MINNESOTA RIAL The Journal of The Minnesota Association for Justice
ROBERT W. ROE MAJ President | 2017-2018
Minnesotaâ€™s Attempts at First Party Bad Faith Statutory Construction 18th Annual MAJ Mid-Winter Meeting
Fall 2017/Winter 2018
MINNESOTA RIAL Robert W. Roe President Richard A. Ruohonen President-Elect Michael Hall III Vice President Genevieve M. Zimmerman Secretary Sean Quinn Treasurer
Yvonne Flaherty Kate E. Jaycox Genevieve M. Zimmerman AAJ Board of Governors Josh M. Tuchscherer Ashleigh E. Raso AAJ State Delegate
The Journal of The Minnesota Association for Justice
Volume 42 No. 4 | Fall 2017/Winter 2018
Paul D. Peterson State Bar Liaison
Carla M. Ferrucci Executive Director
Failed Attempt At First Party Bad Faith
Gary Hazelton Peter A. Schmit Steven J. Terry Mark D. Streed Karen Kingsley Brian Wojtalewicz James P. Carey Michael A. Bryant FEATURING Sharon Van Dyck T. Joseph Crumley 18TH ANNUAL JUSTICE DAVID LILLEHAUG Chris A. Messerly MAJ MID-WINTER MEETING 18TH ANNUAL Justice Lillehaug was appointed to the Minnesota Supreme Wilbur W. Fluegel Court in 2013 by Governor Mark Dayton and was elected FEBRUARY 23 – 24, 2018 to a six-year term in 2014. Lillehaug graduated with honors Katherine S. Flom from Harvard Law School and with highest honors from Peter W. Riley Augustana College. From 1994 to 1998 Lillehaug was the United States Attorney, the federal government’s Duane A Lillehaug chief prosecutor and civil lawyer in the state. During 25plus years of complex litigation experience in private David W.H. Jorstad practice, Lillehaug represented large and small businesses, Richard A. LaVerdiere public officials, the University of Minnesota, and Indian tribes in high-profile lawsuits and investigations. Keith L. Miller William D. Harper KEYNOTE Karla R. Wahl (deceased) SPEAKER The Inconsistent JOHN GORDON; EXECUTIVE DIRECTOR, ACLU Walter E. Sawicki John grew up in Iowa, graduated from Princeton University Approach of the Kathleen Flynn Peterson and Harvard Law School, and clerked for the Hon. Lewis R. Morgan on the US Court of Appeals for the Fifth Circuit. Minnesota CourtUS! Mark R. Kosieradzki IT STARTS WITH Before joining ACLU-MN, John practiced in the area of complex civil litigation at Faegre Baker Daniels, trying Fred H. Pritzker more than 100 civil jury cases to conclusion. He also Logan N. Foreman represented students harassed because of their sexual victims of domestic violence, immigrants Charles A. Cox (deceased) orientation, seeking asylum, and proponents of sane gun control. John is frequently retained as a mediator and is an Adjunct William E. Jepsen Professor at the University of Minnesota Law School. Dennis R. Johnson (deceased) Ronald H. Schneider (deceased) Inn on Lake Superior Northern Lights Conference Center – 350 Canal Park Drive, Duluth, MN Kathleen Worner Kissoon MAJ MID-WINTER MEETING Rich Ruohonen, Course Chair | James Balmer, Co-Chair William R. Sieben FEBRUARY 23 – 24, 2018 4 President’s Page 36 Women for Justice Robert R. Johnson (deceased) Inn on Lake Superior 7.75 CLE Hours Requested including 1.0 elimination of bias credit Northern Lights Conference Center – 350 Canal Park Drive, Duluth, MN Recovering Future Damages John W. Carey 26 Book Review by Mark Streed Stephen S. Eckman in the Face of an Increased Hon. Cara Lee Neville MILES LORD – The Maverick Judge Who Risk of Future Injury that is Not Thomas J. Lyons Brought Corporate America to Justice Charles T. Hvass More Likely Than Not to Occur Adrian Herbst Russell M. Spence 29 Trail Lawyer of the Year Awards 42 Family Law Stanley E. Karon Thomas Wolf (deceased) 31 Practice Pointers 43 Workers’ Compensation Report Hon. Duane M. Peterson (deceased) Joseph Burkard 34 Employment Law Report Paul Tierney (deceased) 46 Welcome New Members Ronald I. Meshbesher Minnesota Supreme Court Upholds John V. Norton the Legislative Fix of Minnesota’s 46 Our Sustaining Members Robert N. Stone Whistleblower Law – to the Benefit Harry Munger John Cochrane (deceased) of Plaintiffs and the Rule of Law Fred Allen (deceased) Editor This Issue | Erik D. Willer, TSR Injury Law Burton R. Sawyer Thomas Burns (deceased) Si Weisman ©2018, Minnesota Trial magazine is a regular publication of the Minnesota Irving Nemerov (deceased) Association for Justice and is devoted to presenting timely, informative and practical Hon. John Dablow Norman Perl information to the Trial Bar. The opinions expressed in this publication are those of Joseph E. Wargo the authors and do not necessarily reflect association policy or editorial concurrence. Clint Grose (deceased) Hon. Robert Gillespie(deceased) All inquiries should be made to Carla Ferrucci, Editor, 140 Baker Building, Paul Owen Johnson (deceased) 706 Second Avenue South, Minneapolis, MN 55402. Donald Rudquist (deceased) Charles T. Hvass Sr. (deceased) Tel: (612) 375-1707 or (800) 898-6852 Fax: (612) 334-3142 E-Mail: firstname.lastname@example.org. Orville Freeman (deceased)
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Statutory Construction: CHANGE SERVICE REQUESTED
MAJ Mid-Winter Meeting
IT STARTS WITH US!
In This Issue
MINNESOTA TRIAL Fall 2017/Winter 2018 3
IT IS AN ANNUAL TRADITION to look back on the past year’s ups and downs as each year winds down. When they look back on 2017– historians will likely describe the year as defined by tremendous cultural changes. Dozens of formerly oppressed groups raised their voice in opposition to an unacceptable status quo. 2017 became a year when many have said ‘justice’ has not prevailed for them – and they aren’t going to take it anymore! As advocates for justice, we can empathize with the feeling of being left behind. When we look in our collective mirror, we see lawyers defending victims – seeking truth and justice. We believe in what we do with every fiber of our being and bring a passion to our work that is sometimes lacking in other areas of the practice of law. We constantly fight the unfair and deliberately created stereotypes of our profession and clients. Corporate defendants paint our clients as greed driven degenerates and use their propaganda machine to generate the fiction that we are purveyors of lies. This systematic attack on our profession by powerful corporate and insurance interests is nothing new to our membership. We have faced this “fake news” from the well-oiled corporate machine since the 1950’s. Yet, despite the vast resources being used to denigrate our work – we have persisted to seek justice for our clients. BY ROBERT W. ROE
The same corporate interests that seek to crush our clients also work to keep many in our society silent as well. Using front groups like the American Legislative Exchange Council (ALEC), they work to disenfranchise people of color from the voting booth; sanction discrimination of same sex couples in the name of religious freedom; and stifle the voices of women who are sexually harassed and assaulted
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in the workplace by non-disclosure agreements. Despite attempts to silence their voices – they have persisted. Is it possible that in 2017, as the lyrics of famous Minnesota songwriter Bob Dylan predicted, that the times …. they are a-changin’? Our state and our country are witnessing social changes that have not been seen in a generation – defining new norms for generations to come. Nothing has been more gripping than seeing women – long subjected to inequality and male sexual aggression – fighting back! Rather than being dismissed as liars or jilted lovers who have a grudge, their stories of sexual violence and manipulation are being taken seriously, and with consequences. The complaints of women of sexual harassment are, for the first time, being heard, believed and not marginalized. Their collective words, their calls to action, and their solidarity, carry an awesome power. The new reality is that the rich and powerful can no longer rely on a denial and a propaganda machine to retain their positions. Famous men, like Bill Cosby, Roy Moore, Louis C.K., Matt Lauer, US Senator Al Franken, MN State Rep. Tony Cornish, MN Senator Dan Schoen, and many others faced a reckoning in 2017. Women – and men too – cheer this seismic shift. It is a reckoning that has only just begun. Women must continue to be strong. Women must continue
to be heard and men must stand with them to speak the truth. Judges, politicians, managers, and co-workers must view women for their brains, skills and accomplishments – not their sexuality. When that day comes, the reckoning will have been complete, and our society will be stronger. The media’s attention is currently focused on women’s voices, but others are working hard to achieve equality. Communities of color are refusing to accept the institutional racism that exists to silence their voices, and the LGBT community continues the fight to be seen and accepted. We applaud these efforts and must join in their battle. As lawyers, we possess important tools to advance the cause of justice. We have resources, we fight, we know the legal process and right steps to corrects many of society’s wrongs. It is our challenge and obligation to not stand idle and hope someone else might do the right thing. We must continue to add our voices to the call for justice in the courtroom … and beyond. That is true even if it is a ‘justice’ we have not developed a reputation for advancing or if it makes us uncomfortable. In fact, it may be even more important if it DOES make us uncomfortable. Keep fighting for justice. Keep fighting for equality. We are stronger together and can make a difference for our clients and society.
2017-2018 Board of Governors Stephanie Balmer James A. Batchelor Thomas R. Bennerotte Eric W. Beyer Nate Bjerke Lindsey A. Carpenter George Chronic E. Michelle Drake Sheila Donnelly-Coyne Brendan J. Flaherty Elizabeth M. Fors James Greeman Jacob R. Jagdfeld Kate E. Jaycox Jason P. Johnston Jeffrey A. Jones Peter J. Kestner Robert L. Lazear M. Ryan Madison Gregory S. Malush Marcia K. Miller Teresa Farris McClain Christopher J. Moreland Elliot L. Olsen Jerome W. Perry Laura L. Pittner Sean Quinn Ashleigh Raso Richard J. Schroeder Michael F. Scully Jeff Sieben Keith E. Sjodin Joel E. Smith Matthew E. Steinbrink Stacy Deery Stennes Jeremy R. Stevens Patrick Stoneking William K. Sutor III Tara D. Sutton Scott A. Teplinsky Brandon Thompson Brandon Vaughn Ryan O. Vettleson Kate G. Westad Erik D. Willer Mark C. Yira Genevieve M. Zimmerman New Lawyers Section Rep. Nathan M. Maus Women for Justice Rep. Carrie A. Loch
MINNESOTA TRIAL Fall 2017/Winter 2018 5
MINNESOTA’S Failed Attempt At First Party Bad Faith BY CHUCK SLANE
et me tell you a story. A man goes to the bar and drinks to the point that he can barely walk to his car. He puts the keys in the ignition and drives down the road. The drunk crosses the center line and smashes into another car, killing that driver. That driver is a husband and a father of five, the sole breadwinner for the family. The widow hires a lawyer. The lawyer finds out that the drunk driver has only $25,000 of insurance coverage. The lawyer sends a settlement demand saying, “We will settle if you pay the entire $25,000 limit.” The insurance carrier says, “No. We need a discount, you have to accept $24,000.” The lawyer says, “Are you kidding? This case is worth many times more than your insurance policy limit.” So the lawyer sues the case out, goes in front
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of a jury and receives a verdict of $745,000.
breach of fiduciary duties. The law allows a recovery of only $500.2
The widow’s lawyer then sues the insurance company for breach of fiduciary duties. The law is good and it provides a remedy to the widow. She is allowed to collect the entire excess judgment of $720,000.1
This is a true story. The law in Minnesota provides a remedy of actual damages if someone else’s insurance company breaches fiduciary duties. If your own insurance company breaches fiduciary duties the remedy is, “one half the difference between the offer ten days before trial and the proceeds awarded.” The Minnesota Supreme Court recently held that proceeds awarded means the policy limit rather than the verdict. That is why the remedy against the widow’s insurer would be $500 in the story presented above.
Now let’s change one fact in that story. Let’s say the drunk driver did not have insurance. The widow’s lawyer presented the settlement demand for $25,000 to the widow’s own insurance company. The insurance company still says, “No. We need a discount, you have to accept $24,000.” The widow’s lawyer goes in front of a jury and obtains the same verdict of $745,000.
In this article we will explore how we got here and how we can move forward.
The widow’s lawyer then sues the widow’s own insurance company for
We tend to get decisions that don’t reflect the reality of the situation.
One reason is because courts are being asked to interpret statutory phrases rather than develop the common law. When courts develop the common law they must consider the effect of the wrongful behavior and the appropriate remedy. When we ask the Courts to interpret statutory phrases, they lose that power. We need to get back to developing the common law. Courts should be empowered to weigh the needs of society and fashion an appropriate remedy. Over time courts have given their responsibility for developing the common law to the legislative branch of government. While it is true that the legislature always plays a significant, even the most significant, role in formulating public policy of the state,3 the legislature’s role is not exclusive.4 Common law courts have the power to recognize and abolish common law doctrines.5
The rest of the nation developed its common law and adopted remedies for a breach of fiduciary duties in the setting of an insurance contract. Minnesota was left behind. Specifically Minnesota’s development of first party bad faith came to a screeching halt with the Supreme Court’s decision of Haagenson v. National Farmers Union Property and Casualty Company.6 In that case, a jury found that the insurance company had no good faith basis to deny a claim and awarded damages for emotional distress and punitive damages in addition to the covered claims. The Supreme Court reversed. They held there must be an independent tort accompanying the breach of contract to allow such damages. The Court relied upon the holding of Wild v. Rarig7, which found that a malicious or bad faith motive in breaching
a contract does not convert a contract action into a tort action. In other words, the Minnesota Supreme Court equated insurance contracts to just another contract. Meanwhile, the rest of the nation began to recognize that there was a difference between insurance contracts and other contracts. The difference is that an insurer has a fiduciary duty. Insurers must properly handle claims and put its customer’s interest above its own. Courts found that insurance contracts had an implied covenant of good faith and fair dealing. Violation of those duties gave rise to a cause of action in tort.8 Courts have reasoned as follows: The insurer’s obligations are … rooted in their status as purveyors of a vital service labeled quasi-public continued on next page
MINNESOTA TRIAL Fall 2017/Winter 2018 7
MINNESOTA’S FAILED ATTEMPT AT FIRST PARTY BAD FAITH continued from page 7
CHUCK SLANE has a reputation as one of the best trial lawyers in Minnesota. He has handled numerous jury trials, and has obtained many six, seven, and eight figure verdicts for his clients. He has trial experience in many different types of personal injury claims, including automobile accidents, premises liability, dram shop, wrongful death, and insurance bad faith cases. It is Chuck’s belief that his greatest attribute as a lawyer is his ability to listen to and spend time with his clients. The only way that a lawyer can do a good job of representing a client in the courtroom is to truly know them and understand what they have gone through. It is that experience that allows the story to be properly told so that it will be experienced by others.
in nature. Suppliers of services affected with a public interest must take the public’s interest seriously, where necessary placing it before their interest in maximizing gains and limiting disbursements. … [A]s a supplier of a public service rather than a manufactured product, the obligations of insurers go beyond meeting reasonable expectations of coverage. The obligations of good faith and fair dealing encompasses qualities of decency and humanity inherent in the responsibilities of a fiduciary. Insurers hold themselves out as fiduciaries, and with the public’s trust must go private responsibility consonant with that trust.9 Rather than develop the common law, Minnesota turned to the legislative process. The first attempt was the passage of the Minnesota Fair Claims Act. This was a comprehensive legislative plan that enacted specific duties and standards of care for insurance carriers dealing with their customers. A plaintiff brought suit seeking to enforce these duties and seek actual damages caused by the breach of those duties. Unfortunately, the Supreme Court found that there was no legislative intent to create a new cause of action. They found that the Unfair Claims Practices Act created administrative remedies rather than a private cause of action.10 Why did they make that decision? Because the court interpreted the words of a statute. Had the court considered the proposed remedy as a development of the common law, it could have considered the harms caused by the breach of duty and the need to provide a remedy. That may have resulted in a different decision.
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The lack of adequate remedies led to abuses in the insurance industry. For instance, Allstate hired a consulting company known as McKinsey & Co. to redesign its claim program. McKinsey was blunt in stating its intent, “Our change goal is to redefine the game … to … radically alter our whole approach to the business of claims…”11 McKinsey recommended abandoning the fundamental principle that an insurer must place the interests of its customer above its own interests. They converted the claims process into an economic game, a competition between customers and the insurer. As one slide stated, “Improving Allstate’s casualty economics will have a negative economic impact on some medical providers, plaintiff attorneys, and claimants. … Zero-sum economic game – Allstate gains – Others must lose.”12 The claims process became a profit center. Insurers needed to make more profit by paying less on claims. Offers on cases no longer had any basis in evidence. The next attempt to legislate a remedy for first party bad faith was Minn. Stat. § 608.14. If bad faith is proven, the statute provides a remedy. The remedy is recovery of “taxable costs.” These taxable costs are calculated as one half the difference between the offer 10 days before trial and the “proceeds awarded.” It was always assumed that proceeds awarded meant the jury verdict. In Wilbur v. State Farm the Supreme Court decided proceeds awarded meant the insurance policy limit. By asking the court to interpret statutes, rather than develop the common law, we have changed the way judge’s look at and decide cases.
If a statute is “clear and unambiguous,” it is to be given its plain meaning. Another way to say this is the court is to ignore the intent behind the statute. When the courts do not consider the needs of society we get some strange results. For example: • non-payment is a payment (Swanson v. Brewster)13 • non-party is a party (Staab v. Diocese of St. Cloud)14 Again, in Wilbur, The Minnesota Supreme Court found the language of the statute was clear and unambiguous. As a result, the Court did not consider the clear evidence of legislative intent. Wilbur presented to the court audio recordings of the lobbyist for State Farm.
That lobbyist was also the lawyer arguing the appeal on behalf of State Farm. When testifying before the legislative committee, Mr. Moran was asked of the meaning of the words “proceeds awarded.” His answer reflected that “proceeds awarded” meant what was awarded by the jury. This was the opposite of the argument he made to the Court. This evidence was not considered. In summary, we have reached the point where we are because the courts have given up their responsibility to develop the common law. Lawyers also have failed to present opportunities for the courts to develop the common law. Instead, we have a jurisprudence of statutes. Courts no longer consider the
needs of our society. Instead the power of the courts is to define words. The next question is, where do we go from here? The easy response is we need a legislative fix. But remember, that is how we got to this point. We need to develop the common law. We need a public policy that recognizes insurance contracts are different than other contracts. We need the law to recognize that insurers have a fiduciary duty to their customers. We need the law to recognize the harm caused by violations of that duty. Minn. Stat. 604.18 needs to be amended. The amendment should reflect that it is the policy of Minnesota that insurance contracts are in the public interest and continued on next page
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MINNESOTA TRIAL Fall 2017/Winter 2018 9
MINNESOTA’S FAILED ATTEMPT AT FIRST PARTY BAD FAITH continued from page 9 Short v. Dairyland, 334 N.W.2d 384 Minn. 1983)
Wilbur v. State Farm, 892 N.W.2d 521 (Minn. 2017)
Equitable Holdings v. Equitable Bldg, 279 N.W.2d 735 (Minn. 1938)
Dukowitz v. Hannon Sec. Services, 841 N.W.2d 147 (Minn. 1998)
Lake v. Walmart Stores, 582 N.W.2d 23 (Minn. 1998) 5
277 N.W.2d 648 (Minn. 1979)
234 N.W.2d 790
Gruenberg v. Aetna Ins. Co., 510 P2d 1032 (Cal. 1973) 8
Egan v. Mutual of Omaha Ins. Co., 620 P.2d 141, 146 (Cal. 1979) 9
Morris v. American Family, 386 N.W.2d 233 (Minn. 1986)
Initial presentation on “Claims Core Process Redesign” 5166
Id. at 1426.
784 N.W.2d 264 (Minn. 2010)
813 N.W.2d 68 (Minn.2012)
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give rise to a fiduciary duty to customers. As a fiduciary an insurer, has an obligation to do all of the following: • Fully, fairly and objectively investigate the claims against its insureds. • Fully, fairly and objectively evaluate the claims against its insureds. • Carry out all of its functions and duties without regard to its insureds’ policy limits. • Fully, continuously and adequately communicate with its insureds, and inform its insureds of all matters necessary for the insureds’ protection of their own interests. • Give equal consideration to the interests of its insureds. A violation of any of those duties should result in liability for actual damages caused. The procedure should also be clarified so that the claim for a violation of this duty would be brought as a separate
proceeding. That separate proceeding could only be brought after completion of the underlying claim. Such a procedure would give insurers an opportunity to remedy any violations and the opportunity to protect their work product during the handling of the underlying claim. Finally, the determinations of fact should be made by a jury consistent with the United States Constitution. Will this be a difficult task to get this passed? Of Course. Imagining the difficulties ahead in pursuit of this worthy cause I am reminded of the great Harry Philo who once said: We are lawyers on the side of people. Never let us forget that the law is never settled until it is settled right, it is never right until it is just, and it is never just until it serves society to the fullest.
