study, and on the FEMA FIRM panel.

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A review of the flow and velocity data from the model found that the addition of the Kroger to the Kmart building reduced the overbank width of flow at the building by 193 feet and increased the average velocity of flow at the building by 16 percent.

Prior to the addition of the Kroger building the Kmart building was essentially outside the active overbank flow of water. When the Kroger building was added, the overbank flow overlapped the combined building by 129 feet, increasing the exposure of the building to flowing water. Flowing water carrying debris along the back of the Kmart building that damaged the rear door was reported as the cause of the water intruding into the Kmart building on the date of loss.

During the flooding of 2010, water levels above the FEMA 100 year flood level were reported in the building. This model reported water levels at the building comparable to the water levels found at the building during the 2010 flood indicating water levels at the site during the flood could occur at the 100 year flow level. Given the impact of the other building obstructions located in the floodway and floodplain that are not included in the model, it appears that the actual flow at the site was likely less than the 100 flooding year event.

Conclusions: 1. The drainage basin upstream from the Kmart site received rainfall that appears to approximate the 1-percent-annual-chance rainfall event (100 year storm). Using the FEMA 1-percent-annual-chance (100 year) flow data, and using a model with an overgrown channel similar to that existing at the time of the flood, flooding in Elam Creek exceeds the FEMA 1-percent-annual-chance (100 year flood) elevation and approaches the actual depths of flooding at the building reported. The presence of the Kroger store increased the impact and depth of flooding during the flood event of May 2, 2010 and caused damage to Kmart.

2. The presence of the Kroger in the FEMA floodway reduced the flooding width resulting increased velocities as anticipated by FEMA, increasing the depth of flooding and the impact on the Kmart store.

3. The lack of maintenance of the creek channel, coupled with obstructions and debris in the channel increased the depth of flooding and caused increased damage to the Kmart during the flood event of May 2, 2010.

4. Filling in the low area behind the Kmart and Kroger stores reduced the flood storage volume and likely increased the depth of flooding damage to Kmart.

5. Despite the location of the building in a large and documented floodplain and floodway no actions such as caulking and waterproofing the exterior walls, or

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construction of a protective membrane around the building were done to protect the building.

It is our belief 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 not have flooded, or had flooding occurred, it would have been occurred at such a depth that normal preventive actions by the store’s staff at the time of the event would have been able to protect the store from damage.

Qualifications Our services have been performed using that degree of skill and care ordinarily exercised under similar conditions by reputable members of EFI Global’s profession.

If any additional information is encountered which relates to this evaluation, EFI Global reserves the right to review our conclusions and opinions accordingly. In some cases, additional studies may be warranted to fully evaluate concerns noted.

Any verbal statements made before, during, or after the course of the investigation were made as a courtesy only and are not considered a part of this report.

Closing EFI Global, Inc. appreciates the opportunity to provide consulting services to you in this matter. Please contact us should any questions arise concerning this report, or if we may be of further assistance.

Sincerely, EFI Global, Inc.

John R. Krewson Engineering Consultant

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FIGURE 1 - OVERALL SITE

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FIGURE 2 – CLOSE AERIAL VIEW OF SITE

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FIGURE 3 – FEMA FIRM PANEL OF THE SITE Panel No.2803C0067C Effective Date: Sept. 17, 2010

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FIGURE 4 FRONT VIEW OF KMART AND KROGER

FIGURE 5 LEFT SIDE OF THE KMART

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FIGURE 6 VIEW ALONG THE FRONT OF KMART LOOKING FROM THE LEFT SIDE

FIGURE 7 VIEW ALONG THE REAR OF KMART LOOKING FROM THE LEFT SIDE

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FIGURE 8 LEFT SIDE OF KMART LOOKING FROM THE REAR CORNER WITH TYPICAL DROP INLET IN FOREGROUND

FIGURE 9 TYPICAL DOWN DRAIN ON REAR OF BUILDING

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FIGURE 10 CURB CUT IN REAR PARKING CURB NEAR LEFT SIDE OF KMART WITH DITCH BEYOND

