United States Court of Appeals

For the Eighth Circuit

___________________________

No. 18-1574

___________________________

Philip Petrone, on behalf of themselves and all those similarly situated; Stewart

Fisher, on behalf of themselves and all those similarly situated; Jasbir Singh, on

behalf of themselves and all those similarly situated; Brian Pankz, on behalf of

themselves and all those similarly situated; Jason Dewayne Gunn; Ahmad

Abdinasir; Adam F. Akhalu; Latoshia Denise Anderson; Derek C. Anglero; Alan

Blane Arthur; Christopher Ayala; Timothy McCabe Bailey; Csaba G. Barabas;

Henry Barentine; Joseph E. Barker; Diego Barraza; Richard Clair Bash; Terry Lee

Batko; Elizabeth Baumgartel; Jeremy Alfred Bennett; Gary M. Bernstine; Stacy

Lynn Bluebird; Rafarel K. Boadu; Damien Marcus Boyer; Christina Bradley; Elias

Bratcher; Justin Bristol; Karl Matthew Emerson; Scott A. Larrow; Steve N. Neely;

Tonya McDonald; Micheal Anthony Brooks; Nicholas Brown; Olivia Bryant;

Lawrence F. Bunkowski; David Burgess; Steven Dale Burgess; Justin Burkholder;

Richard Calvert; Johnny Carter; Brett Carty; Joel Castaneda-Dominguez;

Lawrence Edward Cecil; Issac Houston Chase; Paul Cleaver; Thomas Ricky

Coker; Kenya Dyone Collins; Michael Ray Combs; Kenneth Ray Cook; Victor

Chavarria; Kenneth B. Cloud; Richard Copley; Howard Corley, Jr.; Jeffrey G.

Crissman; Jimmy Carl Criswell; Thomas Cross; Francisco Cruz; James Michael

Cullity; Kabik Daam; Wilson M. Dagaye; David Davila; Michael Scott Davis;

Jermey Leonard Dawson; Perry A. Deeke; David Andrew Delisi; Louis James

Dietry; John Michael Doss; Steven Dubinsky; Luis Duran Saldivar; Carl

Eberhardt; Harcourt P. Edgecombe; Douglas Allen Elbon; Terry Lee Elkins; Paul

Terry Elliott, Jr.; Mark C. Eure; Seth Fezatte; Roscoe W. Forman; Anthony Frank;

Nathaniel Anthony Frazier, Jr.; Ernest G. Fulp, Jr.; Peter Liyayi Gaitano; Jose

Garcia-Gonzalez; JoAnna Hancock Geddings; Clair Henry Gilmore, Jr.; Fred

Glass, III; John Christopher Glover; Jean Marie Gogolin; Steven Scott Goodman;

Tamaro R. Graham; Eric Franklin Green; August William Grow; Gary Eugene

Gude; Debra Paula Gugle; Fardrel J. Guice; Shaun Phillip Guthrie; Randy

Halcomb; Kathleen M. Hallmark; D’Andre LeMare Handy; John Robert Hardin;

Robert William Herrmann; Gail Marie Hess; Annette Fay Holder; Charles Roy

Honacher; Michael Hossler; Robert Edward Howes; Brett Allen Huckstep; Byron

Huffin; Loman Hutchings; Delandos Jackson; Morris Jacobs, Jr.; Daniel Jefferson;
Ciera Lillian Jenkins; Darrell Wayne Johnson; David Allen Jones; Michael T.

Jones; Willie Lee Jones, Sr.; Michael A. Karpouskas; Behzad Kazemiseresht;

Gary Ward Kennerly; Kristopher Kibby; Ronald L. Kilpatrick; Nathan Phillip

Koehler; Michael Kovacsi; Timothy Michael Kyser; Martha L. Lantz; Alonza

David Lee; Guertho Lemorin; Darran LaVan Lewis; Joshua Brooke Lipham;

Russell E. Lourwood; Paul Lowe; Stacey Marie Lowe; Krystel Lucas; Kevin L.

Maehrer; Jonathan Michael Magnuson; James Mancuso; Jeremy L. Maness;

Thomas C. Marchione; William Clyde Marks; David Jacob Marrs; Norrek

McCarty; Matthew Jay McDaniel; David Andrew McDevitt; Samuel Ray

McMillian; Doug Anthony McSwain; Jack Dean Michael; Steven Richard

Milstead; Robert John Monroe; Carl Montgomery; Gary C. Montgomery; Debra

A. Moore; Michael W. Moore; Clell Morgan, II; John Anthony Morris; Michael

Wayne Murray; Lorene Musabelli; Nathan Joel Nadell; Saleh M. Nasser; Chad

Michael Newsome; Aaron Jermain Nixon; Luis S. Ogando Colon; Peter B. Oh;

Marcus Oscar Orr; Christopher Otto; Donald Wade Owens; Charles D. Paglicco,

Jr.; James G. Paige, Jr.; Matthew Pereira; Michael Andrew Pertle; William James

Petty, Jr.; Jarrod Scott Pitts; Joseph Pusateri; Noel Ramirez; Steven M. Ramsey;

John Manson Ray; Heath Daniel Reams; Jasper U. Reaves; John Reddick;

Benjamin Reno; Oscar Reyes; Brandon Richard; Gregory Scott Vian Risdon;

Clarence Robinson; Rayo Emmiito Robinson; Barney Robson; Brandon Roldan;

William Thomas Roop; Curtis Ryals; Nickilas Sams; Franklin L. Schmidt, III;

Barbara Ann Scoby; Joseph Franklin Scott; Robert A. Scott, III; Vernon B.

Seaborn, Jr.; Michael A. Sederquist; Phillip Wayne Senecal; Guillermo

Serrano-Lopez; Pablo A. Serrano-Lopez; Charles Shackelford; Katherine P.