Statutory Construction: The Inconsistent Approach of the Minnesota Court BY WIL FLUEGEL
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umerous claims on behalf of injury victims rely on the operation of a statutory framework, whether it is a claim for No-Fault benefits, Workers’ Compensation, a claim for subrogation, underinsured motorist coverage, employment rights, or family law rights, a statute lurks in the background of the claim. The statute operates with inconspicuous innocence much of the time, but when a key term within it becomes the focus of an advocate, adversary or the court, then the rules for statutory construction come into play. Understanding what those rules are and how they function is a useful aptitude for any advocate. Regrettably, the courts have been less than consistent in their approach to this fundamental task in Minnesota, and particularly the Minnesota Supreme Court has said one thing and done another in this field. Being able to adroitly point to those inconsistencies may promote a better chance to empower the court to reach the proper outcome. This article points to some of the inconsistencies of the court and recounts some of the recent curious constructions they have fashioned. More importantly, however, it articulates the actual rules and principles that are supposed to be employed according to the court’s own pronouncements, statutory declarations and the well-accepted Latin-tinged phrases of the common law canons of construction. A. Rules of the Road 1. The court is to interpret statutes as the legislature intended, not enact policy The role of the courts is fundamentally “‘to say what the law is.’” United States v. Nixon, 418 U.S. 683, 703 (1974), quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). “If a governmental decision involves the type of political, social and economic considerations that lie at the center of discretionary action, including consideration of safety issues, financial burdens, and possible legal consequences, it is not the role of the
courts to second-guess such policy decisions.” Watson by Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406, 412 (Minn. 1996). Even when the court feels that a legislative enactment is improvident, “it is [the court’s] job to interpret the Act as written and it is the Legislature’s job to draft legislation, as it deems appropriate.” KSTP-TV v. Metro. Council, 884 N.W.2d 342, 349 n.4 (Minn. 2016). “The goal of all statutory interpretation is to ‘ascertain and effectuate the intention of the legislature.’” Staab v. Diocese of St. Cloud, 813 N.W.2d 68 (Minn. 2012), quoting Minn. Stat. § 645.16; Brayton v. Pawlenty, 781 N.W.2d 357, 363 (Minn. 2010); State v. Wiltgen, 737 N.W.2d 561, 570 (Minn. 2007). 2. In effecting legislative intent, the court first decides if the law is ambiguous or not The first step in statutory interpretation is to determine whether the statute’s language, on its face, is ambiguous. Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 72 (Minn. 2012). “A statute is ambiguous only if it is subject to more than one reasonable interpretation.” 500, LLC v. City of Minneapolis, 837 N.W.2d 287, 290 (Minn. 2013); Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn. 1999) (“A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.”). If a statute is ambiguous, then – and only then – the court is empowered to apply the canons of construction to resolve the ambiguity. State v. Nelson, 842 N.W.2d 433, 446 (Minn. 2014), see also State v. Struzyk, 869 N.W.2d 280, 284-85 (Minn. 2015) (the court will consider the canons of statutory construction only after determining that a statute is ambiguous); State v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013). If a statute is not ambiguous, then its “plain meaning” must be applied. State v. Rick, 835 N.W.2d 478, 482 (Minn. 2013). “If the statute is not ambiguous, the inquiry ends there.” In re PERA Police & Fire Plan Line of Duty Disability Benefits of Brittain, 724 N.W.2d 512, 516 (Minn. 2006).
WIL FLUEGEL is a Minneapolis attorney practicing in plaintiff’s personal injury trials and appeals in Minnesota and Wisconsin. He is a board certified civil trial specialist by the National Board of Trial Advocacy and Minnesota State Bar Association and is a member of the American Board of Trial Advocates, the Million Dollar Roundtable, and is featured in Best Lawyers in America and Minnesota Super Lawyers in personal injury trials and in appeals. He was president of the Minnesota Trial Lawyers Association in 2005-2006, and served from 1999-2007 on the Minnesota Supreme Court’s No-Fault Standing Committee, and on the state’s Campaign Finance & Public Disclosure Board from 1998-2005. He served on the executive committee of the Quie Commission studying means to promote judicial integrity from 2004-2007 and was a founding member of the Minnesota Supreme Court Historical Society. He is a frequent presenter at CLEs and has authored chapters in eight texts, over 50 legal periodicals and more than 200 seminars. He is the recipient of two Member of the Year awards for 1997 and 2007 and one Public Service Award from MTLA/MAJ in 1994 and the 2009 Award of Professional Excellence by the MSBA as well as the 2005 Attorney of the Year Award by Minnesota Lawyer.
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STATUTORY CONSTRUCTION continued from page 13
B. Curious Constructions 1. Beauty is in the eye of the beholder “Beauty in things exists merely in the mind which contemplates them,” according to the bromide of Scottish philosopher David Hume, Moral and Political Essays (1742). Similarly what is ambiguous to one may be stated with unambiguous clarity for another. The extent to which the court has sometimes gone to declare a lack of ambiguity or the clear intent of the legislature has varied. Some examples are included here for illustrative purposes. 2. A non-payment is unambiguously a type of payment For example in Swanson v. Brewster, 784 N.W.2d 264 (Minn. 2010), the court held that even a third dictionary definition of the term “payment” may establish
it’s “plain meaning” and thereby avoid the need for statutory construction. See Swanson, 784 N.W.2d at 275 (the “plain and ordinary meaning of the word payment is broader than the narrow meaning advocated by” plaintiff). In Swanson the court noted that Black’s Law Dictionary states that a payment may be something other than cash and includes “[t]he money or other valuable thing so delivered in satisfaction of an obligation,” and observed that the third dictionary definition of “payment” in the American Heritage Dictionary, which said that “the word ‘pay’ can mean ‘[t]o discharge or settle (a debt or an obligation).’” Swanson, 784 N.W.2d at 275. Thus, the court declared that the “plain meaning” of the Collateral Source Statute’s mandatory subtraction from a verdict of a pre-trial “payment” includes advance-negotiated discounts in the fees charged for medical services that had been achieved by a
subrogated health insurer on behalf of the injury victim. Id., citing BLACK’S LAW DICTIONARY, 1243 (9th ed. 2009) and THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, 1291 (4th ed. 2000). The effect was thus to declare a discount or form of non-payment to unambiguously be intended by the legislature as a type of “payment,” in order to reduce the recovery of an injury victim and thereby reduce the obligation of the tortfeasor who had caused that injury. 3. A non-party is unambiguously a type of party A similar effort to achieve a determination of “no ambiguity,” was achieved by the court in Staab I, in which the court noted that the word “when” was unclear as was the phrase “severally liable” in the joint-and-several liability statute,
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but while the law was “not a model of clarity,” the “plain language of the statute” dictated several treatment of liability of the only party defendant found negligent. Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 72 (Minn. 2012). Still, in Staab I, while declaring the terms unambiguous and expressly noting that tools of statutory construction only applied in the presence of an ambiguity, id. at 72, it applied numerous tools of construction, id. at 83-84. Curiously in Staab II, the court determined that the phrase “uncollectible from [a] party” was ambiguous as to whether reallocation of the several liability of a legal “party’s” obligation applied to a non-party as well. See Staab v. Diocese of St. Cloud, 853 N.W.2d 713, 717-18 (Minn. 2014). The effect of the ruling was to have subdivision 1 declared
unambiguous, just as subdivision 2 was declared ambiguous, but to have a “party” include a non-party in for purposes of both subdivisions.
despite the statutes declared lack of ambiguity.
4. Proceeds of a verdict unambiguously mean insurance proceeds available to an insured rather than the verdict they have achieved
5. There are other illustrations of the court employing tools of construction after declaring a law to be unambiguous even though the court cannot legally use those tools except when a statute is first declared to be ambiguous
Finally, there is the case of Wilbur v. State Farm Mut. Auto. Ins. Co., – N.W.2d – (Minn. 2017), the court held that the phrase “proceeds awarded” in the state’s first-party bad faith law unambiguously meant “insurance proceeds awarded,” though that characterization was not employed in the statute itself, and the court reached the result by employing both a version of the canon on the context-of-associated words and the canon on related statutes,
Recently, in State v. Thonesavanh, A15-1716 – N.W.2d – (Minn. 2017), the court’s majority took the position that the “plain meaning” of the word “take” under a vehicle theft law meant that one could “take” a vehicle without moving it, making the canon of lenity – and its more generous treatment to an accused – inapplicable because it is a canon of construction that does not become relevant unless and until a declaration of ambiguity has been reached. continued on next page
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STATUTORY CONSTRUCTION continued from page 15
The concurrence of Justice Anderson, however, noted in its footnote 1, just a few of the numerous occasions when the Minnesota Supreme Court had employed canons of construction despite having declared that a statute is “unambiguous.” These include Binkley v. Allina Health Sys., 877 N.W.2d 547, 555 (Minn. 2016) (Lillehaug, J., concurring) (stating that the presumption that statutes are consistent with the common law “typically is applied before we determine whether a statute is ambiguous”); Dahlin v. Kroening, 796 N.W.2d 503, 505 (Minn. 2011) (considering the common law without mentioning whether the statute was ambiguous); State v. Soto, 378 N.W.2d 625, 627 (Minn. 1985) (relying on the common law as an “aid of statutory construction” without concluding that the statute was ambiguous). C. Accountable Articulations Assuming the court actually follows the law it has articulated on how to construe statutes, then the following rules actually apply.
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1. Step one is the ambiguity inquiry The first step in statutory interpretation is to determine whether the statute’s language, on its face, is ambiguous. Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 72 (Minn. 2012). “A statute is ambiguous only if it is subject to more than one reasonable interpretation.” 500, LLC v. City of Minneapolis, 837 N.W.2d 287, 290 (Minn. 2013). If it is, then the court may apply the canons of construction to resolve the ambiguity. See State v. Nelson, 842 N.W.2d 433, 446 (Minn. 2014). When a court is asked to apply a statute, the construction of the law presents a question of statutory interpretation, which is reviewed de novo, without deference to the trial court’s efforts at construction. See State v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013). 2. Courts must determine and enforce the intent of the legislature in enacting a law The objective of statutory interpretation is to ascertain and
effectuate the legislature’s intent. State v. Rick, 835 N.W.2d 478, 482 (Minn. 2013), citing City of Brainerd v. Brainerd Invs. P’ship, 827 N.W.2d 752, 755 (Minn. 2013).
6. The legislative history of the statute – the occasion and ills it was designed to cure – are a key tool of construction
3. Court begins by giving the statute’s words their plain meaning
“If a statute is ambiguous, this court may look to other factors, such as the occasion and necessity for the law, to determine legislative intent.” Leitz, 718 N.W.2d at 870, citing Minn. Stat. § 645.16. The “contemporaneous legislative history” is a key guide. Id.
When interpreting a statute, a court must “give words and phrases their plain and ordinary meaning.” Hayes, 826 N.W.2d at 803–04, quoting Premier Bank v. Becker Dev., LLC, 785 N.W.2d 753, 759 (Minn. 2010), citing Minn. Stat. § 645.08 (2012). 4. If the legislature’s intent is clear, the court’s inquiry ends with the law’s “plain meaning,” and if not, then further court assessment occurs “If the Legislature’s intent is clear from the statute’s plain and unambiguous language, then we interpret the statute according to its plain meaning without resorting to the canons of statutory construction.” Rick, 835 N.W.2d at 482. “But when a statute is susceptible to more than one reasonable interpretation, then the statute is ambiguous and we may consider the canons of statutory construction to ascertain its meaning.” State v. Struzyk, A13-0821 – N.W.2d – slip op at 7-8 (Minn., Aug. 26, 2015), citing Hayes, 826 N.W.2d at 804; see also Lietz v. N. States Power Co., 718 N.W.2d 865, 870–71 (Minn. 2006).
“To determine legislative intent, [a court] . . . may ‘consider the legislative history of the act under consideration, the subject matter as a whole, the purpose of the legislation, and objects intended to be secured thereby.’” Staab v. Diocese St. Cloud, 853 N.W.2d 713, 718 (Minn. 2014), quoting Sevcik v. Comm’r of Taxation, 257 Minn. 92, 103, 100 N.W.2d 678, 686–87 (1959).
7. Other tools of statutory construction may be used to ascertain legislative intent behind an ambiguous statutory phrase Specifically, the canons of statutory construction provide that: When the words of a law are not explicit, the intention of the legislature may be ascertained by considering, among other matters: (1) the occasion and necessity for the law; (2) the circumstances under which it was enacted; (3) the mischief to be remedied; (4) the object to be attained; (5) the former law, if any, including other laws upon the same or similar subjects; (6) the consequences of a particular interpretation; continued on next page
5. Ambiguity in a statute’s language will trigger the use of statutory canons of construction If “a statute is susceptible to more than one reasonable interpretation, then the statute is ambiguous . . . .” Hayes, 826 N.W.2d at 804. When a statutory term or phrase “is ambiguous . . . [the court] may consider the canons of statutory construction to ascertain its meaning.” Id. at 804, citing Lietz, 718 N.W.2d at 870–71; see also State v. Leathers, 799 N.W.2d 606, 611 (Minn. 2011) (“When a statutory provision is ambiguous, it is appropriate to turn to the canons of statutory construction to ascertain a statute’s meaning.”).
