Minnesota Trial - Summer 2017

MINNESOTA RIAL The Journal of The Minnesota Association for Justice

Summer 2017

Minnesota Adjusts to a New Political Dynamic

Privilege Logs in Document Intensive Cases: A Categorical Approach

MINNESOTA RIAL Gary M. Hazelton President Robert W. Roe President-Elect Richard A. Ruohonen Vice President Michael Hall III Secretary Genevieve M. Zimmerman Treasurer

The Journal of The Minnesota Association for Justice

Yvonne Flaherty Kate E. Jaycox Genevieve M. Zimmerman AAJ Board of Governors

CONTENTS

Josh M. Tuchscherer Ashleigh E. Raso AAJ State Delegate

Volume 42 No. 3 | Summer 2017

Paul D. Peterson State Bar Liaison Carla M. Ferrucci Executive Director

Past Presidents

Peter A. Schmit Steven J. Terry Mark D. Streed Karen Kingsley Brian Wojtalewicz James P. Carey Michael A. Bryant Sharon Van Dyck T. Joseph Crumley Chris A. Messerly Wilbur W. Fluegel Katherine S. Flom Peter W. Riley Duane A Lillehaug David W.H. Jorstad Richard A. LaVerdiere Keith L. Miller William D. Harper Karla R. Wahl (deceased) Walter E. Sawicki Kathleen Flynn Peterson Mark R. Kosieradzki Fred H. Pritzker Logan N. Foreman Charles A. Cox (deceased) William E. Jepsen Dennis R. Johnson (deceased) Ronald H. Schneider (deceased) Kathleen Worner Kissoon William R. Sieben Robert R. Johnson (deceased) John W. Carey Stephen S. Eckman Hon. Cara Lee Neville Thomas J. Lyons Charles T. Hvass Adrian Herbst Russell M. Spence Stanley E. Karon Thomas Wolf (deceased) Hon. Duane M. Peterson (deceased) Joseph Burkard Paul Tierney (deceased) Ronald I. Meshbesher John V. Norton Robert N. Stone Harry Munger John Cochrane Fred Allen (deceased) Burton R. Sawyer Thomas Burns (deceased) Si Weisman Irving Nemerov (deceased) Hon. John Dablow Norman Perl Joseph E. Wargo Clint Grose (deceased) Hon. Robert Gillespie(deceased) Paul Owen Johnson (deceased) Donald Rudquist (deceased) Charles T. Hvass Sr. (deceased) Orville Freeman (deceased)

6

Privilege Logs in Document Intensive Cases: A Categorical Approach

Minnesota Adjusts to a New Political Dynamic

12

In Every Issue 4

President’s Page

17 Book Review by Nate Bjerke

30(b)(6) Deposing Corporations, Organizations & the Government

28 Women for Justice

In Her Words: Pro Bono Work That Fits 34 Family Law

20 Practice Pointers

35 Workers’ Compensation Report

24 Employment Law Report Anti-Retaliation Protections in the Workplace in 2017 and Beyond

42 Welcome New Members 42 Our Sustaining Members

27 Life Legacy

Ronald H. Schneider Editor This Issue | Erik D. Willer, TSR Injury Law

© 2017, Minnesota Trial magazine is a regular publication of the Minnesota Association for Justice and is devoted to presenting timely, informative and practical information to the Trial Bar. The opinions expressed in this publication are those of the authors and do not necessarily reflect association policy or editorial concurrence.

All inquiries should be made to Carla Ferrucci, Editor, 140 Baker Building, 706 Second Avenue South, Minneapolis, MN 55402.

Tel: (612) 375-1707 or (800) 898-6852 Fax: (612) 334-3142 E-Mail: cferrucci@mnaj.org.

MINNESOTA TRIAL Summer 2017 3

president’s page

BY GARY M. HAZELTON

Well this year has gone by in a flash. Thank you again for placing your trust in me to serve as president this past year. As I write this I am working from my home office and monitoring the list serve. I know we often say that at MAJ we are all one big law firm, and that is true. But, I wonder if we really grasp how powerful that is in fighting the dark side.

We have certainly all benefited from sharing legal briefs and getting transcripts of testimony by the AME’s and strategy advice freely given on the list serve or at seminars. That said, I think we are embarking on another frontier that in my view will force insurers to get considerably more realistic in evaluating the claims of our clients. That frontier is the development of knowledge and practical skill in interpersonal relations, framing, story crafting and storytelling. The results of trials is what dictates what insurers will do during settlement negotiations. Mediation for the most part is being abused and used as a tool by insurers to attempt to destabilize our injured clients.

Much of what is known in these areas has really only been discovered in the last 20 years or so and even if known before was not widely available because we did not have the power of the Internet as we have it today. Different fields are reaching the same conclusions. The “what” of what we need to do to dramatically increase our effectiveness at trial is no longer a mystery and the theories that were once just that now

KOSIERADZKI •SMITH

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2016-2017 Board of Governors

have solid backing via considerable research and studies. So, we are in a time when the challenge is not what to do to develop our skills as lawyers for people but rather when to find time to practice and experiment with them to become proficient. Verdicts this past year by members have been just excellent.

Sure we lose our share (me more than my share) but the size of the verdicts seem to have increased significantly.

We have taken the step this past year to begin working on the knowledge and skills.

We have a long way to go and have gotten a little delayed due to my schedule. My hope and vision is to keep holding the seminars and workgroup sessions where we engage in “deliberate practice” and work at it until it all becomes second nature. My good friend David Clark will be coming in September to spend a day with us on framing and handling any issue in jury selection you wish to raise.

At this moment it appears we have Nick Rowley coming for 3 full days in December.

David has been a friend with whom I have collaborated since 2000 and I believe has no equal in the skill of framing cases and case issues. I have obtained and studied DVD’s of Nick Rowley in trial, his Trial Guides DVD’s and been in workgroups with him. There is a method to his unparalleled success that I hope to make part of the ongoing trial skills series.

With that and our willingness to keep going into the courtroom and instilling in our young lawyers the skill and courage to do so as well from early in their career I am confident we can even the playing field with the abusive elements in the insurance industry.

Thank you all again and I hope by the time this issue lands in your hands we will all be remarking about what a phenomenal convention we had this year. My best to incoming president Rob Roe!

Stephanie M. Balmer Thomas R. Bennerotte Eric W. Beyer Nathan H. Bjerke Lindsey A. Carpenter George “Jed” Chronic Sheila Donnelly-Coyne Michelle E. Drake Robert N. Edwards Brendan J. Flaherty Yvonne M. Flaherty James H. Greeman Michael Hall, III Clayton D. Halunen Jacob R. Jagdfeld Kate E. Jaycox Michael K. Johnson Jason P. Johnston Jeffrey A. Jones Peter J. Kestner Robin Sharpe Landy Robert L. Lazear Randal W. LeNeave M. Ryan Madison Gregory S. Malush Teresa Farris McClain Marcia K. Miller Christopher J. Moreland Elliot L. Olsen Jerome W. Perry Laura L. Pittner Sean Quinn Ashleigh E. Raso Richard J. Schroeder Michael F. Scully Jeffrey Sieben Keith E. Sjodin Joel E. Smith Matthew E. Steinbrink Stacy Deery Stennes Jeremy R. Stevens Pat Stoneking Jeffrey D. Stowman William K. Sutor III Tara D. Sutton Scott A. Teplinsky Brandon Thompson Ryan O. Vettleson Kate G. Westad Erik D. Willer Markus C. Yira

MINNESOTA TRIAL Summer 2017 5

Minnesota Adjusts to a New Political Dynamic

BY JOEL D. CARLSON

6 Summer 2017 MINNESOTA TRIAL

W

e are starting to settle in with the new reality the 2016 election unleased across the county – and here too in the great state of Minnesota.

We have been accustomed to a workable – but divided – state and federal government. The successful delivery of services and programs was the shared goal of both the people, and those we elected. This, coupled with a unified opposition to foreign threats, kept government on a basically even keel.

Times have changed.

Nationally, the Congress and President are more raucous and divided than ever.

The daily tweet is often geared to seeing government and its programs fail – not succeed. Inaction and insults are the norm and it’s not simply from President Trump. While Trump has indeed made it marginally acceptable to govern by bombast, other leaders have taken the bait too.

The Trump style, along with his supporters and opponents, were explained to me in simple terms earlier this year. It explained and clarified for me why some people will attend rallies and fill stadiums to cheer on Trump – while others cringe and shake their heads in disgust at his every word.

Trump’s faithful take him seriously... but not literally. They believe, as an example, that he’ll do something about immigration – but not that he’ll build a wall or that Mexico will pay for it.

Trump’s opponents, on the other hand, take his words literally – but don’t take him seriously.

This concept forms the fundamental dysfunction in Washington today – and will change only if Trump speaks in a serious and literal way about the problems we face. It’s not likely that Trump will change – but its proven

impossible so far to lead with only 30% of the country giving you its support, and no one else willing to work in cooperation to move an agenda forward.

In Minnesota, the divided government dynamic voters chose in 2016 produced another special session of the legislature to complete work on a budget. And, when the special session was concluded, fireworks were still going off. They got it done, but it was messy.

When it was over, Governor Dayton sought to line item veto the funding for the legislature. The veto was an effort to reopen negotiations over the size of the tax cuts the legislature enacted. A District Court Judge found the vetoes to be unconstitutional which was appealed. Last week the Minnesota Supreme Court ordered both sides into mediation.

Mistrust abounds after the garbled ending to the session. Dayton complains that the tax cuts are more than he wanted – and that the House and Senate included a provision defunding the Department of Revenue if he didn’t sign the tax bill into law. Dayton viewed the provision as a sneak attack – and has complained bitterly about it.

For his part, Speaker Daudt has said Dayton agreed to everything in the final bills and has no right to complain now – or undo their agreement.

But, there is a fly in the granola here.

It doesn’t take the parent of a teenager to know someone’s not giving it to us straight. It might be both sides for that matter, but it still doesn’t add up.

If Dayton had agreed to everything in the final budget and tax bills, why would the legislature include the poison pill provision defunding the Department of Revenue if he didn’t sign the tax bill?

And, while it’s not easy, why would the Governor sign the tax and spending bills

if they were not to his liking or including what he wanted?

Something is amiss – and the end of session reflects the mistrust and a style of government we are presented in the post 2016 election new world order Minnesota Senate Chooses to Govern There was a big question mark hanging over the new Minnesota Senate Republican majority at the start of the session – how will they manage to govern with a diverse group of members and a slim one vote majority?

New Senate Majority Leader Paul Gazelka (R, Brainerd) would need to guide his caucus with a steady hand, negotiating with a liberal DFL Governor and a more conservative Minnesota House of Representative that enjoys a wide majority.

By all accounts, Gazalka succeeded not only with his own caucus members but also gained respect from Governor Dayton and his DFL Senate colleagues.

Two things stand out as contributing factors to Gazelka’s winning session; the freshman class of Senators and his unwillingness to take the political low road when negotiations were tense.

Senior Republican Senators, such as Sen. Carrie Ruud (R, Breezy Point) and Sen. Bill Ingebrightsen (R, Alexandria) supported Gazelka’s approach and decisions. Unlike the ever-combative House, the Senate followed the leader without grumbling (publicly at least) and didn’t second guess the decisions their leader was making.

A very strong class of freshman Senators of both parties contributed greatly to the civil discourse in the Senate. Sens. Paul Anderson (R, Plymouth) Mark Johnson (R, East Grand Forks) and Jerry Relph (R, St. Cloud) proved to be exceptionally level headed and politically savvy. continued on next page

MINNESOTA TRIAL Summer 2017 7

MINNESOTA ADJUSTS TO A NEW POLITICAL DYNAMIC continued from page 7

JOEL D. CARLSON owns a legal research and government affairs business in St. Paul, Minnesota. He has represented the Minnesota Association for Justice at the State Capitol since 1994.

DFLers brought a new wave of talent to the table as well. Sens. Nick Frenz (DFL, Mankato) Matt Little (DFL, Lakeville) and Matt Kline (DFL, West St. Paul) were standouts on the Senate floor and in committee. Their ability to work with both parties and not throw insults and firebombs from the minority were a breath of fresh air.

And, credit needs to also be given to Sen. Minority Leader Tom Bakk (DFL, Orr). On several occasions during the session the Republicans had to rely on Bakk and his DFL members to pass legislation due to missing or ill Republican Senators. Bakk was willing to cooperate without extracting too much in return – a welcomed change from the “let them fail” mentality we see so often in Washington.

Legal Issues Getting Attention in 2017 The 2017 session was an active one for civil law issues and court funding. Early in the session it

DRUG & DEVICE REFERRALS

Current Cases

Considering referring a case?

