Minnesota Trial - Winter/Spring 2018

MINNESOTA RIAL The Journal of The Minnesota Association for Justice

CAUTION AHEAD:

Common Enterprise, Retained Control and Loaned Servant Doctrines in Third-Party Claims for Construction Injuries and Death

Closing the Courthouse Door Why We Fight Justice PAC Contributors

Winter/Spring 2018

MINNESOTA RIAL 6

The Journal of The Minnesota Association for Justice

CAUTION AHEAD: Common Enterprise, Retained Control and Loaned Servant Doctrines in Third-Party Claims for Construction Injuries and Death

14

ESS N I S U RB O F D E CLOS

CONTENTS

Volume 43 No. 1 | Winter/Spring 2018

Closing the Courthouse Door

In This Issue 20 Justice PAC Contributors 22 Practice Pointers 26 Employment Law Report Successfully Fending Off Employer Non-Compete Litigation

16

BY MIKE CAMPBELL

Why We Fight

31 Women for Justice Women’s Trial Lawyer Conference 32 Family Law Report 34 Workers’ Compensation Report 38 Welcome New Members 38 Our Sustaining Members

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

©2018, 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 Winter/Spring 2018 3

OďŹƒcers

2017-2018 Board of Governors

Robert W. Roe President

Stephanie Balmer

Richard A. Ruohonen President-Elect

M. Ryan Madison

William K. Sutor III

James A. Batchelor

Gregory S. Malush

Tara D. Sutton

Thomas R. Bennerotte

Marcia K. Miller

Scott A. Teplinsky

Eric W. Beyer

Teresa Farris McClain

Brandon Thompson

Michael Hall III Vice President

Nate Bjerke

Christopher J. Moreland

Brandon Vaughn

Lindsey A. Carpenter

Elliot L. Olsen

Ryan O. Vettleson

Genevieve M. Zimmerman Secretary

George (Jed) Chronic

Jerome W. Perry

Kate G. Westad

E. Michelle Drake

Laura L. Pittner

Erik D. Willer

Sheila Donnelly-Coyne

Ashleigh Raso

Mark C. Yira

Brendan J. Flaherty

Richard J. Schroeder

Genevieve M. Zimmerman

Elizabeth M. Fors

Michael F. Scully

James Greeman

Jeff Sieben

Jacob R. Jagdfeld

Keith E. Sjodin

Kate E. Jaycox

Joel E. Smith

Jason P. Johnston

Matthew E. Steinbrink

Paul D. Peterson State Bar Liaison

Jeffrey A. Jones

Stacy Deery Stennes

Peter J. Kestner

Jeremy R. Stevens

Carla M. Ferrucci Executive Director

Robert L. Lazear

Patrick Stoneking

Yvonne Flaherty Kate E. Jaycox Genevieve M. Zimmerman AAJ Board of Governors Josh M. Tuchscherer Ashleigh E. Raso AAJ State Delegate

New Lawyers Section Rep. Nathan M. Maus Women for Justice Rep. Carrie A. Loch

Past Presidents Gary Hazelton

Richard A. LaVerdiere

John W. Carey

Harry Munger

Peter A. Schmit

Keith L. Miller

Stephen S. Eckman

John Cochrane (deceased)

Steven J. Terry

William D. Harper

Hon. Cara Lee Neville

Fred Allen (deceased)

Mark D. Streed

Karla R. Wahl (deceased)

Thomas J. Lyons

Burton R. Sawyer

Karen Kingsley

Walter E. Sawicki

Charles T. Hvass

Thomas Burns (deceased)

Brian Wojtalewicz

Kathleen Flynn Peterson

Adrian Herbst

Si Weisman

James P. Carey

Mark R. Kosieradzki

Russell M. Spence

Irving Nemerov (deceased)

Michael A. Bryant

Fred H. Pritzker

Stanley E. Karon

Hon. John Dablow

Sharon Van Dyck

Logan N. Foreman

Thomas Wolf (deceased)

Norman Perl

T. Joseph Crumley

Charles A. Cox (deceased)

Joseph E. Wargo

Chris A. Messerly

William E. Jepsen

Hon. Duane M. Peterson (deceased)

Wilbur W. Fluegel

Dennis R. Johnson (deceased)

Joseph Burkard

Hon. Robert Gillespie(deceased)

Katherine S. Flom

Ronald H. Schneider (deceased)

Peter W. Riley

Kathleen Worner Kissoon

Duane A Lillehaug

William R. Sieben

David W.H. Jorstad

Robert R. Johnson (deceased)

4 Winter/Spring 2018 MINNESOTA TRIAL

Paul Tierney (deceased) Ronald I. Meshbesher John V. Norton Robert N. Stone

Clint Grose (deceased) Paul Owen Johnson (deceased) Donald Rudquist (deceased) Charles T. Hvass Sr. (deceased) Orville Freeman (deceased)

36th Annual MAJ Convention August 16-18, 2018 MADDEN’S RESORT BRAINERD, MN

KEYNOTE SPEAKER:

JAN SCHLICHTMANN

Jan Schlichtmann is one of America’s foremost environmental lawyers, specializing in toxic torts and consumer protection. He graduated from University of Massachusetts at Amherst in 1973 before attaining his JD at Cornell University in 1977. After working as special counsel on the U.S. House Special Select Committee on Assassinations, Mr. Schlichtmann launched his private practice in his home state of Massachusetts in 1978. He quickly built a reputation as a dogged defender of consumer rights, winning a streak of verdicts and settlements on behalf of people harmed by large corporations.

For lodging information: www.maddens.com/maj-annual-meeting/ MINNESOTA TRIAL Winter/Spring 2018 5

CAUTION AHEAD:

Common Enterprise, Retained Control and Loaned Servant Doctrines in Third-Party Claims for Construction Injuries and Death

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here were 4,693 fatal private industry work injuries recorded in the United States in 2016.1 Over 20% of those fatalities occurred in the construction industry.2 The leading causes of private sector fatalities (excluding motor vehicle crashes) were construction’s “Fatal Four”: 1) falls, 2) being struck by an object, 3) electrocution, and 4) being caught in or in-between equipment or objects.3 In light of these statistics, eventually you will evaluate a potential case involving a construction industry injury or fatality. Such cases frequently involve many parties (owners, contractors, subcontractors, etc.) and complex factual scenarios, which necessarily require extensive discovery and expert testimony to fully understand and advocate for your client’s position. Thus, these cases require a lot of your time and money to get to the inevitable dispositive motion battle.

6 Winter/Spring 2018 MINNESOTA TRIAL

Therefore, it is critical that you fully evaluate these claims, in light of all available defenses, early in the case.

Failure to do so will result in wasted effort, lost money, and a lost recovery for the client.

The purpose of this article is to provide an overview of three common defenses in construction injury and death cases against non-employer third parties.

In order to analyze these defenses, you must first start with Minnesota’s worker’s compensation laws.

Workers’ Compensation Statutory Scheme and Third-Party Claims The vast majority of construction injury and death cases necessarily involve a workers’ compensation claim against the injured workers’ employer. The Minnesota Workers’ Compensation Act is codified in Minnesota Statutes Chapter 176.

A work-related injury or death gives rise to payment of worker’s compensation benefits from one’s employer, but also allows the pursuit of “third-party” claims for common law damages against someone who is not the victim’s employer, when the third party’s negligence at the job site causes the injury or death.4 A reading of § 176.061 reveals a potential conflict between Subdivision 1, which refers to an “election of remedies” (workers’ compensation benefits or a third party claim, but not both), and subdivision 6, which describes the ability to obtain both workers’ compensation benefits from the employer and assert claims for common law damages from third parties.

Subdivision 6 also contains the process through which employers are reimbursed for a portion of workers’ compensation benefits paid out when damages are recovered from third parties.5 This apparent conflict is clarified by subdivision 4 of § 176.06 and its clarification of when the “election of remedies” provision

of subdivision 1 applies. Through the years, many Minnesota courts have interpreted and applied § 176.061, subdivision 4, and in doing so, have developed what is commonly referred to as the “common enterprise doctrine.”

Common Enterprise Doctrine Specifically, § 176.061, subdivision 4 states: The provisions of subdivisions 1, 2 and 3 apply only if the employer liable for workers’ compensation benefits and the other party legally liable for damages are insured or self-insured and engaged, in the due course of business in, (a) furtherance of a common enterprise, or (b) in the accomplishment of the same or related purposes in operations on the premises where the injury was received at the time of the injury.

The Minnesota Supreme Court, in McCourtie v. U.S. Steel Corp., ruled that a third party tortfeasor seeking to deny a worker’s claim, pursuant to the common enterprise doctrine, must prove each of the following elements: 1. The employers must be engaged on the same project; 2. The employees must be working together (common activity); and 3. In such fashion that they are subject to the same or similar hazards.6 Courts must look to the “common activities of the workers rather than the common goals of the employers.”7 For a common enterprise to exist, “[t]he interest of the employers cannot be simply individual or separate; it must be one as to which they have engaged in fusion and made a matter of mutual concerns and undertaking by them.”8 In most situations,

the first prong of working together on the same project is satisfied. Therefore, the majority of decisions focus on the second and third elements.

