author: STREIT, Justice.

text:
    Glenn BECK, Appellant, v. Richard PHILLIPS, Appellee.
    No. 03-0645.
    Supreme Court of Iowa.
    Aug. 11, 2004.

      William H. Roemerman of Crawford, Sullivan, Read & Roemerman, P.C., Cedar Rapids, for appellant.
    Christopher L. Bruns of Elderkin & Pir-nie, P.L.C., Cedar Rapids, for appellee.
   STREIT, Justice.

A county attorney, concluding a police officer had lied to DCI agents concerning his wife’s death, told a police chief and a mayor he would not prosecute any cases involving the officer. The officer was fired from two positions, and sued the county attorney for defamation, interference with employment contract, and unlawful dissemination of “intelligence data.” The district court dismissed the case, ruling the county attorney was absolutely immune from suit. Because we find the county attorney was not engaged in an activity intimately associated with the judicial phase of the criminal process but instead was merely advising the relevant authorities on how future criminal' prosecutions should be conducted, we reverse and remand for further proceedings.

I. Facts and Prior Proceedings

Glenn and Christel Beck, a married couple, lived in rural Louisa County. Glenn Beck (Beck) worked as a police officer for two Muscatine County towns, West Liberty and Nichols. The present controversy stems from Christel’s death at the couple’s home in June 1999.

Christel, a quadruple amputee, suffered from a heart condition and depression. She took fourteen different prescription medicines each day, which Beck managed. She had misused these drugs to attempt suicide on a number of occasions. Beck and Christel had openly talked about suicide. Beck claims Christel told him that if he ever found her in a comatose state, he should not call for help, but instead simply “put her back into bed and let her sleep it off.”

In May 1999, Christel dragged herself out of bed and managed to knock bottles of her medications off a nearby kitchen table onto the floor. After ingesting a large number of pills, Christel lost consciousness. When Beck discovered her, he did not call for medical assistance but instead waited to see if she would wake up. Christel did not fully recover until three days later.

According to Beck, similar circumstances attended Christel’s death. Beck claims he left for work on the evening of June 6, 1999, leaving bottles of pills on the kitchen table again, by accident. Upon returning the next morning, Beck found Christel unconscious — but alive — on the floor in a pool of water. In the water, he also found some partially dissolved pills.

Beck put Christel back in bed. He stayed with her the entire day, but did not call for medical help even though he knew it was possible she might die. Instead, Beck left a message with Christel’s visiting nurse in an attempt to convince her not to drop by that day as scheduled. Beck did not want the nurse to come to the house because he knew she would summon help.

When the nurse called back, Beck covered up the voice receiver to create a pause on the phone. Although Beck denied he simulated a conversation with his unconscious wife, he admits that the nurse apparently assumed a conversation was taking place. According to an Iowa Department of Criminal Investigation (DCI) report, the nurse claimed Beck told her Christel had symptoms of the flu and was concerned she would spread the infection to visitors. Thinking she had heard Chris-tel’s voice in the background, the nurse agreed to postpone her visit.

Sometime during the day, an aid worker dropped by the Beck home to give Christel a bath. The aid worker saw Christel, but agreed with Beck to pretend that she had never come to the house. They decided to lie if anyone asked.

Christel died later that day. Beck called the authorities, and several agents from the DCI investigated. Beck lied to the agents, telling them that no one had come to visit the house that day. He later recanted.

In December 1999, the Louisa County Attorney informed Beck that he would not be criminally charged in his wife’s death. In March 2000, the Louisa County Attorney wrote again, stating that the DCI agents were unhappy with his decision and had pursued the matter with the Attorney General’s Office. The Attorney General, however, also decided not to file charges.

Meanwhile, back in the summer of 1999 a DCI agent had told an Assistant Musca-tine County Attorney about the investigation into Christel’s death and Beck’s actions. In spring 2001, the assistant learned West Liberty had hired Beck as a full-time police officer. Anxious about calling Beck as a witness in prosecutions, the assistant took his concerns to his supervisor, Richard Phillips, the Muscatine County Attorney.

Phillips told the assistant to obtain and review the DCI’s investigative files. The assistant became convinced Beck had lied to the DCI and had tried to get others to lie on his behalf. He also thought physical evidence at the crime scene was inconsistent with Beck’s version of events and Beck “had not told the DCI agents what really happened.”

After consulting his assistants, Phillips wrote, on county attorney letterhead, the following letter to Beck’s supervisor at the West Liberty Police Department in July 2001:

Dear Chief Gerstbrein,
This letter will serve to inform you of the serious concerns I have relating to the potential use of Off. Glenn Beck as a witness in prosecutions in Muscatine County. As you may know prosecutors have a specific obligation to disclose certain types of information to defense counsel under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). We are required to disclose evidence favorable to the accused in the criminal case. This information would include evidence that would mitigate the guilt or culpability of the defendant and information that could be used to impeach the credibility of a state’s witness. This office is aware of the circumstances surrounding the death of Off. Beck’s wife, including Off. Beck’s conduct during the investigation. If Off. Beck was called upon to testify in a criminal case we will be forced to reveal to the defense the specifics of his actions in that matter, including the fact that he lied to DCI special agents during the investigation and that his version of events, if believed, could subject him to prosecution under Iowa Code § 707A.2 [ (assisted suicide) ].
As the chief law enforcement officer for Muscatine County I am obligated to weigh the Brady/Giglio requirements set forth above against the potential damage that will be done to a prosecution when the issue becomes Glenn Beck’s conduct rather than the defendant’s. I will not jeopardize these future prosecutions as the impact on crime victims and the orderly administration of justice would be far too great.
You are therefore informed that this office will not accept for prosecution any case where Off. Beck will be expected to testify. Please govern yourself accordingly.
Very truly yours,
Richard R. Phillips [signed]
Muscatine County Attorney

The next month, Phillips sent a nearly identical letter to the mayor of Nichols, where Beck was also employed part-time as police chief. As a result of Phillips’s letters, Beck was fired from both positions.

Beck sued Phillips for defamation, interference with employment contract, and unlawful dissemination of “intelligence data” under Iowa Code chapter 692. The district court granted Phillips’s motion for summary judgment. The court ruled Phillips was entitled to absolute immunity for his decision not to prosecute cases where Beck would be a witness.

Beck appealed. Beck maintains the question is not whether Phillips is entitled to immunity for his decision not to prosecute, but rather whether some of Phillips’s statements in the letter fall outside the scope of this immunity. Beck also argues his unlawful dissemination of “intelligence data” claim falls outside the scope of the immunity because in enacting chapter 692 the legislature intended to carve out an exception to the general rule of prosecuto-rial immunity.

Phillips defends the district court ruling for the reasons expressed therein. In the alternative, he contends the ruling may be upheld because (1) Phillips’s allegations were true and (2) the unlawful dissemination statute does not provide a cause of action in Beck’s case.

II. Standard of Review

We review a grant of a motion for summary judgment for errors at law. Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 677 (Iowa 2004). Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; accord Iowa R. Civ. P. 1.981(3) (2002).

III. Merits

A. The Limits of Absolute Prosecu-torial Immunity

We have repeatedly held prosecutors are entitled to absolute immunity for quasi-judicial activities, i.e., activities “intimately associated with the judicial phase of the criminal process.” See Hike v. Hall, 427 N.W.2d 158, 159 (Iowa 1988) (quoting Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128, 143 (1976)); Burr v. City of Cedar Rapids, 286 N.W.2d 393, 394 (Iowa 1979); Blanton v. Barrick, 258 N.W.2d 306, 309 (Iowa 1977). Consistent with federal precedent, we have explained the reason for the rule in part as follows:

“The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.”

Blanton, 258 N.W.2d at 309-10 (quoting Imbler, 424 U.S. at 422-23, 96 S.Ct. at 992-93, 47 L.Ed.2d at 139); cf. Clinton v. Jones, 520 U.S. 681, 693, 117 S.Ct. 1636, 1643, 137 L.Ed.2d 945, 960 (1997) (“In cases involving prosecutors, legislators, and judges we have repeatedly explained that the immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability.”). While these quasi-judicial activities to which absolute immunity attaches may occur inside or outside the courtroom, “[a] prosecutor’s administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 2615, 125 L.Ed.2d 209, 226 (1993). Thus, the immunity “is a function of the specific activities engaged in by a prosecutor, and does not attach simply by virtue of the civil defendant’s status as a prosecutor.” Hike, 427 N.W.2d at 159.

Because we apply a functional analysis, immunity attaches even when the prosecutor is alleged to have acted for improper reasons. See id. at 159 (criminal charges used as leverage in settlement negotiations for a client in an associated civil matter); Burr, 286 N.W.2d at 396 (maliciously filing a complaint without probable cause); Blanton, 258 N.W.2d at 311 (malicious institution of criminal proceedings against a .man whose wife the prosecutor was representing in their divorce). Immunity, after all, is not for the protection of the prosecutor personally, but for the benefit of the public. Cf. Imbler, 424 U.S. at 418 n. 12, 96 S.Ct. at 989 n. 12, 47 L.Ed.2d at 136 n. 12 (explaining analogous rule for judges). Although genuinely wronged plaintiffs are left without recourse in a civil suit for damages, the alternative would disserve the broader public interest. Id. at 427, 96 S.Ct. at 993, 47 L.Ed.2d at 142. “It would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.” Id. at 427-28, 96 S.Ct. at 993-94, 47 L.Ed.2d at 142; cf. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949) (Hand, J.) (“As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done ... than to subject those who try to do their duty to the constant dread of retaliation.”).

