284 motioninopposition combine

transcript

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

EASTERN DIVISION KMART CORPORATION PLAINTIFF VS. CIVIL ACTION NO. 1:11-CV-103-GHD-DAS THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP; FULTON IMPROVEMENTS LLC; THE KANSAS CITY SOUTHERN RAILWAY COMPANY; CITY OF CORINTH; THE UNITED STATES OF AMERICA; JOHN DOE; AND ABC CORPORATION DEFENDANTS

______________________________________________________________________________

DEFENDANT THE KANSAS CITY SOUTHERN RAILWAY COMPANY’S RESPONSE IN OPPOSITION TO PLAINTIFF’S DAUBERT MOTION TO EXCLUDE

THE TESTIMONY OF KELLY BLAKE MENDROP ______________________________________________________________________________ The Kansas City Southern Railway Company (“KCSR”) hereby opposes Plaintiff Kmart

Corporation’s Daubert motion [Doc 261] to exclude the testimony of KCSR’s hydrologist expert

Blake Mendrop.

Plaintiff’s assertions that Mendrop’s opinions are based on insufficient, outdated, and

unreliable data are gross mischaracterizations of Mendrop’s deposition testimony, are not based

on any other expert’s testimony (but instead are just lawyer’s arguments), and are demonstrably

false as indicated by the Affidavit of Blake Mendrop (Exhibit A hereto) and the portions of

Mendrop’s deposition that Plaintiff omitted.

The crux of Plaintiff’s argument is that Mendrop modeled the May 2, 2010 flood event

using “thirty year old” data. This assertion is not supported by any competent expert testimony,

and is wrong and a red herring. As shown herein, consistent with engineering standards,

Mendrop used 1981 Federal Emergency Management Agency (FEMA) model data as a starting

Case: 1:11-cv-00103-GHD-DAS Doc #: 284 Filed: 10/25/13 1 of 19 PageID #: 3985

point, but only after determining that it was still accurate. He verified this data not only by

reviewing 2010 FEMA data (published in September of 2010, several months after the May 2,

2010 flood event), which incorporated the 1981 model, but also through his own independent

surveys and field inspection of the subject Elam Creek location.

Plaintiff’s motion should be denied in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

The May 2, 2010 Flood

KCSR operates a railroad line in Corinth, Mississippi, which crosses Elam Creek via a

bridge at KCSR mile marker 328.10. Mendrop Expert Report at 3 (Ex. B). The KCSR bridge is

approximately 2100 feet (nearly half a mile) downstream of Plaintiff’s Kmart Store #4883. Id. at

8. A bridge has been at this location since at least the early 1900’s. The current railroad bridge

over Elam Creek was constructed in 1966. KCSR Dep at 75 (Ex. C).

Starting on May 1, 2010 and continuing to approximately mid-afternoon on May 2,

approximately nine (9) inches of rain fell in Corinth and the surrounding area. Mendrop Report

at 6-7 (Ex. B). It is undisputed that this extraordinary rainfall event exceeded the 100-year flood

mark.1 Mendrop Report at 6 (Ex. B); Krewson Dep at 84 (Ex. D). As a result, Elam Creek

flooded, along with several other creeks in the Corinth area. Mendrop Report at 6 (Ex. B). As

set forth fully in KCSR’s motion for summary judgment [Doc 253] and memorandum in support

[Doc 254], vast areas of Corinth flooded, including areas both downstream and upstream of the

1 A 100-year, or base, flood is defined as having a one percent chance of being reached or exceeded in any single year. The base flood is the national standard used by the National Flood Insurance Program (NFIP) and all federal agencies for the purposes of requiring the purchase of flood insurance and regulating new development in flood hazard areas. The 100-year rainfall event for the Corinth area is approximately 7.6 inches within a 24-hour period. Mendrop Report at 6 (Ex. B).

KCSR bridge. In fact, as demonstrated by the photograph attached hereto as Exhibit E2, the

flood waters overtopped the KCSR bridge. Like numerous other businesses, residences, and

local government properties, the Corinth Kmart store sustained flood damages during the May 2,

2010 flood.

