Melinda M. Binkley, Trustee on behalf of the heirs and next of kin of Kirk T. Lloyd, II v. Allina Health System , 877 N.W.2d 547 ( 2016 )

STATE OF MINNESOTA
IN SUPREME COURT
A14-0794
Court of Appeals Anderson, J.
Concurring, Lillehaug, J.
Took no part, Hudson, Chutich, JJ.
Melinda M. Binkley, Trustee
on behalf of the heirs and next
of kin of Kirk T. Lloyd, II,
Appellant,
vs. Filed: April 6, 2016
Office of Appellate Courts
Allina Health System, et al.,
Respondents.
________________________
Patrick Stoneking, Robins Kaplan LLP, Minneapolis, Minnesota; and
David E. Wandling, Wandling Law Group, PC, Minnetonka, Minnesota, for appellant.
Rebecca Egge Moos, Jessica L. Klander, Bassford Remele, P.A., Minneapolis, Minnesota,
for respondents.
Andrea B. Niesen, Charles A. Bird, Bird, Jacobsen & Stevens, PC, Rochester, Minnesota,
for amicus curiae Minnesota Association for Justice.
________________________
SYLLABUS
Minnesota Statutes § 253B.23, subd. 4 (2014), provides immunity to a medical-
services provider that, in good faith, denies admission to a person seeking voluntary
mental-health treatment under Minn. Stat. § 253B.04, subd. 1 (2014).
Affirmed in part, reversed in part, and remanded.
OPINION
ANDERSON, Justice.
Appellant Melinda Binkley claims that Respondent Allina Health System and its
staff negligently caused the death of her 17-year-old son, Kirk Lloyd, when they refused
to admit him to an inpatient mental-health treatment facility. After some discovery,
Respondents moved for summary judgment, arguing that they were entitled to immunity
for their good-faith actions under the Minnesota Commitment and Treatment Act (“CTA”).
The district court denied Respondents’ motion for summary judgment, but the court of
appeals reversed, concluding that Respondents are entitled to immunity. Because Minn.
Stat. § 253B.23, subd. 4 (2014), grants immunity to the Respondents’ good-faith actions in
this case, we affirm in part, reverse in part, and remand for further proceedings.
During the summer of 2009, Lloyd began to experience suicidal thoughts and
ideation. On or about July 25, 2009, Lloyd’s mother, Binkley, intervened and had Lloyd
transported to the emergency room. Lloyd received treatment through Respondent United
Hospital (“United”). Respondent Frances Go, M.D., treated Lloyd at the emergency room
and placed him under a 72-hour hold, as permitted by Minn. Stat. § 253B.05 (2014). In
August 2009 Lloyd participated in the “United Partial Program” (“partial program”), an
outpatient mental-health treatment program. Lloyd was discharged from the partial
program on August 12, 2009.
Nine months later, on May 10, 2010, Lloyd wrapped himself in a blanket while
sitting on his bed and set the blanket on fire. Lloyd suffered burns to his abdomen, but
2
initially claimed that the fire was an accident. The next day, Lloyd texted Binkley and told
her that he had intentionally started the fire in an effort to harm himself and burn the house
down. Lloyd also told Binkley that he wanted to go to United in order to get help and stop
his pattern of self-harm.
Binkley and Lloyd arrived at the United emergency room on that same day at
approximately 11:00 a.m. Binkley claims that she repeatedly requested that Lloyd be
admitted to United’s inpatient mental-health unit and that Lloyd consented to being
admitted to the inpatient mental-health unit. Lloyd was examined by United staff,
including Respondent Jeffrey G. Swanson, M.D. According to Binkley, sometime around
2:30 p.m., United staff informed Binkley and Lloyd that Lloyd would be admitted to
United’s inpatient mental-health unit. Lloyd then changed out of his normal clothes, put
on scrubs, and ate lunch while he waited to be transferred to a room in United’s inpatient
mental-health ward.
At approximately 4:00 p.m., Binkley and Lloyd were informed that Lloyd would
not be admitted to United’s inpatient mental-health program and were further told that Dr.
Go did not view Lloyd as “a good candidate” for the partial program because Lloyd failed
to follow through with the partial program in August of 2009. After reminding Lloyd that
he should attend scheduled meetings with a therapist and his school counselor over the next
several days, United released Lloyd.
What caused United and its staff to discharge Lloyd rather than provide him with
on-site mental-health treatment is disputed. Binkley claims that United’s staff told her that
United did not have space to accommodate Lloyd because there were other patients with
3
greater need for treatment. United, on the other hand, contends that it discharged Lloyd
because there was “no need to admit at this time.”
After he was released on May 11, Lloyd returned home with Binkley. Lloyd
committed suicide either late in the evening of May 12 or early in the morning of May 13.
On May 15, 2013, Binkley, acting as trustee, filed a medical-malpractice action against the
Respondents on behalf of Lloyd’s heirs and next of kin, alleging that Respondents’
negligent failure to properly examine, evaluate, and provide services to Lloyd caused his
death. On December 13, 2013, Respondents moved for summary judgment on the grounds
that their actions were protected by statutory immunity and, in the alternative, that
Binkley’s expert affidavit failed to satisfy the requirements of Minn. Stat. § 145.682(2014).
Respondents’ motion for summary judgment was brought before key depositions
were taken. Sometime after Respondents filed their motion for summary judgment and
Binkley filed her response, but before the district court heard the motion, Binkley deposed
Dr. Go. According to Binkley, Dr. Go’s deposition testimony sharply contradicted
United’s previous narrative, as well as several notes in the medical records from Lloyd’s
visit to the emergency room. By contrast, during their depositions, other Allina staff,
including Respondent Dr. Swanson, stood by the version of events presented in the medical
records.
These discrepancies created questions about the reasons for Lloyd’s discharge and
Binkley brought a motion to amend the record for summary judgment in order to allow the
district court to consider the new deposition testimony. But when Binkley’s counsel failed
4
to appear at the hearing, the district court denied her motion to amend the record and
considered Respondents’ summary judgment motion without reference to Dr. Go’s
deposition testimony. Ultimately, the district court denied Respondents’ summary
judgment motion, concluding that the statutory immunity provision in Minn. Stat.
§ 253B.23, subd. 4, applied only to involuntary commitments, not voluntary admission
decisions.1
Respondents filed an appeal of the district court’s order denying summary
judgement, which the court of appeals accepted pursuant to our decision in Kastner v. Star
Trails Ass’n, 646 N.W.2d 235, 240 (Minn. 2002). The court of appeals reversed the
decision to deny summary judgment, holding that the immunity provision found in Minn.
Stat. § 253B.23 applies to voluntary admission decisions. Binkley v. Allina Health Sys.,
860 N.W.2d 707, 711 (Minn. App. 2015). We granted review.
I.
This case concerns the interpretation of Minn. Stat. § 253B.23, subd. 4, which is
part of the CTA. Minn. Stat. §§ 253B.01-.24 (2014). The CTA provides a procedural
framework for both voluntary and involuntary treatment of individuals with mental-health
and other issues. The statutory scheme emphasizes medical evaluation and procedural
protection for potential commitments, provides certain rights to patients at treatment
1
The district court also found that Binkley’s expert affidavit complied with Minn.
Stat. § 145.682. Respondents appealed the district court’s determination, but later
voluntarily dismissed that portion of the appeal. See Binkley v. Allina Health Sys.,
No. A14-0794, Order at 2 (Minn. App. filed June 6, 2014).
5
facilities, and creates a state policy in favor of voluntary treatment. See id. The voluntary
treatment section of the CTA, which applies to Lloyd’s circumstances, prohibits the
arbitrary denial of admission and requires that treatment facilities use “clinical admission
criteria consistent with the current applicable inpatient admission standards established by
the American Psychiatric Association or the American Academy of Child and Adolescent
Psychiatry” when “making decisions regarding admissions.” Minn. Stat. § 253B.04, subd.
1(a).
In addition to establishing procedural safeguards and certain substantive rights for
patients and prospective patients, the CTA provides immunity to certain individuals and
institutions involved in the admission, commitment, and treatment process. There are
several immunity provisions that are specific to the sections in which they are found. See,
e.g., Minn. Stat. § 253B.04, subd. 1a(d) (providing immunity for mental-health providers
that provide treatment to a voluntary patient based on consent provided by an authorized
third party). The immunity provision at the heart of this case is found among the general
provisions of the CTA. See Minn. Stat. § 253B.23, subd. 4. Subdivision 4 of section
253B.23 provides, in relevant part:
All persons acting in good faith, upon either actual knowledge or information
thought by them to be reliable, who act pursuant to any provision of this
chapter or who procedurally or physically assist in the commitment of any
individual, pursuant to this chapter, are not subject to any civil or criminal
liability under this chapter.
The issue in this case is whether Minn. Stat. § 253B.23, subd. 4, provides immunity to a
mental-health provider that declines to provide treatment to a person seeking voluntary
admission to a treatment facility under Minn. Stat. § 253B.04. Binkley contends that the
6
immunity provision should be read so that it only applies to the involuntary commitment
process, while Respondents and the court of appeals conclude that the plain language of
the statute clearly extends beyond the commitment process to decisions regarding
voluntary treatment and admissions.2
II.
A.
Statutory interpretation presents a question of law that we review de novo. Harms
v. Oak Meadows, 619 N.W.2d 201, 202 (Minn. 2000). The goal of all statutory
interpretation is to “ascertain and effectuate the intention of the legislature.” Minn. Stat. §
645.16 (2014). When interpreting statutes, we “give words and phrases their plain and
ordinary meaning.” Premier Bank v. Becker Dev., LLC, 785 N.W.2d 753, 759 (Minn.
2010). “When legislative intent is clear from the statute’s plain and unambiguous
language, we interpret the statute according to its plain meaning without resorting to other
principles of statutory interpretation.” City of Brainerd v. Brainerd Invs. P’ship, 827
N.W.2d 752, 755 (Minn. 2013). If a statute is reasonably susceptible to more than one
interpretation, it is ambiguous and we may resort to the canons of construction or legislative
history in order to determine the intent of the Legislature. Lietz v. N. States Power Co.,
2
We recognize that there is a potential alternative reading of the statute, raised by
amicus Minnesota Association for Justice, which results in applying immunity only to
causes of action that arise under the CTA. Neither party adequately briefed this
interpretation. Additionally, at oral argument, Binkley’s counsel expressly disclaimed the
interpretation advanced by amicus. Consequently, we do not reach this issue or express
any opinion regarding whether the reading advanced by amicus is a valid way to interpret
the statute.
7
718 N.W.2d 865, 870 (Minn. 2006). “[W]henever possible, no word, phrase or sentence
should be deemed superfluous, void or insignificant” by our interpretation of a statute.
Owens v. Federated Mut. Implement & Hardware Ins. Co., 328 N.W.2d 162, 164 (Minn.
1983).
B.
Even though the immunity provision in Minn. Stat. § 253B.23, subd. 4, has
remained substantially unchanged since its original passage in 1967, see Act of May 22,
1967, ch. 638, § 21, 1967 Minn. Laws 1294, 1316 (codified at Minn. Stat. § 253A.21, subd.
2 (1967)),3 we have never interpreted the provision in the context of a decision regarding
voluntary admission.4 In short, Binkley argues that the immunity provision only applies to
good-faith actions taken in the course of the involuntary commitment process. Because
Lloyd sought voluntary admission, he was never involved in the involuntary commitment
3
Chapter 253A was recodified as chapter 253B in 1982. Act of Mar. 22, 1982,
ch. 581, §24, 1982 Minn. Laws 1329, 1358 (codified as amended at Minn. Stat.
§§ 253B.01-.23).
4
The closest we came to confronting the issue was likely Enberg v. Bonde, in which
we appear to have held that Minn. Stat. § 253A.21, subd. 2 (1980), the predecessor to Minn.
Stat. § 253B.23, subd. 4, provided immunity from common-law liability to physicians who
imposed a 72-hour hold on a potentially dangerous patient. 331 N.W.2d 731, 734-35
(Minn. 1983). Enberg’s usefulness here is questionable, however, because both the trial
court and this court were focused on whether the defendants could be held liable under
federal law. See id., at 732 n.2, 735-40.
In Cairl v. State, we held that decision-makers at a government-operated hospital
were entitled to official immunity after a patient they discharged later started a fire. 323
N.W.2d 20, 24 (Minn. 1982). We did not address the applicability of statutory immunity
under Minn. Stat. § 253B.23, subd. 4, and thus the relevance of Cairl is limited at best.
Additionally, Cairl dealt with governmental employees and Binkley argues that this
distinction also limits the applicability of the decision.
8
process and no commitment action, by the Respondents or otherwise, was ever taken. As a
result, according to Binkley, Respondents are not entitled to immunity. Respondents, by
contrast, argue that the immunity provision extends beyond the commitment process and
applies to all good-faith actions taken pursuant to any provision of the CTA. The court of
appeals agreed with Respondents’ interpretation and concluded that the statute
unambiguously grants immunity to two distinct groups: (1) persons who act in good faith
pursuant to any provision of the CTA, and (2) persons who procedurally or physically assist
in the commitment of an individual under the CTA. Binkley, 860 N.W.2d at 709.
The statutory text supports the position advocated by Respondents and endorsed by
the court of appeals. The immunity provision reads, in relevant part:
All persons acting in good faith, upon either actual knowledge or information
thought by them to be reliable, who act pursuant to any provision of this
chapter or who procedurally or physically assist in the commitment of any
individual, pursuant to this chapter, are not subject to any civil or criminal
liability under this chapter.
Minn. Stat. § 253B.23, subd. 4. The phrase “in the commitment of any individual” clearly
modifies the phrase “procedurally or physically assisting,” but it does not modify the
phrase “act pursuant to any provision of this chapter.” See Larson v. State, 790 N.W.2d
700, 705 (Minn. 2010) (“[T]he grammatical rule of the last antecedent . . . instructs that a
limiting phrase . . . ordinarily modifies only the noun or phrase that it immediately
follows . . . .”). The word “or” separating “act pursuant to any provision of this chapter”
and “procedurally or physically assist” makes it clear that the two phrases are meant to
describe separate and distinct categories. We have held that the word “or” should be given
its ordinary meaning as a disjunctive and that the use of the word “or” denotes the
9
Legislature’s intent to separate one clause from the next.5 When read in light of our
precedent regarding the word “or,” there is no textual basis for limiting the scope of the
immunity provided in Minn. Stat. § 253B.23, subd. 4, to acts taken in the course of the
commitment process in the manner that Binkley suggests.
Binkley argues that the phrase “in the commitment of any individual” is a limiting
clause that “plainly modifies the terms that precede it,” including the phrase “who act
pursuant to any provision of this chapter.” Essentially, Binkley believes the statute should
read: “All persons acting in good faith, upon either actual knowledge or information
thought by them to be reliable, who act pursuant to any provision of this chapter in the
commitment of any individual . . . .” The first and most obvious problem with Binkley’s
reading is that it would require us to go against the weight of our precedent and read the
“or” between “act pursuant to any provision of this chapter” and “who procedurally or
physically assist” conjunctively. Indeed, during oral argument, Binkley’s counsel
conceded that if the “or” is read disjunctively, her interpretation fails.
Binkley contends, however, that we have read “or” conjunctively when the context
required us to do so. See Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 385 (Minn. 1999).
In Binkley’s view, the context of the CTA mandates that “or” be read conjunctively in this
5
See Gassler v. State, 787 N.W.2d 575, 585 (Minn. 2010); Goldman v. Greenwood,
748 N.W.2d 279, 283 (Minn. 2008); State v. Loge, 608 N.W.2d 152, 155 (Minn. 2000);
Berry v. Walker Roofing Co., 473 N.W.2d 312, 314 (Minn. 1991); Aberle v. Faribault Fire
Dep't Relief Ass'n, 230 Minn. 353, 359, 41 N.W.2d 813, 817 (1950); State v. Croatt, 227
Minn. 185, 191, 34 N.W.2d 716, 720 (1948). But see State v. Nelson, 842 N.W.2d 433,
440-41 (Minn. 2014) (noting that when a proposition is phrased in the negative, the use of
the word “or” may give rise to an interpretation that the “or” is conjunctive).
10
particular clause. Appellant makes several arguments in support of this position, none of
which are persuasive.
First, Binkley stresses that reading “or” disjunctively would cause the “physically
or procedurally assist” language of the clause to be rendered meaningless because anyone
who physically or procedurally assisted in a commitment would be acting pursuant to a
provision of the CTA. There are at least two problems with this argument. First, it is not
entirely clear that any person who is procedurally or physically assisting with a
commitment is acting pursuant to a provision of chapter 253B. Admittedly, the majority
of individuals assisting in a commitment will be at least arguably acting pursuant to some
provision of the CTA. But the CTA contains a number of directives for decision-makers
and principal actors, and it is not always clear that every individual assisting a decision-
maker or principal actor is necessarily acting pursuant to a provision of the CTA.6
Additionally, to the extent that Binkley is correct, her reading suffers from the same
infirmity because reading “or” conjunctively will also create surplusage in the statute. If a
person who is assisting with a commitment is always acting pursuant to a provision of the
CTA, it necessarily follows that a person who is assisting with a commitment would be
acting pursuant to a provision of the CTA in the commitment of an individual, which is the
6
For instance, Minn. Stat. § 253B.07, subd. 1(a), requires that a pre-petition screening
team conduct an investigation regarding proposed patients before the designated agency
files a petition for judicial commitment. Although the CTA contains several directives to
the members of the screening team, it does not require anyone to provide statements or
recommendations to the screening team. See Minn. Stat. § 253B.07, subd. 1. As a result,
doctors who provide information or make a recommendation to a screening team might not
be acting pursuant to a provision of the CTA and might not receive immunity unless they
are deemed to be “procedurally assisting” with the commitment of an individual.
11
reading Binkley wishes us to apply to the statutory language. Binkley fails to explain how,
under her reading, a person could be assisting with the commitment of an individual but
not be acting pursuant to a provision of the CTA in the commitment of an individual.
Because Binkley’s argument does not even demonstrate that her reading is preferable, it
certainly does not require us to go against the weight of our precedent and read “or”
conjunctively.
Next, Binkley argues that reading “or” disjunctively and providing broad immunity
to treatment providers under Minn. Stat. § 253B.23, subd. 4, would render five other
immunity provisions in the CTA unnecessary. See, e.g., Minn. Stat. § 253B.03, subd. 6(e)
(providing immunity for third parties that provide consent for incompetent patients and
immunity for treatment providers that provide treatment based on third-party consent).
Three of the five provisions Binkley cites are not meaningless because they provide
absolute immunity while Section 253B.23, subdivision 4 provides immunity for good-faith
actions. See Minn. Stat. § 253B.03, subd. 6(e); Minn. Stat. § 253B.04, subd. 1a(d)
(providing immunity for treatment providers that provide treatment based on written
consent by a designated government agency); Minn. Stat. § 253B.092, subd. 9 (providing
immunity for third parties that provide consent to neuroleptic medication for incompetent
patients and immunity for treatment providers that administer neuroleptic medication based
on third-party consent). These provisions would not be rendered irrelevant by the
immunity found in section 253B.23, subdivision 4, because they provide more protection
than immunity for good-faith actions.
12
We are similarly unpersuaded that the other two provisions Binkley cites are
rendered meaningless by reading the “or” in section 253B.23, subdivision 4, disjunctively.
See Minn. Stat. § 253B.03, subd. 6d(f) (providing immunity for treatment providers that
make treatment decisions based on a “declaration of preferences” signed by a patient who
was mentally competent at the time the declaration was signed); Minn. Stat. § 253B.097,
subd. 6 (providing immunity for treatment facilities for the actions of their patients when a
facility is engaged in “community-based treatment” and “follows accepted community
standards of professional practice in the management, supervision, and treatment of the
patient”). It is always difficult to project hypothetical cases in which an individual could
obtain immunity under one provision, but not under another. Nonetheless, upon careful
examination, we believe there are circumstances under which these immunity provisions
could provide immunity that is different in scope or effect than the immunity provided by
our reading of section 253B.23, subdivision 4.
But even if the immunity at issue here is arguably duplicative of a specific immunity
provision elsewhere in the CTA, the Legislature’s decision to provide an immunity
framework that includes some overlap is, in the end, a question of policy. We are not free
to disregard the text of section 253B.23, subdivision 4, simply because it creates some
tension with other provisions of the CTA. By its plain terms, the immunity provision in
section 253B.23, subdivision 4 applies to both persons seeking voluntary treatment and
persons who are subject to commitment. Binkley’s reading is not a reasonable
interpretation of the statute. Section 253B.04, subdivision 4, unambiguously provides
immunity to individuals acting in good faith pursuant to a provision of the CTA. As a
13
result, in this case, the Respondents’ good-faith decision not to admit Lloyd under Minn.
Stat. § 253B.04 is entitled to immunity.7
III.
Having concluded that the Respondents’ good-faith decision to deny Lloyd
admission to the inpatient mental health unit is entitled to immunity, we must consider
whether that immunity entirely resolves this case. The court of appeals concluded that
Respondents are entitled to summary judgment on all of Binkley’s claims as a result of the
immunity provision. We conclude, on the record before us, that it is not clear that
Respondents are entitled to summary judgment on all claims.
Binkley’s complaint contained numerous allegations regarding Respondents’
negligence. While many of those allegations centered on Respondents’ admission
decision—which, if made in good faith, is entitled to immunity—others concerned the care,
or lack thereof, the Respondents provided to Lloyd after he left the hospital. Although
Respondents’ good-faith admission decision is entitled to immunity, Respondents’ counsel
7
Binkley makes a number of arguments based on policy and legislative history to
support her contention that providing immunity in these circumstances would be
inappropriate. These arguments may or may not have merit, but they are not issues
entrusted to our court. See Minn. Stat. § 645.16 (stating that when a statute is “free from
all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing
the spirit”). Moreover, many of these arguments miss the point entirely. It is certainly true
that the immunity provision at issue here will cause some deserving claimants to go
uncompensated. But that is the very nature of immunity. If the Legislature intended all
deserving claimants to be compensated every time a claim arose, the Legislature would not
have created any immunity under the CTA. Instead, the Legislature not only chose to
create broad immunity for good-faith actions, it further immunized other types of conduct
as well. If Binkley disagrees with those policy choices, her argument is better directed to
the executive and legislative branches, not here.
14
conceded at oral argument that decisions regarding what care to provide to Lloyd after he
left the hospital are not entitled to immunity under Minn. Stat. § 253B.23, subd. 4.
Therefore, we remand this case to the district court for further proceedings consistent with
this opinion. On remand, the district court should evaluate the complaint and the record in
order to determine whether Binkley can make out a case for liability in light of our holding
that Respondents’ good-faith admission decision is entitled to immunity.
Affirmed in part, reversed in part, and remanded.
HUDSON, J., not having been a member of this court at the time of submission,
took no part in the consideration or decision of this case.
CHUTICH, J., not having been a member of this court at the time of submission,
took no part in the consideration or decision of this case.
15
CONCURRENCE
LILLEHAUG, Justice (concurring).
Minnesota Statutes § 253B.23, subd. 4 (2014), part of the Minnesota Commitment
and Treatment Act (CTA), provides, in relevant part:
All persons acting in good faith, upon either actual knowledge or information
thought by them to be reliable, who act pursuant to any provision of this
chapter or who procedurally or physically assist in the commitment of any
individual, pursuant to this chapter, are not subject to any civil or criminal
liability under this chapter.
The words “any civil . . . liability under this chapter” (emphasis added) seem to mean that
defendants have immunity from causes of action created by the CTA or based on it (such
as a claim of negligence per se). I see nothing in subdivision 4 that grants immunity from
garden-variety professional negligence claims—those alleging breach of the standard of
care in the diagnosis or treatment of mental illness.
We assume that statutes do not abrogate common law rights and remedies. “We
have . . . long presumed that statutes are consistent with the common law, and if a statute
abrogates the common law, the abrogation must be by express wording or necessary
implication.” Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn. 2000). This presumption
typically is applied before we determine whether a statute is ambiguous. See, e.g., Dahlin
v. Kroening, 796 N.W.2d 503, 505-06 (Minn. 2011); Wirig v. Kinney Shoe Corp., 461
N.W.2d 374, 377-78 (Minn. 1990). And “[w]e have held that statutorily created immunity
should be construed narrowly.” Bol v. Cole, 561 N.W.2d 143, 147 (Minn. 1997).
Subdivision 4 does not contain an express abrogation of, or express immunity from,
common-law claims of professional negligence.
C-1
Notwithstanding my reading of subdivision 4, I respectfully concur rather than
dissent. As the court explains in footnote 2, the meaning of the phrase “civil . . . liability
under this chapter” was not argued by either party and, at oral argument, appellant’s
counsel expressly declined to rely on it.1 Fortunately, the opinion of the court does not
foreclose such an argument and, therefore, the issue awaits another case.
1
The issue first came to the court’s attention through the helpful brief of amicus
curiae Minnesota Association for Justice. Cf. Rule 37(1), Rules of the Supreme Court of
the United States (stating that amicus briefs should “bring[] to the attention of the Court
relevant matter not already brought to its attention by the parties” with the hope that it “may
be of considerable help to the Court”).
C-2