January 13, 2014 9:28:44 AM
ABERDEEN -- A federal judge has denied a request from Kmart Corporation to file a corrected report on testimony of its engineering expert in a lawsuit over flood damage to one of its stores in Corinth.
U.S. District Judge Glen Davidson ruled in December that changing the testimony would force both sides to incur more expense to try the case on a new theory of liability.
The Daily Corinthian reported trial is set for Feb. 24.
Kmart sued the city of Corinth and Kroger Company in May 2011. Corinth was dismissed as a defendant last fall.
Kmart's lawsuit alleges a neighboring Kroger grocery was built in a floodway, and caused water to flood the Kmart store in 2010.
Kmart charges the Kroger store should have been torn down but in 2005 was allowed to remain after a flood map revision by the Federal Emergency Management Agency.
Kmart is seeking compensation for damage at the Fulton Crossing location, the store's closure for about 10 months and flood prevention efforts in April 2011 when the store was threatened again by flooding.
Kmart sought to amend a report by engineering expert John Krewson of EFI Global. The company argued the revision would correct numbers in a flooding model Kmart acknowledges are incorrect.
The original report concluded the Kroger building caused a 1-foot rise in floodwaters that inundated the Kmart store. Kmart has twice revised the witness report.
"The errors in the initial Krewson report were unfortunate," Davidson wrote in his Dec. 18 order.
"However, Kmart should have discovered the errors earlier with due diligence. No continuance would cure the costs and time the parties would incur to try this case on a new theory of liability," he wrote.
"Because Krewson's errors in the report are so substantial, Krewson cannot merely correct 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 damages to the Corinth Kmart store and a lot of flood water. Allowing the new theory to be introduced this late in the litigation would undoubtedly result in substantial prejudice to defendants, who would necessarily encounter substantial costs to rebut Krewson's revised opinions and conclusions," Davidson wrote.
Kmart argued it should not be barred from providing correct data in advance of trial.