ORDER
This matter is before the court upon the motion for summary judgment by defendant Werner Enterprises (Werner) and the motions to exclude expert testimony by Werner and by plaintiff Soo Line Railroad Company, doing business as Canadian Pacific (Canadian Pacific). Based on a review of the file, record and proceedings herein, and for the following reasons, the court grants in part the motion for summary judgment and denies the motions to exclude expert testimony.
BACKGROUND
This property-damage dispute arises out of the March 31, 2012, collision between a truck owned by Werner and a train operated by Canadian Pacific. Early that morning, nonparty Dale Buzzell drove a Werner truck north on U.S. Highway 59, near Plummer, Minnesota. Am. Answer ¶ 11. Canadian Pacific railroad tracks cross Highway 59 near Plummer. Nagel Aff. Ex. A, at 0000559. The crossing is marked with stop lines, crossing signals, cross bucks and other signals. Id. Ex. B, at 0000001-0000026.
Approximately 1000 feet prior to the crossing, Highway 59 curves slightly. No-vak Aff. Ex. D, ECF No. 94, at 12. The road straightens 535 feet prior to the crossing. Id. at 17. Buzzell approached the crossing as a Canadian Pacific train traveled southeast on the tracks. Nagel Aff. Ex. A, at 0000559. All crossing signals were operational as Buzzell approached. Zerr Aff. ¶ 7. Buzzell’s truck collided with the ninth car of the train, a tanker carrying aromatic concentrate. Berzinski Aff. ¶ 6. The collision started a fire that engulfed Buzzell’s truck, and Buz-zell died at the scene. Nagel Aff. Ex. A, at 0000559-0000560. The collision also punctured the tanker, derailed several cars and caused aromatic concentrate to leak onto the tracks and surrounding ground. Id. at 0000559. Thereafter, Canadian Pacific funded and directed the reclamation efforts. See Am. Compl. ¶¶ 17-23.
On May 3, 2012, Canadian Pacific filed suit, alleging that Werner is liable for the cleanup costs based on negligence theories. Thereafter, on August 16, 2012, Canadian Pacific amended its complaint to include allegations of nuisance and trespass. On January 28, 2013,
DISCUSSION
I. Preemption
As a threshold matter, Canadian Pacific argues that the Federal Motor Carrier Safety Act of 1984 (FMCSA) precludes the admission of any rebuttal evidence that Buzzell was medically incapacitated when the truck collided with the train. Specifically, Canadian Pacific argues that the FMCSA regulations governing commercial drivers’ medical histories, physical fitness and drug use preempt Werner’s state-law arguments rooted in the common law doctrine of sudden incapacitation.
“Under the Supremacy Clause of the Constitution, federal legislation may preempt state law.” Symens v. Smith-Kline Beecham Corp.,
A. Field Preemption
Canadian Pacific does not dispute that there is no express preemption provision in the FMCSA. Rather, Canadian Pacific argues that the FMCSA is so pervasive that it regulates the entire field of commercial motor vehicle safety. In support, Canadian Pacific argues that Congress intended “to occupy the field of driver regulation to the extent of existing [FMCSA] regulations.” Visnovec v. Yellow Freight Sys., Inc.,
B. Conflict Preemption
Canadian Pacific next argues that the common law sudden incapacitation evidence is barred by conflict preemption. Specifically, Canadian Pacific argues that potentially absolving Buzzell and Werner of liability due to Buzzell’s alleged medical incapacitation would conflict with the purpose of the FMCSA: to protect the public from accidents caused by commercial drivers’ medical emergencies. For conflict preemption to apply, however, there must
II. Expert Testimony
Canadian Pacific and Werner each move to exclude expert testimony. Canadian Pacific moves to exclude the testimony of Werner’s experts Dr. Shannon Maekey-Bojack, Dr. Mark Koponen, Kenneth Ha-berman and Kenneth Drevnick. Werner moves to exclude the testimony of Canadian Pacific’s experts Jon Cook, Ryan Zu-kowski, Dr. Brian Konowalchuk, Dr. Thomas Young, Ron Frehner and Mark Murphy.
A. Standard
“[T]he admissibility of expert testimony in diversity cases is governed by federal law.” Unrein v. Timesavers, Inc.,
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Under Rule 702, the court acts as a gatekeeper to determine “whether the witness is qualified to offer expert testimony.” Schmidt v. City of Bella Villa,
An expert must possess the “knowledge, skill, experience, training, or education sufficient to assist the trier of fact.” Robinson v. GEICO Gen. Ins. Co.,
The court must also “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Schmidt,
(1) whether the theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) whether the theory has been generally accepted; ... [ (5) ] whether the expertise was developed for litigation or naturally flowed from the expert’s research; [ (6) ] whether the proposed expert ruled out other alternative explanations; and [ (7) ] whether the proposed expert sufficiently connected the proposed testimony with the facts of the case.
Lauzon v. Senco Prods., Inc.,
B. Dr. Mackey-Bojack and Dr. Ko-ponen
Canadian Pacific moyes to exclude the expert testimony of Dr. Shannon Mackey-Bojack and Dr. Mark Koponen. In support, Canadian Pacific argues that the medical testimony regarding a potentially incapacitating cardiac event is preempted by the FMCSA regulations. As already explained, however, the FMCSA regulations do not preempt the presentation of sudden incapacitation evidence.
