author: ANDERSON, G. BARRY, Justice.

text:
    Diane LORIX, individually and on behalf of all others similarly situated, Appellant, v. CROMPTON CORPORATION, et al., Respondents, Flexsys NV, et al., Defendants, Bayer Corporation, Defendant.
    No. A05-2148.
    Supreme Court of Minnesota.
    Aug. 2, 2007.

      Garrett D. Blanchfield, Jr., Reinhardt Wendorf & Blanchfield, St. Paul, MN, for Appellants.
    Michael A. Lindsay, Dorsey & Whitney, LLP, James S. Simonson, Gray Plant Mooty, Mooty & Bennett, PA, Minneapolis, MN, J. Andrew Read, Jones Day, Benjamin G. Bradshaw, O’Melveny & Myers, LLP, Washington, D.C., for Respondents.
    Richard A. Lockridge, Lockridge Grin-dal Ñauen, PLLP, Minneapolis, MN, for Amicus Curiae American Antitrust Institute.
    Brian Dillon, Assistant Attorney General, State of Minnesota, St. Paul, MN, for Amicus Curiae State of Minnesota.
   OPINION

ANDERSON, G. BARRY, Justice.

Plaintiff, a consumer, brought a class action lawsuit under Minnesota antitrust law alleging that she paid more for tires as a result of defendants’ conspiracy to fix the prices of rubber-processing chemicals. The district court granted defendants’ motion to dismiss on the pleadings for lack of standing, and the court of appeals affirmed. We reverse and hold that the plaintiff has standing to sue under Minn. Stat. § 325D.57 (2006).

In this antitrust class action, Plaintiff Diane Lorix alleges that defendants Crompton Corporation, Uniroyal Chemical Company, Inc., Uniroyal Chemical Company, Limited, Flexsys NV, Flexsys America LP, Bayer AG, Bayer Corporation, Rhein Chemie Rheinau GmbH, and Rhein Che-mie Corporation (collectively “Crompton”), manufacturers of rubber-processing chemicals, agreed to fix the prices of chemicals sold to tire manufacturers. Price fixing is a violation of Minnesota antitrust law. Minn.Stat. § 325D.53, subd. 1(A) (2006). Lorix alleges that she, along with the rest of the putative class, purchased tires manufactured using the price-fixed chemicals and that she paid more for the tires than she would have in the absence of the anti-competitive agreement. Lorix’s complaint asserts that she purchased tires “manufactured using rubber processing materials sold by Defendants.” Lorix stated at oral argument that she does not know whether the chemicals are present in the tires she purchased or were consumed in the manu-factoring process, and that discovery would provide an answer to that question.

This lawsuit is one of several filed in state courts across the country against manufacturers of rubber-processing chemicals, sparked by government investigations into price fixing in Europe and the United States. Some of the defendants pleaded guilty in criminal cases and paid criminal fines. See Moniz v. Bayer Corp., 484 F.Supp.2d 228, 229 (D.Mass.2007); Crouch v. Crompton Corp., Nos. 02 CVS 4375, 03 CVS 2514, 2004 WL 2414027, at *20 (N.C.Super.Oct.28, 2004). Direct purchasers of rubber processing chemicals have also filed a nationwide class action suit against manufacturers of rubber-processing chemicals. See In re Rubber Chems. Antitrust Litig., 232 F.R.D. 346, 355 (N.D.Cal.2005) (granting plaintiffs’ motion for class certification).

In this case, the district court applied the factors in Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (hereinafter “AGC ”), and granted Crompton’s motion to dismiss on the pleadings, concluding that to sue in antitrust in Minnesota, a plaintiff must be “either a consumer or a customer in the particular industry and there must be neither speculative damages nor risk of duplicative recoveries.” The court of appeals affirmed, holding that Minnesota antitrust law requires that an antitrust plaintiff “be a participant or competitor in the market restrained by the alleged antitrust violation.” Lorix v. Crompton Corp., 720 N.W.2d 15, 19 (Minn.App.2006). Noting that Lorix did not allege that she purchased the chemicals manufactured by the defendants, the court held that she lacked standing. Id. at 18-19. We granted Lorix’s petition for review.

I.

Lorix argues that the plain language of Minn.Stat. § 325D.57 affords her standing. The statute provides:

Any person * * * injured directly or indirectly by a violation of sections 325D.49 to 325D.66, shall recover three times the actual damages sustained, together with costs and disbursements, including reasonable attorneys’ fees. In any subsequent action arising from the same conduct, the court may take any steps necessary to avoid duplicative recovery against a defendant.

Crompton argues that, despite the broad language of section 325D.57, antitrust standing has well-established boundaries, and that one such boundary prevents suit by a plaintiff who never purchased the product that was the subject of the alleged price fixing. Crompton argues that “any person” cannot be read literally and that the “direct or indirect” language only removes federal antitrust law’s per se bar to indirect purchaser suits. According to Crompton, the district court and court of appeals correctly applied “common-sense principles of remoteness and proximate cause.”

We review an appeal from a dismissal on the pleadings de novo. See Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997). When considering a motion for judgment on the pleadings, the court must accept the allegations contained in the pleading under attack as true, and assumptions made and inferences drawn must favor the non-moving party. State ex rel. City of Minneapolis v. Minneapolis St. Ry. Co., 238 Minn. 218, 223, 56 N.W.2d 564, 567 (Minn.1952). It is immaterial at the pleadings stage whether the plaintiff can prove the facts alleged. Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739 (2000). “The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2006). “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Id.

Antitrust laws should be broadly construed to effectuate their purpose. Minnesota-Iowa Television Co. v. Watonwan T.V. Imp. Ass’n, 294 N.W.2d 297, 305 (Minn.1980). The primary purpose of antitrust laws is to protect interbrand competition. State Oil Co. v. Khan, 522 U.S. 3, 14, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997). The private causes of action created by Minnesota antitrust law “reflect a clear legislative policy encouraging aggressive prosecution of statutory violations.” State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 495 (Minn.1996).

Standing is a legal requirement that a party have a sufficient stake in a justiciable controversy to seek relief from a court. Sierra Club v. Morton, 405 U.S. 727, 731-32, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The primary goal of the standing requirement is to ensure that the factual and legal issues before the courts will be vigorously and adequately presented. Channel 10, Inc. v. Ind. Sch. Dist. No. 709, St. Louis County, 298 Minn. 306, 314, 215 N.W.2d 814, 821 (1974). Standing is acquired in two ways: either the plaintiff has suffered some “injury-in-fact” or the plaintiff is the beneficiary of some legislative enactment granting standing. Philip Morris Inc., 551 N.W.2d at 493; Snyder’s Drug Stores, Inc. v. Minn. State Bd. of Pharmacy, 301 Minn. 28, 31-32, 221 N.W.2d 162, 165 (1974). An injury-in-fact is a concrete and particularized invasion of a legally protected interest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

To determine whether Lorix has standing, we first review several key points of federal and Minnesota antitrust law, including the Supreme Court’s decisions in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), and AGC; the 1984 amendment to Minn.Stat. § 325D.57; and our own decision in Philip Morris Inc.

A. Federal Antitrust Law

Federal antitrust law does not provide a remedy for every injury flowing from an antitrust violation. Standing under federal antitrust law, rather, has prudential limits based on remoteness of injury and complexity of proof. “ ‘An antitrust violation may be expected to cause ripples of harm to flow through the Nation’s economy; but ‘despite the broad wording of § 4 there is a point beyond which the wrongdoer should not be held liable.’ ” AGC, 459 U.S. at 534, 103 S.Ct. 897 (quoting Blue Shield of Va. v. McCready, 457 U.S. 465, 476-77, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982)). “ ‘It is reasonable to assume that Congress did not intend to allow every person tangentially affected by an antitrust violation to maintain an action to recover threefold damages for the injury to his business or property.’ ” Id. at 535, 103 S.Ct. 897 (quoting Blue Shield, 457 U.S. at 477, 102 S.Ct. 2540). The Supreme Court explored the scope of federal antitrust law injury and standing in Hanover Shoe, Illinois Brick, and AGC.