Common Activity Employees are involved in common activities when they are “working together” and their actions are not merely “overlapping.”9 The interaction between the two sets of employees must be more than a “mere convenience.”10 Simply working in the same place at the same time does not equal a common activity without some level of “mutual dependence.” One must look to whether “each set of employees could complete its own task without the assistance of the other.”11 This means two companies performing different roles on a job site, whose tasks only relate to each other in that they are necessary for project continued on next page MINNESOTA TRIAL Winter/Spring 2018 7

CAUTION AHEAD continued from page 7

JED CHRONIC is an accomplished litigator, and is a MN Super Lawyer. During his career, Jed has obtained verdicts and settlements for his clients totaling in excess of $25 million. He has extensive experience representing injured people and their families, with a special emphasis on serious injuries or death caused by defective products, as well as tractor-trailer and railroad accidents. A 2004 graduate of Washington University School of Law, Chronic is a member of the American Association for Justice, Minnesota Association for Justice and the Minnesota State Bar Association. Jed has been appointed by the Commissioner of the Minnesota Department of Human Services to the Traumatic Brain Injury State Advisory Committee and is a member of the board of Greater Mankato Bike and Walk Advocates.

completion (read: common goal) are not engaged in a common activity.12 The Minnesota Supreme Court has required the sets of employees to be “interdependent” to be engaged in a common enterprise.13 The Supreme Court expanded the reach of the common enterprise doctrine in O’Malley v. Ulland Bros.14 In O’Malley, a dump truck driver delivering materials to a road construction project was injured when his dump truck was rear-ended by a road grader driven by an employee of the general contractor, Ulland Brothers. The road grader was attempting to free the dump truck stuck in mud on the jobsite. Vehicles pushing each other out of muddy conditions occurred with some frequency on the job site.15 Most importantly, the majority concluded that the question of whether a common enterprise exists “is a legal determination, and not a factual inference.”16 Therefore, the common enterprise question is appropriately decided through dispositive motion practice.

As you can imagine, the question of whether the employee groups were engaged in a common activity is a factually intensive inquiry. Below are summaries of two cases to give you an idea of how courts have analyzed these situations in the past: • Higgins v. Northwestern Bell Telephone Co.17 – Electrician installing new phone equipment at a phone company slipped in a washroom and was injured. The court found that “employees of the two companies generally worked in close proximity to each other and . . . the work performed by the

two employee groups was coordinated on a regular basis,” and both crews worked on the same equipment in the same areas, and thus both were subject to similar risk of injury from slipping in the washroom.

Common enterprise was found.

• LeDoux v. M.A. Mortenson Co.18 – Employee of sub-contractor (Northland) constructing scaffolding on the roof of a building under construction fell through a hole in the roof that had been covered with a light, breakable material. The theory against the general contractor (Mortenson) was a failure to warn of the hole. The court found the Northland and Mortenson employees were not engaged in a common activity on the job. Specifically, the Court found the activities of the two sets of employees to be distinct and could have been performed at different times. No common enterprise was found.

Same or Similar Hazard In addition to working on the same project and being engaged in a common activity, the two sets of employees must also be exposed to the “same or similar hazards” to qualify as a common enterprise. In determining whether workers were exposed to similar hazards, Minnesota courts look at the general risks to workers as a result of the work being performed.19 The focus is not on the instrumentality that caused the injury, but on the exposure to common hazards.20 The degree of

KOSIERADZKI •SMITH

8 Winter/Spring 2018 MINNESOTA TRIAL

risk faced by the two sets of employees is also a factor in the “same or similar” analysis.21 The O’Malley decision contains language which defendants will use to try to expand the definition of “same or similar hazards.” The O’Malley court considered risks as broad as weather conditions, fire or explosion, and collisions between vehicles and people, even if those risks did not directly bear on the injury or incident at issue in that case.22 However, the Minnesota Supreme Court recently declared that “we must be careful not to consider too broad a set of risks or the third requirement of the McCourtie test could become meaningless.”23 The “same or similar hazard” analysis may be even more factually intense than the “common activity” analysis. There are

a large number of decisions on this issue, here are a few: • Ritter v. M.A. Mortenson, Co.24 – Steelworker was building a garage when a crane boom, operated by an employee of the general contractor, struck him and knocked him from the roof where he and the general’s employees were hooking and unhooking construction materials.

The court found both groups were exposed to the same risk of being knocked off the roof.

• Kelly for Washburn v. Kraemer Construction, Inc.25– Workers for two companies were placing culverts at a bridge project.

The culverts were lifted by a Kraemer employee in a crane to the excavated bridge area. Then,

a combination of the two sets of employees would guide the culvert in place, attach it, and disconnect the rigging. As the last section of culvert was being placed, the decedent (Ullman employee) grabbed it and was electrocuted.

Due to the presence of Kraemer employees on the ground working alongside Ullman employees, the court determined the two sets of employees were exposed to the same or similar hazards.

• Sorenson v. Visser26 – Sorenson was an electrician installing a well pump in a trench, while a trenching contractor dug the trench in a backhoe. During the trenching, a large chunk of clay broke free and rolled onto Sorenson. The court found that no common enterprise continued on next page

One law firm. Exponential client success.

zimmreed.com

MINNESOTA TRIAL Winter/Spring 2018 9

CAUTION AHEAD continued from page 9

existed because Sorenson, in the trench, was exposed to the risk of the trench caving in and other risks associated with being in the trench. The court noted the backhoe operator was not subject to those hazards while operating the backhoe.

• Olson v. Lyrek27 – pipe in a trench that was being excavated by a backhoe operator. The backhoe was driven into the trench, striking Olson and injuring the backhoe operator. The court determined the two workers were exposed to different risks and thus, a common enterprise did not exist. In so finding, the court noted the workers worked in different physical areas (in a trench and in backhoe above the trench).

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Common Enterprise Doctrine Practice Pointers

similar hazards (or not), will come from deposition testimony.

At intake, it is important to obtain as much information as possible about the interactions among the injured client, his or her co-employees, and the defendant contractor’s employees. You should take that information and analyze it against the decisions of Minnesota courts on the common enterprise doctrine.

This will assist you on either determining early on whether the common enterprise defense is likely to be raised in your case.

As discussed below with the retained control doctrine, gaining the cooperation of your client’s employer and access to his or her co-employees prior to their testimony is critical. It is important to convey the likelihood of facing a common enterprise defense and what it means to the workers’ compensation subrogation adjuster, the employer’s attorney, and his or her co-employees. When armed with this information, it is far less likely a witness will unwittingly agree with general questions from defense counsel designed to prove the elements of common enterprise.

When you have this information and are thinking about this issue early in your case, you can tailor your discovery, specifically document requests, to uncover information regarding the interactions of the two sets of employees. The best evidence of the level of interaction, and exposure to

Finally, you must prepare your client for such questions prior to his or her testimony. He or she must be aware of the strategy in defending any common

enterprise defense and the importance of testimony related to being engaged in a common activity and/or being exposed to similar hazards with the defendant’s employees.

Retained Control Doctrine In Minnesota, the rule is that general contractors do not owe a duty of care to employees of subcontractors.28 However, an employer of an independent contractor (read: property owner or general contractor) may be liable to employees of the independent contractor. The nature of that liability depends on whether the employer retains control, or some measure of control, over the project. The level of control retained by the employer must be significant.29 Even if the control is not significant, the employer may owe a duty of care as a possessor of land.30 This article will only summarize the concept of retained control, but you should be aware of other potential sources of duty on general contractors and others who hire independent contractors or subcontractors.31 In order for a general contractor to have a legal duty of care to subcontractor’s employees, the general contractor has to retain control over the “operative detail of the work.”32 The amount of control required to support a claim of direct negligence against a general contractor has to be more than the “general right to order the work stopped or resumed, or to inspect its progress, or to receive reports, or to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and

deviations.”33 The subcontractor must not be entirely free to do the work in his own way.34

United States Department of Labor, Commonly Used Statistics, https://www.osha. gov/oshstats/commonstats. html

1

The court of appeals revisited the concept of retained control in Smith v. Wells Concrete Products Co.35 Wells Concrete hired Smith to paint its new production facility.36 While painting, Smith fell from a height of 10-12 feet and was seriously injured. The jury returned a verdict in Smith’s favor, finding Wells 60% at fault.37 The district court denied Wells’s motion for judgment as a matter of law both at the close of evidence and after the verdict.38 The court of appeals, relying primarily on Sutherland, found no duty on Wells pursuant to the retained control doctrine.

Specifically the Court found Smith was free to do the work how she wanted, was not supervised

by Wells, and Smith made decisions as to safety precautions needed to accomplish her task and did not ask Wells for help or safety equipment.39

Id.

2

Id.

3

Minn. Stat. § 176.061, subds.

1,4, 6.

4

Id. at subd. 6.

5

McCourtie v. U.S. Steel Corp., 93 N.W.2d 552, 556 (Minn.

1958).

6

Schleicher v. Lunda. Constr.

Co., 406 N.W.2d 311, 313 (Minn.

1987)

7

Chenette v. Trustees of Iowa College, Grinnell, Iowa, 431 F.2d 49, 53 (8th Cir. 1970) 8

9 Schleicher, 406 N.W.2d at 313-14

Carstens v. Mayers, Inc., 574 N.W.2d 733, 736 (Minn. App. 1998), pet. for rev. denied (Minn. Mar. 26, 1998)

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Retained Control Practice Pointers Early in the representation, it is critical to understand the scope of the role the owner/ general contractor played on the project. Since the owner/general will be doing everything it can to shift responsibility to the client’s employer (subcontractor), you need to make them your ally early in the case. This can be accomplished by using the potential workers’ compensation subrogation claim as leverage to gain cooperation from the subcontractor. It is in the subcontractor’s best interest for the injured client to succeed continued on next page

Id.

11

Kaiser v. North States Power Co., 353 N.W.2d 899, 906 (Minn. 1984) 12

13 O’Malley v. Ulland Bros., 549 N.W.2d 889, 895 (Minn. 1996)

Id.

