Labor & Employment Law Daily Wrap Up, PENSION AND BENEFIT PLANS—8th. Cir.: Unions fail to support ERISA, LMRA claims for unpaid benefit contributions, (Jul 14, 2026)

By Steven D. Cole, J.D.

The unions’ oversight in not disclosing the auditor on whose testimony they relied to prove damages as an expert witness under Rule 26(a)(2) resulted in the exclusion of his testimony.

Barnhart Crane & Rigging Co. was entitled to summary judgment against claims stemming from an allegation that the employer failed to make the requisite contributions for work performed by its employees within the jurisdictions of three unions, the Eighth Circuit affirmed. The plaintiffs, consisting of union fund trustees and the three unions, relied exclusively on the testimony and reports prepared by an auditor they retained to prove damages. Because they improperly disclosed the auditor as a fact witness and not an expert witness, however, the district court excluded his testimony and reports. Without this evidence, the appeals court found, the unions provided no other avenue from which damages could be calculated (Board of Trustees of the Iron Workers St. Louis District Council Pension Fund Trust v. Barnhart Crane & Rigging Co., No. 25-1497 (8th Cir. July 13, 2026)).

Unions’ suit. The unions asserted breach of contract claims pursuant to the ERISA and the LMRA. They maintained that Barnhart breached provisions of certain collective bargaining agreements by not contributing the required amount to the unions and the union trust funds representing the Iron Workers St. Louis District Council (IWSTLDC). These contributions were to be based on the covered work performed by Barnhart employees within IWSTLDC’s territorial jurisdiction.

Auditor witness. In support of their claims, the unions disclosed a witness under Fed. R. Civ. P. 26(a)(1) of the as “the auditor who performed the payroll compliance audit on behalf of the Trust Funds.” The unions did not disclose any experts under Rule 26(a)(2), however. During discovery, the unions produced three audit reports written by the auditor, in which he calculated the damages that each of the trust funds incurred due to Barnhart’s allegedly deficient contributions. At his deposition, the auditor testified that he made several assumptions when calculating the trust funds’ damages. For example, if he could not verify the location where a Barnhart employee performed work, he assumed that it was within the territorial jurisdiction of the IWSTLDC. He also revealed that he revised his reports to increase his calculation of damages owed to the trust funds after receiving directions from union attorneys indicating that his estimates were too low.

Motion to exclude. After the close of discovery, the district court granted Barnhart’s motion to exclude all of the auditor’s testimony and audit reports that contained assumptions unsupported by the evidence, “[n]ot only because they are undisclosed expert opinions, but also because their calculations as to damages are speculative.” The district court acknowledged that excluding evidence is a harsh remedy, but it concluded that exclusion was warranted based on the unions’ reason for failing to disclose the auditor as an expert—their “miscalculation” as to the import of his opinion—and the prejudicial effect that this had on Barnhart. The Eighth Circuit affirmed the district court’s analysis that the auditor indeed sought to offer expert testimony, as well as its ruling on the motion to exclude.

Summary judgment. Recognizing that the unions “hang their hat exclusively” on the auditor’s inadmissible reports and associated testimony, the district court granted summary judgment in favor of Barnhart. The unions argued that various business records furnished by Barnhart during the course of the audits could be used to prove damages, even in the absence of expert testimony. Among these records were unemployment reports, payroll tax information, W-2 forms, contribution reports for unions and union trust funds outside of the IWSTLDC, and payments and records for non-covered hours of work performed. But this was voluminous and complex data contained in spreadsheets and other reports, and a jury would need expert assistance in order to understand the information. The court of appeals pointed out that the auditor himself “provided three versions of his audit report, inherently suggesting that these business records are not the type from which a jury could readily assess damages.”

Concurrence. Judge Erickson wrote separately to expound upon the lower court’s finding that that the unions’ failure to identify the auditor as an expert witness was neither substantially justified nor harmless, properly subjecting the unions to the sanction of exclusion found in Rule 37.

The case is No. 25-1497.

Attorneys: William M. Blumthal, Jr. (Johnson & Krol) for Board of Trustees of the Iron Workers St. Louis District Council Pension Fund Trust, Board of Trustees of the Iron Workers St. Louis District Council Annuity Trust, Board of Trustees of the Iron Workers St. Louis District Council Welfare Plan, Iron Workers Local No. 103 of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Iron Workers Local No. 321 of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, and Iron Workers Local No. 782 of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers. Zachary S. Merkle (Sandberg Phoenix & von Gontard) for Barnhart Crane & Rigging Co.

Companies: Iron Workers Local No. 103 of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers; Iron Workers Local No. 321 of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers; Iron Workers Local No. 782 of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers; Barnhart Crane & Rigging Co.

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