Plaintiff’s Allegation of Negligence Against KCSR

On May 2, 2011, Plaintiff filed its Complaint in this action, naming multiple

Defendants3, including KCSR, and seeking in excess of $3.3 million in alleged damages

sustained at its Kmart store as a result of that flood event.4 [Doc 1]. Specifically as to KCSR,

Plaintiff alleges that KCSR negligently allowed excessive debris to collect beneath its railroad

bridge over Elam Creek, and that the resulting blockage caused the water level at the Kmart store

to be higher than it would have been otherwise. [Doc 1 at 8]5. Plaintiff designated John R.

Krewson as its engineer expert to testify that (1) there was excessive debris under KCSR’s

bridge at the time of the flood and this assumed excessive debris caused a 25% blockage under

2 The photograph was produced by the City of Corinth as Bates-numbered document Corinth00106. 3 In addition to KCSR, Plaintiff sued three other private parties as well as the City of Corinth and the Federal Emergency Management Agency (FEMA). The City of Corinth and FEMA have now been dismissed by this Court. [Docs 50, 209]. The primary allegations against the remaining Defendants (other than KCSR) is that they each participated in or acquiesced to a grocery store being built/located in the floodway of Elam Creek, and each participated in or acquiesced to a 2005 revision/amendment to the floodway that was approved by FEMA. 4 In its Complaint, Plaintiff initially sought damages for damages allegedly sustained by an April 2011 flood event. Subsequently, via letter to counsel, Plaintiff has stipulated that it will not pursue damages for the April 2011 event. 5 As set forth fully in KCSR’s motion for summary judgment [Doc 253] and memorandum in support [Doc 254], KCSR is entitled to summary judgment because Plaintiff has failed to show any material negligent act or omission which constitutes a breach of any duty to Plaintiff or, even assuming arguendo a breach, that such breach contributed to or proximately caused damages to Plaintiff.

the bridge; and that (2) this assumed blockage contributed to the flood level at the Kmart store.

See Krewson Expert Report (Ex. F).6

Blake Mendrop’s Expert Opinions

In response, KCSR designated as its expert hydrologist Blake Mendrop, a registered

professional engineer with extensive experience in the fields of hydrology and hydraulics7,

especially with the use of the Hydrologic Engineering Center River Analysis System (HEC-

RAS) model, which is the accepted method within the engineering community for modeling

water flow and hydraulic events. Mendrop Report at 8 (Ex. B); Mendrop Aff. at ¶ 3 (Ex. A). Mr.

Mendrop has previously been designated as an expert in litigation involving hydrology and

hydraulic studies and has worked both in the private sector and with the United States Army

Corps of Engineers on a wide range of projects requiring such expertise. See Mendrop Dep at 1-

25 (Ex. G); Mendrop CV, attached to Mendrop Affidavit (Ex. A).

Mr. Mendrop conducted an independent hydraulic study to analyze the May 2, 2010

flood event in Corinth to determine the impact, if any, of alleged debris beneath the KCSR

6 As set forth fully in KCSR’s Daubert motion to strike Krewson [Doc 240] and memorandum in support [Doc 241], Krewson assumed, without any reliable factual basis, the presence of excessive debris under KCSR’s bridge, a fatal error that invalidates his opinions. Krewson then compounded his error because he modeled neither the KCSR bridge nor the debris he assumed was present beneath it at the time of the flood. Krewson admitted that his models “tell [one] nothing” about the impact of the alleged debris on flood elevations at the Kmart store. Krewson Dep at 287-288 (Ex.D). 7 As explained in Mr. Mendrop’s report, hydrology includes the study of a watershed’s behavior during and after a rainstorm. Report at 4-5 (Ex. B). For purposes of floodplain analysis, hydraulics is the study of how a quantity of water will flow through a channel or floodplain. Hydraulic analysis combines a consideration of flood hydrology, or discharges, cross section data on how much area there is to carry the flood, and stream characteristics, such as roughness and slope. Id. at 5.

bridge on upstream water surface elevations, including at the Kmart store.8 Mendrop Report at 3

(Ex. B). Consistent with industry standards, Mendrop began his investigation by gathering from

FEMA the most recent flood insurance study (FIS) for Alcorn County, Mississippi, with an

effective date of September 17, 2010, which is attached to Mendrop’s Report as Appendix A.

