Soo Line Railroad Company v. Werner Enterprises
Filing
106
ORDER denying 79 Motion to Exclude Expert Testimony; granting in part, consistent with this order 81 Motion for Summary Judgment; denying 85 Motion to Exclude Expert Testimony (Written Opinion). Signed by Senior Judge David S. Doty on 3/31/2014. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-1089(DSD/JSM)
Soo Line Railroad Company,
a Minnesota corporation
doing business as
Canadian Pacific,
Plaintiff,
ORDER
v.
Werner Enterprises,
Defendant.
Timothy R. Thornton, Esq., Jonathan P. Schmidt, Esq.,
Matthew R. Brodin, Esq. and Briggs & Morgan, PA, 80 South
Eighth Street, Suite 2200, Minneapolis, MN 55402, counsel
for plaintiff.
David C. Linder, Esq., Anthony J. Novak, Esq., Mark A.
Solheim, Esq. and Larson King, LLP, 30 East Seventh
Street, St. Paul, MN 55101, counsel for defendant.
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.
Novak Aff. Ex. D, ECF No. 94, at 12.
straightens 535 feet prior to the crossing.
Id. at 17.
The road
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 Buzzell
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.
2
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, the court denied the pre-discovery motion for
summary judgment by Canadian Pacific. Werner now moves for summary
judgment,
arguing
that
undisputed
evidence
demonstrates
that
Buzzell was medically incapacitated at the time of the collision.
In addition, both Canadian Pacific and Werner move to exclude
expert witnesses.
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. SmithKline Beecham
Corp., 152 F.3d 1050, 1053 (8th Cir. 1998); see also Rivera v.
3
Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (“Congress
may preempt state common law as well as state statutory law.”
(citations omitted)).
Preemption may be express or implied.
Symens, 152 F.3d at 1053.
“An intent to preempt may ... be
implied,
federal
for
example,
when
and
state
laws
directly
conflict, when state law stands as an obstacle to accomplishing the
purposes of federal law, or when federal law is so pervasive that
it reflects an intent to occupy a regulatory field.” Id. (citation
omitted).
states
In fields - such as traffic regulation - which the
have
traditionally
occupied,
courts
presume
“that
the
historic police powers of the States were not to be superseded by
the Federal Act unless that was the clear and manifest purpose of
Congress.”
In re Aurora Dairy Corp. Organic Milk Mktg. & Sales
Practices Litig., 621 F.3d 781, 792 (8th Cir. 2010) (citation and
internal quotation marks omitted).
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., 754 F. Supp. 142, 146 (D.
Minn. 1990).
The common law theory of driver incapacitation,
4
however, is not a part of the field of driver regulation.
Indeed,
the FMCSA explicitly contemplates the existence of “compatible
State regulations, standards, and orders” relating to motor vehicle
safety and transportation, demonstrating that it was not intended
to entirely displace state law.
49 U.S.C. § 31102(a).
As a
result, “Congress did not intend to occupy completely the field of
safety regulations for the operation on interstate highways of
commercial vehicles but ... contemplated the continued application
and enforcement of State rules or regulations.”
Specialized
Carriers & Rigging Ass’n v. Virginia, 795 F.2d 1152, 1156 (4th Cir.
1986).
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 be “far greater specificity” in the articulated conflict
than a generalized notion of public safety.
Fremont, 719 F.3d 931, 944 (8th Cir. 2013).
consistent
to
encourage
regulations
concerning
compliance
commercial
5
Keller v. City of
Indeed, it is entirely
with
driving
the
preventative
qualifications
and
nonetheless observe state common law doctrines in the event of an
undetectable medical emergency.
Given the presumption against
preemption, Canadian Pacific’s argument that the FMCSA preempts
evidence of sudden incapacitation is unavailing.
II.
Expert Testimony1
Canadian Pacific and Werner each move to exclude expert
testimony.
Canadian Pacific moves to exclude the testimony of
Werner’s experts Dr. Shannon Mackey-Bojack, Dr. Mark Koponen,
Kenneth Haberman and Kenneth Drevnick. Werner moves to exclude the
testimony of Canadian Pacific’s experts Jon Cook, Ryan Zukowski,
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., 394 F.3d
1008, 1011 (8th Cir. 2005) (citation omitted).
Federal Rule of
Evidence 702 provides that:
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
1
The court notes that all pre-trial evidentiary rulings are
provisional in nature and subject to modification at trial.
6
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, 557 F.3d 564, 570 (8th Cir. 2009)
(citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589
(1993)).
An expert must possess the “knowledge, skill, experience,
training, or education sufficient to assist the trier of fact.”
Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir.
2006) (citation and internal quotation marks omitted).
This
standard is satisfied when the expert’s testimony “advances the
trier of fact’s understanding to any degree.”
internal quotation marks omitted).