Shoemaker; Howard Arthur Singer; Harpal Singh; Dennis Dean Smith; Kyle

Anthony Smith; Randy Shane Smith; Timothy Leonardo Smith; Quitz Snider;

Richard Adam Solomon; Roman Stelter; Winston Stewart; Shawn Michael Stone;

Derick Lynn Sullins; James Julian Alan Surrency; Tim Swadley; George A. Tapia;

Shannon Leigh Terry; Noulieng Thisanakone; Dan Vilaythong; Erick Thompkins;

Brennon Thompson; Stephen Loyd Tillerson; David Wright Tillman; Kevin Toll;

Richard F. Torrisi; Jeffrey S. Torsrud; Gregory D. Trent; Jose Valentine; Luanne

Santoro Voght; Wayne Woodrow Waite; David C. Waldron; Marisa Sabrinda

Walker; Robert Wallace; Lance Wallace; Patrick Mark Walters; Steven Anthony

Wasson; Joseph Kane Weatherford; Derrick Earl Webb; Stacey Webb; Trey

Anthony Webber; Keeley Wheeler, Jr.; Johnny Keith White; Kacy Fonteze

Williams; Tiffany Nicole Williams; Steven M. Willis; Larry Nathaniel Clinton, Jr.;

Reia Winn; Marlon Dewayne Witcham; Devon Terelle Wofford; William Wood;

-2-
Mark Antonio Woods; Warren R. Wright; Carisma Concetta Weiss; James

Matthew Potts; Bryan James Pratt; David Frank Pressley; John Jason Pryor;

Robert Lee Plunkett

lllllllllllllllllllllPlaintiffs - Appellants

v.

Werner Enterprises, Inc., doing business as Werner Trucking; Drivers

Management, LLC

lllllllllllllllllllllDefendants - Appellees

___________________________

No. 18-1647

___________________________

Philip Petrone, on behalf of themselves and all those similarly situated; Stewart

Fisher, on behalf of themselves and all those similarly situated; Jasbir Singh, on

behalf of themselves and all those similarly situated; Brian Pankz, on behalf of

themselves and all those similarly situated; Jason Dewayne Gunn; Ahmad

Abdinasir; Adam F. Akhalu; Latoshia Denise Anderson; Derek C. Anglero; Alan

Blane Arthur; Christopher Ayala; Timothy McCabe Bailey; Csaba G. Barabas;

Henry Barentine; Joseph E. Barker; Diego Barraza; Richard Clair Bash; Terry Lee

Batko; Elizabeth Baumgartel; Jeremy Alfred Bennett; Gary M. Bernstine; Stacy

Lynn Bluebird; Rafarel K. Boadu; Damien Marcus Boyer; Christina Bradley; Elias

Bratcher; Justin Bristol; Karl Matthew Emerson; Scott A. Larrow; Steve N. Neely;

Tonya McDonald; Micheal Anthony Brooks; Nicholas Brown; Olivia Bryant;

Lawrence F. Bunkowski; David Burgess; Steven Dale Burgess; Justin Burkholder;

Richard Calvert; Johnny Carter; Brett Carty; Joel Castaneda-Dominguez;

Lawrence Edward Cecil; Issac Houston Chase; Victor Chavarria; Paul Cleaver;

Larry Nathaniel Clinton, Jr.; Kenneth B. Cloud; Thomas Ricky Coker; Kenya

Dyone Collins; Michael Ray Combs; Kenneth Ray Cook; Richard Copley;

Howard Corley, Jr.; Jeffrey G. Crissman; Jimmy Carl Criswell; Thomas Cross;

Francisco Cruz; James Michael Cullity; Kabik Daam; Wilson M. Dagaye; David

Davila; Michael Scott Davis; Jermey Leonard Dawson; Perry A. Deeke; David

Andrew Delisi; Louis James Dietry; John Michael Doss; Steven Dubinsky; Luis

-3-
Duran Saldivar; Carl Eberhardt; Harcourt P. Edgecombe; Douglas Allen Elbon;

Terry Lee Elkins; Paul Terry Elliott, Jr.; Mark C. Eure; Seth Fezatte; Roscoe W.

Forman; Anthony Frank; Nathaniel Anthony Frazier, Jr.; Ernest G. Fulp, Jr.; Peter

Liyayi Gaitano; Jose Garcia-Gonzalez; JoAnna Hancock Geddings; Clair Henry

Gilmore, Jr.; Fred Glass, III; John Christopher Glover; Jean Marie Gogolin;

Steven Scott Goodman; Tamaro R. Graham; Eric Franklin Green; August William

Grow; Gary Eugene Gude; Debra Paula Gugle; Fardrel J. Guice; Shaun Phillip

Guthrie; Randy Halcomb; Kathleen M. Hallmark; D’Andre LeMare Handy; John

Robert Hardin; Robert William Herrmann; Gail Marie Hess; Annette Fay Holder;

Charles Roy Honacher; Michael Hossler; Robert Edward Howes; Brett Allen

Huckstep; Byron Huffin; Loman Hutchings; Delandos Jackson; Morris Jacobs, Jr.;

Daniel Jefferson; Ciera Lillian Jenkins; Darrell Wayne Johnson; David Allen

Jones; Michael T. Jones; Willie Lee Jones, Sr.; Michael A. Karpouskas; Behzad

Kazemiseresht; Gary Ward Kennerly; Kristopher Kibby; Ronald L. Kilpatrick;

Nathan Phillip Koehler; Michael Kovacsi; Timothy Michael Kyser; Martha L.

Lantz; Alonza David Lee; Guertho Lemorin; Darran LaVan Lewis; Joshua Brooke

Lipham; Russell E. Lourwood; Paul Lowe; Stacey Marie Lowe; Krystel Lucas;

Kevin L. Maehrer; Jonathan Michael Magnuson; James Mancuso; Jeremy L.