Canadian Pacific also argues that Dr. Mackey-Bojack and Dr. Koponen should not be able to opine on the “cause” of the collision. Specifically, Canadian Pacific argues that Dr. Mackey-Bojack and Dr. Ko-ponen are not experts on federal tracking regulations and, as such, are not qualified to testify as to whether failure to follow such regulations contributed to the collision. The court declines to impose such a far-reaching limitation on the testimony. Dr. Mackey-Bojack and Dr. Koponen may testify as to their medical expertise, but may not testify to subjects&emdash;including the federal regulations&emdash;that are outside such expertise. See Robinson,
C. Haberman
Canadian Pacific next moves to exclude the testimony of Kenneth Haber-man. Specifically, Canadian Pacific argues that Haberman’s expertise extends only to remediation of legacy environmental sites rather than emergency environmental sites. Haberman, however, has thirty years of experience in the environmental field on issues including remediation and one emergency response. See Solheim Aff. Ex. C, ECF No. 100 at 1; Haberman Dep. 3:17-19. “Only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.” Children’s Broad. Corp. v. Walt Disney Co.,
D.Drevnick
Canadian Pacific next moves to exclude the expert testimony of Kenneth Drevnick. Canadian Pacific argues that Drevnick, an accident reconstructionist, is not qualified to Offer medical opinions regarding the cause of the collision. Drev-nick, however, states that he will not offer medical opinions. Drevnick Dep. 41:9-13. Rather, Drevnick has incorporated the medical examiner’s report into his accident reconstruction. Id. at 46:4-17. Such reliance is proper under the Federal Rules of Evidence, which allow an expert to “base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” Fed.R.Evid. 703 (emphasis added). Here, medical examiners’ reports are documents that are reasonably relied upon by accident reconstructionists. See Ratliff v. Schiber Truck Co.,
E. Cook
Werner moves to exclude the testimony of Canadian Pacific’s trucking safety expert, Jon Cook. Werner argues that Cook’s proposed testimony will not assist the jury in determining any issue of consequence because (1) the application of the federal regulations is not in dispute and (2) Cook does not offer an opinion as to why the collision occurred. See Schmidt Aff. Ex. 8, ECF No. 97, at 2. The court disagrees. The court concludes, at this stage, that Cook’s expertise in federal trucking regulations may potentially be relevant to Canadian Pacific’s negligence claim, as the regulations may inform the duty of care owed by Buzzell. See Glorvigen v. Cirrus Design Corp.,
F. Rebuttal Experts
Werner next moves to exclude the testimony of Ryan Zukowski, Dr. Brian Ko-nowalchuk and Dr. Thomas Young, arguing that (1) the expert disclosures were untimely and (2) their opinions are otherwise inadmissible.
Specifically, Werner argues that these experts are used to establish Canadian Pacific’s case-in-chief and should have been disclosed by the initial expert deadline, rather than by the rebuttal expert deadline. Canadian Pacific responds that the experts are proper rebuttal witnesses because they will testify as to the evidence of incapacitation that Werner proffers to rebut Canadian Pacific’s negligence per se claim. Cf. Fed.R.Civ.P. 26(a)(2) advisory committee’s note (“[I]n most cases the party with the burden of proof on an issue should disclose its expert testimony on that issue before other parties are required to make their disclosures with respect to that issue.”).
Even if these witnesses are not proper rebuttal witnesses, however, exclusion is not warranted. “When a party fails to provide information or identify a witness in compliance with Rule 26 ..., the district court has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case.” Wegener v. Johnson,
Here, the court finds that any failure of Canadian Pacific to comply with Rule 26 with regards to these withesses is harmless. Any delay in disclosure of experts was minimal, as the expert reports were filed within the forty-five days prescribed for rebuttal experts in this case. See Fed.R.Civ.P. 26(a)(2)(D)(ii); ECF No. 48, at 2. As a result, there has been no prejudice, as Werner has “had a sufficient opportunity to depose” the experts following their identification prior to trial. Jenkins v. Med. Labs. of E. Iowa, Inc.,
2. Zukowski
Werner further argues that Zu-kowski’s testimony should be excluded on substantive grounds. Specifically, Werner argues that Zukowski’s report offers only undisputed facts and concludes that “[n]o one can know for certain exactly what caused Mr. Buzzell to drive into the side of a train.” Novak Aff. Ex. D, ECF No. 94, at 17. Werner argues that such a conclusion amounts to improper speculation. The court disagrees. Zukowski, an accident reconstructionist, issued a thorough eighteen-page report analyzing the collision. See id. His ultimate conclusion, acknowledging his inability to conclusively determine causation, does not render the report inadmissible. Werner also argues that Zukowski did not evaluate the medical evidence in formulating his report. As already explained, however, disagreements about expert methodology go to credibility, rather than to admissibility. Shoaf, 47 Fed.Appx. at 782. As a result, the motion to exclude Zukowski’s testimony is denied.