See Mendrop Aff. at ¶ 5 (Ex. A). The FIS includes the most recent (2010) flood insurance rate

map (FIRM) for the Corinth area and indicates that the study area, including the KCSR bridge

and the Kmart store, is located in the base, or 100-year, floodplain, i.e., the land area covered by

the waters of the base, or 100-year flood. Mendrop Report at 3 (Ex. B). Mendrop also obtained

the 1981 FIRM, which was the effective map at the time of the flood event. Id. at 5. This 1981

map set forth the Base Flood Elevation (BFE) for the area, which is the computed elevation to

which floodwater is anticipated to rise during the base, or 100-year, flood. Id. at 4. The BFE

established for this area on the 1981 FIRM has not changed since it was developed and published

in 1981 and was thus included in the 2010 FIRM. Id. at 5; Mendrop Depo at 41 (Ex. G). The

practical implication of structures being located within the 100-year floodplain, as both the

KCSR bridge and Kmart store are, is that such structures typically experience flooding for events

meeting or exceeding the 100-year flood mark. Mendrop Report at 5 (Ex. B).

Mendrop also obtained the hydraulic models that FEMA used to develop the 1981 FIRM

for the Elam Creek location. Report at 8 (Ex. B). These same models were later incorporated

8 While Mendrop has testified that there was no reliable basis for Krewson’s assumption of a 25% debris blockage beneath the KCSR bridge at the time of the flood, he modeled both the KCSR bridge and the 25% blockage Krewson assumed in order to assess what impact, if any, such a blockage would have had on upstream water elevations. Mendrop Aff. at ¶ 4 (Ex. A). His models, using the HEC-RAS program which Krewson acknowledges is the proper model, showed no impact at the Kmart location. Report at 8-9 (Ex. B). Krewson, by contrast, did no modeling of the KCSR bridge or the assumed 25% debris blockage. Krewson Dep at 287-288 (Ex. D).

into the 2010 FIRM. Mendrop Aff at ¶ 7 (Ex. A). Because digital FEMA models for the study

area were unavailable for purchase from the FEMA library, Mr. Mendrop obtained hard copy

printouts of the HEC-2 (a predecessor of the HEC-RAS system) modeling prepared by FEMA to

create the 1981 FIRM maps. Report at 8 (Ex. B). Mendrop then, consistent with industry

standards, converted these printouts into HEC-RAS (River Analysis System) data for input into

his models. Mendrop Aff. at ¶ 6 (Ex. A); Mendrop Report at 8-9 (Ex. B). The current KCSR

bridge, built in 1966, was accounted for in the 1981 hydraulic models that were used to establish

the BFE in the 1981 map, in the 2010 FIRM, and in Mendrop’s HEC-RAS models. See Report

at 5-6 (Ex. B); Mendrop Aff. at ¶ 10 (Ex. A).

Using the FEMA studies, maps, and models as a starting point, and before arriving at his

opinions in this case, Mr. Mendrop independently verified that the FEMA base data accurately

reflected relevant May 2010 hydraulic conditions at the Elam Creek location in question.

Mendrop Aff at ¶ 8 (Ex. A). To accomplish this, Mendrop performed field reconnaissance

upstream and downstream of the bridge to ensure that “what was on the ground” approximated

what FEMA had modeled. Mendrop Aff. at ¶ 9 (Ex. A) Mendrop also gathered available

historical aerial photography, including 1947, 1992, 2003, and 2010 aerial photographs, included

in Appendix B to his Report, showing the location of Elam Creek and the railroad bridge, to

examine any relevant changes in the creek channel and the bridge over time and to confirm that

existing hydraulic conditions were consistent with FEMA’s modeling. Mendrop Dep at 37-45,

51-54, 62, 79-80 (Ex. G); Mendrop Aff. at ¶ 9 (Ex. A). Further, Mr. Mendrop examined KCSR

track charts to make sure the elevations indicated therein were consistent with FEMA data.