8 Summer 2017 MINNESOTA TRIAL

became clear the House and Senate would take wildly divergent approaches to their budget bills.

The House, enjoying a larger majority, larded their budget bills with hundreds of policy provisions that could not pass muster with the skinny one vote Senate Republican majority.

In the civil law arena, the House including provisions in their budget bills that lowered judgement interest, repealed the seat belt evidence rule, changed the charity claw back law retroactively, preventing county attorneys from plea bargains in certain cases and dozens of others. The Senate included almost no policy in their Judiciary budget bill, making for an interesting stand-off at the end of session.

In the end, none of these controversial provisions were included in the final budget bill. Either the Senate objected, or Governor Dayton indicated he would veto the entire bill if these provisions were adopted, a win for consumers and Minnesotans.

The Courts were largely successful in securing greater funding for the judicial system – seeing the public safety and courts budget increase by $168 million.

In addition, the legislature reduced some court filing fees, which have risen dramatically since the state first hit fiscal troubles in 2002. Base filing fees were reduced from $310 to $285, motion fees were reduced $25 and respondent filing fees for Harassment Restraining Orders (HRO’s) were eliminate. This was a positive step and legislative recognition that court costs can serve as a significant barrier to justice.

Legislation amending the process for Americans with Disabilities Act (ADA) architectural barrier removal cases and amendments to Minnesota Common Interest Ownership Act (MCIOA) were approved after significant modifications to better protect the disabled and homeowners at MAJ urging.

ADA Bill: https://www.revisor.mn.gov/la ws/?year=2017&type=0&doctype=Chapt er&id=80 MCIOA Bill: https://www.revisor.mn.gov/ laws/?year=2017&type=0&doctype=Cha pter&id=87 One bill, advanced by the American Legislative Exchange Council (ALEC) to prevent the courts from expanding the common law for trespasser’s was approved, but feel subject to Governor Dayton’s veto pen.

Not getting attention is a good thing too!

Sometimes, the issues that don’t get attention are a victory for consumers too. Legislation to lower the stature of limitations, changing state based class actions cases, and the ever-popular Uniform Defamation Act were all introduced – but never heard. Several

changes to no fault auto insurance were proposed did not move forward in 2017.

As we’ve witnessed in previous sessions, the Insurance Federation of Minnesota (IFM) will come back in the election year seeking approval of these anti-consumer proposals.

And a new one – a proposal to require a losing plaintiff to pay the defense costs and attorney’s fees when bringing a civil rights claim against a police officer was introduced. It would be hard to imagine anything more chilling to an individual’s quest to hold police accountable.

Is everyone running for higher office?

We’re only about eight months into the current two-year term after the 2016 election – and yet it seems like everyone is geared up to run for higher office in 2018. Governor Dayton’s decision to leave continued on next page

MINNESOTA TRIAL Summer 2017 9

MINNESOTA ADJUSTS TO A NEW POLITICAL DYNAMIC continued from page 9

the Governor’s office at the end of his term has set off a wildfire of candidates seeking to replace him.

Both parties have attracted an extensive list of candidates. Some very notable leaders and some...well, not so much.

Republicans have at least two current officeholders seeking to move up; Hennepin County Commissioner Jeff Johnson and State Rep. Matt Dean (R, Dellwood). No front runner has emerged and many expect House Speaker Kurt Daudt (R, Zimmerman) to make a bid as well. Former Republican Senate Majority Leader Amy Koch, who lead the Senate for about a cup coffee in 2011 before a very public tumble from the top, is also considering a bid for the state’s top job.

DFLers seeking the job are more plentiful at this point. St. Paul Mayor Chris Coleman and US Congressmen Tim Walz (D, Mankato) are running hard. Two legislators that have been very supportive of consumers are seeking to advance to the Governor’s Office; Reps. Paul Thissen and Erin Murphy are both pressing their case to the DFL faithful.

An unannounced candidate has to also be added to the candidate listing.

Attorney General Lori Swanson is widely expected to run for Governor and may be making some type of announcement in early 2018.

Her departure as the state’s top lawyer has set off a scramble to fill her post.

Two DFL legislators, Reps. John Lesch and Debra Hilstrom are campaigning hard, as it former Rep. Ryan Winkler.

More candidates are expected to enter the DFL endorsement as well.

Republicans Harry Niska and Doug Wardlow are seeking Republican support for the AG job. Minnesota has not elected a Republican Attorney General since Doug Head held the post in the early 1970’s.

U.S. Senator Amy Kloubchar, by far Minnesota’s most popular elected official, is on the ballot in 2018. She seems headed for a substantial victory that may propel her into thoughtful consideration as a Presidential candidate in 2020.

A lone Republican, Rep. Jim Newberger from Big Lake, has announced his intentions to run for the U.S. Senate.

Next Session Starts Up on February 20, 2018 The legislature will return to session in February of 2018 with a hangover.

The special session, multiple court cases and coming election will all conspire to make the session difficult.

On the plus side, with a budget in place and a tax bill completed, its hard to list the “must do” items for 2018.

Legislators will work to pass a capital investment bill, a traditional even-year task. There are over $3 billion in requests for state and local projects ranging from

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college campuses to local water and sewer needs. Needing 60% of the House and Senate to pass a package, assembling a bill will take cooperation between the parties and Governor, a commodity that is in short supply. Hopefully they can get a package completed as the backlog of requests will continue to grow because of an impasse.

Governor Dayton will propose to make some tax changes that he feels are needed to make sure the state remains on stable financial footing. He will also propose a final supplemental budget – his last chance to propose programs or spending that can help define his legacy. Both will be a tough sell with the Republican majorities.

There is little appetite to undo a tax cut, and most spending on government is not a favored topic either.

We anticipate the Insurance Federation of Minnesota (IFM) will work to push its anti-consumer agenda in 2018, and we’ll be ready. While the large majority in the House makes blocking these bills a challenge, we have made inroads with some members. Our battle ground remains focused on the Minnesota Senate where more pro-consumer legislators, of both parties, can be persuaded to oppose the relentless push by IFM to tilt the legal system to their advantage.

At its core, the legislative mission of MAJ is central to your practice. Many states find themselves with attorneys that are no longer unable to accept cases from injured workers, victims of egregious medical errors and a lengthy list of other harms that no one can be held accountable for any longer.

We are tireless in our efforts to preserve the rights of Minnesotans to have their day in court before a jury of their peers.

Without your continued support of our efforts, we too could find ourselves in the black hole of dwindling legal rights for those you serve each day.

Thank you for all you have done, and will do in the future, to protect our Constitutional rights and freedoms.

Privilege Logs in Document Intensive Cases: A Categorical Approach

BY NICOLE M. QUINTANA

Originally appeared in Aug-Sept 2016 Trial Talk®. Reprinted with permission of Colorado Trial Lawyers Association. ©2016.

A

s the digital universe continues to morph, expand and grow, so must the traditional notions associated with disclosure and discovery of information in lawsuits. Between 2013 and 2020, the digital universe will grow from 4.4 trillion gigabytes to 44 trillion gigabytes – or 44 zettabytes.1 This means that individuals and businesses alike are overwhelmingly moving to an electronic format for the way in which they create, exchange and store information. The amount of information 12 Summer 2017 MINNESOTA TRIAL

and documentation now maintained by individuals and businesses in no way diminishes lawyers’ obligations to protect their clients’ interests. In fact, it only adds to the burden of parsing out work product from final product or portions of email strings protected by attorney-client privilege.

We have gotten so used to document-bydocument privilege logs that it is difficult to imagine an alternative way of fulfilling our professional duties while managing litigation costs in order to ensure individuals’ access to

our courts. Regardless of the difficulty, trial lawyers must not only imagine such shift, but takes steps to embrace and enforce it.2 Rather than provide a document-bydocument itemization, a categorical privilege log groups documents together that all fall under a particular claim of privilege on account of the authors/recipients and/or subject matter. Categorical privilege logs and case law supporting such approach have been around for a number of years with relatively

little recognition. However, the need to reduce time and costs associated with electronic discovery now brings this topic to the forefront and necessitates more frequent consideration of categorical privilege logs. This paper 1) touches on the costs associated with discovery and document review; 2) addresses the legal precedent for shifting from a documentby-document review to a categorical approach to privilege logs; and 3) provides a workable framework for such approach with opposing counsel and the court.

Document Review and Discovery Costs Given the confidentiality of information involved in lawsuits, there is little consolidated research regarding the cost of document review and discovery. The Rand Institute for Civil Justice published a report in 2012 that assessed the costs associated with 57 different cases including a range of issues from product liability to contract to insurance to intellectual property.3 This research resulted in the following determinations: A highly motivated and knowledgeable examiner can review 100 documents an hour, which assumes s/he reads a maximum of 600 words (roughly a page and a half) every 36 seconds; Of every dollar spent on document production, $0.73 is spent on review, while collection only accounts for $0.08 and processing accounts for only $0.19; and, The average cost to review one gigabyte of information is $18,000.

The report – and logic – make clear that there are many variables for the costs associated with review (i.e. types of documents, review rate per hour, staff versus contract attorney rates), but these averages equate to some sobering figures. There are roughly 20,000 pages, or 10 banker’s boxes, per gigabyte of information. It takes roughly 133 hours to review one gigabyte, and at $18,000 per gigabyte, discovery costs in document intensive cases can grow quickly from $100,000 for 5 gigabytes (100,000 pages), to $200,000 for 10 gigabytes (200,000 pages), to nearly $1 million for 50 gigabytes (1,000,000 pages).

These staggering costs make it clear that lawyers must work to reduce the number of documents requiring eyes-on review, particularly when it comes to privileged material that will not ultimately require disclosure. Categorical privilege logs are the first step toward avoiding document-by-document review and logging at a prohibitive expense.

Legal Precedent for Categorical Privilege Logs The rules of procedure controlling a claim of privilege have long been in place. C.R.C.P. 26(b) (5)(A) requires that a party withholding information on the basis of privilege or protection as trial preparation material make the claim expressly and describe “the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” Based on this language, a line of Colorado cases established that a document-by-document privilege log is necessary in order to assess the applicability of privilege.4 However, the Alcon court recognized that “[b] ecause our rule is modeled after the federal rule, commentary and case law on the federal [rule] is instructive in the interpretation of our own rule.” In fact, the language of the two rules is nearly identical, but neither the state, nor federal rule provides specific guidance for the format of or the information that need be included in a privilege log. In 1993, the Advisory Committee for the federal rules commented that “[d]etails concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories.”5 The Advisory Committee recognized over two decades ago that a documentby-document review, in some circumstances, may be an unreasonable requirement. Further, the Sedona Conference adopted The Sedona Principles in 2004, which also recommended the use of privilege logs that “classify categories or groups of withheld documents.”6 Since 1993, many courts, including Colorado’s federal court, have recognized the value in categorical privilege logs as long as sufficient information is provided by the party asserting privilege to allow the opposing party and the court to assess the claim.7 The seminal case providing a basis for categorical privilege logs is Securities and Exchange Commission v. Thrasher, 1996 WL 125661 (S.D.N.Y. 1996), in which the court permitted a categorical privilege log, but required 1) identification of the time period encompassed by the withheld documents, 2) a listing of authors, addressees or anyone else copied on an email, and 3) a representation by counsel that the withheld documents were prepared in anticipation

NICOLE M. QUINTANA After distinguishing herself in law school with multiple awards and graduating with honors, Nicole has spent the better part of the last decade distinguishing herself as a trial lawyer and teacher of trial practice. She represents clients in high stakes business litigation, plaintiff’s legal malpractice, and catastrophic personal injury cases. Nicole understands the impact that litigation can have on a client’s life, and she balances the demands of all of her clients by being organized, analytical, and precise. Moreover, Nicole prepares a case from the start as though it will proceed to trial, always keeping in mind the ultimate goal of the client.

Nicole represents clients in state and federal court in and outside of Colorado. She has tried cases to juries, to judges, and through arbitration, but also strives to reach early resolution where doing so serves the best interests of her clients. Nicole has published and presented on various subjects, from the impact a contract may have on the claims a party may assert to the ethical considerations for practicing lawyers to the ways in which to manage litigation costs in document intensive cases.

continued on next page MINNESOTA TRIAL Summer 2017 13

PRIVILEGE LOGS IN DOCUMENT INTENSIVE CASES continued from page 13 EMC Digital Universe with Research and Analysis by IDC, The Digital Universe of Opportunities: Rich Data and the Increasing Value of the Internet of Things (April 2014) available at http://www.emc.com/ leadership/digital-universe/2014iview/ executive-summary.htm.