MINNESOTA TRIAL Fall 2017/Winter 2018 17
STATUTORY CONSTRUCTION continued from page 17
(7) the contemporaneous legislative history; and (8) legislative and administrative interpretations of the statute. Minn. Stat. § 645.16. Canons that guide construction may be intrinsic – operating within the words of the statute itself – or extrinsic – looking to guides outside the statute for the meaning of a term within the statute. a. Canon against surplusage The intrinsic canon against surplusage favors giving each word or phrase in a statute a distinct, not an identical, meaning. See Shire v. Rosemount, Inc., 875 N.W.2d 289, 294 n.4 (Minn. 2016) (favoring a definition of a term, “voluntary,” that gave it a distinct meaning from two other terms, “ordered” and “assigned,” in the statute).
b. Canon on context of associated words within the statute Another intrinsic interpretive canon noscitur a sociis, means that a word is “known by its associates,” and thus the context in which it is used will affect its meaning. Cty. of Dakota v. Cameron, 839 N.W.2d 700, 709 (Minn. 2013). c. Canon of related statutes The extrinsic related-statutes canon, in pari materia “allows two statutes with common purposes and subject matter to be construed together to determine the meaning of ambiguous statutory language.” State v. Lucas, 589 N.W.2d 91, 94 (Minn. 1999). The rationale for the canon is that related statutes, although separate, should be considered as “one systematic body [of] law.” State v. Bolsinger, 21 N.W.2d 480, 486 (Minn. 1946).
d. Canon on imputed common law meaning of a term that is used in a statute The extrinsic imputed-commonlaw-meaning canon explains that “[a] statute that uses a common-law term, without defining it, adopts its common-law meaning.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 320 (2012); accord State v. Soto, 378 N.W.2d 625, 628 (Minn. 1985) (“[T]his court may refer to common law rules as an aid to construction or interpretation of the phrase as it is used in the . . . statute.”). Again, this canon applies only if the “text is ambiguous.” Kratzer v. Welsh Cos., LLC, 771 N.W.2d 14, 21 (Minn. 2009).
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e. Canon on common law abrogation The extrinsic common-law-abrogation canon, provides that a statute in abrogation of the common law should be narrowly construed. See, e.g., Binkley v. Allina Health Sys., 877 N.W.2d 547, 554-55 (Minn. 2014) (Lillehaug, J., concurring). Statutes in derogation of the common law are strictly construed. Rosenberg v. Heritage Renovations, LLC, 685 N.W.2d 320, 327 (Minn. 2004). The court will thus “presume that statutes are consistent with the common law.” Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 73 (Minn. 2012), citing In re Shetsky, 239 Minn. 463, 469, 60 N.W.2d 40, 45 (1953). f. Other canons There are many other canons of construction. See, e.g., Ryan Contracting Co. v. O’Neill & Murphy, LLP, 883 N.W.2d 236, 244 (Minn. 2016) (describing last-antecedent canon); Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 74 (Minn. 2012) (explaining that words and phrases with a special meaning are construed according to the special meaning); State v. Zais, 805 N.W.2d 32, 40 n.4 (Minn. 2011) (describing the plural includes the singular); In re Welfare of J.B., 782 N.W.2d 535, 543 (Minn. 2010) (describing expressio unius est exclusio alteris); Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431, 435 (Minn. 2009) (describing the singular includes the plural); Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn. 2002) (describing the canon against retroactivity); Am. Family Ins. Grp. v. Schroedl, 616 N.W.2d 273, 278 (Minn. 2000) (describing canon against absurd results or unjust consequences); Correll v. Distinctive Dental Servs., P.A., 607 N.W.2d 440, 446 (Minn. 2000) (explaining that the latter enacted of two irreconcilable statutes prevails); id. at 445-46 (explaining that the specific provision prevails over the general provision); In re Linehan, 594 N.W.2d 867, 874 (Minn. 1999) (describing canon of constitutional avoidance). D. Conclusion The Minnesota Supreme Court has said that it may apply canons of construction and other interpretive aids such as legislative history only if a statute is ambiguous, because it has more than one reasonable interpretation. While numerous examples exist that evince a departure from its own rules, if one assumes that the court will follow the rules it has articulated, the guidance expressed in this short article may help inform one’s judgment on how to construe the laws that advocates seek to apply on behalf of their clients. MINNESOTA TRIAL Fall 2017/Winter 2018 19
MAJ MID-WINTER MEETING FEBRUARY 23 – 24, 2018
IT STARTS WITH US! Inn on Lake Superior
Northern Lights Conference Center – 350 Canal Park Drive, Duluth, MN Rich Ruohonen, Course Chair | James Balmer, Co-Chair 7.75 CLE hours requested including 1.0 elimination of bias credit
CLE SCHEDULE & SOCIAL EVENTS FRIDAY, FEBRUARY 23, 2018 11:45 am – 1:00 pm >> Registration
12:00 pm >> Joint Finance and Executive Committee Meeting* 1:00 – 1:45 pm >> Miles Lord: The Maverick Judge Who Brought Corporate America to Justice Roberta B. Walburn; Ciresi Conlin LLP 1:45 – 2:30 pm >> Empathy as a Critical Trait for Trial Lawyers Theresa McClain; Robins Kaplan LLP 2:30 – 2:45 pm >> Break *Committee members only
2:45 – 3:45 pm >> Enhancing Damages in Wrongful Death Cases Chris A. Messerly; Robins Kaplan LLP Elizabeth M. Fors; Robins Kaplan LLP 3:45 – 4:45 pm >> Fulfilling the Promise: A Certain Remedy for All Injuries Justice David Lillehaug Minnesota Supreme Court Justice David Lillehaug will discuss the Minnesota Constitution’s promise to every person of a certain remedy in the laws for all injuries, including the critically-important jury trial right. He will unveil fresh data on Minnesota civil jury trials and will review recent developments in our state’s tort and worker’s compensation caselaw.
FRIDAY EVENING SOCIAL EVENTS
6:30 – 7:30 pm >> Dinner at Greysolon Ballroom 231 E Superior St, Duluth, MN 55802 218-722-7466 | greysolonballroom.com
9:30 – 10:30 am >> Mass Tort/MDL Panel Moderator Stacy Deery Stennes; Conlin Law Firm, LLC Panelists Kate E. Jaycox; Robins Kaplan LLP Yvonne M. Flaherty; Lockridge Grindal Nauen PLLP Ashleigh E. Raso; Meshbesher & Spence, Ltd.
5:30 – 6:30 pm >> Hors D’oeuvres & Cocktail Hour at Greysolon Ballroom 231 E Superior St, Duluth, MN 55802 218-722-7466 | greysolonballroom.com
7:30 – 8:15 pm >> Keynote: Fanning the Flames
of Activism: Civil Liberties, Civil Litigation, and Civil Discourse John Gordon, Executive Director, ACLU
SATURDAY, FEBRUARY 24, 2018 8:30 – 9:00 am >> Registration
9:00 – 9:30 am >> 62Q.75 and Electronic Billing Requirements Post-Nguyen Isaac I. Tyroler; TSR Injury Law
Dr. John G. Stark – Wine at dinner Michelle Wilson – Classroom refreshments
10:30 – 10:45 am >> Break 10:45 – 11:45 am >> The Surprising Side of Bias – What You Don’t Know Could Hurt You Kristin Haugen; KC Haugen Law, LLC 11:45 am – 12:15 pm >> New & Interesting Ways to Find Stuff to Help You Win Your Case Stacy Deery Stennes; Conlin Law Firm, LLC 12:15 – 12:45 pm >> Lunch 12:45 – 2:00 pm >> Membership/Board of Governors Meeting
FEATURING JUSTICE DAVID LILLEHAUG Justice Lillehaug was appointed to the Minnesota Supreme Court in 2013 by Governor Mark Dayton and was elected to a six-year term in 2014. Lillehaug graduated with honors from Harvard Law School and with highest honors from Augustana College. From 1994 to 1998 Lillehaug was the United States Attorney, the federal governmentâ€™s chief prosecutor and civil lawyer in the state. During 25plus years of complex litigation experience in private practice, Lillehaug represented large and small businesses, public officials, the University of Minnesota, and Indian tribes in high-profile lawsuits and investigations.
JOHN GORDON; EXECUTIVE DIRECTOR, ACLU John grew up in Iowa, graduated from Princeton University and Harvard Law School, and clerked for the Hon. Lewis R. Morgan on the US Court of Appeals for the Fifth Circuit. Before joining ACLU-MN, John practiced in the area of complex civil litigation at Faegre Baker Daniels, trying more than 100 civil jury cases to conclusion. He also represented students harassed because of their sexual orientation, victims of domestic violence, immigrants seeking asylum, and proponents of sane gun control. John is frequently retained as a mediator and is an Adjunct Professor at the University of Minnesota Law School.
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THE INN ON LAKE SUPERIOR Northern Lights Conference Center 350 Canal Park Drive, Duluth, MN To reserve your room, call The Inn on Lake Superior at 1-888-668-4352 and identify yourself as an MAJ member and Mid-Winter Meeting participant. Our group ID is: 7762. The block of rooms for MAJ members will be held until February 2, 2018. DINNER DETAILS The reception and dinner on Friday evening will be held at the Greysolon Ballroom, 231 East Superior Street, Duluth, MN. The dinner offering will be a duet of filet and salmon. If you or your guest have other meal requirements such as vegan, gluten-free or allergies you must contact Rochelle Peyton at the MAJ office by February 9. Rochelle can be reached at firstname.lastname@example.org or (612) 375-1707. SPECIAL ACCOMODATIONS If you have need for special accomodations for hearing impairment, mobility concerns etc., please contact Rochelle Peyton by February 9 at the MAJ office so that we can accommodate any needs you may have. Rochelle can be reached at email@example.com or (612) 375-1707. CANCELLATION & REFUND POLICY Refunds will be made if notification of cancellation is received five (5) days in advance of the Mid-Winter Meeting. Please note that Upgraded Membership Benefits and Passport to Excellence CLE benefits do not apply to the Mid-Winter Meeting. You may also register on-line at www.mnaj.org www.mnaj.org. Call MAJ at (612) 375-1707 or (800) 898-6852 with questions.
by Mark Streed
MILES LORD – The Maverick Judge Who Brought Corporate America to Justice A biography that reads like a John Grisham courtroom drama and a political drama is a rarity. And when the central character, whose life story is being told, is a true Character who likes to come on strong – “rootin’, tootin’ and shootin’!” – with amazing life experiences, you have, potentially, a terrific read.
For over 27 years attorney MARK STREED has effectively served his clients as lawyer advocate, trusted adviser and counselor. Oftentimes he starts his work as their lawyer by simply listening to understand their stories and their problems. Because, in the end, what Mark Streed and his experienced staff do is help to solve their client’s problems so the client and his/her family can focus on healing and recovering from their injuries, harms and losses and move on with their lives as best as they possibly can.