Mendrop Dep at 51-52 (Ex. G). Finally, Mendrop independently surveyed cross-sections of the

Elam Creek area, at the bridge and both upstream and downstream of the bridge, to verify

channel conditions were consistent with the existing FEMA models. Report at 8 (Ex. B);

Mendrop Dep at 53, 60, 83-84 (Ex. G); Mendrop Aff at ¶ 11 (Ex. A). Mendrop also surveyed the

approximate finished floor locations at the Fulton Shopping Center, where Kmart is located.

Mendrop Dep at 83 (Ex. G); Mendrop Aff .at ¶ 12 (Ex. A).

Relying on his independent verification that FEMA base data represented relevant May

2010 hydraulic conditions as well as his own surveys, Mendrop prepared HEC-RAS

engineering models to determine the impact, if any, of the alleged 25% blockage beneath the

bridge on upstream water elevations, including at the Kmart store -- both in the context of a 100-

year and 500-year flood event. As set forth in detail in his Report, Mendrop developed Model

A to reflect 100-year and 500-year flood event water surface elevations at the Elam Creek bridge

with no debris blockage beneath KCSR’s bridge. Report at 8 (Ex. B).

Using Model A as his comparison model, Mr. Mendrop then prepared Model B to

represent a condition of the assumed 25% blockage beneath the bridge. Id. at 8-9. In Model B,

Mendrop applied the industry-accepted methodology of employing the HEC-RAS routines for

modeling both the bridge and debris.9 As indicated in his report, Model B showed a slight rise

of .1 ft. (less than 1 ¼ inch) in water elevations, at the KCS bridge only. The assumed debris

caused no rise in upstream water elevations any distance upstream of the bridge, much less 2100

feet (nearly half a mile) at the Kmart store. Id. at 9. Thus, Mendrop’s models showed that even

assuming arguendo the 25% debris blockage beneath the KCSR bridge that Krewson assumed

9 As set forth in detail in Blake Mendrop’s Affidavit, to effectively model any impacts of debris blockage under a bridge, one has to model both the bridge and the debris. The HEC-RAS model has a routine for modeling the bridge and a routine for modeling debris, which is the “floating pier debris” routine. The accepted methodology within the industry requires not only the bridge be modeled, but also that this “floating pier debris” routine in the HEC-RAS program, be used to effectively model any effect of debris blockage at a bridge for its impact on an upstream structure. Mendrop Aff at ¶ 4 (Ex. A).

(with no reliable basis for such an assumption), there would have been no impact on the water

level 2100 feet upstream at the Kmart site. Id. Furthermore, Mendrop modeled a 50% debris

blockage in the channel around the bridge and found that such blockage also would have had no

impact on flood levels at the Kmart site for either the 100-year or 500-year flood event.

Mendrop Dep at 72 (Ex. G); Mendrop Aff. at ¶ 14 (Ex. A)10

Plaintiff’s Motion to Strike Mendrop’s Testimony

Plaintiff Kmart seeks to exclude Mr. Mendrop’s testimony on the erroneous grounds that

“Mr. Mendrop has presented expert testimony relying on what is, for all practical purposes, a

completely different site than what existed at the time of the May 2010 flood.” [Doc 262 at 15].

First and foremost, Plaintiff criticizes Mr. Mendrop’s use of “thirty-plus-year-old HEC-2 data

produced by FEMA” as outdated. [Doc 262 at15]. Plaintiff further argues that Mendrop, in

preparing his models, failed to conduct necessary surveying to account for the current condition

and configuration of the KCSR bridge and the current topography of the 2100 feet (nearly half a

mile) between the KCSR bridge and the Kmart store.

LEGAL STANDARD

The admissibility of expert testimony is governed by Federal Rule of Evidence 702,

which provides:

A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

10 As set forth in KCSR’s motion for summary judgment [Doc 253] and memorandum in support [Doc 254], since Plaintiff’s expert never modeled either the KCSR bridge or the assumed debris beneath it, this testimony is undisputed.