Werner also argues that the testimony of Dr. Konowalchuk and Dr. Young should be excluded on substantive grounds. Specifically, Werner argues that the medical experts do not reach a conclusion as to the most likely cause of the collision, but instead offer speculation that would confuse and mislead the jury. Drs. Konowalchuk and Young, however, criticize the scientific methodology of Werner’s experts and testify that nobody may testify to a reasonable degree of medical certainty as to the cause of the collision. See Novak Aff. Ex. E, ECF No. 94, at 11; id. Ex. C, at 3. Such criticism of opposing expert methodology is proper under the Rules of Evidence. See Aviva Sports, Inc. v. Fingerhut Direct Mktg., Inc.,
Werner also argues that Drs. Ko-nowalchuk and Young did not examine Buzzell’s heart tissue slides. In their reports, however, Drs. Konowalchuk and Young assumed that Werner’s expert analysis of the heart tissue slides was accurate. See Novak Aff. Ex. E, ECF No. 94, at 2; id. Ex. C, at 2. Moreover, as already explained, “the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility ... [unless] an expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury.” Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968, 974 (8th Cir.1995) (citations and internal quotation marks omitted). Here, though the medical experts did not examine the heart tissue, their opinions are not “fundamentally unsupported.” As a result, the motion to exclude the expert testimony of Dr. Ko-nowalchuk and Dr. Young is denied.
G. Frehner and Murphy
Finally, Werner moves to strike the joint damages report of Ron Frehner and Mark Murphy. Werner argues that Frehner and Murphy submitted one joint expert report for their expert testimony, in contravention of Rule 26, which provides that an expert witness must disclose “a complete statement of all opinions the witness will express and the basis and reasons for them.” Fed.R.Civ.P. 26(a)(2)(B)(i) (emphasis added). Specifically, Werner argues that the expert report does not comply with Rule 26 because it does not articulate the division of labor between Frehner and Murphy. Werner, however, points to no authority that would warrant the harsh penalty of excluding the report and testimony. See Adams v. United States, No. 4:CV 03-49-BLW,
III. Summary Judgment
A. Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett,
On a motion for summary judgment, the court views all evidence and inferences in a light most favorable to the nonmoving party. See id. at 255,
B. Negligence
Werner argues that summary judgment is warranted on the negligence claim. In its previous motion for summary judgment, Canadian Pacific argued that Buzzell’s violation of Minnesota traffic statutes constituted negligence per se. “Negligence per se is a form of ordinary negligence that results from violation of a statute.” Seim v. Garavalia,
Although the court previously declined to grant summary judgment for Canadian Pacific on this issue, the court noted that the violation constitutes prima facie evidence of negligence. ECF No. 45, at 6; see Minn.Stat. § 169.96(b). In other words, upon the showing by Canadian Pacific of the violation, Werner may adduce “evidence tending to show a reasonable ground for such violation.” Olson v. Duluth, M. & I.R. Ry. Co.,
Werner argues that summary judgment is warranted given such evidence. The court disagrees. In general, “[w]here there is evidence which tends to establish excuse or justification, the question of whether there was negligence is for the jury.” Gertken v. Farmers Elevator of Kensington, Minn., Inc.,
C. Trespass
Werner next argues that summary judgment is warranted on the trespass claim. Under Minnesota law, “a trespass is committed where a plaintiff has the right of possession to the land at issue and there is a wrongful and unlawful entry upon such possession by defendant.” Johnson v. Paynesville Farmers Union Coop. Oil Co.,
D. Nuisance
Finally, Werner argues that summary judgment is warranted on the nuisance claim. Specifically, Werner argues that a single event, such as the collision, cannot constitute a nuisance. Minnesota courts have not squarely addressed whether a single act can constitute a nuisance. Thus, the court “must predict how [the Minnesota Supreme] Court would decide this unresolved issue of state law.” Midwest Oilseeds, Inc. v. Limagrain Genetics Corp.,
Under Minnesota law, “[a]nything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance.” Minn.Stat. § 561.01. Despite this broad language, Minnesota courts generally observe, in dicta, that an actionable nuisance must be of a recurring or continuing nature. See Dorman v. Ames,
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1. The motion for summary judgment [ECF No. 81] is granted in part, consistent with this order;
2. Canadian Pacific’s motion to exclude expert testimony [ECF No. 85] is denied;
3. Werner’s motion to exclude expert testimony [ECF No. 79] is denied.
Notes
. The court notes that all pre-trial evidentiary rulings are provisional in nature and subject to modification at trial.
. Canadian Pacific also argues that the court’s April 15, 2013, protective order precludes Haberman’s testimony. That order read, in part, “Werner will be precluded from introducing at trial any of its own employees to testify about whether Werner would have handled the clean-up differently." ECF No. 65, at 3. Haberman, however, is not an employee of Werner, and the possibility of expert testimony regarding clean-up was expressly contemplated by the April 15, 2013, order. See id. at 2. As a result, Canadian Pacific’s argument is unavailing.
. Even if Werner had conclusively established facts excusing Buzzell from compliance with the traffic statute, Canadian Pacific could attempt to establish negligence under other theories. See Krafft,