1

Stated very succinctly by a Maryland federal court, “[i]n this environment, to insist in every case upon ‘old world’ record-by-record pre-production privilege review, on pain of subject matter waiver, would impose upon parties’ costs of production that bear no proportionality to what is at stake in the litigation…. And, of equal importance, a failure to adapt to current ‘real world’ discovery realities will unacceptably lengthen pretrial discovery….”

Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228, 244 (D. Md. 2005).

2

N.M. Pace & L. Zakaras, Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery (2012) available at http://www.rand.org/content/ dam/rand/pubs/monographs/2012/RAND_ MG1208.pdf

3

See, e.g., Wesp v. Everson, 33 P.3d 191, 197 (Colo. 2001) (“ privilege must be claimed with respect to each specific communication “); Alcon v. Spicer, 113 P.3d 735, 742 (Colo.

2005), as modified (June 27, 2005)(requiring document-by-document listing and description of privilege); DCP Midstream, LP v. Anadarko Petroleum Corp., 2013 CO 36, ¶ 44 (upholding document-by-document approach to claims of privilege).

4

Advisory Committee Note to Fed. R. Civ. P. 26(b)(5) (1993).

5

The Sedona Conference, The Sedona Principles: Recommendations & Principles for Addressing Electronic Document Production (2004) at 16, available at https://thesedonaconference.org/ publication/The%20Sedona%20Principles 6

S.E.C. v. Thrasher, 1996 WL 125661 (S.D.N.Y 1996); In re Imperial Corporation of America Related Litigation, 174 F.R.D. 475, 478 (S.D. Cal. 1997); U.S. v. Gericare Medical Supply, Inc., 2000 WL 33156442 (S.D. Ala. 2000); Hopson v. City of Baltimore, 232 F.R.D. 228, 244 (D. Md. 2005); U.S. v. Magnesium Corp. of Am., 2006 WL 1699608 (D. Utah 2006); S.E.C. v. Nacchio, 2007 WL 219966, at *910 (D. Colo. 2007); In re Apollo Group, Inc. Sec. Litig., 2007 WL 778653 (D.D.C. 2007); Fifty Six Hope Road Music, Ltd. v. Mayah Collections, Inc., 2007 WL 1726558 (D. Nev. 2007); Republic Servs. Inc. v. Am. Int’l Specialty Lines Ins. Co., 2008 WL 4691836 (S.D. Fla. 2008); Orbit One Commc’ns, Inc. v.

Numerex Corp., 255 F.R.D. 98, 109 (S.D.N.Y. 2008); 22 N.Y.C.R.R. § 202.70(g), Rule 11-b (2014).

7

Thrasher, supra at *2.

8

14 Summer 2017 MINNESOTA TRIAL

of litigation or contain attorney-client communications rendering legal services and advice.8 The United States District Court for the District of Colorado, in Securities and Exchange Commission v. Nacchio, adopted the analysis set forth in Thrasher and stated that, “[w]hile, in a typical case, a Rule 26(b)(5) privilege log will individually list withheld documents and provide pertinent information for each document, this is not an inflexible requirement.”9 Though endorsement of categorical privilege logs seems at odds with Colorado state-court precedent, the amendment of Colorado Rule of Civil Procedure 16 in 2015 and adoption of new Colorado Rule of Evidence 502 in 2016 provide some additional bases for embracing the federal court approach.10 Colorado courts are becoming more concerned with proportionality and encourage more thorough analysis of disclosure and discovery issues at the onset of a case.11 Parties are also now required to participate in more meaningful Rule 16 conferences in order to prepare a comprehensive case management order in advance of case management conferences with the judge.12 The 2015 Notes to Rule 16 indicate that courts want to be more actively involved early in the pretrial process in order to move cases along efficiently and to “plac[e] reasonable limitations on discovery and potentially excessive pretrial practices at the earliest meaningful stage of the case.”13 Additionally, courts want official orders that provide enforcement power for pretrial disclosure and discovery.14 In conjunction with Rule 16, C.R.E. 502 also addresses disclosure of attorney-client or work product privileged material. Most importantly, Rule 502 provides an avenue for obtaining a court order related to the disclosure of privileged material. In a comprehensive paper addressing electronic discovery and the use of categorical privilege logs, Honorable John Facciola and Jonathan Redgrave propose that the nearly identical Federal Rule of Evidence 502 establishes the power of the court to issue orders addressing procedures for the review and handling of privileged documents “that can never be argued or result in a waiver of privilege,” a proposal verified by the Advisory Committee notes to the Rule.15 These orders may include provisions for clawback or quick peek agreements that

make a categorical privilege log more workable and verifiable, and they ensure that the inadvertent disclosure of privileged material does not lead to an argument that the party waived privilege.

By combining the Rule 16 process with the authority-backed Rule 502 process, lawyers have a stronger argument for the suitability of categorical privilege logs. Counsel can work together to establish parameters for those documents that may be grouped together and included in a privilege log with particular information that allows the other parties and the court to verify the claim of privilege. Additionally, the case management order and/or a Rule 502 order may set forth the agreement between the parties as to how privileged material will be gathered and grouped; what documentation will be excluded from eyes-on review; what information will be included in the privilege log to verify the claim; what the parties may do in the event there is a concern or dispute over a particular claim; and any agreed upon sanctions or cost-shifting in the event one party abuses the process or demands a document-by-document log. Rule 502 also arguably provides authority to courts to issue these types of orders regardless of whether there is an agreement between counsel.

In other words, a court may still issue orders in the event a party refuses to consider or cooperate in establishing parameters for a categorical privilege log.

Establishing Agreement on Categorical Privilege Logs With an arguable basis for categorical privilege logs, the question now is what these discussions and agreements should include. First and foremost, the parties need to assess their own data: the amount of information likely to be disclosed or involved in discovery; accessibility of the information16; the format of that information (i.e. electronic or paper); the availability and cost of electronic databases to assist in review of the information; and the format in which the party may be able provide that information (i.e. native format or OCR’d pdfs). Rule 16 (or Rule 26(f)) discussions should not be superficial or postponed until after initial disclosures because without a frank discussion about the amount and type of data anticipated in the course of litigation, the parties cannot assess the benefit of a

categorical privilege log or obtain orders from the court reflecting agreements that protect both sides.

1. Does a categorical privilege log make sense?

The parties should first discuss the benefit of a categorical privilege log. Complex litigation is more suited to a categorical approach because of the volume of documents and the potential for grouping attorney-client or work product material created in anticipation of litigation. The parties should ask themselves whether there is enough data/documentation to justify a categorical approach. In the event most information is contained in paper format, the parties need to assess whether a categorical “review” is even possible. Parties can use optical character recognition (“OCR”) in order to search documents, but they may agree that such software is not accurate enough to employ for purposes of searching and grouping documents. Parties should

also discuss the use of electronic databases to assist in the process of searching and classifying privileged material. If the parties determine that a categorical privilege log is possible and beneficial, then they can move on to the specifics of what that looks like.

2. What are the methods of categorizing and reviewing documents for privilege?

Part of the benefit of a categorical privilege log is avoiding the cost and time of putting eyes on every single document. Thus, the parties should discuss the proposed categories of privileged material and the method by which they will verify applicability of a privilege.

Should the disclosing party review a sampling of documents that are included in any particular key word search or that include particular senders or recipients?

Alternatively, will the parties rely on computer-categorizing or predictive coding for those documents included in a privileged

category? Perhaps the parties can agree that documents falling within any given category need not be included in a privilege log at all, though they should be preserved. Counsel should address whether email strings will be treated as a single communication, in which case only the “last in time” need be logged, or whether each individual communication within the email string needs to be logged separately.17 Also, the parties should address review and listing of any attachments to emails, as at least one court determined that a party waived any claim of privilege to email attachments by its failure to include independent information and bases for such inclusion in the log.18 3. What information should the categorical privilege contain?

Once the review and handling process is negotiated, the parties should discuss the information to be contained in any given privilege log. Most courts addressing this issue require some combination of the continued on next page

MINNESOTA TRIAL Summer 2017 15

PRIVILEGE LOGS IN DOCUMENT INTENSIVE CASES continued from page 15 Nacchio, supra at *9 (emphasis added).

9

Fed. R. Civ. P. 26(f) and Fed. R. Evid. 502 provide the same bases in federal court.

10

C.R.C.P. 16(3), (6), (9), (15) and (17).

11

Id.

12

Id. at Note [18] and [19].

13

Id. at Note [20].

14

15 Hon. John M. Facciola and Jonathan M. Redgrave, Asserting and Challenging Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework, 4 FED. CTS. L. REV. 19 (2010).

The accessibility of information may have an impact on what a party is required to obtain and review for inclusion in a categorical privilege log. See Zubulake v.

UBS Warburg, LLC, 217 F.R.D. 316 (S.D.N.Y. 2003) for factors relevant to assessing the importance of the information stored and the potential for cost-shifting in the event a party demands disclosure or discovery of such information.

16

See Muro v. Target Corporation, 2007 WL 3254463 (N.D. Ill. 2007) (treating an email string as a single conversation and indexing, or logging, the “last in time” email in the string an an accepted approach); In re Universal Serv. Fund Tel. Billing Practices Litigation, 232 F.R.D. 669, 671 (D. Kan. 2005) (finding that each email in an email string must be individually logged).

17

18 S.E.C. v. Beacon Hill Asset Mgmt. LLC, 231 F.R.D. 134, 145 (S.D.N.Y. 2004).

Facciola and Redgrave, supra n. 15 at 45.

19

FDIC v. Fid. & Deposit Co. of Md., 2013 WL 2421770, *6-8 (S.D. Ind. 2013) (“Descriptions of the documents must not only adequately describe the documents but also allow the court or opposing party to determine why the privilege might apply to the documents described.”).

20

21 Rule 26(b)(2)(iii) provides for limiting discovery when “the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.”

For an alternate, comprehensive proposal on conferral, content of privilege logs, and sanctions, see The Facciola-Redgrave Framework, supra n.15.

22

16 Summer 2017 MINNESOTA TRIAL

descriptive category, key word or phrase; author(s) of the document; recipients of the documents or anyone copied on the documents; dates or date ranges for the category of privileged material; the volume or number of withheld documents; and the claim of privilege. Facciola and Redgrave most succinctly stated that “[t]he object of this exercise is to create a set of natural differentiations among documents so the parties can say, once again with confidence, what is true of items within the category is true of the whole.”19 The categories must also be descriptive enough to comply with Rule 26 and allow the opposing party and court to assess the claim of privilege.20 Electronic databases can pull metadata from native formatted documents and generate itemizations of much of the proposed information. The parties should discuss the availability and acceptability of such printouts in lieu of attorney-generated listings. Additionally, in some cases, the parties agreed or the courts required a certification or affidavit from the disclosing counsel describing the method used to identify documents and verifying the applicability of the privilege. This may reduce the amount of gamesmanship or provide for accountability should issues arise down the line.

4. What happens in the event of a challenge to a claim of privilege?

Finally, the parties should discuss how to address challenges to a claim of privilege.

Will the parties shift the cost of review in the event the other party demands a documentby-document review of any category or portion of a category? Perhaps the parties will agree to a categorical itemization until the other side challenges the assertion of privilege, at which time the producing party agrees to provide a document-by-document log for that portion of challenged documents.

Will the parties agree to a quick peek of a sampling of documents included in any given category in order to verify the claimed privilege? Will the parties utilize Rule 53 and agree to a Special Master for purposes of conducting that sampling review? A Special Master ensures timely decisions on challenges to privilege and also maintains the neutrality of the presiding judge.

However, who will be responsible for the costs associated with the Special Master or will the parties split that fee?

And what might the consequences be if a party abuses the categorical privilege log?

Will the presiding court or a Special Master assess bad faith tactics and monetary or evidentiary sanctions?

5. What happens in the event the parties cannot agree?

In the event one party refuses to discuss these issues or negotiate the terms of any categorical privilege log in good faith, the other party may seek an independent order of the court, relying on Rule 16, Rule 2621 and Rule of Evidence 502. It is important for parties to remember that a categorical approach to privilege logs in no way alters the standards for claiming privilege in the first place; it only provides an alternative approach to logging such documents.

So, where there is a lack of cooperation or a concern about gamesmanship, a party should seek a written order from a court, setting forth in a motion the proposed categories and methodologies above. Orders from the court provide transparency as to expectations for those logs, challenges to a claim of privilege and consequences for violating the courtimposed parameters.22 Conclusion With the rising costs of litigation and the increase of electronic information, it is incumbent on all parties, as well as the court, to find ways to reduce the expense.

