Few collective actions are tried, and even when they are, unexpected problems can easily arise. Those problems in a recent case led to the court vacating a jury verdict for the plaintiffs due to what might be characterized as an untimely expert report. But the case really came down to an initial expert report that used incorrect methodology to exaggerate damages, an approach that backfired badly for the plaintiffs.

The case of Petrone v. Werner Enterprises, Inc., Case No. 8:11CV401 (D. Neb. June 22, 2020), involved trainee truck drivers. The plaintiffs contended that during their training, they were not properly compensated for breaks of short duration (such as 15 minutes) or for time spent resting in the sleeper berth of their trucks. In 2011, they brought a collective action under the Fair Labor Standards Act and a class action under Nebraska law.

The court entered a fairly routine case management order that included a deadline for expert reports, a date the plaintiffs met. Subsequently, however, the defendant took the expert’s deposition and found numerous errors in his calculations. The expert, for example, in addition to double counting in some cases, failed to recognize breaks that stretched over midnight, thus breaking down longer breaks into two shorter ones. These issues caused the expert to overestimate significantly the amount of unpaid time. Based on the problems revealed during that deposition, the plaintiffs filed a “supplemental report” weeks after the expert’s deadline. Upon review, the district court found that the new report was not a supplement at all but rather an attempt to take advantage of the defendant’s effective cross-examination to fashion a new report.

The district court, however, permitted the plaintiffs to submit it anyway, and the case was tried. The jury returned a verdict in the exact amount the revised report had calculated for the short break claim, $779,127. By the way, there were 52,000 class members, so that worked out to about $15 per class member, hardly an overwhelming result. The jury also awarded nothing on the claim relating to time spent resting in sleeper berths.

The Eighth Circuit, however, reversed and remanded, finding that as the report was not timely and was not a supplemental report, it should have been excluded. Case No. 18-1574 (8th Cir. Oct. 10, 2019).

On remand, the district court found that the exclusion of the report was fatal to the plaintiffs’ claims. At its core, the case involved claims by more than 50,000 class members, and a jury could not be expected to perform all of the necessary calculations, nor had the plaintiffs preserved other methods, such as a Federal Rule of Evidence 1006 summary exhibit, to assist the finders of fact. As a result, following nine years of litigation, the court dismissed the case with prejudice.

Careful review of a plaintiff’s calculations often will reveal problems with methodology or assumptions, matters that are usually addressed in mediation. But as the Petrone case demonstrates, those problems ultimately can spell doom for the plaintiff’s case if not corrected early enough.

The bottom line: Inflated expert reports may help a plaintiff early on in collective and class litigation but also may spell doom if the case proceeds to trial.