SHEPHERD, Circuit Judge.
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. In a previous appeal, we considered Defendants' challenge to a jury verdict in favor of Philip Petrone and others (collectively, Plaintiffs) on some of Plaintiffs' claims, concluding that the district court erred in amending the scheduling order to allow Plaintiffs to submit an expert report past the disclosure deadline without good cause.
Plaintiffs filed this action alleging violations of the Fair Labor Standards Act (FLSA) and Nebraska law stemming from an eight-week student-driver training program run by Defendants. Plaintiffs alleged that they were not properly compensated for off-duty time spent on short rest breaks and time spent resting in their trucks' sleeper-berths. After a three-day trial, the jury awarded Plaintiffs $779,127.00 on the short-term break claims and found in favor of Defendants on the sleeper-berth claims. Plaintiffs appealed, challenging various post-trial rulings, while Defendants cross-appealed, challenging the district court's pre-trial rulings, specifically its ruling extending Plaintiffs' deadline to disclose expert reports, which allowed Plaintiffs to submit an otherwise untimely expert report.
As relevant here, Plaintiffs had previously timely submitted an expert report, but after "Defendants' deposition of Plaintiffs' expert `reveal[ed] considerable flaws in the methodology [used by Plaintiffs' expert] for computing the allegedly uncompensated break and sleeper-berth time,'"
R. Doc. 275, at 5. Nevertheless, the district court noted that "Rule 1 of the Federal Rules of Civil Procedure 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." R. Doc. 275, at 5. Further, because "[t]he corrected information [was] useful and necessary to the disposition of the case on the merits," the district court stated that it was "inclined to invoke the discretion granted by Rule 37(c) [of the Federal Rules of Civil Procedure] to fashion a lesser sanction than exclusion." R. Doc. 275, at 5-6. The district court thus granted Plaintiffs' motion to extend the disclosure deadline and allowed the new expert report to be timely submitted pursuant to the amended scheduling order.
We resolved Defendants' cross-appeal only, concluding that it was dispositive to the resolution of both appeals. We determined that the district court abused its discretion when it granted Plaintiffs' Rule 16(b) motion to amend the scheduling order to extend the disclosure deadline, pursuant to Rule 26(a) of the Federal Rules of Civil Procedure, for expert reports without good cause. We concluded that the district court erred in relying on Rules 1 and 37(c)(1) to extend the deadline for expert disclosures because "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[,]'" and "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."
On remand, Plaintiffs moved for a new trial, asserting that, even without the expert report, they could prove their damages through individual pay and time records. Plaintiffs also sought, pursuant to Rule 37(c)(1), to admit the untimely expert report, asserting that our mandate left the district court with the discretion to do so on remand. In the alternative, Plaintiffs sought a court-appointed expert pursuant to Rule 706 of the Federal Rules of Evidence. Defendants filed a motion for judgment on the mandate, asserting that the only possible outcome in light of the mandate was dismissal with prejudice. The district court denied Plaintiffs' motion, granted Defendants' motion, and dismissed the case with prejudice. The district court concluded that the only evidence of damages that Plaintiffs presented was based on the improperly admitted new expert report, rejected Plaintiffs' contention that they could prove damages through a Rule 1006 of the Federal Rules of Evidence exhibit summarizing pay and time records for 55,000 class members without expert testimony, and found that the discovery deadlines had lapsed more than 6 years previously and there was not good cause to amend the scheduling order to allow disclosure of the new expert report. The district court also noted that "Plaintiffs have not submitted a Rule 1006 exhibit, nor identified a witness who would prepare it, nor have Defendants deposed this witness about the preparation of the Rule 1006 exhibit." R. Doc. 618, at 6. In closing, the district court stated, "Plaintiffs could not have proved damages but for the admission of [the] untimely expert report. Therefore, the only proceeding consistent with the opinion of the Court of Appeals is dismissal of this action with prejudice." R. Doc. 618, at 6.
Plaintiffs assert that the district court erred in denying their motion for a new trial because this Court's previous opinion did not direct the district court to enter judgment in favor of Defendants; the district court failed to conduct the requisite Rule 37(c)(1) analysis, erroneously concluded that Plaintiffs could not prove damages without expert evidence, and failed to address Plaintiffs' request for appointment of an expert pursuant to Rule 706; and dismissal with prejudice is inconsistent with the holding that, as a matter of law, Defendants violated the FLSA. "We review the denial of a motion for a new trial for a `clear' abuse of discretion, with the key question being whether a new trial is necessary to prevent a miscarriage of justice."
We first consider what our mandate directed the district court to do on remand. In our previous opinion, "we vacate[d] the judgment and remand[ed] the case to the district court for proceedings consistent with this opinion."
Next, we consider Plaintiffs' argument that the district court failed to conduct the requisite analysis under Rule 37(c)(1) before excluding the expert testimony. Plaintiffs assert that the district court was required to conduct the Rule 37(c)(1) analysis in response to their motion for a new trial, and its failure to do so was an abuse of discretion. We agree. As we explained in our previous opinion, Rule 37(c)(1) is applicable "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.'"
As to Plaintiffs' argument that the district court erred by failing to consider their request, pursuant to Rule 706, for appointment of an expert, we similarly conclude that the district court's failure to exercise its discretion in considering this request amounts to an abuse of discretion. Under Rule 706, "[o]n a party's motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing." While the district court has discretion to decide whether to appoint such an expert, just as with the Rule 37(c)(1) analysis, it cannot decline to decide the issue. The district court thus abused its discretion in denying Plaintiffs' motion for a new trial without considering or deciding this request.
Finally, we consider whether the district court erred in concluding that, without testimony from an expert witness, Plaintiffs could not prove damages. Plaintiffs assert that, even if the district court were to exclude the expert testimony on remand, they could still provide evidence of their damages in the form of pay and time records, which they would introduce as summary evidence pursuant to Rule 1006. "Rule 1006 allows a party to `use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court . . . .'"
R. Doc. 618, at 5. We agree with the district court. The evidence of damages was so voluminous and complicated that Plaintiffs' own expert had difficulty correctly calculating damages, demonstrating that this evidence is not of the type to which the jury could simply apply basic math principles in order to calculate damages without the assistance of expert testimony. In the absence of expert testimony, summary evidence of wages and hours would not "assist the jury in understanding the testimony already introduced,"
In sum, while the district court properly determined that Plaintiffs could not present evidence of damages through summary evidence pursuant to Rule 1006, it failed to conduct an analysis pursuant to Rule 37(c)(1) and failed to address Plaintiffs' request for appointment of an expert pursuant to Rule 706. These latter two points amount to an abuse of discretion, which requires reversal and vacatur of the judgment. Further, because we vacate the district court's judgment, we need not consider Plaintiffs' argument regarding dismissal with prejudice.
For the foregoing reasons, we vacate the judgment and remand to the district court for further proceedings consistent with this opinion.