*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,
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