Id. (citation and
Further, Rule 702 “require[s]
that the area of the witness’s competence matches the subject
matter of the witness’s testimony.”
internal quotation marks omitted).
Id. at 1101 (citation and
“Gaps in an expert witness’s
qualifications or knowledge generally go to the weight of the
witness’s testimony, not its admissibility.”
Id. at 1100-01
(citations and internal quotation marks omitted).
The court must also “ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable.”
7
Schmidt, 557 F.3d at 570 (citing Daubert, 509 U.S. at 589).
The
court considers several nonexclusive factors when determining the
reliability of an expert’s opinion, including:
(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., 270 F.3d 681, 686-87 (8th Cir. 2001)
(citations and internal quotation marks omitted).
This “flexible
and fact specific” inquiry allows the court to “use, adapt, or
reject [the] factors as the particular case demands.”
F.3d at 1011 (citation omitted).
Unrein, 394
The proponent of the expert
testimony bears the burden of proving its admissibility by a
preponderance of the evidence.
B.
See Lauzon, 270 F.3d at 686.
Dr. Mackey-Bojack and Dr. Koponen
Canadian Pacific moves 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.
8
Canadian Pacific also argues that Dr. Mackey-Bojack and Dr.
Koponen
should
collision.
Bojack
not
be
able
to
opine
on
the
“cause”
of
the
Specifically, Canadian Pacific argues that Dr. Mackey-
and
Dr.
Koponen
are
not
experts
on
federal
trucking
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 - including the federal regulations - that are outside
such expertise. See Robinson, 447 F.3d at 1100 (“[T]he area of the
witness’s competence [must] match[] the subject matter of the
witness’s
omitted)).
testimony.”
(citation
and
internal
quotation
marks
As a result, the motion to exclude the testimony of Dr.
Mackey-Bojack and Dr. Koponen is denied.
C.
Haberman
Canadian Pacific next moves to exclude the testimony of
Kenneth Haberman.
Haberman’s
Specifically, Canadian Pacific argues that
expertise
extends
only
to
remediation
of
legacy
environmental sites rather than emergency environmental sites.
Haberman,
however,
environmental
field
emergency response.
has
on
See
Haberman Dep. 3:17-19.
thirty
issues
years
of
including
experience
in
the
remediation
and
one
Solheim Aff. Ex. C, ECF No. 100 at 1;
“Only if the expert’s opinion is so
9
fundamentally unsupported that it can offer no assistance to the
jury must such testimony be excluded.”
Children’s Broad. Corp. v.
Walt Disney Co., 357 F.3d 860, 865 (8th Cir. 2004) (citations and
internal quotation marks omitted).
Here, Haberman’s proposed
testimony is not “fundamentally unsupported.”
Pacific
will
have
the
opportunity
to
Moreover Canadian
cross-examine
Haberman
regarding his credentials and experience at trial, and it is
“within the province of the jury to evaluate issues of fact and
credibility.” Minn. Supply Co. v. Raymond Corp., 472 F.3d 524, 544
(8th Cir. 2006).
Canadian
Pacific
also
argues
that
Haberman’s
methodology
failed to take into account (1) Minnesota law regarding emergency
response and (2) negotiations between Canadian Pacific and the
Minnesota Department of Transportation regarding the remediation.
See, e.g., Minn. Stat. § 115E.03, subdiv. 1; Haberman Dep. 21:822:11.
“Disagreements about methodology and technique” used by
experts, however, “go to the weight the jury should give the
evidence
rather
than
its
admissibility.”
Shoaf
v.
Am.
Way
Transps., Inc., 47 F. App’x 780, 782 (8th Cir. 2002) (per curiam)
(citation omitted).
As a result, Canadian Pacific’s motion to
exclude Haberman’s testimony is denied.2
2
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
(continued...)
10
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.
Drevnick, however,
states that he will not offer medical opinions.
41:9-13.
Drevnick Dep.
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.”
Evid. 703 (emphasis added).
documents
that
are
reconstructionists.
Fed. R.
Here, medical examiners’ reports are
reasonably
relied
upon
by
accident
See Ratliff v. Schiber Truck Co., 150 F.3d
949, 955 (8th Cir. 1998) (finding that police report is “reasonably
relied
upon
by
accident
reconstructionists
in
forming
their
opinions.” (citation omitted)). As a result, the motion to exclude
Drevnick as an expert is denied.
2
(...continued)
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.
11
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.
ECF No. 97, at 2.
The court disagrees.
See Schmidt Aff. Ex. 8,
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., 581 F.3d 737, 743 (8th Cir.
2009) (applying Minnesota law).
Moreover, any alleged gaps or
deficiencies in Cook’s methodology may be explored during crossexamination.
See Shoaf, 47 F. App’x at 782.
