author: /s/ Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Julia K. Satterlee RHODES, a Minnesota Attorney, Registration No. 307713.
    No. A03-1979.
    Supreme Court of Minnesota.
    March 17, 2004.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Julia K. Satterlee Rhodes has committed professional misconduct warranting public discipline. Namely, respondent (1) improperly advised her client in a medical malpractice action to enter into an agreement with a financing company that called for a payment of $26,495 to the financing company from any proceeds of any verdict or settlement in the action in exchange for a $7,000 advance for litigation costs, misappropriated at least $3,609.28 of the $7,000 received from the financing company, and misrepresented to the Director how the funds advanced had been spent, which actions were in violation of Minn. R. Prof. Conduct 1.1, 1.7(b), 1.15(a), 8.1(a)(1), and 8.4(c), (2) failed to act diligently and promptly in three client matters and failed to adequately communicate with those clients in violation of Minn. R. Prof. Conduct 1.3 and 1.4, and (3) failed to cooperate in these disciplinary proceedings in violation of Minn. R. Prof. Conduct 8.1(a)(3) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits her conduct violated the Rules of Professional Conduct, waives her rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is an indefinite suspension from the practice of law with no right to apply for reinstatement for three years with reinstatement conditioned on (1) payment of $900 in costs under Rule 24(d), RLPR; (2) compliance with Rule 26, RLPR; (3) successful completion of the professional responsibility bar examination; (4) satisfaction of continuing legal education requirements; and (5) payment of $7,000 in restitution to Jaronda Wilks.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Julia K. Satterlee Rhodes is indefinitely suspended from the practice of law and may not petition for reinstatement until three years from the date of this order, with reinstatement conditioned upon the agreed-upon conditions set forth above and upon evidence that respondent has undergone a change in character necessary to ensure that she has the character and fitness to resume the practice of law. Respondent shall pay Jaronda Wilks $7,000 in restitution. Respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.

BY THE COURT:

/s/ Paul H. Anderson

Associate Justice


source: Caselaw Access Project

author: HANSON, Justice.

license: Public Domain

text:
    Lawrence B. GRAY, Appellant, v. BADGER MINING CORPORATION, individually and as successor-in-interest to the C.A. Chier Sand Company, Respondent, Carpenter Brothers, Inc., et al., Defendants.
    No. C4-02-2052.
    Supreme Court of Minnesota.
    March 18, 2004.

      Michael S. Polk, Michael S. Strom, Sie-ben Polk, Laverdiere, & Dusich, P.A., Hastings, for Attorneys for Appellant Lawrence B. Gray.
    Robert E. Diehl, Cynthia R Bartell, Foley & Mansfield, P.L.L.P., L. John Argen-to, Cathy R. Gordon, Thomas J. Jezewski, Dickie, McCamey & Chilcote, P.C., Pittsburgh, PA, for Attorneys for Respondent Badger Mining Corporation.
    Wilbur W. Fluegel, Esq., Minneapolis, for Amici curiae, American Tort Reform Association.
    David F. Zoll, David Evans, Arlington, VA, Lateesa T. Ward, Ward & Ward, L.L.C., Minneapolis, for Amici curiae, American Chemistry Council.
   OPINION

HANSON, Justice.

This appeal focuses on the district court’s denial of a motion for summary judgment brought by a supplier of silica to dismiss the products liability claim of an injured foundry worker. The issue is whether the raw materials supplier, respondent Badger Mining Corp. (Badger Mining), breached a duty to warn the worker, appellant Lawrence B. Gray (Gray), of hazards associated with the use of silica in foundry processes. The court of appeals reversed the district court, holding that because Gray’s employer, Smith Foundry, was a sophisticated purchaser and Badger Mining was a bulk supplier, Badger Mining had no duty to warn Gray of the dangers of silica dust. Because we conclude that there are genuine issues of material fact with respect to the sophistication of Gray and Smith Foundry and the adequacy of the warnings and instructions given by Badger Mining to Smith Foundry, we reverse the court of appeals.

Gray worked at Smith Foundry from 1951 until 1998, with the exception of a 2-year period in which he served in the infantry in Korea. Smith Foundry uses sand to create molds in which metal objects are cast. There is evidence that Badger Mining supplied sand to Smith Foundry prior to 1981, and then again beginning in 1992. All of the sand was delivered by Badger Mining in bulk by pneumatic trucks.

Gray brought a products liability action against Badger Mining and other suppliers that manufactured and sold sand to Smith Foundry. Gray alleged that his repeated exposure to silica dust caused silicosis of the lungs. Gray’s claims were based on negligence and strict liability for failure to warn and on breach of warranties of merchantability and fitness for the intended purpose.

Gray provided evidence that Badger Mining knew of special hazards involved in using sand for foundry processes. During the phase of the process where the sand mold is knocked off of the casting, the sand is pulverized to small sub-micron sized particles of dust. Gray points to several documents and to testimony of Badger Mining employees to show that Badger Mining had knowledge that conventional disposable respirators were ineffective to protect workers against the inhalation of sub-micron sized particles.

Badger Mining’s Vice President and a member of its Health and Safety Committee, Timothy Wuest, was familiar with the 1992 recommendation of the National Industrial Sand Association that disposable respirators were “not recommended for routine use where exposure to respirable crystalline silica dust may occur.” Wuest acknowledged that Badger Mining’s safety director, Richard Chier, had conducted independent research in the early to mid 1980s and had determined that disposable respirators could not be used for an extended period of time because they did not provide a good seal. According to Wuest, Chier’s conclusions caused Badger Mining to decide that disposable respirators would not be used by its own employees.

Richard Chier testified that, when customers asked, he recommended they use a double cartridge half-mask respirator. Badger Mining’s Quality and Technical Assistance Director, Larry Beuthin, testified that he was familiar with the silica hazards of the foundry industry and that he would not use a disposable respirator for an extended period because it does not provide a good seal — ”If you hold your hand over the paper mask while you’re in there, you get a good seal. But if you’re going to work with your hands, you do not get a good, tight seal around the edges of those fiber, paper masks.”

The parties offered differing views of the adequacy of the warnings and safety instructions that Badger Mining provided to Smith Foundry. Gray provided evidence that Badger Mining did not provide warnings or safety instructions with shipments made prior to 1981. When Badger Mining renewed its sales to Smith Foundry in 1992, its shipments were accompanied by warnings and safety instructions printed on a Material Safety Data Sheet (“MSDS”) that was supplied pursuant to federal regulations known as the “Hazard Communication Standards.” See 29 C.F.R. § 1910.1200 (2003). Although Wuest testified that the instructions on Badger Mining’s MSDS specifically said that disposable respirators were not approved, the MSDS actually stated:

CONTAINS FREE SILICA, AVOID BREATHING DUST FROM THIS PRODUCT. PROLONGED EXPOSURE MAY CAUSE DELAYED LUNG INJURY (SILICOSIS). EXCESSIVE INHALATION OF DUST MAY RESULT IN RESPIRATORY DISEASE, INCLUDING SILICOSIS, PNEUMOCONIOSIS, AND OTHER PULMONARY FIBROSIS. THE INTERNATIONAL AGENCY FOR RESEARCH ON CANCER (IARC) HAS EVALUATED IN VOLUME 42, MONOGRAPHS ON THE EVALUATION OF THE CARCINOGENICITY RISK OF CHEMICALS TO HUMANS, SILICA AND SOME SILICATES (1987), THAT THERE IS “SUFFICIENT EVIDENCE FOR THE CARCINOGENICITY OF CRYSTALLINE SILICA TO EXPERIMENTAL ANIMALS” AND “LIMITED EVIDENCE” WITH RESPECT TO HUMANS.

The MSDS also instructed that, for “protective equipment,” purchasers should “use NIOSH or MSHA approved dust respirators.” Gray argues that this warning and the accompanying instructions were inadequate because disposable respirators are among the National Institute for Occupational Health and Safety (NIOSH) and Mine Safety and Health Administration (MSHA) approved respirators.

The parties also offered differing views of the level of knowledge possessed by Gray and Smith Foundry of the hazards of silica dust. Gray argues that Smith Foundry possessed only a general knowledge of the hazards of silica and lacked the special knowledge possessed by Badger Mining, that disposable respirators were ineffective. Gray also contends that he personally was unaware of the extent of the danger associated with breathing silica dust. Gray testified that he believed that he was protected by the disposable respirators provided by Smith Foundry.

Badger Mining argues that Gray had long been concerned with the dangers of breathing silica dust. Badger Mining also argues that Smith Foundry was aware of the dangers of silica through its involvement with the American Foundry Association (AFS) and the occupational health information it received from other industry bodies and from government agencies. Badger Mining argues that Smith Foundry’s awareness of the dangers of silica dust is proven by the preventative actions it took, such as installing a dust collection system; monitoring air quality to ensure safe levels; providing respirators to its employees since the 1960s; and requiring yearly chest x-rays since the 1950s. Badger Mining also argues that Smith Foundry relied on 3M to provide respiratory protection and had the air quality of the work place monitored by its insurance companies.

Each defendant filed a motion for summary judgment. Badger Mining’s motion was on the grounds that it owed no duty to warn Gray because it sold raw material to a sophisticated purchaser. The district court denied all motions. Prior to trial, Gray settled with all defendants except Badger Mining. After the district court denied Badger Mining’s renewed summary judgment motion, the parties stipulated to the entry of judgment for Gray that would be either $17,500 or $75,000, depending on the outcome of this appeal. To enable Badger Mining to appeal the legal issues presented by its motion for summary judgment, the stipulation provided in part:

2. The judgment entered pursuant to this stipulation is intended to allow appellate resolution of legal issues. The judgment is not based upon an adjudication on the merits and shall have no collateral estoppel effect;
3. Defendant Badger Mining Corp.’s rights to appeal the trial court’s denial of its motion for summary judgment are preserved as part of this agreement. Nothing herein is intended to waive, impair, or limit the rights of defendant Badger Mining Corp. to appeal, it being the intention of the parties to facilitate the appellate review without the need for further litigation;

The court of appeals reversed the district court. Gray v. Badger Mining Corp., 664 N.W.2d 881, 887 (Minn.App.2003). The court of appeals stated:

We find persuasive the reasoning in cases in the Eighth Circuit and other jurisdictions that have ruled on the applicability of the sophisticated-purchaser defense when a foundry employee who developed silicosis sued a silica sand supplier for failing to warn either the purchaser or employee. These industry-specific cases provide us with persuasive reasoning to support the legal conclusion that a bulk supplier of silica sand to a sophisticated purchaser has no duty to warn the user of the dangers of exposure to silica dust.

