Petrone v. Werner Enterprises, Inc. et al

Filing 348

ORDER - Defendants' motion to strike the May 2015 declaration of Richard Kroon is granted. 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.,

)
)
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

ORDER

This matter is before the Court on defendants’ motion
to strike the May 2015 declaration of Richard Kroon (Filing No.
327)1 and accompanying brief (Filing No. 328).

The plaintiffs

responded with a brief in opposition (Filing No. 331), to which
the defendants replied (Filing No. 339).

After reviewing the

motion, briefs, and relevant law, the Court will grant the
defendants’ motion.

1

All filing numbers reference the filing number in Case No.
11CV401 (“Petrone I”), unless otherwise indicated.

Defendants contend that Richard Kroon’s (“Kroon”)
declaration (See Filing No. 315) should be stricken as an
untimely expert report.

Plaintiffs argue that Kroon’s

declaration is for the purposes of rebutting the defendants’
expert Robert Topel’s (“Topel”) opinion on drop-off text
messages.

In addition, the plaintiffs state that Kroon’s

declaration is necessary for the Court to consider in the
plaintiffs’ Daubert challenges (Filing No. 331 at 7).
“Post-deposition contradictory affidavits are admitted
only when the prior deposition testimony shows confusion, and the
subsequent affidavit helps explain the contradiction.”
v. Mickes, 208 F.3d 702, 707 (8th Cir. 2000).

Cuffley

Kroon made clear

that he did not rely on the text message data in his damage
calculations because he found the data to be too unreliable (See
Filing No. 312 at Exhibit 1-A).

However, his May 2015

declaration includes damage calculations using the Trainee
Message Data.

The new damage calculations utilizing the text

message data is well beyond the expert report deadline, even
though Kroon had the data during the applicable time period.

The

defendants have not had the opportunity to depose Kroon on this
information.

The plaintiffs had the opportunity and did depose

Topel on this issue.

As a result, the Court will grant the

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defendants’ motion to strike the May 2015 Kroon declaration.
Accordingly,
IT IS ORDERED that defendants’ motion to strike the May
2015 declaration of Richard Kroon is granted.
DATED this 3rd day of August, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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