In Hanover Shoe, the Court held that an antitrust defendant could not argue that a plaintiff was not injured because the plaintiff had “passed on” any illegal overcharges to downstream consumers. 392 U.S. at 491-92, 88 S.Ct. 2224. The case involved a treble damages action by a shoe manufacturer against a manufacturer of shoe machinery. Id. at 483, 88 S.Ct. 2224. The Court rejected the defendant’s pass-on defense as a matter of law (with limited exceptions not relevant here) for two reasons. Id. at 492-94, 88 S.Ct. 2224. First, the defense would burden courts with attempts to trace the effects of an overcharge through the entire chain of purchase and apportion the damages among direct and indirect purchasers. Id. at 492-93, 88 S.Ct. 2224. Second, direct purchasers are better situated to sue for antitrust violations, because any individual indirect purchaser would have an insufficient stake in the lawsuit to prompt her to pursue relief. Id. at 494, 88 S.Ct. 2224.

In Illinois Brick, the Court held that an indirect purchaser of price-fixed goods was not a party “injured in his business or property” within the meaning of section 4 of the Clayton Act, 15 U.S.C. § 15 (2000). 431 U.S. at 728-29, 97 S.Ct. 2061. The plaintiffs, various state and local government entities, alleged a price-fixing conspiracy among manufacturers of concrete blocks. 431 U.S. at 726, 97 S.Ct. 2061. The plaintiffs did not purchase concrete blocks directly, but did purchase buildings made with the blocks. Id. The plaintiffs alleged that overcharges from the manufacturers were passed to them through masonry contractors and general contractors. Id. at 726-27, 97 S.Ct. 2061. The Court refused to recognize this “offensive pass-on” theory for two policy reasons. Id. at 730, 97 S.Ct. 2061. First, “allowing offensive but not defensive use of pass-on would create a serious risk of multiple liability for defendants” because a direct purchaser could recover an overcharge that had been passed on to an indirect purchaser, who could also recover it. Id. Second, the “evidentiary complexities and uncertainties” that precluded a pass-on defense in Hanover Shoe were “multiplied in the offensive use of pass-on by a plaintiff several steps removed from the defendant in the chain of distribution.” Illinois Brick, 431 U.S. at 732, 97 S.Ct. 2061. Faced with the choice of overturning Hanover Shoe or barring federal indirect purchaser suits, the Court chose the latter. Illinois Brick, 431 U.S. at 736-37, 97 S.Ct. 2061. The Court noted that “the question of which persons have been injured by an illegal overcharge for purposes of § 4 is analytically distinct from the question of which persons have sustained injuries too remote to give them standing to sue for damages under § 4.” Id. at 728, n. 7, 97 S.Ct. 2061. Illinois Brick,thus did not address federal antitrust standing. Id.

Justice Brennan, joined by Justices Marshall and Blackmun, dissented in Illinois Brick. Id. at 748, 97 S.Ct. 2061. Justice Brennan argued that the majority’s bar to indirect purchaser suits “flouts Congress’ purpose and severely undermines the effectiveness of the private treble-damages action as an instrument of antitrust enforcement” by precluding injured consumers from recovering damages while leaving middlemen, who may pass on any illegal overcharges, with little incentive to sue. Id. at 749, 97 S.Ct. 2061 (Brennan, J., dissenting). Conceding that “despite the broad wording of § 4 there is a point beyond which the wrongdoer should not be held liable,” Justice Brennan concluded that “if the broad language of § 4 means anything, surely it must render the defendant liable to those within the defendant’s chain of distribution. It would indeed be ‘paradoxical to deny recoverfy] to the ultimate consumer while permitting the middlemen a windfall recovery.’ ” Id. at 760-61, 97 S.Ct. 2061 (Brennan, J., dissenting) (quoting P. Areeda, Antitrust Analysis: Problems, Text, Cases 75 (2d ed.1974)).

The Supreme Court provided its most comprehensive statement on federal antitrust standing in AGC. The Court held that a labor union lacked standing to sue a contractors’ association under the Sherman Act for an alleged conspiracy to restrain the union’s business activities. AGC, 459 U.S. at 520-21, 103 S.Ct. 897. The Court noted that when Congress enacted the Sherman Act, it intended established common-law limits on liability to shape the scope of antitrust liability. AGC, 459 U.S. at 532, 103 S.Ct. 897. The AGC Court, accordingly, undertook to “evaluate the plaintiffs harm, the alleged wrongdoing by the defendants, and the relationship between them.” Id. at 535, 103 S.Ct. 897. The factors addressed by the Court included: (1) whether the plaintiff is a consumer or competitor in the allegedly restrained market; (2) whether the injury alleged is direct or indirect; (3) whether there are more directly injured plaintiffs with motivation to sue; (4) whether the damages claims are speculative; and (5) whether the plaintiffs claims risk duplicative recoveries and would require a complex apportionment of damages. Id. at 538-45, 103 S.Ct. 897. The Court counseled against across-the-board rules, suggesting that courts should “analyze each situation in light of the factors set forth” in the opinion. Id. at 536 n. 33, 103 S.Ct. 897. Applying all the factors, the Court concluded that the labor union had not suffered an injury compensable under federal antitrust law. Id. at 545, 103 S.Ct. 897. Many state courts, including a Minnesota state district court, have since applied the AGC factors to determine if an antitrust plaintiff has standing. See, e.g., Gutzwiller v. Visa U.S.A., Inc., No. C4-04-58, 2004 WL 2114991, at *5-6 (Minn.Dist.Ct. Sept.15, 2004).

B. Minnesota Antitrust Law

Minnesota antitrust law is generally interpreted consistently with federal antitrust law. Minn. Twins P’ship v. State, 592 N.W.2d 847, 851 (Minn.1999). As the purposes of Minnesota and federal antitrust law are the same, it is sensible to interpret them consistently. Minnesota is not required, however, to abide by federal antitrust standing limitations. See Snyder’s Drug Stores, 301 Minn, at 31-32, 221 N.W.2d at 165. The desire for harmony between federal and state antitrust law relates more to prohibited conduct than to who can bring a lawsuit. “ ‘The purpose behind both state and federal antitrust law is to apply a uniform standard of conduct so that businesses will know what is acceptable conduct,’ ” but “ ‘to achieve this uniformity or predictability, we are not required to define who may sue in our state courts in the same way federal courts have defined who may maintain an action in federal court.’ ” Bunker’s Glass Co. v. Pilkington, PLC, 206 Ariz. 9, 75 P.3d 99, 106 (2003) (quoting Comes v. Microsoft Corp., 646 N.W.2d 440, 446 (Iowa 2002)); see Comes, 646 N.W.2d at 446 (noting that the purpose of Iowa’s antitrust harmonization statute was to “achieve uniform application of the state and federal laws prohibiting monopolistic practices,” not to define who can sue under state antitrust law); see also 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531.14 (2d ed. 1984) (“Federal courts have stated that state law of standing should be applied as to state rights * * *.”).

In 1984, our legislature added the words “directly or indirectly” to Minn.Stat. § 325D.57 to make clear that, contrary to Illinois Brick, Minnesota antitrust law permits indirect purchasers to recover. Philip Morris Inc., 551 N.W.2d at 497; Hearing on Sen. F. 1807, Sen. Jud. Comm., 73rd Minn. Leg., Mar. 19, 1984 (minutes) (Statement of Steve Kilgriff, Assistant Attorney Gen.) (“All we’re saying is that under Minnesota law we recognize that indirect purchasers should have his or her [sic] rights to determine damages as well as the direct purchaser.”). Minnesota is one of 25 states to enact such “Illinois Brick repealer” statutes. Daniel R. Ka-ron, “Your Honor, Tear Down that Illinois Brick Wall!’’ The National Movement Toward Indirect Purchaser Antitrust Standing and Consumer Justice, 30 Wm. Mitchell L.Rev. 1351, 1361 (2004). Eight other “non-repealer” states permit indirect purchasers to sue under state consumer protection statutes or under judicial construction of state antitrust acts. Id. Altogether, 33 states and the District of Columbia allow claims by indirect purchasers. Id.