Categorical privilege logs, particularly in document intensive cases, are one way of doing so. Further, by addressing such logs during pretrial conferrals and conferences, it promotes early and adequate disclosures and reduces the need to involve the court in privilege or discovery disputes. While there seems to be sufficient legal bases to seek an agreement on the method of categorizing privileged documents, lawyers now need to harken back to the days of yore when face-to-face communications were the standard and good faith negotiations were expected. Cooperation is key to embracing and capitalizing on this more efficient method of asserting categorical privilege. And while the upfront obligations may seem onerous, it is arguably better than traditional efforts of document-bydocument review and logging.

book review

by Nate Bjerke

30(b)(6): Deposing Corporations, Organizations & the Government All of us who have ever sued a corporation, the government or any organization have, rubbing our temples, stared at stacks of discovery responses filled with objection after objection, but no real substance. We wonder, “Why won’t they just give us what we asked for?” Eventually, you may start to wonder if it’s about you; if you’re not a good enough lawyer to make them turn over what the law says they should. And if you’re like me, you may even have days where you start to think your mom was right – you should have gone to dental school. If we’re being brutally honest with ourselves, the frustration that pains us comes from feeling powerless.

But we are far from powerless – the tools are in the Rules, we just need to know how to use them. I have yet to meet a lawyer who knows the rules and how to use them to get to the truth better than Mark Kosieradzki. In his book, Mark shares what he has learned and perfected through decades of hard work, determination and legal genius to cut through the rubbish and get to the truth.

Mark has seen and solved every discovery problem we all face, from wiggly witnesses, to lawyers coaching deposition testimony, to hide-the-ball objections. This book tells you how to

deal with all of it – professionally and effectively.

I don’t care if you are in your first or 50th year of practice, if you read this book, you will be infinitely better equipped to get the truth-telling evidence you need to fight for your clients – in other words, to take back the power. Mark’s book has become required reading for every trial lawyer in our firm.

Mark also shows us we have the power to get to the truth efficiently and costeffectively. Gone are the days of needing to depose 20 corporate witnesses who may or may not offer testimony that binds the company. Using Mark’s techniques, you have the power to get straight answers from a single witness who binds the company.

Lawyers representing organizations, this book is for you too. After doing corporate work for 12 years, I understand the struggles and pressures to not only win, but to win cost-effectively and with minimal disruption to your client’s everyday business. Understanding 30(b) (6) and how you can use it to produce one – rather than 10 – witnesses saves your client’s time and money. Your clients will not have to produce every

FROM AUTHOR: MARK KOSIERADZKI

technician, staff person or employee who was involved in a process or decision for which they are being sued. Instead, they select the witness or witnesses to speak on behalf of the company. Mark’s book also summarizes the law on what is and is not proper conduct under the rules to help organizations avoid discovery fights that can lead to sanctions and other fights that don’t make our judges happy.

I read more books on trial practice and litigation than novels. I have one shelf that houses those precious few law books I read over and over, whenever I get stuck or need direction. Mark’s book, complete with all of my added dog-ears, tabs, notes and highlights, has earned a permanent spot on that shelf.

MINNESOTA TRIAL Summer 2017 17

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practice pointers

Advice for the Aging Trial Lawyer.

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.

MICHAEL A. BRYANT is a partner in the law firm of Bradshaw & Bryant, PLLC. His practice areas include personal in-jury and criminal defense.

Mike co-chairs the MAJ Amicus Committee and serves on the Execu-tive, Finance, Publications and Legislative Committees.

He was the 1999/2000 MAJ Member of the Year and is past president of the MAJ. 20 Summer 2017 MINNESOTA TRIAL

Do you remember your youth? You thought you knew everything, although now you know you were very wrong. But you were usually the smartest guy in the room and learning was easy. You could read a case in a flash and brief it for your law school professor and sit there just hoping you would be called on so you could show off your brilliance. Although you spent your first year writing painstakingly detailed briefs on every case for the upcoming two weeks (because you were scared to death that you were going to be ripped apart by John Houseman from “The Paper Chase,”) soon you were confident that a quick read was all it took to prepare you. The bar review course was just a six-week vacation and the bar exam, while intimidating, turned out to be a breeze. You entered the job market just itching to show off your vast knowledge and quick wit.

Or maybe you were the more deliberate, hardworking type. Detailed study and focused preparation had carried you all the way through school, but it was not easy. So, the bar review course was weeks of 18-hour days of intense review. The bar examination was like two days of torture. But you passed. Maybe not the first time, but ultimately you passed. You entered the job market hoping that your hard-earned grades and class rank would carry you beyond any limitations of a less than genius intellect.

Regardless of the type of law student you were, you soon discovered that the practice of law and law school were only tangentially related. So, you put your unique skillset – whether it was a brilliant intellect and ability to think on the fly and “wing it” or slow, steady and hardworking – and applied that skillset to the practice of law. You quickly found that both attributes of intellect and the tools that benefited a trial practice as much as they did law school. If you were the “wing it” type, you soon found that the more you prepared beforehand, the better you knew your case your facts and the law, the better you could wing it. And if you were already the overly prepared type, you became more and more capable of extemporizing, thinking on your feet and using your imagination.

Early in my career I had some surprisingly substantial success with juries. Ego often requires lawyers to accept acclaim for such success, but in the instant case, your editor has always attributed pity on the part of juries for a great deal of that success. No doubt there was some self-deprecating humor there, but there have been cases of clumsy, mistake-strewn, seemingly inept attorneys convincing juries to award surprise verdicts simply because the Plaintiff’s attorney seems too incompetent to be trying to pull a fast one.

We have all had clients where we thought, “he’s just too dumb to be lying about this” but there are certainly advantages to youth.

Your editor probably weighed 90 pounds less than he currently does for the first few of those victories. The skin was smoother and the hairline wasn’t quite as high. Wouldn’t any jury prefer to listen to a younger, thinner, better looking lawyer? Maybe.

Uncertainties of Middle Age. As we progressed into our 10th and 15th years of practice, subtle changes began to occur that undermined our youthful confidence. The memory is the most notable. Case citations and holdings that used to spring easily to mind when needed were forgotten and inaccessible.

After a witness was excused, we might realize that we had forgotten an entire area of crossexamination. Moreover, youthful confidence began to flag. Young women who may have previously smiled and actually flirted start to look through you. The suits don’t fit as well anymore, and you spend a lot of money trying to get the belly smaller or better hidden with welltailored clothing. Jurors stop making eye contact during voir dire.

Women lawyers are probably even more cursed by aging. Society seems to place much more value in youthful appearance in women than men. And while a young attractive female lawyer may feel as though she is not taken seriously, ask an aging female lawyer if she feels sorry for her sister’s woes.

Men and women lawyers alike feel the march of time most heavily in their middle ages and in fact this is the time when the already high risk

of leaving the practice (or leaving life itself) is highest for lawyers.

The Advantages of Age. As we approach the end of our sixth and seventh decades, we should celebrate the advantages that our years give us.

The perfect example is MAJ Stalwart Paige Donnelly. Most of my career, the only thing I knew about Paige Donnelly was that he owned the back of the St. Paul Yellow Pages. Then about 10 years ago, the MAJ list serve lit up with congratulations over a $70,000 whiplash verdict by Paige over Ken Dodge, a skilled defense attorney. Interesting, but only momentarily.

Seven months later, Paige had another $70,000 soft tissue verdict, this time against Linc Deter, a well-known and skilled defense attorney. Another seven months passed and there was a third $70,000 soft tissue verdict, this time against Doug Shrewsbury, another well-known defense attorney. Another six months went by, but October 2009 produced a $44,000 Pine County verdict

(after an $18,000 defense offer), a $633,000 arbitration award (after a $0 offer), and a $146,000 verdict that was double the last offer. Not a bad month.

These verdicts continued almost without pause for a full seven years. One can only assume that since then the insurance companies have simply started to tender their limits to Paige.

The lesson here is that Paige Donnelly got these verdicts all in his late 70’s and early 80’s. His biography reflects that he received his undergraduate degree in 1954 and he has had his law license for 57 years!

While I do not know the detail of Paige Donnelly’s 30’s, 40’s, 50’s, and 60’s, I do know that he has received more excess verdicts in the last 10 years than most other civil trial lawyers have even tried before a jury. Defense attorneys have privately pointed out to me that he focuses on the pain, suffering and disability both in the individual medical records, with before and after witnesses, and in the client’s testimony. It probably

does not hurt that he is an unassuming old leprechaun trying many of these cases in St. Paul, but the luck of the Irish cannot explain such a consistent and repeated record of large verdicts.

Something that he learned along the way, probably many things that he learned along the way, a reverent politeness with jurors, facile direct examination, quiet but firm cross examination, and almost certainly a passionate and heartfelt closing argument. Paige Donnelly’s skills cannot be minimized and these were skills learned over a lifetime.

While Malcolm Gladwell’s book Outliers “10,000-Hour Rule” has been severely criticized, the benefit of repeated practice has not been debunked. Gladwell, basing his 10,000 hour rule on the research of Anders Erickson, claimed that only by reaching 10,000 hours of “deliberate practice” can a person become worldclass in any field. To support the rule, Gladwell cited the Beatles’ 10,000 hours playing in Hamburg clubs, Bill Gates’ 10,000 hours of computer access starting at age 13, and other such examples. continued on next page

MINNESOTA TRIAL Summer 2017 21

PRACTICE POINTERS continued from page 21

There have been many studies that attempt to debunk this 10,000-hour rule. They point to genetic advantages, innate intelligence, size, strength and other factors such as imagination and creativity to reduce the effective practice.

But there can be no doubt that practice makes perfect, or at least practice improves most skills. And who has had more practice than a 60 or 70-year-old lawyer?

Sitting in an arbitration recently, your editor had the odd experience that he was almost looking through a time machine as he observed opposing counsel. Highly prepared, and very knowledgeable about the facts of his defense, but nervous and inexperienced in his cross. Brave enough to venture into areas that he did not know the answers, but too foolish to recognize that he was facing an excellent witness

22 Summer 2017 MINNESOTA TRIAL

(who happened to be an extremely highly paid and successful person in another communication/persuasion field, sales).

I remember earlier in my career being impressed when older, successful, skilled defense attorneys would calmly pull back on their cross-examination after such a witness had burned them a little. But not my young opponent, who labored perhaps under the conviction that if he kept on, he might find the right question in his meticulously detailed notes. Besides, he had done all that preparation and knew those bills and records backwards and forwards. He was going to finish his cross-no matter what. So, while scoring two or three minor touches, he failed to notice that he was jabbed and hooked and basically KO’d by this very skilled communicator/ claimant. Maybe if that happens to him often enough, he will learn not to lead with his head.

Similarly, with case selection. While my early trials were almost all hand-medown ‘dogs’ from other lawyers at the large personal injury firm in the IDS Tower (thus the “surprise” of winning so many of these), I have no doubt that 30 years of experience has improved my case selection.

To be fair, I still take cases that I should not; the difference is that I know it when I take them. Many years ago, my mentors taught me the “fracture rule” for slip and fall cases. Since slip and fall cases almost always include a risk of substantial comparative fault (assuming a judge even lets you get to trial), I was taught that unless the case had either fractured bone or surgery involved, it simply was not economical to bring the case. That rule served me well, but there are certainly non-surgical non-fracture slip and falls that are economically viable just as there are serious fracture or surgery slip and fall cases that should

not be signed up. Any young lawyer can recite the pluses and minuses of a personal injury claim, the existence of a prior injury or a pre-existing condition, the quality of expert testimony, the quality of the plaintiff’s testimony and their ability to withstand crossexamination, the talent of the defense attorney and the defense doctor. But it is experience that allows us to balance all of these multiple factors into an evaluation of a case even shortly after the injury. That task is much easier than it was at any time in the past.

I recall in my third or fourth year of practice thinking that every verdict I had ever received was with a plaintiff that “I liked.”

Certainly likeability is an important factor for a plaintiff. Then I was given another hand-me-down from one of the partners at my firm, a very demanding and very angry and very mean clientwho had retired early on disability. She had a slip and fall on a public sidewalk on a large, perhaps open and obvious puddle of ice, and suffered a torn rotator cuff. I might not even take the case today. The defense had not offered much and a few weeks before trial halfheartedly asked if $10,000 or $15,000 would settle the case.

That client was not likeable at all.

However she was a magnificent witness, charming the jury throughout. That and a couple of other bits of skill and luck led to the largest personal injury verdict in that count. When I hand delivered the check from that verdict, she simply complained that it was not as much as it should have been. My companions said that I looked like I was going to blow a blood vessel. So you don’t have to like your client, but I think the jury usually does. That was a lesson learned.

I hope you and I will continue to learn.

Maybe we can all someday become more like Paige Donnelly.

