333 rebuttaltoresponsetoexcluderoberteley kmart combine
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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
KMART CORPORATION,
PlaintiffAs CIV. ACT. NO. 1:11-CV-103-GHD-DAS
versus
THE KROGER CO., et al.
Defendants
REBUTTAL TO RESPONSE TO MOTION IN LIMINETO EXCLUDE OR LIMIT THE TESTIMONY OF ROBERT ELEY
May It Please The Court:
Plaintiff, Kmart Corporation, submits this Rebuttal to the Response to Kmart’s Motion in
limine to Exclude or Limit the Testimony of Robert Eley, the purported expert witness jointly
retained by Defendants, Fulton Improvements, LLC, E&A Southeast Limited Partnership, and The
Kroger Co. (collectively “Defendants”). Mr. Eley’s anticipated testimony that “no amount of
caulking, waterproofing or protective membrane would have prevented water from entering the
Kmart building during the flood event,” should be excluded or limited because, by his own1
admissions, he has no training or knowledge regarding at least one floodproofing measure (flood-
proof or watertight doors) suggested by Kmart and its expert, John R. Krewson. Mr. Eley’s broad
assertion that no floodproofing measure would have prevented water from entering the Kmart
building is, therefore, baseless and devoid of supporting data. Moreover, Mr. Eley’s testimony that
“the City of Corinth correctly interpreted the pre-construction site survey data (Existing Conditions
Plan), compared this data to the 1981 FIRM maps and properly concluded that the 1981 Flood Maps
See Robert Eley’s Expert Report (June 22, 2013), attached as Exhibit “A,” at 3.1
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were incorrect, or inconsistent with the existing conditions on the ground at this location” should2
be excluded or limited because it constitutes a legal conclusion that impermissibly instructs the jury
on which conclusions to reach in this matter.
I. Law and Argument
A. This Court should disregard those portions of Defendants’ Response regardingthe admissibility of the testimony of Kmart’s expert, Mr. John R. Krewson.
While this motion deals exclusively with the testimony of Mr. Eley, Defendants devote
several paragraphs of their Opposition arguing that Kmart’s expert, John R. Krewson, should be
excluded. Defendants previously devoted over seventy-five pages to the admissibility of Mr.3
Krewson’s testimony by filing separate motions to exclude his testimony. But the admissibility of
Mr. Krewson’s testimony is not at issue in this motion and should not be considered as part of this
motion. Defendant’s discussion of the admissibility of Mr. Krewson’s testimony is merely an
attempt to distract this Court from the fact that the opinion of their expert, Mr. Eley, is unqualified
and based on insufficient and unreliable information. The admissibility of Mr. Krewson’s testimony
has already been briefed in prior motion practice and, to the extent that Defendants now argue this
point, Kmart refers this court to its Omnibus Response in Opposition to the Motions to Exclude the
Opinions of John R. Krewson filed by Kmart. 4
Id.2
See Doc. 300 at pp. 4, 6, 7. 3
See Doc. 321. 4
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B. Mr. Eley’s testimony that no amount of flooding proofing measures would haveprevented the flooding at Kmart’s store should be excluded because Mr. Eleyis not qualified to offer the opinion and the opinion is based on insufficientinformation.
Defendants essentially argue that Mr. Eley’s testimony that no amount of floodproofing
would have prevented the flooding at Kmart is admissible because it is based on his experience as
a project engineer for residential and commercial development and as a civil engineer for residential
and commercial design projects. The sole basis for Mr. Eley’s opinion is his alleged experience, as
demonstrated by Mr. Eley’s testimony:
Q: Okay. Paragraph 3 says, “It is my opinion that no amount of caulking,waterproofing, or protective membrane would have prevented water from entering the Kmart building during the flood event. Did I read that correctly?
A: Yes, sir.
Q: What is that opinion based on?
A: Thirty-five years of experience.
Q: Okay.
A: And an engineering degree.5
Yet despite his alleged experience, Mr. Eley admitted that he has no knowledge regarding all
available sources of flood protection measures and thus he cannot reliably state that no flood
prevention measures would have prevented the flooding at Kmart’s store.
In particular, Mr. Eley admitted that he had no knowledge regarding flood-proof doors or
barriers, an example provided by Kmart and Mr. Krewson of a potential flood protection measure
See Deposition of Robert Eley (September 6, 2013), attached as Exhibit “B,” at p. 96, ll. 10-19.5
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that could have been taken to prevent flooding at Kmart’s store. At least one month prior to the6
Defendants’ expert designation deadline, both Defendants and Mr. Eley were aware that a flood-
proof door or barrier system was one of several options proposed by Kmart and Mr. Krewson as a
potential flood protection measure. On May 20, 2013, Kmart responded to Interrogatories
propounded by Fulton regarding the flood protection measures that should have been taken by Fulton
to protect Kmart from flooding during the May 2, 2010 storm and stated as follows:
Fulton had an obligation under its lease with Kmart to keep Kmart’s leased premisesin a safe, dry, and tenantable condition. Fulton failed to take any necessary measureto protect Kmart’s store and to maintain a safe, dry, and tenantable condition asrequired under the lease, which caused the store to suffer flood damages as a resultof the May 2, 2010 rain event. It was up to Kmart’s landlord, and not up to Kmart,to take these measures. The “protective membrane” referenced in Kmart’sComplaint was only one such protective measure that could have been adopted byKmart’s landlord to keep the Kmart building in a safe, dry and tenantable conditionduring the May 2, 2010 flood. Nevertheless, by way of illustration only, Fultoncould have used a silicone sealant around the base of the building. Fulton also couldhave provided a flood boot system as an extension of the outer wall of the Kmartstore that hermetically seals in front of the building entry. Fulton also could haveprovided a water detention system so that flood water was adequately diverted to adetention pond and away from the Kmart building. Fulton could have maintained adrainage system at the site so that water was adequately drained away from Kmart’sproperty. 7
Then, on May 22, 2013, Mr. Krewson testified regarding flood-proof doors and barriers as a potential
flood prevention measure that could have been taken at Kmart’s store to prevent the flooding that
occurred after the May 2, 2010 event. Mr. Eley was present at Mr. Krewson’s deposition, where he
testified as follows:
Q: Are you suggesting that - - Well, let me rephrase that. How would thatcaulking and waterproof be put on the building, whatever the surface was?
Id., p. 98, ll. 2-21 and p. 107, ll. 19-21.6
See Kmart’s Response to Fulton’s Interrogatory No. 11, attached as Exhibit “C” (emphasis added).7
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A: Well, caulk around windows, caulk around the openings, have to caulkaround anything where water could enter, obviously. And somehow oranother, you have to waterproof the wall, either with a waterproof sealant orusing a physical barrier on the exterior of the wall.
Q: How do you waterproof doors which are busted open by landscape timbersallowing the water to enter? How do you waterproof against that?
A: Well, there’s a commercial product, in fact, there are a number of companiesI think that do flood waterproofing. And the system that Sears Kmart hasused is a barrier that is removable and can be put in place with severaltechniques. Some are mechanically operated, and they can be closedelectronically. Some you have to - - the staff has to come out and actuallyplace the barrier.
Q: Where are the barriers located?
A: It fits across the front of the door on the exterior of the door.
Q: And you say Sears and Kmart have used those barriers?
A: Yes. 8
Mr. Krewson further explained that this same type of flood protection system could be
extended around the entire building:
Q: All right. And you talk about this protective membrane. Tell me in more, inMr. Balhoff’s term, in layman’s language what you mean by a protectivemembrane.
A: Well, I mean, you can extend - - Well, there are systems where you can putout an inflatable. Actually, you fill it up with water around the perimeter ofthe building. It’s kind of extreme, but you can do that where you actuallypump water in it and create a water enclosure around the building to protectthe building.
I’ve never seen them when they didn’t - - weren’t able to protect the wallswithout a membrane, but you can also extend the barrier system around thebuilding.
See Deposition of John R. Krewson (May 22, 2013), attached as Exhibit “D,” p. 119, l. 23 - p. 120,8
l. 23.
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Q: What do you mean a barrier system?
A: The same system that’s used at the doors can be continued all the way aroundthe building.9
Mr. Eley’s report is dated June 22, 2013 and the extended expert designation deadline for the
Defendants was June 28, 2013. Thus, Mr. Eley had at least one month to consider Kmart’s discovery
responses and Mr. Krewson’s testimony regarding the flood-proof doors and barriers, conduct
research on the flood-proof doors and barriers, and then render an educated opinion. But Mr. Eley
ignored this flood protection measure completely, and instead relied only on his alleged experience
to make the generalized conclusion that no amount of flood protection measure would have
prevented the flooding at Kmart’s store. Mr. Eley rendered this opinion despite the fact that he had
no knowledge, and made no attempt to gain any knowledge, regarding the flood-proof door or barrier
systems proposed by Kmart and Mr. Krewson as potential flood-protection measures.