This court’s only substantive discussion of antitrust standing since the 1984 amendment to section 325D.57 occurred in Philip Morris Inc., where we noted that Minnesota antitrust law contains an “expansive grant of standing” designed to protect Minnesota citizens from “sharp commercial practices.” 551 N.W.2d at 496-97. We held that Blue Cross, a nonprofit health services organization, had standing to sue tobacco companies under Minnesota antitrust law for increased health care costs due to the tobacco companies’ conspiracy to suppress research on the deleterious effects of smoking and to manipulate nicotine levels in cigarettes in order to induce addiction in smokers. Id. at 491-92. We based our holding on the plain language of section 325D.57, stating that “[i]t is clear that this expansive grant of standing reaches the injuries suffered by Blue Cross.” Philip Morris Inc., 551 N.W.2d at 496.

II.

The district court and court of appeals relied on AGC and other federal case law to hold that an antitrust plaintiff must be a consumer or competitor in the market restrained by the antitrust violation. We conclude that both courts misinterpreted Minnesota antitrust law and that the AGC factors do not provide the benchmark for antitrust standing in Minnesota.

A AGC

The district court correctly recognized that AGC factors (2) (whether the injury alleged is direct or indirect) and (3) (whether there are more directly injured plaintiffs with motivation to sue) cannot apply in Minnesota because indirect purchasers are explicitly vested with a cause of action under Minn.Stat. § 325D.57. The district court’s application of AGC factors (1) (whether the plaintiff is a consumer or competitor in the allegedly restrained market) and (5) (whether the plaintiffs claims risk duplicative recoveries and would require a complex apportionment of damages), however, was misplaced. For one thing, none of the AGC factors was intended to be determinative, even under the more restrictive boundaries of federal antitrust standing. The district court, nevertheless, turned AGC factors (1) and (5) into absolute requirements for standing under Minnesota antitrust law by stating that an antitrust plaintiff must be “either a consumer or a customer in the particular industry and there must be neither speculative damages nor risk of duplicative recoveries.” The rule espoused by the district court is contrary to the Supreme Court’s acknowledgement that “ ‘it is simply not possible to fashion an across-the-board and easily applied standing rule which can serve as a tool of decision for every case,’ ” AGC, 459 U.S. at 536 n. 33, 103 S.Ct. 897 quoting Sherman, Antitrust Standing: From Loeb to Malamud, 51 N.Y.U. L.Rev. 374, 407 (1976), and makes Minnesota antitrust standing more restrictive than federal antitrust standing, in contravention of the 1984 amendment to Minn.Stat. § 325D.57.

Even viewed as guideposts rather than requirements, the AGC factors are not harmonious with our antitrust law. For example the first part of AGC factor (5) (complexity of apportionment and risk of duplicative recoveries) was at the heart of Illinois Brick’s bar to indirect purchaser suits. Illinois Brick explained that an indirect purchaser suit is, by nature, complicated and uncertain: “[t]he demonstration of how much of the overcharge was passed on by the first purchaser must be repeated at each point at which the price-fixed goods changed hands before they reached the plaintiff.” 431 U.S. at 732-33, 97 S.Ct. 2061. By expressly permitting indirect purchaser suits, our legislature has rejected the notion that Minnesota courts are not to be burdened with the complex apportionment inherent in those suits.

With regard to the risk of duplicative recoveries under AGC factor (5), section 325D.57 allows a court to “take any steps necessary to avoid duplicative recovery against a defendant” in a subsequent action arising from the same conduct. To the extent that our courts cannot ameliorate the risk of duplicative recovery, as where parallel proceedings in federal courts or courts in other states may result in later awards based on the same injuries, this risk is inherent in the dual system of private antitrust enforcement created by Illinois Brick and California v. ARC America Corp., 490 U.S. 93, 101, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989) (holding that federal antitrust law’s bar to indirect purchaser suits does not preempt state courts from entertaining such suits). See Report of the Indirect Purchaser Task Force, 63 Antitrust L.J. 993, 994 (Spring 1995) (concluding that the current system of antitrust enforcement creates the risk that the full amount of an anticompetitive overcharge, trebled, will be recovered by direct purchasers under federal law and indirect purchasers at every successive stage of distribution under state law). While this risk is a legitimate and important consideration, it is not a risk that our court may remedy by restricting Minnesota antitrust law in ways that our legislature has not.

As for AGC factor (1), the AGC Court noted that the plaintiff labor union was “neither a consumer nor a competitor in the market in which trade was restrained” only to highlight that the union may have suffered no injury at all — because it was not clear “whether the Union’s interests would be served or disserved by enhanced competition in the market,” 459 U.S. at 539, 103 S.Ct. 897 — and to highlight that any injury suffered was not related to the Sherman Act’s “central interest in protecting the economic freedom of participants in the relevant market.” Id. at 538, 103 S.Ct. 897. AGC did not make a plaintiffs status as a consumer or competitor in the restrained market a sine qua non of antitrust standing. Rather, AGC used that status as a tool to compare the plaintiffs alleged injury to the goals of antitrust law. While Minnesota courts should analyze an alleged injury’s relation to the goals of antitrust law by identifying the markets involved, the market analysis is not the focus of the standing inquiry.

AGC factor (4), whether the damages claims are speculative, is relevant to standing under the Minnesota antitrust law. As we explain below, we conclude that at this stage of litigation Lorix’s damage claims are not so speculative as to place her outside the protection of Minnesota antitrust law.

It is true, as Crompton notes, that “the question of which persons have been injured by an illegal overcharge * * * is analytically distinct from the question of which persons have sustained injuries too remote to give them standing” and that Illinois Brick addressed the scope of antitrust injury, not standing, under the Clayton Act. Illinois Brick, 431 U.S. at 728 n. 7, 97 S.Ct. 2061. Crompton urges, therefore, that the 1984 amendment to Minn. Stat. § 325D.57, as a response to Illinois Brick, has no effect on our standing analysis and that we must apply AGC. We do not agree. AGC was informed by Illinois Brick and repeated, as antitrust standing guidelines, Illinois Brick’s reservations about indirect purchaser suits. “In Illinois Brick * * * we held that treble damages could not be recovered by indirect purchasers * * *. The same concerns should guide us in determining whether the Union is a proper plaintiff under § 4 of the Clayton Act.” AGC, 459 U.S. at 544, 103 S.Ct. 897 (emphasis added). We do not believe that the legislature repudiated Illinois Brick and invited indirect purchaser suits only for courts to dismiss those suits on the pleadings based on the very concerns that motivated Illinois Brick.

We recognize that some state courts have applied the AGC factors to state antitrust claims. See, e.g., Kanne v. Visa U.S.A., Inc., 272 Neb. 489, 723 N.W.2d 293, 297-301 (2006) (holding that the Nebraska Antitrust Act required the court to follow federal courts’ construction of the Clayton Act); Fucile v. Visa U.S.A., Inc., No. 51560-03 CNC, 2004 WL 3030037, at *2 (Vt.Super.Ct. Dec. 27, 2004) (applying AGC factors). Other courts do not apply the AGC factors. See, e.g., Moniz, 484 F.Supp.2d at 231 (denying defendants’ motion to dismiss in a state indirect purchasers class action and stating that defendants’ reliance on AGC was inappo-site). We will often look to case law from other states for guidance when our own jurisprudence is undefined. Gordon v. Microsoft Corp., 645 N.W.2d 393, 402 n. 9 (Minn.2002). But we conclude that our jurisprudence in this area is sufficient and, with due respect to courts that have chosen to apply AGC, we believe application of the AGC factors in Minnesota would contravene the plain language of the statute and in some cases thwart the intent of the legislature by barring indirect purchaser suits for the reasons articulated in Illinois Brick.