Maness; Thomas C. Marchione; William Clyde Marks; David Jacob Marrs;

Norrek McCarty; Matthew Jay McDaniel; David Andrew McDevitt; Samuel Ray

McMillian; Doug Anthony McSwain; Jack Dean Michael; Steven Richard

Milstead; Robert John Monroe; Carl Montgomery; Gary C. Montgomery; Debra

A. Moore; Michael W. Moore; Clell Morgan, II; John Anthony Morris; Michael

Wayne Murray; Lorene Musabelli; Nathan Joel Nadell; Saleh M. Nasser; Chad

Michael Newsome; Aaron Jermain Nixon; Luis S. Ogando Colon; Peter B. Oh;

Marcus Oscar Orr; Christopher Otto; Donald Wade Owens; Charles D. Paglicco,

Jr.; James G. Paige, Jr.; Matthew Pereira; Michael Andrew Pertle; William James

Petty, Jr.; Jarrod Scott Pitts; Robert Lee Plunkett; James Matthew Potts; Bryan

James Pratt; David Frank Pressley; John Jason Pryor; Joseph Pusateri; Noel

Ramirez; Steven M. Ramsey; John Manson Ray; Heath Daniel Reams; Jasper U.

Reaves; John Reddick; Benjamin Reno; Oscar Reyes; Brandon Richard; Gregory

Scott Vian Risdon; Clarence Robinson; Rayo Emmiito Robinson; Barney Robson;

Brandon Roldan; William Thomas Roop; Curtis Ryals; Nickilas Sams; Franklin L.

Schmidt, III; Barbara Ann Scoby; Joseph Franklin Scott; Robert A. Scott, III;

Vernon B. Seaborn, Jr.; Michael A. Sederquist; Phillip Wayne Senecal; Guillermo

Serrano-Lopez; Pablo A. Serrano-Lopez; Charles Shackelford; Katherine P.

Shoemaker; Howard Arthur Singer; Harpal Singh; Dennis Dean Smith; Kyle

-4-
Anthony Smith; Randy Shane Smith; Timothy Leonardo Smith; Quitz Snider;

Richard Adam Solomon; Roman Stelter; Winston Stewart; Shawn Michael Stone;

Derick Lynn Sullins; James Julian Alan Surrency; Tim Swadley; George A. Tapia;

Shannon Leigh Terry; Noulieng Thisanakone; Dan Vilaythong; Erick Thompkins;

Brennon Thompson; Stephen Loyd Tillerson; David Wright Tillman; Kevin Toll;

Richard F. Torrisi; Jeffrey S. Torsrud; Gregory D. Trent; Jose Valentine; Luanne

Santoro Voght; Wayne Woodrow Waite; David C. Waldron; Marisa Sabrinda

Walker; Robert Wallace; Lance Wallace; Patrick Mark Walters; Steven Anthony

Wasson; Joseph Kane Weatherford; Derrick Earl Webb; Stacey Webb; Trey

Anthony Webber; Keeley Wheeler, Jr.; Johnny Keith White; Kacy Fonteze

Williams; Tiffany Nicole Williams; Steven M. Willis; Reia Winn; Marlon

Dewayne Witcham; Devon Terelle Wofford; William Wood; Mark Antonio

Woods; Warren R. Wright; Carisma Concetta Weiss

lllllllllllllllllllllPlaintiffs - Appellees

v.

Werner Enterprises, Inc., doing business as Werner Trucking; Drivers

Management, LLC

lllllllllllllllllllllDefendants - Appellants

___________________________

No. 18-2116

___________________________

Philip Petrone, on behalf of themselves and all those similarly situated; Stewart

Fisher, on behalf of themselves and all those similarly situated; Jasbir Singh, on

behalf of themselves and all those similarly situated; Brian Pankz, on behalf of

themselves and all those similarly situated; Jason Dewayne Gunn; Ahmad

Abdinasir; Adam F. Akhalu; Latoshia Denise Anderson; Derek C. Anglero; Alan

Blane Arthur; Christopher Ayala; Timothy McCabe Bailey; Csaba G. Barabas;

Henry Barentine; Joseph E. Barker; Diego Barraza; Richard Clair Bash; Terry Lee

Batko; Elizabeth Baumgartel; Jeremy Alfred Bennett; Gary M. Bernstine; Stacy

Lynn Bluebird; Rafarel K. Boadu; Damien Marcus Boyer; Christina Bradley; Elias

Bratcher; Justin Bristol; Karl Matthew Emerson; Scott A. Larrow; Steve N. Neely;

-5-
Tonya McDonald; Micheal Anthony Brooks; Nicholas Brown; Olivia Bryant;

Lawrence F. Bunkowski; David Burgess; Steven Dale Burgess; Justin Burkholder;

Richard Calvert; Johnny Carter; Brett Carty; Joel Castaneda-Dominguez;

Lawrence Edward Cecil; Issac Houston Chase; Paul Cleaver; Thomas Ricky

Coker; Kenya Dyone Collins; Michael Ray Combs; Kenneth Ray Cook; Victor

Chavarria; Kenneth B. Cloud; Richard Copley; Howard Corley, Jr.; Jeffrey G.

Crissman; Jimmy Carl Criswell; Thomas Cross; Francisco Cruz; James Michael

Cullity; Kabik Daam; Wilson M. Dagaye; David Davila; Michael Scott Davis;

Jermey Leonard Dawson; Perry A. Deeke; David Andrew Delisi; Louis James

Dietry; John Michael Doss; Steven Dubinsky; Luis Duran Saldivar; Carl

Eberhardt; Harcourt P. Edgecombe; Douglas Allen Elbon; Terry Lee Elkins; Paul

Terry Elliott, Jr.; Mark C. Eure; Seth Fezatte; Roscoe W. Forman; Anthony Frank;

Nathaniel Anthony Frazier, Jr.; Ernest G. Fulp, Jr.; Peter Liyayi Gaitano; Jose

Garcia-Gonzalez; JoAnna Hancock Geddings; Clair Henry Gilmore, Jr.; Fred

Glass, III; John Christopher Glover; Jean Marie Gogolin; Steven Scott Goodman;

Tamaro R. Graham; Eric Franklin Green; August William Grow; Gary Eugene

Gude; Debra Paula Gugle; Fardrel J. Guice; Shaun Phillip Guthrie; Randy

Halcomb; Kathleen M. Hallmark; D’Andre LeMare Handy; John Robert Hardin;

Robert William Herrmann; Gail Marie Hess; Annette Fay Holder; Charles Roy

Honacher; Michael Hossler; Robert Edward Howes; Brett Allen Huckstep; Byron

Huffin; Loman Hutchings; Delandos Jackson; Morris Jacobs, Jr.; Daniel Jefferson;

Ciera Lillian Jenkins; Darrell Wayne Johnson; David Allen Jones; Michael T.