Under the Supreme Court’s application of Rule 702 in Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579 (1993), expert testimony is admissible upon a showing that the proffered testimony

is both relevant and reliable. Id. at 589-94. Testimony is relevant when it is sufficiently related

to the facts of the case such that it will “assist the trier of fact” in understanding the evidence or

determining a fact at issue. Id. Reliability is established when the testimony is based on

scientific methods and procedures. Id. While trial courts should ensure expert witnesses have

employed reliable principles and methods in reaching their conclusions, “[v]igorous cross-

examination, presentation of contrary evidence, and careful instruction on the burden of proof

are the traditional and appropriate means of attacking shaky but admissible evidence.” Pipitone

v. Biomatrix, Inc., 2188 F.3d 239, 250 (5th Cir. 2002) (quoting Daubert, 509 U.S. at 596).

Engineering methodology is the province of expert testimony. Kumho Tire Co., Ltd v.

Carmichael, 526 U.S. 137, 149-150 (1999). Where a party attacks another party’s expert under

Daubert, that party must provide competent evidence, not merely conclusory assertions, in

support of its motion. See id.; Inline Connection Corp., v. AOL Time Warner Inc., 472

F.Supp.2d 604, 613 (D. De. 2007) (opposing party failed to set forth competent evidence that the

methodologies of the expert it sought to strike are inconsistent with or not recognized by other

experts in the field).

ARGUMENT

The gravamen of Plaintiff’s complaint is that in preparing his engineering models,

Mendrop relied on “outdated” 1981 FEMA data and that, as a result, his models do not reflect

“existing conditions” at the KCSR bridge. As shown herein, Mendrop, consistent with accepted

industry practice, used 1981 FEMA model data as a starting point, but only after he verified this

data by reviewing 2010 FEMA data, which incorporated the 1981 data, and conducted his own

independent survey and field inspection of the area. Thus, Plaintiff’s primary assertion that “Mr.

Mendrop has not taken any action to account for any changes in the topography of the area [or

the KCSR bridge] in the thirty-year span of time [since FEMA prepared its models] ” Doc 262 at

13, is just plain wrong.

The overarching fatal flaw of Plaintiff’s motion is that Plaintiff fails to offer any

competent evidence that the facts and data on which Mendrop relied in preparing his models are

unreliable. Plaintiff provides no expert affidavit testimony, citation to engineering standards or

literature, or any other competent evidence to support its conclusory assertions that Mendrop

used insufficient, outdated, and unreliable data. Vague and conclusory assertions of Plaintiff’s

attorney that Mendrop relied on “thirty-year-old data,” and that such per se is not reliable data, is

not competent evidence, for Daubert purposes, to refute Blake Mendrop’s sworn deposition

testimony that he, in accordance with accepted methods in the field of hydrology, independently

verified that the FEMA base data he relied upon reflected the relevant present-day hydraulic

conditions at the Elam Creek location in question. Mendrop Aff at ¶ 8 (Ex. A). For Plaintiff’s

counsel, without any expert affidavit support, to attack Mendrop for purportedly failing to rely

on the types of data recognized in the highly specialized and technical field of hydrology is no

different from an engineer expert purporting to opine as to whether an attorney relies on

applicable case law in a summary judgment brief. Because Plaintiff provides only

impermissible lawyer conclusions and no competent expert testimony in support of its attack on

Mendrop’s opinions, Plaintiff’s motion is without merit and should be denied in its entirety.

A. Plaintiff’s argument that Mr. Mendrop relied upon “outdated thirty year old” FEMA data in forming his opinions is a red herring.

Plaintiff contends that Mr. Mendrop’s use of “outmoded computer technology” and

“outdated [FEMA] data,” caused him to offer an opinion about “a completely different site than

what existed at the time of the May 2010 flood.” Doc 261 at 15. Plaintiff’s reference to

“outmoded computer technology” apparently refers to Mr. Mendrop’s conversion of HEC-2 data

which FEMA used in preparing its base models, see supra at 6, to HEC-RAS data which he used

to develop his own models. Notwithstanding Plaintiff’s suggestion to the contrary, such

conversion is a commonly accepted method within the industry of making data, contained within

the HEC-2 predecessor to the HEC-RAS system, accessible and useful for purposes of

developing HEC-RAS models. Mendrop Aff. at ¶ 6 (Ex. A).

