202500P.pdf   08/03/2022  Philip Petrone  v.  Werner Enterprises, Inc.
   U.S. Court of Appeals Case No:  20-2500
   U.S. District Court for the District of Nebraska - Omaha   
   [PUBLISHED] [Shepherd, Author, with Colloton and Wollman, Circuit Judges] 
   Civil case - Fair Labor Standards Act. In this class action commercial 
   truck drivers claimed they were not properly paid for off-duty time while 
   participating in defendants' student driver program. For the court's 
   previous opinion in the matter, vacating the jury's verdict and remanding 
   the matter, see Petrone v. Werner Enters., Inc., 940 F.3d 425 (8th Cir. 
   2019). On remand, the district court entered judgment for defendants, 
   concluding that without expert evidence, plaintiffs could not prove 
   damages. Plaintiffs appeal. On remand, the district court erred in failing 
   to conduct the requisite Rule 37(c)(1) analysis before excluding the 
   expert testimony; by moving for a new trial, plaintiffs sought to use the 
   untimely expert report to justify a new trial, which triggered the court's 
   obligation to conduct the Rule 37(c)(1) analysis; similarly, the district 
   court abused is discretion by failing to consider plaintiffs' Rule 706 
   request for appointment of a new expert; the district court did not err in 
   concluding that without testimony from an expert, plaintiffs could not 
   prove damages based on the pay and time data already offered in the case; 
   reversed and remanded for further proceedings.