Defendants also complain that Mr. Krewson did not mention flood-proof doors in his Initial
Flooding Evaluation dated September 20, 2012. But Mr. Krewson’s report provided an illustrative,
not exclusive, list of potential flood protection measures that could have been taken to protect the
Kmart building from flooding. Mr. Krewson stated in his report: “Despite the location of the
building in a large and documented floodplain, 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.” Mr. Krewson was not providing an exclusive list of available flood protection10
measures, but rather pointing out that there were no flood protection measures taken, such as
Id., p. 122, ll. 4-21.9
See Initial Flooding Evaluation of John R. Krewson (September 20, 2012), attached as Exhibit “E,”10
at 8.
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caulking, waterproofing the exterior walls, or construction of a protective membrane, to prevent the
flooding at Kmart’s store. Additionally, as discussed above, the flood-proof doors and barriers11
were discussed in Kmart’s discovery responses and at Mr. Krewson’s deposition and Mr. Eley had
sufficient time to research the potential effectiveness of these flood protection systems.
Further, just as in the O’Hara v. Travelers case, there is simply no reliable basis for Mr.12
Eley’s opinion and it should be excluded. Mr. Eley’s alleged experience is not, by itself, a sufficient
basis for Mr. Eley to opine that no flood proofing method or special door would have prevented the
flooding at Kmart’s store, particularly when Mr. Eley admitted that he was not knowledgeable about
all available flood prevention measures. Contrary to Defendants’ argument, Mr. Eley must be
familiar with all available types of flood proofing measures if he wants to support his superlative
opinion that no available type of flood proofing measure would have prevented the flooding at
Kmart’s store.
Additionally, the fact that the flooding in Kmart’s store may have approached 22 inches is
not proof that no flood prevention measure would have prevented water from entering Kmart’s store.
Defendants argue that because there were 22 inches of water in Kmart’s store, Mr. Eley did not have
to be familiar with flood-proof doors to render his opinion, but only had to be familiar with the
building construction and the effect of hydrostatic pressure on the building. This argument fails for
several reasons. Mr. Eley did not visit the site nor did he inspect the construction of the Kmart
building and, thus was not familiar with the building construction from this aspect. 13
Id. 11
2012 WL 3062300 (S.D. Miss. July 26, 2012).12
See Ex. C, Depo. of Eley, p. 26, ll. 19-27 and p. 108, ll. 6-13.13
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Additionally, Mr. Eley made no attempt to model or otherwise demonstrate the effect of hydrostatic
pressure on the building when certain flood protection measures, such as the flood-proof doors or
barriers, were in place and thus has no reliable support for this opinion.
Mr. Eley’s testimony that water would have entered through the walls and weep-holes in the
brick is similarly unsupported. Indeed, the testimony of Mr. Krewson and Kmart’s corporate
representative, Mr. Dale Menendez, suggests that a flood barrier above 22 inches could have been
constructed around the entire Kmart building as a flood protection measure. Mr. Krewson testified
that the flood barrier system could have been extended beyond the doors and around an entire
building. Mr. Menendez, testified that these flood-proof barriers could be built well above two14
feet:
But there’s not enough time to always sandbag. Well, then you can boot a building,hermeticallly seal the exterior of the building to height of four foot, two foot, six foot,or whatever is required, and caulk and seal the perimeter
And when the floodwaters - - and you are reaching waters that are coming to floodlevel, you have the Kmart team know that they are in a flood zone, and ask that theyinstall the floodgates. They hook on hinges. You slap them and lock them shut, andit acts as an outer wall and keeps the water outside, so that you’re maintainingdrainage. 15
Mr. Eley does not explain how water, in that instance, would have entered into the building. This
further evidences that Mr. Eley has no support for his opinion that no flood protection measure
would have prevented the flooding at Kmart’s store.
See Ex. E, Depo. of Krewson, p. 122, ll. 4-21. 14
See Deposition of Dale Menendez (July 19, 2013), attached as Exhibit “F,” p. 248, l. 21 - p 249,15
l. 7.
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Mr. Eley is not qualified to express an opinion as to whether any floodproofing measures —
specifically, floodproof doors — would have prevented water from entering the Kmart building. Mr.
Eley conceded that he knows absolutely nothing about floodproof doors, and as such, he cannot
opine that such measures would have been ineffective on May 2, 2010. Moreover, Mr. Eley’s
opinion is not the product of reliable principles and methods and is entirely devoid of supporting
data. Accordingly, this Court should exercise its role as a gatekeeper and enter an order precluding
Mr. Eley from testifying about floodproof doors.
C. Mr. Eley’s opinion regarding the City of Corinth’s conclusions related to the1981 Flood Maps is inadmissible because it is a legal conclusion.