MINNESOTA TRIAL Summer 2017 23

employment law report Anti-Retaliation Protections in the Workplace in 2017 and Beyond Introduction In the past year, the country has witnessed volatile and even explicitly vindictive behavior by people in powerful positions. This is troubling for many reasons, and it has direct implications for the workplace because of the general disparity in power and voice at work. In short, the tone set at the top affects everyone else to one degree or another.

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.

Under these circumstances, maintaining and even expanding robust anti-retaliation protections in the workplace is essential. Although the current administration put a judge on the United States Supreme Court who is highly skeptical of employment and civil rights claims – as reflected in questioning of the nominee

by Senator Al Franken during Congressional hearings – that action, alone, will not destroy anti-retaliation protections.

The broad and pro-plaintiff nature of antidiscrimination law has be established through a long line of cases decided by the United States Supreme Court, including those authored by Chief Justice John Roberts or by Justice Samuel Alito. Recent developments at the State level also provide expansive protections to employees.

Nonetheless, plaintiff counsel must be vigilant in asserting retaliation claims properly and

24 Summer 2017 MINNESOTA TRIAL

prosecuting them effectively so that the doctrine does not go in the wrong direction. To that end, this article outlines the doctrine as it exists today and as it should be in the future.

I. Federal Anti-Retaliation Law Remains Strong in Favor of Plaintiffs That the robust enforcement of anti-retaliation protections should continue even now comports with the United States Supreme Court’s policy preference for the out-of-court resolution of disputes. In that regard, as exemplified by several recent pro-arbitration decisions, the Supreme Court has essentially outsourced the dispute resolution function of the courts in an expanding array of cases.

The ongoing broad application of anti-retaliation protections advances the United States Supreme Court’s outsourcing agenda in at least two respects. First, according to the United States Supreme Court’s evident perspective, employees will be less likely to litigate if they think their discrimination, harassment, and other workplace-related complaints will be addressed appropriately by employers rather than trigger reprisals. Second, from the United States Supreme Court’s vantage point, employers will be more likely to address workplace-related

concerns and, therefore, avert litigation when employees feel free to come forward with their complaints to employers.

In short, although litigation in the lower courts may create marginal doctrinal permutations, the general plaintifffriendly approach should continue much as before. The cases that provide the legal architecture for robust anti-retaliation protections going forward at the Federal level include the following: • Dep’t of Homeland Security v.

McClean, 135 S.Ct. 913, 920-24 (2015) (in an opinion authored by Chief Justice John Roberts, ruling that the whistleblowing at issue was protected activity even though it violated a federal regulation); • Kasten v. Saint-Gobain Perform.

Plastics Corp., 563 U.S. 1, 4-5 (2011) (holding that the anti-retaliation provision of the Fair Labor Standards Act protects employees who only make an oral complaint, rejecting the trend under state law that increasingly requires formal and/or written reports to compel protection); • Thompson v. North Amer. Stainless, LP, 562 U.S. 170, 173-75 (2011) (in a unanimous opinion announced by Justice Antonin Scalia, concluding that adverse action against a third party can support a retaliation claim); • Crawford v. Metropolitan Government of Nashville, 555 U.S. 271, 27374 (2009) (ruling that Title VII’s anti-retaliation provision protects employees from retaliation when employees merely participate in an employer’s internal investigation of a potential violation); • Gomez-Perez v. Potter, 553 U.S. 474, 478-79 (2008) (in an opinion authored

by Justice Samuel Alito, basically reading an anti-retaliation provision into the Age Discrimination in Employment Act); • CBOCS West, Inc. v. Humphries, 553 U.S. 442, 445 (2008) (holding that Section 1981 protects individuals who have complained about potential violations concerning a third party); and • Burlington North and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (ruling that what constitutes adverse action in support of a retaliation claim is anything which “might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”).

To the extent defense counsel are now arguing that the “but for” causation standard should somehow be applied in anti-retaliation cases, the ultimate outcome of most cases should not change. In a case emanating from the Eighth Circuit, Burrage v. United States, the United States Supreme Court directly addressed the meaning of “but for” causation when discussing an employment case, Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013).1 In that context, the United States Supreme Court quoted legal authority describing “but for” causation as “the minimum concept of cause.”2 The Supreme Court’s unanimous opinion in Burrage – which Justice Antonin Scalia authored – ultimately framed the analysis of “but for” causation through a number of metaphorical examples.3 Perhaps the most helpful metaphor for plaintiffs is the following: [The predicate act is the “but for” cause if] the predicate act combines with other factors to produce the

result, so long as the other factors alone would not have done so – if, so to speak, it was the straw that broke the camel’s back.4 In so doing, United States Supreme Court confirmed that the evidentiary standard governing retaliation claims is not onerous and, in fact, continues to be the lowest threshold for establishing a causal connection even after Nassar.5 Not surprisingly, then, the Eighth Circuit has held that a jury may infer causation simply from the evidence that the employer’s rationale for adverse action was pretext for retaliation.6 II. State Anti-Retaliation Law Also Remains Strongly in Favor of Plaintiffs Retaliation claims continue to receive favorable treatment under Minnesota law as well. For example, the Minnesota Supreme Court has ruled that plaintiffs have the right to a jury trial in workers’ compensation retaliation cases and, moreover, that employers in those cases cannot use the Faragher/Ellerth affirmative defense that has defeated so many harassment claims over the years.7 More recently, the Minnesota Supreme Court has held that employers cannot use an employee’s immigration status as a defense to a workers’ compensation retaliation claim.8 In addition to positive rulings by the Minnesota Supreme Court, the Minnesota Legislature has amended the State’s whistleblower law to make vital and pro-plaintiff changes to the statute. The State whistleblower law now protects employees when they, in good faith, report – verbally or in writing – any actual or apparent violation of a legislatively, administratively, or judicially established standard by the continued on next page

MINNESOTA TRIAL Summer 2017 25

EMPLOYMENT LAW REPORT continued from page 25 134 S.Ct. 881, 887-88 (2014).

1

Id. at 888 (emphasis added).

2

Id.

3

Id. (emphasis added).

4

Id.

5

6 Bennett v. Riceland Foods, Inc., 721 F.3d 546, 551-52 (8th Cir. 2013).

See generally Schmitz v. U.S. Steel Corp., 852 N.W.2d 669 (Minn. 2014).

7

8 Sanchez v. Dahlke Trailer Sales, Inc., Court File No.: A15-1183 (Minn. 2017), http://caselaw. findlaw.com/mn-supreme-court/1866157.html

Minn. Stat. § 181.931, Subds. 4, 6, as amended; Minn. Stat. § 181.932, Subd. 1, as amended.

9

Minn. Stat. § 181.931, Subd. 4, as amended.

10

Id.; Minn. Stat. § 181.932, Subd. 1, as amended.

11

employer or a third party.9 In that regard, good faith reports include anything that is not akin to fraud.10 Among other things, this means that Minnesota’s whistleblower law protects employees when making reports even if doing so is part of their job.11 Moreover, the amended law protects those who report anticipated violations.12 Significantly, an employee needs not be fired or suffer other economic loss to experience adverse action.13 Retaliation for purposes of a whistleblower claim now is any “conduct that might dissuade a reasonable employee from making or supporting a report, including posttermination conduct by an employer or conduct by an employer for the benefit of a third party.”14

Conclusion Anti-retaliation law continues to be a bright spot for employees and other plaintiffs, both in Federal court and in State court. Plaintiffs and their counsel should not be complacent, however, because efforts to roll back hard-fought victories are underway.

Therefore, plaintiff counsel should not overreach when asserting and prosecuting retaliation claims and, furthermore, must be ready to counteract efforts by defense lawyers to distort the doctrine.

Minn. Stat. § 181.932, Subd. 1, as amended.

12

Minn. Stat. § 181.931, Subd. 5, as amended.

13

Id.

14

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26 Summer 2017 MINNESOTA TRIAL

Life Legacy

Ron was born September 12, 1934, in Westbrook, Minnesota to Harry and Agnes (Iverson) Schneider. He was raised on a farm and attended Westbrook High School excelling in athletics and academics. He continued his education at Gustavus Adolphus College in St. Peter before entering the NAVCAD program with the US Navy. He became an aviator and completed flight training at the end of the Korean War. He flew from aircraft carriers in the Mediterranean Sea and the North Sea while on active duty. Ron first flew the Douglas A-1 Skyraider, a propeller-driven attack bomber. Later, he transitioned to jet aircraft including the Douglas A-4 Skyhawk.

While deployed, he and his air wing were tasked with protecting aircraft carriers from attack, a hazardous job even during periods of peace. He lost a number of good friends while serving in the Navy.

>>

Ronald H. Schneider, 82, passed away July 10, 2017, at the Bethesda Grand Memory Care Unit in Willmar. His funeral service will be 11:00 am, Thursday, July 27th, at Vinje Lutheran Church in Willmar. Visitation will be one hour prior to the service at the church. Memorials may be directed to Gustavus Adolphus College in St. Peter, MN, or Vinje Lutheran Church, Willmar, MN. Arrangements are with Harvey Anderson Funeral Home, Willmar. www.hafh.org

On Demand...

After four years of aircraft carrier take-offs and landings fighting “the cold war” he moved to the US Naval Reserve and returned to Minnesota. He completed his Bachelor of Arts in business at the University of Minnesota in 1960 and later earned his law degree from the University of Minnesota in 1964.

He married Betty Weldon in Manhattan, New York in 1959. After completing law school, they moved to Willmar to work for the late Senator of the State of Minnesota, Bob Johnson, in 1963. Eventually, Ron struck out on his own, first serving as the assistant Kandiyohi County Attorney, then elected Kandiyohi County Attorney. He was honored to serve as lead prosecutor and advisor to the county board. He maintained a private law practice in Willmar before retiring in 2012. During his years of practice in Willmar, he served as President of the Minnesota County Attorney’s Association, and President of the Minnesota Trial Lawyers Association. He enjoyed teaching Sunday school at Vinje Lutheran Church and acting in plays at the Barn Theater. Later in life, he ran for and was elected to the City Council of Spicer. For five decades he was a proud member of the Willmar Kiwanis Club.

Ron and Betty were blessed with two children: David and Lynne. David followed Ron in the practice of law and they practiced together for 18 years, before Ron’s retirement. Ron loved the outdoors. Besides being a gentleman farmer, his hobbies included: drawing, painting, downhill skiing, sailing, running, and bicycling. In retirement, he remained close to his family, and farming, until his health began to fail this year. He is survived by his wife Betty; son David and wife Trish; daughter Lynne; grandchildren: Eric, Suzanne, Sam, and Megan; his sisters: Anita and Romelle; and numerous nieces and nephews. He was preceded in death by his parents.

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david.christianson@cpqlaw.com MINNESOTA TRIAL Summer 2017 27

women for justice In Her Words: Pro Bono Work That Fits MAJ’s Women for Justice Section (WFJ) has taken up a number of philanthropical causes over the years, including work with the Jeremiah Program, Wayside Treatment Center, Avenues for Homeless Youth, and the Ghana Wells Project So, perhaps it is of no surprise that our members are engaged in a fair amount of pro bono legal work as well.

STACY DEERY STENNES is an attorney at Conlin Law Firm, where she handles personal injury and wrongful death litigation – including product liability and medical malpractice – in Minnesota, North Dakota, and Wisconsin.

At a recent Women for Justice meeting, members discussed their various experiences doing pro bono, including the rewards and challenges. Part of the discussion involved identifying pro bono work that members

could fit into already demanding schedules, and organizations able to provide the support necessary to help pro bono attorneys feel successful. This article is a continuation of that discussion. We offer the testimonials that follow in the hope they inspire other members to take up causes important to them.

We’d love to continue the conversation! If you have a pro bono experience you would like to share with MAJ colleagues, please send it to the WFJ, care of Stacy Deery Stennes (stacy@ conlinlawfirm.com). We will compile and share what we receive in a future publication.

HOLLY DOLEJSI is an attorney in the Mass Torts department at Robins Kaplan. She is currently litigating gastrointestinal injuries linked to the prescription hypertension drug Benicar, and ketoacidosis injuries associated with the Type 2 diabetes drugs Invokana and Farxiga.

Organization: The Advocates for Human Rights Description: assists victims of human rights violations and represents immigrants and refugees seeking asylum in obtaining legal status in the U.S. My experience: I was looking to take on some pro bono work that would be meaningful, but which would not take over my life (and schedule) when it went to trial. The perfect opportunity came my way when The Advocates approached my firm about helping them with a large number of labor trafficking victims in northern Minnesota.

Farm workers from the Dominican Republic had come to Minnesota on temporary worker visas.