B. Market participant requirement

In upholding the district court, the court of appeals did not rely on the AGC factors but stated that “[fjederal courts have consistently held that an antitrust plaintiff must be a consumer or competitor in the market restrained by alleged antitrust violations.” Lorix, 720 N.W.2d at 18. The two federal appellate decisions cited by the court of appeals do not compel us to impose a market-participant requirement. The court of appeals quoted Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977), for the proposition that to recover, a plaintiff must suffer “an injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.” Lorix, 720 N.W.2d at 18-19. It does not follow from this proposition that Minnesota antitrust law provides a remedy only to participants in the immediately restrained market, and Brunswick itself mentioned no such restriction. The court of appeals also cited S.D. Collectibles, Inc. v. Plough, Inc., 952 F.2d 211 (8th Cir.1991). Lorix, 720 N.W.2d at 19. In S.D. Collectibles, Collectibles was the sole representative in a five-state territory for the manufacturer of Zinca, a zinc oxide sun care product. 952 F.2d at 212. When Plough obtained the exclusive right to market Zinca in the territory and Collectibles’ agreement was terminated, Collectibles sued Plough, alleging antitrust injury. Id. at 212-13. The court noted that “[t]he antitrust laws were designed to protect competition and therefore standing is generally limited to actual market participants,” id. at 213, and held that Collectibles lacked standing because it was neither a consumer of Zinca nor a competitor of Plough, id. at 214. Collectibles did not enjoy antitrust protection because it was not a consumer of any product related to the antitrust violation. S.D. Collectibles, whatever its precedential value to this court, cannot be read to foreclose antitrust claims in Minnesota by indirect purchasers of goods manufactured with price-fixed components.

Our decision in Philip Mortis Inc. further counsels against a rigid market-participant requirement. In Philip Morris Inc., tobacco companies conspired to “suppress research on the deleterious effects of smoking,” 551 N.W.2d at 492, and we held with little discussion that Blue Cross had standing to sue in antitrust based on the increased amounts it paid for healthcare, id. at 496. But Blue Cross was a participant in neither the cigarette market (the market in which the tobacco companies participated) nor the healthcare research market (the market restrained by the conspiracy). It is no answer to assert, as Crompton does, that Blue Cross participated in, and the tobacco companies manipulated, the “healthcare market.” The patient services market, in which Blue Cross participated, is distinct from the healthcare research market, which the tobacco companies manipulated. Applying Crompton’s expansive method of defining markets, we might find standing by noting that Lorix was injured in the “market for rubber-related products,” the same market in which Crompton fixed prices. Analysis of the markets involved in an antitrust claim helps assess the relation of the alleged injury to the goals of antitrust law, but the lack of a principled way to define the “market restrained by the antitrust violation” means that this analysis alone cannot determine whether a plaintiff has antitrust standing.

III.

The fact that the district court and court of appeals erred in applying AGC and imposing a market-participant requirement does not necessarily mean that Lorix has standing. The real difficulty lies in defining the outer limits of indirect purchaser standing in Minnesota. “Any person” injured by an antitrust violation may sue under our antitrust law. Minn.Stat. § 325D.57. We have recognized and applied the broad effect of the words “any person.” See Hyatt v. Anoka Police Dep’t, 691 N.W.2d 824, 826 (Minn.2005) (“The word ‘any’ is given broad application in statutes, regardless of whether we consider the result reasonable.”); Group Health Plan, Inc. v. Philip Morris Inc., 621 N.W.2d 2, 8-9 (Minn.2001) (stating that “any person” is plain and unambiguous); Philip Morris Inc., 551 N.W.2d at 496 (applying the plain meaning of Minn.Stat. § 325D.57 to hold that “[i]t is clear that this expansive grant of standing reaches the injuries suffered by Blue Cross”).

In spite of the apparently limitless language of section 325D.57, however, there are injuries so remotely related to antitrust violations that courts simply cannot provide relief. Group Health Plan, 621 N.W.2d at 11 n. 7 (“[W]e do not hold that the scope of those enforcement statutes is entirely without limit.”). Standing under Minnesota antitrust law must be defined by some prudential limits informed by foreseeability, proximate cause, remoteness, and relation of the injury to the purposes of the antitrust law; otherwise, almost any antitrust violation would provide almost any citizen with a cause of action arising from the resulting ripples of harm throughout the state’s economy.

We find it unnecessary today to define the outer limits of antitrust standing in Minnesota, because whatever those limits may be, Lorix falls well within them. Lorix alleges that she is an end user of a consumer good whose price was inflated by anticompetitive conduct earlier in the chain of manufacture. The violation complained of — price fixing — is a per se violation of the law that strikes at the heart of antitrust law’s purpose of protecting competition. See Minn.Stat. § 325D.53, subd. l(l)(a) (2006). The injury alleged — overcharge—is exactly the sort that would be expected to flow from the violation.

Furthermore, as an end user, Lorix is the party most likely to be injured by an anticompetitive overcharge because she is the only party in the chain of purchase who cannot pass on part or all of that overcharge. See Illinois Brick, 431 U.S. at 764, 97 S.Ct. 2061 (Brennan, J., dissenting) (noting that direct purchasers ordinarily “pass on the bulk of their increased costs to consumers”); Freeman Industs, v.

Eastman Chem. Co., 172 S.W.3d 512, 520 (Tenn.2005) (noting that indirect purchasers are frequently the “real victims of the antitrust violations”); Cynthia Urda Kas-sis, Comment, The Indirect Purchaser’s Right to Sue Under Section I of the Clayton Act: Another Congressional Response to Illinois Brick, 32 Am. U.L.Rev. 1087, 1087 (1983) (“Price fixing and other antitrust violations most frequently injure * * * those who purchased goods through retailers and other middlemen rather than directly from the antitrust violator.”). To find that an end user such as Lorix lacks standing would be to deny an injured party the opportunity to recover while allowing a windfall to middlemen who passed on the overcharge or, more likely, allowing the violator to escape liability entirely when the middlemen decline to pursue relief. We recognize that Crompton’s direct purchasers have chosen to pursue relief in federal court, see In re Rubber Chems. Antitrust Litig., 232 F.R.D. at 348, but this appears to be the exception, not the rule. See Illinois Brick, 431 U.S. at 764, 97 S.Ct. 2061 (Brennan, J., dissenting) (noting that middlemen are ordinarily reluctant to sue their suppliers); Comes, 646 N.W.2d at 450 (“[DJirect purchasers likely will not enforce antitrust laws out of fear of retaliation by their suppliers * * *.”); Hyde v. Abbott Labs., Inc., 123 N.C.App. 572, 473 S.E.2d 680, 687 (1996) (“[T]here are few, if any, reported instances of a defendant paying treble damages to two different classes of purchasers based on a single antitrust violation.”) (citing Thomas Greene, Should Congress Preempt State Indirect Purchaser Laws? Counterpoint: State Indirect Purchaser Remedies Should be Preserved, 5 Antitrust 25, 26-27 (1990)).

Crompton advances several reasons why Lorix lacks standing to sue. Crompton’s primary argument is that the task of tracing the alleged overcharge from the chemical manufacturers to the end user will be extraordinarily complex and result in overly speculative damage calculations. Crompton directs our attention to various cases in the Visa/Mastercard litigation that Crompton asserts are analagous, including that of our own district court in Gutzwil-ler, 2004 WL 2114991. In these cases, consumers alleged that they paid more for consumer goods due to Visa and Master-card’s illegal tying of debit card services with credit card services. These cases, for the most part, have applied the AGC factors to hold that the consumers’ injuries are too remote and speculative to afford antitrust standing. See, e.g., Gutzwiller, 2004 WL 2114991, at *9; Beckler v. Visa U.S.A. Inc., No. Civ. 09-04-C-00030, 2004 WL 2475100, at *4 (N.D.DistCt. Sept. 21, 2004); Fucile, 2004 WL 3030037, at *3-4.