That said, the prosecutor “seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.” Burns v. Reed, 500 U.S, 478, 486, 111 S.Ct. 1934, 1939, 114 L.Ed.2d 547, 558 (1991). “The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties.” Id. at 486-87, 111 S.Ct. at 1939, 114 L.Ed.2d at 558. We will be sparing in our recognition of absolute immunity and will not extend it further than its justification warrants. Cf. id. at 487, 111 S.Ct. at 1939,114 L.Ed.2d at 558-59.

The decision to bring criminal charges is clearly “intimately associated with the judicial phase of the criminal process,” and therefore the common law of Iowa affords prosecutors absolute immunity for deciding whether to do so. Hike, 427 N.W.2d at 159 (prosecutor immune for deferring charges); Burr, 286 N.W.2d at 396 (signing complaint and making requisite oath or affirmation); Blanton, 258 N.W.2d at 311 (initiating charges); cf. Imbler, 424 U.S. at 430-31, 96 S.Ct. at 995, 47 L.Ed.2d at 143-44 (initiating and pursuing criminal charges). Although we have not heretofore had occasion to decide the question, we also think this legal principle implies a correlative absolute immunity for a prosecutor’s decision not to bring charges. This decision is consistent with the weight of authority. See, e.g., Roe v. City & County of San Francisco, 109 F.3d 578, 583 (9th Cir.1997); Harrington v. Almy, 977 F.2d 37, 40 (1st Cir.1992); Schloss v. Bouse, 876 F.2d 287, 290 (2d Cir.1989);. Dohaish v. Tooley, 670 F.2d 934, 938 (10th Cir.1982); see also Turack v. Guido, 464 F.2d 535, 535 (3d Cir.1972); Coon v. Froehlich, 573 F.Supp. 918, 920-21 (S.D.Ohio 1983). The Ninth Circuit, for example, concluded with “little difficulty” prosecutors enjoyed absolute immunity for the decision not to prosecute cases in which a police officer was involved, because

public policy considerations make an even stronger argument for absolute immunity for failure to prosecute than for actual prosecution. The decision to charge a defendant with a crime may well be the most critical determination in the entire prosecutorial process. That decision alone may result in the loss of a defendant’s freedom pending trial and certainly will confront him or her with the economic and social costs of a trial. There can be no question that the nature of the decision not to prosecute is “intimately associated with the judicial phase of the criminal process.”

Roe, 109 F.3d at 583. Similarly, the First Circuit concluded a prosecutor’s decision not to pursue an officer’s cases fell “squarely within the scope of [the] immunity.... [T]he interest that prosecutorial immunity is designed to protect — independence in the charging decision — is implicated whether the decision is to initiate a prosecution or decline to do so.” Harrington, 977 F.2d at 40.

As these same courts have also recognized, the mere fact a prosecutor makes a decision with respect to a class of cases — present and future — as opposed to merely a present case is immaterial, and does not render the action “administrative” as opposed to “quasi-judicial,” i.e., absolutely immune. See id. at 42 n. 3; Roe, 109 F.3d at 583-84. “[T]here is no meaningful distinction between a decision on prosecution in a single instance and decisions on prosecutions formulated as a policy for general application.” Roe, 109 F.3d at 583 (citing Haynesworth v. Miller, 820 F.2d 1245, 1269 (D.C.Cir.1987)). In both instances, “the prosecutor’s decision relates directly to the initiation of prosecutions .... [and t]he prosecutor is fulfilling his role as the officer in the judicial process charged with the responsibility of determining which prosecutions will best serve the public interest.” Harrington, 977 F.2d at 42 n. 3.

For all the foregoing reasons it is manifest that Phillips is entitled to absolute immunity for the decision not to prosecute the class of cases in which Beck would appear as a witness. To hold otherwise would interfere in a prosecutor’s exercise of independent judgment. Such a ruling would thereby undermine one of the recognized policies which give rise to the immunity, insofar as “[a] prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court.” Burr, 286 N.W.2d at 394 (quoting Imbler, 424 U.S. at 424, 96 S.Ct. at 992, 47 L.Ed.2d at 140). And under the asymmetrical immunity forged by that holding, the public trust would clearly suffer. See Blanton, 258 N.W.2d at 309-10.

Nonetheless, on the facts of this case we find the action about which Beck complains — Phillips’s writing of the letters to the police department and the mayor, as opposed to his decision not to prosecute — was not entitled to absolute immunity. In a number of cases, courts have held a prosecutor’s mere act of advising police is not a function to which absolute immunity attaches. See, e.g., Burns, 500 U.S. at 492-96, 111 S.Ct. at 1942-45, 114 L.Ed.2d at 562-65 (prosecutor not entitled to absolute immunity when he advised police hypnosis was an acceptable investigative technique). Likewise, a prosecutor is not entitled to absolute immunity when performing an administrative function. See, e.g., D’Iorio v. County of Delaware, 447 F.Supp. 229, 235 (E.D.Pa.1978), rev’d on other grounds, 592 F.2d 681 (3d Cir.1978) (district attorney fired employee after receipt of pictures showing employee in the company of known criminals, for fear they would put office in compromising position; action fell outside prosecutor’s absolute immunity and only qualified privilege was available). Determining what constitutes advice or administrative activity, as opposed to a quasi-judicial activity, is often difficult and will depend on the facts and circumstances of each case. See Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33, 47 L.Ed.2d at 144 n. 33; Prince v. Hicks, 198 F.3d 607, 612 (6th Cir.1999). In this case, however, it strains reason too far to characterize Phillips’s writing of his letters as an activity “intimately associated with the judicial phase of the criminal process.” In writing these letters, Phillips was not deciding not to prosecute a case, but instead merely advising local law enforcement authorities on how future criminal prosecutions should be conducted and how his office would deal with those cases. Implicitly, Phillips was also performing an administrative function, insofar as he was telling lower-level law enforcement officers how to deal with a potential problem employee in light of his policy. Phillips was acting less as an advocate for the State, and more as the county’s law enforcement officer, telling lower-level officials how future prosecutions should be conducted. Indeed, Phillips closed his letters by exhorting each of Beck’s supervisors to “govern yourself accordingly” — subtly but unmistakably advising them not only how to handle future cases, but also Beck’s future employment.

Because we apply a functional test, Phillips is not entitled to absolute immunity simply because of his status as a prosecutor. Hike, 427 N.W.2d at 159. Phillips’s letters did not, in themselves, “involve the initiation of a prosecution, the presentation of the state’s case in court, or actions preparatory for these functions.” Cf. Buckley, 509 U.S. at 278, 113 S.Ct. at 2618, 125 L.Ed.2d at 229 (prosecutor not entitled to absolute immunity for holding a press conference announcing indictment of plaintiff). Although “[ajlmost any action by a prosecutor ... could be said to be in some way related to the ultimate decision whether to prosecute,” absolute immunity is not that expansive. See Burns, 500 U.S. at 495, 111 S.Ct. at 1944, 114 L.Ed.2d at 564. Even if we were to assume that Phillips’s actions were “an integral part of a prosecutor’s job” or “serve[d] a vital public function,” in so acting Phillips was in no different position than any other administrator. Cf. Buckley, 509 U.S. at 278, 113 S.Ct. at 2619, 125 L.Ed.2d at 229. For this reason we are convinced the doctrine of qualified immunity, which applies in these sorts of situations regardless of the defendant’s status as a prosecutor, is sufficient to protect the public interests at stake. Cf. id.

We conclude Phillips has not met his burden in showing he was engaged in an activity intimately associated with the judicial phase of the criminal process when writing the letters to Beck’s supervisors, and therefore is not entitled to absolute immunity. See Burns, 500 U.S. at 486, 111 S.Ct. at 1939,114 L.Ed.2d at 558.

B. Alternative Defenses

In his motion for summary judgment, Phillips lodged several alternative defenses, including (1) truth and (2) lack of a cause of action under the unlawful dissemination statute. The district court did not acknowledge these arguments and did not rule upon them. In his answer and a subsequent pleading, Phillips also claimed he was entitled to a qualified immunity, insofar as he made a good faith statement on an issue about which he had a duty. See Buckley, 509 U.S. at 273, 113 S.Ct. at 2616, 125 L.Ed.2d at 226 (“when a prosecutor ‘functions as an administrator rather than as an officer of the court’ he is entitled only to qualified immunity”) (quoting Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33, 47 L.Ed.2d at 144 n. 33). See generally Barreca v. Nickolas, 683 N.W.2d 111, 121 (Iowa 2004) (discussing qualified privilege in defamation cases and adopting New York Times definition of actual malice). On appeal, Phillips only reasserts the two arguments raised in his motion for summary judgment. We therefore do not decide whether Phillips is entitled to a qualified immunity.

As for Phillips’s other defenses, in a number of cases we have upheld a district court ruling on an alternative ground, provided it was urged in that court. De-Voss v. State, 648 N.W.2d 56, 61 (Iowa 2002); see, e.g., Interstate Power Co. v. Ins. Co. of N. Am., 603 N.W.2d 751, 756-58 (Iowa 1999); Regent Ins. Co. v. Estes Co., 564 N.W.2d 846, 848-49 (Iowa 1997); Krohn v. Judicial Magistrate Appointing Comm’n, 239 N.W.2d 562, 563 (Iowa 1976). Our language in those cases clearly indicates, however, the decision to do so remains within our discretion. See, e.g., De-Voss, 648 N.W.2d at 62 (noting “we have used language to the effect that ‘we may affirm the ruling on a proper ground urged but not relied upon by the trial court’ ” (emphasis added) (quoting Krohn, 239 N.W.2d at 563)); Hawarden, 589 N.W.2d at 252 (“we may affirm on any basis appearing in the record and urged by the prevailing party” (emphasis added, internal quotation omitted)). In this case, we think it is more appropriate to remand this case for further proceedings in the district court, where the arguments of the parties, as well as the record, can be more fully developed in light of our ruling.

IV. Conclusion

We reverse and remand for further proceedings. Although Phillips, as county attorney, is entitled to absolute immunity for his decision not to prosecute cases in which Beck was involved, he was not engaged in an activity intimately associated with the judicial phase of the criminal process when writing letters to Beck’s supervisors; instead, he was merely advising the relevant authorities on how future criminal prosecutions should be conducted. Summary judgment was not proper. We remand for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

      . Christel lost her limbs after a previous suicide attempt which resulted in her nearly freezing to death.

      . Prosecutors are not completely beyond reproach even when absolute immunity attaches. The doctrine does not foreclose professional discipline or criminal punishment. See Blanton v. Barrick, 258 N.W.2d 306, 311 (Iowa 1977); Imbler v. Pachtman, 424 U.S. 409, 428-29, 96 S.Ct. 984, 994, 47 L.Ed.2d 128, 142-43 (1976).

      . The decision whether to call or not to call a given witness clearly falls within the scope of the immunity. Mowbray v. Cameron County, 274 F.3d 269, 276-77 (5th Cir.2001); McNamara v. Hawks, 354 F.Supp. 492, 495 (S.D.Fla.1973); see Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33, 47 L.Ed.2d at 144 n. 33.

      . Beck also points to Phillips's statements that Brady and Giglio would require Phillips to disclose the DCI investigation in all criminal prosecutions involving Beck. Beck strenuously argues that Phillips's understanding of these two cases is wrong. The immunity, however, protects the prosecutor's professional evaluation, not its soundness. "Whether [the prosecutor's] assessment is accurate or not is immaterial.” Roe v. City & County of San Francisco, 109 F.3d 578, 584 (9th Cir.1997). "The judgment may be wrongheaded, but it is the prosecutor's to make free from damage actions ... in ... court.” Harrington v. Almy, 977 F.2d 37, 42 (1st Cir.1992). We express no opinion on the correctness of Phillips's understanding, as expressed in his letters, of his duties as a prosecutor to disclose evidence favorable to the accused. ‘


source: Caselaw Access Project

author: /s/Paul H. Anderson Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST John August KRUEGER, a Minnesota Attorney, Registration No. 211503.
    No. A04-303.
    Supreme Court of Minnesota.
    Aug. 24, 2004.
   ORDER

By order filed July 12, 2004 [686 N.W.2d 527], this court suspended respondent John August Krueger for 30 days, effective July 27, 2004. The suspension order authorized reinstatement by affidavit under Rule 18(f), Rules on Lawyers Professional Responsibility. Respondent has filed an affidavit stating that he has complied with the conditions imposed by the court and requests reinstatement. The Director of the Office of Lawyers Professional Responsibility has filed with this court an affidavit certifying that respondent has complied with the terms of the suspension order and that the Director’s Office does not object to reinstatement.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent John August Krueger is reinstated to the practice of law in the State of Minnesota effective August 26, 2004, subject to two years supervised probation as provided in this court’s July 12, 2004, order and subject to his satisfactory completion of the professional responsibility portion of the state bar examination by July 12, 2005.

BY THE COURT

/s/Paul H. Anderson Associate Justice


author: G. BARRY ANDERSON, Judge.

text:
    Michael MCDONOUGH, et al., Appellants, v. ALLINA HEALTH SYSTEM d/b/a Allina Hospitals & Clinics, et al., Respondents.
    No. A03-1636.
    Court of Appeals of Minnesota.
    Aug. 17, 2004.

      William A. Erhart, Erhart & Associates, L.L.C., Anoka, MN, and John W. Carey, Steven D. Emmings, Sieben, Grose Von Holtum & Carey, Ltd., Fairfax, MN, for appellants.
    Terence O’Loughlin, Carolin J. Nearing, Geraghty, O’Loughlin & Kenney, P.A., St. Paul, MN, for respondents.
    Considered and decided by PETERSON, Presiding Judge; ANDERSON, Judge; and PARKER, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

G. BARRY ANDERSON, Judge.

In this medical-malpracticé action, the district court held a Frye-Mack hearing and excluded appellants’ experts’ opinions because their opinions lacked a reliable and generally accepted scientific basis. Because appellants did not have expert testimony to support the medical-negligence claim, the district court granted summary judgment. Appellants argue that the district court erred. We affirm.

FACTS

In April 2000, Dr. Susan Evans diagnosed appellant Kari McDonough with multiple sclerosis. Dr. Evans is a neurologist and is McDonough’s treating physician. On October 16, 2001, Dr. Evans sent an order to Allina Infusion Therapy Services to administer an intravenous infusion of 200 mg/kg per day of immunoglobulin (“IVIg”) to McDonough for two days. Dr. Evans’s order did not specify the infusion rate at which the IVIg was to be infused.

Pharmacist Ceci Do, an employee of respondent Allina Health Systems, prepared a plan for the administration of the IVIg. Based on McDonough’s weight of approximately 200 pounds, Do calculated a plan for the administration of Baxter Gamma-gard 5% IVIg, which resulted in the infusion of a total of 400 ml over two and a half hours, starting at an infusion rate of 25 ml/hr and increasing at 15 minute intervals to 50 ml/hr, 75 ml/hr, 100 ml/hr, 150 ml/hr, 200 ml/hr, and then 250 ml/hr until the infusion was completed.

On October 17, 2001, Allina Home infusion nurse Patricia Beaver administered 400 ml of IVIg over approximately three and a half hours to McDonough. McDon-ough developed chills while the infusion rate was running at 150 ml/hr. Beaver stopped the infusion and called Do. Do advised Beaver to reduce the infusion rate to 125 ml/hr and see if the chills were still present at the lower rate. The infusion rate was slowed to 75 ml/hr and thereafter increased to 100 ml/hr until the end of the infusion. McDonough’s chills disappeared after the reduction of the infusion rate. At the end of the infusion, McDonough experienced a fever. Beaver instructed McDonough to obtain over-the-counter Tylenol and Benadryl and to take them 30 minutes before the infusion scheduled for the next day.

On October 18, 2001, Beaver administered the second day of infusion to McDon-ough. McDonough took Tylenol and Be-nadryl before the infusion and did not experience chills or fever during the infusion. Do’s plan for October 18 was for an infusion of 400 ml over four hours and 37 minutes. Do prepared the bag of IVIg to be infused on October 18 and placed a label on the bag stating, “DO NOT EXCEED MAX RATE OF 100 ML/HR DUE TO PATIENT’S INTOLERANCE TO HIGHER RATE.” Do testified that this schedule was meant as a suggested infusion rate for Beaver and that, in her opinion, it would have been appropriate for Beaver to use any infusion rate up to the maximum recommended by the manufacturer of 400 ml/hr as long as the patient was comfortable. Baxter’s recommended rate of infusion as set out in the package information sheet is as follows:

It is recommended that initially a 5% solution be infused at a rate of 0.5 mL/ kg/Hr. If infusion at this rate and concentration causes the patient no distress, the administration rate may be gradually increased to a maximum rate of 4 mL/kg/Hr. Patients who tolerate the 5% concentration at 4 mL/kg/Hr can be infused with the 10% concentration at 0.5 mL/kg/Hr. If no adverse effects occur, the rate can be increased gradually up to a maximum of 8 mL/kg/Hr.

The parties dispute how long the October 18 infusion actually lasted. Appellants contend that the infusion lasted approximately one hour and 45 minutes, with half infused during the last 15 minutes at a rate equal to or greater than 800 ml/hr. Beaver contends the infusion lasted two and a half hours. McDonough testified that she felt fine following the infusion and did not experience any adverse effects that day.

On October 19, 2001, McDonough awoke with a severe headache in the right temple area and was nauseated. An MRI showed that McDonough had suffered a stroke, causing an acute non-hemorrhagic infarction of the distribution of the right middle cerebral artery.

Appellants filed suit against respondents in August 2002, alleging that Beaver was negligent in performing the IVIg infusion by administering the IVIg at a rate beyond that authorized and ordered, and, as a result of this negligent infusion, McDon-ough suffered a stroke. Appellants claim that had Beaver followed the plan for infusion set out by Do, McDonough’s stroke would not have occurred. In support of appellants’ claims, appellants offered expert opinions from Dr. Evans and Rodney Richmond, a pharmacist retained by appellants.

Richmond opines that McDonough’s stroke was probably related to an infusion rate that exceeded the patient’s tolerance. Richmond bases his opinion on his use of an adverse-drug-reaction-probability-assessment tool, his interpretation of reports in the literature, the manufacturer’s recommendations, and the care plan prepared by the physician and pharmacist.