When they arrived, they were subjected to terrible working conditions and substantially reduced pay from what they had been promised. The Department of Labor investigated and prosecuted, a process with which many of the trafficking victims assisted. The Advocates found themselves in a position of having dozens of people in need of Trafficking Visas, causing them to reach out to local firms to help. I had the honor of helping a young man from the Dominican Republic submit 28 Summer 2017 MINNESOTA TRIAL

a Trafficking Visa application for himself and his family. As I embarked on the process of learning even the basics about US Immigration law, I found myself saying over and over, “How is a trafficking victim supposed to do this without a lawyer?”

The process itself is very detailed, and would be difficult for a non-native speaker to do correctly.

However, the Advocates was there to train me, answer my questions, and serve as a sounding board. There also are no court appearances or trials in this process, it is purely administrative.

As a result, most of the work can be done on your own time, and can accommodate most schedules.

Support/training provided to volunteer attorneys: regular orientation sessions are held every other month for new volunteers (see www. theadvocatesforhumanrights.org/volunteer for details). In addition to regular training sessions which are free and provide CLE credit, the organization provides support to volunteer attorneys through their website, and via phone and email.

Time commitment: 50-150 hours, but on your own schedule.

JACQUELINE OLSON is an attorney at Zimmerman Reed representing clients injured by pharmaceutical drugs and recalled or defective medical devices.

She is currently advocating for women injured by Transvaginal Mesh implants, and also represents individuals injured by defective orthopedic hip devices and the diabetes drug Invokana.

Organization: Federal Pro Se Project Description: When a case gets to a certain point in litigation and the Plaintiff bringing the claim is a Pro Se litigant, the Federal Court asks attorneys to intervene and help the Plaintiff either (1) understand the process or (2) help with a part of that process to ease the burden on the Court who does not have the capacity to help the Pro Se plaintiffs along, but want to make sure they are getting the benefits of the legal system.

My experience: One of the most interesting cases I took on was a woman who had filed a lawsuit alleging damages resulting from a drug she took. There were several legal hurdles to her case, so we were tasked with advising her on what those hurdles were to pursuing the case. The Judge on that case had ordered her case to early mediation, so we agreed to represent her up to and through mediation of her claim. If she decided not to settle her case, our firm would withdraw representation.

We had the pleasure of meeting her in person and she provided us with a book she had written. She was so grateful for our assistance with her case, as she had gotten pretty far in the process on her own. The experience was memorable and I felt good about giving her my pro bono efforts to help her in her use of the civil legal system, which she should have easy access to. As for the resources provided to us, we were given the procedural history of her case and we received assistance in reaching out to the client initially and building a relationship with her.

Another case took less of my time, but was very fulfilling.

I was tasked with helping a Pro Se plaintiff understand the legal system and the process – she had tried to pursue the case on her own but simply didn’t understand the system or what was required of her. She was an immigrant to this country and English was not her first language. It was difficult to explain the system to her when she had come from a country that had no similar system, so it was really a testament to how accessible the justice system in the United States is accessible to all – when that may not exist in other countries.

I truly believe part of my role as a lawyer is to help provide access to justice for all citizens, regardless of their background or experience in life and to protect the rights of each individual person. I enjoy being an advocate for those who cannot or will not speak for themselves and for those who don’t even understand the justice system – even though it exists for their pursuit of justice and equality in their life. For that reason, I really enjoy volunteering for this organization so I can do just that. The Pro Se litigants are forever grateful that someone will help them and they no longer feel alone or like David vs.

Goliath in the pursuit their lawsuit.

Support/training provided to volunteer attorneys: The organization provides tremendous support to the attorneys who can take a case. They take the time to bring the attorney up to speed on what the Court has done up until now and what relevant orders exist to assist the attorney in their pro bono representation of the client. The Court is extremely grateful for the service of the lawyers and recognize those who contribute to the Pro Se Project over the year.

Time commitment: This does vary based on what the court has asked for help in doing such as (1) sitting down with the client to help them understand the legal process and their obligations as a Plaintiff bringing a lawsuit; (2) redrafting a Complaint, (3) preparing documents to comply with a court’s order in that case; or (4) assisting the client in trying to resolve the case by settlement or dismissal. If I had to estimate, I would say that each case you take on takes between 1 hour and 20 hours, but could take more if the attorney decides to take the case on until the litigation resolves. I personally have not done this, nor has anyone at my firm that I know of, so if that happens the time commitment can be much greater. continued on next page

Pro Bono Work That Fits MINNESOTA TRIAL Summer 2017 29

WOMEN FOR JUSTICE continued from page 29

KATRINA WASS is a partner at Pemberton Law’s Fergus Falls office and practices family law, including divorce, child custody, adoption and child support in both Minnesota and North Dakota.

She has been named a Minnesota “Rising Star” seven times, and actively volunteers with community organizations in her hometown of Underwood.

VIET-HANH WINCHELL is an attorney at Galowitz – Olson in Lake Elmo.

She handles a variety of litigation matters in Minnesota and Wisconsin, including personal injury, family law, probate, landlord/tenant, and criminal defense. She is fluent in French and Vietnamese and serves on the Commission on Judicial Selection.

Organization: Volunteer Lawyers Network

Organization: Tubman Safety Project

Description: Protects and enforces the legal rights of low-income Minnesotans through volunteer lawyers.

Description: Volunteer attorneys represent victims of domestic violence at Order for Protection (OFP) and Harassment Restraining Order (HRO) proceedings in Hennepin and Ramsey Counties.

My experience: I handled a Third-Party Custody matter for a teenager who came to this country through perilous conditions from Guatemala in an attempt to escape the abusive conditions she was subjected to in her home country.

She came to Minnesota to live with her cousin and was facing immigration issues that could be handled better if there was a Custody Order.

It was fascinating for me to be involved in a legal matter in my own backyard that was an issue nationwide, and wonderful to feel confident about the work product I was able to produce with the expert assistance provided to me. It may have been a negative experience for me but for all the support they provided.

Even with the support provided it was a time commitment, but it was challenging, rewarding, and very worthwhile.

Support/training provided to volunteer attorneys: The support they provided was amazing. They provided everything from heavy duty legal research and analysis on service of process issues involving international treaties to translation of documents between English and Spanish. They also provided someone that could interpret during client meetings I had here in my office in Fergus Falls. Also, they offered various trainings for volunteer attorneys on the exact matter I was handling, while I was handling it. Unfortunately, I was not able to attend, so I cannot comment on the substance of the trainings, but I knew they were available if need be.

Time commitment: This certainly will vary, but my matter was approximately 40 hours over the course of a year.

My experience: I have been volunteering with Tubman for approximately five years. My volunteer work at Tubman representing victims of domestic abuse is the main reason I expanded my practice to include family law. As personal injury attorneys, we are programmed to want to help victims in pain and this transfers easily to representation of victims of domestic abuse. In a world of chaos, you are providing extra hands, so that your client can stand up to her abuser and help him or her fight for the protection and the life he or she deserves.

Although I already have my own resources and do not need much assistance from the Tubman staff attorneys, they are more than willing to help you through your client’s case.

Tubman provides templates for pleadings, testimony outlines, and all documents you would need to represent your client.

Tubman makes it very easy for an attorney with zero experience in family law, which is all the more reason that everyone should take the time to volunteer. Even if you could pick up only one case per year, Tubman is always in need. Unfortunately, it seems that there is always at least one victim, DAILY, in need of volunteer services. That one case you pick up could literally save someone’s life.

Support/training provided to volunteer attorneys: Tubman provides a half-day training and a binder full of resources. There is always a Tubman staff attorney providing legal support, case consultation, and mentoring. Tubman will provide you the support you need to effectively represent your client.

Time commitment: The commitment of hours varies per case, but volunteers typically spend ten to twenty hours per case.

Tubman prefers that volunteer attorneys take on at least two clients in a year, but the added bonus to volunteering for the Safety Project is that you will receive CLE credits for your time!

Tubman is an approved legal services provider permitting you to receive one CLE credit for every six hours you volunteer.

30 Summer 2017 MINNESOTA TRIAL

SUSAN M. GALLAGHER, J.D., R.N., has practiced family law for 23 years.

A qualified neutral under Minn. Gen. R. Prac. 114, she also serves as a mediator, arbitrator, consensual special magistrate, social and financial early neutral evaluator, Guardian ad Litem and as a parenting consultant and parenting time expeditor.

Organization: Volunteer Lawyers Network (VLN) Description: VLN matches low-income clients with volunteer attorneys for free civil legal services. Services range from advice, such as at the self-help clinic, to full representation.

VLN lawyers provide legal services for low-income clients areas that impact basic human needs, such as housing, bankruptcy, family, debt collection, etc. VLN does not service criminal matters, personal injury, worker’s compensation, legal or medical malpractice, or any other fee-generating issue.

My experience: I have been a volunteer attorney representing low income clients with family law issues through the VLN since 2003. The client’s needs in family law are primarily in two areas, namely, dissolution without children and dissolution with children. I have represented clients who have lost their children due to harassment restraining orders and obtained reinstatement of custodial rights through numerous contempt and review hearings and trial; obtained parenting time suspension due to domestic abuse and neglect of children; obtained child support after establishing limited parenting time to a parent whose divorce was obtained in Africa without naming the children and who had not seen the children in several years.

Representation in these family law matters have ranged from one to two hearings and mediations and up to several years of representation, including several trials, motions, and an appellate brief and oral argument at the Court of Appeals.

Shorter-term representation is more common both for me and for most attorneys. I have also worked at the self-help clinic located in the Family Justice Center, helping clients who need advice about family law matters. The time commitment is simply the two hours blocked out for the clinic. continued on next page

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MINNESOTA TRIAL Summer 2017 31

WOMEN FOR JUSTICE continued from page 31

My work as a volunteer attorney is and has been very rewarding.

Many times, the clients are victims of domestic abuse and have been subjected to power and control tactics by their partner or spouse. Assisting clients in understanding this cycle of abuse helps the client with future relationships with their ex-spouse or ex-partner to strengthen the decision-making process for the children. I believe it also helps the client see the relationship dynamics and make better future partner choices.

Support/training provided to volunteer attorneys: VLN offers CLEs for their volunteers and encourages new and younger attorneys to work with VLN clients, offering forms, advice and mentors.

Time commitment: Varies. See above.

MARLENE J. GOLDENBERG a partner at GoldenbergLaw. Her practice is largely devoted to those injured by defective medical devices and pharmaceutical drugs, including cases involving Abilify, Medtronic Infuse, IVC filters, and Propecia. She was named an “Up and Coming Attorney” by Minnesota Lawyer in 2014.

Organization: Children’s Law Center of Minnesota (CLC) Description: CLC volunteer attorneys represent children who have been removed from their homes because they need protection for one reason or another. Children are then assigned a social worker and guardian ad litem, but their jobs are to advocate for the child’s best interests in court. As a volunteer, you are there to advocate on behalf of what the child wants. While this is often the same as what the social worker and guardian deem to be in the child’s best interest, the child may want to live with someone else or have other requests which are not being adequately addressed.

My experience: I have had three CLC clients thus far, and I have found the experience to be incredibly rewarding. While the social workers and guardians ad litem are often reassigned in the

middle of a case, we as volunteer attorneys are the constants for our clients in these situations. This has allowed me to not only be an advocate in court but also to help my clients get certain needs addressed with social workers (e.g., ensuring someone can help with driver’s education or finding an organization to donate school supplies).

I did run into one situation where one of my clients also had a pending immigration case. CLC was very helpful in putting me in touch with my client’s immigration attorney, and they also helped me draft the short brief that needed to be submitted to the family court so that we could help the immigration case. While this was not an issue I was expecting to deal with, I felt well supported as a volunteer and was confident in the work product I was able to submit with CLC’s assistance.

As members of MAJ, it can be difficult to find volunteer opportunities where we feel comfortable practicing, because there are very few pro bono cases in our line of work – generally everything we do is pro bono until we win. I would highly recommend this as a volunteer opportunity to anyone in MAJ, because CLC does such a fantastic job of supporting its volunteers.

Support/training provided to volunteer attorneys: CLC holds many trainings each year, and a volunteer is required to complete the training before representing a child. The training lasts a couple of hours and free CLE credit is provided as a bonus.

In addition to the training, there is almost always a CLC staff attorney on call at the courthouse in case anything comes up.

CLC’s staff attorneys are also very responsive to phone calls and e-mails in case you have questions which were not addressed in the training.

Time commitment: Generally, the time commitment is low.

When you are first assigned a case, you should meet with your client for an hour or so to understand his or her wants. After that time, you will generally have a hearing every-other-month.

You should touch base with your client, either in person or over the phone prior to the hearing. I often meet my clients early at the courthouse on the same day as the hearing. Hearings are scheduled in batches, so while your case might be scheduled for a 9:00 a.m. hearing, many others will be as well. Consequently, your hearing may occur close to that time if your case is called first, but you may also have to wait for a couple hours. Just to be safe, I block off the morning or the afternoon on hearing days and tell my clients to do the same.