As a result, the
motion to exclude Cook’s expert testimony is denied.
F.
Rebuttal Experts
Werner next moves to exclude the testimony of Ryan Zukowski,
Dr. Brian Konowalchuk and Dr. Thomas Young, arguing that (1) the
expert
disclosures
were
untimely
and
(2)
their
opinions
are
otherwise inadmissible.
1.
Compliance with Rule 26
Specifically, Werner argues that these experts are used to
establish Canadian Pacific’s case-in-chief and should have been
12
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, 527 F.3d 687, 692 (8th Cir. 2008)
(citations omitted).
The court “may exclude the information or
testimony ... unless the party’s failure to comply is substantially
justified or harmless.”
Id. (citation omitted).
“When fashioning
a remedy, the district court should consider ... the reason for
noncompliance, the surprise and prejudice to the opposing party,
the extent to which allowing the information or testimony would
disrupt the order and efficiency of the trial, and the importance
of the information or testimony.” Id. (citations omitted). “[T]he
13
exclusion of evidence is a harsh penalty and should be used
sparingly.”
Id. (citation and internal quotation marks omitted).
Here, the court finds that any failure of Canadian Pacific to
comply with Rule 26 with regards to these witnesses 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.
26(a)(2)(D)(ii); ECF No. 48, at 2.
See
Fed.
R.
Civ.
P.
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., 880 F. Supp. 2d 946, 956 (N.D. Iowa
2012).
important
Further, the proposed expert testimony relates to an
issue
in
the
case:
whether
Buzzell’s
alleged
incapacitation rebuts the presumption of negligence established by
violation of the traffic statute.
As a result, the court declines
to exclude the purportedly-untimely expert testimony.
2.
Zukowski
Werner further argues that Zukowski’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.”
17.
Novak Aff. Ex. D, ECF No. 94, at
Werner argues that such a conclusion amounts to improper
speculation.
The
court
disagrees.
14
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.
App’x at 782.
Shoaf, 47 F.
As a result, the motion to exclude Zukowski’s
testimony is denied.
3.
Dr. Konowalchuk and Dr. Young
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
Konowalchuk
and
would
Young,
confuse
and
however,
mislead
criticize
the
jury.
the
Drs.
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.
3.
See Novak Aff. Ex. E, ECF No. 94, at 11; id. Ex. C, at
Such criticism of opposing expert methodology is proper under
the Rules of Evidence.
See Aviva Sports, Inc. v. Fingerhut Direct
Mktg., Inc., 829 F. Supp. 2d 802, 835 (D. Minn. 2011).
Werner also argues that Drs. Konowalchuk and Young did not
examine Buzzell’s heart tissue slides.
15
In their reports, however,
Drs. Konowalchuk and Young assumed that Werner’s expert analysis of
the heart tissue slides was accurate.
No. 94, at 2; id. Ex. C, at 2.
See Novak Aff. Ex. E, ECF
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).
the
heart
Here, though the medical experts did not examine
tissue,
unsupported.”
their
opinions
are
not
“fundamentally
As a result, the motion to exclude the expert
testimony of Dr. Konowalchuk 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.”
26(a)(2)(B)(I) (emphasis added).
Fed. R. Civ. P.
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.
16
See Adams v.
United States, No. 4:CV 03-49-BLW, 2011 WL 2144574, at *1 (D. Idaho
May 29, 2011) (noting that “the Rule contains no bar to filing a
joint report signed by two experts”).
As a result, the court
denies the motion to exclude the testimony of Frehner and Murphy.
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, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it ould
cause a reasonable jury to return a verdict for either party.
See
id. at 252.
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.
The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial.
Celotex, 477 U.S. at 324.
See
A party asserting that a genuine dispute
exists — or cannot exist — about a material fact must cite
“particular parts of materials in the record.”
56(c)(1)(A).
Fed. R. Civ. P.
If a plaintiff cannot support each essential element
17
of a claim, the court must grant summary judgment because a
complete
failure
of
proof
regarding
an
essential
necessarily renders all other facts immaterial.
element
Celotex, 477 U.S.
at 322-23.
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, 306 N.W.2d 806, 810 (Minn. 1981).
Canadian Pacific argued that Buzzell was negligent per se as a
result of his violation of Minnesota Statutes § 169.26, which
provides that “when any person driving a vehicle approaches a
railroad grade crossing ... the driver shall stop the vehicle not
less than ten feet from the nearest railroad track and shall not
proceed until safe to do so.”
Although
the
court
Minn. Stat. § 169.26, subdiv. 1(a).
previously
declined
to
grant
summary
judgment for Canadian Pacific on this issue, the court noted that
the violation constitutes prima facie evidence of negligence.
No. 45, at 6; see Minn. Stat. § 169.96(b).
ECF
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., 5 N.W.2d 492, 496 (Minn. 1942).