But the final ingredient to making a biography that reads like a pot-boiling, page-turning fiction thriller is an author who knows how to write, structure and tell the story in a way that leaves the reader wanting more – needing more – and powerless to put the book down. Roberta Walburn’s, Miles Lord – The Maverick Judge Who Brought Corporate America to Justice, delivers all of that, and more. As many know, Walburn is a long-time MAJ member and former Minneapolis Star Tribune reporter. In fact, she originally went to law school to enhance her credentials as a newspaper reporter. She skillfully blends her terrific writing skills with her extraordinary legal knowledge to tell litigation stories in a way that walks the fine line between too many details for a lay person and not enough for an experienced litigator. In the process she is even able to make tedious battles over discovery disputes not only fascinating and interesting, but also very cloak-and-dagger like. Walburn had a front-row seat to observe the methods and means used by A. H. Robins and their legion of lawyers in the infamous Dalkon Shield litigation. The AHR lawyers exemplified the “hide the ball” corporate tactics of the kind that provided Walburn with fertile ground. She takes advantage of the opportunity by spinning a great retelling of the David slaying Goliath tale in a way that keeps the reader waiting (and hoping) for when the final hammer drops on Goliath/A. H. Robins. That blow was delivered by Judge Lord in his February 29, 1984 hearing where he famously delivered “The Speech” in open court to three of the highest-ranking A. H. Robins executives. That speech remains – 33 years later – a powerful example of effective use of rhetoric and precise word usage to convey a pitch-perfect message.
Walburn’s method is to weave in and out of two courtroom dramas centering on the Dalkon Shield litigation and the controversial litigation involving the Reserve Mining Company (a large Northern Minnesota employer that was literally discharging tons of taconite tailings containing asbestos-like fibers into Lake Superior on a daily basis). But, there is much more to the book than these taut courtroom dramas. Walburn’s former boss (she served two years as Judge Lord’s judicial clerk, during which she played a significant role in the Dalkon Shield litigation) had a remarkable career even before he was appointed a Federal District Court Judge by President Lyndon B. Johnson in 1966. Before his judicial appointment he was elected three times as Minnesota Attorney General (his successor was 32-year-old Walter Mondale) and was also appointed as US Attorney. During those years he worked closely with US Attorney General Robert Kennedy and prosecuted gangsters (he was even spit on by Jimmy Hoffa in the Federal Courthouse) and developed his own successful courtroom style. While Roberta Walburn’s storytelling makes reading this book easy and, quite frankly, a joy, she is fortunate to have such a colorful character with as many rich life experiences as Miles Lord. Not even our country’s greatest storytelling writers, whether it be Ken Follett, Daniel Silva, John Irving, Michael Connelly or John Sanford – to name just a few – could make a biography about most US Federal District Court Judges interesting. Most would be groaninducing yawners, and mildly interesting at best. But, Judge Lord was a bit of a different “bird” (as he might have said) compared to any other federal judge. Miles Lord was influenced greatly by the women in his life – his mother and his older sisters and the closest confident during their nearly 70-year marriage, his wife, Maxine. These feminine influences (along with his two daughters and his granddaughters) spurred him on in 1972 when he recognized the inequity in the Minnesota High School League (MHSL) position that females cannot compete with boys or continued on page 28
26 Fall 2017/Winter 2018 MINNESOTA TRIAL
ROBERTA A. WALBURN INTERVIEW Roberta Walburn has already had two very interesting professional careers (so far). While attending the University of Michigan she spent summers working in the copy room of the Buﬀalo Evening News (where her mother worked). This led her to pursue a minor in Journalism (to go with her Economics major) and landed her a full-time position as a financial reporter for the Buﬀalo Evening News. After three years she made her first trip to Minnesota for a job interview with the Minneapolis Star-Tribune. She was hired and immediately assigned to the Strib’s St. Cloud Bureau. There she found herself in the middle of reporting on two particularly controversial and interesting news stories. The first were the protests surrounding the high-voltage electrical lines being built across Central Minnesota farmland. The mostly peaceful protesting was powerful in its message (this is where Roberta had her first contact with a young Paul Wellstone, who was helping organize the protesters). At times the protesting became aggressive to where powerline towers were being destroyed. The other hot story was the “Willmar Eight Bank Strike” where eight women employees of a small Willmar bank went on strike to protest male employees being promoted over them. After working for the Star Tribune for three years Roberta enrolled at the University of Minnesota Law School. Her initial plan was to use her law degree as
a way to enhance her journalistic skills and bolster her credibility. Even during her final two years at the U of M Law School she continued to work part-time at the Star-Tribune. Her career plans made a dramatic pivot after her many rich experiences in the Federal Courthouse while clerking for Judge Miles Lord. Read the book and you will understand why her career path changed. I recently had an opportunity to interview Roberta; here are some excerpts of that interview: MDS: You had the good fortune to work for both Judge Miles Lord and for Senator Paul Wellstone. It is interesting that Judge Lord was a competitive boxer and Senator Wellstone was a college champion wrestler and long-time wrestling coach. Looking back, do you see other similarities – other than their fighting instincts – between the two men? RW: I had never drawn the interesting connection between their competitive boxing/wrestling, but I do see many similarities between the two. I see Paul Wellstone as a direct descendant of the line of Hubert Humphrey/Miles Lord/Eugene McCarthy. Miles and Paul embodied the same essential principles of always looking out for the interests of the “little guy” and fighting for the powerless against various kinds of powerful interests or bullies. They also both had very strong, supportive (and smart) wives and daughters, who they
respected and listened to. I think Judge Lord and Senator Wellstone shared the same DNA. They related so well to common people and that was largely because they both loved people and loved learning about their lives. MDS: You obviously put a lot of eﬀort into this book. The 44 pages of source footnotes and bibliography speaks to the work you put into this project. What was your process? RW: I have always considered books to be a sacred object. This goes back to going to the public library with my mother and sister every Saturday morning and being allowed the privilege of checking out six books. When writing about a historical figure like Judge Lord, which necessarily leads to stories about Hubert Humphrey, Eugene McCarthy, Walter Mondale and many others, I felt it was very important to respect these great legacies, and the reader, by making sure everything I wrote in the book had been researched and presented as accurately as possible. It was a five-year process, and I really loved doing it. MDS: Why now? RW: I always wanted to write a book, and finally asked myself “If not now, then when?” So I rented some space in downtown Minneapolis to do my thinking, research and writing. I am very thankful to the Minnesota Historical Society and the Lord family for sharing their family archives and records.
MINNESOTA TRIAL Fall 2017/Winter 2018 27
BOOK REVIEW BY MARK STREED continued from page 26
on equal basis as boys. The MHSL argued that boys were taller and stronger and had greater muscle mass, larger hearts and deeper breathing capacities (yes that was the position they took) which made it physiologically inappropriate for girls to compete with boys. There was actually a trial when two outstanding high school girl tennis players challenged the MHSL on this point. Judge Lord presided. He found that the two girls were being denied an opportunity to join the boy’s teams “solely on the basis of the fact of sex and sex alone” and that the MHSL’s prohibition was arbitrary, unreasonable and in violation of the equal protection clause of the 14th Amendment of the US Constitution. Judge Lord ordered the two girls be declared eligible immediately to compete on the boy’s team in their chosen sports. In effect, Judge Lord was the “antiTrump.” He really listened to the women in his life and he heard their points. He learned from them and his actions and rulings in that case helped open the doors for young women to compete on an equal basis with boys. That ruling reflects much about Judge Lord’s personality that his detractors overlooked or, more likely, were unaware of.
28 Fall 2017/Winter 2018 MINNESOTA TRIAL
Judge Lord’s life was similar to Woody Allen’s character “Zelig” in which the titled character finds himself in the middle of many historical events (much like Forrest Gump’s frequent brushes with historical figures). Miles Lord was there when Hubert Humphrey began his rise to political power as mayor of Minneapolis in the late 1940’s. Hubert and Miles became very close confidants and life-long friends. Lord also had a close friendship with Senator Eugene McCarthy. These political relationships caused Lord to walk a dangerous tightrope as a federal judge has to refrain from being an active political supporter/power broker. This became particularly challenging in 1968 when Humphrey and McCarthy made serious runs for the US presidency. Miles Lord was also there when the Minnesota Democratic Party merged with the much more powerful Farmer-Labor Party. He saw the early potential of a young Macalester College student – Walter Mondale – and had close relationships with other political heavyweights like Governor Orville Freeman (LBJ’s Secretary of Agriculture) and Governor (and Senator) Wendell Anderson. The latter two were acquaintances but not necessarily
always on the most friendly of terms with Miles Lord because, well, politics is politics. Miles Lord was a fascinating man. He stuck to his principles which essentially boiled down to despising bullies and wanting to always protect the rights of the meek and the powerless from the bullies in the world. Miles Lord thought the deck was stacked in favor of the rich and powerful and he set out to balance the scales for “the little guy.” One of Lord’s favorite and often-repeated poems was written by Edward Everett Hale (1822-1909): I am only one, but I am still one. I cannot do everything, but I can do something; and because I cannot do everything I will not refuse to do the something that I can do. That poem was a guiding light for Judge Lord throughout his life. The combination of Judge Miles Lord and his biographer, Roberta Walburn, is a successful partnership that makes for a fascinating series of entertaining stories and vignettes weaved together by a masterful storyteller.
Trial Lawyer of the Year Awards Trial Lawyer of the Year Award Finalists and Winners Show Why Access to the Courts and Class Actions Are So Important Throughout America, government officials and corporate wrongdoers are working to shut down access to the courts and limit or eliminate class actions. Why? Because the courts are often the only place they can be held accountable. And, when they’re hurting, cheating, or violating the rights of large numbers of people, class actions are often the only thing their victims can use to get justice.
ARTHUR H. BRYANT, Chairman of Public Justice, has won major victories and established new precedents in several areas of the law, including constitutional law, toxic torts, civil rights, consumer protection, and mass torts. The National Law Journal has twice named him one of the 100 Most Influential Attorneys in America. Arthur first came to Public Justice in 1984 as its sole staff attorney, and was appointed Executive Director in 1987. Under Arthur’s leadership, the organization grew from a staff of two, including him, to a staff of 30. During Arthur’s leadership as Executive Director, Public Justice was involved in a broader range of cutting-edge, high-impact litigation than any public interest group in the country – fighting for consumers’ rights, workers’ rights, civil rights and liberties, environmental protection, corporate and government accountability, and the poor and the powerless. Its Access to Justice Campaign, launched in 2004, made Public Justice the national leader in the courts against corporate efforts to expand mandatory arbitration, federal preemption, unjustified secrecy, and other barriers to Americans’ constitutional right to a jury trial and a day in court.