Jones; Willie Lee Jones, Sr.; Michael A. Karpouskas; Behzad Kazemiseresht;

Gary Ward Kennerly; Kristopher Kibby; Ronald L. Kilpatrick; Nathan Phillip

Koehler; Michael Kovacsi; Timothy Michael Kyser; Martha L. Lantz; Alonza

David Lee; Guertho Lemorin; Darran LaVan Lewis; Joshua Brooke Lipham;

Russell E. Lourwood; Paul Lowe; Stacey Marie Lowe; Krystel Lucas; Kevin L.

Maehrer; Jonathan Michael Magnuson; James Mancuso; Jeremy L. Maness;

Thomas C. Marchione; William Clyde Marks; David Jacob Marrs; Norrek

McCarty; Matthew Jay McDaniel; David Andrew McDevitt; Samuel Ray

McMillian; Doug Anthony McSwain; Jack Dean Michael; Steven Richard

Milstead; Robert John Monroe; Carl Montgomery; Gary C. Montgomery; Debra

A. Moore; Michael W. Moore; Clell Morgan, II; John Anthony Morris; Michael

Wayne Murray; Lorene Musabelli; Nathan Joel Nadell; Saleh M. Nasser; Chad

Michael Newsome; Aaron Jermain Nixon; Luis S. Ogando Colon; Peter B. Oh;

Marcus Oscar Orr; Christopher Otto; Donald Wade Owens; Charles D. Paglicco,

Jr.; James G. Paige, Jr.; Matthew Pereira; Michael Andrew Pertle; William James

-6-
Petty, Jr.; Jarrod Scott Pitts; Joseph Pusateri; Noel Ramirez; Steven M. Ramsey;

John Manson Ray; Heath Daniel Reams; Jasper U. Reaves; John Reddick;

Benjamin Reno; Oscar Reyes; Brandon Richard; Gregory Scott Vian Risdon;

Clarence Robinson; Rayo Emmiito Robinson; Barney Robson; Brandon Roldan;

William Thomas Roop; Curtis Ryals; Nickilas Sams; Franklin L. Schmidt, III;

Barbara Ann Scoby; Joseph Franklin Scott; Robert A. Scott, III; Vernon B.

Seaborn, Jr.; Michael A. Sederquist; Phillip Wayne Senecal; Guillermo

Serrano-Lopez; Pablo A. Serrano-Lopez; Charles Shackelford; Katherine P.

Shoemaker; Howard Arthur Singer; Harpal Singh; Dennis Dean Smith; Kyle

Anthony Smith; Randy Shane Smith; Timothy Leonardo Smith; Quitz Snider;

Richard Adam Solomon; Roman Stelter; Winston Stewart; Shawn Michael Stone;

Derick Lynn Sullins; James Julian Alan Surrency; Tim Swadley; George A. Tapia;

Shannon Leigh Terry; Noulieng Thisanakone; Dan Vilaythong; Erick Thompkins;

Brennon Thompson; Stephen Loyd Tillerson; David Wright Tillman; Kevin Toll;

Richard F. Torrisi; Jeffrey S. Torsrud; Gregory D. Trent; Jose Valentine; Luanne

Santoro Voght; Wayne Woodrow Waite; David C. Waldron; Marisa Sabrinda

Walker; Robert Wallace; Lance Wallace; Patrick Mark Walters; Steven Anthony

Wasson; Joseph Kane Weatherford; Derrick Earl Webb; Stacey Webb; Trey

Anthony Webber; Keeley Wheeler, Jr.; Johnny Keith White; Kacy Fonteze

Williams; Tiffany Nicole Williams; Steven M. Willis; Reia Winn; Larry Nathaniel

Clinton, Jr.; Marlon Dewayne Witcham; Devon Terelle Wofford; William Wood;

Mark Antonio Woods; Warren R. Wright; Carisma Concetta Weiss; James

Matthew Potts; Bryan James Pratt; David Frank Pressley; John Jason Pryor;

Robert Lee Plunkett

lllllllllllllllllllllPlaintiffs - Appellants

v.

Werner Enterprises, Inc., doing business as Werner Trucking; Drivers

Management, LLC

lllllllllllllllllllllDefendants - Appellees

____________

Appeals from United States District Court 

for the District of Nebraska - Omaha

____________

-7-
Submitted: May 14, 2019

Filed: October 10, 2019

____________

Before COLLOTON, BEAM, and SHEPHERD, Circuit Judges.

____________

SHEPHERD, Circuit Judge.

Philip Petrone and others (collectively, Plaintiffs) filed a class action against

Werner Enterprises, Inc. and Drivers Management, LLC (collectively, Defendants)

arising out of an eight-week student-driver training program operated by Defendants

and intended for new truck drivers. Plaintiffs alleged violations of the Fair Labor

Standards Act (FLSA), 29 U.S.C. § 201 et seq., and Nebraska law, and sought

compensation for unpaid wages allegedly earned during off-duty time spent on short

rest breaks and while resting in their trucks’ sleeper berths. Before trial, the district

court granted Plaintiffs’ motion to modify the court’s previously entered Rule 16(b)

progression order and extend the deadline for disclosure of expert reports after the

court-imposed deadline had expired.