18
Here, Werner has adduced medical evidence analyzing Buzzell’s heart
tissue, which, according to Werner’s experts, is consistent with
Buzzell having an “acute cardiac event” near the time of the
collision.
Koponen Aff. ¶ 7; see also Solheim Aff. Ex. A, ECF No.
42, at ¶ 9.
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., 411 N.W.2d 550, 554
(Minn. Ct. App. 1987) (citation omitted).
When the “evidence
rebutting a prima facie case of negligence is of such a nature that
the minds of reasonable men cannot differ about it,” however, “it
is incumbent upon the court to determine the issue of negligence as
a matter of law.”
Krafft v. Hirt, 110 N.W.2d 14, 18 (Minn. 1961).
This is not such a case.
Werner’s medical experts testify only
that a “heart attack is the most likely cause for the truck/train
collision,” Koponen Aff. ¶ 16 (emphasis added).
Further, Werner’s
medical experts testify that “it is more likely than not that Mr.
Buzzell was suffering from an acute cardiac event at the time of
the collision.”
added).
Solheim Aff. Ex. A, ECF No. 42, at ¶ 19 (emphasis
Such testimony does not, as Werner contends, conclusively
establish
collision.
that Buzzell
was
incapacitated
at
the time
of
the
Moreover, Werner’s medical experts testified that
19
Buzzell’s heart tissue exhibited clotting that was at least three
days old and that they could not pinpoint when the incapacitating
heart occlusion occurred.
Mackey-Bojack Dep. 13:1-3, 35:22-28
Given the lack of certainty regarding the supposed incapacitation,
a reasonable jury could find that Buzzell was not excused from
complying with the statute and that Buzzell was negligent.3
As a
result, summary judgment is not warranted.
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.,
817 N.W.2d 693, 701 (Minn. 2012) (citations and internal quotation
marks omitted).
liability.
In other words, intent is required for trespass
See id. (“[T]he tort of trespass is committed when a
person intentionally enters or causes direct and tangible entry
upon the land in possession of another.” (citation and internal
quotation marks omitted)).
Canadian Pacific, however, has adduced
3
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, 110 N.W.2d at 18 (noting that “[w]here the violator has met
his burden of producing evidence ... the trial proceeds as if the
prima facie case created by statute never existed. His conduct
then must be examined in the light of the ordinary tests applicable
to negligence actions.”).
20
no evidence to suggest that Buzzell was acting with intent when his
truck collided with the train.
Rather, Canadian Pacific argues
that Buzzell (1) intentionally ignored his cardiac symptoms and
(2)
intentionally
withheld
certifying physician.
his
history
of
fatigue
from
Mem. Opp’n, ECF No. 96, at 24.
his
Such
arguments, while potentially relevant to a negligence claim, do not
demonstrate intent for the trespass claim.
As a result, no
reasonable
acting
jury
could
find that
Buzzell
was
with the
requisite intent, and summary judgment is warranted on the trespass
claim.
D.
Nuisance
Finally, Werner argues that summary judgment is warranted on
the nuisance claim.
Specifically, Werner argues that a single
event,
collision,
such
as
the
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.,
387 F.3d 705, 715 (8th Cir. 2004) (citation omitted).
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.”
§ 561.01.
Minn. Stat.
Despite this broad language, Minnesota courts generally
21
observe, in dicta, that an actionable nuisance must be of a
recurring or continuing nature.
See Dorman v. Ames, 12 Minn. 451,
456 (Minn. 1867) (noting that nuisance “differs from trespass,
which is a single act” (citations omitted)); Wendinger v. Frost
Farms, Inc., 662 N.W.2d 546, 552 (Minn. Ct. App. 2003) (“[A]
plaintiff who presents evidence that the defendant intentionally
maintains a condition that is injurious to health, or indecent or
offensive to the senses, or which obstructs free use of property,
states an actionable claim in nuisance.” (emphasis added)).
Such
a conclusion comports with the majority of jurisdictions that hold
that a single act or event generally cannot constitute a nuisance.
See Sanders v. Norfolk S. Ry. Co., 400 F. App’x 726, 729 (4th Cir.
2010) (unpublished per curiam) (applying South Carolina law);
Kostyal v. Cass, 302 A.2d 121, 125 (Conn. 1972); Trussell Servs.,
Inc. v. City of Montezuma, 386 S.E.2d 732, 733 (Ga. Ct. App. 1989).
As a result, the court holds that a single event such as the
collision cannot form the basis of a nuisance claim.
Here, the
alleged nuisance - the collision which punctured the train car and
spilled aromatic concentrate - was neither recurring nor continuing
and was not a condition maintained by Werner.
judgment is warranted on the nuisance claim.
22
Therefore, summary
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.
Dated:
March 31, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court
23
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