Dr. Evans is a board-certified neurologist and treats patients with IVIg, and she treats stroke victims. Dr. Evans has not published any articles related to the use of IVIg and its effects. Dr. Evans opines that McDonough’s stroke was directly caused by a rapid rate of infusion of IVIg on October 18, 2001. The primary basis for Dr. Evans’s opinion is that the chills and fever experienced by McDonough on October 17 were a warning of McDon-ough’s intolerance to the IVIg and an indication that McDonough might have a stroke if the rate of infusion on October 18 exceeded 100 ml/hr. Dr. Evans also bases her opinion on her own knowledge of abrupt-increased and rapid-infusion rates, on the medical tests performed on McDon-ough, and on her collaboration with colleagues. Some of the testing that Dr. Evans performed on McDonough to rule out other causes of the stroke included checking blood work, homocystine levels, and performing a spinal tap and MRI scan of the brain to check for vasculitis or sten-osis. An electrocardiogram showed a patent foramen ovale, but Dr. Evans conferred with the cardiologist to eliminate this as a cause. The medical literature that Dr. Evans primarily relies on is the Grillo study and the Baxter Alert.

After the incident at issue, a study by J.A. Grillo and others was published in the November 2001 issue of Neurology concerning use of rapid infusion of IVIg at rates reaching 800 ml/hr. The Grillo report notes 89 adverse events in 341 rapid infusions in 50 patients, 3.5% of which were considered “major.” Thereafter, Baxter sent a letter dated March 25, 2002, to health-care providers concerning the subject of “Thrombotic Events and Immune Globulin Intravenous.” The Baxter Alert states the following:

There is clinical evidence of a possible association between Immune Globulin Intravenous (Human) (IGIV) administration and thrombotic events.[] The exact cause of this is unknown; therefore, caution should be exercised in the prescribing and infusion of IGIV in patients with a history of cardiovascular disease or thrombotic episodes.
From both the medical literature and our internal pharmacovigilanee/quality assurance program, we continue to receive reports describing serious thrombotic (vascular occlusive) events possibly associated with the infusion of immune globulin intravenous (IGIV). Analysis of these events indicates that the etiology is complex and multi-variant and the cause of this association is not clearly understood.
However, our own recent analysis of serious adverse events reported via pharmacovigilance, has identified rapid infusion of immune globulin intravenous as a possible risk factor.
In the event where there is a possible risk of a thrombotic event, we strongly recommend that the infusion concentration be no more than 5%, and the infusion rate should be initiated no faster than 0.5 milliliter per kilogram body weight per hour and advanced slowly only if well tolerated to a maximum rate of 4 milliliter per kilogram body weight per hour. In other words, the rate of infusion and percent of the solution concentration should be flexible and targeted to the • safety of the patient rather than convenience.

The Baxter Alert also states that “chest pain, myocardial infarction, congestive cardiac failure, severe headache requiring hospitalization, pulmonary embolism and ‘transfusion related acute lung injury’ ... are serious events almost certainly directly related to the rapid infusion protocol (reaching as high as 800 ml/hr) in what is essentially an at-risk population.”

Respondents challenged the admissibility of the opinions of Dr. Evans and Richmond and moved to exclude their expert testimony. In support of respondents’ motion, they offered the testimony of neurologists Dr. Thomas Brannagan and Dr. Kenneth Gorson. Both doctors have published numerous articles on the use of IVIg and are nationally recognized as experts on IVIg and its adverse affects.

Dr. Brannagan testified that Beaver complied with the applicable standards of care and infused the IVIg at a rate that was reasonable and appropriate. Dr. Brannagan also opined that the chills and fever experienced by McDonough had no relation to her stroke. He explained that the mechanism of how IVIg causes stroke or other thromboembolic events is unknown, and medical science has only postulated a number of hypotheses concerning the mechanism.

Dr. Gorson also testified that Beaver’s administration of the IVIg was within the accepted standards of care. Dr. Gorson, a co-author of the Grillo study, explained that in his study involving 341 rapid infusions, there were no resulting strokes. Dr. Gorson also explained that the findings in the study do not provide evidence that rapid infusion up to 800 ml/hr is related to stroke or thromboembolic events, as distinguished from complications such as congestive heart failure related to the volume of IVIg. Dr. Gorson concluded that the chills and fever McDonough experienced probably represented an infusion-related side effect but that such side effects are not predictive of stroke or other thrombo-embolic events.

Both doctors testified that there is no reliable scientific evidence that proves with reasonable medical certainty that McDon-ough’s stroke was caused by the rate at which the IVIg was infused on October 18 or that infusion at a lower rate would not have caused McDonough’s stroke. They also testified that there is no generally reliable scientific evidence that the rate of infusion of IVIg causes stroke or other thromboembolic events and that it is not generally accepted by experts in the field that the rate of infusion causes stroke or other thromboembolic events. Both doctors testified that McDonough had a number of risk factors predisposing her to stroke,' including obesity, high blood pressure, a patent foramen ovale, migraine headaches, and a history of possible transient ischemic attack. The doctors explained that there is no way of knowing to what extent any of these risk factors may have contributed to McDonough’s stroke.

Respondents filed a motion to exclude appellants’ expert testimony and for summary judgment. After a Frye-Mack hearing, the district court determined that appellants’ experts’ opinions were not sufficiently established or generally accepted and did not have foundational reliability, and it granted respondents’ motion to exclude this testimony. The district court also concluded that without expert opinion, appellants failed to establish a prima facie case of medical negligence and granted respondents’ motion for summary judgment. This appeal followed.

ISSUES

I. Did the district court err or abuse its discretion in excluding appellants’ experts’ opinions?

II. Did the district court err in granting respondents’ motion for summary judgment?

ANALYSIS

I.

A. Frye-Mack Standard

Minnesota adheres to the Frye-Mack standard to determine the admission of expert testimony based on scientific techniques and principles. Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn.2000). Under this two-pronged standard, the proponent of scientific evidence must establish the proper foundation for admissibility by showing that the scientific theory is generally accepted in the applicable medical or scientific community, Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), and that the principles and methodology used are reliable. State v. Mack, 292 N.W.2d 764, 768 (Minn.1980). Whether a particular theory or technique satisfies the first prong as generally accepted in the relevant scientific or medical community is a question of law, which we review de novo. Goeb, 615 N.W.2d at 815. The second prong, that the theory is reliable and trustworthy based upon well-recognized scientific principles and independent validation, is reviewed under an abuse-of-discretion standard. Id.

The district court determined that appellants’ experts’ opinions are neither generally accepted nor reliable, and do not satisfy either prong of the Frye-Mack standard. As to reliability, appellants argue that their experts’ opinions should not have been excluded because medical opinion regarding causation, based on proper differential diagnosis, should be sufficiently reliable to satisfy Goeb, even without citing published studies. See, e.g., Kudobeck v. Kroger Co., 338 F.3d 856, 862 (8th Cir.2003) (stating that “there is no requirement ‘that a medical expert must always cite published studies on general causation in order to reliably conclude that a particular object caused a particular illness’ ”) (quoting Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir.1999)); see also Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262-63 (4th Cir.1999) (stating that a reliable differential diagnosis alone provides valid foundation for causation opinion).

But if respondents “point[] to a plausible alternative cause and the doctor offers no explanation for why he or she has concluded that was not the sole cause, that doctor’s methodology is unreliable.” Heller, 167 F.3d at 156 (quotation omitted); see also Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1209 (8th Cir.2000) (excluding treating physician’s causation opinion because differential diagnosis did not properly rule out all other possible causes).

Here, Dr. Brannagan explained numerous hypotheses concerning the mechanism by which IVIg may cause stroke or other thromboembolic events, other than the rate of infusion, and noted certain risk factors associated with McDonough that could have caused her stroke. When asked why certain of these hypotheses were not factors in McDonough’s case, Dr. Evans explained why some were excluda-ble, did not address others, and only stated, “I still don’t feel it’s a factor” and a conclusory “no” when asked whether mi-crolevel spasms or a transient ischemic event or accident could have caused Mc-Donough’s stroke, with no further explanation. Because the differential diagnosis of Dr. Evans did not rule out all other hypotheses, or at least explain why the other conceivable causes are excludable, her differential diagnosis is not sufficiently reliable to be used for the purpose of proving causation. See Heller, 167 F.3d at 156; see also Lauzon v. Senco Prods., Inc., 270 F.3d 681, 694 (8th Cir.2001) (“After discounting obvious alternatives through scientific testing ... [appellant] need only be able to explain why other conceivable causes are excludable.”).

In Kudabeck, the Eighth Circuit allowed a treating chiropractor’s opinion to be admitted based on a differential diagnosis. 338 F.3d at 861-63. But, significantly, there was no independent analysis challenging the chiropractor’s conclusions as suspect, and no medical experts testified disputing the chiropractor’s theory. Id. at 859, 861. In contrast, here, while Dr. Evans did perform various medical tests to attempt to rule out causes of McDonough’s stroke other than the infusion rate, respondents disputed the differential diagnosis by calling medical experts to testify challenging Dr. Evans’s theory.

Appellants’ experts further rely on the Grillo report and the Baxter Alert to show that there is a direct relationship between infusion rates and strokes. But out of the 50 patients infused at high rates in the Grillo study, not one suffered a stroke. Also, we note that the Baxter Alert was not distributed until well after the infusion at issue in this case. Even so, these two pieces of literature are at best equivocal as to a direct relationship between infusion rates and strokes and therefore at most demonstrate that there is not yet a general consensus in the scientific community whether the infusion of IVIg is related to stroke or other thromboembolic events. Coincidence is not causation, and the testimony from both of respondents’ experts confirms that there is no reliable scientific evidence that the rate of infusion of IVIg causes stroke or other thromboembolic events and that Dr. Evans’s theory is not generally accepted by experts in the field.

Furthermore, Dr. Evans testified that the exact mechanism by which IVIg causes major side effects such as stroke is not known with scientific certainty and that medical science is attempting to understand what causes minor side effects such as chills and fever. Dr. Evans also admitted that the “viscosity” theory that she relies on is only one “postulate” or “hypothesis” and that her hypotheses have not yet been either scientifically established or generally accepted by experts in the field. In addition, Dr. Evans acknowledges that because it has not been scientifically established what causes either minor side effects such as chills or major side effects such as stroke, it has not been scientifically established that the cause of minor side effects is also a cause of major side effects. Because the record reflects that appellants’ experts’ opinions are not supported by generally accepted research and objective data, or are generally accepted by the medical or scientific communities, appellants did not meet their burden under the Frye-Mack standard. Therefore, we conclude that the district court did not err in granting respondents’ motion to exclude appellants’ experts’ opinions.

B. Rate-of-Infusion

Appellants also argue that the district court erred in precluding the continued questioning of Dr. Brannagan regarding the assumption that 148.75 ml of IVIg was infused in the last 15 minutes on October 18, which would have established that the rate of infusion was 875 ml/hr at that time-not a generally accepted rate. “[Ejvidentiary rulings, including a decision to exclude expert testimony, lie within the sound discretion of the [district] court.” Benson v. N. Gopher Enters., 455 N.W.2d 444, 445 (Minn.1990). Absent a clear abuse of discretion, this court will not reverse a district court’s evidentiary ruling. Id. at 446.

Even if appellants’ representation of the facts is true, appellants’ evidentiary argument is irrelevant. Assuming that the IVIg was infused at a rate greater than 800 ml/hr, appellants still did not produce any evidence showing that it is generally accepted by the medical or science communities that such a high rate of infusion causes strokes. Instead, Dr. Evans conceded that experts in the field do not generally accept her theory. Therefore, even assuming that the IVIg was infused at an extremely high rate, appellants still did not meet their burden under the Frye-Mack standard, and the district court did not abuse its discretion in making the decision to sustain respondents’ objection to appellants’ line of questioning.

II.

“On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). A motion for summary judgment shall be granted when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. Whether the district court properly granted summary judgment on the issue of medical causation is determined by a review of the evidence in the light most favorable to the party against whom summary judgment was granted. Goeb, 615 N.W.2d at 816-17.

In actions against health-care providers, a prima facie case of malpractice is established by showing “(1) the standard of care recognized by the medical community as applicable to the particular defendant, (2) that the defendant departed from that standard, and (3) that the defendant’s departure was a direct cause of the plaintiffs injuries.” Fabio v. Bellomo, 504 N.W.2d 758, 762 (Minn.1993). As to the third element, a plaintiff must present competent expert testimony showing that the defendant’s action or inaction was a direct cause of the injury. Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 428 (Minn.2002). A mere possibility of causation is not enough to sustain a plaintiffs burden of proof. Walton v. Jones, 286 N.W.2d 710, 715 (Minn.1979). The failure to provide such admissible expert testimony results in the failure to establish an essential element of that party’s case, and the moving party is entitled to summary judgment as a matter of law. Goeb, 615 N.W.2d at 817.

Here, appellants cannot establish a pri-ma facie case of medical negligence without competent -expert testimony as to the cause of McDonough’s stroke. Because we conclude that -the district court did not err in excluding the opinions of appellants’ experts, summary judgment was also appropriate.

DECISION

The district court did not err or abuse its discretion in excluding appellants’ experts’ opinions and did not err in granting respondents’ motion for summary judgment.

Affirmed.

      . A patent foramen ovale is an opening between the upper two chambers of the heart that has failed to close after birth. Stedman’s Medical Dictionary 606 (25th ed.1990).

      . A thrombus is ''[a] fibrinous clot formed in a blood vessel or in a chamber of the heart.” The American Heritage Dictionary of the English Language 1802 (4th ed.2000). Embolic means "caused by [a mass, such as an air bubble or a blood clot, that travels through the bloodstream and lodges so as to obstruct a blood vessel].” Id. at 583. Therefore, thrombotic or thromboembolic events are processes that can cause clots that travel and can cause damage to tissues (i.e., strokes or heart attacks).

      . A differential diagnosis "eliminates the possibility of competing causes or confounding factors.” Goeb, 615 N.W.2d at 815. "In performing a differential diagnosis, a physician begins by 'ruling in’ all scientifically plausible causes of the [patient’s] injury. The physician then 'rules out’ the least plausible causes of injury until the most likely cause remains.” Glastetter v. Novartis Pharms. Corp., 252 F.3d 986, 989 (8th Cir.2001).

      . Because we conclude that the differential diagnosis of Dr. Evans is inadequate to establish causation here, and thus appellant is unable to meet the requirements of the Frye-Mack test as set out by the Minnesota Supreme Court, we do not reach appellants’ argument that a differential diagnosis, standing alone, is sufficient to meet the Frye-Mack standard.


author: FORSBERG, Judge.

text:
    In the Matter of the Petitions for Approval of Settlement and Distribution of Wrongful Death Proceeds for the Next of Kin of Marcia Wellstone MARKUSON, Mary Alice McEvoy, Thomas Henry Lapic and William Michael McLaughlin, Decedents.
    No. A04-185.
    Court of Appeals of Minnesota.
    Aug. 24, 2004.

      Bruce W. Larson, Wayzata, MN, for appellant Special Compensation Fund.
    Michael V. Ciresi, Roberta B. Walburn, Vincent J. Moccio, Philip Sieff, Robins Kaplan Miller & Ciresi L.L.P., Minneapolis, MN, for respondents trustees.
    Considered and decided by SCHUMACHER, Presiding Judge, HALBROOKS, Judge, and FORSBERG, Judge.
   OPINION

FORSBERG, Judge.

The Special Compensation Fund (the fund) appeals from a district court order determining the amount of its subrogation claim for workers’ compensation paid or to be paid after the deaths of four employees of the Wellstone for Senate Campaign. See Minn.Stat. § 176.061, subd. 6 (2002) (setting out statutory formula to determine how settlement proceeds are to be divided between employee’s dependents and the fund). The district court determined that the fund was entitled to $200,000 from the wrongful-death settlement proceeds received by respondents, who are trustees for the families of the deceased employees.

Because the district court did not abuse its discretion or clearly err when it reduced the fund’s subrogation claim by one-third for the reasonable costs of collection, even though the trustees’ actual fees and costs were only 17%, and when it ruled that the fund did not meet its burden of proof to establish that the youngest dependents of two of the deceased employees would go to school beyond the age of 18, we affirm on those issues. Because the district court misapplied the statutory formula when it reduced the amount of the fund’s subrogation claim, rather than the amount of the wrongful-death settlement, by 60% to account for nonrecoverable damages, we reverse on that issue and remand to the district court to recalculate the fund’s subrogation claim in a manner consistent with this opinion.

FACTS

On October 25, 2002, a chartered plane crashed outside Eveleth, Minnesota, killing all eight people aboard, including Paul and Sheila Wellstone; two crew members; and four employees of the Wellstone for Senate Campaign: Marcia Wellstone Markuson, Mary McEvoy, Thomas Lapic, and William McLaughlin. Because the campaign failed to carry workers’ compensation insurance, the responsibility for providing benefits to the dependents of these four employees was assumed by the fund. See Minn.Stat. § 176.183 (2002).

In February 2003, trustees were appointed for the families of each of the six passengers to pursue wrongful-death claims against the charter company. The trustees settled the claims on a Piemnger basis with the company and its affiliates. The trastees thereafter filed petitions in district court to approve the settlements and distribute the settlement proceeds. The petitions were approved on October 13, 2003, with money placed in escrow, subject to resolution of the fund’s subrogation claim.

The fund and the trustees entered into a stipulation setting out the issues and evidence to be presented at a hearing to determine the amount of the fund’s subro-gation claim. The parties agreed that as of the date of stipulation, the families had received $161,091 in workers’ compensation benefits, the fund had been reimbursed $661,875.87 by the campaign, and the trustees’ attorney fees and costs amounted to 17% of the third-party wrongful-death proceeds.

The parties further agreed to submit a number of issues to the district court, only three of which are involved in this appeal: (1) under Henning v. Wineman, 306 N.W.2d 550 (Minn.1981), what is the appropriate allocation “of the wrongful death settlements” between recoverable and nonrecoverable damages considering the trustees’ claim that “the settlements do not fully compensate” the families for their respective damages; (2) what is the present value of the future workers’ compensation benefits to be paid by the fund to the Markuson and McEvoy families; and (3) what is the amount to be deducted for the costs of collection from the portion of the wrongful-death settlements “allocated by the Court as Recoverable damages[?]”

In memoranda submitted to the district court prior to the hearing, the parties each proposed calculations of the fund’s subro-gation claim. The trustees calculated the claim at $482,726, subject to a further reduction not specifically enumerated by the trustees based on a consideration of “a fair reduction for the lack of full recovery of damages.” The fund calculated that its subrogation claim totaled more than $1.13 million.

On December 10, 2003, the district court issued an order determining that the fund was entitled to receive $200,000 from the settlement proceeds. The court calculated the fund’s total exposure at $728,369. The court reached this figure by finding that the present value of future benefits payable totals $1,289,153, a figure based on the assumption that the youngest children of two of the decedents will not continue with school beyond the age of 18 and that also includes $161,091 for past benefits paid. The court reduced this amount by $661,875 and $60,000, for amounts the fund received from the campaign and for future benefits payable to the three children of Markuson’s husband, who are not entitled to share in the wrongful-death settlement proceéds. The court further reduced this amount ($728,369) by one-third, or $240,362, for attorney fees, thus decreasing the fund’s subrogation claim to $488,007.

As a final issue, the district court considered “whether or not [this amount, $488,007,] should be reduced because the next-of-kin of the decedents in this matter have not received a full recovery.” The court continued:

It could easily be said that no amount of money could ever fully compensate the next-of-kin of these decedents for the loss that they have suffered. That being said, substantial settlements were received in these matters. However, there remains the issue under Henning v. Wineman, 306 N.W.2d 550 (Minn.1981) for this Court to allocate the amount of damages under these wrongful death settlements that are recoverable versus nonrecoverable under the worker’s compensation act.

The district court found that “it would be fair and reasonable to attribute approximately 60 percent of the wrongful death settlements for purposes of these proceedings to nonrecoverable damages and approximately 40 percent to recoverable damages.” The court concluded that the fund was entitled to recover only 40% of its subrogation claim of $488,007, or approximately $200,000, from the wrongful-death settlement proceeds.

The fund appeals.

ISSUES

1. Did the district court misapply the statutory formula set out in Minn.Stat. § 176.061, subd. 6 (2002)?

2. Did the district court abuse its discretion by giving the trustees credit for attorney fees and costs equal to one-third, or 33-1/3%, when the trustees’ actual fees and costs were only 17%?

3. Did the district court clearly err by finding that the evidence was insufficient to show that the youngest dependents of two of the decedents would not continue with school beyond the age of 18?

ANALYSIS

I.

The fund argues that the district court erred by failing to follow the statutory formulas set out in Minn.Stat. § 176.061 (2002) and modified by Henning v. Wineman, 306 N.W.2d 550, 552 (Minn.1981). Issues involving the correct application of a statute are questions of law, which we review de novo. See Drake v. Reile’s Transfer & Delivery, Inc., 613 N.W.2d 428, 431 (Minn.App.2000).

An employer, in this case-the fund, is subrogated to an employee’s rights against a third-party tortfeasor if the employee receives workers’ compensation benefits. Minn.Stat. § 176.061, subd. 3 (2002). When the employee obtains either a judgment or a settlement from the tortfeasor, the fund may recover its subrogated share in accordance with the statutory formula set out in Minn.Stat. § 176.061, subd. 6. The formula generally gives an employee the right to receive one-third of the amount remaining after deduction of reasonable costs. Id.

The formula, however, does not require a district court to allocate settlement proceeds between damages that are recoverable and nonrecoverable under the workers’ compensation statutes. In Henning, 306 N.W.2d at 552, the supreme court gave an employee the option either to apply the statutory formula to the entire settlement amount or to petition the district court to allocate the proceeds between recoverable and nonrecoverable damages and to then apply the statutory formula only to that part of the settlement allocated to recoverable damages. See Drake, 613 N.W.2d at 432.

In this case, the trustees opted for a Henning allocation. But rather than allocating the settlement proceeds received by the families between recoverable and nonrecoverable damages, the district court first calculated the value of the fund’s sub-rogation claim and then, citing Henning, reduced that claim by 60% to reflect consideration of nonrecoverable damages. In so doing, the district court misapplied Henning and the statutory formula.

Assuming acceptance of the district court’s allocation between nonrecoverable and recoverable damages (60% and 40%, respectively), a proper application of Hen-ning would result in recoverable damages (40% of the settlement proceeds, after deduction of reasonable costs of collection of one-third) far in excess of any amount claimed by the fund to satisfy its subrogation claim. The purpose of allocating damages under Henning is to limit a subrogation claim to that portion of the proceeds allocated to recoverable damages. Here, the fund calculates its subrogation claim at $466,913, given acceptance of the district court’s other rulings regarding the reasonable costs of collection (one-third, rather than 17%); the present value of past and future benefits ($1,450,244, which is based on the assumption that the two youngest children will not continue in school beyond the age of 18); and consideration of other payments already received by the fund from the campaign ($661,875 and $28,000) and amounts payable to dependents not considered heirs but entitled to wrongful-death settlement proceeds ($60,000). The district court erred by taking the fund’s subrogation claim ($466,913) and reducing it further by 60% for nonrecoverable damages, for a final subrogation claim of $200,000.

On appeal, the trustees argue that the district court reduced the fund’s subro-gation claim by 60% to account for the lack of full recovery by the families. But the trustees’. argument is flawed in several respects.

•First, the district court’s memorandum fails to support the trustees’ claim that the court agreed that .the families were not fully compensated by the settlement. The district court explicitly stated:

The final issue raised for the Court’s consideration is whether or not the amount sought for recovery by the Special Compensation Fund should be reduced because the next-of-kin of the decedents in this matter have not received a full recovery. It could easily be said that no amount of money could ever fully compensate the next-of-kin of these decedents for the loss that they have suffered. That being said, substantial settlements were received in these matters.

These statements negate any assertion that the court found a lack of full recovery in this case. And, as the fund notes, the record fails to support a finding that the families were undercompensated; at various points in these proceedings, both parties and the district court described the settlements as substantial or exceptional. Thus, the record fails to support the trustees’ claim that the families were under-compensated or that the district court found that they failed to receive full recovery.

Second, the full-recovery doctrine may not be viable under current case law, particularly when Pierringer releases are involved. As set out in Hewitt v. Apollo Group, 490 N.W.2d 898, 901 (Minn.App.1992), review denied (Minn. Nov. 17, 1992), the full-recovery doctrine assumes that a workers’ compensation insurer has no sub-rogation rights until an insured is fully compensated. The viability of this court’s decision in Hewitt, however, is questionable because it appears contrary to a more recent supreme court case that states:

Here, where the settlement agreement fully releases the claims of both the injured employee and the subrogated workers’ compensation insurer, the settlement necessarily includes claims from damages recoverable under the Worker’s Compensation Act. Under the circumstances, it is unreasonable and patently arbitrary for the trial court to exclude entirely the insurer’s claim for recoverable damages even though the employee is not fully compensated for nonrecoverable damages.

Kliniski v. Southdale Manor, Inc., 518 N.W.2d 7, 10 (Minn.1994). The trustees assert that the above-quoted language from Kliniski is dictum and that Hewitt remains good law because it is not specifically overruled or cited in Kliniski. Nevertheless, Kliniski casts serious doubt on whether the full-recovery doctrine can be used to reduce a subrogated insurer’s interest in settlement proceeds, particularly in the manner in which the district court here reduced that interest.

Finally, the trustees essentially acknowledge that the district court here failed to properly apply the statutory formula. The trustees assert that the court acted within its discretion when it refused to “mechanically” apply the formula and when it decided to reduce the fund’s sub-rogation interest by the percentage allocated to nonrecoverable damages. Even if we agree with the trustees’ assertion that the families were not fully compensated and that the fund’s subrogation interest should be reduced, it is not clear that lack of full recovery was the basis for the district court’s decision to reduce the fund’s interest. Rather, as support for its decision, the district court cited Henning, not any lack of full recovery by the families.

We therefore reverse the district court’s determination that the fund is entitled to $200,000 from the settlement proceeds. The matter is remanded for a calculation under Minn.Stat. § 176.061, subd. 6, consistent with this opinion.

II.

The fund argues that the district court abused its discretion by disregarding the actual amount of attorney fees and costs incurred by the trustees, which the parties stipulated was 17% of the settlement, and by allowing a deduction for attorney fees of one-third of the settlement. The determination of the reasonable amount of attorney fees to deduct under the statutory formula is an issue generally left to the discretion of the district court. S.B. Foot Tanning Co. v. Piotrowski, 554 N.W.2d 413, 419 (Minn.App.1996), review denied (Minn. Dec. 17,1996).

Minn.Stat. § 176.061, subd. 6(a), provides for the deduction of the “reasonable costs” of collection. As the trustees argue, the legislature could have allowed a deduction for the “actual” costs of collection but did not. Cf. Minn.Stat. § 548.36, subd. 4 (2002) (providing for payment of “same percentage of attorney’s fees as paid by the plaintiff’).

The trustees presented evidence that attorney fees of one-third of a settlement are standard and reasonable. And Minnesota case law tends to recognize that one-third attorney fees are generally accepted in the legal community as reasonable. See Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 60 (Minn.1993). Thus, had the attorneys charged the typical one-third fee, that amount arguably would have been deemed “reasonable.”

Here, however, the trustees’ attorneys decreased their fees to 17% due to then-longstanding personal relationship with the Wellstone family. The trustees argue that the fund had no such relationship and should not be able to benefit from the desire of the trustees’ attorneys to maximize the proceeds available to the families. The district court agreed, noting that “[c]ounsel for the trustees had no special relationship with the Special Compensation Fund in this matter and there is no reason to depart from the normal practice” of deducting one-third for the “reasonable” costs of collection. Given the unique facts of this case, we cannot say that the district court abused its discretion by allowing a one-third deduction for reasonable attorney fees and costs, even though respondents’ actual costs were only 17%. Cf 5.B. Foot, 554 N.W.2d at 413-14 (concluding that district court abused its discretion by limiting attorney fees to one-third, given the extraordinary efforts on the part of the injured employee’s attorney).

III.

The fund argues that the district court clearly erred in finding that the youngest children of McEvoy and Marku-son will not attend school past the age of 18. See Minn.Stat. § 176.111, subds. 7, 8 (2002) (providing that surviving spouse entitled to receive workers’ compensation benefits for 10 years after youngest child finishes school). Issues involving a district court’s determination regarding the amount of future workers’ compensation benefits to be paid are reviewed under a clearly erroneous standard, which allows us to reverse only if the evidence fails to reasonably support the court’s finding. See Schlichte v. Kielan, 599 N.W.2d 185, 187-88 (Minn.App.1999), review denied (Minn. Nov. 17,1999).

The parties presented evidence in the form of expert affidavits regarding the present value of future workers’ compensation benefits to be paid by the fund. The trustees’ expert calculated the present value of future benefits at $1,284,873, based on the assumption that the youngest children would not go to school beyond the age of 18. The fund’s expert submitted three calculations, ranging from $1,289,153, based on the same assumption that the youngest dependents would not go to school beyond the age of 18, to $1,541,526, based on the assumption that the youngest dependents would attend school through the age of 25.

On the issue of the continued schooling of the youngest children, the fund’s attorney cited evidence submitted in the settlement brochures, and argued that given the educational backgrounds and financial resources of the two families, it was likely that the youngest children would go to college and then attend graduate school, medical school, or law school until the age of 25. The attorney for the trustees countered that the children were currently only 8 and 13 years old, and that the issue of continued schooling at this time was speculative, particularly given the fact that both children had lost significant family members.

A district court bases its calculation of the value of future workers’ compensation benefits on the evidence made available to it, including any affidavits, depositions, and exhibits, and any reasonable assumptions it might make based on that evidence. See Tyroll, 505 N.W.2d at 61. While it is difficult to calculate future benefits with reasonable certainty, the court must make approximations based on reasonable assumptions. See Wilken v. Int’l Harvester Co., 363 N.W.2d 763, 767-68 (Minn.1985). The recovery of future benefits, however, should not be based on speculation. See Schlichte, 599 N.W.2d at 188.

Here, the district court rejected the fund’s claim that it should assume that the two youngest children will continue in school beyond the age of 18, based solely on the educational backgrounds of their families. While one might assume that children whose parents have advanced degrees generally follow that lead and while common sense might allow a court to make such an assumption, the district court here found that the evidence offered by the fund was too speculative to allow it to make such an assumption. The fund could have submitted statistical evidence in affidavit form regarding the likelihood that children of parents with higher educational backgrounds will continue with schooling beyond the age of 18. Based on this record, we cannot conclude that the district court clearly erred in finding that the fund failed to establish that these children would likely continue with school beyond the age of 18.

DECISION

Because the district court misapplied the statutory formula, its calculation of the fund’s subrogation claim is reversed, and the issue is remanded for a calculation consistent with this opinion. The district court’s decisions regarding reasonable costs and attorney fees and the amount of future workers’ compensation benefits to be paid by the fund, based on the assumption that the youngest children will not continue with school beyond the age of 18, were within its discretion and not clearly erroneous; these issues are therefore affirmed.

Affirmed in part, reversed in part, and remanded.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . This file remains under seal as ordered by the district court. Only two district court orders are public: the "Order and Memorandum Regarding the Claims of the State of Minnesota Special Compensation Fund,” filed December 10, 2003, and the "Order Allocating Funds to be Paid to the State of Minnesota Special Compensation Fund,” filed December 22, 2003.

      . The last year of schooling is important because a surviving spouse is entitled to receive benefits for 10 years after the youngest child finishes school. Minn.Stat. § 176.111, subds. 7, 8 (2002).

      . In early 2004, after the hearing was held and the order was issued in this case, the fund received an additional $28,000 from the campaign.

      . A Henning allocation appears most useful in situations where the settlement proceeds are clearly insufficient and where an injured employee desires to maximize the amount allocated to nonrecoverable damages, thus shielding that amount from any subrogation interest on the part of the insurer. Those concerns are not as readily apparent in this case, given the substantial amount of the settlements and the district court’s allocation of 40/60% between recoverable and nonrecoverable damages.

      . Both parties also raise waiver-type arguments regarding the full-recovery issuel The trustees argue that because the issue of full recovery was presented to the district court, the fund cannot now challenge the manner in which the court applied that doctrine to reduce the fund’s subrogation claim. The fund argues that because the trustees failed to file a notice of review, they cannot challenge the district court’s apparent finding that they were not undercompensated, nor can they challenge the court's 40/60% allocation between recoverable and nonrecoverable damages. Neither party's argument, however, is entirely accurate. While the issue of full recovery was raised before the district court, the court's eventual decision to reduce the fund's subrogation claim using a Henning-type allocation was not contemplated or advocated by either party. We therefore reject both parties’ waiver arguments.

      . The experts for both parties reduced their respective valuations to present value, as required by Wilken v. Int’l Harvester, 363 N.W.2d 763, 767 (Minn.1985).


author: GORDON W. SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Jerad Brent ROULAND, Appellant.
    No. A04-620.
    Court of Appeals of Minnesota.
    Aug. 31, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; Gregory Alan Widseth, Polk County Attorney, Scott A. Buhler, Assistant Polk County Attorney, Crookston, MN; and Kip 0. Fontaine, Clearwater County Attorney, MN, for respondent.
    John M. Stuart, State Public Defender, G. Tony Atwal, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge; HARTEN, Judge; and SHUMAKER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Appellant was on probation for a gross-misdemeanor driving while under the influence of alcohol conviction when he committed various felonies. In sentencing the felonies, the district court added a custody point to appellant’s criminal history score for the probation custody status. Relying on a comment to the sentencing guidelines, appellant contends that the court erred by adding a custody point for probation for a non-felony traffic offense. Because the clear text of the guideline provides a custody point for gross-misdemeanor probation, without exception, and because the text of the guideline controls over a comment to the guideline, we affirm.

FACTS

Appellant Jerad Brent Rouland pleaded guilty to four felonies. At the time of those offenses, he was on probation for a gross-misdemeanor driving while under the influence of alcohol conviction.

Prior to sentencing, the district court received a Minnesota Sentencing Guidelines Sentencing Worksheet for each offense. Each worksheet showed a presumptive sentence of 12 months and 1 day and none assigned any criminal history points for Rouland’s probation.

The state moved to add one point to Rouland’s criminal history score because Rouland was on probation when he committed the felonies. Rouland objected, arguing that his probation was for a traffic offense and that non-felony traffic offenses are not considered when determining custody status points. The district court agreed with the state, added a custody status point to Rouland’s criminal history, and sentenced him accordingly. Rouland appealed.

ISSUE

Did the district court err in assigning a custody status point to appellant’s criminal history score because he was on probation for a gross misdemeanor DWI conviction when he committed subsequent felonies?

ANALYSIS

This court conducts a de novo review of the district court’s interpretation of the Minnesota Sentencing Guidelines. State v. Myers, 627 N.W.2d 58, 62 (Minn.2001). Under the guidelines, presumptive sentences are determined by the severity of the offense and the offender’s prior criminal history. Minn. Sent. Guidelines II.C (2003). Criminal history included “custody status”:

One [custody status] point is assigned if the offender:
a. was on probation, parole, supervised release, conditional release, or confined in a jail, workhouse, or prison following a felony, gross misdemeanor or an extended jurisdiction juvenile conviction.

Minn. Sent. Guidelines II.B.2 (2003).

The guidelines themselves do not exclude any types of offenses from those eligible for a custody status point. But Rouland argues that the “Comment” following the guideline text shows that traffic offenses, such as DWIs, are not to be considered for custody points unless the offenses are felonies:

As a general rule, the Commission excludes traffic offenses from consideration in computing the criminal history score. However, one gross misdemeanor offense — driving while impaired — is particularly relevant in sentencing cases of criminal vehicular homicide or injury and first degree (felony) driving while impaired. Because of its particular relevance in cases of this nature, a custody status point shall be assigned if the offender is under probation ... when the felony for which the offender is being sentenced is criminal vehicular homicide or injury or first degree (felony) driving while impaired, and the offense occurred while under that supervision.

Minn. Sent. Guidelines cmt. II.B.202 (2003).

The state argues, and Rouland agrees, that the comments to the guidelines are not binding but rather are advisory. We also agree. See Asfaha v. State, 665 N.W.2d 523, 526 (Minn.2003) (stating the comments to the sentencing guidelines are “only advisory and not binding on the courts”); State v. Notch, 446 N.W.2d 383, 385-86 (Minn.1989) (determining that although the comments to a guideline provision specifically state that credit for time served shall not apply to time spent in a residential treatment facility, the district court was not bound by the comment).

In Notch, the supreme court also made it clear that the guideline comments cannot be relied upon to create an exception to what otherwise would be a clear and unambiguous guideline provision. Notch, 446 N.W.2d at 386. In that case, the guideline provision at issue unequivocally stated that consecutive sentences would be imposed only when there were two current convictions for crimes against two different persons. The accompanying comment, however, seemed to make an exception to the “different persons” requirement. The court declined to apply the apparent exception in the comment because the guideline text was clear and did not provide any exceptions. Like the guideline text in Notch, the text here is clear and unequivocal in providing a custody point for an offender who is on probation for a gross-misdemeanor conviction.

Rouland relies on State v. Jones, 587 N.W.2d 854, 856 (Minn.App.1999), review denied (Minn.Mar.16, 1999), for the proposition that courts cannot “disregard the plain and unambiguous language of the sentencing guidelines and accompanying commentary.” But in Jones, the guideline text was silent as to the effect of a decayed conviction and the comment supplied advice as to whether such a conviction could be used in computing a criminal history score. The guideline in question here is not silent on the issue of what is included in determining custody status points. And, unlike the comment in Jones, this comment creates an exception that contradicts the plain language of the guideline text. Under Asfaha, Notch, and Jones, we hold that a comment to a sentencing guidelines provision will not control over the clear, unambiguous, and contrary language of the guideline text.

DECISION

Minn. Sent. Guidelines II.B.2 clearly states that a custody point is assigned if the offender “was on probation ... following a felony, gross misdemeanor or an extended jurisdiction juvenile conviction.” While Minn. Sent. Guidelines cmt. II.B. 202 provides that a point shall not be added for a gross-misdemeanor DWI conviction unless the felony being sentenced for is first-degree DWI or criminal vehicular homicide, we find that the comments are only advisory; that when there is a conflict between the clear language of the text and a comment, the text prevails; and that the district court did not err in assigning a custody point to Rouland’s criminal history score.

Affirmed.


text:
    In the Matter of the WELFARE OF D.T.P.
    No. A03-2057.
    Court of Appeals of Minnesota.
    Aug. 31, 2004.

      John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Minneapolis, MN, for appellant D.T.P.
    Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Eleni P. Skevas, Assistant Ramsey County Attorney, St. Paul, MN, for respondent State of Minnesota.
    Considered and decided by ANDERSON, Presiding Judge; TOUSSAINT, Chief Judge; and SHUMAKER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Appellant was adjudged delinquent on one count of misdemeanor theft after admitting that he had stolen an earring valued at $15 or less. The district court designated the theft as a misdemeanor because appellant had a prior misdemean- or contempt-of-court adjudication. The court ordered out-of-home placement for 7 to 11 days and stayed the disposition order pending appeal. Appellant challenges the disposition order, claiming that it is invalid because (1) the underlying offense was improperly enhanced on the basis of a void delinquency adjudication, and (2) .the court failed to make sufficient findings to support the disposition. Because the district court properly designated the theft as a misdemeanor based on appellant’s prior misdemeanor adjudication, we affirm that part of the order. However, we remand for required findings on the disposition.

FACTS

In January of 2001, appellant D.T.P., a juvenile, was adjudged as a habitual truant. The district court placed D.T.P. on supervised probation and required him to attend school. When D.T.P. continued to miss school, he was charged with misdemeanor contempt of court under Minn. Stat. 588.20 (2002) and was adjudged delinquent based on the misdemeanor contempt charge.

In October 2003, D.T.P. was charged with misdemeanor theft. D.T.P. requested that the district court withhold adjudication of delinquency because the prior adjudication of delinquency was not proper. The district court stated that because the prior adjudication of delinquency was never appealed it was “the law of the case.” The district court adjudged D.T.P. delinquent based on the prior adjudication of delinquency and the misdemeanor theft.

The court stayed out-of-home placement pending this appeal.

ISSUES

1. When a juvenile, who has a prior misdemeanor adjudication, commits a misdemeanor-level crime, the current misdemeanor crime is a misdemeanor. Was it proper for the district court to designate appellant’s theft offense as a misdemeanor when appellant had a prior misdemeanor adjudication for contempt of court?

2. A juvenile, who is under continuing jurisdiction of the court for committing a status offense, may not be adjudged delinquent solely on the basis of contempt of court. Where the prior delinquency adjudication was not appealed, does it become the law of the case?

3. A juvenile court disposition for out-of-home placement must be supported by findings that address five subjects. Did the district court make adequate findings to support its disposition?

ANALYSIS

Proper designation of juvenile offenses is governed by statute, and statutory construction is a question of law, subject to de novo review. In re Welfare of J.M., 574 N.W.2d 717, 721 (Minn.1998).

I.

D.T.P. argues that his theft offense was improperly enhanced from a juvenile petty offense to a misdemeanor. A “juvenile petty offense ... includes an offense that would be a misdemeanor if committed by an adult ... [but] does not include ... a misdemeanor-level offense committed by a child whom the juvenile court previously has found to have committed a misdemeanor ... offense.” Minn. Stat. 260B.007, subd. 16(c)(3) (2002). Thus, when a juvenile with no prior misdemeanor adjudication commits a misdemeanor-level offense, it is considered a juvenile petty offense; but if the juvenile has a prior misdemeanor adjudication, the current misdemeanor-level offense is not a juvenile petty offense, but is a misdemean- or.

Here, D.T.P. was charged with theft of items worth less than $250, which is a misdemeanor-level offense. Minn.Stat. 609.52, subd. 2(1), subd. 3(5) (2002). D.T.P. was previously found to have committed misdemeanor contempt of court under MinmStat. 588.20 (2002). See Minn. R. Juv. P. 17.01, subd. 1, (A)(5)(a) (listing criminal contempt under Minn.Stat. 588.20 as an exception to non-traffic misdemean- or-level offenses that are considered juvenile petty offenses). Thus, the theft is not a juvenile petty offense but is a misdemeanor.

II

D.T.P. argues that the prior adjudication of delinquency is void and could not be used as the basis to enhance the petty theft to misdemeanor theft. In November 2002, D.T.P. was charged with criminal contempt under section 588.20 as a misdemeanor and was subsequently adjudged delinquent based on that charge. Regarding contempt, the juvenile statute states:

Any person knowingly interfering with an order of the juvenile court is in contempt of court. However, a child who is under the continuing jurisdiction of the court for reasons other than having committed a delinquent act or a juvenile petty offense may not be adjudicated as a delinquent solely on the basis of having knowingly interfered with or disobeyed an order of the court.

Minn.Stat. 260B.421 (2002) (emphasis added).

The record shows that D.T.P. was under the continuing jurisdiction of the court because he was on probation for truancy, which is a status offense and is not categorized as a delinquent act or a juvenile petty offense. Thus, he should not have been adjudged delinquent solely on the basis of contempt of court.

Here, the district court correctly held that, because D.T.P. failed to appeal the initial adjudication of delinquency, it became the law of the case. See State v. Harrington, 504 N.W.2d 500, 503 (Minn.App.1993) (holding that where appellants did not appeal the validity of an order the order became the law of the case), review denied (Minn. Sept. 30,1993).

Regardless, the district court did not use the adjudication of delinquency to enhance the theft offense to a misdemeanor. D.T.P. had a prior misdemeanor and therefore was properly charged with a misdemeanor rather than a juvenile petty offense under Minn.Stat. 260B.007, subd. 16(c)(3).

Furthermore, under Minn.Stat. 260B.007, subd. 6(a)(1) (2002), a “delinquent child” means a child who has violated any state or local law, with the exception of juvenile petty offenses, alcohol offenses, and eontrolled-substance offenses. Because D.T.P. committed misdemeanor theft, he violated a state or local law that was not one of the excepted offenses, and he is therefore a “delinquent child.” Thus, the current adjudication of delinquency is valid under MinmStat. 260B.007, subd. 6(a)(1).

Ill

The parties seem to agree that the district court was required to make findings on the disposition. A juvenile court disposition for out-of-home placement must be supported by findings that address five subjects: (1) why public safety is served by the disposition; (2) why the best interests of the child are served by the disposition; (3) what alternative dispositions were proposed to the court and why such recommendations were not ordered; (4) why the child’s present custody is unacceptable; and (5) how the correctional placement meets the child’s needs. In re Welfare of J.S.S., 610 N.W.2d 364, 366-67 (Minn.App.2000).

The courts order, in paragraph 3 of the Findings of Fact, states:

The transcript of these proceedings sets forth facts which support this disposition order and is hereby incorporated as to: (a) why the best interests of the child are served by this disposition order and (b) what alternative dispositions were considered by the court and discussed as to why they were not appropriate in said case.

If the requisite particularized findings are made on the record and appear in a transcript, it is appropriate for the district court to incorporate those findings by reference into its order. But the transcript here does not contain the requisite findings, and the boilerplate language in paragraph 3 fails to identify the facts that support the court’s disposition. Thus, we remand for findings of fact as to the disposition of the matter.

DECISION

Because D.T.P. has a prior misdemeanor adjudication, the district court properly designated the current offense as a misdemeanor, and we affirm that portion of the district court’s decision. Because D.T.P. failed to appeal the initial adjudication of delinquency, the district court correctly held that the initial adjudication became the law of the case, and we affirm the validity of the current adjudication of delinquency. But because the district court failed to support its disposition for out-of-home placement, we remand for further findings.

Affirmed in part and remanded.