Id. at 886. The court of appeals did not reach the additional argument of Badger Mining that it had no- duty to warn because of the “raw material/component part supplier” defense. See id. at 887.

We granted Gray’s petition for review on the duty to warn and Badger Mining’s petition for cross-review on the raw material/component part supplier defense.

I.

Under this somewhat unusual stipulation for entry of judgment, the standard of review on this appeal is that applicable to the denial of a motion for summary judgment. Because the parties stipulated to the entry of judgment but not to any facts, and the district court did not make findings, a review of the case under a sufficiency of the evidence standard, normally applicable to an appeal from a judgment on the merits, is not possible. See, e.g., Runia v. Marguth Agency, Inc., 437 N.W.2d 45, 48 (Minn.1989).

Given this scope of review, we will reinstate the judgment for Gray if any genuine issues of material fact exist as to any of the legal theories alleged in his complaint. Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 345 (Minn.2003). For ease of analysis, we will consider Gray’s claim of negligence and defer for another day the question of whether the various defenses raised by Badger Mining would apply to Gray’s strict liability or breach of warranty claims.

II.

Minnesota negligence law on a supplier’s duty to warn is well developed. In general, a supplier has a duty to warn end users of a dangerous product if it is reasonably foreseeable that an injury could occur in its use. Balder v. Haley, 399 N.W.2d 77, 81 (Minn.1987). The duty to warn includes the duty to give adequate instructions for the safe use of the product. Frey v. Montgomery Ward & Co., 258 N.W.2d 782, 787 (Minn.1977). This court has stated that “where the manufacturer or the seller of the product has actual or constructive knowledge of danger to users, the seller or manufacturer has a duty to give warnings of such dangers.” Id. at 788 (citing Hill v. Wilmington Chem. Corp., 279 Minn. 336, 156 N.W.2d 898 (1968)). To be legally adequate, the waiming should (1) attract the attention of those that the product could harm; (2) explain the mechanism and mode of injury; and (3) provide instructions on ways to safely use the product to avoid injury. Carole A. Cheney, Comment: Not Just for Doctors: Applying the Learned Intermediary Doctrine to the Relationship Between Chemical Manufacturers, Industrial Employers, and Employees, 85 Nw. U.L.Rev. 562, 566 (1991). See Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 834 (Minn. 1988); Westerberg v. Sch. Dist. No. 792, 276 Minn. 1, 5, 148 N.W.2d 312, 315 (1967).

In this context, we have endorsed the broad statement of principles contained in the Restatement (Second) of Torts § 388 (1965) with respect to suppliers of goods. See Clark v. Rental Equip. Co., 300 Minn. 420, 427, 220 N.W.2d 507, 511 (1974) (paraphrasing the language of section 388 without citing the Restatement); Mikel v. Aaker, 256 Minn. 500, 504-05, 99 N.W.2d 76, 79-80 (1959) (quoting Restatement of Torts § 388 (1934), which is identical to Restatement (Second) of Torts § 388). According to section 388:

One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in ' the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied;
(b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts, which make it likely to be so.

Restatement (Second) of Torts § 388.

In addition to the common law duty to warn, chemical suppliers are required by federal law to provide warnings if their products are hazardous. Under federal regulations, suppliers such as Badger Mining must provide their customers with a MSDS that includes “[a]ny generally applicable precautions for safe handling and use which are known to the chemical manufacturer” and “[a]ny generally applicable control measures which are known to the chemical manufacturer, * * ⅜ such as appropriate engineering controls, work practices, or personal protective equipment.” 29 C.F.R. § 1910.1200(g)(2)(viii) & (ix) (2003).

The parties do not discuss the legal effect of this federal regulatory duty to warn, although Gray argues that Badger Mining’s MSDS for silica does not meet the federal standard. In some contexts, we have held that the breach of a regulatory duty may be regarded as negligence per se. See Engvall v. Soo Line R.R. Co., 632 N.W.2d 560, 569 (Minn.2001) (holding that a violation of a federal standard may be a basis for alleging negligence per se). In other contexts, we have held that conforming to a federal standard may not satisfy a manufacturer’s duty to warn (unless state action is preempted explicitly or implicitly by the federal statute), but the failure to satisfy a federal standard may be used by a finder of fact as evidence of a breach of the duty to warn. See Forster v. R.J. Reynolds Tobacco Co., 437 N.W.2d 655, 657 (Minn.1989); see also 10 Am. Law Prod. Liab.3d § 113:12 (John D. Hodson ed., 1995) (“A prima facie case of negligence may be established by the defendant’s failure to comply with industry-wide standards of warning. In fact, exclusion of evidence that the product was not labeled in accordance with regulations may be highly prejudicial because violation of a statute and regulations under it is evidence of negligence.”).

Because the parties provide no guidance as to the legal effect of the violation of this federal standard, we will not decide whether a violation is negligence per se but will only consider the federal standard as evidence relevant to the adequacy of Badger Mining’s warnings and safety instructions.

III.

Several potential defenses that could obviate or discharge the duty of a supplier to warn have been considered in the case law from other jurisdictions and in learned treatises. Although each defense has slightly different features, there is considerable overlap between them and they are often discussed interchangeably or in combination. We will refer to these potential defenses separately as the (1) learned intermediary; (2) sophisticated user; (3) sophisticated intermediary; (4) bulk supplier; and (5) raw material/component part supplier defenses.

Essentially, these defenses do not alter common law principles of negligence and causation but instead describe the application of those principles to various sets of common fact patterns. The first four are derived from the Restatement (Second) of Torts § 388. The fifth, the raw material/component supplier defense, is drawn from the Restatement (Third) of Torts: Products Liability § 5 (1998).

Learned Intermediary

In Mulder v. Parke Davis & Co., 288 Minn. 332, 335-36, 181 N.W.2d 882, 885 (1970), we recognized that the learned intermediary defense was available in a claim for failure to warn of the dangers of a drug. By applying traditional common law causation principles, we concluded that the failure of a drug manufacturer to warn a physician of the dangers of a drug was not the proximate cause of the injury to the patient where the physician acknowledged that he was fully aware of its potentially dangerous effects. Id.

This learned intermediary defense has been recognized in other jurisdictions but has essentially been limited to pharmaceutical products. See 6 Am. Law Prod. Liab.3d § 89:10 (John D. Hodson ed., 2003). It also has been recognized by our court of appeals. Todalen v. U.S. Chem. Co., 424 N.W.2d 73, 79 (Minn.App.1988), overruled on other grounds by Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54 (Minn.1993). We have applied similar reasoning, without citing Mulder or mentioning the learned intermediary defense by name, in another professional context. In Minneapolis Soc’y of Fine Arts v. Parker-Klein, 354 N.W.2d 816, 821-22 (Minn. 1984), overruled on other grounds by Hapka v. Paquin Farms, 458 N.W.2d 683, 687 (Minn.1990), we held that the manufacturer of bricks had no duty to instruct on the appropriate precautions to follow when installing them because “the evidence was overwhelming that the architects employed by [the plaintiff] should have known” of the necessary precautions.

Gray contends that the court of appeals incorrectly extended the learned intermediary defense to this industrial setting. This contention is incorrect, however, because, although the court of appeals mentioned Mulder and the learned intermediary defense, it ultimately analyzed the case under “sophisticated user” and “bulk supplier” defenses. Gray, 664 N.W.2d at 886-87. Further, Badger Mining does not argue before us for the application of the learned intermediary defense. On this record, we decline to extend the learned intermediary defense to the employer/employee relationship in the industrial context.

Sophisticated User

Under the sophisticated user defense, a supplier has no duty to warn the ultimate user if it has reason to believe that the user will realize its dangerous condition. As stated in Hall v. Ashland Oil, 625 F.Supp. 1515, 1520 (D.Conn.1986):

[0]ne with a duty to warn is not liable for failing to warn a party of facts that the party already knew. The theory of this exception is that a failure to warn a party of a danger of which it was independently aware cannot be the proximate cause of injury resulting from that danger, since presumably the party would not have acted differently even if warned.

(Citations omitted.) See also Donahue v. Phillips Petroleum Co., 866 F.2d 1008, 1012 (8th Cir.1989) (stating that the sophisticated user defense relieves a supplier from a duty to warn when the user knows or reasonably may be expected to know the particular dangers); In re Hoffman, 434 Mass. 624, 751 N.E.2d 848, 854 (2001) (same).

Although we have not addressed the sophisticated user defense by name, in Hill v. Wilmington Chem. Corp., 279 Minn. 336, 340-44, 156 N.W.2d 898, 902-04 (1968), we recognized its fundamental principles. In Hill, we held that a supplier of dangerous chemicals had no duty to warn of the dangerous propensities of the chemical where those dangers were already known to the purchaser. Id. at 345, 156 N.W.2d at 904. Because the evidence was conclusive that the purchaser knew of the dangers, we held that the chemical supplier had no duty to warn. Id. “Under these circumstances, we think the trial court was correct in holding that any negligence of [the supplier] did not proximately cause the loss sustained by [the purchaser].” Id. at 344, 156 N.W.2d at 904.

The court of appeals has similarly held that a supplier may be legally free from a duty to warn the end user if the dangers of a product are within the knowledge of that user. Todalen, 424 N.W.2d at 80. See also Strong v. E.I. Dupont De Nemours Co., 667 F.2d 682 (8th Cir.1981).