The AGC factors, as we have explained, do not provide the benchmark for standing under Minnesota antitrust law. Gutzwiller, however, does provide an example of an injury that is most likely too remote and speculative to afford standing. The plaintiffs in Gutzwiller did not purchase, directly or indirectly, any product or service provided by or manufactured with components from Visa or Mastercard. 2004 WL 2114991, at *6. Rather, they alleged that the overcharges forced upon merchants by Visa and Mastercard were passed on to consumers in the form of higher prices on essentially every good sold in the state of Minnesota, even those purchased with cash. Id. at *2. Thus, the market affected by the anticompetitive conduct was in essence the market for all goods bought and sold in Minnesota. Whatever the precise prudential limits on Minnesota antitrust standing, we do not believe that the legislature intended to create “consumer standing” by allowing every person in the state to sue for an antitrust violation simply by virtue of his or her status as a consumer.

Lorix’s claim, in contrast, is relatively focused: it is limited to purchasers of tires manufactured with price-fixed chemicals. According to Crompton’s characterization of Lorix’s allegations, Lorix will need to trace overcharges from chemical manufacturers to tire companies, then to tire wholesalers and distributors, then to tire retailers, and finally to consumers. In principle and in practice, this is a far cry from the situation in Gutzwiller, where overcharges from Visa and Mastercard would need to be traced through every merchant to every good purchased by every consumer in the state of Minnesota. Lorix, furthermore, alleges price fixing, which at least in theory provides a sounder basis for calculation of damages than the illegal tying arrangement alleged in Gutz-willer. Tying cases present unique damages issues because the plaintiff must not only demonstrate that the tying product possesses monopolistic leverage in the market, but also prove the cost or value of the tied products free from the unlawful arrangement. See generally Will v. Comprehensive Accounting Corp., 776 F.2d 665, 670-73 (7th Cir.1985) (describing the process of proving damages in a tying case); Kypta v. McDonald’s Corp., 671 F.2d 1282, 1284-85 (11th Cir.1982) (same).

Nor can we accept, in the context of a motion to dismiss, Crompton’s assertion that Lorix’s damages are so speculative as to render proof impossible. Drawing all assumptions and inferences in favor of Lo-rix, as we must, it is possible that the discovery process will reveal the amount of overcharge from Crompton, the chain of distribution through which the overcharge flowed to Lorix, the degree to which the overcharge may have been absorbed by more direct purchasers, and the impact of other market factors on the price of tires manufactured with price-fixed chemicals. See Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1171 (9th Cir.2002) (refusing to find damages too speculative at motion to dismiss stage because antitrust plaintiffs must be afforded an opportunity to present evidence to support their allegations); D.R. Ward Const. Co. v. Rohm & Haas Co., 470 F.Supp.2d 485, 504 (E.D.Pa.2006) (“Nor is this Court able to conclude as a matter of law at the motion to dismiss stage that a determination of the existence and amount of any overcharge suffered by the instant plaintiffs requires inappropriate guesswork or unmanageably complex analyses, particularly without the benefit of any discovery or expert testimony.”).

Ultimately, Crompton’s argument that Lorix’s alleged damages are too complex and remote to be remedied simply repeats the concerns that motivated Illinois Brick and that our legislature, along with many others, has rejected by permitting indirect purchaser litigation. Crompton distinguishes this from other indirect purchaser actions by noting that there are more stages of distribution through which to trace the alleged overcharge. This difference is one of degree, not kind, and Crompton has not persuaded us that the alleged injuries are so far removed from the alleged price fixing as to be unreasonably remote.

Crompton also attempts to wash its hands of the effects of the alleged price fixing by stating that it does not make, market, distribute, or sell the product (tires) that Lorix purchased. We ascribe little meaning to this formality. Antitrust laws, federal and state, provide a remedy for consumers who have, purchased goods manufactured with price-fixed components. See, e.g., D.R. Ward Const. Co., 470 F.Supp.2d at 490-91, 505, 509 (denying defendants’ motion to dismiss, for lack of standing, claims under the Arizona, Tennessee, and Vermont antitrust acts by consumers who purchased products containing price-fixed plastic additives); Fed. Trade Comm’n v. Mylan Labs., Inc., 62 F.Supp.2d 25, 49 (D.D.C.1999) (allowing, under Minnesota state antitrust law, claims for civil penalties and damages by the state of Minnesota on behalf of the state and indirect purchasers against suppliers of pharmaceutical ingredients); Carnivale Bag Co., Inc. v. Slide-Rite Mfg. Corp., 395 F.Supp. 287, 288-89, 294 (S.D.N.Y.1975) (holding that purchasers of zippers manufactured with price-fixed “slider” components had standing to sue slider manufacturer). We find it beside the point that, in this case, the price-fixed component may or may not be present in the finished product. An antitrust injury occurs when a purchaser is overcharged as a result of anticompetitive conduct, not when she physically acquires a price-fixed good. An antitrust violator should not escape liability simply because, by happy accident, its price-fixed goods are consumed in the manufacturing process.

We find it instructive that the 1984 amendment to Minn.Stat. § 325D.57 was intended to restore Minnesota antitrust law to its pre-Illinois Brick contours. See Hearing on Sen. F. 1807, Sen. Jud. Comm., 73rd Minn. Leg., Mar. 19, 1984 (minutes) (“We don’t want to be creating causes of action where they wouldn’t have existed prior to the Illinois Brick case.”). Claims of overcharge due to price fixing of components several steps removed from the ultimate consumer proceeded past motions to dismiss and for summary judgment in federal courts prior to Illinois Brick. See, e.g., Illinois v. Ampress Brick Co., Inc., 536 F.2d 1163, 1167 (7th Cir.1976) (holding that various governmental entities who allegedly purchased buildings at prices inflated due to defendants’ fixing of prices of concrete blocks had standing to sue under the Sherman Act), rev’d sub nom Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977); In re W. Liquid Asphalt Cases, 487 F.2d 191, 194-95, 200 (9th Cir.1973) (holding that plaintiffs, states that accepted bids for road construction projects including liquid asphalt supplied to contractors at inflated prices, had standing to sue asphalt suppliers); In re Master Key Antitrust Litig., No. 45, 1973 WL 855, at **1, 6 (D.Conn. 1973) (denying defendants’ motion for summary judgment in an action by plaintiffs who alleged that they paid higher prices for buildings as a result of overcharges due to defendants’ conspiracy to fix prices of locks, keys, and latches); Armco Steel Corp. v. North Dakota, 376 F.2d 206, 207-08 (8th Cir.1967) (allowing action by a state against a steel company for overcharges in bids submitted for highway construction projects involving price-fixed metal products).

Lorix’s claims also satisfy the “target area” test commonly employed in federal courts prior to Illinois Brick. Under the “target area” test, a plaintiff must prove “injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful. * * * It should, in short, be ‘the type of loss that the claimed violations ... would be likely to cause.’ ” Brunswick Corp., 429 U.S. at 489, 97 S.Ct. 690 (internal citations omitted) (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 125, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969)); see also, e.g., GAF Corp. v. Circle Floor Co., Inc., 463 F.2d 752, 757-58 (2d Cir.1972) (“Whether viewed in terms of ‘lack of standing’ or the absence of antitrust damages, the courts, in denying recovery to various kinds of plaintiffs, have sought to confine recovery to those who have been injured by restraints on competitive forces in the economy.”); Mulvey v. Samuel Goldwyn Prods., 433 F.2d 1073, 1076 (9th Cir.1970) (noting that the right to sue under section 4 of the Clayton Act was restricted to those persons “within that area of the economy which is endangered by a breakdown of competitive conditions in a particular industry”) (internal quotations omitted). Justice Brennan, dissenting in Illinois Brick, noted that “the more liberal, and more widely accepted [test for antitrust standing focused] on whether the plaintiff is within the ‘target area’ of the defendant’s violation.” 431 U.S. at 760, 97 S.Ct. 2061 (Brennan, J., dissenting). While we decline to adopt the target area test, we find it noteworthy that Lorix’s injury — artificially inflated price of a consumer good — is precisely one which Crompton’s price fixing would foreseeably have caused and which antitrust law is intended to prevent and remedy.