14

See O’Malley v. Ulland Bros., 549 N.W.2d 889 (Minn. 1996) 15

Id. at 897.

16

Higgins v. Northwestern Bell Telephone Co., 400 N.W.2d 192 (Minn. App. 1987), review denied (Minn., Mar. 25, 1987) 17

18 LeDoux v. M.A. Mortenson Co., 835 N.W.2d 20 (Minn. App. 2013)

Olson v. Lyrek, 582 N.W.2d 582, 584 (Minn. App. 1998), review denied (Minn., Oct. 20, 1998)

19

Id.

20

Kaiser v. Northern States Power Co., 353 N.W.2d 899, 906 (Minn. 1984)( firefighters and NSP personnel, although both engaged in efforts to put out a hotel fire caused by a gas explosion, were not involved in a common enterprise, because the risks faced by the firefighters were greater than the dangers encountered by 21

MINNESOTA TRIAL Winter/Spring 2018 11

CAUTION AHEAD continued from page 11 NSP personnel who were trying to shut off the gas valve away from the fire.)

O’Malley, 549 N.W.2d at 896-97

22

Kelly for Washburn v. Kraemer Construction, Inc., 896 N.W.2d 504, 513 (Minn. 2017)

23

Ritter v. M.A. Mortenson, Co., 352 N.W.2d 110 (Minn. App. 1984)

24

Kelly for Washburn v. Kraemer Construction, Inc., 896 N.W.2d 504 (Minn.

2017)

25

Sorenson v. Visser, 558 N.W.2d 773 (Minn.

App. 1997)

26

Olson v. Lyrek, 582 N.W.2d 582, 584 (Minn.

App. 1998)

27

See Conover v. Northern States Power Co., 313 N.W.2d 397 (Minn. 1981)

28

29 Presbrey v. James, 781 N.W.2d 13, 17 (Minn.

Ct. App. 2010)

Conover, 313 N.W.2d at 401

30

A great reference as to other sources of duty in this context is Wil Fluegel’s 2013 Premises Liability Book (7th ed.) available through MAJ

31

Sutherland, 570 N.W.2d at 5

32

Id.

33

Id. at 5-6

34

Smith v. Wells Concrete Products Co., 2015 WL 404603 (Minn. App. 2015), review denied (Minn., Apr. 28, 2015)

35

Id. at *1

36

Id.

37

Id. at *4

38

Id. at *6

39

See Lemmer v. IDS Properties, 304 N.W.2d 864 (Minn. 1980)

40

so its insurance company can recover workers’ compensation paid to the injured client. If the subcontractor has not been sued by the owner/general and thus does not have counsel, go through the workers’ compensation carrier to gain cooperation from the client’s employer. You need to talk to the client’s co-workers on the job to develop all facts regarding the owner/ general’s exercise of control over the subcontractor’s work.

In discovery, make sure you obtain all contracts between the parties, including the owner and the general contractor, if the owner is not acting as its own general.

There may be contractual duties on the general in its contract with the owner,40 but beware these duties are often passed on to the subcontractor in the contract between the general and the subcontractor.

Along this same line, the owner who hired the general contractor may be a good source of testimony regarding their expectations when they hired the general regarding control and oversight of the job, and in particular safety.

Another source of information to defeat the retained control argument are others engaged on the project (architects, engineers, subcontractors, building inspectors, etc.). Serve subpoenas on them for project related documents (e.g. construction meeting minutes, toolbox talks by general, correspondence to and from the general, etc.).

Newland v. Overland Exp., Inc., 295 N.W.2d 615, 618 (Minn. 1980) 41

Control can be retained in a number of ways, so be creative by exploring all aspects of the owner/general’s involvement in the project. The owner/general may retain control by assuming certain responsibilities on the project or by controlling safety provisions on the jobsite (must be more than general oversight).

Loaned Servant Doctrine Much like the common enterprise defense, defendants in construction cases can limit the injured client’s recovery to workers’ compensation benefits by claiming the injured worker was a “loaned servant” from his employer to the defendant contractor.

The loaned servant doctrine provides that if an employer lends an employee to another employer for the performance of a special service, then the employee may become an employee of the person to whom his or her services were lent with regard to the special service for which he or she was lent.41 The worker remains an employee of his employer, but may also be viewed an employee of the other employer to whom he or she is lent.42 The special employer becomes liable for workers’ compensation benefits and, therefore, becomes immune from tort liability if the following conditions are met: 1) the employee has made a contract for hire, express or implied, with the special employer; 2) the work being done is essentially that of the special employer;

Id.

42

Id.

43

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and 3) the special employer has the right to control the details of the work.43 Much like the common enterprise doctrine, it is important to obtain information regarding the relationships of the parties at intake, and during early investigation of a claim, to determine whether the loaned servant defense may bar any tort claims of the injured worker.

The Shield Becomes the Sword Normally, when you are dealing with these defenses in a case your client has received workers’ compensation and you must address the workers’ compensation insurer’s subrogation interest. The presence of these defenses in your case can be very powerful tools to use in your negotiations with the workers’ compensation insurer.

In a recent case involving the common enterprise doctrine, I informed the workers’ compensation carrier early on about the defense and the risk it presented to our claim. By the time the summary judgment hearing came around, the adjuster was well versed in the defense and prepared for the worst.

We participated in mediation while the common enterprise motion was pending and were able to use the impending ruling as leverage to reduce the client’s obligation to the workers’ compensation carrier.

Conclusion As the saying goes, “knowledge is power.”

This certainly applies when trying to assess and defeat these defenses in pursuing justice for clients injured on construction projects. Understanding the law prior to undertaking any such

representation will give you a leg up on understanding what facts are going to carry the day at the inevitable dispositive motion hearing. Armed with that understanding, you can develop the evidentiary record in your case to give your client the best chance to survive summary judgment and get his or her day in court.

Note: Many thanks to Wil Fluegel for his advice in a recent case involving the common enterprise doctrine. An invaluable resource in opposing that motion, and in writing this article, was Chapter Eight of Wil’s 2013 Premises Liability Book (7th ed.) available through MAJ.

MINNESOTA TRIAL Winter/Spring 2018 13

R O F D E S CLO

S S E N I S BU

Closing the Courthouse Door

BY THE EDITORIAL BOARD OF THE NEW YORK TIMES | AUGUST 10, 2017

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he Trump administration is moving to deny Americans their day in court when they have been wronged.

The Centers for Medicare and Medicaid Services want to reverse an Obama-era regulation that bars most nursing homes from forcing residents to agree to resolve disputes in private arbitration, instead of in court. The Department of Education recently announced that it was working to reverse an Obama-era rule that prevents most for-profit colleges and other schools from enforcing arbitration agreements when resolving loan disputes by students.

14 Winter/Spring 2018 MINNESOTA TRIAL

Now, congressional Republicans are getting into the act by attacking a new rule, issued by the Consumer Financial Protection Bureau, that will let Americans bring class-action lawsuits against banks instead of being forced into arbitration. Without the rule, which is scheduled to apply to transactions next year, banks could continue to profit from abusive products and practices without ever facing a court challenge, and aggrieved customers would continue to be shunted into arbitration. Class-action lawsuits are often the only way to hold corporations to account for wrongdoing in which thousands or millions of customers lose amounts that may be meaningful

for each customer, though not enough to warrant an individual fighting a corporation. Arbitration, in contrast, is so clearly stacked against customers that most people don’t even bother. And yet, arbitration has been the only recourse even in cases where customers were defrauded, like those caught up in the still-unfolding scandals at Wells Fargo who could not sue because of the bank’s mandatory arbitration requirement.

The first attempt to derail the rule failed recently, but it underscored the administration’s support for industry arguments. Keith Noreika, a bank lawyer appointed by President Trump to oversee

national banks until a Senate-confirmed regulator is in place, asked the financial protection bureau to delay the rule on the ground that more time was needed to determine if it would destabilize the banking system. The bureau refused, for good reason. The rule – which will cost banks about $1 billion a year out of more than $171 billion in profits, according to analysis by the bureau – does not threaten the banks’ survival; it only threatens their impunity.

Moreover, neither the agency that Mr. Noreika temporarily heads, the Office of the Comptroller of the Currency, nor other financial regulators raised safety-and-soundness concerns during the long rule-making process.

Congressional Republicans continue to threaten the rule. Before their summer break began, House Republicans passed legislation to scrap it, using the fast-track procedures of the Congressional Review Act. Companion legislation has been introduced in the Senate. Before this year, the review act’s procedures had been used only once, by the Republican-controlled Congress of 2001, to invalidate a workplace safety rule from the Clinton administration.

This year, Republicans have used it to roll back 14 rules finalized near the end of the Obama years, including labor and environmental protections. The difference this time is that they want to repeal a rule from Mr. Trump’s watch, albeit by an Obama-appointed regulator of the financial protection bureau, an agency Republicans love to loathe.

If Senate Republicans, once again blinded by their antipathy to President Barack Obama, vote to repeal this rule, they will join their House colleagues and the Trump administration in closing the courthouse door to vulnerable, victimized and defrauded Americans.

A version of this editorial appears in print on August 10, 2017, on page A18 of the New York edition with the headline: “Closing the Courthouse Door.”

MINNESOTA TRIAL Winter/Spring 2018 15

Why We Fight

BY MIKE CAMPBELL

BY MIKE CAMPBELL REPRINTED WITH PERMISSION FROM THE MISSOURI TRIAL ATTORNEY, © 2017

“Can you draw the pedal for me?”

T

hat’s the only question I can remember from my deposition.

I was around nine years old and I wasn’t frightened by the man asking me questions, or by the scary person wearing a mask at the end of the table (who I would later discover was a court reporter).

