*1 Goeb, 1999 WL *7. We FRA.” appellants’ and hold that claims

also affirm negli- negligent misrepresentation are not FIFRA. testing preempted gent 136v(b) § (preempting See 7 U.S.C. labeling packag- .as to requirements I, (holding F.2d at 1307 ing); Worm 970 state-imposed of care standards relat- manufacture, and product design, labeling qualify require- do not preempted by ments and thus are not FI- FRA).

Affirmed. MANAGEMENT COM-

SENTINEL Plaintiffs, al., Re- et PANY, spondents, Square Partnership, Respondent, AND AETNA CASUALTY SURETY COMPANY, al., Defendants, et Company, Insurance

petitioner, Appellant. C2-98-2304, Nos. CX-98-2373. Supreme Minnesota. Court of

Aug. 2000. Rehearing Sept. Denied *2 Pearson,

Thomas A. Cronan Pearson Ferrini, Quinlivan, Minneapolis, T. James PC, IL, Chicago, Eric Clausen Miller J. Magnuson, Agun- Rider Bennett Egan & *3 del, Cotton, R. Minneapolis, Wyner Stuart Mound, Crawford, Glaubinger, Jeffrey C. Wollan, ap- & New York for City, Cotton pellant. Moloney, A. Plant Moo- Gray

Lawrence Bennett, P.A., ty Mooty Minneapolis, & Mollica, Meites, Paul W. Thomas R. Joan Meites, Mulder, Burger, H. <&Mol- Burger lica, IL, respondents. for Chicago, Hunt, Lommen, Nelson, Kay Nord Cole P.A., Stageberg, Minneapolis, & for amicus curiae Defense Research Institute. Heard, considered, by and decided en banc.