This year’s four finalists for – and the recipients of – Public Justice’s nationally-prestigious Trial Lawyer of the Year Award make that clear. In each case, government officials or corporate wrongdoers were breaking the law and hurting the poor and the powerless – prisoners, minorities, low-income consumers, or the disabled. In each case, lawsuits were the only way to make them stop. And, in each case, unlike in many past years, a class action was essential for justice to be done. The Trial Lawyer of the Year Award is given annually to the lawyers who made the greatest contribution to the public good by trying or settling a case. This year’s finalists, who brought the cases listed below, were honored – and the lawyers who won Gonzalez v. Pritzker announced as the winners – on Monday, July 24, at Public Justice’s Awards Dinner & Gala at the Fairmont Copley Park in Boston. To understand why access to the courts and class actions are so important, just read the case summaries below. For additional details on each case and a list of the complete legal teams behind these impressive, impactful victories, go to bit.ly/ TLOY2017. Decoteau v. Raemisch & Anderson v. Colorado In 2010, represented by law students at the University of Denver Sturm College of Law Civil Rights Clinic and co-counsel from the Civil Rights Education and Enforcement Center (CREEC), Colorado State Penitentiary inmate Troy Anderson filed suit against the Colorado Department of Corrections (CDOC), alleging the lack of outdoor exercise space violated the Constitution. Anderson had been held in solitary
confinement for ten years. Like others in solitary confinement at CSP, he had only been permitted to exercise in a small cell with a narrow slit window covered by a metal grate that opened to the outdoors. Anderson’s case was tried and the court ruled that CDOC’s policies constituted cruel and unusual punishment, prohibited by the Eighth Amendment. Anderson was moved to a second facility, but that facility didn’t provide a chance for outdoor exercise either. Anderson’s attorneys got the judge to find the second facility inadequate, too. Only then, in 2012, was Anderson allowed to exercise outside. After that, instead of providing the same outdoor exercise privileges to other inmates, CDOC took the position that the judge’s ruling applied only to Anderson. So, in 2013, Anderson’s team filed a class action on behalf of all inmates in solitary confinement at CSP. The class was certified in July 2014 over CDOC’s objections and the case proceeded towards trial, with CDOC fighting for years. Finally, on the eve of trial, CDOC requested mediation and both sides reached an agreement – approved by the court in July 2016 – requiring CDOC to construct three new outdoor exercise yards at CSP and ensuring that inmates would finally have access to regular outdoor exercise. Gonzalez v. Pritzker Out of nearly 3.8 million applicants for 2010 census work, about 700,000 were essentially turned away through a background check process demanding documentation on arrest records. The background check, however, was often inaccurate or incomplete, and those hardest hit were African American and Hispanic applicants. For example, when Ignacio Riesco applied for a census job, the background check turned up an arrest record from 2006, when he was wrongly suspected of stealing money while working in ticket sales at Disney World. Riesco produced documentation within 30 days – as requested continued on next page
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by the Census Bureau – showing that all charges against him had been dropped. He never heard back about his application again. In April 2010, a team of private and public interest attorneys sought to remedy the unfair impact of the Bureau’s screening process on communities of color, filing a class action lawsuit alleging that the Bureau’s reliance on a flawed background check process had a substantial disparate impact on over 400,000 African American and Hispanic job applicants, in violation of Title VII, the federal law prohibiting discrimination in the workplace. After six years of vigorous opposition by the U.S. Department of Justice, the team secured a groundbreaking settlement that requires the Census Bureau to overhaul its hiring practices to make sure it uses a fair method to determine whether the criminal history of an applicant actually justifies his or her rejection from entry-level, temporary jobs. The settlement also gives members of the class the option to receive notification of job openings for the 2020 census, and includes $5 million for a program through Cornell University’s School of Industrial and Labor Relations that helps people with criminal records maximize their employment prospects. Sykes v. Mel S. Harris & Associates, LLC It took seven years, but, through a class action filed in federal court in 2009, a team of private and public interest attorneys vindicated the rights of hundreds of thousands of low-income New Yorkers – and shut down a fraudulent debt-collection scheme that could have injured and cheated hundreds of thousands more. The lawsuit challenged and exposed the outrageous practices of Leucadia National Corporation subsidiaries that, with the Mel Harris law firm, purchased charged-off consumer debts for pennies on the dollar. After doing so, they then
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used the New York courts to convert those nearly–worthless alleged debts into lucrative default judgments by falsely swearing to the New York courts that they had “personal knowledge” the debt was owed. The scheme also involved a process serving company that regularly engaged in “sewer service” – falsely claiming to have served notice of court proceedings. Many of the New Yorkers swept up in the scheme, disproportionally people of color, had their wages garnished, their bank accounts frozen, and their credit reports damaged, making it difficult for them to obtain employment, housing, and additional credit. Under the settlement approved in May 2016 – after extensive, hard-fought legal battles – the defendants paid nearly $60 million to class members. They also agreed to exit the debt collection business and to extinguish all outstanding consumer debt that was part of the scheme, totaling more than $1 billion. Finally, they agreed to cooperate with a supplementary state court proceeding to vacate the default judgements en masse. As a result, nearly 200,000 fraudulently – obtained default judgments have been vacated. Willits v. City of Los Angeles The Los Angeles public sidewalk system covers more than 10,750 miles, with approximately 40,000 intersections and 160,000 potential curb ramp locations. Yet, despite the requirements of the U.S. Rehabilitation Act and the Americans with Disabilities Act, Los Angeles did not make it possible for disabled people to use the sidewalks. Instead, the city kept in place dangerous and pervasive access barriers that adversely impacted the lives of hundreds of thousands of people every day. The legal team filed Willits on behalf of more than 280,000 people with mobility disabilities to make the city dramatically improve access to its pedestrian right-of-ways.
Shortly after the class was certified, Los Angeles attempted to use the settlement in a different case – brought by different plaintiffs and attorneys – to eliminate the class members’ claims. That settlement, however, only provided elusive injunctive relief and did little to address the overwhelming problem throughout the city. The Willits plaintiffs objected, sparking a series of hard-fought appeals. In February 2014, they prevailed, with the California Court of Appeals overturning an earlier decision in favor of the original settlement. Following that victory, Los Angeles initiated settlement discussions. The result was a landmark agreement requiring Los Angeles to spend more than $1.37 billion (vs. $100 million in the earlier settlement) over a period of more than three decades on access work on pedestrian right-of-ways. The settlement also includes compliance monitoring. It is the largest settlement in U.S. history on behalf of people with disabilities. City officials have already begun to implement the necessary infrastructure for the work required, sending a strong message that, from now on, disabled people trying to move through and enjoy America’s second largest city will not get second-class treatment from it. These are exceptional cases. They’re also examples of the kinds of cases, individual and class action, filed and litigated in state and federal courts every day. They show why access to the courts and class actions are so important. And they show why some government officials and corporate wrongdoers are so eager to bar access to the courts and hamstring or ban class actions. Don’t let them. All of our rights are at stake.
practice pointers Advice from Senior Counsel Old Guy in the Corner. He’s over in the library. Go look, I’m sure he’s there. Over in the corner by the window, behind the yellowing stacks of Finance & Commerce (on newsprint, because he likes books and paper, not computer screens). He’s always there, reviewing files, dictating memos, reading journals. Yeah, he “retired” fifteen years ago, but he’s still practicing law, as he has for 50 years.
MICHAEL A. BRYANT is a partner in the law firm of Bradshaw & Bryant, PLLC. His practice areas include personal injury and criminal defense. Mike co-chairs the MAJ Amicus Committee and serves on the Executive, Finance, Publications and Legislative Committees. He was the 1999/2000 MAJ Member of the Year and is past president of the MAJ.
Many firms have a senior counsel still spending a significant amount of time at the firm. John H. Bradshaw is our founder-sort-of-retired senior counsel. As the deadline for this article approached, your author was again short on inspiration: What should I should write about? I’ll bet John has a good idea. John always has good ideas. Hmmm. Every time I ask a question he seems to come up with at least one nugget of advice. Some anecdote from his years of experience that provides good general advice for someone practicing law… almost like a pointer …. a practice . . . pointer. Um, John, got a minute? John H Bradshaw spent the formative years of his practice at what is now known as Chestnut Cambronne after graduating University of Minnesota Law School in 1967. As much as he loved that firm, he desired a small-town practice. In June of 1972, he founded John H. Bradshaw Law Firm in Eden Valley, seventy miles west of the Twin Cities. John and his staff handled a variety of cases, including personal injury, commercial disputes, criminal, wills and anything else he felt comfortable handling. A true Country Lawyer. The core of his staff is still with us; our two senior paralegals.
T. JOSEPH CRUMLEY is an AV-rated attorney practicing in the areas of personal injury and wrongful death with offices in Waite Park and Golden Valley. Joe is past president of the Minnesota Association for Justice, the Minnesota Consumer Alliance, and the Warren Burger Inn of Court. He is board certified as a Civil Trial Specialist by the MSBA, and has been elected to the American Board of Trial Advocates.
Even out in the country, John was a leader in many ways. His was the second firm in the state to begin
advertising. He was the first to have paralegals at counsel table and to add the names of paralegals to his letterhead, both of which were very controversial. In 2007, John was elected to the MAJ’s Founders Society, an exclusive honor awarded to Minnesota trial lawyers for longstanding exemplary service to the association and the plaintiff’s bar. He shares that honor with Harry and Mike Sieben, Jim Schwebel, John Goetz, Ed Matonich, Ron Barczak, Tim McCoy, Fred Soucie, John Eisberg and Terry Wade. An elite group, to say the least! John did enjoy his retirement outside the office for a few years, travelling and spending time with his wife and family. But after the untimely death of his beloved Joan, he returned to his other love, the law, taking up residence in our law library where we benefit from his vast legal experience. Now, some practice pointers gleaned from senior counsel.1 Stop trying to make an enemy out of the defense lawyer (or insurance adjuster). A lot of plaintiff lawyers think that a claim or lawsuit should be treated like war and the other side should be treated as the enemy. Maybe they feel that a “scorched earth” attitude will impress or perhaps scare the opposition. Maybe they think that sharp practice will give them an advantage without consequences. Maybe they think that insulting or yelling or other such uncivil behavior will make the experience so unpleasant for the other side that they will pay the claim just to get away from you. continued on next page
Social Security Disability and SSI David L. Christianson
firstname.lastname@example.org MINNESOTA TRIAL Fall 2017/Winter 2018 31
PRACTICE POINTERS continued from page 31
Or perhaps they are zealots who feel that all insurance companies, defense lawyers and thus defenses are evil, wrong and overstated and all plaintiffs are pure of heart, deed and word. If only the defense would see things the way a plaintiff lawyer sees them. That approach is foolish and shortsighted. The golden rule is instructive. Nobody likes sharp practice performed against them and they will forever remember the lawyer and the law firm that plays such tricks and will always mistrust anything you say or do. Treat your reputation like gold; it’s far more valuable. Talk to everybody that calls.
Custom Interactive Spine and Joint Exhibits For Accident Cases 1411 E Primrose St, Springfield, MO 65804 Phone: (888) 666-9049 www.orthoclick.com
Some personal injury firms are highly specialized, with a lawyer or investigator screen all incoming potential client calls. John’s approach differed: As a small, rural law office, we get calls just because we are lawyers. We have an open policy of helping people who call in. Although we work as trial lawyers, we get calls on everything. We always talk to these people and try to help them or send them to someone who can. We never charge for this service… Countless times, these simple acts of kindness have returned to bring us work. It has been well said that if you help other people get what they want, they will help you get what you want. We get calls from people we don’t remember who called us about say, a collection matter, whom we referred out. Now they are injured or have sent us someone who is. Over and over, they say “You don’t remember me, but a year ago, you helped me a lot and now ...” and on it goes. Talk to Your Clients. We talk to our clients. Like any injury office, we get other lawyer’s disgruntled clients calling us. We have a policy of trying to mend the fence for the other lawyer. In nearly every case, however, the problem boils down to communication… In at least 75% of the cases, we are able to tell the people that it looks like their lawyer is doing a good job, that it’s expensive and disruptive to switch horses in midstream, but that they need to insist on a satisfactory meeting with their attorney to get the answers they need. We often have them say to us how much they learned in the interview. It is simple communication.
