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Date: 02-08-2023
Case Style:
Philip Petrone v. Werner Enterprises, Inc., et al.
Case Number: 8:11-cv-00401
Judge: Brian C. Buescher
Court: United States District Court for the District of Nebraska (Douglas County)
Plaintiff's Attorney:
Defendant's Attorney: Elizabeth A. Culhane, Joseph E. Jones, Kaitlin M. Piccolo, Patrick J. Barrett, Patrick S. Cooper, Boss G. Currie, Sidney R. Steinberger, Steven J. Schildt
Description: Omaha, Nebraska employment law lawyers represented Plaintiff, who sued Defendants on Fair Labor Standards Act violation theories.
As the Eighth Circuit Court of Appeals explained in its most recent opinion in this case, “This class action arises out of claims by commercial truck drivers who assert that they were not paid proper amounts while working for Werner Enterprises, Inc., and Drivers Management, LLC, (collectively Defendants) as part of Defendants' Student Driver Program.”[1] Somewhat more specifically, in a Second Amended Complaint, plaintiff Philip Petrone seeks unpaid wages for “unpaid rest breaks,” Filing 84 at 10-11 (¶¶ 50-61), and “unpaid sleeper berth time,” Filing 84 at 11-14 (¶¶ 62-82), on behalf of the class.[2] He asserts violations of the Fair Labor Standards Act (FLSA), the Nebraska Wage and Hour Act (NWHA), and the Nebraska Wage Payment Collection Act (NWPCA), as well as claims for unjust enrichment, breach of implied contract, and breach of contract. Filing 84 at 84-18 (¶¶ 83-113).
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Judge Smith Camp ruled that Plaintiffs could not prove damages based on Defendants' pay and time records for thousands of trainees and the application of “basic arithmetic” guided by a Federal Rule of Evidence 1006 exhibit summarizing the evidence. Filing 618 at 5. She explained that there was “clearly more analysis to be done of the evidence in this case than simple arithmetic,” where Plaintiffs' own expert made significant errors making his first report “likely inadmissible,” and a jury could not accurately determine damages for thousands of class members without expert testimony. Filing 618 at 5. As to other proof of damages, Judge Smith Camp found that the discovery deadline had expired six years earlier and that plaintiff had not provided a Rule 1006 exhibit or explained how it would be prepared, so the scheduling order would have to be amended, but there was no good cause to do so. Filing 618 at 6. She also found that Plaintiffs could not have proved damages but for the admission of Kroon's untimely expert report, so “the only proceeding consistent with the opinion of the Court of Appeals is dismissal of this action with prejudice.” Filing 618 at 6. Consequently, Judge Smith Camp granted Defendants' motion and dismissed this action with prejudice. Filing 618 at 6.
Petrone v. Werner Enters. (D. Neb. 2023)
Outcome: The Court has now performed the Rule 37(c)(1) analysis that was required in this case consistent with the opinion of the Eighth Circuit Court of Appeals and determined that exclusion of Plaintiffs' untimely expert evidence is the appropriate sanction. Likewise, the Court has now performed the Rule 706 analysis that was required in this case consistent with the opinion of the Court of Appeals and determined that appointment of an expert is inappropriate. Because the Court of Appeals determined that Plaintiffs cannot prove damages in this case without expert evidence and they now have none, it follows that Plaintiffs are not entitled to a new trial and that judgment shall enter in favor of Defendants on all claims. Accordingly, IT IS ORDERED that Plaintiffs' Motion for New Trial, Filing 610, is denied.
IT IS FURTHER ORDERED that Judgment shall enter in favor of Defendants and against Plaintiffs on all claims.
Plaintiff's Experts:
Defendant's Experts:
Comments: