*1 liability. Specifically, perfund subdivision regula- governing Agency rules Control attaching when prevents liability from define waste which of hazardous “* death, as, personal injury of the disease waste “generator” of hazardous site, employee under Minnesota compensable act or is person, by whose ** (Workers’ chapter Compensa- waste produces hazardous Statutes (1987). tion), party 7045.0020,subp. 31 Under is a third unless defendant Minn.R. Lantz liability it clear that was Minn.Stat. subject definition under above, waste As generator of hazardous subd. 5. discussed of the Minnesota regulatory individually control E. Valentine and Clair Gerads Agency. Pollution Control to third- co-employees as are not liability under re interpretation The trial court’s Thus, Superfund person business that a be in the quiring against Valentine E. and Clair of action would de generating hazardous substances “operators” must fail. as of Lantz Gerads weaken, feat, severely the over or at least We legislation. Superfund intent of all pri DECISION companies have as their

note that few generation of hazardous mary business the Summary judgment to the claims as Lantz, businesses, Yet, many like waste. against E. Gerads un- Valentine and Clair incidentally, but with hazardous waste deal negli- theory co-employee der both the Hazard in the normal course of business. operators gence facility as of the under you no hazardous because ous waste is less judg- Superfund Summary is affirmed. daily. infrequently with it rather than deal Superfund ment cause of action as Thus, legislature intended we believe the against Development and the four Gerads businesses, like this section facili- individually as owners Gerads Lantz, inci generate waste hazardous ty remaining these matters reversed and purpose being dental to their main are remanded for trial. Thus, we reverse business. part part, Affirmed reversed Superfund ruling applied as under remanded. Development. to Gerads Appellants argue also that the four own- per- Development should

ers of Gerads

sonally Superfund as owners liable under has facility. the trial court Because not yet ruled on this we will appeal. address it on BLOHM, al., Respondents, Roger et D. Co-Employees B. Appellants also sued Valentine E. and MINNEAPOLIS UROLOGICAL individually Superfund Gerads under

Glair SURGEONS, P.A., al., et operators facility. As Ger- Respondents, Development, the trial court held that ads Internists, P.A., et operators E. and Gerads as Valentine Clair al., Petitioners. facility responsible were not Lantz Superfund because Lantz persons under No. C6-88-2515. haz- generating not in the business Appeals Court Minnesota. disagree hold- We with this ardous waste. However, holding our ing. consistent with July 1989. regarding appellants' co-employee claims of Aug. Granted Review entry of sum- negligence, the trial court’s mary judgment on this claim is affirmed. 115B.05, (1988) employee claims from Su-

excludes certain *2 Mackenzie,

Reed K. Mackenzie & Hall- P.A., berg, Minneapolis, for Blohm. Blazevic, Bassford, Heckt, Donna J. et al., Minneapolis, Minneapolis Urological Surgeons, P.A. Salmon, Geer, E. Meagher,

Robert Mark- ham, al., Minneapolis, et Internists, P.A. Davis,

Kathryn Minneapolis, Helen ami- Lawyers’ cus Minnesota Defense Ass’n. Paul, Eisberg, John F. St. amicus Minne- sota, Lawyers Trial Ass’n.

Heard, considered and decided NORTON, P.J., and SHORT LESLIE,* JJ.

OPINION NORTON, Judge.

Petitioners seek a writ restrain court’s enforcement of its denying leave to conduct an informal to Minn.Stat. § petition writ of prohibition is denied.

FACTS Roger and Delores Blohm commenced a petitioners malpractice against action Dr. Kieley Peter and Metropolitan Internists against respondents Dr. William Price Minneapolis Urological Surgeons. and the performed prostate Dr. surgery Price Roger prescribed subsequently Blohm and Const, *Acting judge VI, appeals ap pointment pursuant court of to Minn. art. § 2. remedy by adequate other Kieley law affords no Dr. saw compound. estrogen an certiorari, motion, trial, appeal, or other com- surgery. Blohm Blohm after *3 (quoting Id. v. Nuna wise.” Wasmund legs, circulatory problems in his plained 54, 577, maker, 52, 277 Minn. 151 N.W.2d no definite Kieley recommended Dr. but (1967)). 579 emergency to the went Blohm treatment. and Medical Center at room parties concede that trial The Peterson, again of complaining saw Dr. the informal denial of the leave conduct Dr. con- circulatory Peterson problems. judi- the exercise discussion constitutes and, his Dr. Kaufman tacted argue that power. Petitioners cial Lindberg, at- orders, Dr. contacted by law be- court’s order is unauthorized unsuccessfully the circula- to treat tempted the informal discussion is not form estrogen It is claimed problem. tion discovery subject or to court rules prescribed and caused or negligently disagree. court’s discretion. We necessitating problem contributed to 595.02, (1988) 5 subd. § extremi- amputation of Blohm's lower person who commences an ties. malpractice must autho action for attempted conduct an in- Petitioners any physi waiving that action rizations pursu- Dr. Peterson with discussion existing under Minn. cian-patient privilege 595.02, (1988), 5 ant to Minn.Stat. subd. § 1, as to informa Stat. subd. had been the certificate of readiness after opinion possession physi in the object- Respondent counsel filed. Blohm’s for the cian who has examined cared conference, pretrial claim- ed to this at the person. provides: This section further ing the constituted discussion permit parties must all This waiver time con- was therefore and action, their or authorized and set the Rules of Civil Pro- straints forth informally representatives, discuss special rules of cedure and the opinion with the health information agreed County. Hennepin provider provider if the consents. care informal denied leave conduct the and 5. A defendant 23, order dated November give days must fifteen notice before 1988. discussion, attorney plaintiff’s and present to be at the discussion. Id. allowed ISSUE provider care If the health does Is the informal discussion autho- discussion, then: sent to the (1988) 5 rized Minn.Stat. seeking the information or discovery? subject to the local rules deposition opinion may take the provider respect to health care with ANALYSIS opinion, information and without obtain- In a writ prior court order. requirements must be met: three Id. (1) must an inferior court or tribunal be gath- purpose of the discussion is to judicial quasi-judicial to exercise about facts, issues, er narrow and obtain evidence (2) power; power the exercise of such must Although for use at trial. discussions with law; (3) be unauthorized exer treating physicians are not as dis- listed injury power of such must result in cise covery under the pur- Minn.R.Civ.P. remedy. adequate there no Min pose compels of the discussion the conclu- neapolis Star & Tribune Co. v. Schu sion that the discussions constitute one macher, 197, (Minn.1986) 392 N.W.2d 208 are form of (citing Board In Richardson v. School special Rules of Civil Procedure and the 271, 297 dependent School District No. of the district courts. rules (1973)). The Minn. 210 N.W.2d 911 writ legislature is not one of discretion and believe the did not intend but We exempt proce- from “only issues extreme cases where the the statute to be discovery. Liability Commission on See governing dural at rules Professional (where pro p. statute Minn.R.Civ.P. proceeding in a civil vides that an act Previously Supreme the Minnesota Court provided by done in the manner Wenninger Muesing, had v. decided act must be done accordance these Minn. N.W.2d rules). Generally, procedure civil rules of supreme court held: they are inconsistent with the unless n persuaded We are proce Parker procedure. statutory practice and disclosing privileged dure for O’Phelan, (Minn.Ct.App.1987), 534, 536 414 N.W.2d *4 testimony forth in is, set Rule 35.04 and (Minn. 428 361 N.W.2d 'd aff ought be, to the means by exclusive 1988) (citing Universal Construction Co. party which an may adverse discover tes Peterson, v. 530-31, 529, 280 Minn. 160 relating timony patient’s to a physical, 253, (1968)). N.W.2d 255 The courts will condition, mental or blood and we hold only inconsistency provision find if a of the that Rules and 35.03 35.04 in their formu directly the statute conflicts with rules. by lation advisory committee and Tischendorf, Id. (citing 321 Tischendorf adoption by the court did not contem (Minn.1982), 405, 409 n. 2 cert. N.W.2d unilateral, plate private by interviews denied 460 U.S. 1426, 103 S.Ct. 75 inquiring party waiving of the party’s (1983)). L.Ed.2d 787 A rule still will treating physician. if it is consistent with the statute and its application not does frustrate statute’s Id. at purpose. at Id. Guillaume & (citing 537 It 595.02, is clear that Minn.Stat. Associates, Co., Inc. v. Don-John passed legislature 5 was by response in (Minn.1983)). N.W.2d to attorneys’ physicians’ and desire to clari- We must and ascertain effectuate the fy light Rule 35.04 in of the Wenninger legislature, intent of the since this statu- legislative decision. There is no history tory provision adopted was without any implication which contradicts this reference as to whether the informal dis- to clarify section is meant Rule rath- cussion would be included as dis- er than a impose statutory to new scheme covery discovery provi- outside of the Rules Civil Procedure. sions in the of Civil Procedure. See Rules Based on the in factors section 645.16 In determining legislature we believe intended not intent, legislative we must at the look occa- treating physi- allow easier access to necessity sion and objective for the by plaintiffs, cians and defendants but also provision be obtained any and clarify 35.04 Rule so that informal dis- Id. former law. in may cussions occur addition to the fur- statutory provision adopted This in nishing reports of medical the taking and 1986 to clarify thereby Rule allowing of specifically court order as doctors and to meet and have an provided for in the rule. providing informal discussion and better our interpretation Consistent with of the possession access to information within of statute and the is the plaintiffs treating doctor. See Minneso- language provisions statute and the Commission, ta Medical Association Task of According Rules and 35.04. (October 11, Force System on Civil Justice Minn.R.Civ.P. 35.03: 1985); Association, Re- Minnesota Medical stage port If at of an party action Commission of Professional (November Liability, pp. 21-22 1985). voluntarily places controversy physical, mental or specifically Minnesota Medical blood condition of Association * party thereby recommended “Rule 35.04 of such any privilege Minnesota Rules of party may Civil Procedure should waives interpreted be modified regarding testimony both that action possession sides with every person access facts has examined or * * * any treating physician.” Report thereafter examine that party Practice, discovery schedules and is the Rules in Rule 35.03 required waiver legislative pur- by a trial court. The set and authorization medical waiver same allowing physi- Minn. to a required in easier access pose of discussed Furthermore, interpretation. 595.02, subd. 5. not cian is frustrated Stat. § specifically pro- free of medical information flow Minn.Stat. § 35.04, by allow- merely confined portion for in the statute modifies vided without a deposition physician of a necessary applicable time limitations not does physician if the agree court order all civil actions. We Rule 35.04 an informal discussion. sent to that: part: pertinent case, discovery If this were shall to this Rule Disclosures designed to and cut-off dates schedules treating conclusions include the judicial efficiency in the name of promote examining expert. medical justice virtu- would become fairness treating examining Depositions important ally Consequently, useless. except taken shall not be experts and mo- aspects pretrial conferences *5 good the upon order of court place as would also lose their tools tions upon and notice the motion shown reaching equitable settlement an used as upon such terms the court parties and merely This as a matter of course. can- may provide. permitted happen. This Court not be falls satisfied that Minn.Stat. 595.02 is § Minn.Stat. be said that cannot It spirit discovery the of to be inter- within separate is and distinct subd. § preted coextensively with Minn.R.Civ.P. discovery, legis- since the the of from rules specifically has allowed lature if the doctor refuses an without court order statutory language, light the the In of legislative Without informal discussion. language history, and the of legislative affirmatively informal history excluding that informal we conclude the of Proce- from the Rules Civil discussions by provided legislative dure, sounder of the view discovery is form § implies silence that proce- subject to state and local rules discovery the Rules of under Civil Proce- held the Because we have dis- dure. dure. proce- is a form of cussion nature, it is clear that the statute hold that the informal dis- dural Because we right. under Minn.Stat. does not substantive cussion allowed discovery provi- judicial properly 5 is court exercised its Procedure, power by enforcing of Civil it is rules in its No- sions Rules those 23,1988 informal discussion is also In clear an order. the absence of a vember provided in any limitation the showing exercise of its Special Rules of Practice. Rule 2.01 authority by was unauthorized we Special Rules of Practice for the Fourth any resulting not address the issue need District states: Judicial adequacy of available reme- injury After of Readiness has dies. a Certificate any period of

been filed and asserted expired, has further dis- non-readiness DECISION permitted upon covery will Petitioners have failed establish the judge to whom the case has been prohibition. requisite elements a writ of assigned. Accordingly, petitioners’ request is denied. may an in While a defendant have prohibition Petition for writ of denied. plaintiff's treating discussion with a formal declines, if physician, depo the doctor SHORT, (dissenting). Judge sition; this informal discussion must occur respectfully grant I I would within time limitations and confines set dissent. Procedure, Special requested the Rules of Civil writ because the judicial improperly abridge, enlarge, modify trial court exercised its the substantive allowing power by a local court rule to rights any litigant.” modify right abridge or a substantive au- Because the statute at thorized statute. Minn.Stat. face, its grants parties defense permits parties attorneys and their right and their counsel the informally informally the information or “to discuss providers, interview health care neither the opinion provider] a health care with the [of rules of civil nor local court provider provider care health if rule interpreted should be to abridge so as Recognizing sents.” that such informal modify that right. Imposing a time plaintiff’s discussions between clearly limitation for such discussions modi- treating physicians long been statutory fies the right to conduct informal legislature, practice, common its especially when, interviews. This is true comprehensive reform the affecting law here, treating physician agrees claims, professional liability sought tort the interview. comparable establish a for defense It appears present appel- case that attorneys.1 clearly The statute does not lants not particularly diligent were in con- anticipate intervention; if even tacting suggest do the doctor. I physician treating grant in- refuses imposed time frames for discovery discussion, deposi- physician’s formal any way court were in restrictive obtaining be taken “without However, or unreasonable. time limita- prior court order.” tion for specified in local *6 not impose any statute also does 2.01 would not be affected allow- party seeking time on the limitation ing place. the informal take interview to interview. defendant need “mail Such an scope interview is outside the written notice to the other at least 15 rules, although discovery admis- days leg- before the discussion.” Had sion procured of evidence be subject would impose islature wished to the deadline evidentiary rulings. Similar- urged by respondents, it could have done ly, physician’s deposition use aof taken explicitly. so express Absent such lan- after the close of would be sub- guage, given intent to ject rulings to the trial court’s on admissi- give defendants the same access to treat- Thus, bility. evidentiary stage, at the physicians ing plaintiffs have, I would obtaining timeliness the evidence decline to read time limit into the statute. gather- become relevant. information governs Minn.R.Civ.P. the statute should not be taking of depositions, states that frustrated, however, by forcing the infor- except “shall not be taken gathering mation into the time frame of * * * ” upon By order of the court. local rules. trast, subd. 5 autho- and, rizes informal discussions if neces-

sary, depositions obtaining without supreme

order. The court has specifically contemplates

stated Rule 35 neither prohibits private,

nor in- nonadversarial plain-

terview defense counsel of the physician.

tiff’s treating Wenninger v. 405, 412,

Muesing, 307 Minn. 240 N.W.2d (1976).

Finally, Minnesota law

rules of or procedure “shall not Blatz, bill, Representative go introduced have to court in to meet with the explained provision question treating physician Hearing Committee, "allows A.” on H.F. 1764 attorneys defense plaintiffs’ Judiciary the same Leg. the House 74th Before now; they and that is that do not Sess.