Following a three-day trial,the jury awarded Plaintiffs $779,127.00 in damages

for their short-rest-break claims and found Defendants not liable on Plaintiffs’

sleeper-berth claims. After trial, the district court awarded Plaintiffs a reduced

amount of liquidated damages under the FLSA and a reduced amount of attorney’s

fees, nontaxable costs, and expenses; refused to award Plaintiffs certain taxable costs

due to their failure to comply with a local rule; and awarded costs to Defendants on

the sleeper-berth claims as the prevailing party.

Plaintiffs appeal the district court’s post-trial rulings, and Defendants crossappeal the court’s pre-trial ruling. We agree with Defendants that the district court 

abused its discretion by granting Plaintiffs’ request to extend the Rule 16(b)

-8-
disclosure deadline, despite finding that good cause for the extension had not been

shown, based on an erroneous application of Rule 37(c)(1). Having jurisdiction

under 28 U.S.C. § 1291, we vacate the judgment and remand.

I.

Because it is dispositive, we begin with Defendants’ cross-appeal, and recite

only the facts necessary to the disposition of that issue. By a “progression order”

entered on July 3, 2013, the district court set January 15, 2014 as the deadline for the

parties to disclose expert witness reports. Plaintiffs timely disclosed their expert

reports. However, Defendants’ deposition of Plaintiffs’ expert “reveal[ed]

considerable flaws in the methodology for computing the allegedly uncompensated

break and sleeper-berth time.” Mem. & Order 2, Dist. Ct. Dkt. 275. For instance, 1

“some times were double counted and some periods were artificially split into two

separate breaks when they spanned 12:00 a.m.[,]” which resulted in “inconsistent and

inflated estimates of the disputed time periods[,]” and Plaintiffs’ expert “admitted as

much in his deposition.” Mem. & Order 2-3. 

Well after the court-imposed deadline for the filing of expert reports had

passed, Plaintiffs, “pursuant to Rule 16(b),” moved to “modify[] the Progression

Order to permit [them] to file a supplemental expert report[,]” which corrected the

flaws that the expert’s deposition had revealed. Mot. to Modify Progression Order

1, Dist. Ct. Dkt. 234.

The district court declined to characterize the belated expert report as a

“supplement” because a supplement “means correcting inaccuracies, or filling the

interstices of an incomplete report based on information that was not available at the

time of the initial disclosure.” Mem. & Order 3 (citations omitted). The court

We will refer to filings made in No. 8:11-cv-00401 when citing the district

1

court’s docket.

-9-
determined that nothing “precluded plaintiffs’ expert from recognizing the flaws in

his original report[;] he simply failed to do so.” Mem. & Order 3.

The district court stated that, although Rule 26(e) “imposes a duty to

supplement incorrect or incomplete information, it does not bestow upon litigants

unfettered freedom to rely on supplements produced after a court-imposed deadline,

even if the rule’s pretrial time limit is satisfied, and grants them no right to produce

information in a belated fashion.” Mem. & Order 3-4 (citation omitted). The court

explained that Plaintiffs could not “use the defendants’ efforts in uncovering the

flaws in [the expert]’s report to hone the methodology and submit a more robust

report after their deadline has expired.” Mem. & Order 4. The court emphasized that

more than two months had passed since the deadline for the filing of

expert reports, defendants had spent time analyzing the original report,

and defendants had deposed plaintiffs’ expert; the deadline for

submitting Daubert motions was only a month away. In seeking to [2]

submit the supplemental report, plaintiffs were imposing on defendants

to delay the progression of the case and duplicate work they had already

done so that plaintiffs could take advantage of defendants’ diligence in

finding errors in the report of plaintiffs’ own expert. The unfairness of

such a maneuver and imposition of additional costs is not harmless.

Mem. & Order 5.

Although the district court found no good cause to extend the disclosure

deadline, it determined that, while the delay was neither “substantially justified” nor

“harmless” under Rule 37(c), Rule 1 “counsels against complete exclusion of the new

information” because it provides “that the rules should be construed and administered

to secure the just, speedy, and inexpensive determination of every action and

proceeding” and “indicate[s] a preference for determination of cases on the merits.” 

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 2

-10-
Mem. & Order 5 (internal quotation marks omitted). Because “[t]he corrected

information [was] useful and necessary to the disposition of the case on the merits[,]”

the court was “inclined to invoke the discretion granted by Rule 37(c) to fashion a

lesser sanction than exclusion.” Mem. & Order 5-6.

Accordingly, the district court extended the disclosure deadline and denied all

other pending motions without prejudice. Mem. & Order 6. The court also scheduled

a planning conference “to establish new deadlines and a new trial date.” Mem. &

Order 6. And the court provided Defendants with an opportunity, at Plaintiffs’

expense, to depose Plaintiffs’ expert about the purported supplemental report, and

awarded Defendants costs incurred by virtue of the late submission of the report. 

Mem. & Order 6-7.

III.

Defendants argue that the district court erred in granting Plaintiffs’ motion to

extend the deadline for disclosing expert reports, despite finding that no good cause

had been shown for the extension. Our review is “for clear and prejudicial abuse of

discretion[,]” Flesner v. Bayer AG (In re Baycol Prods. Litig.), 596 F.3d 884, 888

(8th Cir. 2010) (internal citation omitted), and de novo over “whether the district

court applied the correct legal standard in exercising that discretion[.]” Sherman v.

Winco Fireworks, Inc., 532 F.3d 709, 714 (8th Cir. 2008). “A district court abuses

its discretion when it applies an incorrect legal standard[.]” Union Elec. Co. v.

Energy Ins. Mut. Ltd., 689 F.3d 968, 970 (8th Cir. 2012) (internal citation omitted).

Rule 26(a)(2) provides that a party must disclose the identity of any expert

witness along with a written report of such expert, while Rule 26(e) imposes an

obligation on the partiesto supplement incorrect or incomplete information. Rule 26

also establishes the timing and sequence of such disclosures absent a court order

setting these deadlines. Under Rule 16, a court “must issue a scheduling order” and

-11-
such an order “must limit the time to . . . complete discovery[] and file motions.” Fed.

