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PETRONE v. WERNER ENTERPRISES, INC.

Nos. 8:11CV401, 8:12CV307

PHILLIP PETRONE, et al., Plaintiffs, v. WERNER ENTERPRISES, INC., and DRIVERS MANAGEMENT, LLC, Defendants. PHILLIP PETRONE, et al., Plaintiffs, v. WERNER ENTERPRISES, INC., and DRIVERS MANAGEMENT, LLC, Defendants.

United States District Court, D. Nebraska.

July 30, 2015.

Attorney(s) appearing for the Case

Philip Petrone, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM & Richard S. Swartz , SWARTZ, SWIDLER LAW FIRM.

Stewart Fisher, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jasbir Singh, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Brian Pankz, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jason Dewayne Gunn, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Ahmad Abdinasir, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Adam F. Akhalu, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Latoshia Denise Anderson, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Derek C. Anglero, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Alan Blane Arthur, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Christopher Ayala, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Tim McCabe Bailey, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Csaba G. Barabas, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Henry Barentine, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Joseph E. Barker, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Diego Armando Barraza, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Richard Clair Bash, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Terry Lee Batko, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Elizabeth Baumgartel, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jeremy Alfred Bennett, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Gary M. Bernstine, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Stacy Lynn Bluebird, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Rafarel K. Boadu, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Damien Marcus Boyer, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Christina Bradley, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Elias Bratcher, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Justin Bristol, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Karl Matthew Emerson, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Scott A. Larrow, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Steve N. Neely, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Tonya McDonald, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Micheal Anthony Brooks, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Nicholas Brown, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Olivia Bryant, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Lawrence F. Bunkowski, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

David Burgess, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Steven Dale Burgess, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Justin Burkholder, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Richard Calvert, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Johnny Carter, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Brett Carty, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Joel Castaneda-Dominguez, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Lawrence Edward Cecil, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Issac Houston Chase, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Victor Chavarria, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Paul L. Cleaver, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Larry Nathaniel Clinton, Jr., Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Kenneth B. Cloud, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Thomas Ricky Coker, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Kenya Dyone Collins, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Michael Ray Combs, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Kenneth Ray Cook, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Richard W. Copley, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Howard Corley, Jr., Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jeffrey G. Crissman, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jimmy Carl Criswell, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Thomas Cross, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Francisco Cruz, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

James Michael Cullity, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Kabik Daam, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Wilson M. Dagaye, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

David Davila, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Michael Scott Davis, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jermey Leonard Dawson, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Perry A. Deeke, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

David Andrew Delisi, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Louis James Dietry, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

John Michael Doss, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Steven Dubinsky, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Luis Duran Saldivar, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Carl Eberhardt, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Harcourt P. Edgecombe, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Douglas Allen Elbon, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Terry Lee Elkins, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Paul Terry Elliott, Jr., Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Mark C. Eure, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Seth Fezatte, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Roscoe W. Forman, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Anthony Frank, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Nathaniel Anthony Frazier, Jr., Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Ernest G. Fulp, Jr., Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Peter Liyayi Gaitano, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jose Garcia-Gonzalez, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

JoAnna Hancock Geddings, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Clair Henry Gilmore, Jr., Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Fred Glass, III, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

John Christopher Glover, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jean Marie Gogolin, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Steven Scott Goodman, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Tamaro R. Graham, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Eric Franklin Green, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

August William Grow, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Gary Eugene Gude, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Debra Paula Gugle, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Fardrel J. Guice, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Shaun Phillip Guthrie, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Randy Halcomb, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Kathleen M. Hallmark, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

D'Andre LeMare Handy, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

John Robert Hardin, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Robert William Herrmann, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Gail Marie Hess, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Annette Fay Holder, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Charles Roy Honacher, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Michael Hossler, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Robert Edward Howes, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Brett Allen Huckstep, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Byron Huffin, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Loman Hutchings, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Delandos Jackson, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Morris Jacobs, Jr., Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Daniel Jefferson, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Ciera Lillian Jenkins, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Darrell Wayne Johnson, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

