Petrone v. Werner Enterprises, Inc. et al
MEMORANDUM AND ORDER - Defendants' renewed motion in limine (Filing No. 302 in 8:11CV401; Filing No. 204 in 8:12CV307) to exclude damage calculations and expert testimony by Richard Kroon is denied; Plaintiffs' motion in limine (Filing No. 306 in 8:11CV401; Filing No. 208 in 8:12CV307) to exclude defendants proposed rebuttal expert Robert Topel and to strike under Rule 26 is denied. Member Cases: 8:11-cv-00401-LES-FG3, 8:12-cv-00307-LES-FG3. Ordered by Senior Judge Lyle E. Strom. (GJG)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
PHILLIP PETRONE, et al.,
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC,
PHILLIP PETRONE, et al.,
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC,
MEMORANDUM AND ORDER
The matter is before the Court on two related motions.
The defendants renewed their motion in limine to exclude damage
calculations and expert testimony by Richard Kroon (Filing No.
302 in 8:11CV401; Filing No. 204 in 8:12CV307).
briefs in support of their motion, and an index of evidence in
The plaintiffs filed briefs in opposition and indices of
evidence, to which the defendants replied.
The plaintiffs filed
a motion in limine to exclude defendants’ rebuttal expert Robert
Topel (Filing No. 306 in 8:11CV401; Filing No. 208 in 8:12CV307).
The plaintiffs filed briefs and indices of evidence in support of
The defendants filed briefs in opposition and
indices of evidence, to which the plaintiffs replied.
considering the motions, briefs, submissions of evidence, and the
relevant law, the Court finds as follows.
Standard of Review
Federal Rule of Evidence 702 provides that expert
opinion testimony is permissible if it is based on scientific,
technical, or other specialized knowledge and will assist the
trier of fact.
It must be given by a person qualified as an
expert based on experience, training, or education.
proponent of the expert testimony must prove its admissibility by
a preponderance of the evidence.
Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
“The testimony must meet the following three criteria:
must be based upon sufficient facts or data; (2) it must be the
product of reliable principles and methods; and (3) the witness
must have applied the principles and methods reliably to the
facts of the case.”
Fast v. Applebee’s Intern., Inc., No. 06-
4146-CV-C-NKL, 2009 WL 2391775 *2 (W.D. MO. Aug. 3, 2008).
A trial judge has a gatekeeping responsibility to
“ensure that an expert’s testimony rests on a reliable foundation
and is relevant to the task at hand.”
Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238
(1999) (citing Daubert, 509 U.S. at 597).
Among the factors a
court should consider in its gatekeeping function to allow or
exclude expert testimony are (1) whether the methodology can and
has been tested; (2) whether the technique has been subjected to
peer review and publication; (3) the known or potential rate of
error of this methodology; and (4) whether the technique has been
generally accepted in the proper scientific community.
Daubert, 509 U.S. at 593-94.
The Supreme Court has concluded
that the same standards of reliability announced in Daubert also
apply to all expert testimony whether the testimony is
scientific, technical, or some other specialized knowledge.
Kumho Tire, 526 U.S. at 141.
Rule 702 is one of admissibility rather than exclusion.
Lauzon v. Senco Products, Inc., 270 F.3d 681, 686 (8th Cir.
Case law shows that rejection of expert testimony is the
exception rather than the rule.
Robinson v. GEICO Gen. Ins. Co.,
447 F.3d 1069, 1101 (8th Cir. 2006).
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.”
Daubert, 509 U.S. at 596.
I. Richard Kroon
The defendants Werner Enterprises, Inc. and Drivers
Management, LLC (collectively “Werner”), move this Court to
exclude Richard Kroon’s (“Kroon”) damage calculations and expert
Werner argues that Kroon’s damage calculations and
the opinions he seeks to offer at trial fail to meet the
requirements of Fed.R.Evid. 702 and should be excluded under
Kroon is a data analyst who regularly performs
calculations on large datasets for the purpose of determining
settlement allocations and damages in class action litigation.
Kroon is the Business Intelligence Developer of Kurtzman Carson
Kroon has worked as a computer data analyst since
Kroon performed damage calculations on data produced by
the defendants’ records.
The plaintiffs claim that Kroon’s
expertise is limited in scope.
Kroon’s expertise is sought to
calculate what the damages would be under plaintiffs’ theories of
liabilities if the plaintiffs prevail on the legal issues.
Werner provides the Court with multiple arguments on
why Kroon’s damage calculations and testimony should be excluded.
Werner argues that Kroon did not calculate damages accurately.
Werner also claims that Kroon’s testimony and calculations are
not sufficiently tied to the facts of the case.
Werner believes that Kroon’s testimony is unreliable because in
his first report he had over $11.2 million in errors.
claims that Kroon lacks a basic understanding of the facts and
assumptions which he relied upon because he followed the
instructions of plaintiffs’ counsel.