I was frightened because I had no artistic ability whatsoever. I could, at that time, remember watching the pedal break and witnessing my dad have a catastrophic injury that would later take his life.

I could remember my dad work on the pedal in our garage in Kansas City. But, I couldn’t draw it and I was scared. But, 16 Winter/Spring 2018 MINNESOTA TRIAL

then I heard, “objection.” Relief came over me. You see, I had a superhero with me, watching over me, protecting me from scary questions and scary people.

I recently had to fill out a questionnaire asking me to explain why I wanted to practice law. Here’s my response: “Many years ago my family experienced a tragedy that put us right in the middle of the legal world. As a result, my superheroes growing up did not wear capes; they wore suits and carried briefcases. They argued in courtrooms and fought tooth and nail for my family. I’ll

always be indebted to those attorneys and I think they know that. That’s the power we have as attorneys and we should always remember the lifelong impact we have on our clients.”

That’s the truth. That’s my truth, anyway.

When I was five years old my dad purchased a brand new bicycle from a bike shop in Kansas. Both my godfather and I agreed to ride back in my dad’s truck while my dad rode behind us at a safe distance. I watched through the rear window as he wrecked. Memories are funny, though. I can no longer recall the

wreck or much that happened shortly after.

There’s a slideshow of memories though: Wrestling with my dad in a hospital bed one of the numerous times he was having surgeries, meeting with attorneys, my dad’s funeral. Good memories, sad memories.

My dad suffered a catastrophic injury when the pedal on his brand-new bicycle snapped off halfway through a cycle. He fell into the bike and suffered substantial internal injuries. He was later treated at a medical facility in Kansas, and his care was completely mismanaged. There are things that happened to him that I cannot write out of respect for his privacy and for what he went through. However, the result of the doctor’s actions led to undetected blood clotting, which traveled to an artery.

He suffered a massive heart attack in our home and died in my mom’s arms.

My mom was left to raise four kids, alone.

We had limited means at that time and my dad had been the primary provider for my family. When my dad died, we were broke…mentally, spiritually and financially.

Before my dad died, I can remember wearing clothes from the Salvation Army, shopping for food at the local Aldi (before Aldi was a thing), going to mass every Sunday morning and not having many concerns about our lot in life. We were a family and we loved each other, and had a roof over our head and food to eat. My dad

and my mom cared for us. When my dad died, I’ll never know the stress my mom went through. I never want to know.

A close friend of the family talked to my mom about investigating my dad’s case.

He was an attorney with a law firm in Kansas City who pleaded with his firm to investigate this case. The background to this is literally something you might read in a legal novel, but know this: This lawyer was relentless, was willing to give up everything to fight for the case, and nearly did. There is too much to the story to share here, but that is where I came to know that the passion which drives good and decent trial attorneys is not money. Money comes and goes. What drives good and decent trial attorneys is justice and a desire to help the helpless.

This attorney discovered a number of troubling things when he investigated our case. First, the bike manufacturer skimped on buying the proper parts for the bicycle pedal-and-gear mechanism. Instead of finding the right part, the company ordered the employees at a manufacturing plant to literally jam and hammer the defective parts into the bike. Our lawyer went to the manufacturing plant and witnessed for himself how the defect occurred during the process, and how it was known to the company. The employees openly admitted that they knew the defective part would cause harm to someone and told management, who ignored them.

The bike company had been warned multiple times about the shaft snapping on the pedals, leading to bicycle returns at stores throughout the United States. The manufacturer never recalled the bikes.

Either the company didn’t believe someone could be catastrophically injured from this defect or it did, and simply did the cold math: A potential lawsuit versus a nationwide recall of bicycles. They decided to go with the risk of a lawsuit. Our attorney also discovered that the doctor who was treating my dad permanently damaged him, the result of which would eventually lead to my dad’s death. The attorney was convinced that both the manufacturer and the doctor were responsible for my dad’s death. He talked with my mom at length about the steps the family should take to hold those parties responsible. My mom agreed and we eventually filed suit against both.

My mom is as mentally and physically tough as they come. Here’s one story to prove that: After my family filed suit against the manufacturer of the defective bicycle, our case was forced into mediation. In our case, the judge who was mediating the case told my mom she should take a certain amount of money and run. Our attorneys told her to stand firm, that the sum she was offered was paltry in light of how much we had lost. My mom listened to our attorney’s advice. The judge brought her into an open courtroom in front of all the attorneys and told her that she was a terrible mother for not accepting continued on next page

MINNESOTA TRIAL Winter/Spring 2018 17

WHY WE FIGHT continued from page 17

the settlement and then he actually appointed a guardian and conservator for her children (including me) because of how terrible he said her judgment was. Our attorneys protected her and she believed in them. The judge eventually relented and retracted his own order. My mom trusted her attorneys. She was right to… and she will tell you that. My mom is tough.

MIKE CAMPBELL is a member of the Missouri Association for Trial Attorneys and the American Association for Justice. He practices at The Law Office of Mike Campbell in Columbia, Mo.

There are other stories I can tell you: Spending my early childhood in courtrooms, law offices, and learning about lawsuits while other kids played catch with their dad or did what normal kids do. I enjoyed it though. My attorneys were my superheroes. I liked being around them. I started to think that one day I could become one too.

When our case against the manufacturer was finally resolved several years later, we had received a small amount of justice. The manufacturer of the bicycle eventually settled with my family… and with several others. It turns out many people had been injured by these defective bikes and the company’s calculated risks didn’t pay off. There are horror stories I could share about this case and the dirty tricks played by the actors involved that are nearly unbelievable. Someday, maybe I’ll share them.

John Grisham has done a pretty decent job describing cruel company decisions in many of his books. But know this: A company that makes its financial decisions by weighing a human life versus profits will go to any lengths to protect those profits. I’ve seen this first-hand in my own practice and in my own life. The cases against this

18 Winter/Spring 2018 MINNESOTA TRIAL

specific corporation against eventually drove it into bankruptcy, got its terrible bikes off the road, and reformed certain manufacturing processes.

All of this was possible because of the trial lawyers who helped us. They believed in us, fought for us and did everything they could to make our family whole. I am friends with them to this day. The main attorney who took our case taught me how to shoot a gun for the first time, his wife taught me the alphabet when I was very young and he has stayed in touch throughout my entire life. He and his family are family to me.

I see a lot of negative talk about trial attorneys.

For me, for my family, and for countless others, trial attorneys are who stood up and demanded that the parties who cause harm are held responsible for their actions.

No amount of money could bring my dad back, but at least that bicycle manufacturer was unable to produce any more defective bikes.

While the rest of the world moved on after my dad’s death, attorneys working in the background fought to give his death meaning. They fought for a single mother of four who had no money to her name.

I am now a trial attorney. I am proud to call myself a trial attorney. But trial attorneys are under attack. We are told by well-paid politicians that trial attorneys are causing businesses to go under and insurance rates to go up. My experience is that businesses go under because they are bad

businesses, and insurance rates go up because insurance companies like to make money.

The people who throw these accusations around don’t know the attorneys who helped my mom and my family. They don’t know me. They don’t know my colleagues.

They don’t understand that most of the laws they pass don’t affect trial attorneys; they affect the people trial attorneys represent. These politicians work to the benefit of a corporation or a company that has done some harm or wants to do something harmful, only cheaper and with no consequence.

Politicians should know this: There’s no law they can pass to stop trial attorneys from trying cases and working hard for their clients. I can understand how a politician who is more accountable to large donors than to the citizens of his or her district might be told (or even believe) that a trial attorney would have a financial motive to file more lawsuits. Maybe that mistaken perspective is all they have known.

But, real trial lawyers like the attorneys who worked on my family’s case and the colleagues I know in our profession are not in it for the money. We are deeply passionate about our clients and our work.

No amount of restrictions or laws will stop us from helping people who have been wronged. We are born with this passion… and politicians cannot legislate that passion away, no matter how hard they try.

I recently tried a civil case where the jury was out for 20 minutes before it returned a verdict against my client. It takes me

longer than 20 minutes to flip through my Facebook feed! I was heartbroken for my client. I thought that the jury hated me.

They hate what I stand for. I thought, for just a moment, that it would be so much easier to switch sides.

Then my client told me “thanks” for fighting for her; that we did our best; and that she [was] glad we agreed not to settle. And my phone started to ring from fellow trial lawyers who told me to keep my chin up and told me that we all fight in the trenches to keep the other side honest.

I would much rather be on this side.

We are told that there are always two sides to an issue, two sides to a debate. I don’t say this arrogantly, but I say it because of my experience: I would much rather be on this side and lose, than on the other side and win. I believe that there are plenty of good people on the other side, but for me and for my fellow trial lawyers, we fight for what is right and what is good.

We don’t fight to win popularity contests, for approval or for self-assurances. We fight for the inviolate principle that every person deserves his or her day in court. We have a proud responsibility to strap up our boots, face our fears and give that opportunity to our clients. What a great privilege that is. I am thankful for having a trial attorney in my corner to give my family that opportunity and daily I am grateful for the ability to give that same opportunity to my clients. I know you, my trial attorney family, feel that way too.

This is why we fight.