On the record before us, we need not determine the precise applicability or scope of the sophisticated user defense because there is evidence that Gray’s knowledge was inferior to that of Badger Mining. There is no evidence that Gray was familiar with industry or government publications on the dangers of silicosis. His general knowledge of the risk was little more than the intuitive sense of danger from experiencing dust in the foundry environment. More specifically, there is no evidence that he knew that disposable respirators were ineffective in preventing silicosis in a foundry environment.

Because there is evidence that Badger Mining had greater general knowledge of the dangers of the use of silica in the foundry process and had specific knowledge of the ineffectiveness of disposable respirators, it cannot be said as a matter of law that Gray’s knowledge was sufficient to relieve Badger Mining of its duty to warn. At a minimum, there are genuine issues of material fact that preclude summary judgment on the question of whether Gray was a sophisticated user.

Sophisticated Intermediary

In circumstances where it is highly impractical for the supplier to provide a warning directly to the end user, a variation of the sophisticated user defense has been developed that focuses on the sophistication of the end user’s employer, on the premise that the employer will act in the best interest of its employees. For ease of analysis, we will refer to this as a separate “sophisticated intermediary” defense. It is often joined with the “bulk supplier” defense because bulk delivery presents one circumstance where direct warnings are impractical.

Under the sophisticated intermediary defense, some courts have held that a product supplier has no duty to warn the ultimate user where either of two situations is present: (1) the end user’s employer already has a full range of knowledge of the dangers, equal to that of the supplier or (2) the supplier makes the employer knowledgeable by providing adequate warnings and safety instructions to the employer. See, e.g., 3 Am. Law Prod. Liab.3d § 33.22 (Matthew J. Caravan ed., 1993); Ritchie v. Glidden Co., 242 F.3d 713, 725 (7th Cir.2001); Smith v. Walter C. Best, Inc., 927 F.2d 736, 742 (3d Cir.1990).

Although the sophisticated intermediary defense has characteristics similar to the learned intermediary defense, the sophisticated intermediary defense is generally only available where the supplier can show that it used reasonable care in relying upon the intermediary to give the warning to the end user. As explained in comment n to section 388 of the Restatement (Second), such a showing requires consideration of the purpose for which the product is to be used, the magnitude of the risk, the burden of providing direct warnings to end users and the reliability of the intermediary as a conduit. Restatement (Second) of Torts § 388 cmt. n (1965).

Some courts have been reluctant to extend the rationale of the sophisticated user defense to sophisticated intermediaries. See, e.g., Little v. Liquid Air Corp., 952 F.2d 841, 851 (5th Cir.1992), rev’d en banc, 37 F.3d 1069 (5th Cir.1994); Donahue v. Phillips Petroleum Co., 866 F.2d at 1013. But several courts have recognized the defense, particularly when it arises in combination with the bulk supplier defense, because of the significant burden on the supplier of giving a warning directly to end users. See Hegna v. E.I. duPont de Nemours & Co., 806 F.Supp. 822 (D.Minn. 1992); 3 Am. Law Prod. Liab.3d § 33.28.

In Kennedy v. Mobay Corp., the court provided a good overview of this defense:

Part of the problem that may lead some to look askance at [the sophisticated intermediary] defense is in the language that some courts have used to describe it, in particular the notion that, where the elements or prerequisites of it exist, the supplier is absolved of any duty to warn ultimate users. That notion is not only unnecessary to the. defense but in fact is inconsistent with the rationale of comment n to Restatement 388. There is a duty to warn of defects or propensities that make a product hazardous, and that duty does extend ordinarily to those who may reasonably be expected to use or come into harmful contact with the product. It is not a duty, we think, from which the supplier can be entirely absolved. The question, rather, is, what conduct will suffice to discharge that duty?
Viewed in that context, the defense is not only logical but necessary. Where it is impracticable for the supplier to give adequate warnings directly to all who may use or come into contact with the product, some substitute for such direct warnings is required, even in strict liability cases. Otherwise, ⅞ * * strict liability would become in effect, absolute liability. As comment n to Restatement 388 makes clear, the focus remains on the conduct of the supplier, but that conduct is judged in light of the circumstances. Among those circumstances are the feasibility of giving direct warnings to all who are entitled to them and, where that is not feasible, whether the supplier acted in a manner reasonably calculated to assure either that the necessary information would be passed on to the ultimate handlers of the product or that their safety would otherwise be attended to. In such a situation, that is all that reasonably can be asked and it is all we think, that the law requires.

84 Md.App. 397, 579 A.2d 1191, 1199 (1990), aff'd, 325 Md. 385, 601 A.2d 123 (1992).

On this record, we need not decide the full applicability or scope of the sophisticated intermediary defense because, even if applicable, there are genuine issues of material fact that preclude summary judgment. As noted earlier, Badger Mining did provide Smith Foundry with a general warning of the dangers of silicosis but it did not warn Smith Foundry about the ineffectiveness of disposable respirators or instruct that only high efficiency respirators be used. Further, it can be argued that Badger Mining’s warning falls short of the federal requirement that it include precautions “known to the chemical manufacturer,” including those concerning “personal protection equipment.” 29 C.F.R. § 1910.1200 (2003). Generally, the adequacy of a warning is a fact question for the jury. Balder v. Haley, 399 N.W.2d 77, 81 (Minn.1987). Under these facts, we conclude that any question about the adequacy of Badger Mining’s warning is for the jury.

Badger Mining also presented evidence of the general knowledge of Smith Foundry and the information that was available to Smith Foundry from government and industry publications, other sand suppliers and the suppliers of respirators. This included government publications on health and safety, testing results and information on air quality from safety consultants, publications from trade organizations, most notably the American Foundrymen’s Society, and MSDSs from other suppliers that furnished materials to the foundry. But this evidence cannot be said to conclusively establish that Smith Foundry’s knowledge was equal to that of Badger Mining. And, even if we were to conclude that Smith Foundry should have known as much as Badger Mining about the general risks of silica in foundry operations, there is no evidence that Smith Foundry shared in the special knowledge possessed by Badger Mining that disposable respirators were ineffective. Stated conversely, there is no evidence that Badger Mining had reason to believe that Smith Foundry had such special knowledge.

These facts make this case distinguishable from the line of cases relied upon by the court of appeals that have held that suppliers of silica had no duty to warn injured foundry workers of the risk of silica dust because their foundry employer was a sophisticated user of silica and could be relied upon to protect its own employees. In Bergfeld v. Unimin Corp., 319 F.3d 350, 354 (8th Cir.2003), Smith v. Walter C. Best, Inc., 927 F.2d 736, 741 (3d Cir.1990), and Goodbar v. Whitehead Bros., 591 F.Supp. 552, 561 (W.D.Va.1984), aff'd sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir.1985), the evidence showed that the foundry possessed equal or greater knowledge of the dangers than the silica suppliers. There was no evidence in any of these cases that the silica suppliers had special knowledge, not shared by the foundry employers, of the ineffectiveness of disposable respirators in foundry operations. See Bergfeld, 319 F.3d at 354, Smith, 927 F.2d at 741, and Goodbar, 591 F.Supp. at 561.

The present case can also be distinguished from Haase v. Badger Mining Corp., 266 Wis.2d 970, 669 N.W.2d 737 (2003). In Haase, the court granted summary judgment to Badger Mining where two of the foundry’s employees testified that they were fully aware of the dangers of silica, had kept abreast of all new health and safety developments with respect to the use of foundry grade sand, and never relied on information from Badger Mining in determining the proper safety equipment to use in their operations. Id. at 740-41. In the present case, Smith Foundry employees did not disclaim their reliance on the warnings and safety instructions provided by Badger Mining. In fact, a safety director for Smith Foundry testified that he made the supplier’s MSDSs available immediately to the employees and that any new information that was included on a MSDS, “particularly in response to silica exposure,” would have been verbally relayed to the employees during a training session.

Given this evidence, there are genuine issues of material fact as to whether Smith Foundry relied on Badger Mining’s product information in making its safety recommendations to its employees. In such circumstances, the issue of reliance would best be left for a jury determination. See Balder, 399 N.W.2d. at 81. Thus, this case is more analogous to the decisions of other jurisdictions that have denied summary judgment to silica suppliers. See White v. W.G.M. Safety Corp., 707 F.Supp. 544, 548 (S.D.Ga.1988) (denying summary judgment for suppliers because the “existence of the employer’s independent duty does not provide an absolute defense for [the supplier]”); U.S. Silica v. Tompkins, 92 S.W.3d 605, 609 (Tex.App.2002) (affirming district court’s judgment for plaintiff and holding that the sophisticated intermediary defense did not apply because the employer could not be considered sophisticated and the supplier had taken no action to determine the sophistication of the employer); Humble Sand & Gravel, Inc. v. Gomez, 48 S.W.3d 487, 497 (Tex.App.2001) (affirming district court’s judgment for plaintiff and holding that the supplier had not met the threshold to assert the sophisticated intermediary defense because the supplier had not passed on its full knowledge to the employer).

Bulk Supplier

The bulk supplier defense also originates from section 388 of the Restatement (Second) and essentially is a specialized version of the sophisticated intermediary defense. See Restatement (Second) of Torts § 388. According to this defense, because of the difficulty in reaching the end user, the supplier of a material that is delivered in bulk can discharge its duty to warn the end user by warning the buyer of the dangerous condition of the materials. See In re Hoffman, 434 Mass. 624, 751 N.E.2d 848, 854-55 (2001); 3 Am. Law Prod. Liab.3d § 33:28 (Matthew J. Caravan ed., 1993). This defense is consistent with the federal regulation of hazardous chemicals, which requires the manufacturer to provide warnings to its purchasers in sales documents and MSDSs. See 29 C.F.R. § 1910.1200(f) & (g) (2003).