R. Civ. P. 16(b)(1), (3)(A). “The scheduling order may . . . modify the timing of

disclosures under Rule 26(a) . . . [and] set dates for pretrial conferences and for

trial[.]” Fed. R. Civ. P. 16(b)(3)(B)(i), (vi). A “district court has broad discretion in

establishing and enforcing the deadlines.” Marmo v. Tyson Fresh Meats, Inc., 457

F.3d 748, 759 (8th Cir. 2006). However, “[a] schedule may be modified only for

good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); Marmo, 457 F.3d

at 759. In other words, the “good-cause standard is not optional.” Sherman, 532 F.3d

at 716. “To establish good cause, a party must show its diligence in attempting to

meet the progression order.” Marmo, 457 F.3d at 759.

We agree with the district court that Plaintiffs did not show good cause to

modify and extend the Rule 16(b) deadline. Plaintiffs’ expert’s substantial revisions

to his original report came only after Defendants revealed significant flaws in the

original report. Although Plaintiffs’ motion framed the revised expert report as a

mere supplement under Rule 26(e), Plaintiffs’ expert was “materially altering, not

merely clarifying his original report,” Williams v. TESCO Servs., Inc., 719 F.3d 968,

976 (8th Cir. 2013), and there is no evidence that Plaintiffs subsequently learned of

information that was previously unknown or unavailable to them. The district court

correctly determined that the revised report is not a Rule 26(e) supplement; it is more

appropriately characterized as a new, distinctreport subject to theRule 16(b) deadline

for expert disclosures. As the district court noted, nothing “precluded plaintiffs’

expert from recognizing the flaws in his original report[;] he simply failed to do so.” 

Mem. & Order 3. Plaintiffs thus failed to show the requisite good cause to extend the

expert disclosure deadline.

Nevertheless, relying on Rules 1 and 37(c)(1), the district court modified the

schedule, extended the deadline to disclose expert reports. This was error. Nothing

in the text of either rule allowed the district court to bypass the mandatory good-cause

standard under Rule 16(b)(4). Indeed, such a reading “would render scheduling

-12-
orders meaningless and effectively . . . read Rule 16(b) and its good cause

requirement out of the Federal Rules of Civil Procedure.” Sherman, 532 F.3d at

716 (alteration in original) (citation omitted) (discussing interplay between Rule

16(b) and Rule 15). Moreover, the court’s reliance on Rule 1 to support its ruling is

contrary to the general rule that the “[a]dherence to progression order deadlines is

critical to achieving the primary goal of the judiciary: ‘to serve the just, speedy, and

inexpensive determination of every action.’” Marmo, 457 F.3d at 759 (quoting Fed.

R. Civ. P. 1).

Additionally, Rule 37(c)(1) was unavailable to the district court. “The

disclosure mandates in Rule 26 are given teeth by the threat of sanctions in Rule 37.” 

Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 702 (8th Cir. 2018)

(citing 8B Charles A. Wright, Arthur R. Miller et al., Federal Practice & Procedure

§ 2289.1 (3d ed. 2018)). However, by its terms, Rule 37(c)(1) applies only when a

party fails to comply with Rule 26(a) and then seeks to use the information “on a

motion, at a hearing, or at a trial.” Fed. R. Civ. P. 37(c)(1). Rule 37(c)(1) says

nothing about its applicability when a court considers a motion, pursuant to Rule

16(b), to amend a progression order and extend the deadline for Rule 26 disclosures.

3

The order appealed from in this case, which extended the Rule 16(b) disclosure

deadline and permitted Plaintiffs to disclose the new report within the new disclosure

deadline, clearly did not involve an attempt by Plaintiffs to “use that information or

witness to supply evidence on a motion, at a hearing, or at a trial.” Fed. R. Civ. P.

“[Rule 37(c)(1)] provides a self-executing sanction for failure to make a

3

disclosure required by Rule 26(a), without need for a motion under subdivision

(a)(2)(A). Paragraph (1) prevents a party from using as evidence any witnesses or

information that, without substantial justification, has not been disclosed as required

by Rules 26(a) and 26(e)(1). This automatic sanction provides a strong inducement

for disclosure of material that the disclosing party would expect to use as evidence,

whether at a trial, at a hearing, or on a motion . . . .” Fed. R. Civ. P. 37(c)(1) advisory

committee’s note.

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37(c)(1). To the contrary, by their motion for extension of the disclosure deadline,

Plaintiffs sought to bring their disclosure of the new report into compliance with Rule

26(a) so that the disclosed information would not be excluded under the terms ofRule

37(c)(1) at a later hearing or trial, nor would Plaintiffs be subject to other sanctions

when use of the information was attempted.

The dissent’s statement that Rule 37(c)(1) “addresses what to do if a party fails

to provide information as required by Rule 26(a)” is incomplete. Rule 37(c)(1)

addresses what to do if a party fails to disclose information as required by Rule 26(a)

and attempts to use that information on a motion, at a hearing, or at a trial. The cases

from our sister circuits cited by the dissent bear this out; each involves a failure to

disclose information and a later attempted use “on a motion, at a hearing, or at a

trial.” Fed. R. Civ. P. 37(c)(1); see Wong v. Regents of Univ. of Cal., 410 F.3d 1052,

1060-62 (9th Cir. 2005) (attempting to include in summary judgment briefing

witnesses which had not been disclosed); Woodworker’s Supply, Inc. v. Principal

Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (considering failure to disclose

damagestheory until trial); see also Vanderberg, 906 F.3d at 703-05 (concluding that

the district court did not abuse its discretion under Rule 37(c)(1) in excluding

undisclosed doctor’s statements which plaintiff sought to use in response to

defendant’s motion for summary judgment); Design Strategy, Inc. v. Davis, 469 F.3d

284, 293-97 (2d Cir. 2006) (concluding that the district court did not abuse its

discretion in barring plaintiff, pursuant to Rule 37(c)(1), from calling two expert

witnesses at trial to testify regarding lost profits when it had not previously disclosed

witnesses, in violation of Rule 26(a)).