MINNESOTA TRIAL Winter/Spring 2018 19

PAC CONTRIBUTORS Trial PAC Monthly Contributors Luther Amundson James Ballentine James Balmer Stephanie Balmer James Batchelor Thomas Beedem Thomas Bennerotte Eric Beyer Danielle Bird Nathan Howard Bjerke William Bongard Elizabeth Bryant Michael Bryant

James Carey Shannon Carey Joel Carlson Lindsey Carpenter Jed Chronic Candace Dale Holly Dolesji Sheila Donnelly-Coyne Bernie Dusich Robert Edwards Jason Eyberg Robert C. Falsani Carla Ferrucci Yvonne Flaherty Brandon Flaherty Wilbur Fluegel Elizabeth Fors

Susan Gallagher Stuart Goldenberg Max Hacker L. Michael Hall Michael Hall, III Richard Harden William Harper Gary Hazelton Susan Holden Rick Houghton Kate Jaycox William Jepsen Michael Johnson Thomas G. Johnson Jason Johnston Kreg Kauffman Karen Jane Kingsley

Randall G. Knutson Mark R. Kosieradzki Art Kozieradski Patrick Kranz Derek Lamparty Courtney Lawrence Robert Lazear Robert Leighton Joe Leoni Gregory Malush Guy Mattson Paul McCarten Teresa McClain Marcia Miller Anthony Nemo Dan Charles O’Connell Mark Olive

Elliot Olsen Paul D. Peterson Rochelle Peyton Laura Pittner John Raboin Ashleigh Raso Peter Riley Pamela Finney Rochlin Robert Roe Stephen Rufer Richard Ruohonen James Ryan Walter Sawicki Michael Scully Jeffrey Sieben William Sieben Rachel Simpson

SOME OF THE MOST IMPORTANT DECISIONS

Affecting Your Clients Won’t be Made in These Chambers

They’ll be MADE IN HERE >> TAKE ACTION to preserve your Constitutional rights.

Go to www.mnaj.org click Adjocacy > Trial PAC to make your contribution today!

• You represent your client’s interests in court.

• The Minnesota Association for Justice

represents them in the Minnesota Legislature.

• Make sure you have strong representation through your

generous personal contribution to Trial PAC or the Justice Fund.

20 Winter/Spring 2018 MINNESOTA TRIAL

Experience. Expertise. Excellence.

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Keith Sjodin Charles Slane Joel E Smith Stacy Stennes Jeremy Stevens Patrick Stoneking Jeffery Stowman Alesia Strand Mark Streed Michael Strom Charles Suk William Sutor Scott Teplinsky Steven Terry Michael Tewksbury William Tilton Joshua Tuchscherer Isaac Tyroler Sharon L. Van Dyck David W. VanDerHeyden Ryan Vettleson Christopher Vilione Amy Wallace Veronica Walther James Weinmeyer Cory Whalen Erik Willer Brian E. Wojtalewicz Anne Workman Markus Yira AAJ PAC Contributors Luther Amundson James Ballentine Jim Balmer Tim Becker Nathan Bjerke William Bongard Michael Bryant

James Carey Shannon Carey Lindsey Carpenter Jed Chronic, II Joseph Crosby Joseph Crumley Andrew Davick Holly Dolejsi Bernie Dusich Robert Edwards Yvonne Flaherty Wilbur Fluegel Kathleen Flynn Peterson Elizabeth Fors Marlene Goldenberg Stuart Goldenberg Lisa Ann Gorshe Andrew Gross Dave Grounds Max Hacker Michael Hall, III William Harper Susan Holden Kate Jaycox Michael Johnson Thomas Johnson Jason Johnston Pete Kestner Karen Kingsley Mark Kosieradzki Adam Kress Christopher Kuhlman Noah Lauricella Robert Lazear Teresa McClain Greg McEwen Megan McKenzie Munir Meghjee Chris Moreland Tony Nemo Gale Pearson Paul Peterson

Laura Pittner Fred Pritzker Ashleigh Raso Karen Riebel Peter Riley Alexandra Robertson Pam Rochlin Rob Roe Steven Rolsch Stephen Rufer Rich Ruohonen James Ryan, Jr. Michael Scully Jennell Shannon Ali Sieben William Sieben Jeffrey Sieben Rachel Simpson Chuck Slane Joel Smith Pamela Spaulding Brock Specht Rachel Stoering Patrick Stoneking Michael Strom Jim Suk Tara Sutton Scott Teplinsky Steven Terry Michael Tewksbury Brandon Thompson Josh Tuchscherer Sharon Van Dyck Blake Vanderhyde Brandon Vaughn James Weinmeyer Devona Wells Kate Westad Cory Whalen Brian Wojtalewicz Genevieve Zimmerman

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MINNESOTA TRIAL Winter/Spring 2018 21

practice pointers

It’s an ever-changing world. Day in and day out, there are changes in statutes, changes in the case law, and changes in the people calling the shots. All of these changes play a role in the answers that we get and the advice that we give.

It is probably time to update where we are in a couple areas: How do you advise someone about health insurance?

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 injury and criminal defense.

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

He was the 1999/2000 MAJ Member of the Year and is past president of the MAJ.

For the longest time, we talked to people about pre-existing conditions and the effect that it would have on health insurance. Minnesota allowed some limitations for pre-existing conditions, but with substantial limitations, and not at all if you simply switched from one insurer to another without a break.

Then along came Obamacare, or the Affordable Care Act, which prevented insurance companies from claiming pre-existing conditions at all. As a result, we could be relatively safe in making agreements with health insurers. We could advise clients that they would not have to worry about future medical coverage and their bills should be paid in the future.

The world has changed yet again and now we are not quite sure what we are going to have for health insurance. We’re not even sure we’re going to have health insurance at all in the future. While repeal efforts bogged down and only the individual mandate has been signed into law, repeal efforts and executive orders will continue. These include allowing states wide discretion to vary protections concerning, among other things, pre-existing conditions. The idea of being able to purchase insurance plans across state lines gives the possibility that Minnesotans

22 Winter/Spring 2018 MINNESOTA TRIAL

could end up with really poor benefits that are approved in a state like Mississippi.

The reality is, while we seemed to have stability for a short time, we now only have question marks. We can’t guarantee we’ll even have what we had before Obamacare.

We can no longer feel safe assuming the law will remain stable, and giving health insurance advice to clients based on that. So stay tuned to the news.

What is happening with subrogation rights?

As Wil Fluegel most expertly pointed out most recently on the list serve, Congressional changes to Medicare reimbursement have put us back to the way things were at the time of Ahlborn, Wos and Martin. Most likely, this state can again do allotment hearings for settlements or use jury verdicts from a personal injury case and Medicaid would be entitled to up to 100% reimbursement from the portion of the pile allotted to past medicals, instead of being able to claim reimbursement against the full settlement/verdict, regardless of if M.A. has asserted a reimbursement claim based upon an “assignment” or on “subrogation.”

Unfortunately, what is reserved for another day is whether future medicals awarded can be reached by Medical Assistance. This is a long, winding road and has involved courts making decisions that are not always the best for our clients.

Will self-driving cars change our practices altogether?

While the cost and the technology may still be a number of years away, people are starting to

Social Security Disability and SSI David L. Christianson

(612) 913-4006

david.christianson@cpqlaw.com

wonder about the legal liability involved with self-driving cars. With a system where cars are all tied to each other and are able to interact in a way that eliminates traffic jams, backups and most importantly collisions, the world will hopefully be safer. As always, we will need this to become a majority and maybe even apply to all cars on the road.

It will be crucial that such a system have a cost-effective access to justice should the system fail and injury occur.

We all know that computer systems make mistakes, or at least they make unfortunate programming decisions.

Has your computer or phone ever crashed on you? Not as much as it did ten years ago? Only once in a while? If

Microsoft, Google or Apple cars “only once in a while” cause whiplashes and broken bones, will there be a plaintiff’s bar willing and able to provide fair compensation? Given the current financial challenges of taking on auto manufacturers on so-called “minor injury” cases, a system that aspires to make perfect traffic decisions and protect us from ourselves MUST also provide a fair recovery in the hopefullyrare instances of failure. We must not let ourselves become victims of our own genius.

The reality is to acknowledge that we can make our world safer if it is done right and in a way that works to protect people. Any of our forefathers, and you,

have taught the companies this lesson many times. The advice is to keep it up.

Will this legislature provide us with any surprises?

The general consensus is probably not and that the breakdown in the control of the House and the Senate vs. the governorship means that the stalemate will continue as far as our issues go. We will see bills that will try to eliminate rights, abuse coverages, and continue to protect those that seem to need no extra protection. Hopefully through legislative efforts and relying upon justice, we will be able to keep bad things from happening. continued on next page

MINNESOTA TRIAL Winter/Spring 2018 23

PRACTICE POINTERS continued from page 23

Have more e-mails helped us with our practice?

It is interesting today you have defendants that are sending e-mails instead of sending letters in the mail. For me, I try to make sure the paralegal on the case gets cc’d so they can know that the correspondence exists. While the rules have started to get better concerning the use of the e-mails and filing, we still live in a world where many of us practice with paper. Consequently, we will see problems arise about whether or not something was received or maybe even sent.

Are videos and audiotapes on phones changing the way we practice?

It is clear that clients are coming in with more pictures, videos and actual recordings of what took place right after a collision. While sometimes these people are ridiculed with “why would you do that so close to the collision,” the reality is those type of items are invaluable. For many years, we have spent thousands of dollars trying to determine if a local business’ videotape happened to catch even a glimpse of what took place. As people have become more adept to the use of their phones and portable cameras, we are going to see more of this taking place. This may even help us get out of a bad case right at the very beginning. This technology should be embraced and used as much as possible.

Are young Millennials looking at the courtroom as the Salem Witch Trials?

Increasing evidence suggests that Millennials hate the way we try cases, in that they feel they should be able to Google any question that they may have that has not been answered by us at trial. Each practitioner needs to keep that in mind as they go to trial. Another thing to consider is that the pervasive use of social media may in fact be helping us in regards to pictures or posts that our clients are putting out on social media. These new groups of jurors seem to not be as bothered by Plaintiff’s posting pictures on social media as they have in the past.

With all of these changes, MAJ continues to be there to support us. As such, we need to each continue to remember to add to the brief banks, the judicial reviews, and look to them for our CLE help. The list serve itself is a valuable tool that pays for the membership over and over again.

Take the time to ask yourself how you can benefit from being more involved because that is a change that is always worth making.

24 Winter/Spring 2018 MINNESOTA TRIAL

employment law report Successfully Fending Off Employer Non-Compete Litigation Introduction

JUSTIN D. CUMMINS, 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.

The rushed and recently enacted Federal tax “reform” law indirectly underscores the importance of vigorously defending employees against employer-sponsored litigation of non-compete agreements. Much like the tax “reform” law, non-compete agreements generally illustrate and will ultimately exacerbate the inequality of leverage and resources for individuals, on the one hand, and for companies, on the other hand. Without effective advocacy by employee counsel, then, employers could run roughshod over an employee’s right to provide for his or her family in a sustainable way. The discussion below outlines key caselaw and corresponding arguments employee counsel should consider when seeking to defeat employer claims asserted in relation to non-compete agreements.

I. Minnesota Courts Do Not Readily Enforce Non-Compete Agreements Because Those “Agreements” Often Interfere With An Employee’s Ability To Make A Living Settled Minnesota Supreme Court authority holds that “employment noncompete agreements

26 Winter/Spring 2018 MINNESOTA TRIAL

‘are looked upon with disfavor, cautiously considered, and carefully scrutinized.’”1 Indeed, according to the Minnesota Supreme Court, noncompete restrictions may essentially amount to “industrial peonage without redeeming virtue in the American enterprise system.”2 Thus, skills learned by an employee as a result of employment typically do not support a valid non-compete agreement.3 Given the practical realities of the employer/employee relationship, moreover, clearly established precedent also rejects non-compete agreements foisted on midor low-level employees: It is trite and naive to suggest that low to mid-level employees freely agree to restrictive covenants. Disparities in resources, bargaining power, and access to information undercut that overly simplistic notion – except for senior managers and top-dog executives where the shoe is on the other foot and different agency concerns arise. The employer is a repeat player with strong incentives to invest in legal services, to devise an advantageous non-compete, and to insist that employees sign. For the employer, the marginal costs of imposing a non-compete are

low. For a low- to mid-level employee, the calculus is different.4 Consequently, the governing law makes clear that any non-compete agreement must be scrutinized to preserve “the employee’s right to earn a livelihood.”5 II. Non-Compete Agreements Must Be Modified Or Even Stricken When They Do Not Actually Serve A Legitimate Business Purpose, Lack True Consideration, Have An Unreasonable Scope, Or Are Overly Vague Minnesota courts refuse to enforce noncompete agreements when those agreements do not materially advance the employer’s actual business interests “because restrictive covenants are agreements in restraint of trade...”6 Therefore, Minnesota courts have expressly invalidated non-compete agreements based on the lack of a legitimate business interest.7 The Minnesota Supreme Court also has plainly ruled that an employer must, in fact, provide concrete value to an employee before a noncompete agreement may be enforceable.8 In other words, for non-compete restrictions to be valid, “the agreement must be bargained for and provide the employee with real advantages.”9 Accordingly, the Minnesota Court of Appeals recently ruled that a noncompete agreement executed by an existing employee was unenforceable because the employee did not receive independent consideration for signing the agreement – despite “the significant growth in compensation and dramatic expansion of duties [for the employee], in addition to benefits first mentioned in the context of the noncompete clause.”10 The Court of Appeals reasoned that the enhancements in compensation, profile, and benefits for the employee during employment were to be expected and, thus, not sufficient to make the non-compete agreement enforceable for an existing employee.11 continued on next page

MINNESOTA TRIAL Winter/Spring 2018 27

EMPLOYMENT LAW REPORT continued from page 27 Kallok v. Medtronic, Inc., 573 N.W.2d 356, 361 (Minn.

1998) (quoting Bennett v. Storz Broadcasting Co., 134 N.W.2d 892, 898 (1965)); see also Freeman v. Duluth Clinic, Inc., 334 N.W.2d 626, 630 (Minn. 1983) (same); National Recruiters, Inc. v. Cashman, 323 N.W.2d 736, 740 (Minn. 1982) (same).

1

Eutectic Welding Alloys Corp. v. West, 160 N.W.2d 566, 571 (Minn. 1968) (discussing Minnesota Supreme Court precedent) (emphasis added).

2

Jim W. Miller Constr., Inc. v. Schaefer, 298 N.W.2d 455, 459 (Minn. 1980); see also Ultra Lube, Inc. v.

Dave Peterson Monticello Ford-Mercury, Inc., 2002 WL 31302981, *6-7 (Minn. Ct. App. 2002).

3

Delaware Elevator, Inc. v. Williams, 2011 WL 1005181, *11 (Del. Ch. 2011) (emphasis added).

4

5 Kallok, 573 N.W.2d at 361 (citing Minnesota Supreme Court precedent) (emphasis added); see also Rehabilitation Specialists, Inc. v. Koering, 404 N.W.2d 301, 304 (Minn. Ct. App. 1987).

Webb Pub. Co. v. Fosshage, 426 N.W.2d 445, 450 (Minn. Ct. App. 1998) (citing Bennett v. Storz Broadcasting Co., 134 N.W.2d 892, 899-900 (Minn.

1965)); see also Kallok, 573 N.W.2d at 361; Bennett v. Storz Broadcasting Co., 134 N.W.2d 892, 898-900 (Minn. 1965); Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438, 456 (Minn. Ct. App. 2001); Overholt Crop Ins. Service Co., Inc. v. Bredeson, 437 N.W.2d 698, 703 (Minn. Ct. App. 1989).

6

See, e.g., Alpine Glass, Inc. v. Adams, 2002 WL 31819910, *1 (Minn. Ct. App. 2002) (affirming the district court’s grant of summary judgment for the employee “[b]ecause the noncompete agreement at issue serves no legitimate business interest and is unenforceable. . . .”).

7

See, e.g., Freeman, 334 N.W.2d at 630.

8

Satellite Indus., Inc. v. Keeling, 396 N.W.2d 635, 639 (Minn. Ct. App. 1986) (citing Freeman v. Duluth Clinic, Inc, 334 N.W.2d 626, 630 (Minn. 1983)).

9

Autoplink Technologies, Inc. v. Janson, 2017 WL 5985458, *5 (Minn. Ct. App. 2017) (emphasis added).

10

Id.

11

See, e.g., Bennett, 134 N.W.2d at 898.

12

Dean Van Horn Consulting Associates, Inc. v. Wold, 395 N.W.2d 405, 408-09 (Minn. Ct. App. 1986); Klick v. Crosstown State Bank of Ham Lake, Inc., 372 N.W.2d 85, 88 (Minn. Ct. App. 1985).

13

See, e.g., Wold, 395 N.W.2d at 408-09.

14

Boston Scientific Corp. v. Sprenger, 2012 WL 5462681 (D. Minn. 2012); see also Sempris, LLC v.

Watson, 2012 WL 5199582 (D. Minn. 2012) (denying the employer’s motion for injunctive relief and reiterating that Minnesota law disfavors non-compete agreements); DENTSPLY Int’l, Inc. v. Rene, 2013 WL 828824 (D. Minn. 2013) (same).

15

See, e.g., Wold, 395 N.W.2d at 408-09.

16

28 Winter/Spring 2018 MINNESOTA TRIAL

In addition, non-compete agreements may not be enforceable when unreasonable in duration or geographic coverage.12 For example, Minnesota courts have affirmed that restrictions of more than one year or beyond a metropolitan area are unreasonable and, thus, unenforceable.13 Regarding temporal restrictions in particular, Minnesota courts ordinarily will not enforce a non-compete agreement if it exceeds the time necessary to eliminate the identification of the employee with the employer for the employer’s customers or the time necessary for an employee’s replacement to learn the job and obtain the necessary credentials.14 Minnesota courts have struck down non-compete agreements, furthermore, for being vague.15 Short of striking down a non-compete agreement, Minnesota courts may narrow the scope of the restrictions pursuant to the “blue pencil” doctrine.16 Conclusion Although employers normally have more resources and marketplace power, employee counsel can overcome those obstacles through careful preparation and savvy advocacy. Disputes over non-compete agreements exemplify this reality. Drawing on the precedent and arguments summarized above, employee counsel should be successful in challenging overreaching non-compete agreements and in defending against overly aggressive applications of even valid non-compete agreements.

WE are PHYSICIAN Life Care Planners.

SAND LAW PROUDLY INTRODUCES

TWO NEW MEMBERS TO ITS PERSONAL INJURY PRACTICE ISAAC TYROLER

PHILIP BECHER Isaac Tyroler has joined the firm as a partner where he will run the personal injury and workers' compensation practice. Mr. Tyroler has significant experience litigating injury cases throughout Minnesota and Wisconsin.

Philip Becher has joined the firm as an associate.

Phil is a native of Rochester, MN and is a graduate of the University of St. Thomas School of Law.

651-291-7263 Sandlawllc.com

• Personal Injury • Workers’ Comp MINNESOTA TRIAL Winter/Spring 2018 29

WOMEN’S TRIAL LAWYER CONFERENCE Fostering Expertise, Relationships & Referrals What is the WTLC? We are excited to bring you a the 2nd annual Women’s Trial Lawyer Conference.

A one of a kind conference- that fosters female referral relationships and one that enhances our influence, both in the office and in the courtroom.

