940 F.3d 425
8th Cir.2019Background
- Plaintiffs (class of trainee drivers) sued Werner Enterprises and Drivers Management under the FLSA and Nebraska law for unpaid wages during short rest breaks and while in sleeper berths arising from an eight‑week training program.
- The district court set a Rule 16(b) scheduling (progression) order requiring expert reports by January 15, 2014; Plaintiffs timely disclosed an expert report.
- After Defendants deposed Plaintiffs’ expert and identified serious methodological flaws, Plaintiffs moved—after the Rule 16 deadline—to file a revised (characterized by Plaintiffs as supplemental) expert report correcting those flaws.
- The district court concluded the revised report was not a proper Rule 26(e) supplement, found no good cause to modify the schedule under Rule 16(b), but nonetheless allowed the late disclosure as a lesser sanction under Rule 37(c)(1) and Rule 1 (ordering Plaintiffs to pay Defendants’ costs and permitting further deposition). The court also reset other deadlines.
- At trial the jury awarded $779,127 on the short‑rest‑break claim—the exact amount Plaintiffs’ revised expert calculated. The Eighth Circuit held the district court abused its discretion in allowing the late report without good cause, found the error not harmless, vacated the judgment, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court permissibly extended the Rule 16(b) expert‑disclosure deadline despite finding no good cause | Rule 37(c)(1) and Rule 1 allowed the court to impose a lesser sanction (permit late report + costs) instead of exclusion | Rule 16(b)(4) requires good cause to modify scheduling orders; Rule 37(c)(1) does not authorize bypassing Rule 16 | Vacated: district court abused discretion; Rule 16(b)’s good‑cause requirement is mandatory and cannot be avoided by Rule 37 or Rule 1 |
| Whether the revised expert report was a Rule 26(e) supplement or a new report subject to the scheduling deadline | The revisions were a permissible supplement under Rule 26(e) | Revisions materially altered the original report and were not new information; thus they are a new report subject to Rule 16(b) | Held to be a new, materially altered report (not a mere supplement) |
| Whether admitting the late expert report was harmless error | Admission did not prejudice Defendants; trial outcome should stand | Jury’s damages equaled expert’s calculations; admission directly affected verdict | Not harmless; expert’s testimony was decisive for damages, so error was prejudicial |
| Whether the district court could instead impose monetary sanctions (and allow use) under Rule 37(c)(1) | Court properly exercised discretion to impose costs rather than exclusion | Monetary sanction cannot substitute for the mandatory good‑cause requirement to modify a scheduling order | Eighth Circuit rejected using Rule 37 to excuse lack of Rule 16(b) good cause; remanded (district court’s alternative sanctions approach not upheld on this record) |
Key Cases Cited
- Flesner v. Bayer AG (In re Baycol Prods. Litig.), 596 F.3d 884 (8th Cir. 2010) (standard of review for scheduling‑order discretion)
- Sherman v. Winco Fireworks, Inc., 532 F.3d 709 (8th Cir. 2008) (Rule 16(b) good‑cause requirement is mandatory)
- Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748 (8th Cir. 2006) (district court has broad discretion enforcing progression orders; good cause requires diligence)
- Union Elec. Co. v. Energy Ins. Mut. Ltd., 689 F.3d 968 (8th Cir. 2012) (district court abuses discretion by applying incorrect legal standard)
- Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698 (8th Cir. 2018) (Rule 26 disclosure mandates enforced by Rule 37 sanctions)
- Williams v. TESCO Servs., Inc., 719 F.3d 968 (8th Cir. 2013) (distinguishing material alteration from mere clarification in expert reports)
- Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039 (8th Cir. 2000) (non‑harmless evidentiary error requiring reversal when jury relied on excluded evidence)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (referenced regarding timing of Daubert challenges)
- Wong v. Regents of Univ. of Cal., 410 F.3d 1052 (9th Cir. 2005) (sister‑circuit application of Rule 37 to undisclosed witnesses in summary‑judgment context)
- Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985 (10th Cir. 1999) (sister‑circuit precedent on untimely disclosure of damages theory and exclusion)