Because Badger Mining delivers its product by trucks in bulk, requiring Badger Mining to directly warn every employee of the potential risks involved with its product would be exceedingly costly and in some cases impossible. Thus, we recognize that Badger Mining likely established the predicate for the application of the bulk supplier defense. But the same arguments that applied to the sophisticated intermediary defense can be made as to why the bulk supplier defense raises genuine issues of material fact. It would not be reasonable for a bulk supplier to rely on the employer to warn its employees where the bulk supplier has not provided an adequate warning to the employer. Thus, the existence of fact issues concerning the adequacy of the warning in Badger Mining’s MSDS prevents summary judgment on the bulk supplier defense.

The Raw Materials/Component Product Supplier Defense

The Restatement (Third) of Torts: Products Liability § 5 (1998) identifies an additional defense to suppliers of inherently safe raw materials that are used as a component in a final product. According to the Restatement (Third), a supplier of a raw material should not be held liable when its product is integrated as a component into a finished product if the component itself is not dangerous.

[Wjhen a sophisticated buyer integrates a component into another product, the component seller owes no duty to warn either the immediate buyer or the ultimate consumers of dangers arising because the component is unsuited for the special purpose to which the buyer puts it.

Restatement (Third) of Torts: Products Liability § 5 cmt. b (emphasis added).

Badger Mining argues that because it sells a raw material that is not dangerous at the time of sale and that can be put to multiple uses, Badger Mining should not have a legal duty to warn against the multiple ways in which its product could become dangerous. Badger Mining cites two cases to demonstrate that the raw material/component parts supplier defense should apply in this situation.

In In re TMJ Implants Products Liability Litigation, 872 F.Supp. 1019, 1025 (D.Minn.1995), the court held that the supplier was not liable for failing to warn when its raw product was used as a component in surgical implants that later caused an injury to the implant patient. The court noted that the defendant’s material had multiple industrial uses and that “[t]o require manufacturers of such ‘building block’ materials to guarantee the safety of their products for each and every possible use would impose an unbearable burden on those manufacturers.” Id. at 1026. In Cimino v. Raymark Industries, Inc., 151 F.3d 297, 335 (5th Cir.1998), the court reached the same conclusion where the raw material was asbestos that was supplied to a manufacturer who incorporated it into insulating sheets that were sold to end consumers.

Although sand is a raw material and is not inherently dangerous, it is nevertheless dangerous when used in a foundry process. Badger specifically develops sand for foundry use and has conceded that it understands the manner in which silica is used in the foundry process. More importantly, the sand is not used as a component of a finished product, and it is the sand — not the finished product — that is dangerous to foundry workers.

Even where this defense is applicable, the supplier must still provide an adequate warning to the intermediate purchaser. If the manufacturer has superior knowledge, it has a duty to relay that information to the intermediate purchaser. Hill v. Wilmington Chem. Corp., 279 Minn. 336, 344, 156 N.W.2d 898, 904 (1968). In this case, there is evidence that Badger Mining did not adequately relay information on the recommended respirators to Smith Foundry.

IV.

Our decision is limited by the unique procedural posture of this case and the particular facts in the record. Because genuine issues of material fact precluded the district court from deciding, as a matter of law, that Badger Mining had no duty to warn or that its warning to Smith Foundry discharged its duty, the district court did not err in denying summary judgment. Accordingly, we reverse the court of appeals and reinstate the district court’s judgment.

Reversed.

      . Sand and silica are used interchangeably in this opinion. Both refer to crystalline silica. the dust of which has been found to cause silicosis of the lungs.

      . Although the Rules of Civil Procedure do not specifically authorize the parties to preserve an issue for appeal by stipulating to the entry of judgment, the parties agreed to this procedure and the court of appeals accepted it. Because the propriety of this procedure has not been argued or preserved for appeal, we express no view concerning it.

      . "Chemicals” are defined as “any element, chemical compound or mixture of elements and/or compounds” and include the sand sold by Badger Mining to Smith Foundry. 29 C.F.R. § 1910.1200(c) (2003).

      . Section 5 states:
      One engaged in the business of selling or otherwise distributing product components who sells or distributes a component is subject to liability for harm to persons or property caused by a product into which the component is integrated if:
      (a) the component is defective in itself, as defined in this Chapter, and the defect causes the harm; or
      (b)(1) the seller or distributor of the component substantially participates in the integration of the component into the design of the product; and
      (b)(2) the integration of the component causes the product to be defective, as defined in this Chapter; and
      (b)(3) the defect in the product causes the harm.
      Restatement (Third) of Torts: Products Liability! 5.

      . The reasons for distinguishing between physicians as intermediaries and industrial employers as intermediaries were well summarized by the court of appeals in Todalen, 424 N.W.2d at 79 (quoting from Hall v. Ashland Oil, 625 F.Supp. 1515, 1519-20 (D.Conn. 1986)). The Eighth Circuit used the same reasoning to decline the extension of the learned intermediary defense to industrial environments. See Donahue v. Phillips Petroleum Co., 866 F.2d 1008, 1013 (8th Cir.1989) (applying Missouri law).

      . Comment k to section 388 of the Restatement (Second) emphasizes the importance of special knowledge of the supplier, stating that a dangerous condition may be one which only persons of special experience would realize to be dangerous. In such case, if the supplier, having such special experience, knows that the condition involves danger and has no reason to believe that those who use it will have such special experience as will enable them to perceive the danger, he is required to inform them of the risk of which he himself knows and which he has no reason to suppose that they will realize.
      Restatement (Second) of Torts § 388 cmt. k (1965).

      . Even under the learned intermediary defense, we have held that a drug manufacturer is not relieved of a duty to warn the patient when its instructions to the physician are inadequate. Lhotka v. Larson, 307 Minn. 121, 124-25, 238 N.W.2d 870, 873-74 (1976).

      . The Restatement (Third) notes that:
      Courts have not yet confronted the question of whether, in combination, factors such as the component purchaser's lack of expertise and ignorance of the risks of integrating the component into the purchaser's product, and the component supplier’s knowledge of both the relevant risks and the purchaser’s ignorance thereof, give rise to a duty on the part of the component supplier to warn of risks attending integration of the component into the purchaser's product.
      Restatement (Third) of Torts: Products Liability § 5, cmt.b.


text:
    Raymond H. WAGNER, Respondent, v. CITY OF SAINT PAUL, Self-Insured, Relator.
    No. A03-1975.
    Supreme Court of Minnesota.
    March 18, 2004.
    Timothy S. Crom, Patrick S. Collins, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, MN, for Relator.
    Lewis H. Seitz, Seitz & Associates, Ltd., Golden Valley, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed November 21, 2003, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01.

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Alan C. Page

Alan C. Page

Associate Justice


text:
    Dennis L. SUMERFELT, Respondent, v. TRAVERSE COUNTY and Minnesota Counties Insurance Trust/RSK Co., Relators, and Blue Cross & Blue Shield/Blue Plus of Minnesota, Intervenor.
    No. A03-1986.
    Supreme Court of Minnesota.
    March 18, 2004.
    Jeffrey Gerald Carlson, Brown & Carlson, P.A., Minneapolis, MN, for Relators.
    Deanna M. McCashin, Shoepp & McCashin, Chtd., Alexandria, MN, for Respondent.
    Thomas F. Gilde, Blue Cross & Blue Shield of MN, St. Paul, MN, for Interve-nor.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed November 18, 2003, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Kathleen A. Blatz

Kathleen A. Blatz

Chief Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Thomas Joseph WHITE, a Minnesota Attorney, Registration No. 222823.
    No. A03-107.
    Supreme Court of Minnesota.
    March 19, 2004.
   ORDER

On February 27, 2004, the referee appointed to conduct a hearing on the petition for disciplinary action against respondent Thomas Joseph White filed his Findings of Fact, Conclusions of Law and Recommendation for Discipline. The referee found that respondent engaged in numerous acts of professional misconduct and recommended that respondent be disbarred. The Director of the Office of Lawyers Professional Responsibility has filed a request for interim suspension of respondent pending a final determination of the disciplinary proceeding under Rule 16(e), Rules on Lawyers Professional Responsibility, which provides that upon a referee’s recommendation of disbarment, “the lawyer’s authority to practice law shall be suspended pending final determination of the disciplinary proceeding, unless the referee directs otherwise or the court orders otherwise.” The referee did not direct that respondent should not be placed on interim suspension. Respondent has filed a response explaining the reasons he believes interim suspension is not warranted. We conclude that interim suspension under Rule 16(e), RLPR, is warranted.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Thomas Joseph White is placed on interim suspension pending final determination of the disciplinary proceeding effective 14 days after the filing of this order. Respondent shall comply with Rule 26, RLPR.

BY THE COURT:

/s/ Paul H. Anderson

Associate Justice


author: ANDERSON, PAUL H., J.

text:
    In re Petition of Elliot ROTHENBERG for Review of a Decision of the Board of Continuing Legal Education.
    No. A03-884.
    Supreme Court of Minnesota.
    March 25, 2004.

      Elliot C. Rothenberg, Pro se, Minneapolis.
    Michael A. Hatch, State Attorney General, Steven M. Gunn, Assistant Attorney General, Ruth E. Flynn, Assistant Attorney General, St. Paul, for Respondent.
    Peter A. Swanson, Golden Valley, for Amicus Curiae.
    Jennifer E. Giesen, Kathleen Hagen, Minneapolis, for Amicus Curiae MN Disability Law Center.
   OPINION

ANDERSON, PAUL H., J.

Petitioner Elliot Rothenberg is a lawyer currently licensed to practice law in the State of Minnesota. During his most recent three-year reporting period for continuing legal education credits, Rothenberg chose not to comply with Rule 9(A)(2) of the Rules of the Minnesota Board of Continuing Legal Education (RMBCLE). Rule 9(A)(2) requires lawyers to submit an affidavit showing that they have completed at least two hours of courses on the elimination of bias in the legal profession and in the practice of law. At a hearing before the Board of Continuing Legal Education, Rothenberg asserted that the elimination of bias requirement is unconstitutional. The Board found that Rothenberg was in noncomplianee with the elimination of bias requirement and recommended that his license be placed on restricted status. We conclude that the elimination of bias requirement and the Board’s approval of continuing legal education courses to satisfy the requirement do not violate Rothen-berg’s constitutional rights and order Rothenberg to comply with Rule 9(A)(2), RMBCLE, by July 1, 2004, or have his license placed on involuntary restricted status.

On September 15, 1995, this court established by order an elimination of bias requirement as part of the continuing legal education program in Minnesota. At the same time, we authorized the Board of Continuing Legal Education to create a Special Continuing Legal Education Advisory Committee to study definitions, course approval standards, and recommend rules for the requirement. On January 30, 1996, the Advisory Committee submitted an Interim Report, which noted concerns and recommendations from members of the bar regarding the elimination of bias requirement. Many bar members recommended that the rules should not only permit the approval of courses addressing issues identified in the Minnesota Supreme Court Task Force Report on Race Bias, but also permit courses addressing other viewpoints on the extent of bias in the legal profession. Members cautioned against drafting rules that would “require attorneys to attend courses contrary to the attorneys’ political or religious beliefs,” and recommended the court adopt a “broad definition of bias, permitting the approval of any course designed to help attorneys become aware of bias in society in general.” In its Final Report, the Advisory Committee recommended rules and definitions for the administration of the elimination of bias requirement as part of the continuing legal education program in Minnesota. We adopted rules for the elimination of bias requirement, which are now contained in the Rules of the Minnesota Board of Continuing Legal Education.

Rule 2(1) of the Rules of the Minnesota Board of Continuing Legal Education defines continuing legal education courses on the elimination of bias in the legal profession and in the practice of law as courses that are

directly related to the practice of law that [are] designed to educate attorneys to identify and eliminate from the legal profession and from the practice of law biases against persons because of race, gender, economic status, creed, color, religion, national origin, disability, age or sexual orientation.

As with all CLE courses, to qualify for credit an elimination of bias course must be approved by the Board. Rule 4, RMBCLE. To be approved, a course: must be identified on an application and described in a narrative as fulfilling the elimination of bias requirement; must focus on issues in the legal profession and in the practice of law and not on issues of bias in society in general; and must not address the substantive law of illegal discrimination unless the course meets one or more of the learning goals for elimination of bias courses. Rule 6(B), RMBCLE.

The learning goals of the elimination of bias requirement are:

1. [T]o educate attorneys about the elimination of bias or prejudice in the legal profession, in the practice of law, and/or in the administration of justice;
2. [T]o educate attorneys regarding barriers to hiring, retention, promotion, professional development and full participation of lawyers of color, women, and those persons referenced in the “Course in the elimination of bias in the legal profession and in the practice of law” definition Rule 2(1) of the Rules of the CLE Board, both in the public and private sector of the legal profession and in the practice of law;
3. [T]o educate attorneys about the problems identified in the Supreme Court’s Race Bias and Gender Fairness Task Force Reports, as well as in other studies, reports or treatises which describe bias and prejudice in the legal profession, in the practice of law, and/or in the administration of justice.

Appendix I, Course Approval Form, RMBCLE.

In his affidavit to the Board for his July 1, 1999 through June 30, 2002 reporting period for continuing legal education credits, Rothenberg reported zero course hours approved for elimination of bias credit. Following a reminder and a final warning, the Board sent Rothenberg a notice of noncompliance. In accordance with Rule 11, RMBCLE, Rothenberg requested a hearing before the Board.

The hearing was held on June 19, 2003. At the hearing, Rothenberg did not dispute his failure to complete two course hours on the elimination of bias. Rothen-berg asserted that the elimination of bias requirement was unconstitutional, opining that the findings and conclusions of the Race Bias Task Force Report, which formed the basis for the elimination of bias requirement, were based on dubious claims of bias in Minnesota’s justice system. Rothenberg also argued that certain elimination of bias courses promote political beliefs he disagrees with and unconstitutionally promote religion. In particular, Rothenberg referenced courses that he claimed give preferential treatment to Islam and oppose the United States’ efforts against terrorism, as well as capital punishment courses that he alleged presented only one side of the issue.

The Board issued findings of fact and conclusions of law, concluding that Rothen-berg was in noncompliance with the elimination of bias requirement. The Board did not address Rothenberg’s constitutional arguments and recommended that if Rothenberg did not seek review of its decision, his license be placed on involuntary restricted status in accordance with Rule 11(F), RMBCLE.

Rothenberg filed a petition for review with this court pursuant to Rule 11(G), RMBCLE, which provides that we “shall give such direction, hold such hearings and make such order[s] as [we] may in [our] discretion deem appropriate.” We granted Rothenberg’s petition to hear his constitutional arguments, ordering Rothen-berg to proceed as appellant and the Board to proceed as respondent.

Rothenberg argues in his brief that the elimination of bias requirement “has turned into an engine of divisive political ideology.” As evidence, Rothenberg identifies approximately 10 courses that he claims represent the politicization of the requirement. Rothenberg specifically challenges the Board’s approval of certain courses that discuss Islam. Rothenberg argues that these courses fail to discuss issues such as “mass worldwide terrorism, * * * the recruitment of homicide-suicide bombers, aggressive religious jihad, * * * teaching children virulent hatred of non-Muslims and the U.S., misogyny, and slave trading all in the name of religion.” The Board, in response, does not address the courses Rothenberg challenges, but points out that Rothenberg has not objected to hundreds of other courses approved for elimination of bias credit during his reporting period.

At oral argument, Rothenberg conceded that “there is prejudice and bias in society” and among lawyers as well. Rothen-berg agreed that bigotry, prejudice, and bias “ought to be combated at every turn.” Furthermore, he acknowledged that “lawyers and judges should educate themselves, should * ⅝ * reflect on these issues, should want to ensure that their conduct as leaders in society and leaders in government does not hurt anyone [and] does not deny anyone’s rights on the basis of bigotry or prejudice or bias.” Rothen-berg also conceded during oral argument that there are “a vast variety of courses” on the elimination of bias. Nevertheless, Rothenberg argued that the operation of the elimination of bias requirement is unconstitutional because “all the courses have an ideological content” and the presence of any ideological courses or any courses discussing religion is unjustified. Therefore, Rothenberg argues, it would be unconstitutional for our court to punish a lawyer for failing to attend courses on the elimination of bias.

I.

We first consider whether the elimination of bias requirement violates Rothenberg’s First Amendment right to freedom of speech. Rothenberg has framed this issue in different ways, arguing that (1) he is forced to pay for and attend courses presenting beliefs and ideas with which he disagrees, (2) the elimination of bias requirement was designed on an ideological basis, and (3) the Board’s approval of courses is ideologically based. We address each of these arguments in the context of the First Amendment’s protection against compelled speech or association.

The United States Supreme Court has held that the First Amendment prevents the government from compelling individuals to pay subsidies for speech to which they object. See Keller v. State Bar of California, 496 U.S. 1, 14, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990). The Court has recognized that, though there is a need for compulsory dues in contexts such as a labor union or a bar association, it may violate the First Amendment to force a person to contribute money toward a cause with which he or she disagrees. Id.; Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). The “heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the State.” Abood, 431 U.S. at 234-35, 97 S.Ct. 1782.

In Keller, lawyers challenged the use of state bar dues to fund “ideological or political activities” such as legislative lobbying of political issues. 496 U.S. at 4, 110 S.Ct. 2228. The Supreme Court held that compelled association through an integrated bar was justified by California’s interest in “regulating the legal profession and improving the quality of legal services.” 496 U.S. at 13, 110 S.Ct. 2228. The Court held that dues could be collected from all members to fund any activities germane to those goals. Id. at 14, 110 S.Ct. 2228. But, the Court explained, members of the bar could not be compelled to fund activities that were not germane to the goals of regulating the legal profession or improving the quality of legal services and were of an ideological nature. Id. The “guiding standard” for whether expenditures are permissible is whether the challenged expenditures are “necessarily or reasonably incurred for the purpose of regulating the legal profession or ‘improving the quality of the legal service available to the people of the State.’ ” Id. (quoting Lathrop v. Donohue, 367 U.S. 820, 843, 81 S.Ct. 1826, 6 L.Ed.2d 1191 (1961)).

Rothenberg argues that the elimination of bias requirement is unconstitutional because the First Amendment protects him from being compelled to subsidize speech he finds objectionable. However, there is no evidence that Rothenberg is forced to pay for a course or courses discussing ideological or political ideas that he opposes. Rothenberg has identified courses that he disagrees with based on their titles and descriptive materials, but there are hundreds of courses offered to which he has not voiced any objection and that he could take in order to complete the elimination of bias requirement. Rothenberg conceded in oral argument that there are “a vast variety of courses” on the elimination of bias. We conclude that the elimination of bias requirement does not force Rothenberg to pay for courses presenting ideas with which he disagrees.

Moreover, Rothenberg’s statements at oral argument indicate that he agrees that eliminating bias in the legal profession and in the practice of law would improve the quality of legal services in Minnesota. Rothenberg concedes that there is prejudice and bias in society, that it ought to be combated at every turn, and that lawyers should ensure that their conduct does not hurt anyone and does not deny anyone’s rights on the basis of bigotry, prejudice, or bias. We agree. Based on our review of the elimination of bias requirement, we conclude under the Keller analysis that this requirement is germane to the goals of regulating the legal profession and improving the quality of legal services in Minnesota.

Rothenberg also argues that the First Amendment’s protection of an individual’s freedom of conscience makes the elimination of bias requirement unconstitutional. First Amendment rights may be violated if a state infringes upon an “indi-viduales] freedom of mind” or conscience. West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); accord Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (holding that New Hampshire could not punish an individual for blocking out part of his automobile license plate containing the state motto, “Live Free or Die”); see also Hurley v. Irish-Am. Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 573, 115 S.Ct. 2338,132 L.Ed.2d 487 (1995) (holding forced association violated the First Amendment when state law forced parade organizers to allow a group with beliefs with which the organizers did not agree to participate in the expressive activity of a parade). “Just as the First Amendment may prevent the government from prohibiting speech, the Amendment may prevent the government from compelling individuals to express certain views.” United States, v. United Foods, Inc., 533 U.S. 405, 410, 121 S.Ct. 2334, 150 L.Ed.2d 438 (2001).