OPINION

BLATZ, Justice. Chief Defendant-appellant brings Company appeal Insurance that the district court abused contending admitting expert testimo- discretion ny on that New asbestos contamination ex- claims should have been evidentiary cluded Minnesota’s stan- under addition, testimony. dard for claims if the that even admitted, testimony was expert’s properly does not support evidence still jury’s phys- that there was a direct finding ical loss plaintiff-respondent (KSP), Square Partnership which invoked coverage Hampshire’s all-risk under policy. on these Plain- We affirm issues. tiffs-respondents Management al., Company, argue cross-appeal et granting court erred in summary Hampshire’s motion for judgment properties on the ten jury. reverse considered We trial. on this for a new issue remand who plaintiffs This involves lawsuit all-risk, insurers under sued defendant first-party policies issued the insurers Hampshire’s policies two were implicated covering properties managed owned or they were the policies effect at by plaintiffs.1 plaintiffs Ten of the are Accordingly, that time.3 the district court partnerships, limited and Sentinel Man- granted summary judgment remain- agement general partner is the of each of except defendants New Hampshire. partnerships, these limited and manages New Hampshire then filed a second mo- all of the at issue. Plaintiffs summary tion for judgment, challenging alleged that asbestos fibers had been re- plaintiffs whether had sustained “direct primarily leased their ten residential loss,” necessary to coverage.4 building complexes, and that ensuing The district court denied the motion but losses policies were covered under the pro- *4 certified to the court of appeals pursuant by vided defendant insurers. Five defen- 103.03(h) to Minn. R. P. Civ.App. ques- dants filed summary judgment motions for concerning tions whether asbestos contam- to determine which policy defendant’s ination could physical constitute a direct in effect when the property damage mani- loss and whether such a loss was fortui- addition, fested.2 In Hampshire In- tous. (New Company surance Hampshire) was by added stipulation as an held, alia, additional de- The court of inter fendant. Finally, plaintiffs filed an amend- that asbestos contamination can constitute complaint, KSP, adding general ed part- physical a direct property loss to under an nership that wholly owns the Kellogg policy, all-risk insurance and that such a Paul, Square building in managed St. also loss is fortuitous. See Sentinel Manage Sentinel, as an plaintiff. additional Co., ment Co. v. New Hampshire Ins. 563 296, (Sentinel (Minn.App.1997) 300 The district court concluded that for I). After the case returned to the district purposes of allocating indemnity between court, filed a insurers, motion in successive first-party coverage is asking limine the court to triggered when exclude the tes appreciable damage be- timony plaintiffs’ expert, comes manifest such that Richard Hat the insured was field, plaintiffs’ or should as well as other experts have been aware of it. The court further plaintiffs’ concluded that the evidence. New argued losses manifested either in July 1991 or in that extrapolated Hatfield from four posi August only therefore New tive dust samples taken apart- from five trial, original plaintiffs 1. There were orig- During prior and 6 3. to submission of the case inal original plain- defendant The insurers. jury, to the the district court revised this Management tiffs were Sentinel Company ruling, finding that there was no evidence of following and the partnerships limited during manifestation pol- ownership had buildings in the interests at icy covering January through January Associates, issue: Ballantrae Chancellor 1, 1992, only Hamp- and therefore the New Manor, Village, Equinox Properties, Colonial policy covering January shire through Partnership, II Limited Oak Grove January implicated. 1993 was Associates, Investors, Ltd., Gateway Towers Stagecoach Company, Skyline Towers Com- policies coverage All-risk include "for all pany origi- and Woodmere Associates. The resulting fortuitous losses not from miscon- nal defendant Casualty insurers were Aetna fraud, duct or policy unless the contains a Surety Company, Reliance Insurance specific provision expressly excluding loss Company, Company, Continental Insurance Couch, coverage.” George 13A E. Hartford Indemnity Company, Accident and (rev. § Couch on Insurance 2d 48:141 Company, Mission Insurance and Mission ed.1982). Hampshire's policy provided Company. National Insurance indemnity against "all risks of direct 2. We note that the district court dismissed Therefore, plaintiffs prove loss.” had to Company Mission Insurance and Mission Na- phys- loss was both fortuitous and a direct defendants, Company tional Insurance as as ical loss. companies process liqui- both were dation. Kellogg Kellogg Square, building remain- Square at the units 450-unit ment addition, that all of the at to the conclusion issue. building Square, well as Kellogg Hampshire’s denied New motion limine apartments issue, buildings at were con- the other ten testimony regard to exclude Hatfield’s fibers. New response taminated Square. to New requested that Hampshire further Hampshire’s that Hatfield’s tes- argument of scientific sam- court exclude evidence timony extrapola- was unreliable due to his the ten pling performed on tion, the court noted Hatfield’s ex- expiration after the trapolation weight rather than went Hampshire’s policy. of New testimony, his and thus admissibility of jury. was matter for hearing pursu- The district court held States, 293 F. 1013 Frye ant to v. United proceeded then to trial. matter (D.C.Cir.1923), it allowed a voir at which gath- Hatfield that he testified tested dust building manag- Hatfield and two dire of apartments ered from five and four hearing Hatfield testified at ers. samples positive were asbestos fibers. conclusion that all were his information, along He testified that his in- based on visual contaminated was *5 inspection Kellogg with his visual of the and information spection properties orders, of work Square, inspection his building manag- and maintenance from activities, concerning tenant information containing that materials ers asbestos Kellogg to his that all led conclusion (ACMs) all throughout were used of the by fi- Square was contaminated asbestos buildings managed by Sentinel. He also He that method for bers. also testified his he testified that had reviewed hundreds detecting been asbestos contamination has the 11 maintenance work for build- orders used the Environmental Protection the orders demon- ings at issue and that as method Agency and was published and maintenance of strated use Society Testing for Materi- the American activities that had involved an accepted als and that he has been as thereby released gouged the ACMs and by many expert on asbestos contamination fibers.5 courts. New state federal New granting denying Rather than its cross-examination of primarily relied on limine, the district Hampshire’s motion Hatfield, not include rebuttal ex- and did summary granted judgment instead testimony in its case-in chief. The pert Hampshire and dismissed plain- to New jury Kellogg Square found sustained against properties all other tiffs’ claims and that the cost of direct loss granting sum- Square.6 $4,474,404.08.7 removing was the asbestos judgment Hampshire, New mary made plaintiffs then a motion court concluded district judgment notwithstanding as the verdict could not raise an issue of fact (JNOY) trial, again arguing, new in the other ten or a to manifestation of loss among things, that Hatfield’s conclu- there had been no sci- other properties because 450-unit them sion that the entire testing performed entific within dur- in- was contaminated was Square building As a policy period. the relevant result unreliable admissible as it was based an ruling, only of this KSP continued as only, four dust extrapolation positive because it the sole owner of plaintiff judg- an 7.The court entered amended The work were for such maintenance orders bulbs, 1998, 7, replacing light shower curtain KSP's tasks ment on December that raised rods, $5,291,460.92, and closet tracks. original door equal award to to the plus accrued to that date. award interest parties, all 6. To avoid confusion between parties will plaintiff than KSP hereinaf- collectively referred as Sentinel. ter be 824