We do not mean to minimize the formidable complexities of proof posed by Lo-rix’s claim. Complexity, however, is hardly foreign to antitrust litigation. “Complex antitrust cases * * * invariably involve complicated questions of causation and damages.” Forsyth v. Humana, Inc., 114 F.3d 1467, 1478 (9th Cir.1997). We have confidence in the ability of our district courts to manage difficult cases. “The complexity of proving damages through multiple levels of sales is a daunting task, but one to which our courts are equal.” Bunker’s Glass Co., 75 P.3d at 108.

Our decision does not mean that Lorix will recover, nor do we intimate any view regarding the outcome of this litigation. It is entirely possible that she cannot prove her damages, or that they are minimal. If her claims are purely speculative or unmanageably complex, they will be barred at the summary judgment stage. “The plaintiffs bear the burden of proving the damages caused by a defendant’s wrongful conduct. If the plaintiffs cannot present admissible and convincing proof, they cannot recover.” Bunker’s Glass Co., 75 P.3d at 108. We also expect, in light of the variety of tires available from different manufacturers through different retail outlets, that Lorix faces a challenge meeting the class certification requirements of Minn. R. Civ. P. 23.01. See William H. Page, The Limits of State Indirect Purchaser Suits: Class Certification in the Shadow of Illinois Brick, 67 Antitrust L. J. 1, 3 (1999) (“[T]rial courts in a number of the jurisdictions have effectively terminated indirect purchaser class actions by refusing to certify them [as class actions].”). We decide today only that our antitrust law affords her an opportunity to try. We hold that Lorix has standing under Minn. Stat. § 325D.57 to pursue her claim.

Reversed and remanded.

      . The Court’s wide-ranging discussion did not include a comprehensive list of the factors relied on, but courts and commentators have generally recognized these five. See, e.g., Am. Ad Mgmt., Inc. v. Gen. Tel. Co., 190 F.3d 1051, 1054-55 (9th Cir. 1999); see also, e.g., McCarthy v. Recordex Seiv., Inc., 80 F.3d 842, 850 (3d Cir.1996) (identifying different factors).

      . The complaint in Philip Morris Inc. alleged, inter alia, that tobacco companies restrained and suppressed research on the harmful effects of smoking and restrained and suppressed the dissemination of information on the harmful effects of smoking. 551 N.W.2d at 492. It did not allege that the tobacco companies interfered with or manipulated delivery of patient care.

      . We note that the Supreme Court recently opined on the minimum factual allegations that must be pleaded to support a claim of restraint of trade under section 1 of the Sherman Act. Bell Atl. Corp. v. Twombly,-U.S. -, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Because the price-fixing conspiracy at issue here is, in the present posture of the case, undisputed, Twombly is not helpful to our decision.

      . Lorix indicated at oral argument that her proposed class did not include purchasers of tires attached to used cars, and that any suggestion to the contrary in her complaint was a "drafting error.” We find this limitation sensible and are confident the district court can craft other sensible limits on the proposed class. We also note that Lorix has apparently abandoned her earlier position, espoused at the court of appeals, that any Minnesota citizen could sue Crompton because the price-fixing raised the price of tires, which raised the price of transportation, which raised the price of all goods transported by truck within the state.

      . We recognize that the cost and difficulty of settlement administration, combined with attorneys' fees, mean that indirect purchaser suits sometimes result in no meaningful recovery for consumers. See Crouch, 2004 WL 2414027, at *12 ("[T]he complexities and administrative costs and difficulties [in administering settlements] result in settlements that are something less than sterling from the consumer's point of view.”); William M. Landes and Richard A. Posner, Should Indirect Purchasers Have Standing to Sue Under the Antitrust Laws? An Economic Analysis of the Rule of Illinois Brick, 46 U. Chi. L.Rev. 602, 634 (1979) ("In a class action, much of even the compensatory portion of the judgment may end up in the pockets of lawyers or in state treasuries, rather than in the pockets of the people who were actually harmed by the antitrust violation.”). We also recognize that indirect purchasers suits sometimes use the threat of unmanageable and complex litigation to compel settlement. See Milton Handler, The Shift From Substantive to Procedural Innovations in Antitrust Suits — The Twenty-Third Annual Antitrust Review, 71 Colum. L.Rev. 1, 9 (1971). Whatever benefits or detriments indirect purchaser litigation confers on society, it is not the place of this court to restrict remedies that the legislature has made available.

      . The court in Crouch summarized the difficulties:
      First, the price-fixed item is a product consumed or altered in the manufacturing process. Accordingly, its use will vary with the type of rubber product being made. It may also vary with the nature of the product (chemical) being used and how it is used in the manufacturing process. Different direct purchasers (here, tire manufacturers) might use the various chemicals in various ways in differing products.
      2004 WL 2414027, at *21. The Crouch court also estimated, based on the price of tires, amount of rubber processing chemicals present, and capacity for price inflation in the industry, that an individual purchaser may have been damaged by $0.01 to $0.11 per tire. Id. While we take note of the Crouch court’s thorough, thoughtful opinion, it includes facts that are not part of the record before us.


source: Caselaw Access Project

author: /s/Helen M. Meyer Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION against William F. JONES, a Minnesota Attorney, Registration No. 146444.
    No. A06-1056.
    Supreme Court of Minnesota.
    Aug. 8, 2007.
   ORDER

On July 5, 2006, we suspended respondent William F. Jones from the practice of law for a period of 60 days, allowing respondent to apply for reinstatement by affidavit, and requiring respondent to successfully complete the professional responsibility portion of the state bar examination by July 5, 2007. On September 12, 2006, we reinstated respondent to the practice of law subject to his successful completion of the professional responsibility portion of the state bar examination by July 5, 2007.

Respondent has failed to provide verification that he has successfully completed the professional responsibility examination. Under Rule 18(e)(3), Rules on Lawyers Professional Responsibility, failure to successfully complete the professional responsibility portion of the state bar examination within one year after the date of the original suspension order results in automatic suspension.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent William F. Jones is hereby suspended from the practice of law in the State of Minnesota effective immediately. Respondent may request reinstatement by providing proof to the court and to the Director of the Office of Lawyers Professional Responsibility that he has successfully completed the professional responsi-

bility portion of the state bar examination. Respondent shall comply with Rule 26, Rules on Lawyers Professional Responsibility (requiring notice of suspension to clients, opposing counsel, and tribunals).

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: MEYER, Justice. PAGE, Justice ANDERSON, PAUL H., Justice

text:
    STATE of Minnesota, Appellant, v. Edward Richard KRASKY, Respondent.
    No. A04-2011.
    Supreme Court of Minnesota.
    Aug. 9, 2007.

      Lori Swanson, Attorney General, Kelly O’Neill Moller, Asst. Attorney General, St. Paul, MN, Boyd Beccue, Kandiyohi County Attorney, Willmar, MN, for appellant.
    Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Roseville, MN, for respondent.
    Nancy A. Wiltgen, Leonard, Street and Deinard PA, Minneapolis, MN, Gail Chang Bohr, Children’s Law Center of Minnesota, St. Paul, MN, for amicus curiae Children’s Law Center of MN.
    Alice Anna Phillips, Alexandria, VA, Victor Vieth, Winona, MN, for amicus curiae American Prosecutors Research Institute.
   OPINION

MEYER, Justice.

