350 memoinsupportmotiontoamendjudgment kmart

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF MISSISSIPPI

ABERDEEN DIVISION

KMART CORPORATION,

PlaintiffCIV. ACT. NO. 1:11-CV-103-GHD-DAS

versus

THE KROGER CO., et al.

Defendants

MEMORANDUM IN SUPPORT OF MOTION TO AMEND OR ALTER JUDGMENT

May It Please the Court:

Plaintiff, Kmart Corporation, submits this motion to amend or alter this Court’s December

18, 2013 Judgment denying Kmart’s motions for leave to file the amended reports of its hydrological

engineering expert, John R. Krewson. This Court should reconsider and amend or alter its Judgment

to correct manifest errors of fact upon which the Judgment is based and to prevent the prejudice that

will occur if the Judgment stands.

I. Background

As this Court is aware, at Mr. Krewson’s deposition on May 22, 2013, it was discovered for

the first time by Kmart and Mr. Krewson that the models relied on by Mr. Krewson in his Initial

Flooding Evaluation dated September 20, 2012 (“Initial Report”) contained a mistake that affected

the conclusions in his report. Specifically, Mr. Krewson used the incorrect figure of 3,702 cubic feet

per second for the peak discharge of Elam Creek for the 100-year flood event for his first and third

HEC-RAS run data. In the second HEC-RAS run data, which showed the impact of the Kroger1

See Depo. of John R. Krewson at 117:3-5, attached as Exhibit “A”; see also Declaration of John1

R. Krewson ¶ 15 attached as Exhibit “B.”

Case: 1:11-cv-00103-GHD-DAS Doc #: 350 Filed: 01/15/14 1 of 18 PageID #: 6915

store on the flooding at Kmart, Mr. Krewson used the peak discharge figure of 5,202 cfs, which

represents the peak discharge at the intersection of Elam Creek and Turner Creek for the 100-year

flood event. The inconsistency in the peak discharge used in the first and third runs and the peak2

discharge used in the second run led Mr. Krewson to incorrectly conclude in his Initial 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. The peak discharge of 5,202 cfs should have been used in all three HEC-RAS3

runs because it accounts for the convergence between Elam Creek and Turner Creek. 4

After being made aware of the mistake as to the flow capacity, Mr. Krewson re-ran his

models to address the error and prepared an Amended Flooding Evaluation dated July 23, 2013. 5

The new model considered slightly different scenarios to compare than those that had been run in

the original model. The results showed that even though the water level did not rise significantly

than if there had been no Kroger store, the addition of the Kroger building caused the Kmart store

to become exposed to more rapidly flowing water. Mr. Krewson states that it was reported that6

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. This model7

corroborates the theory noted in Mr. Krewson’s Initial Report that an increased velocity of water

See Ex. A, Depo. of John. R. Krewson at 116:12-24; see also Ex. B, Declaration of John R.2

Krewson ¶ 15.

See Ex. A, Depo. of John. R. Krewson at 116:18-117:18.3

See Ex. B, Declaration of John R. Krewson ¶ 17.4

See John R. Krewson’s Amended Flooding Evaluation (Jul. 23, 2013), attached as Exhibit “C.”5

See id. at 9.6

See id.7

2


was what pushed debris through the Kmart doors during the flood by flowing water.

In light of the inadvertent mistake contained in his Initial Report, Kmart sought leave to

submit Mr. Krewson’s amended report. 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. A hearing was held in front of Magistrate Judge Sanders on August 15, 2013. On August8

21, 2013, Magistrate Judge Sanders issued a ruling denying Kmart’s motion. On September 4,9

2013, Kmart filed Objections to the Magistrate Judge’s Ruling. 10

On September 27, 2013, after considering Kmart’s Objections, this Court ruled that it would

consider an amendment of mathematical errors only for Mr. Krewson’s hydrology report. In11

preparing the Amended Report in response to the Court’s Order, which was submitted on October

11, 2013 (“Amended Report”), Mr. Krewson revised the HEC-RAS flow data and the flow data12

discrepancy that appeared in his Initial Report, which was corrected from 3,702 cfs to 5,202 cfs. 13

Additionally, the Manning N values contained in Mr. Krewson’s Initial Report were corrected. Mr.