samples. addition, The district court denied community. entific See id. id., motion. its foundation must be rehable. See reliability 815. Foundational “requires the appealed the denial * * * ‘proponent of a test [to] establish cross-appealed its motion and Sentinel that the test itself is reliable and that its district court’s dismissal of its claims con- particular administration instance cerning the ten other than Kel- procedure conformed to the necessary to logg Square. The court of af- ” Moore, reliability.’ ensure State 458 firmed, agreeing the district court (Minn.1990) 90, N.W.2d (quoting State that “the weaknesses Hatfield’s testimo- Dille, (Minn.1977)). ny weight were relevant proper The determination of whether a evidence, admissibility.” not its See Senti- foundation has been largely established is Management nel v.Co. Aetna Cas. and within the discretion of the trial court. Co., C2-98-2304, CX-98-2373, Sur. Nos. Bott, 331, 334, See State v. Minn. 1999 WL at 14 slip op. (MinmApp. (1976). 1999) (Sentinel II). July The court of appeals also held that without scientific Although Hampshire argues properties on the other than Kel- generally Hatfield’s methods are neither logg Square during the policy pe- relevant reliable, accepted arguments nor their riod, present genuine Sentinel could not reliability concern the of those methods. question of material fact on whether the Specifically, Hampshire argues contamination manifested during policy Hatfield improperly extrapolated from period. parties appeal- See id. Both then four positive samples dust taken from ed to this court. five units to conclude that the entire 450-

unit building was contaminated. New Hampshire characterizes this extrapolation I. “junk as unreliable science” that should question The first we address is excluded, have been and claims the district whether the district court abused its dis court abused its discretion when it admit- by admitting cretion testimony Hatfield’s ted testimony. Hatfield’s concerning the asbestos contamination of Kellogg Square. Hampshire Frye New claims At hearing, the district court that Hatfield’s conclusion that Kellogg allowed an extensive voir dire of Hatfield. Square was contaminated fi At asbestos the conclusion of hearing, the court bers should have been excluded as unrelia determined that extrapolation Hatfield’s ble under Frye-Mock the Minnesota weight, stand went rather than to the ard.8 Minnesota Frye- adheres to the admissibility of his testimony. agree. We Mack standard for admission of evidence The clearly record shows Hatfield’s conclu- that is based on techniques novel scientific sion was based on much more Tharaldson, or principles. See positive Goeb 615 four samples. dust Hatfield also (Minn. 2000). N.W.2d 814-15 Under relied on his inspection prop- visual of the standard, this two-prong erty building statements from the technique principle managers issue must be that ACMs were through- used generally accepted within the relevant sci- out the building.9 building managers addition, . challenging 8. In addition to points district In KSP out that New Frye- court’s admission of the evidence under Hampshire admitted that ACMs are used as Mack, Hampshire urges also this court ceiling throughout Kellogg Square, adopt principles of Daubert and its disturbed, and that once ACMs are progeny to avoid the risks of unreliable scien fibers are released. being rejected tific evidence admitted. We Tharaldson, argument in Goeb v. (Minn. 2000) N.W.2d 814-15 and there fore need not address it here. determining evidentiary weight and re- is ny, informed Hatfield tenant also gouge province jury. Upon the within the pair activities tend to record, containing asbes- review of the conclude that the release dust we ACMs. the build- district court did not abuse its discretion throughout tos occurred fibers Further, determining testimony Hatfield hundreds Hatfield’s was ad- ing. inspected bulbs, replacing light of orders for missible. work rods, door curtain and closet