Appellant State of Minnesota appealed from a pretrial order barring admission of statements made to a nurse by a child victim, T.K., who was incompetent to testify at trial by reason of her young age. The court of appeals reversed, holding that admission of the statements would not violate the Confrontation Clause rights of respondent Edward Richard Krasky, and Krasky appealed. We vacated and remanded for reconsideration in light of our decisions in State v. Bobadilla, 709 N.W.2d 243 (Minn.), cert. denied — U.S.-, 127 S.Ct. 382, 166 L.Ed.2d 270 (2006), and State v. Scacchetti, 711 N.W.2d 508 (Minn. 2006), both of which dealt with application of the Confrontation Clause to statements by child victims to medical professionals. On remand, the court of appeals affirmed the district court order barring admission of T.K’s statements. The state now brings this appeal, arguing that T.K.’s statements to a nurse are not testimonial and therefore admission of those statements poses no Confrontation Clause problem. We reverse.

On April 22, 2004, T.K.’s foster mother discovered six-year-old T.K. engaging in sexual behavior with M.K., her younger sister. When T.K.’s foster mother discussed this behavior with T.K., T.K. said that Krasky, her biological father, had engaged in various sexual behaviors with T.K. and M.K. Over the next several days, T.K. continued to engage in inappropriate behavior with her sister and again mentioned to her foster mother certain sexual behavior with Krasky.

On May 12, 2004, the Willmar Police Department received a child protection report concerning T.K. (presumably made by the foster mother). Thereafter, Timothy Manuel, a detective with the Willmar Police Department, and Charlotte Hand, a social worker with Kandiyohi County Family Services who conducts child protection investigations, discussed the situation and decided to have Midwest Children’s Resource Center (MCRC) interview and examine T.K. On May 20, 2004, T.K’s foster mother gave T.K. a ride to MCRC where they were met by Hand and Tina Mages, the girls’ adoption social worker.

. MCRC nurse Margaret Carney first spoke to the foster mother, who described T.K’s inappropriate behavior and the comments T.K. made regarding the sexual abuse. The foster mother also relayed some limited medical history. While Hand and Mages watched from an observation room, Carney interviewed T.K. and performed a physical examination of her. The interview and the examination were videotaped, although the physical exam was conducted out of view of the camera. Carney told T.K. that T.K. was being assessed in order to evaluate T.K’s health and it was important for T.K. to tell the truth. During the assessment, T.K. repeatedly stated that Krasky touched her genitals, penetrated her, and made her touch his genitals. Following the assessment, Carney tested T.K. for sexually transmitted diseases and made a recommendation for psychotherapy by a therapist who specializes in children who have been sexually abused.

Krasky was charged with multiple counts of both first- and second-degree criminal sexual conduct in violation of Minn.Stat. §§ 609.342, 609.343 (2006). The state gave notice to Krasky that it intended to admit at trial T.K.’s statements to Carney or the videotape of the interview, and Krasky made a timely motion to suppress T.K’s out-of-court statements claiming that admission of them would violate his right of confrontation. At a hearing on October 12, 2004, the prosecutor argued that Krasky had forfeited his confrontation rights by creating a violent atmosphere in the home. The state stipulated that T.K. and M.K. were not competent witnesses and were therefore unavailable to testify. The district court determined that T.K., then six years old, was incompetent to testify and therefore unavailable because T.K. “lacks the capacity to truthfully and accurately relate the facts about the defendant’s alleged abuse,” apparently due to her young age and developmental delays. The court concluded that T.K’s statements during the MCRC interview and examination were testimonial and that the statements were therefore inadmissible. The court also held that Krasky did not procure T.K.’s unavailability and thereby forfeit his Sixth Amendment Confrontation Clause rights.

The state appealed Irom the pretrial order, and the court of appeals reversed the court’s order suppressing T.K.’s statements. State v. Krasky, 696 N.W.2d 816, 820 (Minn.App.2005) (Krasky I): The court held that the statements were not testimonial because they were made at least in part for medical purposes and, as a result, the court concluded that admission of the statements would not violate Kra-sky’s rights under the Confrontation Clause. Id. Krasky appealed, and we granted review, stayed Krasky’s appeal, and ultimately remanded to the court of appeals for reconsideration in light of our decisions in Bobadilla, 709 N.W.2d at 243, and Scacchetti 711 N.W.2d at 508.

On remand, the court of appeals considered not only the Bobadilla and Scacchetti decisions, but also Davis v. Washington, — U.S.-, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), which had been recently decided. See State v. Krasky, 721 N.W.2d 916 (Minn.App.2006) (Krasky II). The court of appeals interpreted Davis as establishing that statements are testimonial when made in a nonemergency situation in response to government questions about past events that are potentially relevant to later criminal prosecution. See id. at 921. The court determined that T.K’s statements were made to Carney in a nonemergency situation because T.K. had been removed from Krasky’s home and his parental rights had been terminated. See id. at 922-23. Further, the court concluded, without explanation, that there was “no identified medical reason for the interview.” Id. at 919. The court of appeals concluded that T.K’s statements were testimonial and could not be admitted at trial. Id. at 924. Finally, the court of appeals held that, because there was no evidence of witness coercion or intimidation, Krasky had not forfeited his rights under the Confrontation Clause. Id. at 924. This appeal followed.

The sole issue in this case is whether statements made by a child victim to a nurse at MCRC are testimonial, and therefore inadmissible under the Confrontation Clause. When appealing from a pretrial order suppressing evidence, the state must establish that the order was erroneous. State v. Scott, 584 N.W.2d 412, 416 (Minn.1998). We employ a de novo standard of review when determining whether admission of evidence will violate a criminal defendant’s rights under the Confrontation Clause. State v. Caulfield, 722 N.W.2d 304, 308 (Minn.2006).

The Sixth Amendment states that “[i]n all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him.” U.S. Const, amend. VI; see also Minn. Const, art. 1, § 6 (“The accused shall enjoy the right * ⅜ ⅜ to be confronted with the witnesses against him ⅜ * *.”). This clause requires that all prior testimonial statements be excluded in criminal trials unless the declarant is unavailable to testify at trial and the defendant has had a prior opportunity to cross-examine the de-clarant regarding the statement. See Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The state bears the burden of proving a declarant’s statements are not testimonial. See Caulfield, 722 N.W.2d at 308.

In Bobadilla and Scacchetti two cases decided by this court in 2006, we analyzed Confrontation Clause challenges to admission of statements by child victims. In Bobadilla, we examined the admissibility of statements by a child sexual abuse complainant to a child-protection worker. See 709 N.W.2d at 246-48. We held that the statements of a three-year-old boy were not testimonial because they were made primarily to determine whether abuse occurred and whether steps needed to be taken to protect the health and welfare of the complainant, not to produce a statement for trial. See id. at 255-56. This was true despite the fact that an initial medical examination had already been conducted several days earlier, the fact that the assessment was conducted at a law enforcement center, and the fact that a police officer was present during the interview. Id. at 246-47. We considered it significant that the interview of the complainant was conducted “in accord with a statutory scheme for reporting, investigating, and responding to threats to children’s health or welfare” that is clearly intended to protect the health and welfare of children rather than produce statements for trial. Id. at 254.

In Scacchetti, we examined the admissibility of statements by a child sexual abuse complainant to a pediatric nurse practitioner employed by MCRC. 711 N.W.2d at 510. We held that statements by a three-and-one-half-year-old victim made during two separate assessments, which occurred several days after the alleged abuse and after an initial medical exam by a doctor, were not testimonial because they were primarily made in order to assess the complainant’s medical health and because no government actor was involved in producing the statements. See id. at 511, 514-15.

In both cases, we looked at the specific circumstances under which the statements were made in order to determine whether they were testimonial. See Scacchetti, 711 N.W.2d at 513-15; Bobadilla, 709 N.W.2d at 250-53. We focused in particular on whether production of statements for trial was a primary or merely incidental purpose from the perspectives of both the declarants and the questioners. Scacchetti, 711 N.W.2d at 513-15 (using terms “substantial” and “broad” rather than “primary”); Bobadilla, 709 N.W.2d at 250-53 (using term “substantial” rather than “primary”).