Pro Bono Work That Fits 32 Summer 2017 MINNESOTA TRIAL

MAJ Women for Justice Section Presents the Inaugural

Women Trial Lawyers Camp

FOSTERING EXPERTISE, RELATIONSHIPS & REFERRALS

WELCOME TO THE FIRST ANNUAL WOMEN TRIAL LAWYERS CONFERENCE! We are excited to bring you a new kind of conference- one that fosters female referral relationships and one that enhances our influence, both in the office and in the courtroom.

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family law report

Child Custody In re the Marriage of Crowley and Meyer (Filed June 28, 2017) (Supreme Court)

GERALD WILLIAMS practices family law at Williams Divorce and Family Law, P.A. in Woodbury (www. divorcelawyermn.com; www. minnesotadivorceblog. com). Jerry has served as co-chair of the Family Law Section and on the Board of Governors of MAJ and is a fellow of the Minnesota Chapter of the American Academy of Matrimonial Lawyers. He can be reached at gwilliams@ divorcelawyermn.com

Appellant Mother sought review of a Court of Appeals ruling that affirmed the district court’s denial of her request to reinstate the joint custody order from the parties’ 2012 divorce decree.

In 2013, Respondent Father was granted temporary sole custody of the minor children, after which Appellant sought to reinstate joint custody.

The Court of Appeals had affirmed the district court order, construing the 2013 temporary order as a “de facto” permanent custody order, thereby placing the burden of persuasion upon Appellant to modify the 2013 order to grant her joint custody.

The Supreme Court reversed the Court of Appeals, ruling that the district court had erred by (1) failing to impose upon Respondent the burden of persuasion to modify the joint custody provision of the 2012 divorce decree; (2) modifying the custody provision of the divorce decree without holding an evidentiary hearing; and (3) failing to make the findings to support a modification of the joint custody provision of the original decree.

Spousal Maintenance In re the Marriage of Anderson and Anderson (Filed May 30, 2017) (Court of Appeals) Appellant Wife sought review of the district court’s refusal to grant her a cost-of-living adjustment retroactively, including a period when the parties

were disputing spousal maintenance. The Court of Appeals affirmed, ruling that Appellant was not entitled to relief before providing Respondent Husband with the statutorily required notice; and noting that a spousal maintenance recipient can preserve the cost-of-living adjustment prospectively by providing required notice of the adjustment and requesting that the adjustment be held in abeyance pending the resolution of the maintenance dispute.

Parenting Time Modification In re the Matter of Christensen and Healey (Filed July 3, 2017) (Court of Appeals) Appellant Father sought review of the district court’s refusal to grant his motion to increase his parenting time from alternating weekends during the school year and alternating weeks during the summer, to alternating weeks year-round. The district court considered Appellant’s request has having the effect of changing the child’s primary residence, and ruled that Appellant had failed to meet the endangerment standard for modifying physical custody. The Court of Appeals reversed, ruling that the district court erred by determining that Appellant’s request for additional parenting time was a motion to modify custody. The case was remanded to the district court for consideration of the child’s best interests pertaining to increasing Appellant’s parenting time.

SLIP AND FALL EXPERT

Judith A. Keiser 35 Years Experience Keiser Associates keiser@paulbunyan.net 28502 County 37 Laporte, MN 56461 218-224-2422 34 Summer 2017 MINNESOTA TRIAL

CODES, STANDARDS and OSHA EXPERT DESIGN AND MAINTENANCE STANDARDS • Stairs • 1 & 2 Steps • Sidewalks • Ice • Ramps • Parking Lot & Site Accid.’s • Railings • Foreign Substance • Unsafe Lighting • Injuries In & Outside Buildings

workers’ compensation report Workers’ Compensation Court of Appeals Case Law Updates January 2017 through March 2017 Attorney Fees – Roraff/Heaton Weatherly v. Hormel Foods Corp., #WC17-6038 (WCCA June 13, 2017)

JERRY SISK is a graduate of the University of Minnesota Law School and has been practicing in the area of workers’ compensation since 2003. Jerry is with the Law Office of Thomas Mottaz in Coon Rapids. Jerry also maintains an internet blog focused on current Minnesota workers’ compensation issues and general highlights about the work comp system.

You can find his blog at www.compwonk.com.

The employee appealed the denial of Roraff/ Heaton fees. The attorney filed a Claim Petition seeking various benefits including wage loss, medical bills of an unknown nature, and reserving permanent partial disability.

The employer and insurer responded with an Answer admitting the wage loss claims, stating that the permanent partial disability was premature and that it was unknown whether any medical bills were outstanding.

The Claim Petition was later dismissed.

The attorney file a Statement of Attorney Fees seeking Roraff/Heaton fees. The compensation judge found that no genuine dispute occurred between the parties. The WCCA agreed.

They provided that an attorney must establish that the benefits for the employee were obtained through the efforts of the attorney. The WCCA denied the appeal.

Jurisdictions – Subject Matter Gist v. Atlas Staffing, Inc., #WC16-6019 (WCCA June 21, 2017)

The employer and insurer appealed the compensation judge’s determination that she

did not have jurisdiction to interpret and apply federal Medicaid and Medicare law in determining a medical expense claim of an intervenor. The employee who had sustained a kidney injury as a result of exposure to silica sand went on to develop end-stage renal disease. The employee had received treatment in two different states. The out-of-state provider received Medicaid payments and Medicare payments. The employer and insurer argued that the because the medical provider accepted payment from Medicaid and Medicare, they were paid in full and, therefore, could not claim a Spaeth balance. The compensation judge and the WCCA held that the jurisdiction of workers’ compensation courts is limited to questions of law and fact arising under the Minnesota Workers’ Compensation Law. Jurisdiction of workers’ compensation court does not extend to interpreting or applying laws outside the workers’ compensation system. The WCCA concluded that the compensation judge properly determined that she had lacked jurisdiction to interpret and apply Medicaid and Medicare statutes and rules in determining liability for workers’ compensation benefits. The courts also determined that Medicaid and Medicare law do not conflict with Minnesota Workers’ Compensation Law requiring an employer and insurer to pay reasonable and necessary medical costs for an injured employee. Ultimately, the court concluded that the compensation judge continued on next page

MINNESOTA TRIAL Summer 2017 35

WORKERS’ COMPENSATION REPORT continued from page 35

properly rejected the employer and insurer’s argument that the medical provider would be barred from receiving workers’ compensation payment.

Settlements — Interpretation Allan v. Kolar Buick GMC, #WC17-6028 (WCCA June 22, 2017)

The employee appealed the compensation judge’s findings of dismissing an employer for a 2014 low back injury. The employee in this case had filed a claim alleging two workrelated injuries including the left knee on July 5, 2013 and Gillette-type injury to the low back on February 14, 2014 with the same employer. A settlement was reached whereby the employee settled out all claims for those dates of injury including any and all known

consequential injuries and closed out all treatment for the low back. Several years later, several medical providers including independent medical examiners concluded that the employee sustained Gillette-type injuries to the low back at other dates during the employee’s employment. The employee’s attorney filed a claim alleging benefits.

The WCCA upheld the compensation judge’s findings noting that the judge correctly interpreted the Stipulation for Settlement in concluding that the claim against the employer was closed out because the condition at issue was known to the parties at the time of the settlement. The fact that the employee did not identify a separate date of injury until after the settlement does not alter the analysis as determined under Ryan v. Potlatch Corp.

Arising Out of and in the Course of Employment Hohlt v. University of Minnesota, #A16-0349 (Minn. June 28, 2017)

The employer and insurer appealed to the Minnesota Supreme Court on the WCCA’s reversal of the compensation judge’s Findings and Order. The employee had slipped and fell on an icy sidewalk when walking from her workplace to a parking ramp owned and operated by her employer, the University of Minnesota. She had parked at a public parking ramp owned and operated by the University.

She had been walking on the sidewalk and although the sidewalk was owned by the City of Minneapolis, the University, as an adjacent property owner, had the responsibility to maintain it. The Minnesota Supreme

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Court agreed with the WCCA in applying the increased risk test to the undisputed facts in concluding that there was a causal connection between the injury and her employment.

Additionally, the causal connection existed between her employment which exposed her to a hazard that originated on the premises as part of the working environment. That hazard, was the University’s maintained sidewalk, as she was moving from one part of her employer’s premises to another.

The Minnesota Supreme Court also distinguished between other cases on similar issues distinguishing that the employee in this case was walking between two parts of the employer’s premises. The Minnesota Supreme Court determined that the injury did arise out of the employment. With respect to the course of, the Minnesota Supreme Court agreed with the WCCA and the trial court that there was a reasonable period between actual working hours and that for her to walk to her car, only four blocks away, was reasonably incidental to employment.

Kubis v. Community Memorial Hospital, #A16-0361 (Minn. June 28, 2017)

The Minnesota Supreme Court reversed the WCCA decision on the grounds that it had erred by substituting its own view of the evidence to overturn the compensation judge’s determination that the employee failed to establish her claim for benefits by preponderance of the evidence. The employee in this case took the stairs to go upstairs when she tripped and fell. There were handrails on each side and the stairwell itself was not defective. There was nothing on the stairs that could have caused the fall.

The employee asserted that she was in a rush to logout to avoid overtime.

At trial, the compensation judge found the statement not credible. As such, the compensation judge denied the claim.

The WCCA reversed. The Minnesota Supreme Court determined that the WCCA was not correct in substituting its own view of the evidence in place

of the compensation judge’s findings.

The Minnesota Supreme Court noted that there was no credible evidence in the record to support the notion that the employee was pressured to rush to report to the next shift. The Court determined there was ample evidence in the record consistent with the judge’s findings – the decision was overturned.

Causation – Gillette Injury; Settlements – Interpretation Noga v. Minnesota Vikings Football Club, #WC16-5989 (WCCA April 20, 2017)

The employer and insurer appealed the compensation judge’s findings that the employee had sustained a Gillette injury on December 1, 1992 and that employee’s claims were not barred by a statute of limitations. The employee was drafted by the Vikings and had played defensive lineman from 1988-1992.

He went on to play for several other teams before eventually retiring in 1999. In 2001, he filed a claim for workers’ compensation benefits which were settled with an Award on Stipulation served and filed on March 23, 2004. The employee went on to develop cognitive issues. In January of 2015, the employee filed a claim for workers’ compensation benefits due to the effects of head injuries and for a Gillette-type injury to his head.

The compensation judge had found that the employee had sustained a Gillette-type injury culminating on or about December 1, 1992, which was his last day of employment with the Vikings. He found that that statute of limitations had been tolled. He also found that the claims were not closed out per the prior Stipulation for Settlement. The WCCA remanded the matter back to the compensation judge as it relates to the Gillette injury. The judge relied on the expert medical opinion of a treating physician, however, the physician failed to offer any rationale or evidence indicating that the work activities during the employee’s years with the Vikings

from 1988-1992 were a substantial contributing cause to his condition and claim. Nothing in the report discussed whether the activities were a substantial contributing factor. The WCCA also analyzed the judge’s decision holding that the prior Stipulation for Settlement did not close out the employee’s claims for head injury, brain injury, and dementia claims as they were not specifically mentioned. Also, they analyzed how a new claim of permanent total disability benefits could be made considering there was a close out of those benefits in the past. The court reviewed the compensation judge’s decision which analyzed the Sweep v. Hanson Silo Co. and the Ryan v.

Potlatch Corp. cases. Because the judge had properly analyzed those cases, the WCCA was not willing to reverse on those grounds.

Permanent Partial Disability – Rules Construed – Minn. R. 5223.0390, Subpart 4 Parker v. Foley Locker, Inc., #WC16-6018 (WCCA May 11, 2017)

The employer and insurer appealed the compensation judge’s award of 13% permanent partial disability under Minn. R. 5223.0390, Subpart 4E and 4E(1). The compensation judge reviewed the medical evidence and had determined that the employee was entitled to a 13% rating. The medical experts disputed whether there was or was not radicular findings.

The compensation judge in this case accepted the opinions of Dr. Wengler who documented absent ankle reflex on examination which was considered an objective finding for nerve root entrapment. He also noted positive straight leg raising, limited range of motion, and instability with percussion.

He also felt that the L4-5 level was destabilized and exhibited transitional instability. The compensation judge agreed. The WCCA also agreed with the compensation judge, contrary to

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the employer and insurer’s argument, that there must be persistent objective findings. The court determined that the rating does not require an absent reflex be found repeatedly on examination.