shower gouge also which can II. tracks —maintenance as- containing and release dust the ACMs next argues the evidence bestos fibers. addition to the district court must be reversed record, Hamp- we note that New testimony properly even if Hatfield’s of put expert forward an its shire failed Specifically, admitted. testimony. As own to counter Hatfield’s argues that KSP did not meet its burden stated, has been the district court “there that a direct loss proving .oc analysis no refutation of Mr. Hatfield’s curred, as it failed to that a health show carpet contaminated pieces the four existed for the hazard tenants n * *_ that means that two Whether due to asbestos contamination. square carpeting feet of party’s a district court Where has denied 800,000 Square were contaminated or JNOV, uphold we motion will square jury a matter feet is for the any competent if court’s decision “there is determine.” reasonably tending evidence to sustain v. City Litchfield, verdict.” Rettman num challenging In addition to (Minn.1984). 426, 429 “Unless taken, samples ber New Hamp of dust practically is conclusive evidence testimony shire also asserts Hatfield’s verdict, not set the against we will as to was unreliable because his conclusion (quoting Id. verdict aside.” Sandhofer was not on air sam contamination based Hosp., Abbott-Northwestern ples. support argument, (Minn.1979)). 362,' Similarly, where expert cites to medical KSP’s party’s court has denied a motion L. Frank’s testimo deposition Dr. Arthur trial ground for a new based on the ny that asbestos fibers are hazardous *7 the-verdict, justify does not the evidence when airborne and then inhaled. uphold the decision “unless we will court’s argues that as to Hampshire a conclusion contrary prepon the verdict is so to the based, contamination must be asbestos imply the that derance of evidence as to therefore, samples. argument air This jury failed to consider the evidence the ignores law of As Hatfield gravity. the under some or from some or acted mistake testified, released, once asbestos fibers are motive, bias, caprice, or improper feeling settle, they eventually will to bé reen- ex honestly dispassionately instead of and air when Fur trained into the disturbed: Jordan, judgment.” ercising its Lamb ther, in Hatfield experts two addition to (Minn.1983) (quot 855-56 sampling that air is useless unless testified Co., Aqualand Pool ing LaValle initially point done at a when fibers are (Minn.1977)). 324, 328 in dislodged from the ACMs or disturbed I, appeals the held carpet the or tile reentrained. While In Sentinel court of air might though be that even “asbestos contamination proved contamination that, the injury find result in to samples, jury reasonably tangible a could does not given building, were in structure of a build- presence physical the ACMs that may impaired or gouged, ing’s seriously fibers function be fact disturbed asbestos in the and the rendered use- Again, destroyed property were released the air. ab contaminants,” weight, presence sampling by sence of air went to the less the the of direct admissibility thereby satisfying testimo- definition not the Hatfield’s I, Second, Sentinel loss. 563 N.W.2d at in physical Hampshire its brief New II, discussing In Sentinel Square further quotes Kellogg Alessan- manager may loss physical how a direct result testimony dro Bernardi’s “[t]here that ** function, building’s of a the impairment any in wasn’t the air that appeals principal court of held “[a] quote, remainder of the which New Hamp- any space provide living omitted, [is] function of to time, shire is “but at the if same environment for the If occupants. ACMs], safe you ceiling you’re disturb go- [the * * asbes- property by rental is contaminated ing have asbestos in air presents tos health hazard to fibers Similarly, Hampshire cites a letter tenants, seriously is im- its function managers Square sent of Kellogg II, paired.” slip WL building’s proposition tenants for the held op. at 14. The court that that the ceiling Kellogg Square of proving to meet its burden a direct is hard and not does release fibers. loss, physical to show that KSP had both fact, the letter referring was to asbestos- by as- was contaminated containing floor tiles. New fibers, bestos and that contamination ignores portion also of the letter that presented building’s a health hazard warns “tenants not [to] disturb asbes- tenants. See id. materials, tos-containing specifically most material, ceiling cutting, drilling or appeal New Hampshire does not material,” abrading the and the letter’s articulated, but argues standard statement that “it is important avoid not prove KSP did a direct loss unnecessary damage to asbestos-contain- because KSP never established it materials because could result in a health hazard existed for the tenants of release of asbestos fibers into the air.” Square. Specifically, Hamp own shire claims KSP’s witnesses tes Finally, arguing that none of KSP’s ex- tified that must asbestos fibers be airborne perts testified that there health was a haz- hazard, to constitute a health and because ard, New Hampshire selectively cites to sampling performed Kellogg no air testimony of KSP’s experts. The cited Square, KSP did not establish a health however, testimony, conjunc- when read hazard. The reveals record that New surrounding testimony, tion does testimony misrepresents claim, support experts as KSP’s witnesses, KSP’s we conclude that testify did in fact that asbestos contamina- Hampshire’s argument is otherwise tion constituted a health For hazard. unpersuasive. reasons, foregoing we hold that New has failed to show KSP previously, As noted air is sampling proving did not meet its burden of a direct questionable utility in determining contam- *8 physical loss and hold Hamp- that New fibers, ination because asbestos like all shire is not a therefore entitled to JNOV particulates, will settle to the ground and new ground. or a trial on this Although remain there until disturbed. Dr. deposition Frank testified in that III.