David Allen Jones, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Michael T. Jones, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Willie Lee Jones, Sr., Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Michael A. Karpouskas, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Behzad Kazemiseresht, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Gary Ward Kennerly, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Kristopher Kibby, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Ronald L. Kilpatrick, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Nathan Phillip Koehler, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Michael Kovacsi, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Timothy Michael Kyser, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Martha L. Lantz, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Alonza David Lee, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Guertho Lemorin, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Darran LaVan Lewis, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Joshua Brooke Lipham, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Russell E. Lourwood, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Paul Lowe, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Stacey Marie Lowe, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Krystel Lucas, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Kevin L. Maehrer, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jonathan Michael Magnuson, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

James Mancuso, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jeremy L. Maness, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Thomas C. Marchione, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

William Clyde Marks, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

David Jacob Marrs, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Norrek McCarty, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Matthew Jay McDaniel, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

David Andrew McDevitt, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Samuel Ray McMillian, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Doug Anthony McSwain, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jack Dean Michael, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Steven Richard Milstead, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Robert John Monroe, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Carl Montgomery, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Gary C. Montgomery, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Debra A. Moore, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Michael W. Moore, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Clell Morgan, II, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

John Anthony Morris, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Michael Wayne Murray, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Lorenc Musabelli, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Nathan Joel Nadell, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Saleh M. Nasser, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Chad Michael Newsom, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Aaron Jermain Nixon, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Luis S. Ogando Colon, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Peter B. Oh, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Marcus Oscar Orr, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Christopher Otto, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Donald Wade Owens, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Charles D. Paglicco, Jr., Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

James G. Paige, Jr., Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Matthew Pereira, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Michael Andrew Pertle, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Willie James Petty, Jr., Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jarrod Scott Pitts, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Robert Lee Plunkett, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

James Matthew Potts, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Bryan James Pratt, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

David Frank Pressley, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

John Jason Pryor, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Joseph Pusateri, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Noel Ramirez, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Steven M. Ramsey, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

John Manson Ray, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Heath Daniel Reams, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jasper U. Reaves, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

John Reddick, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Benjamin Reno, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Oscar Reyes, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Brandon Richard, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Gregory Scott Vian Risdon, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Clarence Robinson, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Rayo Emmiito Robinson, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Barney Robson, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Brandon Roldan, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

William Thomas Roop, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Curtis Ryals, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Nickilas Sams, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Franklin L. Schmidt, III, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Barbara Ann Scoby, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Joseph Franklin Scott, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Robert A. Scott, III, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Vernon B. Seaborn, Jr., Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Michael A. Sederquist, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Phillip Wayne Senecal, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Guillermo Serrano-Lopez, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Pablo A. Serrano-Lopez, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Charles Shackelford, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Katherine P. Shoemaker, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Howard Arthur Singer, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Harpal Singh, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Dennis Dean Smith, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Kyle Anthony Smith, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Randy Shane Smith, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Timothy Leonardo Smith, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Quitz Snider, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Richard Adam Solomon, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Roman Stelter, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Winston Stewart, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Shawn Michael Stone, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Derick Lynn Sullins, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

James Julian Alan Surrency, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Tim J. Swadley, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

George A. Tapia, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Shannon Leigh Terry, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Noulieng Thisanakone, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Dan Vilaythong, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Erick Thompkins, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Brennon Thompson, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Stephen Loyd Tillerson, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

David Wright Tillman, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Kevin Toll, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Richard F. Torrisi, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jeffrey S. Torsrud, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Gregory D. Trent, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Jose Valentine, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Luanne Santoro Voght, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Wayne Woodrow Waite, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

David C. Waldron, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Marisa Sabrinda Walker, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Robert Wallace, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Lance Wallace, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Patrick Mark Walters, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Steven Anthony Wasson, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Joseph Kane Weatherford, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Derrick Earl Webb, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Stacey Webb, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Trey Anthony Webber, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Keeley Wheeler, Jr., Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Johnny Keith White, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Kacy Fonteze Williams, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Tiffany Nicole Williams, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Steven M. Willis, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Reia Winn, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Marlon Dewayne Witcham, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Devon Terelle Wofford, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

William Wood, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Mark Antonio Woods, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Warren R. Wright, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Carisma Concetta Weiss, Plaintiff, represented by Justin L. Swidler , SWARTZ, SWIDLER LAW FIRM.

Werner Enterprises, Inc., Defendant, represented by Elizabeth A. Culhane , FRASER, STRYKER LAW FIRM, Joseph E. Jones , FRASER, STRYKER LAW FIRM & Patrick J. Barrett , FRASER, STRYKER LAW FIRM.