As discussed above, however, there is no evidence that Rothenberg is forced to attend a course discussing ideas with which he disagrees. Moreover, the elimination of bias requirement is fundamentally different from the activities and behavior addressed by the Supreme Court in Wooley, Barnette, and Hurley. In those cases, individuals were forced to affirmatively express agreement with or pledge allegiance to particular beliefs. The grounds for a First Amendment violation in Wooley and Barnette were the right to protect autonomy over one’s mind; in Hurley, the Supreme Court addressed the right of an individual to protect his image in situations where third parties will interpret expressive behavior as an expression of that individual’s own beliefs. In contrast, the elimination of bias requirement does not force Minnesota lawyers to say “I believe in X” or manifest agreement with anything. It only requires that Minnesota lawyers be passively exposed to certain ideas by attending courses on the elimination of bias in the legal profession and in the practice of law. For this reason, the California Court of Appeals, which appears to be the only other court to have considered a similar issue, held that a California requirement that lawyers attend classes on elimination of bias does not violate the First Amendment. See Greenberg v. State Bar of California, 78 Cal.App.4th 39, 92 Cal. Rptr.2d 493, 496 (2000) (stating that lawyers are merely “passively exposed to classes relating to these subjects, without being compelled to manifest any agreement or allegiance to their goals or other political agendas.”), rev. denied (Apr. 26, 2000).

Rothenberg asserts that being forced to pay for a course would make him more than passively exposed to those ideas. However, having concluded that the elimination of bias requirement is germane to the goal of regulating the legal profession and improving the quality of legal services in Minnesota, we also conclude that requiring lawyers to pay for such a course does not raise such concerns.

Rothenberg’s other arguments, that the elimination of bias requirement was designed on an ideological basis or that the Board has approved courses on an ideological basis, also lack any support. Rothen-berg has presented no evidence that the elimination of bias requirement was designed on an ideological basis or that the Board has approved courses on an ideological basis. In the context of Rothen-berg’s argument, “ideological” appears to be shorthand for something with which he disagrees. Merely asserting that the elimination of bias requirement has ideological origins or is applied ideologically does not create a cognizable claim.

Moreover, we disagree with Rothen-berg’s characterization of the elimination of bias requirement as necessarily seeking to inculcate beliefs. Courses approved for elimination of bias credit must be “directly related to the practice of law” and “designed to educate attorneys to identify and eliminate [bias] from the legal profession and from the practice of law.” Rule 2(1), RMBCLE. These courses must be designed to meet educational goals such as educating lawyers regarding barriers to hiring, retention, promotion, and professional development of lawyers of color, women, and others. Such goals illustrate that the elimination of bias requirement seeks to change behavior by informing lawyers how to identify and eliminate bias. For purposes of reference, a course presented in 2001 and discussed in the record before us was entitled “Understanding Deaf Culture and Working with Deaf Clients.” The materials for this course state that its objectives include identifying specific needs of people who are deaf with respect to communication and adaptive equipment and identifying ways of enhancing communication.

We conclude that the elimination of bias requirement serves the legitimate function of informing lawyers how to identify and eliminate bias in the legal system. We recognize Rothenberg’s disagreement with the views expressed by some of the approved elimination of bias courses. However, our decision to prescribe rules allowing a broad array of courses that could qualify for elimination of bias credit was made after taking into consideration concerns by members of the bar who cautioned against having a limited view of what constitutes bias.

For the foregoing reasons, we hold that the elimination of bias requirement does not violate Rothenberg’s First Amendment right to freedom of speech. We acknowledge, however, that Rothenberg’s appeal highlights the need to have courses that are well designed to meet the goals set forth and the definitions provided by the Rules of the Minnesota Board of Continuing Legal Education. Accordingly, we urge the Board to exercise continued vigilance as it reviews and approves courses for the elimination of bias credit.

II.

We next address Rothenberg’s argument that the elimination of bias requirement violates the Establishment Clause of the First Amendment because the Board has approved courses that promote religion. The First Amendment prevents the government from making any law “respecting an establishment of religion * * U.S. Const, amend. I. A state law, though facially nondiscriminatory, may violate the Establishment Clause if it fails to meet a three-pronged test: (1) it must have a secular purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).

Rothenberg does not appear to contest that the elimination of bias requirement has a secular purpose, but argues that the elimination of bias requirement violates the Establishment Clause because the Board has approved courses that give “special emphasis to propagating approval of or at least sympathy for Islam.” Roth-enberg argues that there are no courses on anti-Semitism, for example, but there are courses on Islam such as “Understanding Islam and Working with Muslim Clients” and “Enhancing Your Knowledge of Somali and Islamic Cultures.” Materials for these courses illustrate that they do include discussion of the religious tenets and values of Islam in an effort to educate and inform Minnesota lawyers in order to allow them to better serve their clients. Roth-enberg takes issue with the courses’ lack of discussion of Islamic-based- terrorism, but he fails to articulate why such a discussion would be appropriate in courses with the purpose of improving lawyers’ ability to work with Muslim clients in order to eliminate biases in the legal system that Rothenberg acknowledges exist among lawyers. Based on the course materials and the record before us, we conclude that the Board’s approval of these courses does not have the primary effect of advancing or inhibiting religion. See Zelman v. Simmons-Harris, 536 U.S. 639, 683-84, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (holding school voucher program enacted for valid secular purpose and facially neutral toward religion did not violate the Establishment Clause because it did not provide a preference for religion.)

Rothenberg concedes, and the record demonstrates, that lawyers have a wide variety of courses from which to choose to fulfill the elimination of bias requirement. It appears that only a few out of the hundreds of these courses discuss religious beliefs. We conclude that the fact that lawyers have the opportunity to take courses on the elimination of bias that discuss religion in the context of educating lawyers to better serve their clients does not excessively entangle the state in religion. See School Dist. of Abington Tp., Pa. v. Sckempp, 374 U.S. 203, 226, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (holding that a state law requiring the reading of verses from the Bible and the recitation of the Lord’s Prayer at the beginning of each school day was unconstitutional; distinguishing this activity from studying the Bible in a literature or comparative religion course, which would be permissible).

Accordingly, we hold that, when meeting the elimination of bias requirement, the Board’s approval of certain courses that include a discussion of religion in the context of eliminating bias in the legal profession and in the practice of law does not violate the Establishment Clause.

III.

Rothenberg also asserts that the elimination of bias requirement, as applied, violates the Freedom of Conscience Clause of the Minnesota Constitution. Article I, section 16 of the Minnesota Constitution provides:

Freedom of conscience; no preference to be given to any religious establishment or mode of worship. The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state, nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries.

In State v. Hershberger, we applied the Freedom of Conscience Clause to afford greater protection for religious liberties than the First Amendment. 462 N.W.2d 393 (Minn.1990). We held that a state statute requiring the display of a slow-moving vehicle emblem was unconstitutional as applied to Amish defendants because the statute violated the defendants’ freedom of conscience. Id. Hershberger was decided on remand after the Supreme Court vacated our earlier decision holding that the statute violated the defendants’ First Amendment free exercise rights. Minnesota v. Hershberger, 495 U.S. 901, 110 S.Ct. 1918, 109 L.Ed.2d 282 (1990).

Rothenberg does not present any arguments why the elimination of bias requirement violates his freedom of conscience— he only asserts that the clause grants more protection than the First Amendment. Rothenberg cites Rasmussen v. Glass, in which the Minnesota Court of Appeals held that a city ordinance requiring a restaurant owner to deliver food to a medical facility that performed abortions, which the owner strongly opposed, violated the owner’s rights under the Freedom of Conscience Clause. 498 N.W.2d 508, 516 (Minn.App.1993). Rasmussen, like Hersh-berger, applied the compelling state interest balancing test to conclude that a state law burdened an individual’s exercise of religion. It is not clear to us, however, how the elimination of bias requirement could burden Rothenberg’s free exercise of religion. As we have already concluded, Rothenberg had numerous choices of courses to meet the elimination of bias requirement and he has not shown that he had no choice but to violate his freedom of conscience. Accordingly, we hold that, when meeting the elimination of bias requirement, the Board’s approval of courses that include a discussion of religion in the context of eliminating bias in the legal profession and in the practice of law does not violate Rothenberg’s rights under article I, section 16 of the Minnesota Constitution.

IV.

Having concluded that the elimination of bias requirement does not violate Rothen-berg’s constitutional rights, we are left with the Board’s conclusion that Rothen-berg is in noncompliance with Rule 9(A)(2), RMBCLE. Because Rothenberg does not dispute that he is in noncompliance with the requirement, we adopt this conclusion and must decide the appropriate action to resolve this case. See Rules 11(F) & 11(G), RMBCLE. In making this determination, we are mindful of the fact that Rothenberg is a long-time member of the Minnesota bar in good standing and has made good faith arguments in challenging the constitutionality of the elimination of bias requirement. We- are also mindful that the Rules of the Minnesota Board of Continuing Legal Education do not provide a method for a lawyer with concerns about the content of continuing legal education courses to challenge these courses and that failing to comply with the requirements and requesting a hearing before the Board was, in this case, a way for Rothen-berg to express his concerns.

Therefore, we order that petitioner Elliot Rothenberg comply with the elimination of bias requirement for his July 1, 1999 through June 30, 2002 continuing legal education reporting period. He may do so by attending a qualifying course or courses and by submitting an Affidavit of CLE Compliance for this period by July 1, 2004 in accordance with Rule 9(A)(2), RMBCLE. If Rothenberg fails to comply with this order by such date, his license shall be placed on involuntary restricted status as defined by Rule 2(L), RMBCLE, subject to the restrictions of Rule 12, RMBCLE.

It is so ordered.