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We encourage our clients to call frequently. Seldom does their calling create a problem. Indeed, even with encouragement, many will not call. We write regularly and call our clients if we don’t hear from them. Mostly, they respond in a positive way to our efforts. A major key, again, is our staff. We build up and praise our staff to the clients. The staff person who will be assigned to the client’s file is usually present at the initial interview and our clients usually bond well with our staff who are expert in their people skills. They developed these skills because they were given the opportunity, trust, and encouragement to do so.
landscape that becomes gradually more barren and difficult. Too often, in cases like my own, alcoholism becomes the shortterm solution. Trial work attracts fledgling alcoholics like honey attracts bees. Trial work does not cause alcoholism, but it is an ideal breeding ground and nurtures the disease. Trial work is an area where power and control, stress and relief, fellowship of the saloon and the fast track are all intertwined into one highway that attracts people who gravitate to that way of life. If you are not over-drinking when you start practice, the chances are good that you will be sooner or later. Alcoholism is a disease of loneliness. The small practitioner is particularly susceptible. So, I say, beware, and be aware.
Alcoholism. In a small practice, physical, mental or emotional problems are complicated by your professional isolation. There are not a lot of experienced people around to supervise you or give you feedback. Personal problems can grow slowly and become part of a
Conclusions. It’s tough to improve on John’s conclusions from the 1996 article:
associate with and do battle with will usually be the ones who are there when trouble hits. If you have treated your associates and opponents well and fairly, have tried to be unfailingly courteous and acknowledged when you have not, and if you have been generous with yourself and your spirit, then they will be there to help when you do stumble and err. Apologize quickly when you see you have been wrong. Always be especially calm, patient and polite with all court personnel, even when you are sore vexed by the system. Good luck and enjoy this interesting life. Your editor can add little, except listen and learn. Go talk to your senior counsel. You may think you know more than the old guy in the corner, but you don’t. There’s gems in that library, and it’s not in the books. Also gleaned from John’s article, Lessons Learned as a Small Rural Law Oﬃce, Minnesota Trial Lawyer Magazine, Summer, 1996. It’s worth a read.
It’s not possible to go through a lifetime of practice without mistakes. The people you
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employment law report Minnesota Supreme Court Upholds the Legislative Fix of Minnesota’s Whistleblower Law – to the Benefit of Plaintiffs and the Rule of Law
JUSTIN D. CUMMINS, of Cummins & Cummins, LLP, prosecutes employment, civil rights, and consumer protection cases. Justin is an MSBA Board Certified Labor & Employment Law Specialist. He is also past Chair of the Minnesota Stat Bar Association’s Labor & Employment Law Section and a past Officer of the National Employment Lawyers Association’s Eighth Circuit and Minnesota Boards. In addition, Justin has taught employment law and civil rights at the University of Minnesota Law School and Mitchell Hamline School of Law. Justin is consistently recognized as a Super Lawyer, and Minnesota Lawyer has identified him as one of the top attorneys in Minnesota.
Much like the Americans with Disabilities Act1 (“ADA”) before the 2009 Congressional amendments to that statute, Minnesota’s whistleblower law2 before the 2013 Minnesota Legislature amendments provided little protection to employees. Like Congress concerning the ADA, the Minnesota Legislature amended Minnesota’s whistleblower law to restore integrity and efficacy to the statutory regime. Before the amendments, plaintiffs struggled to invoke Minnesota’s whistleblower law successfully, just as plaintiffs had under the ADA, because it had become increasingly difficult to show that the law as courts were construing the statutes more and more narrowly. As to Minnesota’s whistleblower law, plaintiffs often found it difficult before 2013 to convince a court they actually engaged in protected activity such that they could assert valid whistleblower claims when employers took adverse action against them because of the activity. Thus, the Minnesota Legislature revised the language of Minnesota’s whistleblower law explicitly and unequivocally to reestablish a sweeping definition of protected activity.
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Thanks to the 2013 amendments by the Minnesota Legislature, Minnesota’s whistleblower law expressly defines protected activity as a good faith report – verbally or in writing – of any actual or apparent violation of a legislatively, administratively, or judicially established standard by the employer or a third party.3 In that regard, good faith reports include anything that is not akin to fraud.4 Among other things, this means that Minnesota’s whistleblower law protects employees when making reports when doing so is part of their job.5 Furthermore, the amended law protects those who report anticipated violations.6 The corporate world has reacted strongly and negatively to these positive developments for whistleblowers under Minnesota law. In fact, the United States Chamber of Commerce became involved in a case recently before the Minnesota Supreme Court to seek essentially a nullification of the Minnesota Legislature’s 2013 amendments. In that case, Friedlander, v. Edwards Lifesciences, LLC,7 the United States Chamber of Commerce argued that a whistleblower supposedly makes a “good faith” report, such that he or she
receives protection under Minnesota’s whistleblower law, only if the purpose of the report is to “expose an illegality.” As a practical matter, the adoption of that argument would likely have caused a significant and deleterious chilling effect on whistleblowing. Fortunately – and in a unanimous decision authored by the Chief Justice – the Minnesota Supreme Court upheld the legislative fix of Minnesota’s whistleblower law by the Minnesota Legislature in 2013. In particular, the Minnesota Supreme Court held that a “good faith” report by a whistleblower means any report not knowingly false or recklessly disregarding the truth. By affirming the Minnesota Legislature’s expansive definition of “good faith” report, the Minnesota Supreme Court has enabled whistleblowers to prosecute retaliation claims more effectively going forward. In that regard, an employee needs not be fired or suffer other economic loss to experience adverse action for purposes of a whistleblower claim.8 Moreover, retaliation under Minnesota’s whistleblower law includes “conduct that might dissuade a reasonable employee from making or supporting a report, including post-termination conduct by an employer or conduct by an employer for the benefit of a third party.”9
42 U.S.C. §§ 12101, et seq.
Minn. Stat. §§ 181.931, et seq.
Minn. Stat. § 181.931, Subds. 4, 6; Minn. Stat. § 181.932, Subd. 1.
Minn. Stat. § 181.931, Subd. 4.
Id.; Minn. Stat. § 181.932, Subd. 1.
Minn. Stat. § 181.932, Subd. 1.
Case No.: A16-1916 (Minn. 2017).
Minn. Stat. § 181.931, Subd. 5.
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women for justice Recovering Future Damages in the Face of an Increased Risk of Future Injury that is Not More Likely Than Not to Occur Plaintiffs’ lawyers are well familiar with the more likely than not standard that enables plaintiffs to recover future damages. But what damages are recoverable when a plaintiff suffers an increased risk of future harm but that risk cannot not be quantified or the chances of the future harm occurring are 50% or less? The purpose of this article is to discuss two specific types of future damages that are available to your clients under these circumstances, which you may be able to use to enhance their recovery. ANU CHUDASAMA is a University of Wisconsin Law School graduate who is an associate attorney at Harper & Peterson, PLLC, primarily handling cases in the areas of medical malpractice, vehicular collisions, wrongful death, premises liability, and products liability. She is licensed to practice law in Wisconsin, Minnesota, and New York. Anu has the following involvements: Second District Ethics Committee Investigator; Women for Justice Section member; American Association for Justice member; Wisconsin Non-Resident Lawyers Division (NRLD) Board member as well as Communications Committee member; Douglas K. Amdahl American Inn of Court member; member of the Ramsey County and Washington County Bar Associations; Board member of Civil Society, a Minnesota nonprofit organization providing culturally and linguistically specific legal and case management services to victims of human trafficking, sexual assault including rape and stalking on campus; and Board member of A=RT (Art = Real Transformation).
or ‘faking and baking,’ our expert opined that the burn incident had clearly increased each plaintiff’s baseline risk for developing skin cancer in the future. Our expert strongly recommended that the plaintiffs avoid the sun, wear sun protection, attend routine checkups, and undergo biopsies with any changing lesions.
When I first started working at Harper & Peterson, PLLC a couple of years ago, my first assignment was to prepare a response to a motion for partial summary judgment in a burn injury case involving a tanning bed. Our firm represented multiple plaintiffs who had suffered blistering first and second degree burns by tanning in a high-pressure salon bed under unfiltered UVB rays (the “B” should stand for “burning,” because that is precisely what these light rays do). The salon owner’s do-ityourself maintenance of the bed caused a UV filter to come undone, resulting in detrimental UVB exposure. Among other damages, our clients endured nausea, headaches, ballooning water blisters, red, hypersensitive skin, severe itching, excruciating pain, sloughing, multiple medical appointments, biopsies, and scarring and they further experienced the inconvenience of sheltering their skin as much as they reasonably possible to avoid further UV exposure.
At first blush, the opinions appear as though they will help get the plaintiffs compensated for their injuries – an increased risk of developing skin conditions, including cancer, a clearly increased baseline risk of cancer, strongly recommended measures and treatment, including biopsies with changing lesions. But with respect to the chances of developing skin conditions or cancer, where contained in the expert’s opinions were the legal terms of art of “more likely than not” or something to that effect? How often would the lesions be expected to change such that biopsies would be required? The expert could not state that the plaintiffs were likely to suffer the future harms, just that they had an increased risk for those injuries and that their baseline risk for cancer had increased. What was the increase? 1%? 30%? 60%? What was their baseline risk before the increase? Did the increase tip them to the point that they were more likely than not to get cancer? The expert could not reasonably be expected to answer these questions, which left her opinions exposed for an ambush. The partners at the firm and I discussed that the future damages claims would be narrowed, but not eliminated.