Mr. Eley’s opinion that “the City of Corinth correctly interpreted the pre-construction site
survey data (Existing Conditions Plan), compared this data to the 1981 FIRM maps and properly
concluded that the 1981 Flood Maps were incorrect, or inconsistent with the existing conditions on
the ground at this location” should be excluded or limited because it is a legal conclusion that16
impermissibly instructs the jury on the conclusions to reach in this matter.
Rule 704 of the Federal Rules of Evidence indicates 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. The 1972 Advisory Committee Notes to Rule 704 clarifies that this rule does17
not permit any opinion on the ultimate issue to be rendered. As the Advisory Committee Notes
indicate, the provisions of Rules 403, 701, and 702 “afford ample assurances against the admission
See Ex. A, Eley Report at 3.16
FED. R. EVID. 704(a). 17
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of opinions which would merely tell the jury what result to reach.” “Opinions that provide legal
conclusions are not helpful to the trier of fact and are therefore inadmissible.” 18
Mr. Eley’s opinion should be excluded because he recites what he believes to be the correct
interpretation and proper conclusion by the City of Corinth of the site survey data against the data
from the 1981 map. When questioned about the 1981 FIRM map, which shows that half of the
Kroger store is within a floodway, Mr. Eley testified that the Kroger store was incorrectly included
in the floodway. His observation was based on the construction drawings that were developed for
construction of the Kmart and Kroger stores. Those drawings have the Kroger store outside of a
floodway.
Mr. Eley’s opinion is precisely the kind Rule 704 was intended to avoid. Although Mr. Eley
may be permitted to testify regarding his opinion as to the purported differences in the two sets of
data, he should not be permitted to testify whether the City of Corinth’s interpretation was correct.
The Defendants’ reliance on United States v. Izydore is misplaced. In allowing the bankruptcy19
trustee’s opinion that money was not legally taken, the court noted that the trustee was not testifying
Trinity Yachts, LLC v. Thomas Rutherfoord, Inc., 2013 WL 2406552, *3 (S.D. Miss. May 31,18
2013) (citing Fed. R. Evid. 702; United States v. Izydore, 167 F.3d 213, 218 (5th Cir.1999); see also Petersv. City of Waveland, 2012 WL 1854311, *2 (S.D. Miss. Feb. 20, 2012); BNY Mellon, N.A. v. AffordableHoldings, Inc., 2011 WL 2746301, *2 (N.D. Miss. July 12, 2011) (“[T]o make it abundantly clear [ ], it isaxiomatic that an expert is not permitted to provide legal opinions, legal conclusions, or interpret legal terms;those roles fall solely within the province of the court.”) (quoting Roundout Valley Cent. Sch. Dist. v. ConecoCorp., 321 F. Supp. 2d 469, 480 (N.D.N.Y. 2004); Jones v. Reynolds, 2008 WL 2095679, *12 (N.D. Miss.May 16, 2008) (“To the extent that [the plaintiff’s expert] asserts legal conclusions and conclusions as to theultimate fact, his expert testimony is to be struck.”); Shoemake v. Rental Serv. Corp., 2008 WL 215818, *3(S.D. Miss. Jan. 22, 2008) (finding that the expert’s testimony should be limited to the extent it purports tomake legal conclusions).
167 F. 3d 213 (5th Cir. 1999).19
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as an expert witness when she made the statement. Moreover, the trustee made the statement while20
discussing her efforts to account for missing money and the court found the opinion was more
accurately described not as whether the appellants were guilty of certain crimes, but whether a
certain sum of money belonged to the appellants in that matter. 21
Here, Mr. Eley is not “simply opining as to how the City of Corinth reached its conclusion
to allow the project to move forward when, at the time of the Kroger construction, the LOMR had
not yet been issued.” Rather, Mr. Eley is offering the legal conclusion for the purpose of telling the
jury what result to reach in this litigation. Kmart has alleged that the Kroger store was improperly
located in a floodway and that Kroger’s presence in the floodway contributed to the flooding at
Kmart’s store. Mr. Eley’s testimony that the City correctly concluded that the 1981 Flood Maps
were incorrect with relation to the location of the Kroger store touches the cause of the flooding at
Kmart’s store and is an improper legal conclusion.
Moreover, Mr. Eley’s opinion is solely based on his alleged experience. Mr. Eley testified:
Q: So you’re saying, that when FEMA and its consultants did a hydraulic study,which Prime Engineering did not do, it didn’t do any type of surveying of thearea to determine the location of the boundaries of the flood map, of thefloodway and floodplain?