      . This court has the inherent power to regulate the practice of law in Minnesota. Sharood v. Hatfield, 296 Minn. 416, 422-23, 210 N.W.2d 275, 279 (1973). Additionally, Minn. Stat. § 480.05 (2002) provides that we are to "prescribe, * * ⅜ amend and modify * ⅜ * rules governing the examination and admission to practice of attorneys at law and rules governing their conduct in the practice of their profession * *

      . The Board of Continuing Legal Education has supervisory authority over the administration of the Rules of the Minnesota Board of Continuing Legal Education, including the authority to approve courses and programs to satisfy the educational requirement of the rules, subject to the general direction of this court. Rule 3(D), RMBCLE.

      .On April 17, 2000, we adopted the Rules of the Minnesota Board of Continuing Legal Education, effective July 1, 2000, which repealed the Rules of the Minnesota Supreme Court and the State Board for Continuing Legal Education of Members of the Bar, which had governed continuing legal education requirements. By Order dated December 11, 2003, we prescribed and promulgated Amendments to the Rules of the Minnesota Board of Continuing Legal Education, effective February 1, 2004. This opinion cites to the rules, as amended, effective February 1, 2004.

      . The Minnesota Office of Attorney Registration specifies a three-year period for each lawyer’s continuing legal education reporting period. A lawyer must submit an affidavit within 60 days of the close of this three-year period. Rule 9(B), RMBCLE.

      . These courses include: "Representing Muslim and Arab Clients After 9-11: Can the Sixth Amendment Right to Counsel Survive?”; “ 'With Justice for All' — An Ethics & Elimination of Bias CLE Featuring Morris Dee”; "Civil Liberties in a Post 9/11 World”; "Impeach Justice Douglas!” — a theatrical performance focusing on several issues with which Justice William O. Douglas was involved during his tenure on the U.S. Supreme Court; and "Presumed Guilty: Eliminating Bias in the Legal System.”

      . The precise number of other courses presented is unclear. Between July 1, 1999 and June 30, 2002, al least 700 courses were presented for at least one hour of elimination of bias credit in Minnesota. Many of these courses were the same or similar, but the number of different courses, based on the evidence presented to us, was at least 150. These courses appear to encompass a broad range of issues, including "Women in Law Firms,” "Working With Immigrant Clients: Cultural and Language Issues,” "Disability in the Law,” and "Understanding the Special Needs of the Elderly/Disabled,” to name just a few.

      . Rules promulgated by this court are subject to the requirements of the First Amendment. See Republican Party of Minnesota v. White, 536 U.S. 765, 788, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002).

      . An “integrated bar” is an "association of attorneys in which membership and dues are required as a condition of practicing law in a State.” Keller, 496 U.S. at 5, 110 S.Ct. 2228.

      . Amicus curiae Peter Swanson argues that the failure to allow lawyers to opt out of the requirement makes the elimination of bias requirement unconstitutional because lawyers are a “captive audience.” See also Kari M. Dahlin, Actions Speak Louder Than Thoughts: the Constitutionally Questionable Reach of the Minnesota CLE Elimination of Bias Requirement, 84 Minn. L.Rev. 1725, 1747-49, 1755 (2000). The captive audience doctrine is based on the notion that, in certain circumstances, the unwillingness of persons to receive a message outweighs another's right to speak. See Marcy Strauss, Redefining the Captive Audience Doctrine, 19 Hastings Const. L.Q. 85, 86-87 (1991). The Supreme Court has applied the concept of a captive audience to protect an individual when he or she receives an unwanted message in the privacy of one’s home. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 72, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), or when the government is attempting to prevent hate speech, nudity, or other offensive speech in order to protect .certain persons from exposure to it in public. See Lehman v. City of Shaker Heights, 418 U.S. 298, 302, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (holding constitutional a city’s decision to not allow political or public-issue advertisements on its buses; a plurality relying in part on the fact that the riders of the bus would be captive to such advertising); Cohen v. California, 403 U.S. 15, 23, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (holding unconstitutional the conviction of a defendant for disturbance of the peace for wearing a jacket bearing offensive words in a courthouse despite persons in a courthouse being captive to the message). We have found no case where the Supreme Court has applied the captive audience doctrine in the "negative” sense, that is, where the government requires an individual to be “captive” as opposed to protecting the individual from being captive. Assuming ar-guendo that the captive audience doctrine is relevant in the context of this case, we believe that it raises essentially the same First Amendment concerns that Rothenberg makes when he argues that he is unconstitutionally forced to attend elimination of bias courses.

      . To support his assertion at the hearing before the Board, Rothenberg cited to an article by Richard Posner entitled An Army of the Willing, The New Republic, May 19, 2003, at 27; and an article by Jonathan Kay entitled Crime by the Numbers, Commentary, April 2003, at 73. Neither of these articles discusses the Race Bias Task Force Report nor provides any basis for the assertion that the elimination of bias requirement is ideologically-based, much less unconstitutional. In his brief to this court, Rothenberg cites to a newspaper article that discusses generally the Race Bias Task Force Report. Dave Peterson and Paul Gustafson, Accuracy or Advocacy? Bias Report Challenged, Minneapolis Star Trib., June 27, 1993, at IB.


author: RANDALL, Judge.

text:
    Matthew RADKE, as trustee for the next of kin of Makaio Lynn Radke, Appellant, v. COUNTY OF FREEBORN, et al., Respondents, Peggy Radke, et al., Defendants.
    No. A03-797.
    Court of Appeals of Minnesota.
    March 23, 2004.

      Stephen C. Fiebiger, Stephen C. Fiebiger & Associates, Burnsville, MN, for appellant.
    James R. Andreen, Erstad & Riemer, P.A., Minneapolis, MN, for respondents.
    Considered and decided by KLAPHAKE, Presiding Judge, RANDALL, Judge, and HARTEN, Judge.
   OPINION

RANDALL, Judge.

Appellant, decedent’s father and trustee for his next of kin, sued the county and two child protection workers for negligence after the 19-month-old child, whom they had visited following reports of abuse, was beaten to death by the boyfriend of the child’s mother. On appeal from the district court’s dismissal of the complaint for failure to state a claim upon which relief can be granted, appellant contends that the respondents assumed a duty to act with reasonable care, and that the wrongful-death negligence claim is based on this special duty. We cannot conclude the legislature either expressly or impliedly created a civil cause of action under the Child Abuse Reporting Act. We affirm.

FACTS

Matthew (appellant) and Peggy Radke (Radke) were the parents of Makaio Lynn Radke (Makaio), born September 17, 1999. In January 2001, the parties separated and began the process of dissolving the marriage. Shortly thereafter, Kristina Baker and Paul Gutierrez began living at the same residence with Radke and Makaio. Due to complaints of abuse and neglect made by appellant, Makaio became the subject of investigation by the Freeborn County Department of Human Services.

On February 28, 2001, Dr. Mohammed G. Soud of the Albert Lea Medical Center examined Makaio. Dr. Soud issued a report of possible abuse to Peggy Ressler, a social worker with the Freeborn County Human Services Department. The report stated that Makaio had dry lesions behind his left ear, a scabbed lesion behind his right ear, a 5 x 5 cm bruise behind his right cheek and a 1 x 2 bruise on his left cheek. Based on this report, Ressler visited Makaio at home on March 2, 2001. At this visit, Radke told Ressler that Makaio’s injuries were sustained when Makaio fell down. Neither Ressler nor the County investigated the situation further at that time.

A few weeks later, on March 21, 2001, appellant discovered bruising on Makaio’s testicles and brought Makaio to the Albert Lea Police Department (ALPD). After the police took photographs, appellant took Makaio to Urgent Care at the Albert Lea Medical Center. An examination revealed that Makaio had a superficial well-crusted abrasion to the back of his head, a small superficial abrasion on the right side of his head, a linear abrasion behind his left ear, a 1.5 cm black and blue area on his left jaw, a 1.5 x 4 cm black and blue area on his left thoracic back near his spine, a peeling area with a linear edge approximately 3 cm wide on his lateral superior right thigh, like a burn, his left lateral foot on the plantar surface was bullous, de-roofed and crusted like a burn measuring 1.5 x 7 cm, and a dried open area on the outer aspect of his left foot at the ball of his foot onto his great toe, with scabbing, similar to a burn. Based on the examination, the doctor at Urgent Care suspected abuse, and the next day, the ALPD reported the suspected abuse to the Freeborn County Department of Human Services.

On March 26, 2001, Ressler again visited Makaio at Radke’s home where she spoke with Radke and Gutierrez. Radke told Ressler that the mark on Makaio’s foot was attributed to “hoof-and-mouth disease” (the record also reflects an alternative term, “hand-foot-mouth disease” as referred to by Radke). No further investigation was conducted at this time. Shortly thereafter, appellant received a letter from Ressler stating that the bruise on Makaio’s foot had not been intentionally inflicted and child protective services were not necessary.

On April 11, 2001, appellant contacted the ALPD again to report his concern that Makaio was being abused. Two days later, Makaio’s guardian ad litem (GAL) also contacted the ALPD after a visit to the Radke home. The GAL reported that Ma-kaio had some old and some new bruises on his face. The GAL reported that the explanation given to her by Radke was that the bruising occurred the night before while Makaio had been in the bathtub.

Social worker Lisa Frank visited Makaio at Radke’s home at approximately 11:00 a.m. on April 20, 2001. Present at the home during the visit were Radke and her daughter, Baker and her child, and Ma-kaio. Frank was aware of the prior reports of abuse, and during her visit, she was able to observe a small light green bruise on Makaio’s left temple, a similar bruise on his rib cage, and a third small light green bruise on his backbone just above his diaper. Frank also observed that Makaio was lethargic and had a runny nose. The meeting concluded at about 11:30 a.m., and no further precautions were taken.