inhaled, airborne, and therefore asbestos hazardous, presented fibers are KSP am- We cross-ap now address the ple evidence that once settled fi- peal plaintiffs-respondents asbestos Sentinel that disturbed, they bers are are dismissing reentrained the district court erred in on thereby air summary into the become hazard- judgment its claims of asbestos Therefore, ous. it does not that buildings follow contamination the at issue oth for testing necessary airborne fibers is to Kellogg Square. Following er than prove that asbestos contamination in Kel- Frye hearing, the district court deter logg Square constituted a health hazard that mined without scientific to for building’s tenants. that buildings confirm other than Kel- 4) contaminated, presented evidence that such Sentinel Sentinel were logg Square degree to place activities took some issue of genuine that a could not show all buildings; eleven whether asbestos fact existed on 5) 1992, within the occurred confirmed that sam- fiber contamination Sentinel i.e., appre- Kellogg ples whether taken were period, relevant policy contamination. The district indicative of asbestos damage occurred.10 ciable claims as court dismissed Sentinel’s then II, 540466, slip op. See Sentinel 1999 WL Square. other than to light prong at 8-9. of the first - appreciable that trigger manifestation denied Sentinel appeals The court of damage during policy peri- occur must court’s adopted the district relief and - appeals’ od the court of first determina- ruling that would trigger” “manifestation holding. to The court key tion was (1) appreciable dam coverage find when: to the lack of appeals “[d]ue held that policy period; age during occurred evidence, we conclude trial scientific (2) have damage was or should been “the determining court was correct insured, reason such that a known to the was too speculative available evidence would have been aware able insured claim that its support Sentinel’s policy under the had duty his notification Kellogg Square other than were contami- II, 1999 been Sentinel WL triggered.” Id., period.” during policy slip nated 7-8; 540466, op. see also Pruden slip op. at 9. Supe v. Insurance tial-LMI Commercial argues that court Sentinel County, 51 Cal.3d Diego rior Court San requiring erred in appeals 387, 1230, 1247 674, Cal.Rptr. 798 P.2d testing and that its evi proffered scientific (1990) (announcing trig the manifestation question dence was sufficient to establish property insurance ger first-party rule for jury. Our standard of review for cases). summary judgment, To survive summary judgment is de novo. See Fair creat present Sentinel needed to evidence v. Hosp. view & Health Care Servs. St. ing genuine of material fact both issues Co., Paul & Marine Ins. 535 N.W.2d Fire II, prongs. See Sentinel 1999 WL (Minn.1995). held We have 9; by Cooper see slip op. at also State for sum grant of motion district court’s (Minn.1990). French, 460 N.W.2d mary will not be disturbed judgment evi- nonmoving party presents when the that, . concluded The court of metaphy- merely dence which creates properties to Sentinel’s other respect a factual issue and sical doubt Square: sufficiently probative which is 1) no presented evidence Sentinel an element respect essential any buildings other than Kel- of the ten permit case to rea- nonmoving party’s scientifically tested for logg Square were persons to draw different con- sonable during policy contamination clusions. period; DLH, Russ, Inc. 2) that sim- presented evidence (Minn.1997). present throughout ilar Kel- ACMs were We conclude buildings; Square and the ten logg *9 prerequisite a for should not be testing 3) prong the of the manifesta satisfying first presented evidence Sentinel scientific Although tion standard. trigger ACMs many normal activities disturb the fibers; during poli- performed was not testing the of and cause release . judgment by the court and hearing summary in district Although Frye the occurred the 10. appeals. brought by in limine as the court of context of motion was reviewed such II, Hampshire, slip op. the demonstrates the record at 8. See WL actually for treated as a motion motion cy the other period buildings on than Kel than Kellogg and remand for fur- logg Square, there was nonetheless evi ther proceedings in with accordance this contamination, i.e., dence of asbestos the opinion.13 same ÁCMs were used in of the build part, part, Affirmed in in reversed ings, and tenant maintenance activities remanded. that can in gouge ACMs occurred all of the remaining This buildings.11 evidence of asbestos contamination raises more than a STRINGER, (concurring Justice in part,

