Petrone v. Werner Enterprises, Inc. et al

Filing 396

MEMORANDUM AND ORDER - The defendants' motions (Filing No. 349 in 8:11CV401; Filing No. 251 in 8:12CV307) to exclude and/or strike plaintiffs' newly disclosed damage calculations are granted. The defendants' motions (Filing No. 386 in 8:11CV401; Filing No. 288 in 8:12CV307) to strike the December 2015 Declaration of Richard Kroon are 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

MEMORANDUM AND ORDER

This matter is before the Court on two related motions.
The defendants filed motions to strike the plaintiffs’ newly
disclosed damage calculations (Filing No. 349 in 8:11CV401;
Filing No. 251 in 8:12CV307).

In addition, the defendants filed

motions to strike the December 2015 Declaration of Richard Kroon
(Filing No. 386 in 8:11CV401; Filing No. 288 in 8:12CV307).1
After reviewing the motions, briefs, and applicable law, the
Court finds as follows.

1

Hereafter, all filing numbers reference the filing number
in Case No. 8:11CV401 (“Petrone I”), unless otherwise indicated.

Background
Defendants Werner Enterprises, Inc. and Drivers
Management, LLC (collectively “Werner”) operate an approximately
eight-week Student Driver Program as part of the training and
orientation for new drivers.

The plaintiffs brought this class

action claiming that Werner violated the Fair Labor Standards Act
(“FLSA”) and Nebraska wage and hour laws.
over 55,000 class members.

The class consists of

In August of 2015, this Court entered

summary judgment in favor of the plaintiffs (Filing No. 347).
However, on April 18, 2016, the Court vacated in part its summary
judgment order on the Nebraska Wage Payment and Collection Act
due to new Eighth Circuit precedent (Filing No. 395).
Plaintiffs hired Richard Kroon (“Kroon”) as an expert
to calculate damages in this case.

In January of 2014,

plaintiffs produced Kroon’s first expert report (Filing No. 186).
During a deposition, Kroon admitted to making over $11.2 million
in errors in his first report (See Filing No. 304-4).

The Court

allowed Kroon to file supplemental expert reports by August 1,
2014, to correct errors and include additional discovery
responses (See Filing Nos. 275, 280).

Kroon’s August 1, 2014,

expert report only included damage totals calculated on a weekly
basis.

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Werner moves this Court to strike plaintiff’s newly
disclosed damage calculations and the December 2015 declaration
of Kroon.

Werner argues that the new damage calculations were

disclosed a year after the extended expert deadline.

In

addition, the plaintiffs filed a declaration by Kroon in December
of 2015 attempting to explain the August 2015 damage
calculations.

The plaintiffs argue that the damage amounts were

previously disclosed, but not calculated on an hourly basis.
Werner claims that both the calculations and the declaration
should be stricken under Rule 26 of the Federal Rules of Civil
Procedure.
Law
Under the Federal Rules of Civil Procedure, a party is
required to disclose “a computation of each category of damages
claimed by the disclosing party -- who must also make available
for inspection . . . the documents or other evidentiary material,
unless privileged or protected from disclosure, on which each
computation is based . . . .”

Fed.R.Civ.P. 26(a)(1)(A)(iii).

Rule 26 also requires experts to disclose “a complete statement
of all opinions the witness will express and the basis and
reasons for them; the facts or data considered by the witness in
forming them; any exhibits that will be used to summarize or
support them.”

Fed.R.Civ.P. 26(a)(2)(B).
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“If a party fails to

provide information . . . 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 harmless.”

Fed.R.Civ.P.

37(c)(1).
The Eighth Circuit has stated that the Federal Rules
“permit a court to exclude untimely evidence unless the failure
to disclose was either harmless or substantially justified.”
Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir. 1998).
Failure to disclose information in a timely manner is equivalent
to failure to disclose.

See id. (citing Sylla-Swandon v.

Uniroyal Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir. 1995)).
“When fashioning a remedy, the district court should consider,
inter alia, the reason for noncompliance, the surprise and
prejudice to the opposing party, the extent to which allowing the
information or testimony would disrupt the order and efficiency
of the trial, and the importance of the information or
testimony.”

Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir.

2008)(citing Sellers v. Mineta, 350 F.3d 706, 711-12 (8th Cir.
2003)).
Discussion
Werner moves this Court to strike the plaintiffs’ newly
disclosed damage calculations and the December 2015 Declaration
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of Kroon.

The plaintiffs argue that the August 2015 spreadsheet

is substantially identical to the August 2014 spreadsheet, except
for the calculations to determine hour-by-hour minimum wage
damages.

In addition, the plaintiffs claim that the calculations

are not expert opinion but rather arithmetic.

The plaintiffs did

not file a brief in opposition to the motion to strike the
December 2015 declaration, but rely entirely on their opposition
to the motion to strike the newly disclosed damage calculations
(See Filing No. 392).

Both the damage calculations and the

declaration were disclosed past the expert discovery deadline and
without seeking leave from the Court to disclose such
information.

Even if the Court accepted the plaintiffs’ argument

that the newly disclosed calculations were not the result of any
expert opinion but simple arithmetic, they too were disclosed
past the fact discovery deadline of April 1, 2014 (See Filing No.
295).

Therefore, the issue before the Court is whether the

disclosures were substantially justified or harmless.
In assessing whether a disclosure is substantially
justified or harmless, courts may consider the following factors:
1) [T]he importance of the
excluded material; 2) the
explanation of the party for its
failure to comply with the required
disclosure; 3) the potential
prejudice that would arise from
allowing the material to be used at
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Trial, or on a Motion; and, 4) the
availability of a continuance to
cure such prejudice.
Tlamka v. Serrell, Case No. 97-CV-3212, 2002 WL 500656, *4 (D.
Neb. March 25, 2002)(citations omitted).
hour damage calculations are important.

In this case, hour-byHowever, the plaintiffs

have had ample time to produce such calculations within the court
ordered deadlines.

As early as June of 2014, it has been the

plaintiffs’ theory that the Nebraska wage and hour law violations
should be calculated on an hourly basis (See Filing No. 264 at
34-36).

In addition, the plaintiffs’ expert stated in his August

1, 2014 expert report that,
I understand Plaintiffs are also
seeking liability where minimum
wage is calculated on an hourly
basis (rather than a weekly basis)
. . . I am able to perform such
calculations (and in fact have
already done so as such math is
inherent in the calculations I
performed above) should the Court
determine liability under such a
basis.
(Filing No. 351-1, Exhibit C at 9).

Under the second factor, the

plaintiffs do not have an excuse for why they did not provide the
damage calculations on an hourly basis within the required
deadlines.
Under the third factor, the defendants would be
prejudiced if the newly disclosed damage calculations and Kroon’s
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declaration were used at trial or in support of a motion.

The

newly disclosed damages totals apply to 55,621 class members, and
contain more than 14,000 pages of spreadsheets.

In addition,

Kroon made $11.2 million in errors on his first calculations.
The damages in this case consist of complicated calculations.
The defendants would be highly prejudiced if the Court relied on
such calculations without the defendants’ ability to properly
analyze the calculations and depose Kroon on the new
calculations.
The fourth factor addresses whether a continuance could
cure such prejudice.

This case has been before the Court since

2011.

The Court has already extended many deadlines in this

case.

A continuance may cure some of the prejudice; however, the

case would be additionally prolonged, including depositions and
motion practice.

In considering all four factors together, the

Court cannot say that the plaintiffs’ disclosure of new damage
calculations in August of 2015, and Kroon’s declaration in
December of 2015, were substantially justified or harmless.

As a

result, the Court will grant the defendants’ motion to strike the
plaintiffs’ newly disclosed damages, and the December 2015
Declaration of Richard Kroon.

Accordingly,

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IT IS ORDERED:
1) The defendants’ motions (Filing No. 349 in
8:11CV401; Filing No. 251 in 8:12CV307) to exclude and/or strike
plaintiffs’ newly disclosed damage calculations are granted.
2) The defendants’ motions (Filing No. 386 in
8:11CV401; Filing No. 288 in 8:12CV307) to strike the December
2015 Declaration of Richard Kroon are granted.
DATED this 26th day of April, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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