Drivers Management, Defendant, represented by Elizabeth A. Culhane , FRASER, STRYKER LAW FIRM, Joseph E. Jones , FRASER, STRYKER LAW FIRM & Patrick J. Barrett , FRASER, STRYKER LAW FIRM.

MEMORANDUM AND ORDER

The matter is before the Court on two related motions. The defendants renewed their motion in limine to exclude damage calculations and expert testimony by Richard Kroon (Filing No. 302 in 8:11CV401; Filing No. 204 in 8:12CV307). They filed briefs in support of their motion, and an index of evidence in each. The plaintiffs filed briefs in opposition and indices of evidence, to which the defendants replied. The plaintiffs filed a motion in limine to exclude defendants' rebuttal expert Robert Topel (Filing No. 306 in 8:11CV401; Filing No. 208 in 8:12CV307). The plaintiffs filed briefs and indices of evidence in support of their motion. The defendants filed briefs in opposition and indices of evidence, to which the plaintiffs replied. After considering the motions, briefs, submissions of evidence, and the relevant law, the Court finds as follows.

Standard of Review

Federal Rule of Evidence 702 provides that expert opinion testimony is permissible if it is based on scientific, technical, or other specialized knowledge and will assist the trier of fact. It must be given by a person qualified as an expert based on experience, training, or education. The proponent of the expert testimony must prove its admissibility by a preponderance of the evidence. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). "The testimony must meet the following three criteria: (1) it must be based upon sufficient facts or data; (2) it must be the product of reliable principles and methods; and (3) the witness must have applied the principles and methods reliably to the facts of the case." Fast v. Applebee's Intern., Inc., No. 06-4146-CV-C-NKL, 2009 WL 2391775 *2 (W.D. MO. Aug. 3, 2008).

A trial judge has a gatekeeping responsibility to "ensure that an expert's testimony rests on a reliable foundation and is relevant to the task at hand." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (citing Daubert, 509 U.S. at 597). Among the factors a court should consider in its gatekeeping function to allow or exclude expert testimony are (1) whether the methodology can and has been tested; (2) whether the technique has been subjected to peer review and publication; (3) the known or potential rate of error of this methodology; and (4) whether the technique has been generally accepted in the proper scientific community. See Daubert, 509 U.S. at 593-94. The Supreme Court has concluded that the same standards of reliability announced in Daubert also apply to all expert testimony whether the testimony is scientific, technical, or some other specialized knowledge. Kumho Tire, 526 U.S. at 141.

Rule 702 is one of admissibility rather than exclusion. Lauzon v. Senco Products, Inc., 270 F.3d 681, 686 (8th Cir. 2001). Case law shows that rejection of expert testimony is the exception rather than the rule. Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1069, 1101 (8th Cir. 2006). "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596.

Discussion

I. Richard Kroon

The defendants Werner Enterprises, Inc. and Drivers Management, LLC (collectively "Werner"), move this Court to exclude Richard Kroon's ("Kroon") damage calculations and expert testimony. Werner argues that Kroon's damage calculations and the opinions he seeks to offer at trial fail to meet the requirements of Fed.R.Evid. 702 and should be excluded under Daubert.

Kroon is a data analyst who regularly performs calculations on large datasets for the purpose of determining settlement allocations and damages in class action litigation. Kroon is the Business Intelligence Developer of Kurtzman Carson Consultants. Kroon has worked as a computer data analyst since 1997. Kroon performed damage calculations on data produced by the defendants' records. The plaintiffs claim that Kroon's expertise is limited in scope. Kroon's expertise is sought to calculate what the damages would be under plaintiffs' theories of liabilities if the plaintiffs prevail on the legal issues.

Werner provides the Court with multiple arguments on why Kroon's damage calculations and testimony should be excluded. Werner argues that Kroon did not calculate damages accurately. Werner also claims that Kroon's testimony and calculations are not sufficiently tied to the facts of the case. In addition, Werner believes that Kroon's testimony is unreliable because in his first report he had over $11.2 million in errors. Werner claims that Kroon lacks a basic understanding of the facts and assumptions which he relied upon because he followed the instructions of plaintiffs' counsel. Finally, Werner argues that Kroon's testimony should be excluded because he relied upon iDiscovery, which was not disclosed, and he should be prohibited from serving as an expert by this Court (See Filing No. 275 in 8:11CV401).