Krewson’s adjustment of the Manning N values became necessary when he corrected the flow rates

for the three HEC-RAS runs to ensure that the model was reliable. Thus the correction of the

Manning N value was a mathematical correction as well. When running HEC-RAS models, if one

See Rec. Doc. 176.8

See Rec. Doc. 213.9

See Rec. Doc. 227.10

See Rec. Doc. 243.11

See John R. Krewson’s second Amended Flooding Evaluation (Oct. 11, 2013), attached as Exhibit12

“D.”

See id. at 8; see also Ex. B, Declaration of John R. Krewson ¶ 17.13

3


value is changed, other values might also need to change to maintain the validity of the model.

When Mr. Krewson prepared the HEC-RAS models using the incorrect 3,702 cfs flow rate value,

he used a Manning N value of 0.025 to represent a well-maintained Elam Creek Channel and a

Manning N value of 0.04 to represent an overgrown Elam Creek channel. These Manning N values14

were selected based on the incorrect 3,702 cfs flow rate value. With the 3,702 flow rate value,15

these Manning N values allowed Mr. Krewson to calibrate the model and provided a flooding depth

comparable to the 100-year flood in the FEMA’s 2009 Flood Insurance Study. Mr. Krewson16

selected the Manning N values to be able to compare the effect of an overgrown Elam Creek channel

and the effect of a well-maintained Elam Creek channel on the flooding at Kmart’s store. 17

When Mr. Krewson corrected the flow rate values to 5,202 cfs for the Amended Report, the

Manning N values that were used for the Initial Report ceased to be representative because they were

developed to correlate with the lower flow rate of 3,702 cfs. Thus, he had to re-calibrate the model18

by adjusting the Manning N values based on the higher flow rate value of 5,202 cfs. He used a19

Manning N value of 0.04 to represent a well-maintained Elam Creek channel and a Manning N value

of 0.14 to represent an overgrown Elam Creek channel. These Manning N values allowed him to20

See Ex. B, Declaration of John R. Krewson ¶ 22.14

See id.15

See id.16

See id.17

See id. ¶ 23.18

See id.19

See id.20

4


calibrate the model and provided a flooding depth comparable to the 100-year flood in the FEMA’s

2009 Flood Insurance Study based on the higher flow rate value.21

Finally, in order to comply with this Court’s order allowing the amendment of mathematical

errors only, Mr. Krewson’s Amended Report considered re-calculated runs using the same scenarios

described in his Initial Report dated September 20, 2012 and in his original modeling. The Amended

Report does not use the scenarios described in the first amended report dated July 23, 2013 and in

that re-run modeling.

Mr. Krewson concludes in his Amended Report 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 193 feet and increased the average velocity of flow at the building

by 16 percent.” Mr. Krewson also opines that “[p]rior to the addition of the Kroger building the22

Kmart building was essentially outside the active overbank flow of water.” Additionally, Mr.23

Krewson concludes that “[w]hen the Kroger building was added, the overbank flood overlapped the

combined building by 129 feet, increasing the exposure of the building to flowing water.” Mr.24

Krewson’s opinions are entirely consistent with Mr. Krewson’s Initial Report, which noted 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.

See id.21

Ex. D, John R. Krewson’s second Amended Flooding Evaluation (Oct. 11, 2013) at 8-9.22

Id. at 9.23

Id.24

5


On December 18, 2013, this Court issued an Order and Memorandum Opinion denying

Kmart’s appeal of the magistrate judge’s denial of its motion for leave to file the July 25, 2013

amended report and denying the motion for leave to file the October 11, 2013 amended report that

was submitted pursuant to this Court’s September 27, 2013 Order. 25

II. Law and Argument

A request to alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e)

may be granted under the following circumstances: (1) to correct manifest errors of law or fact upon

which judgment is based; (2) the availability of new evidence; (3) the need to prevent manifest

injustice; or (4) an intervening change in controlling law. In ruling on a Rule 59(e) motion “a26

district court should consider the following nonexclusive list of acts: (1) the reasons set forth by the

movant justifying consideration of evidence or arguments that the movant failed to present in the

underlying motion, (2) the importance of the reconsideration of the underlying motion to the

movant’s case, (3) whether the reasons set forth by the movant justifying the reconsideration were

available to the movant before they responded to the underlying motion and (4) the likelihood that

the non-movants will suffer unfair prejudice if the motion is reconsidered.” Here, Kmart asks this27

Court to reconsider its Judgment and alter or amend the Judgment to correct manifest errors of fact

upon which the Judgment is based and to prevent the manifest injustice that will occur if Kmart is

not permitted to present Mr. Krewson’s Amended Report to the jury.