Beyond this, that FEMA’s HEC-2 models were created prior to 1981 does not render

them “outdated.” As explained supra at 6, FEMA’s base models were created in conjunction

with FEMA’s preparation of the 1981 Flood Insurance Rate Map (FIRM), which was the

effective map at the time of the May 2010 flood. As Mendrop testified at his deposition, the

2010 FIRM, published several months after the May 2010 flood event, incorporates the same

model reflected in the 1981 map. Mendrop Dep at 47 (Ex. G). FEMA’s use of the 1981 model

to develop its 2010 map indicates that the 1981 model still represented current hydraulic

conditions at the Elam Creek location in question. Mendrop Dep at 47 (Ex. G); Mendrop

Affidavit at ¶ 7 (Ex. A). Thus, in fact, Mendrop relied not upon “thirty year plus data,” as

Plaintiff contends, but current FEMA data. See Mendrop Dep at 47 (Ex. G).

Plaintiff erroneously suggests that the fact that the KCSR bridge was in place at the time

FEMA prepared its 1981 model somehow invalidates Mr. Mendrop’s models, see Doc 262 at 2-

3. The exact opposite is true. Because the KCSR bridge was in place at the time FEMA

prepared its 1981 hydraulic models to establish the base flood elevations in the subject area,

FEMA data, now incorporated into the 2010 FIRM, does account for the effect of the bridge on

flood elevations during the May 2, 2010 flood. Mendrop Aff. at ¶ 10 (Ex. A).

Plaintiff has offered no authority to counter Mr. Mendrop’s testimony that industry

standards establish that the most current FEMA data is the best available data to begin an

analysis of the impact, if any, of an encroachment in the creek channel on upstream water

elevations, see Mendrop Report at 3; Mendrop Dep at 79-81, or that conversion of HEC-2 data

into HEC-RAS data is inconsistent with industry standards. See Mendrop Aff. at ¶ 5 (Ex. A). In

fact, if Plaintiff’s own expert John Krewson had relied on relevant FEMA flow rate data in

preparing his report, he would have necessarily had to use the same HEC-2 data Mendrop

accessed and used. See Mendrop Report at 10 (Ex. B) (explaining that flow rates used by FEMA

in the FEMA models, which supplies the industry standard for this type of data, are published in

the HEC-2 model data, attached as Appendix D to Mendrop’s report).11 Further, as explained in

detail below, the FEMA base data provided only the starting point for Mr. Mendrop’s analysis.

Contrary to Plaintiff’s suggestion, Mr. Mendrop did not simply plug HEC-2 data into his HEC-

RAS models, but has testified that “the FEMA base data was used and expanded on as needed.”

Report at 6 (Ex. B).

11 As Mendrop has testified, FEMA flow rates provide the industry standard within the engineering community for the development of HEC-RAS models. [Doc 240-2 at ¶ 10].

B. Plaintiff’s argument that Mendrop failed to account for the present condition and configuration of the KCSR bridge is erroneous.

Plaintiff’s assertion that “Mr. Mendrop admitted that he did not do any investigation into

any changes or additions to the bridge structure from the late 1970s and early 1980s to the

present and did not account for any alterations or changes in the bridge in his report,” Doc 262 at

7, is a blatant mischaracterization of Mendrop’s Report and deposition testimony.

As a predicate matter, the purpose of Mendrop’s independent hydraulic study was to

determine the effect of alleged debris beneath KCSR’s bridge, not the effect of the bridge itself,

on upstream water elevations during the May 2, 2010 flood. (As explained supra at 6, the bridge

itself was already reflected on FEMA’s models and thus accounted for in terms of its effect on

flood elevations). At his deposition Mendrop testified that, in the process of converting

FEMA’s HEC-2 data to HEC-RAS data, he did verify, through reviewing aerial photography and

a visual inspection, that the relevant bridge geometry “on the ground” was consistent with the

bridge geometry reflected in FEMA’s HEC-2 data. Mendrop Dep at 79-80 (Ex. G); Mendrop

Aff. at ¶ 9 (Ex. A).

Further, Plaintiff’s statement that “[a]t his deposition, Mr. Mendrop admitted that he did

not conduct any surveying on the KCSR bridge to obtain the current existing condition of the

bridge before preparing his HEC-RAS models,” Doc 262 at 3, is inaccurate. Specifically,

Plaintiff’s suggestion that Mendrop’s survey data is flawed because he did not have “track time”

on the KCSR bridge fails.