FOSTERING EXPERTISE, RELATIONSHIPS & REFERRALS

NOVEMBER 1-3, 2018 GRAND VIEW LODGE, NISSWA MINNESOTA

women for justice

>> This past fall, the very first Women Trial Lawyers Conference took place at Grandview Lodge in Nisswa, Minnesota. The event started when Holly Dolejsi, Laura Pittner, and I sat down and discussed the need for a forum where female attorneys could exchange ideas and ask questions. As female plaintiff attorneys, we are still underrepresented at the bench, at the bar, and at the partnership level of our firms. Keeping this in mind, we set out to create a safe and productive environment to change that.

MARLENE GOLDENBERG joined GoldenbergLaw at the age of fourteen and has held nearly every position in the firm since that time. Today, Marlene’s practice is largely devoted to advocating for those who have been injured by defective medical devices and pharmaceutical drugs.

Marlene also specializes in individual personal injury, product liability, and medical malpractice claims.

Through her work, Marlene has battled federal preemption, frequently in courts where the issue had not been previously addressed. Indeed, Marlene has briefed and argued federal preemption issues in six different states at the state, federal, and appellate levels.

As a result of this advocacy, nearly all of these courts determined that plaintiffs have a viable cause of action when a manufacturer fraudulently promotes unapproved uses of a medical device.

In 2014, Marlene was selected as an “Up and Coming Attorney” by Minnesota Lawyer, and in 2015, Marlene was selected as a “Rising Star”

by Minnesota Super Lawyers.

This year, the conference took place at Grandview Lodge, where attendees attended seminars on topics ranging from law firm management and career advancement to closing arguments and deposition techniques. The seminar also featured a keynote speaker, Sarah Rohne, who spoke about grit and the impact it has on a person’s ability to be successful in the field of law. In addition to the substantive seminars, attendees ate almost all meals together.

During these meals, attendees introduced themselves and spoke briefly about their areas of practice.

Following the conference, a referral list was circulated on the MAJ women’s listserv so attendees would remember to refer cases to one another.

Planning for next year’s convention is well underway, and thanks to a high participation percentage in our exit survey, we know next year’s conference will be even better. If you attended last year, we sincerely hope to see you again. If you weren’t able to make the first one, we look forward to adding you to what has already become a tightly-knit group of women.

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Marlene graduated from Syracuse University, magna cum laude. She then attended William Mitchell College of Law in Saint Paul, Minnesota and BPP Law School in London, earning her J.D. and her Graduate Diploma in Law (GDL).

MINNESOTA TRIAL Winter/Spring 2018 31

family law report

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.

Domestic Abuse

Child Custody Jurisdiction

In re the Matter of Thompson and Schrimsher (Filed January 31, 2018) (Supreme Court)

In re the Marriage of Cook and Arimitsu (Filed January 22, 2018) (Court of Appeals)

The Minnesota Supreme Court reversed the Court of Appeals ruling regarding issuance of a Domestic Abuse Order for Protection. The Court of Appeals had reversed the issuance of the OFP because the acts of physical harm that were the basis for the order were from several years before the subject action. The Supreme Court ruled that there is no temporal condition on the provision of the statute pertaining to physical harm. There is a temporal condition on the reference to the infliction of fear of physical harm. The Supreme Court expressly reversed the reliance by the Court of Appeals on case precedent that contemplated a requirement of “present harm.”

The Supreme Court also confirmed that this will not lead to an absurd result, i.e., an OFP now based on events from years ago. The Court noted that a court must still consider the relevant circumstances including the specific domestic abuse history and the likelihood of further abuse.

32 Winter/Spring 2018 MINNESOTA TRIAL

Appellant Mother sought review of a successor judge’s assertion of subject matter jurisdiction in a custody case in which the previous judge had ruled against the jurisdiction of the Minnesota court. The Court of Appeals affirmed, ruling that Respondent Father could have obtained the same relief from the previous judge, therefore it was permissible for the successor judge to provide the relief. The district court reasserted jurisdiction, not based upon the previous record, but based upon updates to the record, and therefore Respondent was not untimely seeking amended findings, but was seeking modification.

The Court of Appeals ruled that Minnesota properly asserted home state jurisdiction because the children were temporarily absent from Minnesota within the six months before the action was commenced. The contested issue was that the children were absent from Minnesota since nine months before the action was commenced, but for the first five months it was understood that the children were returning to Minnesota. The point in time when Respondent was on notice that Appellant did not intend to return the children was within the six-month window.

MINNESOTA TRIAL Winter/Spring 2018 33

workers’ compensation report Workers’ Compensation Court of Appeals Case Law Updates September 1, 2017 through January 30, 2018

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.

Settlements – Interpretation

Rehabilitation – Fees and Expenses

Armstrong v. Clyde Machines, Inc., #WC17-6044 (WCCA 1/30/18)

Beguhl v. Port of Living Solutions, #WC17-6078 (WCCA 01/11/18)

The employee entered into a Stipulation for Settlement in 2009 settling all claims with the exception of future medical expenses. Limited medical were closed out including “formal in or outpatient pain programs, as defined by the treatment parameters, including MAPS . . .”

Following the settlement, the employee sought a consultation at the Center for Pain Management.

This was denied by the insurer per the close out in the Stipulation. The matter proceeded to a hearing where the compensation judge rejected the employer and insurer’s argument that the treatment was closed out by the language of the 2009 Stipulation for Settlement. The employer and insurer appealed. The WCCA affirmed the compensation judge’s decision. They indicated that “we are not persuaded by the employer and insurer’s argument that approval of a referral to a pain clinic is equivalent to an authorization of a pain program as defined by the treatment parameters.” They cited Moe v. Northern Country Hospital, #WC04-237 (WCCA 04/6/05) The WCCA went on to further state that the evidence did not establish that the referral was for a pain program as defined by the treatment parameters.

The employer and insurer appealed a compensation judge’s determination that the rehabilitation bills be paid in full. The employer and insurer disputed the payment to the QRC. The employer and insurer argued that the QRC’s frequent use of standard billing of .2 an hour did not identify reasonable time spent for services. They also indicated that the billed time was for administrative tasks, services not in furtherance of the rehabilitation plan and that the QRC failed to reduce the charged hourly fee as required under Minn. R. 5220.1900, Subpart 1F. The court went on in their decision to explain that an adoption of a minimum time increment for time keeping of a QRC’s services, is reasonable. They went on to state that the disputed descriptions of the QRC’s activities were adequate to describe the services provided and that the actual time spent was sufficient to support the time billed. The court also went on to discuss the employer and insurer’s defenses under Minn. R. 5520.1900, Subpart 7, including the QRC leaving voicemail messages and providing services after a request to suspend services had been filed. The WCCA

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 Winter/Spring 2018 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

was not persuaded by the employer and insurer’s argument that the presence or absence of consent would not preclude the commissioner or compensation judge from determining the reasonable value or necessity of services. In this case, the compensation judge had found that the rehabilitation services were reasonable and that substantial evidence as well as the the records support that conclusion. The employer and insurer did point out administrative tasks that were performed by the QRC, which were none furtherance of the rehabilitation plan and, therefore, were not payable.

The WCCA did modify the award but failed to lay it out in the decision as to what those items were. Interestingly, the employer and insurer also argued that the QRC services included medical management, which was provided to the employee related to care for conditions which were found not to be compensable.

The WCCA indicated that the definition of medical management describes communication amongst parties of the employee’s medical condition and contains no limitation to compensable injuries. See Minn. R. 5220.0100, Subpart 20. Consequently, the WCCA held that since the employee’s ability to work was affected by her medical condition, regardless of the origin or any particular aspect of that condition, the employee was entitled to reasonable medical management of her “whole condition” not merely the portion identifiable as treating a compensable work injury.

Jurisdiction – Out-of-State Injury Hinkoe v. Ruan Transportation, Inc., #WC17-6083 (WCCA 01/05/18)

The employer and insurer appeal the compensation judge’s determination the employee’s work injury was compensable. The employee in this case was hired in Georgia as an over-the-road truck driver. He lived in Georgia and had a driver’s license from Georgia. He was

assigned to different home terminals in Minnesota and another terminal in Georgia. He received route assignments form his supervisor/dispatcher in Otsego, Minnesota. He would attend training and safety meetings in Minnesota. He voluntarily resigned from his position at one point in 2014 but was later rehired after he was flown by the employer back to Otsego to complete the paperwork. From 20142015, he picked up and delivered in different states, including Minnesota.

In October 2015, he sustained an injury in Georgia. The employer and insurer disputed that the claim was compensable under Minnesota law.

The trial court interpreted Minn. Stat.

§ 176.041 and the compensation judge found and the WCCA agreed that the employee’s jurisdiction existed in Minnesota for a work-related injury to be compensable even though it was sustained in Georgia.

Arising Out of and in the Course of Roller-Dick v. CentraCare Health Sys., #WC17-6051 (WCCA 10/19/17)

The WCCA reversed the compensation judge’s determination that the injury while descending a flight of ten stairs did not arise of her employment. The WCCA analyzed the case under Dykoff and Hohlt. The WCCA reaffirmed continued on next page

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WORKERS’ COMPENSATION REPORT continued from page 35

that negligence should not be taken into account in workers’ compensation matters.

When someone falls on a flight of stairs, certainly the occurrence of an injury is more likely, as is an increase in severity of the injury suffered. For these reasons, a flight of stairs cannot be considered a neutral condition.

The flight of stairs alone increases the risk of injury, as did the icy sidewalk in Hohlt, and it is not necessary to require a showing of ‘something about’ the staircase that further increased the risk.