4

At the time of the district court’s order it remained to be seen whether the

4

Plaintiffs would attempt to “use” the newly disclosed expert report. And since

Plaintiffs’ disclosure of the new expert report obviously complied with the extended

disclosure deadline, if Plaintiffs were to have later “used” the information, Rule

37(c)(1) would have been inapplicable because the rule requires the failure of a party

“to provide information or identify a witness as required by Rule 26(a) or (e).”

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Accordingly, the district court, having found no good cause for extension of

the Rule 16(b) disclosure deadline to permit the late disclosure of Plaintiffs’ new

expert report, abused its discretion in granting Plaintiffs’ motion to modify the

progression order and to allow disclosure of the new expert report after the courtimposed deadline.

Notwithstanding the district court’s error, we will affirmunless Defendants can

show the error was not harmless. See Sherman, 532 F.3d at 718; Crane v. Crest

Tankers, Inc., 47 F.3d 292, 296-97 (8thCir. 1995) (concluding that the district court’s

error in admitting certain evidence was not harmless because “the jury’s damage

award would [not] have been the same absent the erroneous admission”).

Defendants moved to exclude all of Plaintiffs’ expert’s damages calculations

and testimony, which the district court denied, without prejudice, when it modified

the progression order and allowed Plaintiffs to file the late report. The court found

that the information in the report was “useful and necessary to the disposition of the

case on the merits.” Mem. & Order 5-6. The jury awarded $779,127.00 in damages

on Plaintiffs’ short-rest-break claims, an amount identical to Plaintiffs’ expert’s

testimony at trial. Compare 3 Trial Tr. 475, Dist. Ct. Dkt. 548 (expert testimony),

with 5 Trial Tr. 680, Dist. Ct. Dkt. 550 (jury verdict). Plaintiffs offered no other

expert testimony at trial on damages for their short-rest-break claims. See, e.g., 4

Trial Tr. 670-71, Dist. Ct. Dkt. 549 (requesting that the jury “award the damages that

[the expert] calculated; $779,127 for the short rest break claim”).

The jury clearly relied on Plaintiffs’ expert’s opinion in reaching its

$779,127.00 damages award. We cannot say that its award would have been the same

without the new information and, therefore, the district court’s error was not

harmless. Cf. Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1057 (8th Cir.

2000) (concluding that the admission of deficient expert testimony constituted

reversible error because the expert’s opinion formed the basis for damages and “the

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jury clearly relied on his opinion in reaching its verdict because the damages it

awarded . . . were identical to the” expert’s calculations).

IV.

For the foregoing reasons, we vacate the judgment and remand the case to the

district court for proceedings consistent with this opinion. Because we vacate the

judgment, we need not address the remaining argumentsin Defendants’ cross-appeal

and in Plaintiffs’ appeal.

COLLOTON, Circuit Judge, dissenting.

The Federal Rules of Civil Procedure provide for the district court to establish

a scheduling order, to modify a scheduling order for good cause, and to sanction a

party that fails to comply with a scheduling order regarding disclosure of expert

reports. In this case, the plaintiffs sought to submit a supplemental expert report after

the deadline in the scheduling order. The district court did not find good cause to

modify the schedule, and thus concluded that the plaintiffs should be sanctioned for

their late submission. Rather than exclude the late report entirely, the court exercised

its discretion to impose a lesser sanction: plaintiffs were permitted to file the

untimely expert report, but they were required to pay the defendants costs in the

amount of $61,222.14 that were incurred as a result of the tardy submission. I

conclude that the court’s order was consistent with the rules of procedure and a

permissible exercise of discretion.

Rule 16(b)(1) requires the district court to issue a scheduling order. The order

in this case required the parties to disclose expert reports by January 15, 2014. The

plaintiffs sought to disclose the revised expert report in March 2014. The district

court correctly concluded that the report was not a proper supplement under Rule

26(e). The court found instead that the plaintiffs were “seeking to submit expert

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materials well after the deadline for disclosure of expert reports,” and treated the

revision as an ordinary expert report under Rule 26(a)(2)(B).

Another provision on scheduling, Rule 16(b)(4), provides that a schedule may

be modified “only for good cause and with the judge’s consent.” The plaintiffs did

not establish good cause to modify the schedule for disclosing expert reports, so the

revised report was untimely. The court concludes that the analysis stops there, but

lack of good cause under Rule 16(b) is not the end of the matter.

The time to disclose expert reports is governed by Rule 26(a)(2)(D), which in

turn incorporates the deadline of the court’s scheduling order. A party who makes

an untimely disclosure of an expert report violates Rule 26(a). But another rule of

civil procedure addresses what to do if a party failsto provide information asrequired

by Rule 26(a).

Rule 37(c)(1), entitled “Failure to Disclose or Supplement,” provides:

If a party fails to provide information . . . as required by Rule 26(a) . . . ,

the party is not allowed to use that information . . . to supply evidence

on a motion, at a hearing, or at a trial, unless the failure was

substantially justified or is harmless. In addition to or instead of this

sanction, the court, on motion and after giving an opportunity to be

heard . . . may order payment of the reasonable expenses, including

attorney’s fees, caused by the failure . . . .