Our expert doctor opined that the plaintiffs had suffered an increased risk of developing dyspigmentation, lentigos, actinic keratosis, and skin cancer due to the harmful exposure, and that they would need routine checkups for the rest of their lives, as they would need to regularly screen for precancerous and cancerous growths. Since the incident, the plaintiffs had already begun to experience a proliferation of skin lesions, some of which were biopsied and were found to have been precancerous. Complicating matters further, the plaintiffs had histories of tanning – some more extensive than others; one plaintiff, for example, had seen the inside of a tanning booth well in excess of 300 times in her lifetime. Notwithstanding their varied histories of basking under the sun
The defense, post haste, filed a motion for partial summary judgment to preclude the plaintiffs’ claims that they had suffered an increased risk of developing dyspigmentation, lentigos, actinic keratosis, and skin cancer. The defense locked and loaded with their argument that the plaintiffs could not recover future damages because they could not prove it was more likely than not that they would, in fact, incur these future harms and therefore, that the damages would be prohibitively speculative (the defense also argued the primary assumption of risk doctrine barred the plaintiffs’ recovery, but that’s beside the point). The defense cited to at least a dozen cases in support of their position and hammered at each plaintiff’s tanning history, indicating they were already at an increased risk of cancer due
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to previous UV exposure as opposed to from the burn incident. Even with the assurances of our plan to narrow the future damages claims, upon my initial reading of the defense’s brief, I was a little apprehensive. The defense cited to two Minnesota cases that were factually quite similar in that the experts in the cases provided opinions that the plaintiff had sustained an increased risk of cancer or cancerous skin condition – and from the way the defense framed the cases, it appeared they might just win their motion. First, the defense cited to Bryson v. Pillsbury Co., 573 N.W.2d 718, 721 (Minn. Ct. App. 1998). In Bryson, the plaintiff had entered a water pit to attempt a horse rescue, but it turned out the water had been contaminated with a chemical.1 The plaintiff’s expert opined that the plaintiff suffered extensive chromosome breakage from the chemical contaminant that placed the plaintiff at an increased risk of cancer, but that the increased risk could not be measured or quantified.2 The Bryson court held as a matter of law that the expert’s opinions did not permit the factfinder to determine that the plaintiff was more likely than not to develop cancer.3 Therefore, the Bryson plaintiff would not be able to recover damages for getting cancer.4 Next, the defense cited to Kealey v. Crutchfield Dermatology, No. 19-HACV-10-273 (Minn. Dist. Ct. Nov. 19 2010), 2010 WL 8722927, which applied the holding in Bryson – and this, too, did not look favorable for our plaintiffs. Similar to our case, in Kealey, the plaintiff’s skin cells were also damaged from UVB exposure.5 The plaintiff in Kealey developed a skin condition called actinic chelitis that could lead to squamous cell carcinoma and malignant melanoma, and due to
the development of the condition, the expert opined that the plaintiff was at an increased risk of cancer.6 The defendant in Kealey sought dismissal based upon the plaintiff’s expert’s failure to establish the plaintiff would more likely than not develop cancer.7 The Kealey court, citing Bryson, dismissed the plaintiff’s claim for future damages as being too speculative.8 As further support, the defense cited cases from other jurisdictions that, from the defense’s rendering, painted a bleak outlook for our plaintiffs. So, with my marching orders, I dove into the trenches of legal research, scouting the numerous cited cases and several more. As I had expected, it did not appear we would be able to recover damages for the plaintiffs for treating future dyspigmentation, lentigos, actinic keratosis, and/or skin cancer because our expert could not state the plaintiffs were more likely than not to get these conditions, i.e. the expert’s opinions fell short of demonstrating the plaintiffs would incur these damages to a reasonable certainty.9 This was unfortunate, because all the plaintiffs had already undergone skin changes since the burn incident, so future issues were very real concerns for them. But because the expert could not state to a reasonable degree of medical certainty that the plaintiffs would likely suffer specific conditions, lesions, and/or cancer in the future, the plaintiffs could not seek compensation under Minnesota law for actually treating these future injuries or conditions or getting biopsies to screen suspect moles. This made good legal sense but was not encouraging for our case.
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My research revealed, consistent with the narrow future damage claims we were making, that Minnesota law absolutely recognizes certain future continued on next page
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WOMEN FOR JUSTICE continued from page 37
damages associated with an increased risk of future harm even when the risk is unquantifiable or the future harm is not more likely than not to occur. The rule in Minnesota is that as long as a plaintiff suffers a present injury, he or she can recover medical monitoring costs and emotional distress damages that are reasonably certain to occur as a result of the increased risk, and further, that these are questions for the jury.10 For example, these damages would include the routine checkups that our expert “strongly recommended” for our plaintiffs to get to screen for skin conditions and/or cancer, as well as our plaintiffs’ fear of developing the skin conditions and/or cancer – even if the plaintiffs are not more likely than not to get these ailments in the future.
contaminated air and drinking water.12 The Werlein court found that even though the claims of subcellular injuries were asymptomatic, it created a question of fact for the jury whether the plaintiffs had suffered present harm.13 The court stated that “assuming that a given plaintiff can prove that he has present injuries that increases his risk of future harm, medically appropriate monitoring is simply a future medical cost, which is certainly recoverable.”14 With respect to emotional distress damages, the court further stated that “if plaintiffs prove that they have suffered actual harm caused by the contaminants to which they have been exposed, then they will have satisfied the physical injury requirement, and may recover emotional distress damages.”15
The Bryson court’s opinion actually spelled out this availability of damages, citing to a federal case applying Minnesota law, Werlein v. United States, 746 F. Supp. 887 (D. Minn. 1990) vacated in part on other grounds, 793 F. Supp. 898 (D. Minn. 1992).11 In Werlein, the plaintiffs’ experts had opined that the plaintiffs had suffered a present injury in the form of chromosomal breakage and damage to their cardiovascular and immune systems from exposure to
My research demonstrated that the outof-state and federal cases the defense had cited were either inapposite or actually supported our claims for medical monitoring costs and emotional distress damages associated with the increased risk of cancer and other skin conditions. See, for example, the following cases: • Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315, 318-19 (5th Cir. 1986)
(stating “the reasonable cost of those checkups may be included in a damage award to the extent that, in the past, they were medically advisable and, in the future, will probably remain so” and “with or without physical injury or impact, a plaintiff is entitled to recover damages for serious mental distress arising from fear of developing cancer where his fear is reasonable and causally related to the defendant’s negligence”); • Thomas v. FAG Bearings Corp. Inc., 846 F. Supp. 1400, 1410 (W.D. Mo. 1994) (quoting Elam v. Alcolac, Inc., 765 S.W.2d 42, 209 (Mo. Ct. App. 1988)) (stating “the future costs of medical monitoring are compensable as ‘necessary medical expenses reasonably certain to be incurred in the future’”); • Duncan v. NW. Airlines, Inc., 203 F.R.D. 601, 615 (W.D. Wash. 2001) (stating “a plaintiff may pursue medical monitoring as a remedy to another existing cause of action”); • Henry v. Dow Chem. Co., 473 Mich. 63, 701 N.W.2d 684 (2005) continued on page 40
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Id. at 720-21.
Id. at 721-22.
Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn. 1980). 9
See Bryson, 573 N.W.2d at 721.
746 F. Supp. at 901.
Id. at 904.
Id. at 906.
16 Metro-N. Commuter R. Co. v. Buckley, 521 U.S. 424, 451, 117 S. Ct. 2113, 2127, 138 L. Ed. 2d 560 (1997) (quoting In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 852 (3d Cir. 1990). 17 Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 149, 123 S. Ct. 1210, 1219, 155 L. Ed. 2d 261 (2003). 18 See Dornberg v. St. Paul City Ry. Co., 253 Minn. 52, 57, 91 N.W.2d 178, 183 (1958); Hake v. Soo Line Ry. Co., 258 N.W.2d 576, 582 (Minn. 1977); Mueller v. Sigmond, 486 N.W.2d 841, 844 (Minn. Ct. App. 1992).
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See Dornberg, 253 Minn. at 60.
20 See Mack v. McGrath, 276 Minn. 419, 423, 150 N.W.2d 681, 684 (1967); Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn. 1977); Herbst v. N. States Power Co., 432 N.W.2d 463, 468 (Minn. Ct. App. 1988).
255 N.W.2d at 46-47.
SLIP AND FALL
Id. at 47.
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probability of future injury. It merely requires courts to ascertain the probability that the far less costly remedy of medical supervision is appropriate.”16
(finding there must be a present injury before a plaintiff can recover for medical monitoring costs and the fear of getting a future illness); • Ayers v. Jackson Twp., 106 N.J. 557, 525 A.2d 287 (1987)
Similarly, with respect to emotional distress damages, the U.S. Supreme Court has stated:
(finding that a “medical surveillance claim seeking reimbursement for the specific dollar costs of periodic examinations that are medically necessary” are compensable even when the increased risk is unquantified).
The future harm, genuinely feared, need not be more likely than not to materialize. See Minneman, Future Disease or Condition, or Anxiety Relating Thereto, as Element of Recovery, 50 A.L.R.4th 13, 25, § 2[a], 1986 WL 361482 (1986) (mental anguish related to physical injury is recoverable even if “the underlying future prospect is not itself compensable inasmuch as it is not sufficiently likely to occur”). Physically injured plaintiffs,
Amidst my legal research, I also came across favorable U.S. Supreme Court cases expressly recognizing the recovery of damages for future harms that have yet to emerge. With respect to recognizing medical monitoring claims, the U.S. Supreme Court has stated: [The recognition] does not require courts to speculate about the
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it is now recognized, may recover for “reasonable fears” of a future disease...17 In addition to cases expressly recognizing the recovery of medical monitoring and emotional distress damages, I came across case law that favored the admission of expert testimony even when an expert could not opine that a future harm was more likely than not to occur. For one, Minnesota courts are flexible with respect to expert opinions, favoring admission.18 The language the expert uses goes to the weight of the opinions, but should not deprive the jury of the right to consider them.19 Further, Minnesota courts have found expert testimony admissible as “fair comment” on the implications of present injuries caused by a defendant’s negligence.20 Therefore, even in cases where a plaintiff is not claiming any future medical expenses pertaining to a possible future injury, an expert’s testimony concerning the increased risk of future harm should be admissible. In one case, Dunshee v. Douglas, the Minnesota Supreme Court upheld the admission of the increased risk testimony as being relevant to the issue of damages even though the expert was unable to opine that it was more likely than not that arterial injury would lead to a stroke or aneurysm or quantify the risk.21 The expert opined that the future problems were within “a realm of possibility,” which the Minnesota Supreme Court found was sufficient foundation for admissibility.22 The Supreme Court acknowledged that “the injury in th[e] case [wa]s not a stroke, but scar formation in the artery,” and that the increased-risk testimony was admissible “fair comment on the implications of scar formation in the artery.”23 Thus, armed with favorable case law, we launched our counter-strike. It appeared undeniable to me that we should be able to present our expert’s opinions regarding the plaintiffs’ increased risk of cancer and other skin conditions to the jury, maintain our claim for future medical monitoring costs for the plaintiffs’ annual checkups, as well as claim
If Plaintiﬀ Demonstrates This:
Then He/She Can Recover This:
Examples Pertaining to Increased Cancer Risk
Plaintiﬀ suﬀered a present injury that increased a risk of future injury.
Future damages for medical monitoring/ prevention costs and emotional distress/mental anguish resulting from the increased risk.
Costs of annual checkups and sun-protective lotions and clothing, as well as compensation for fear/anxiety due to possibility of getting cancer.
Plaintiﬀ will more likely than not suﬀer a future injury.
Future damages for the cost of treating the injury Costs of radiation treatment, post-diagnosis and emotional distress/mental anguish/pain and doctor visits, and surgery, as well as compensation for pain/anxiety due to suﬀering resulting from getting the injury. having cancer.
emotional distress damages for the plaintiffs’ fear of getting potential ailments in the future. I made sure to clearly differentiate in my briefing that we were not seeking damages as if the plaintiffs were likely to develop cancer and/or other skin growths in the future, but instead, we were seeking the costs of annual medical monitoring for checking their skin for growths and the emotional distress/pain and suffering damages associated with the increased risk of future harm. I created the chart above to help differentiate between the types of recoverable future damages Following all of the briefing and oral arguments, the trial judge agreed with our position and arguments, and we were able to present expert testimony regarding the increased risk of cancer and our plaintiffs’ testimony regarding their fear of getting cancer and other skin conditions, and claim the associated costs of future medical monitoring and emotional distress/pain and suffering damages. The plaintiffs ultimately were compensated to varying degrees for routine checkups and future pain and suffering. Given that we had essentially a $0 offer from the defense all the way up to trial, we had achieved a very favorable judgment for the plaintiffs.
monitoring and emotional distress damages in increased risk cases could have application for a multitude of injuries, such as, for example, in traumatic brain injury cases where the injury can increase the risk of Alzheimer’s or another form of dementia in the future. In closing, it is my hope that the law encompassed in this article is helpful the next time you have a client facing
an increased risk of future harm, even when the risk is unquantified or is less likely than not to occur – especially if the defense is challenging your client’s right to recover future damages based on the increased risk. “Do not fear failure but rather fear not trying” – Roy T. Bennett
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