Petrone v. Werner Enterprises, Inc. et al

Filing 275

MEMORANDUM AND ORDER - Plaintiffs' motion to file the additional expert report of Daniel Regard is denied. Plaintiffs' motion to file a supplemental report of Richard Kroon is granted to the extent that it incorporates the additional disco very responses by defendants and corrects errors that improperly inflated the calculation of the disputed periods. Plaintiffs shall produce the supplemental report to defendants no later than July 18, 2014. Defendants shall be given the opportunity to depose plaintiffs' expert at plaintiffs' expense no later than August 8, 2014. All other pending motions will be denied without prejudice (Filing Nos. 247, 256, 263 and 269 in 8:11CV401; Filing Nos. 151, 160, 167 and 173 in 8:12CV307) . A planning conference in the chambers of the undersigned is scheduled for: Monday, August 25, 2014, at 9 a.m. to establish new deadlines and a new trial date. Defendants shall submit for the Court's consideration all costs incurred as a result of the late submission of plaintiffs supplemental expert report. Member Cases: 8:11-cv-00401-LES-FG3, 8:12-cv-00307-LES-FG3Ordered by Senior Judge Lyle E. Strom. (GJG, )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
PHILLIP PETRONE, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)
PHILLIP PETRONE, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)

8:11CV401

8:12CV307

MEMORANDUM AND ORDER

This matter is before the Court on the motion of
plaintiffs to file a supplemental expert report and add an
additional expert (Filing No. 234 in 8:11CV401; Filing No. 137 in
8:12CV307).
A. Additional Report of Daniel Regard
The disclosure of Regard as an expert was well after
the deadline for the disclosure of expert witnesses and
plaintiffs’ brief does not make a showing of good cause as to why
the utility and content of Regard’s report -- which plaintiffs
contend are simply confirmation of the Kroon report -- could not

be identified before the deadline for the filing of expert
reports.
B. Supplemental Report of Richard Kroon
Plaintiffs submitted the expert report of Richard Kroon
on January 15, 2014, in compliance with the deadline for that
report.

Kroon does not provide an opinion on the compensability

of the break or sleeper-berth time and does not touch on
liability.

Rather, according to plaintiffs, Kroon’s testimony

and report are useful to the extent that they contain the results
of complicated calculations and provide summaries on the
considerable data produced by defendants regarding drivertrainees’ work logs and compensation; Kroon “just created a
software program to calculate what damages would amass if this
Court found liability under [plaintiffs’] theories.”

Plaintiffs’

Brief in Support of Motion to Permit Submission of Additional
Expert Testimony, Filing No. 235 at 3 in 8:11CV401.
Defendants took Kroon’s deposition on March 20, 2014,
revealing considerable flaws in the methodology for computing the
allegedly uncompensated break and sleeper-berth time.

For

example, some times were double counted and some periods were
artificially split into two separate breaks when they spanned
12:00 a.m.

This led to inconsistent and inflated estimates of

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the disputed time periods.

Kroon admitted as much in his

deposition.
Plaintiffs frame these as “bugs” in the computer
program that have been fixed and wishes to introduce a corrected
“supplemental” report.

This characterization falls flat.

In

truth, plaintiffs hired an expert to calculate the disputed time
periods, the expert’s methodology was found to have significant
flaws, and now plaintiffs wish to correct those flaws under the
auspices of a supplement.

“[S]upplementation under the Rules

means correcting inaccuracies, or filling the interstices of an
incomplete report based on information that was not available at
the time of the initial disclosure.”

3M Innovative Properties

Co. v. Dupont Dow Elastomers, LLC, CIV. 03-3364MJDJGL, 2005 WL
6007042 (D. Minn. Aug. 29, 2005) (quoting Kenner v. United
States, 181 F.R.D. 639, 640 (D. Mont. 1998).
Unlike the data on additional class members and the
supporting “pick-up and drop-off times” that were produced by
defendants after the deadline for submission of expert reports,
no act by the defendants or other outside factor precluded
plaintiffs’ expert from recognizing the flaws in his original
report -- he simply failed to do so.

“[W]hile Rule 26(e) imposes

a duty to supplement incorrect or incomplete information, it does
not bestow upon litigants unfettered freedom to rely on
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supplements produced after a court-imposed deadline, even if the
rule's pretrial time limit is satisfied, and grants them no right
to produce information in a belated fashion.”

Id. (quoting Dag

Enterprises, Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 110
(D.D.C. 2005) (internal quotation marks omitted).

In other

words, plaintiffs cannot be allowed to use the defendants’
efforts in uncovering the flaws in Kroon’s report to hone the
methodology and submit a more robust report after their deadline
has expired.
Rule 37(c) provides that:
“If a party fails to provide
information or identify a witness
as required by Rule 26(a) or (e),
the party is not allowed to use
that information or witness to
supply evidence on a motion, at a
hearing, or at a trial, unless the
failure was substantially justified
or is harmless.”
Given the analysis above, there is no question that plaintiffs
are seeking to submit expert materials well after the deadline
for disclosure of expert reports.

Plaintiffs argue that the

delay in providing the supplemental report was substantially
justified because of the late production of discovery by
defendants.

As noted above, this would excuse the expert’s

failure to incorporate the late disclosed information into the

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report, but it does not excuse the expert’s methodological
failures in calculating the disputed time periods.
Plaintiffs also argue that the late submission is
harmless.

As of the filing of plaintiffs’ motion to file a

supplemental brief, more than two months had passed since the
deadline for the filing of expert reports, defendants had spent
time analyzing the original report, and defendants had deposed
plaintiffs’ expert; the deadline for submitting Daubert motions
was only a month away.

In seeking to submit the supplemental

report, plaintiffs were imposing on defendants to delay the
progression of the case and duplicate work they had already done
so that plaintiffs could take advantage of defendants’ diligence
in finding errors in the report of plaintiffs’ own expert.

The

unfairness of such a maneuver and imposition of additional costs
is not harmless.
While the Court does not find the lapse to be
substantially justified or harmless, the Court finds that Rule 1
of the Federal Rules of Civil Procedure counsels against complete
exclusion of the new information.

Rule 1's instruction that the

rules “should be construed and administered to secure the just,
speedy, and inexpensive determination of every action and
proceeding” indicate a preference for determination of cases on
the merits.

The corrected information is useful and necessary to
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the disposition of the case on the merits.

Thus, the Court is

inclined to invoke the discretion granted by Rule 37(c) to
fashion a lesser sanction than exclusion.
IT IS ORDERED:
1) Plaintiffs’ motion to file the additional expert
report of Daniel Regard is denied.
2) Plaintiffs’ motion to file a supplemental report of
Richard Kroon is granted to the extent that it incorporates the
additional discovery responses by defendants and corrects errors
that improperly inflated the calculation of the disputed periods.
3) Plaintiffs shall produce the supplemental report to
defendants no later than July 18, 2014.
4) Defendants shall be given the opportunity to depose
plaintiffs’ expert at plaintiffs’ expense no later than August 8,
2014.
5) All other pending motions will be denied without
prejudice (Filing Nos. 247, 256, 263 and 269 in 8:11CV401; Filing
Nos. 151, 160, 167 and 173 in 8:12CV307).

A planning conference

in the chambers of the undersigned is scheduled for:
Monday, August 25, 2014, at 9 a.m.
to establish new deadlines and a new trial date.

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6) Defendants shall submit for the Court’s
consideration all costs incurred as a result of the late
submission of plaintiffs’ supplemental expert report.
DATED this 7th day of July, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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