First, “track time” is permission to actually be on the railroad tracks themselves by prior

coordination with railroad operations. It has nothing to do with whether a survey is sufficient.

Second, Mendrop did conduct channel surveys at the bridge, upstream and downstream of the

bridge, and along the 2100-foot area between the KCSR bridge and the Kmart store, to verify

that the existing channel conditions approximated the channel data reflected in FEMA’s model.

Mendrop Aff. at ¶ 11 (Ex. A). Mendrop has testified that he did not need to be on the KCSR

track itself to conduct the relevant surveys. Id. Plaintiff ignores not only the fact that FEMA’s

base models accounted for the present bridge, which was built in 1966, but also Mendrop’s

testimony that he did verify that the bridge he modeled was consistent with FEMA’s models.

Mendrop Aff. at ¶¶ 10-11 (Ex. A). And, finally, and most tellingly, Plaintiff’s assertion as to the

alleged insufficiency of Mendrop’s survey and verification of the FEMA model data is not

supported by any testimony from a person qualified in the field of hydrology – or, put another

way, it is just argument by Plaintiff’s lawyer. See Inline Connection Corp., 472 F.Supp.2d at

613. Thus, Plaintiff’s claim that “[t]he geometry of the KCSR bridge could be completely

different that it was in the late 1970s or early 1980s, when the data relied on by Mr. Mendrop

was developed” is without merit.

C. Plaintiff’s argument that Mendrop’s models are unreliable because he failed to account for the current topography of the area between the KCSR bridge and the Kmart store fails.

Plaintiff is also wrong that Mr. Mendrop’s models are unreliable because he conducted

no surveying “on the 2100-foot area between the KCSR underpass and the Kmart store,” Doc

262 at 4, and otherwise failed to account for “the conditions of . . . the area between the bridge

and the Kmart store as those conditions existed at the time of the May 2010 flood event,” Doc

262 at 6-7. Plaintiff is vague and conclusory as to the purported reasons that a detailed survey of

this half-mile area would be essential to a reliable hydraulic analysis and, again, provides no

qualified expert support for this conclusory assertion. See Kumho Tire Co., 526 U.S. at 149-150;

Inline Connection Corp.,472 F.Supp.2d at 613. Plaintiff’s assertions on this point are (again)

just impermissible lawyer conclusions.

Further, Plaintiff misapprehends what surveying was critical to the instant hydraulic

study. In fact, the survey data critical to Mr. Mendrop’s hydraulic analysis was surveys of the

creek channel to ensure that existing conditions were consistent with what FEMA’s base models

indicated. Mendrop Aff at ¶ 11 (Ex. A). As explained supra at 6-7, Mr. Mendrop in fact did the

necessary surveying of the channel “ to verify channel conditions were consistent with the

existing FEMA models” and conducted surveying upstream – as well as downstream – of the

bridge. Mendrop Dep at 53, 60, 83-84 (Ex. G); see also Mendrop Aff. at ¶11 (Ex. A). Plaintiff

has no competent evidence from a qualified person to dispute this, or to say what type of survey

would be necessary. Thus, while Plaintiff’s assertions might be cross-examination material, they

are not reasons to exclude Mendrop’s testimony under Daubert. See Pipitone, 288 F.3d at 250.

Likewise, Plaintiff’s claim that Mr. Mendrop’s models are flawed because he “did not

conduct a survey of the area around the Kmart store to determine the actual existing condition of

that area prior to preparing his HEC-RAS models,” Doc 262 at 9, is without any support in the

record. Specifically, Plaintiff complains that Mendrop did not survey the parking lot for the

Fulton Shopping Center, the fill area behind the shopping center, or the detention pond near the

shopping center. Id. What Plaintiff ignores is that Mendrop did conduct the pertinent survey of

the finished floor elevation at the Kmart store to verify that elevations indicated on FEMA’s

models was accurate. Mendrop Dep at 83-84 (Ex. G); Mendrop Aff. at 12 (Ex. A). Plaintiff’s

failure to substantiate with any competent testimony that more information was necessary

renders its criticism of Mendrop mere unsupported lawyer argument.