metaphysical doubt about factual issue. part). dissenting in Therefore, Sentinel has established a gen I concur with the of holding majority question uine of material fact to wheth Frye-Mack reliability standard er appreciable damage occurred within the was met respect to the Kellogg policy period.12 See Prudential-LMI Square building Ins., and that direct Comm. 274 Cal.Rptr. 798 P.2d at loss trigger was demonstrated to coverage, of (stating “the date the manifes but I disagree with respectfully and dis- tation and hence the of the inception date will, cases, sent from holding of the in the court’s that the man- many loss be an issue decide.”) jury trigger of fact ifestation for the We standard can be met with there respect fore remaining buildings reverse district court’s ten dismissal of claims on Sentinel’s of testing. other absence contention, Although testing scientific confirming Contrary as- to the dissent's in re- performed versing bestos contamination was at sever- the district court's determination on properties summary al judgment we hold do not that the Square, performed it was district court abused in 1994 and its discretion in exclud- fact, Hampshire’s after evidence. it policy period is unclear from the had transcript that the district ever ended. court excluded any evidence of asbestos contamination at the Kellogg Square, ten other than oth- reading 12. We note that our of the record testing performed er than the scientific after agreed indicates that the district court policy period expired. had What is clear genuine there Sentinel that was a issue of is that both the district court court of on prong material fact the second of the man- appeals concluded that without scientific test- trigger. appeals, ifestation The of con- ing performed during policy period, Senti- cluding that Sentinel had not satisfied the present genuine nel could not issue of mate- prong, first declined to reach the second jury appreciable rial fact as to whether II, prong. slip See Sentinel WL damage properties occurred in the during ten op. at 9. policy period. the relevant It is with this conclusion, dissent's, and the that we dis- 13. The testing!,] dissent asserts that "without agree. present pure conclusion asbestos is is proceed Should Sentinel wish to to trial on speculation, proof appreciable and thus properties Kellogg Square, ten other than damage and manifestation fails.” The dissent the court will determine then whether Senti- goes together on analysis to then blend proffered nel’s evidence of contamination is appreciable damage whether during occurred Frye-Mack. reliable under Like policy period analysis with its of what court, we not have ruled on this issue. What may Frye- scientific evidence come under that, law, we have ruled is matter as a so, doing Mack. In the dissent substitutes the simply is form of evidentiary standard review determina- question evidence that is sufficient to raise a tions summary for the standard of review for appreciable damage of fact on whether oc- judgment. Frye-Mack, Under a district properties during curred ten policy in the proper court's determination on whether a end, period. disagree To that we with the reliability foundation been has established suggesting pro- dissent’s statements that the for the admission of scientific evidence is spective Frye-Mack hearing anis all-or-noth- reviewed under an abuse discretion stan- ing proposition. may The district court al- Goeb, contrast, low, dard. See 814-15. we expert testimony limit exclude offered review a district court's determination on any hearings future matter. Russ, summary judgment de See novo. admissibility testimony and limits of that are *10 N.W.2d at 71. not at before us this time.