Later that day, Radke and Baker left the house at about 1:00 in the afternoon, and did not return until about 1:00 a.m. The two women left their children at the house with Gutierrez. The next morning, Radke brought Makaio to the Albert Lea Medical Center where he was pronounced dead at 10:19 a.m. Makaio’s body had bruises on his face, back, legs, arms, lower extremities and head. He had a small abrasion and bruise on his occipital area and a small bruise that was approximately 1 cm on his back that appeared older than the other bruises. Makaio also had multiple fractures of his ribs and sub subcutaneous emphysema, and had a laceration on the edge of his rectum raising suspicions of abuse. An autopsy conducted by the Ramsey County Medical Examiner determined that Makaio had died 10 to 12 hours before he was confirmed dead at the hospital. Makaio’s sister was also examined for abuse, and the examination revealed that she had bruises on her buttocks, scratches on her neck and hair loss. Gutierrez was subsequently convicted of two counts of first-degree murder by criminal sexual conduct and child abuse, and one count of second-degree murder.

Appellant was appointed Trustee for the Next of Kin of Makaio on December 18, 2002, by Order of the District Court. Shortly thereafter, appellant commenced this wrongful death negligence action against Freeborn County, Lisa Frank, and Tammy Ressler, individually and in her capacity as an employee of Freeborn County (respondents). Peggy Radke and Gutierrez were also named in the suit.

Pursuant to Minn. R. Civ. P. 12.02(e), respondents Freeborn County, Frank, and Ressler moved to dismiss for failure to state a claim for which relief can be granted. On April 3, 2003, appellant served requests for production of documents and things, to which respondents responded with a motion for a protective order asking that they should not be required to produce the discovery until after the court ruled on the motion to dismiss. Appellant subsequently filed a motion to compel discovery contending that the discovery was necessary to evaluate the motion to dismiss.

On May 21, 2003, the district court granted respondents’ motion for a protective order, staying discovery until after the court ruled on the motion to dismiss. Two weeks later, the district court granted the motion to dismiss. This appeal followed.

' ISSUES
I. Did the district court err by granting respondent’s motion to dismiss for failure to state a claim upon which relief can be granted?
II. Did the district court abuse its discretion when it granted respondent’s protective order staying the production of discovery until the motion to dismiss was heard?

ANALYSIS

I.

In reviewing cases that were dismissed for failure to state a claim on which relief can be granted, the only question before the reviewing court is whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997). An appellate court reviews the claim’s legal sufficiency de novo. Pullar v. Indep. Sch. Dist. No. 701, Hibbing, 582 N.W.2d 273, 275-76 (Minn.App.1998). The facts in the complaint are accepted as true, and the plaintiff has the benefit of all favorable and reasonable inferences. Id.

The Child Abuse Reporting Act (CARA) was enacted to “protect children whose health or welfare may be jeopardized through physical abuse, neglect or sexual abuse.” Minn.Stat. 626.556, subd. 1 (2002). This statute requires local welfare agencies to follow up reports of alleged sexual abuse immediately with an assessment and an offer of protective social services to prevent further abuse. Minn.Stat. 626.556, subd. 10(a) (2002). A person who is mandated by CARA to report abuse, and fails to report the abuse, is guilty of a misdemeanor. Minn.Stat. 626.556, subd. 6(a) (2002). The statute does not create civil liability for the failure to report suspected abuse. See Valtakis v. Putnam, 504 N.W.2d 264, 266 (Minn.App.1993) (finding no civil cause of action under CARA for failure to report suspected child abuse because the statute did not mention a civil cause of action for failure to report, nor did the language of the statute imply a civil cause of action).

Appellant’s complaint is not based specifically on respondent’s failure to follow CARA, rather appellant contends that respondents owed a “special duty” to Makaio that was created by their conduct and assumption of the duty to act reasonably. In determining whether a “special duty” exists, the court in Cracraft set forth the following four factors to be considered: (1) the municipality’s actual knowledge of the dangerous situation; (2) the plaintiffs reasonable reliance on the specific representations of the municipality; (3) a statutory duty for municipal protection of a particular class; and (4) the municipality must use due care not to increase the risk of harm. Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806-07 (Minn.1979). While all four factors should be considered, all four need not necessarily be met for a special duty to exist. Andrade v. Ellefson, 391 N.W.2d 836, 841 (Minn.1986).

Appellant’s argument here is based primarily on Andrade. In that case, two minor children sustained serious injuries while attending a daycare facility operated by the defendants and inspected and supervised by Anoka County in assisting the Commissioner of Human Services in its licensing responsibility. Andrade, 391 N.W.2d at 837. In determining whether a special relationship existed between the county investigating daycare facilities for licensure and the small children who attended the facility, giving rise to a negligence claim, the court stated that it was the third Cracraft factor that was decisive in the case. Id. at 842. The court recognized that the licensing requirements were adopted to “ensure a safe environment for children” in accordance with Minn.Stat. 245.802, subd. (1984). Id. Thus, the court held that a special relationship existed because the commissioner had promulgated detailed rules governing the needs and well being of the children in day care facilities. Id.

Respondent contends that Hoppe v. Kandiyohi County, 543 N.W.2d 635 (Minn. 1996), decided ten years after Andrade, is controlling in this case. In Hoppe, a bank employee had converted a nursing home patient’s funds after being granted power of attorney. The guardian of the patient brought action against the county on behalf of the patient based on the alleged negligent failure of the county social services employees to timely investigate or report the actions as required by the Vulnerable Adults Reporting Act (VARA). Hoppe, 543 N.W.2d at 637. Both parties moved for summary judgment, and the district court granted the county’s motion to dismiss. The Court of Appeals reversed, acknowledging that there was no express provision for imposing liability under the circumstances of record, but holding that under Andrade, a special relationship existed between the county and the vulnerable adult “giving rise[e] to a tort duty of care owed by the county to Hoppe.” Hoppe v. Kandiyohi County, No. CO-94-1627, 1995 WL 70167 (Minn.App. Feb 21, 1995).

In reversing the Court of Appeal’s decision that a “special relationship” existed, the Supreme Court began by distinguishing Andrade stating that the licensing procedure at issue in Andrade entailed a detailed inspection and evaluation of an applicant facility, and the licensing requirements were adopted to “ensure a safe environment for the children.” Hoppe, 543 N.W.2d at 638 (quoting Minn. Stat. 245.802, subd. 4 (1984)). The court stated, “unlike in Andrade, the legislature has spoken to the question of penalties or liability to be imposed with regard to the VARA, and has not explicitly or by implication identified a civil cause of action for alleged negligent investigation or intervention.” Id. The court then referenced Bruegger v. Faribault County Sheriffs Dep’t, where it held that no cause of action existed in Bruegger because there was no common law cause of action for failure to inform individuals of potential rights of recovery under the Crime Victims Reparations Act, and because the legislature had not expressly or impliedly created a statutory cause of action. Id. (citing Bruegger v. Faribault County Sheriff's Dep’t., 497 N.W.2d 260 (Minn. 1993)). Based on its holding in Bruegger, the court concluded that VARA does not confer a common law cause of action for the failure to conduct timely investigations on reports of abuse to vulnerable adults. Id. at 638.

The law is not clear cut, but we are persuaded by respondent’s argument that CARA, like VARA, does not contain a legislatively-established civil cause of action. Also, although the precise question of municipal immunity did not come up in this case because it was a rule-12 motion, it appears the Minnesota Supreme Court in Andrade looked at the daycare checklist as ministerial, but in Hoppe found the decision-making to be discretionary. The decision-making here by the county and its agents was decidedly discretionary thinking. We do not rest our decision on this difference, as this difference was not set out by the supreme court. We simply point it out to reconcile Andrade and Hoppe. The supreme court in Hoppe distinguished Andrade and concluded that the legislature did not identify a causé of action under VARA for alleged negligent investigation or intervention. Hoppe, 543 N.W.2d at 638. We conclude the same reasoning applies' here. The legislature has not expressly or impliedly created a cause of action under CARA. We are reluctant to supply what the legislature appeared to intentionally omit.

We are not unsympathetic toward appellant. At times, Makaio’s mother’s explanation for each new set of bruises on his body “boggles the mind;” e.g., her explanation that Makaio’s leg injuries were maybe caused by “hoof and mouth disease.” Her continuous line of explanations and rationalizations should not have béen considered credible by anyone with minimal training in child abuse. We understand kppellant’s frustration and his firm belief that if the county and its agents had done their job properly, Makaio would not have remained accessible to the predatory Gutierrez and might well be alive today. Having, said that, we are persuaded by the supreme court’s reasoning in Hoppe that no civil cause of action was created under CARA against municipal welfare agencies.

The district court did not err by granting respondent’s motion to dismiss for failing to state a claim on which relief can be granted.

II.

Appellant argues that the district court abused its discretion when it granted respondent’s protective order staying the production of discovery until the motion to dismiss was heard. Rule 26.03 of the Minnesota Rules of Civil Procedure gives the trial court broad discretion to fashion protective orders and to order discovery only on specified terms and conditions. Erickson v. MacArthur, 414 N.W.2d 406, 409 (Minn.1987).

Here, the issue of whether respondents owed a special duty to Makaio was a question of law. Respondents argue that any facts that could be obtained in appellant’s discovery would be irrelevant to the legal issue and that it would have been an undue burden.on them to expend the time necessary to answer appellant’s discovery. Appellant correctly asserts that good cause to issue a protective order is not established by merely showing that discovery would be time consuming and expensive to a party. We note it would not have been improper for the district court to allow discovery before ruling on the rule-12 motion. Having said that, given a district court’s wide discretion in fashioning protective orders and the timing schedules for discovery, we cannot say that the district court abused its discretion by relying on the facts in the complaint when addressing a rule-12 motion to dismiss, and staying further discovery until the rule-12 motion to dismiss was decided.

DECISION

The legislature did not expressly or impliedly create a civil cause of action under the Child Abuse Reporting Act. The district court did not err by granting respondent’s motion to dismiss for failing to state a claim on which relief can be granted.

Affirmed.

      . Similar in scope to CARA, VARA details the responsibilities relating to the reporting of alleged maltreatment of vulnerable adults and contains language that is nearly identical with CARA. Cf. Minn.Stat. § 626.557 with Minn. Stat. § 626.556.