See Rec. Docs. 346-347.25

See Shelter Ins. Co. v. Mercedes Benz, USA, 2006 WL 1601770, *1 (N.D. Miss. June 8, 2006)26

(citing In re Self, 172 F. Supp. 2d 813, 816 (W.D. La. 2001)).

Harrigill v. United States., 2004 WL 1595676, *1 (S.D. Miss., June 1, 2004) (citing Sturges v.27

Moore, 73 Fed. Appx. 777, 778 (5th Cir.2003)), vacated on other grounds, 410 F. 3d 786 (5th Cir. 2005).

6


A. The Judgment should be altered or amended to correct manifest errors of factupon which the Judgment is based.

This Court should alter or amend its Judgment because it is based on manifest errors of fact.

Specifically, the Judgment is based on the incorrect assertion that Mr. Krewson’s Amended Report

presents a new theory of recovery by Kmart. The Defendants argued, and this Court agreed, that Mr.

Krewson should not be permitted to amend his report because when he corrected the figures in the

Amended Report, his conclusions changed, which supposedly altered Kmart’s theory of recovery.

In its Memorandum Opinion, this Court found that the “difference in the water level alters Kmart’s

entire theory of the case.” This Court further stated that Mr. Krewson could not “merely correct28

mathematical errors and revise numerical conclusions; he must revise his conclusions, and

accordingly, Kmart must revise its theory of the case. The new theory of liability scarcely resembles

the earlier theory — except that it involves damage to the Corinth Kmart store and a lot of flood

water.” 29

But Kmart has never altered its theory of recovery. From the inception of this lawsuit, Kmart

alleged in its Complaint that the presence of the Kroger store within a floodway “altered the water

flow from standing water to a rushing, forceful water flow.” Mr. Krewson’s Amended Report30

merely confirms Kmart’s theory and the eyewitness testimony noted in his Initial Report that flowing

water carrying debris along the back of Kmart’s store resulted in damage to the rear door and that

this caused the water to intrude into Kmart’s store.

Rec. Doc. 347 at 2. 28

Id. at 12. 29

Rec. Doc. 1, ¶ 16.30

7


Indeed, this same theory was discussed in Mr. Krewson’s Initial Report:

As the morning [of May 2, 2010] progressed, water began rising rapidly around theKmart. According to eyewitnesses, water was building up and flowing along the rearof the building, putting stress on the rear doors of the store. Eventually, landscapetimbers stored on site struck the doors with enough force to break open the doors,lodge in the opening, and allow water to flooding into the store. 31

* * *

The location of the Kroger store in a floodway is a concern. As noted, approximatelyone half of the Kroger was built in a floodway for Elam Creek . . . . FEMA’s 2009Flood Insurance Study for Alcorn County and Incorporated Areas, states:

“Encroachment on floodplains, such as structures and fill, reduce the flood carryingcapacity, increases the flood heights and velocities, and increases flood hazards inareas beyond the encroachment itself . . . .”

* * *

. . . If earth fill or buildings or other structures are built in the flow pathwayfloodwaters rise and move faster and cause greater damage.32

* * *The construction of the Kroger and other structures in the known floodway of ElamCreek clearly increases the flood heights and potential for flooding, as well as forincreased velocities, both of the factors involved in the flooding of the Kmartstore.33

Even this Court admitted that Kmart’s theory of rushing water was in Mr. Krewson’s Initial

Report, as it stated in its ruling: “On September 20, 2012, Krewson prepared his initial report,

wherein he opined that flood water and debris had forcefully rushed into the Kmart store.” The34

John R. Krewson’s Initial Flooding Evaluation (Sept. 20, 2012), attached as Exhibit “E” at 231

(emphasis added).