Evidence – Expert Medical Opinion Younghans v. Johnson Brothers Liquor, #WC16-6017 (WCCA May 12, 2017)

The WCCA affirmed the compensation judge’s denial of workers’ compensation benefits. The employee in this case sustained a work-related injury in 1988 to his cervical spine resulting in the need for a cervical fusion and discectomy at C5-6. Following his work injury, he was involved in a non-workrelated motor vehicle accident in 1993.

Prior to the motor vehicle accident, there were degenerative changes noted at adjacent levels to the cervical fusion.

However, following his motor vehicle accident in 1993, he went on to develop worsening of neck pain. In 1999, the employee asserted a claim for medical bills related to the injury. This was denied by the compensation judge at that time indicating that the condition was personal in nature and that the 1988 injury was not a substantial contributing case. The employee began working for a second employer in 2001 before sustaining another work-related injury to his neck on April 30, 2014.

At the request of the employer and insurer, the employee underwent an independent medical examination with Dr. Friedland on September 30, 2015.

An independent medical examination was again later done by Dr. Kristen Zeller for the 1988 date of injury.

Dr. Zeller opined that the employee’s condition was degenerative in nature and unrelated to the work injury and that his current symptoms were related to an Arnold Chiari Type I malformation. She indicated in her report that she was not an expert and could not comment on Chiari type malformations.

38 Summer 2017 MINNESOTA TRIAL

A Claim Petition was later filed seeking payment of medical benefits for the 1988 and 2014 injury. As part of the litigation, Dr. Friedland’s deposition was taken. Dr. Friedland, in his report as well in his deposition, found that the 1988 injury was a substantial contributing cause to the employee’s disability. He also provided testimony relating to the prior degenerative changes found on the cervical spine as it relates to the fusion but before the non-work related motor vehicle accident in 1993. The matter went to hearing and the compensation judge found that the work injuries were not a substantial contributing cause to the employee’s need for treatment. The judge determined that the preponderance of the evidence failed to show that the 1988 was responsible for the ongoing symptoms.

An appeal was filed, only against the 1988 date of injury and not against the 2014 injury. The appeal was made on two grounds. First, the compensation judge’s was not supported by the evidence and second, that Dr. Zeller’s opinion was not founded as she had recused herself by indicating that she was not an expert despite her claim that the employee’s symptoms were related to a Chiari malformation. The WCCA upheld the compensation judge’s findings on the assumption that the judge relied on Dr. Zeller’s report.

There was no mention or analysis as to why Dr. Friedland’s opinions were rejected. The WCCA again affirmed the compensation judge’s findings.

Temporary Partial Disability Benefits Petzl v. DS Agre Const., #WC16-6020 (WCCA May 16, 2017)

The employee appealed the compensation judge’s finding that the employee had failed to meet their burden of proof showing entitlement to temporary partial disability benefits.

The compensation judge had found

that the employee who was earning less than $80 a month while working for his father’s farm as a “goffer” was sporadic and insubstantial income.

The employee met the necessary requirements of temporary partial disability benefits. In particular, whether or not the income was not insubstantial. The compensation judge found and the WCCA affirmed that $80 a month or 8 hours of work at $10 an hour was insubstantial.

Settlements – Interpretation Robertson v. Man Power Temp Services, #WC16-6021 (WCCA May 16, 2017)

The employee appealed the compensation judge’s dismissal of the employee’s Claim Petition which sought benefits for Reflex Sympathetic Dystrophy (RSD) although a prior Stipulation for Settlement closed out all claims for benefits with the exception of medical expenses. The court analyzed the facts under Sweep v. Hanson Silo Co. and the Ryan v. Potlatch Corp. cases when arriving at their decision.

The compensation judge had evaluated under the same cases and ultimately dismissed the employee’s Claim Petition. The WCCA agreed in part but also vacated and remanded. First, the WCCA agreed with the compensation judge that at the time of the settlement, the employee’s RSD condition had been contemplated although it was not referenced or discussed in the Stipulation for Settlement. However, at the time of the employee’s Claim Petition, medical records discussed RSD and the Claim Petition sought benefits for RSD. Therefore, the court reasonably concluded that it was undisputed that the RSD condition was not “unknown”. Second, the WCCA vacated and remanded the finding where the compensation judge had dismissed the entirety of the employee’s Claim Petition. While certain workers’ compensation benefits were closed

out per the Stipulation for Settlement, medical benefits were left open and therefore the entire Claim Petition should not have been dismissed.

Standard of Review Mattick v. Hy-Vee Food Stores, A16-1802 (Minnesota Supreme Court 07/12/17)

The employee in this case had preexisting ankle arthritis. On January 18, 2014, she suffered a work injury to the ankle. Approximately 20 months after this injury, the employee underwent an ankle fusion. Based upon the opinions of their independent medical examiner, David Fey, MD, the employer argued that ankle fusion not related to work injury. The employee’s treating doctors did not provide a definitive statement regarding causation. Therefore, the employee obtains an opinion from Dr. Bert. Dr. Bert found a causal relationship between the employee’s work-related injury and her need for the ankle fusion. After reviewing the evidence, the compensation judge accepted Dr. Fey’s opinions and found no causation existed between the

employee’s injury and her need for the ankle fusion. On appeal, the WCCA reverses, finding that Dr. Fey’s opinion lacked foundation because he relied on an expected natural history of an arthritis condition and he failed to note a 10 year gap in symptoms after the original arthritis diagnosis and the work injury. The WCCA also said that there was not substantial evidence to support the decision judge’s findings that the work injury was not a substantial contributing cause of the surgery.

The Supreme Court reversed the WCCA and reinstated the compensation judge’s Findings and Order. According to the Supreme Court, Dr. Fey had foundation and like the Giannotti case the WCCA was taking statements out of context. While Dr. Fey did talk about the expected natural history, he also clearly recounted and analyzed the specifics of the employee’s injury.

Also, Dr. Fey’s opinion relied on an accurate portrayal of the employee’s condition between the work injury and the surgery. Finally the judge’s decision that the work injury was not a substantial contributing factor to

surgery was supported by substantial evidence. Dr. Fey’s opinion supports it, as does the employee’s testimony that she had ongoing symptoms for 10 years before her work injury, X-rays showed degenerative changes, and the employee’s ultimate diagnosis was degenerative arthritis, which indicated that her ankle had deteriorated over time. Additionally the employee did not have work restrictions after her work injury and had gradual improvement in her condition. It was not until a few months before her surgery a year and a half later that her symptoms became excruciating.

Claims pursuant to Minn. Stat. § 176.82 Sanchez v. Dahlke Trailer Sales, Inc., A15-1183 (Minnesota Supreme Court 06/28/2017)

In this case, the employee, who had worked for the employer for over 8 years prior to a work-related injury, filed a complaint for retaliatory discharge in violation of Minn. Stat. §176.82 after he was placed on indefinite, unpaid continued on next page

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WORKERS’ COMPENSATION REPORT continued from page 39

leave following a deposition in the workers’ compensation proceeding in which he acknowledged that he was not eligible to work in the United States.

This case might sound like a valid offer of employment pursuant to Rivas v. Car Wash Partners, a case in which the Workers’ Compensation Court of Appeals concluded it was reasonable for the employer to condition a job offer on proof of eligibility to work in the United States. However, the facts in Sanchez were different. Unlike in Rivas, the Sanchez employee presented evidence that the employer was aware of his undocumented status two years prior to the work injury. Initially, the Anoka County District Court granted summary judgment and dismissed the employee’s claim for retaliatory discharge in violation of the Minnesota Workers’ Compensation Act. The Court of Appeals reversed and remanded, noting that the Immigration Reform and Control Act of 1986 does not preclude an undocumented worker from maintaining a retaliatory discharge cause of action against his or her employer under Minn. Stat. §176.82.

The Court concluded, further, that the district court erred in finding that, as a matter of law, that the employee did not suffer adverse employment when he lost his salary and benefits.

Because there were genuine disputes regarding material facts of the employer’s knowledge of the employee’s undocumented status prior to the work injury, the Court of Appeals reversed the decision of the district court and remanded it for further proceedings.

Upon appeal to the Minnesota Supreme Court, the Minnesota Supreme Court affirmed the decision of the Court of Appeals and also remanded this matter to the District Court for further proceedings to determine whether the employer violated the terms of Minn.

Stat. § 176.82.

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A compensation judge’s authority to issue an order vacating a portion of a Stipulation for Settlement Logan v. New Horizon Academy, #WC17-6031 (WCCA 06/30/17)

In this case, the employee sustained an admitted work-related injury to her left upper extremity on November 11, 2015. Through an exchange of emails from August 30, 2016, through November 3, 2016, the attorneys for the employee and the employer and insurer discussed the resolution of this case. The parties were able to reach an agreement concerning the issues in dispute. They could not, however, come to an agreement regarding the Roraff/Irwin fees to be paid to counsel for the employee. Due to this impasse on the fee issue, the attorneys agreed to submit a Stipulation for Settlement for approval without an agreement regarding the Roraff/Irwin fees.

This matter became complicated, as several drafts of the Stipulation for Settlement were circulated.

The version of the Stipulation for Settlement that was submitted to the Office of Administrative Hearings for approval and approved through Award on Stipulation included a provision for the payment of $11,220.00 in Roraff/Irwin fees. The Award on Stipulation was issued on November 22, 2016. After discussions between the attorneys, on December 7, 2016, counsel for the employer and insurer advised the compensation judge that the Stipulation inadvertently called for the payment of attorney’s fees, which was contrary to the agreement of the parties, and requested a settlement conference. On December 19, 2016, the compensation judge held a Hearing relative to the terms of the settlement. On December 22, 2016, the compensation judge vacated the award of fees. The employee appealed.

She argued that the compensation judge had no authority issue an order

vacating a portion of a Stipulation when an Award on Stipulation had been issued. The WCCA agreed and held that the compensation judge was not authorized to vacate part of a Stipulation for Settlement upon which a valid Award had been issued. The WCCA found that the inclusion of the attorney fee paragraph did not result from mathematical or clerical errors, that the compensation judge did not retain jurisdiction of the case for 30 days after issuing an Award on Stipulation, as no Hearing occurred in this case, and that the terms of the Stipulation for Settlement are not unclear or ambiguous. Instead, the WCCA determined that Stipulation is a valid agreement. Therefore, the original Award on Stipulation remains in effect.

Extent of Closeouts in Settlement Agreements Dahl v. AG Processing, Inc., #WC-17-6032, (WCCA 06/21/17)

In 2004, the employee sustained an admitted work-related injury to his right shoulder. He treated conservatively following this incident, and continued to experience right shoulder pain with occasional neck tightness. In January 2005, the employer underwent right shoulder surgery. He attended physical therapy, where he continued to complain of neck and right shoulder pain. In August 2005, the employee was released to return to full activity relative to his shoulder. The employee continued to complain of neck pain. An MRI of the neck, completed in September 2005, was read as negative. Nerve conduction studies performed at approximately the same time were also normal.

The employee underwent a revision shoulder surgery in February 2006.

In August 2006 he can sought treatment due to right shoulder pain and pain radiating into the neck and shoulder blade. He underwent a third shoulder

surgery on November 2, 2006. In March 2007, he was evaluated for right shoulder and neck pain. Ultimately, in September 2008, the parties resolved the employee’s claims on a full, final, complete basis, “except for certain future medical expenses which will remain open to the right shoulder, subject to the defense of the Employer and Insurer.” After resolving his claims, the employee continued to treat for his shoulder. He also experienced intermittent neck pain. By 2013, however, the employee’s neck complaints increased.

He underwent an additional MRI of the cervical spine in 2013. Depending on which doctor was reading the MRI, it showed either mild asymmetric osteophyttosis at C4-C5 without significant narrowing of the canal and minimal foramen narrowing on the right or multilevel cervical degenerative disc disease in the facet joints.

He continued to complain of the shoulder and neck pain into 2016. The employee filed a claim for payment of the medical treatment he received.

The employer and insurer denied liability for the treatment, in part, because some of the treatment related to the employee upon his cervical spine, and all treatment except for treatment relative to the employee’s shoulder was closed out by the terms of the 2008 Stipulation for Settlement.

The compensation judge determined that the treatments in question were provided for the cervical spine and were closed out pursuant to the earlier Stipulation for Settlement. Because the cervical spine condition was contemplated at the time of the settlement, the WCCA agreed that treatment for the cervical spine was closed.

Further, under Ryan, the parties could close out consequential conditions if they were within the reasonable contemplation of the parties at the time of the settlement agreement, even when those conditions or complications were not fully realized at the time of the settlement. Therefore, treatment to the cervical spine was closed pursuant to the Stipulation for Settlement.

MINNESOTA TRIAL Summer 2017 41

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