FIGURE 11 FLUME THROUGH CURB BEHIND KMART

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FIGURE 5 12 DITCH BEHIND KMART

FIGURE 13 GRASSED FIELD IN AREA THAT WAS FILLED IN BEHIND THE SITE WITH NEW FILL IN THE BACKGROUND

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FIGURE 14 INLET TO 60 INCH PIPE COLLECTING WATER FROM THE DITCH BEHIND THE SITE

FIGURE 15 VIEW OF THE FIELD BEIND THE SITE NEAR THE RIGHT CORNER OF KROGER

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FIGURE 16 PILE OF FILL MATERIAL IN THE FIELD BEHIND THE SITE WITH KMART AND KROGER IN THE BACKGROUND

FIGURE 17 RIGHT SIDE OF THE KROGER LOOKING BACK TOWARD HIGHWAY 72 WEST

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FIGURE 18 FLOODING DEBRIS IN THE FENCE ON THE RIGHT SIDE OF THE ROAD RUNNING BESIDE KROGER

FIGURE 19 LOOKING UPSTREAM AT DEBRIS FIELD AT RAILROAD BRIDGE SOUTHEAST OF THE SITE

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FIGURE 20 LOOKING DOWNSTREAM AT DEBRIS FIELD AT RAILROAD BRIDGE

FIGURE 21 DEBRIS FIELD AT RAILROAD BRIDGE

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FIGURE 5 22 ABANDONED UTILITY LINES OBSTRUCTING ELAM CREEK WITH SPUR RAILROAD BRIDGE OBSTRUCTION AND OVERGROWN CHANNEL

FIGURE 23 OVERGROWN AND UNMAINTAINED CREEK CHANNEL

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FIGURE 24 TREE AND OVERGROWN AND UNMAINTAINED CREEK CHANNEL AT BRIDGE

FIGURE 25 OVERGROWN SPUR RAILROAD BRIDGE WITH UTILITY OBSTRUCTIONS IN BACKGROUND

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Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 13 of 36 PageID #: 4795

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 14 of 36 PageID #: 4796

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 15 of 36 PageID #: 4797

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 16 of 36 PageID #: 4798

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 17 of 36 PageID #: 4799

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 18 of 36 PageID #: 4800

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 19 of 36 PageID #: 4801

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 20 of 36 PageID #: 4802

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 21 of 36 PageID #: 4803

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 22 of 36 PageID #: 4804

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 23 of 36 PageID #: 4805

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 24 of 36 PageID #: 4806

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 25 of 36 PageID #: 4807

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 26 of 36 PageID #: 4808

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 27 of 36 PageID #: 4809

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 28 of 36 PageID #: 4810

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 29 of 36 PageID #: 4811

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 30 of 36 PageID #: 4812

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 31 of 36 PageID #: 4813

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 32 of 36 PageID #: 4814

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 33 of 36 PageID #: 4815

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 34 of 36 PageID #: 4816

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 35 of 36 PageID #: 4817

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-12 Filed: 10/30/13 36 of 36 PageID #: 4818

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-13 Filed: 10/30/13 1 of 1 PageID #: 4819

KM-01169

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Case: 1:11-cv-00103-GHD-DAS Doc #: 294-14 Filed: 10/30/13 1 of 4 PageID #: 4820

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-14 Filed: 10/30/13 2 of 4 PageID #: 4821

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-14 Filed: 10/30/13 3 of 4 PageID #: 4822

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-14 Filed: 10/30/13 4 of 4 PageID #: 4823

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-15 Filed: 10/30/13 1 of 5 PageID #: 4824

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-15 Filed: 10/30/13 2 of 5 PageID #: 4825

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-15 Filed: 10/30/13 3 of 5 PageID #: 4826

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-15 Filed: 10/30/13 4 of 5 PageID #: 4827

Case: 1:11-cv-00103-GHD-DAS Doc #: 294-15 Filed: 10/30/13 5 of 5 PageID #: 4828