Cases on which Plaintiff bases its argument that Mendrop’s models are unreliable are

inapposite. Plaintiff’s reliance on Elliot v. Amadas Industries, Inc., 796 F.Supp.2d 796 (S.D.

Miss. 2011), a products liability case involving an expert’s failure to personally inspect a peanut

combine at issue, avails it nothing where Mr. Mendrop himself conducted an independent

investigation into the Elam Creek location at issue in this lawsuit. Unlike the Elliot expert, who

never examined the combine in question, Mendrop gathered and analyzed detailed data relevant

to the allegations of Plaintiff’s complaint to determine that the alleged debris beneath KCSR’s

bridge would have had no impact on flooding at Kmart. Likewise, Plaintiff’s reliance on Coffey

v. Dowley Manufacturing, Inc., 187 F.Supp.2d 958 (M.D. Tenn. 2002), a products liability case

involving the testimony of a mechanical engineer regarding the allegedly defective nature of an

automotive tool, is misplaced. Unlike the Coffey expert, which the court deemed to have relied

on “guesstimations regarding a number of important variables,” here Mr. Mendrop based his

models on reliable facts and data that “had grounding in actual physical realities,” see Coffey,

187 F.Supp.2d at 974, and used methods generally accepted in the field of hydrology in verifying

and modeling the facts and data. See Mendrop Affidavit (Ex. A). Plaintiff has offered no

competent testimony to dispute this. See Kumho Tire Co., 526 U.S. at 149-150.

In an apparent attempt to draw attention away from the fact that its own expert John

Krewson failed to model either the KCSR bridge or the alleged debris beneath it12 -- two data

points that are essential to any determination that debris beneath a bridge contributes to

upstream water elevations, see Mendrop Aff. (Ex. A) -- Plaintiff characterizes the data

12 In its Response to KCSR’s Daubert motion to exclude Krewson’s testimony, Plaintiff concedes that “[i]t is not disputed that Mr. Krewson did not prepare a model to quantify the specific impact of the debris field under the KCSR bridge . . . .” Doc 278 at 12.

supporting Mr. Mendrop’s models as irrelevant and unreliable. But, as previously pointed out,

Plaintiff has no affirmative expert evidence to show that Mendrop’s methods are not reliable,

instead, he relies only upon its attorney’s conclusory assertions, which is not sufficient under

Daubert. See Kumho Tire Co., 526 U.S. at 137.

Because Mr. Mendrop, in addition to modeling the bridge and the assumed debris

beneath it, has demonstrated that he relied on the types of data generally accepted within the

engineering community for performing his hydraulic study and has tied that data to the pertinent

inquiry, i.e. the impact, if any, of alleged debris beneath KCSR’s bridge on flooding at Kmart’s

store, see Mendrop Aff at ¶ 13, Mr. Mendrop’s opinions are reliable and relevant, and therefore

admissible under Daubert.

CONCLUSION

For all the foregoing reasons, KCSR respectfully asks this Court to deny Plaintiff’s

Daubert motion to exclude the testimony of Blake Mendrop in its entirety.

Respectfully submitted,

THE KANSAS CITY SOUTHERN RAILWAY COMPANY

BY:/s/Linda F. Cooper CHARLES E. ROSS (MSB #5683) W. McDONALD NICHOLS (MSB #3847) LINDA F. COOPER (MSB #102901)

Attorneys for Defendant KCSR

OF COUNSEL WISE CARTER CHILD & CARAWAY, P.A. 600 Heritage Building 401 East Capitol Street

Post Office Box 651 Jackson, Mississippi 39205-0651 Telephone: (601) 968-5500 Facsimile: (601) 968-5593

CERTIFICATE OF SERVICE

I, Linda F. Cooper, one of the attorneys for Defendant, The Kansas City Southern

Railway Company, do hereby certify a copy of the above and foregoing has been served on all

known counsel of record with the Clerk of the Court using the CM/ECF system which will

automatically send email notification to all known counsel of record.

This the 25th day of October, 2013.

/s/Linda F. Cooper

LINDA F. COOPER

Case: 1:11-cv-00103-GHD-DAS Doc #: 284-1 Filed: 10/25/13 1 of 7 PageID #: 4004

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