Id. at 4 (emphasis added). 32

Id. at 5 (emphasis added). 33

Rec. Doc. 347 at 2. 34

8


allegations in Kmart’s Complaint and the above-quoted portion from Mr. Krewson’s Initial Report

demonstrate that the notion that Mr. Krewson’s later recalculation of the water levels “alters Kmart’s

entire theory of the case” is clearly wrong. 35

It was pursuant to Kmart’s motion and this Court’s order that Kmart submitted an amended

report correcting the mathematical errors in Mr. Krewson’s report. Kmart followed these

instructions and Mr. Krewson corrected the flood flow rate and the Manning N values in his HEC-

RAS runs. The adjustment of the Manning N values were part of the corrections to the flood flow

rates. Mr. Krewson had to revise the values to correlate with the higher flow rate of 5,202 cfs to

present a representative HEC-RAS model. The corrections to the flood flow rates and Manning N

values complied with this Court’s September 27, 2013 Order requesting an amendment to the

mathematical errors in Mr. Krewson’s Initial Report. When Mr. Krewson revised the flood flow

rates, the results of the HEC-RAS models were naturally different from the results in the initial

evaluation. Of course, when the input in a model changes, the output also necessarily changes.

After correcting the flow rate and calibrating the model by adjusting the Manning N values to reflect

the higher flow rate, Mr. Krewson concluded 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 193 feet and increased the average velocity of flow at the building by 16

percent.” 36

Thus Mr. Krewson’s conclusions do not present a new claim against Defendants. Again,

from the outset of this litigation, Kmart has alleged that the location of the Kroger store “altered the

Id.35

Ex. D, John R. Krewson’s second Amended Flooding Evaluation (Oct. 11, 2013) at 8-9.36

9


water flow from standing water to a rushing, forceful water flow.” Mr. Krewson began amending37

his report to determine, using corrected figures, whether the Kroger store contributed to the flooding

at the Kmart store. In the process, Mr. Krewson confirmed by reviewing the flow and velocity data

from his models that the Kroger store reduced the overbank width of flow and increased the average

velocity of the flow of the water at Kmart’s building, which increased the exposure of the Kmart

building to flow water. Mr. Krewson’s tests confirmed that the addition of the Kroger building38

caused the Kmart store to become exposed to the rapidly flowing water. Therefore, the conclusions39

in Mr. Krewson’s Amended Report do not constitute a new theory of causation or a new claim by

Kmart, but merely correct data input and output, which also corroborates eyewitness testimony and

the allegations already contained in Kmart’s Complaint. It should be of no surprise that when Mr.

Krewson corrected the flood flow rates, the specific results and conclusions of his evaluation would

change.

In the Memorandum Opinion, this Court stated that in his first amended report, “Krewson

opines that if the Kroger store had not been located partially in the regulatory floodway, Kmart

would have been exposed to standing water — not rushing, flowing water and debris as he had

originally thought.” First, this critique is irrelevant to this case because it is the second Amended40

Report that is sought to be introduced pursuant to this Court’s earlier order. Second, that first

Rec. Doc. 1, ¶ 16.37

See Ex. D, John R. Krewson’s second Amended Flooding Evaluation (Oct. 11, 2013) at 8-9.38

See id. 39

Rec. Doc. 347 at 2-3.40

10


Amended Report indeed stated that the Kroger building was subjected to flowing water. Third, in41

his Initial Report, Mr. Krewson noted that according to eyewitnesses, water was flowing along the

rear of the building, putting stress on the rear doors of the store and that debris struck the doors with

enough force to break open the doors and allow water to flood into the store. Thus, Mr. Krewson42

has always recognized that increased flowing water contributed to the flooding at Kmart’s store.

Defendants cannot deny that they were aware of Kmart’s theory that a rushing, forceful water

flow contributed to the flooding at Kmart’s store, as Defendants’ own expert, James N. Monohan,

discussed the flow velocities in his report critiquing Mr. Krewson’s Initial Report. Mr. Monohan43

included an entire section on “Flow Velocities” in his report wherein he compared the velocities in

Mr. Krewson’s initial HEC-RAS runs. Although Mr. Monohan noted that there were differences

between the runs in the velocities, he stated that it was impossible for him to determine how much

of the difference was due to Kroger’s location and how much was the result of the inconsistent flow

rates in Mr. Krewson’s initial HEC-RAS runs. Defendants and their experts were clearly aware44

of Kmart’s allegation that the presence of the Kroger store caused a forceful flow of water that

contributed to the flooding at Kmart’s store, yet Defendants complain that this is somehow a new

theory of causation.

See Ex. C, John R. Krewson’s Amended Flooding Evaluation (Jul. 23, 2013) at 9.41

See Ex. E, John R. Krewson’s Initial Flooding Evaluation (Sept. 20, 2012) at 2-3.42

See James N. Monohan’s Expert Review and report on Mr. John R. Krewson’s Flooding43

Evaluation (dated September 20, 2012) and Deposition (dated May 22, 2013) at 8, attached as Exhibit “F.”