The Court finds that Kroon is qualified to testify as an expert in this action. However, Kroon's testimony will be limited in scope to address only damage calculations under plaintiffs' theories of liabilities. Kroon may not testify outside of his expertise as a data analyst. Werner's objections to Kroon's testimony and calculations go more to the weight to be afforded rather than admissibility. Werner will have the opportunity to cross-examine, present contrary evidence, and highlight any weaknesses in Kroon's methodology and/or application. As a result, the motion to exclude the damage calculation and testimony by Richard Kroon will be denied.

II. Robert Topel

The plaintiffs move this Court to exclude the testimony of Dr. Robert Topel ("Dr. Topel"), defendants' rebuttal expert. The plaintiffs claim that Dr. Topel does not have the requisite training or knowledge to be admissible under Fed.R.Evid. 702. In addition, the plaintiffs claim that Topel failed to submit a report in compliance with Rule 26.

Dr. Topel is the Distinguished Service Professor of Economics at the University of Chicago Booth School of Business, Director of the George J. Stigler Center of the Study of the Economy at the University of Chicago, and State and Co-Director of the Energy Policy Institute at the University of Chicago. Dr. Topel has a bachelor's degree in economics and a Ph.D. in economics. Dr. Topel is a senior consultant for the Charles River Associates, an economics consulting firm that specializes in the application of economic theory and statistics to legal and regulatory issues (Id.). Dr. Topel has reviewed the Driver Log Data, and Kroon's reports and damage calculations. (Filing No. 308-2 at 42-43 in 8:11CV401). Dr. Topel is being offered as a rebuttal expert to Kroon's damage calculations and testimony.

The plaintiffs argue that Dr. Topel's opinion is not based on any specialized knowledge, experience, training, skills, or education. In addition, plaintiffs claim that Dr. Topel's opinion is not based on sufficient facts or data. Plaintiffs also argue that Dr. Topel's testimony and opinions will not be helpful to the trier of fact. Finally, the plaintiffs argue that Dr. Topel is not qualified and should not be permitted to give an opinion about the meaning of 29 C.F.R. § 785.22.

The Court finds that Dr. Topel is qualified to testify as a rebuttal expert in this action. Dr. Topel studied the same materials as the plaintiffs' expert Kroon, and it is offered to rebut Kroon's testimony and calculations. Dr. Topel's opinions will be helpful to the trier of fact in determining the proper damages. The plaintiffs' objections to Dr. Topel's opinions go more to weight than admissibility. The plaintiffs will be able to cross examine on these issues. As a result, the plaintiffs' motion to exclude Dr. Topel as a rebuttal expert will be denied.

In addition, the plaintiffs argue that Dr. Topel's report should be stricken because he failed to submit a report in compliance with Federal Rule of Civil Procedure 26. The plaintiffs point to two subsections under Rule 26. Under Fed.R.Civ.P. 26(a)(2)(B)(ii), an expert's written report must disclose facts or data considered by the witness in forming his/her opinion. The plaintiffs argue that Dr. Topel failed to disclose that he relied on Werner's counsel's representation and pick up and drop off times. Second, Fed.R.Civ.P. 26(a)(2)(B)(vi) requires the expert to provide a statement of the compensation paid for the study and testimony. Plaintiffs claim that Dr. Topel has only provided an hourly rate and not the entire amount paid for writing his report.

Under Federal Rule of Civil Procedure 37(c)(1), "if a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence . . . unless the failure was substantially justified or is harmless." "A trial judge has broad discretion in deciding whether a Rule 26(a) violation is substantially justified or harmless." Michelone v. Desmarais, 25 Fed. Appx. 155, 158 (4th Cir. 2002); Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1363 (7th Cir. 1996). The Court has not found prejudice in regard to Dr. Topel's expert report. Plaintiffs' counsel has deposed Dr. Topel on the issues not explicitly included in the expert report. As a result, the Court will deny the plaintiffs' request to strike the report of Dr. Topel for failure to comply with Rule 26.

Accordingly,

IT IS ORDERED:

1) Defendants' renewed motion in limine (Filing No. 302 in 8:11CV401; Filing No. 204 in 8:12CV307) to exclude damage calculations and expert testimony by Richard Kroon is denied;

2) Plaintiffs' motion in limine (Filing No. 306 in 8:11CV401; Filing No. 208 in 8:12CV307) to exclude defendants proposed rebuttal expert Robert Topel and to strike under Rule 26 is denied.

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