829 * * * in a coverage present sample- under the manifesta- that asbestos is There is microscopic analy- is perform when of dust to trigger appreciable standard tion * * II, [the] the sis of material Sentinel damage during policy period occurred 540466, slip at 9. op. been 1999 WL Sentinel’s damage the was or should have and expert Man- stated the obvious-that without evi- to insured. Sentinel known the See Surety, to is present v. Aetna Cas. and dence conclude asbestos agement Co. C2-98-2304, CX-98-2373, microscopic testing of through samples, 1999 WL Nos. 27, in the or (Minn.App. July at 7-8 differences nature slip op. (Sentinel II). 1999) majority in wide What the construction could result variations appreciable suspension-for example is that dam- in the asbestos the recognize fails to ceiling only proving composition of the wall and materi- age can be demonstrated different, building in each be af- may the were contaminated dur- als that suspension the fecting and contamination characteristics of of ing policy period, the only opinion, particles. ad- the dust But with- proven by expert can be testing it the out a conclusion that asbestos is Frye-Mack missible because meets reliability pure speculation, is present proof standard. thus appreciable damage and of manifestation Frye-Mack re two-prong The standard fails. first, technique quires, that the scientific however, generally accepted Beyond holding be the its principle must here and, community ruling testing sec that of the other is within the scientific ond, required, majority must be reliable. the dilutes to the its foundation Tharaldson, meaninglessness Frye- 615 of near the point Goeb v. N.W.2d See (Minn. 2000); the requiring see also Mack standard scientific 814-15 State (Minn. 1990). Moore, testing particular be “in the reliable and procedures. In Moore we further held as to scientific instance” to reliable conform swoop majority fell the testing proper foundation for In one allows “[a] proceed to to requires ‘proponent appreciable damage of issue of scientific test * * * Frye-Mack itself trial and that the relia- test establish that test rules [to] to administration standard is satisfied as Hatfield’s bility is reliable and testimony. majority leapfrogs instance over particular conformed analysis in its con- necessary Frye-Mack to ensure reliabili rush to procedure ” damage reliability appreciable of clude that there was ty!,]’ particu and that given in a must in the form of asbestos contamination. technique lar test or case Moore, Frye-Mack relia- Making leap that the be demonstrated. N.W.2d Dille, respect met ten bility standard is with to (quoting State (Minn. 1977)). absence test- separate buildings any buildings guts those ing of of scien- presented no evidence analysis I can assume Frye-Mack buildings. remaining in the ten tific majority would now reach samples Kellogg Square It relied on respect any build- same conclusion indicative asbestos contamination and where formula”- “Kellogg at Kel- piggy-backed sample testing asbestos) (routine + mainte- (presence of ACM’s, as logg Square on evidence that = (contaminated activities) build- nance well maintenance activities that disturb ing)-is met. release ACM’s and cause the of asbestos fibers, meeting even minimal remaining in the ten In the absence present were requirements of reliable test- buildings. proved Frye-Mack But this is all Sentinel respect trigger There the manifestation standard buildings. ing, to the other affirm the no cannot be reached. I would require- evidence meet even the expert conclusion of both the court ment Sentinel’s own definitely present- that the evidence “only way that the establish *11 ed man- satisfy Sentinel does

ifestation standard. trigger In re Petition for AC DISCIPLINARY

TION AGAINST Barrie S. SCHU MACK, Attorney an at Law of the of State Minnesota.

No. C6-99-1781. Supreme Court of Minnesota. 21, 2000. Aug. ORDER Director of the Office of Lawyers In re Petition for DISCIPLINARY AC- Responsibility Professional peti- has filed a ERICKSON, TION David T. AGAINST disciplinary tion alleging action Attorney an at Law of the State respondent Barrie S. Schumack has com- Minnesota. professional warranting mitted misconduct No. C1-87-1357. public discipline, namely, engaging in a noncommunication, pattern of neglect and Supreme Court Minnesota. files, to failing return client failing pro- to fees, accountings vide and return unearned Aug. to failing properly pay court-ordered judg- him, against ments failing cooperate and ORDER investigation disciplinary com- The Director Lawyers Office of plaints against filed him violation of Professional an Responsibility ap- has filed 1.3, 1.16(d) 1.4, Minn. R. Prof. Conduct plication for suspension pursuant to Rule 8.1(a)(3) 8.4(d). Respondent received 12(c)(1), Lawyers Rules on Professional an private admonition in 1992 proba- (RLPR), Responsibility and evidence that tion in 1993 for similar misconduct. respondent be cannot found in the state or mitigation, respondent submitted personally peti- served the Director’s reports physician medical from tion for action. disciplinary clinical psychologist licensed providing evi- disorder, sleep dence coupled with IT IS HEREBY ORDERED that re- depression, substantially caused or con- spondent T. suspended David Erickson be to his tributed misconduct. It appears practice year law. Within one respondent’s that while misconduct cannot from the date respondent order nonserious, be characterized as no client may move the court for vacation of the lasting injury. has suffered suspension order of and for to an- leave petition swer the for disciplinary action. Respondent admits his conduct violated Conduct, the Rules of Professional waives BY THE COURT: rights pursuant his Rule Rules on Alan Page C. Lawyers Responsibility Professional Associate Justice (RLPR), and has stipulation entered into a they the Director jointly wherein rec- ommend that the appropriate discipline is public reprimand years and two of super- subject vised probation following conditions: Respondent cooperate a. shall fully with the Director’s Office its efforts to