See id.44

11


The Amended Report does not assert any new theory of causation against any defendant.

Rather, Mr. Krewson’s Amended Report corrects a mathematical error in his HEC-RAS runs, as was

requested by this Court in its September 27, 2013 Order. Once Mr. Krewson input the corrected

figures, the output necessarily changed, such as water depth and velocity of water. The theory that

the Defendants’ presence in the floodway and failure to mitigate that presence, however, has not

changed. The Amended Report merely confirms what has been Kmart’s theory of causation all

along. As explained above, the original theory in Kmart’s Complaint and in Mr. Krewson’s Initial

Report was an increase in water depth and an increase in water velocity. The theory borne out

by the second Amended Report is a minimal increase in water depth compared to the water depth

if there had been no Kroger (a two-inch increase) and an increase in water velocity. Because this

Court’s Judgment is based on the incorrect statement that Mr. Krewson’s Amended Report alters

Kmart’s theory of recovery, Kmart asks this Court to reconsider and alter or amend its Judgment and

permit Kmart to file Mr. Krewson’s Amended Report.

B. The judgment should be altered or amended to prevent manifest injustice.

Moreover, manifest injustice will occur if Kmart is not permitted to amend Mr. Krewson’s

report. As discussed in the briefing on this issue, Federal Rule of Civil Procedure 16(b) allows a

scheduling order to be modified for good cause. To determine good cause, courts look at: (1) the

explanation for the failure to meet the deadline; (2) the importance of the testimony; (3) potential

prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice. 45

In the Memorandum Opinion, this Court discusses the first, third and fourth factors at length, but

See Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997) (emphasis45

added).

12


largely ignores the second factor — the importance of Mr. Krewson’s testimony in the Amended

Report to Kmart’s case. However, consideration of this factor bears out the injustice that will occur

if Kmart is not permitted to amend Mr. Krewson’s report.

As this Court and all parties have recognized, an amendment to the Initial Report is vitally

important to Kmart’s case because it confirms that the Defendants’ actions contributed to the

flooding at Kmart’s store. The refusal to allow an amendment of the Initial Report will no doubt

result in manifest injustice to Kmart. Indeed, without an amended report, Kmart will be forced to

rely on a flawed report even though the proposed Amended Report supports Kmart’s claim that the

Kroger store’s presence in the floodway contributed to Kmart’s damages. Kmart will be unable to

provide the correct data to the jury even though the error was discovered and corrected months in

advance of trial. The United States Fifth Circuit Court of Appeals has recognized that “[t]he goal

of grand jury proceedings, of criminal trials, and of civil trials is to resolve a dispute by gathering

the facts and arriving at the truth.” Further, “virtually every judicial inquiry begins with the goal46

of developing the facts. The basis of justice is the truth and our system frowns upon impediments

to ascertaining the truth.” The importance of the Amended Report to Kmart’s prosecution of the47

case requires that Kmart be allowed to submit the correct information to the jury. The denial of

Kmart’s request serves as an impediment to the jury’s ability to ascertain the truth, resulting in

manifest injustice to Kmart. If this error were first discovered on the stand at trial, surely Mr.

Krewson would be able to explain himself, subject to Defendants’ questioning. It makes no sense

to disallow Mr. Krewson from amending his report when the error was discovered months before

Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1578 (5th Cir. 1989).46

In re Dinnan, 661 F.2d 426, 427 (5th Cir. 1981). 47

13


trial, with the penalty being that Mr. Krewson is altogether disallowed from presenting the correct

figures and calculations.

As for the other three factors for allowing an amendment, this Court should reconsider its

reasoning. For the first factor — explanation of the failure to submit a timely report — this Court

opined that Mr. Krewson had from September 2012 to April 2013 to discovery the flow rate error. 48

But what reason would he have had to revisit those numbers during that time? Defendants waited

until May 22, 2013 to depose him and to challenge his findings. Further, the data is printed out on

pages and pages of numbers and tables. This Court also noted that the Amended Report appears to

be a new theory of recovery against Defendant Kansas City Southern Railway Company based upon

a photograph produced to Kmart in October 2012. But Mr. Krewson’s Initial Report contained49

photographs of the railroad tressle with debris blocking water flow and Mr. Krewson opined in his50