Finally, Werner argues that
Kroon’s testimony should be excluded because he relied upon
iDiscovery, which was not disclosed, and he should be prohibited
from serving as an expert by this Court (See Filing No. 275 in
The Court finds that Kroon is qualified to testify as
an expert in this action.
However, Kroon’s testimony will be
limited in scope to address only damage calculations under
plaintiffs’ theories of liabilities.
Kroon may not testify
outside of his expertise as a data analyst.
to Kroon’s testimony and calculations go more to the weight to be
afforded rather than admissibility.
Werner will have the
opportunity to cross-examine, present contrary evidence, and
highlight any weaknesses in Kroon’s methodology and/or
As a result, the motion to exclude the damage
calculation and testimony by Richard Kroon will be denied.
II. Robert Topel
The plaintiffs move this Court to exclude the testimony
of Dr. Robert Topel (“Dr. Topel”), defendants’ rebuttal expert.
The plaintiffs claim that Dr. Topel does not have the requisite
training or knowledge to be admissible under Fed.R.Evid. 702.
addition, the plaintiffs claim that Topel failed to submit a
report in compliance with Rule 26.
Dr. Topel is the Distinguished Service Professor of
Economics at the University of Chicago Booth School of Business,
Director of the George J. Stigler Center of the Study of the
Economy at the University of Chicago, and State and Co-Director
of the Energy Policy Institute at the University of Chicago.
Topel has a bachelor’s degree in economics and a Ph.D. in
Dr. Topel is a senior consultant for the Charles
River Associates, an economics consulting firm that specializes
in the application of economic theory and statistics to legal and
regulatory issues (Id.).
Dr. Topel has reviewed the Driver Log
Data, and Kroon’s reports and damage calculations.
308-2 at 42-43 in 8:11CV401).
Dr. Topel is being offered as a
rebuttal expert to Kroon’s damage calculations and testimony.
The plaintiffs argue that Dr. Topel’s opinion is not
based on any specialized knowledge, experience, training, skills,
In addition, plaintiffs claim that Dr. Topel’s
opinion is not based on sufficient facts or data.
also argue that Dr. Topel’s testimony and opinions will not be
helpful to the trier of fact.
Finally, the plaintiffs argue that
Dr. Topel is not qualified and should not be permitted to give an
opinion about the meaning of 29 C.F.R. § 785.22.
The Court finds that Dr. Topel is qualified to testify
as a rebuttal expert in this action.
Dr. Topel studied the same
materials as the plaintiffs’ expert Kroon, and it is offered to
rebut Kroon’s testimony and calculations.
Dr. Topel’s opinions
will be helpful to the trier of fact in determining the proper
The plaintiffs’ objections to Dr. Topel’s opinions go
more to weight than admissibility.
The plaintiffs will be able
to cross examine on these issues.
As a result, the plaintiffs’
motion to exclude Dr. Topel as a rebuttal expert will be denied.
In addition, the plaintiffs argue that Dr. Topel’s
report should be stricken because he failed to submit a report in
compliance with Federal Rule of Civil Procedure 26.
plaintiffs point to two subsections under Rule 26.
Fed.R.Civ.P. 26(a)(2)(B)(ii), an expert’s written report must
disclose facts or data considered by the witness in forming
The plaintiffs argue that Dr. Topel failed to
disclose that he relied on Werner’s counsel’s representation and
pick up and drop off times.
Second, Fed.R.Civ.P. 26(a)(2)(B)(vi)
requires the expert to provide a statement of the compensation
paid for the study and testimony.
Plaintiffs claim that Dr.
Topel has only provided an hourly rate and not the entire amount
paid for writing his report.
Under Federal Rule of Civil Procedure 37(c)(1), “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 . . . unless the
failure was substantially justified or is harmless.”
judge has broad discretion in deciding whether a Rule 26(a)
violation is substantially justified or harmless.”
Desmarais, 25 Fed. Appx. 155, 158 (4th Cir. 2002); Mid-America
Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1363 (7th
The Court has not found prejudice in regard to Dr.
Topel’s expert report.
Plaintiffs’ counsel has deposed Dr. Topel
on the issues not explicitly included in the expert report.
result, the Court will deny the plaintiffs’ request to strike the
report of Dr. Topel for failure to comply with Rule 26.
IT IS ORDERED:
1) Defendants’ renewed motion in limine (Filing No. 302
in 8:11CV401; Filing No. 204 in 8:12CV307) to exclude damage
calculations and expert testimony by Richard Kroon is denied;
2) Plaintiffs’ motion in limine (Filing No. 306 in
8:11CV401; Filing No. 208 in 8:12CV307) to exclude defendants
proposed rebuttal expert Robert Topel and to strike under Rule 26
DATED this 30th day of July, 2015.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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