As several courts have recognized, when a party lacks good cause to modify

a scheduling order, and thus violates Rule 26(a) by making a late disclosure, the

inquiry turns to Rule 37(c)(1). If the failure to comply with Rule 26(a) “was

substantially justified or is harmless,” then the untimely report may be used at trial

despite the violation. Fed. R. Civ. P. 37(c)(1). If neither of those criteria is satisfied,

then the court must determine the appropriate sanction under Rule 37(c)(1). See

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Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060-62 (9th Cir. 2005);

Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th

Cir. 1999); Vinson v. Mich. Dep’t of Corr., No. 14-11130, 2018 WL 1312400, at *2

(E.D. Mich. Mar. 14, 2018); Simmons v. Corizon Health, Inc., No. 1:14cv730, 2016

WL 4537744, at *3 n.5 (M.D.N.C. Aug. 29, 2016); Paulus v. Holimont, Inc., 315

F.R.D. 13, 15-18 (W.D.N.Y 2016); Hawk-Beauchman v. Romo, No. CV-13-57-GFBMM-JTJ, 2015 WL 12780572, at *1-3 (D. Mont. Jan. 22, 2015); Tetzlaff v. Educ.

Credit Mgmt. Corp., 521 B.R. 875, 879 & n.1 (E.D. Wis. 2014); Schardine v. Estate

of Fleming, No. CV 13-63-BU-DWM-JCL, 2014 WL 2918420, at *2-3 (D. Mont.

June 26, 2014); Ratcliff v. City of Red Lodge, No. CV 12-79-BLG-DWM-JCL, 2013

WL 5817210, at *2-3 (D. Mont. Oct. 29, 2013); Great N. Ins. Co. v. Ruiz, No.

CV408-194, 2010 WL 3074340, at *2 & n.4 (S.D. Ga. Aug. 4, 2010).

The district court properly followed that sequence here. The court did not find

good cause to modify the scheduling order, so it turned to Rule 37 and the

consequences for failure to disclose in accordance with the schedule. The court

found that plaintiffs’ lapse was not substantially justified or harmless. So the court

then considered the appropriate sanction under Rule 37(c)(1).

The first sentence of Rule 37(c)(1) says that a party failing to disclose “is not

allowed to use that information” at trial. The advisory committee notes describe this

as a “self-executing sanction for failure to make a disclosure required by Rule 26(a),

without need for a motion” for sanctions. Fed. R. Civ. P. 37(c) advisory committee’s

note to 1993 amendment. But while the sanction of excluding evidence is

“automatic” in the sense that the court may apply it without a motion or hearing, see

id., it is not the only sanction available. Design Strategy, Inc. v. Davis, 469 F.3d 284,

297-98 (2d Cir. 2006). The second sentence of Rule 37(c)(1) says plainly that “[i]n

addition to or instead of this sanction,” the court may consider other options “on

motion and after giving an opportunity to be heard.” One option available “instead

of” excluding the information is to “order payment of the reasonable expenses . . .

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caused by the failure” to comply with Rule 26(a). Fed. R. Civ. P. 37(c)(1)(A). The

district court selected this option after receiving a motion from the plaintiffs and

giving both parties an opportunity to be heard on the question.

The district court did not abuse its discretion in selecting a lesser sanction than

exclusion of the information contained in the untimely expert report. The court

recognized that while plaintiffs caused delay and duplication of work by the

defendants, the new information was “useful and necessary to the disposition of the

case on the merits.” The court permissibly expressed a preference for disposition of

the case on the merits, and elected to impose a sanction expressly authorized by Rule

37(c)(1)(A) to compensate the defendants. This determination was consistent with

the rules of procedure and a reasonable exercise of the district court’s discretion in

managing the litigation.

In reversing the judgment, the court characterizes the district court’s order as

one that “extended the Rule 16(b) disclosure deadline” to allow the revised expert

report, ante, at 14, but the order did not do so. The deadline for disclosure of expert

witnesses was January 15, 2014, and the district court did not extend or modify it. 

See R. Doc. 145, 149, 295. Instead, the district court recognized that the revised

report was late, allowed the plaintiffs to file the report, and imposed sanctions for

submitting a report after the deadline. There would have been no reason or authority

to impose sanctions if the disclosure were timely under a revised scheduling order. 

Having ruled that the plaintiffs would be allowed, with sanctions, to file the untimely

revised report and to use information from the report, the court then revised other

scheduling deadlines by stipulation of the parties and for good cause. R. Doc. 277,

295. 

The court also seems to believe that the district court did not address whether

the plaintiffs could “use” the untimely expert report within the meaning of Rule

37(c)(1). Ante, at 14-15 & n.4. But the whole purpose of submitting the revised

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expert report wasto use at trial the information described therein, so the district court

rightly addressed whether the plaintiffs’ untimeliness warranted “complete exclusion

of the new information.” R. Doc. 275, at 5. Accord Vinson, 2018 WL 1312400, at

*2; Simmons, 2016 WL 4537744, at *3 n.5; Paulus, 315 F.R.D. at 15-18; HawkBeauchman, 2015 WL 12780572, at *1-3; Schardine, 2014 WL 2918420, at *2-3;

Great N. Ins. Co., 2010 WL 3074340, at *2 & n.4. It would be passing strange to

construe Rule 37(c)(1) as authorizing a district court to permit use of an undisclosed

expert’s information at trial but not to allow filing and disclosure of the same expert’s

report before trial.

For these reasons, I conclude that the court did not abuse its discretion by

allowing the plaintiffs to present evidence at trial based on their expert’s revised

report. Unlike a practice of allowing untimely pleading amendments under the liberal

standard of Rule 15(a), see Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th

Cir. 2008), the district court’s ruling gives effect to the “good cause” requirement of

Rule 16(b) by exacting a sanction from the plaintiffs for failing to comply with the

scheduling order. Where Rule 37(c)(1) specifically contemplates that a court may

choose a sanction other than exclusion for a submission that is untimely under the

scheduling order, we have no authority to superimpose the good-cause requirement

of Rule 16(b) in that context. Therefore, the court properly allowed the expert to

testify based on his revised report after sanctioning the plaintiffs.

The parties raise several other claims of error concerning the district court’s

rulings in the case, but the court does not address them after concluding that the

district court was required to exclude the revised expert report. Given the court’s

disposition, discussion of the other issues in this separate writing would be largely

an academic exercise. None of the other pointsraised would justify the relief ordered

by the court, so I respectfully dissent.

______________________________

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