A: That’s almost certainly true.
Q: That’s your position?
A: I don’t know it - - almost 100 percent of the time, that would be true.
Q: You don’t have any evidence to support that?
See id. at 218.20
See id.21
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A: Thirty-five years of experience.
Q: You don’t have any documents to support that?
A: Thirty-five years of practicing engineering and dealing with flood maps andelevations, and I know what the methodology is that goes into producing - - 22
Indeed, Mr. Eley cannot point to any specific document or source that supports his opinion:
Q: Okay. Paragraph 2 says that, “It is my opinion that City of Corinth correctlyinterpreted pre-construction site survey data (existing conditions plan), compared thisdata to the 1981 FIRM map, and properly concluded that the 1981 flood maps wereincorrect or inconsistent with the existing conditions on the ground at this location.”Did I read that correctly?
A: Yes, sir.
Q: Okay.
A: You did read it correctly.
Q: You don’t have any direct knowledge of whether that happened. Right?
A: Well, the fact that the building is – exists and they allowed it to be constructed. There was a – I think there’s some meeting minutes where they approved theconstruction of the project. I think it would be a pretty logical conclusion that theyreviewed it and approved it. In fact, I think there’s some documentation to thateffect.
Q: Okay.
A: Although I can’t specifically tell you where or what it is as I sit here today.
Q: In preparing your report, you didn’t speak with anyone from the City of Corinth whomade the determination that you said it made as to correctly interpreting the pre-construction site survey data?
A: I did not speak to anyone.
Q: Because you weren’t a part of that determination. Right?
See Ex. B, Depo. of Eley, p. 52, l. 11 - p. 53, l. 5. 22
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A: I was not part of it.23
There is no reliable basis for Mr. Eley to state how the City reached the conclusion or whether that
conclusion was correct because he admitted that he had no reliable information to support his
opinion. Accordingly, Mr. Eley’s opinions are inadmissible and should be excluded.
II. Conclusion
For the foregoing reasons and for the reasons more fully explained in Kmart’s motion to
exclude or limit Mr. Eley’s testimony, Kmart respectfully requests that this Court grant its motion
in limine and exclude the testimony of Robert Eley.
This the 15th day of November, 2013.
Respectfully submitted,
/s/ Ryan O. Luminais__________________________________________JAMES M. GARNER (La. Bar. No. 19589)JOHN T. BALHOFF, II (La. Bar. No. 24288)RYAN O. LUMINAIS (Miss. Bar. No. 101871)SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C.909 Poydras Street, Twenty-eighth FloorNew Orleans, Louisiana 70112Telephone: (504) 299-2100Facsimile: (504) 299-2300ATTORNEYS FOR KMART CORPORATION
See id., p. 93, l. 6 - p. 94, l. 11(emphasis added). 23
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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 15th day of November, 2013.
/s/ Ryan O. Luminais_________________________________________RYAN O. LUMINAIS
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Case: 1:11-cv-00103-GHD-DAS Doc #: 333-4 Filed: 11/15/13 5 of 6 PageID #: 6358
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-4 Filed: 11/15/13 6 of 6 PageID #: 6359
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 1 of 23 PageID #: 6360
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 2 of 23 PageID #: 6361
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 3 of 23 PageID #: 6362
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 4 of 23 PageID #: 6363
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 5 of 23 PageID #: 6364
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 6 of 23 PageID #: 6365
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 7 of 23 PageID #: 6366
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 8 of 23 PageID #: 6367
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 9 of 23 PageID #: 6368
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 10 of 23 PageID #: 6369
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 11 of 23 PageID #: 6370
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 12 of 23 PageID #: 6371
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 13 of 23 PageID #: 6372
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 14 of 23 PageID #: 6373
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 15 of 23 PageID #: 6374
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 16 of 23 PageID #: 6375
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 17 of 23 PageID #: 6376
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 18 of 23 PageID #: 6377
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 19 of 23 PageID #: 6378
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 20 of 23 PageID #: 6379
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 21 of 23 PageID #: 6380
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-5 Filed: 11/15/13 22 of 23 PageID #: 6381
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Case: 1:11-cv-00103-GHD-DAS Doc #: 333-6 Filed: 11/15/13 1 of 4 PageID #: 6383
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-6 Filed: 11/15/13 2 of 4 PageID #: 6384
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-6 Filed: 11/15/13 3 of 4 PageID #: 6385
Case: 1:11-cv-00103-GHD-DAS Doc #: 333-6 Filed: 11/15/13 4 of 4 PageID #: 6386