The WCCA went on to hold that the employee “was not obligated under the law to show that there was something about the flight of stairs that increased her risk of injury because the stairs alone increased her risk, and therefore, that injury arose out of her employment.”

Lein v. Eventide, #WC17-6101 (WCCA 12/29/17)

The WCCA reversed the trial court’s determination that the work injury did not arise out of and in the course of the employment. The relevant facts were that the employee fell and sustained injuries while descending a flight of stairs on the employer’s premises. Both parties submitted expert opinions at the trial court to establish that there was or was not something wrong with the stairs. The compensation judge denied the claim concluding that the employee failed to establish that she had been exposed to an increased risk. The judge pointed to significant factors in his determination, which included a lack of an OSHA investigation, failure to show a defect in the stairs, and the employer’s compliance with building codes. The WCCA reversed concluding that the compensation judge committed an error of law. The WCCA evaluated this case based on the recent decisions of Kubis and Hohlt. The WCCA had previously heard this decision prior to the determination of the Minnesota Supreme Court. They had reversed the compensation judge’s decision and they 36 Winter/Spring 2018 MINNESOTA TRIAL

continued to keep to that finding. The WCCA had indicated that they declined to engage in the factual inquiry relied upon in prior stairway cases as the issue of whether there was “something wrong” with the stairs as it conflicts with the explicit statutory prohibition of the consideration and negligence in workers’ compensation cases. The WCCA again held, as they had done in Roller-Dick (WCCA 10/19/17), that stairs cannot be considered a neutral condition.

Consequently, the stairs presented an increased risk of injury. The WCCA then reversed the decision and remanded to the compensation judge for determination of benefits.

Attorney Fees – Excess Fees Hufnagel v. Deer River Healthcare Center, #WC17-6057 (WCCA 12/5/17)

The WCCA reversed the compensation judge’s determination with regards to attorney fees which related to .191 fees. The compensation judge in this case denied .191 fees despite the employee’s attorney’s request. The judge denied the .191 fees on the basis that the underlying dispute although it involved multiple employers and insurers, the compensation judge had found that only one injury was a substantial contributing cause. Because of that, the judge denied the .191 fee request. The WCCA disagreed. They indicated that the determination failed to consider the degree for which that the employer’s sought to place on each other the sole responsibility for payment of the employee’s benefits. These efforts rendered apportionment, a significant issue in the case, and greatly increased the burden on the employee’s counsel to provide effective representation.

As such, the WCCA ordered that the compensation judge consider the appropriate amount of .191 fees in addition to any Roraff/Irwin fees and what measure of apportionment, if any, the .191 fees should incorporate. The WCCA also remanded the matter back to the compensation judge to apply the appropriate standard under Irwin. They indicated that the judge was to consider

whether the totality of fees awarded was adequate to compensate the employee’s attorney for the representation provided.

They stated as follows: Attorneys are obligated to fully and thoroughly prepare for hearing.

This preparation will, without the aid of hindsight, include various theories of the case, some of which may be unsuccessful. Such a result does not make the time spent unreasonable. The inability to obtain reasonable attorney fees in workers’ compensation proceedings can have a chilling effect on attorney’s willingness to take on representation of employees with complicated issues and multiple employers and insurers.

Vacation of Award Rossbach v. Rossbach Constr., Inc., #WC17-6070 (WCCA 11/2/17)

The employee sought to vacate a Stipulation for Settlement on the grounds of either fraud or mistake of fact. An unrepresented employee accepted a settlement of $11,500 to settle his workers’ compensation case. The employee alleged that he was settling only his right to vocational benefits, not his right to future wage loss although the Stipulation closed out all benefits except medical. The claims adjuster sent the signed Stipulation to OAH asking that an Award be issued. The Award sent to the Judge referred to the parties as “each being represented by legal counsel.” The WCCA pointed out in their analysis that in prior cases they have “declined to hold an award on stipulation void where the statutory requirements were not followed.” However, they did also point out that stipulations of nonrepresented parties require the judges to perform a two-step review including whether it is reasonable, fair and in conformity with the Act and it must be “approved” by a Judge. The Award failed to acknowledge either of the steps being taken. The WCCA remanded the matter to OAH to determine whether the settlement reflected the intent of the parties at the time of the stipulation and was fair, reasonable and in conformity

with the Workers’ Compensation Act. After further findings, the WCCA was determine whether the Award on Stipulation should be vacated.

Evidence – Expert Medical Opinion Bromwich v. Massage Envy Roseville, #WC17-6065 (WCCA 10/18/17)

The WCCA affirmed the compensation judge’s findings and reliance on a medical report from the treating physician. The employee in this case sustained a right wrist injury resulting in the need for surgery. The employer and insurer denied responsibility. The treating surgeon, Dr. Forseth wrote a narrative report indicating that causation by the employee’s work injury could not be answered with “absolute medical certainty,” but that “Certainly, it seemed to be an aggravating factor

in the development of [the employee’s] symptoms.” The Judge relied on this opinion and the WCCA affirmed the judge’s finding based on a choice of expert. The WCCA provided: The Minnesota Supreme Court described the degree of medical certainty required as follows: “It is well established that the truth of the opinion need not be capable of demonstration, that an expert is not required to express absolute certainty in the matter which is its subject, and it is sufficient if it is probably true.” Dr. Forseth’s opinion meets this standard.

Job Search – Substantial Evidence Katz v. Telcom Constr., #WC17-6059 (WCCA 10/2/17)

The employer and insurer appealed the compensation judge’s findings that the employee’s job search was reasonable and diligent. The WCCA affirmed the judge’s findings. The Judge found that the employee’s belief that he was still employed with the date of injury employer and conducted no search during that time was reasonable. The employer and insurer also argued that his job search was not appropriate as he failed to maintain job logs. The WCCA provided, “The absence of job logs can support a conclusion that a job search was inadequate, but does not require that conclusion. The lack of job search logs goes to the weight of the evidence, which the judge found to favor the employee.”

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welcome to new members Philip Becher Sand Law Katelyn Bounds Midwest Disability Timothy Costley Costley & Morris, P.C. Jan M. Hoopman Shermoen Jaksa Law, PLLC

Michael K. Johnson Law Office of Jeffrey A. Jones, P.A.

Jennifer McEwen Falsani, Balmer, Peterson & Quinn

Bradley Kirscher Kirscher Law Firm, PA

Scott Moriarity Baillon Thome Jozwiak & Wanta LLP

Brook R. Mallak Raboin & Francis Law Firm, Ltd.

André A.S. Novack Klampe Law Firm

Karen Louise Sebesta SiebenCarey, PA John Shoemaker Shoemaker & Shoemaker Thomas M. Strand Tewksbury & Kerfeld Amanda Zaleski Bradshaw & Bryant, PLLC

thank you to our sustaining members Luther M. Amundson Maser, Amundson, Boggio, Hendricks, P.A.

Elizabeth M. Fors* Robins Kaplan LLP

Randal W. LeNeave Hunegs, LeNeave & Kvas, PA

Mark D. Streed Meshbesher & Spence, LTD

Susan M. Gallagher Gallagher Law Office, LLC

Guy Mattson* Heartland Injury Law

Charles James Suk Suk Law Firm, Ltd

Suart L. Goldenberg Goldenberg Law, PLLC

Teresa Fariss McClain Robins Kaplan LLP

Tara D. Sutton Robins Kaplan LLP

James H. Greeman Greeman & Toomey, PLLC

Christopher J. Moreland Bremseth Law Firm, P.C.

Scott A. Teplinsky Teplinsky Law Group, Ltd

Mike Hall, III Hall Law, PA

Paul D. Peterson Harper & Peterson, PLLC

Steven J. Terry TSR Injury Law

William D. Harper Harper & Peterson, PLLC

Robert W. Roe Rob Roe Law, LLC

Brandon Thompson Robins Kaplan LLP

Gary M. Hazelton Hazelton Law Firm, PLLC

Richard A. Ruohonen TSR Injury Law

Josh M. Tuchscherer Meshbesher and Spence, LTD

Jacob R. Jagdfeld Johnson Becker PLLC

Peter A. Schmit Robins Kaplan LLP

Cory P. Whalen SiebenCarey

Thomas J. Conlin Conlin Law Firm, LLC

Kate E. Jaycox Robins Kaplan LLP

Erik D. Willer TSR Injury Law

Joseph M. Crosby Crosby Law Office

William E. Jepsen Jepsen Injury Law, LLC

William R. Sieben Schwebel, Goetz & Sieben, PA

T. Joseph Crumley Bradshaw & Bryant, PLLC

Jeffrey A. Jones Jeffrey A. Jones & Associates, PA

Thomas R. Bennerotte Bennerotte & Associates, PA Robert S. Bennett Gaskins Bennett Birrell Schupp, LLP Nathan H. Bjerke TSR Injury Law Michael A. Bryant Bradshaw & Bryant, PLLC James P. Carey SiebenCarey John C. Conard The Law Offices of John C. Conard

Robert C. Falsani Falsani, Balmer, Peterson & Quinn Yvonne M. Flaherty Lockridge Grindal Nauen PLLP

Karen J. Kingsley Kingsley Law Office, PA Cortney LeNeave Hunegs, LeNeave & Kvas, P.A.

Charles D. Slane TSR Injury Law Joel E. Smith Kosieradzki Smith Law Firm, LLC

Genevieve M. Zimmerman Meshbesher & Spence, LTD (*denotes new Tort Preservation Member)

Patrick Stoneking Robins Kaplan LLP

For more information on how to become a Tort Preservation Level Member, please contact Rochelle Peyton at rpeyton@mnaj.org.

38 Winter/Spring 2018 MINNESOTA TRIAL

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