Initial Report that debris and obstructions in the Elam Creek channel, such as those present in the

photographs, contributed to the flooding at Kmart’s store. Mr. Krewson’s opinion that the debris51

under the KCSR railroad bridge existed at the time of the flood was based on his observation that

there was debris embedded in the underpass, which suggested a permanence of the debris field, and52

on his conversation with David Huwe, the City’s Floodplain Administration, regarding KCSR’s

See Rec. Doc. 347 at 5. 48

See id.49

See Ex. E, John Krewson’s Initial Flooding Evaluation (Sept. 20, 2012) at Figures 19-21. 50

See id. at 7. 51

See Ex. A, Depo. of John R. Krewson at 159:2-5. 52

14


failure to maintain the underpass prior to the flood event. Mr. Krewson’s theory was confirmed53

by the photograph that was shown to Mr. Krewson by KCSR’s counsel at his deposition, which

suggests that because there is no floating debris, the debris field was present at the time of the flood

event. Mr. Krewson can comment on the same theory that always has been advanced even when

referring to a photograph produced by one of the defendants in discovery. Regardless, Mr.

Krewson’s Amended Report was produced when it was produced because of the well-documented

flow rate error and not because of tardiness. In fact, Kmart produced the Amended Report within

this Court’s deadline. This Court should find the timing of the report excusable under the facts of

this case.

For the third factor — prejudice from submission of the Amended Report — this Court found

that Defendants would be prejudiced by incurring new attorneys’ fees, travel costs, expert costs, and

deposition costs. But those costs pale in comparison to the prejudice to Kmart. Kmart has suffered

approximately $3 million in damages resulting from the claims asserted in this case. Yet Defendants

and this Court brush that consideration aside, in light of Defendants’ litigation costs, because of a

mathematical error made by Kmart’s expert, which error was corrected months before trial. Again,

Kmart suggests that the prejudice to its case far outweighs the supposed prejudiced suffered if

Defendants have to litigate this case further.

In Wal-Mart Stores, Inc. v. Qore, Inc., a decision rendered by this Court, Chief Judge Mills54

found, “This Court is no position to hold that experts can never make mistakes. When a

See id. at 28:17-24.53

2009 WL 224908 (N.D. Miss. Jan. 28, 2009) (Mills, J.) (emphasis added).54

15


mistake is discovered and fixed it advances the cause of justice.” In Qore, the plaintiff’s expert55

initially included the value of a fuel island canopy and store tank in his appraisal report and later

removed them. The defendant argued that this error, along with other alleged problems associated56

with the plaintiff’s expert’s report, rendered the expert’s testimony unreliable and inadmissible. 57

While this Court acknowledged those problems and found that the defendant’s counsel would

certainly “illuminate these for the jury,” this Court found that the problems do not rise to the level58

to prevent the expert from testifying. Here, the denial of Kmart’s request to submit the Amended

Report will result in manifest injustice as it prevents Kmart from presenting to the jury what all

parties know to be the correct information in this matter.

For the fourth factor — the availability of a continuance to cure any resulting prejudice from

the submission of the Amended Report — this Court simply found that because the untimeliness of

Kmart’s report could not be explained and because the report would prejudice Defendants, a

continuance would not be justified. This conclusory finding skirts the issue. As Kmart explained59

previously, it has offered to pay Mr. Krewson’s travel and deposition costs. And as further

explained, Defendants’ experts have done no modeling of their own. They merely hoped that Mr.

Krewson’s error would prove his downfall and they would not have to advance any supportable

positions of their own. If this Court allows Mr. Krewson to present a correct model, Defendants

Id. at *4.55

See id.56

See id.57

Id.58

See Rec. Doc. 347 at 7. 59

16


would have to do no work other than that which they arguably should have had to do in the first

place. It should not count as “prejudice” to Defendants in working up the merits of a case when

Defendants voluntarily chose a different tack to use a simple error to discredit Kmart’s case.

III. Conclusion

For the foregoing reasons, Kmart respectfully requests that this Court grant its Motion to

Amend or Alter its Judgment and permit Kmart to submit the Amended Report of John Krewson.

This the 15th day of January, 2014.

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

17


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 15 day of January, 2014.th

/s/ Ryan O. Luminais______________________________________RYAN O. LUMINAIS

18


350 memoinsupportmotiontoamendjudgment kmart

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