In this case, the assessment of T.K. was conducted at a children’s hospital rather than at a law enforcement center, and no law enforcement officer was present. The referral to MCRC was a joint decision made by social services and law enforcement, but there is no indication that the MCRC nurse who conducted the assessment of T.K. in this case was acting as a proxy for law enforcement. Accordingly, T.K’s statements to Carney are clearly less the product of a police interrogation than the statements at issue in Bobadilla. As in Scacchetti, we conclude that a nurse practitioner employed by MCRC is not a government actor. 711 N.W.2d at 514-15.

We conclude that the primary purpose of T.K.’s statements to Carney was to assess and protect T.K.’s health and welfare. Carney conducted a physical examination of T.K., questioned the foster mother about T.K’s medical history, tested T.K. for sexually transmitted diseases, recommended that T.K. receive psychotherapy, and repeatedly told T.K. that an examination was necessary in order to ensure that T.K. was healthy. That Krasky had been incarcerated and no longer possessed parental rights at the time of Carney’s assessment does not mean that T.K’s future health and welfare were not in question. The harms of child abuse are not limited to the abused child’s physical well-being. Although future acts of abuse were unlikely given that Krasky’s parental rights had been terminated and he was incarcerated at the time T.K. reported the abuse, Carney’s recommendation that T.K. receive psychotherapy indicates that her mental health was still at risk. Further, unlike in Bobadilla and Scacchetti, there is no indication in the record that T.K. was examined after she first reported the abuse and before meeting with Carney. Therefore, it could be said that T.K’s current physical health remained in doubt. In addition, seeking an assessment from Carney was a natural response to T.K.’s inappropriate behavior towards other children and, following the assessment, T.K. was eventually removed from foster care and the company of the other children living there. Consequently, we conclude that T.K’s statements to Carney were nontestimonial and that admission of those statements will not violate Krasky’s rights under the Confrontation Clause.

The statement in the police report indicating that a police officer and a child protection worker jointly concluded that “the best way to proceed with the investigation was to have [MCRC] do an interview with [T.K.] along with a medical exam” does not change our conclusions. Joint decisions of this type are required by Minn.Stat. § 626.556, subd. 10a (2006). As we noted in Bobadilla, the purpose of that statute is not the prosecution of criminals or the collection of evidence for trial. Instead, the statute declares that

the public policy of this state is to protect children whose health or welfare may be jeopardized through physical abuse, neglect, or sexual abuse * * *. In furtherance of this public policy, it is the intent of the legislature under this section to strengthen the family and make the home, school, and community safe for children by promoting responsible child care in all settings; and to provide, when necessary, a safe temporary or permanent home environment for physically or sexually abused or neglected children.
In addition, it is the policy of this state to require the reporting of neglect, physical or sexual abuse of children in the home, school, and community settings; to provide for the voluntary reporting of abuse or neglect of children; to require a family assessment, when appropriate, as the preferred response to reports not alleging substantial child endangerment; to require an investigation when the report alleges substantial child endangerment; and to provide protective, family support, and family preservation services when needed in appropriate cases.

Minn.Stat. § 626.556, subd. 1 (2006); see also Bobadilla, 709 N.W.2d at 254-55 (quoting Minn.Stat. § 626.556, subd. 1). As Bobadilla suggests, compliance with this statutory scheme, which is focused on protection of children’s health and welfare, does not render the statements of a child sexual abuse complainant testimonial.

Krasky argues that the Supreme Court’s holding in Davis v. Washington calls into question the validity of our holdings in Bobadilla and Scacchetti (both decided before Davis). Krasky’s reliance on Davis is misplaced. The Davis case involved two separate domestic violence cases. 126 S.Ct. at 2270-73. In the first case, a 911 operator gathered information about an assailant and details of the assault. Id. at 2270-72. The victim never testified and the district court admitted the victim’s out-of-court-statements to the 911 operator. Id. at 2271. In the second case, police arrived at the victim’s home in response to a report of domestic abuse. Id. at 2272. The victim told the police that the assailant (her husband) had assaulted her and she signed an affidavit describing the assault. Id.

The Davis Court concluded that the 911 call in the first case did not produce a testimonial statement because the circumstances indicated that “its primary purpose was to enable police assistance to meet an ongoing emergency.” Id. at 2277 (emphasis added). With respect to the on-scene statements in the second case, the court held that there was no emergency in progress and that the “primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime.” Id. at 2278 (emphasis added).

Krasky argues that Carney was not assessing or responding to an immediate danger and, therefore, she was merely seeking to preserve evidence for trial. We do not read the Davis opinion to hold that only those statements made in response to an immediate danger are nontestimonial. The facts of Davis required the court “to determine more precisely which police interrogations produce testimony” and the precise question was whether emergency calls to police are treated differently than statements made in the regular course of a police investigation. Id. at 2273-74. The court specifically noted that its holding was limited to its facts. Id. at 2278 n. 5 (“[0]ur holding is not an exhaustive classification of all conceivable statements — or even all conceivable statements in response to police interrogation, but rather a resolution of the cases before us and those like them.” (internal quotation marks and citations omitted)). We conclude that the Davis decision leaves undisturbed our conclusions in Bobadilla and Scacchetti that statements elicited by a medical professional for the primary purpose of protecting a child sexual assault victim’s health and welfare are nontestimonial.

We conclude that T.K’s statements to Carney are nontestimonial and admission of those statements will not violate Krasky’s right of confrontation under the Sixth Amendment. The decision of the court of appeals is reversed.

DISSENT

PAGE, Justice

(dissenting).

I respectfully dissent, for two reasons. First, on the facts presented here, the child’s statements at Midwest Children’s Resource Center (MCRC) are testimonial under the Supreme Court’s decision in Davis v. Washington, — U.S. -, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Second, even if the child’s statements at MCRC are not testimonial, they are not admissible as hearsay because they formed the basis for the district court’s finding that the child was incompetent to testify. I therefore conclude that the district court properly excluded the statements.

As the court explains, the Sixth Amendment provides that “[i]n all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him.” U.S. Const, amend. VI. The Minnesota Constitution similarly provides that “[t]he accused shall enjoy the right * * * to be confronted with the witnesses against him.” Minn. Const, art. 1, § 6. In Crawford v. Washington, the Supreme Court held that the Confrontation Clause requires that all previous testimonial statements be excluded in criminal trials unless the declarant is unavailable to testify at trial and the defendant has had an opportunity to cross-examine the declarant regarding the statement. 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In this case, the declarant was unavailable, but the defendant had no opportunity to cross-examine the declarant regarding the statements. Therefore, the child’s statements are inadmissible unless they are nontestimonial.

The Supreme Court’s opinion in Crawford provided little help in defining what statements are “testimonial,” and therefore subject to the Confrontation Clause, beyond a dictionary definition: “ ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” 541 U.S. at 51, 124 S.Ct. 1354 (quoting N. Webster, An American Dictionary of the English Language (1828)). The statement at issue in Crawford was a tape-recorded statement given to police by Crawford’s wife Sylvia describing the stabbing with which Crawford was charged. Id. at 38, 124 S.Ct. 1354. After listing “[vjarious formulations of this core class of ‘testimonial’ statements,” id. at 51, 124 S.Ct. 1354, the Court admittedly left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Id. at 68, 124 S.Ct. 1354. “Whatever else the term covers,” the Court continued, “it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 68, 124 S.Ct. 1354. As the Court noted, when Sylvia Crawford made the tape-recorded statement at issue, she was in police custody, “herself a potential suspect in the case.” Id. at 65, 124 S.Ct. 1354. Under those facts, the Court had little trouble concluding that the statement was testimonial. Id. at 68, 124 S.Ct. 1354.

We first applied what guidance there was in Crawford to statements made to a 911 operator and to police officers during a field investigation. State v. Wright, 701 N.W.2d 802 (Minn.2005), vacated and remanded, - U.S.-, 126 S.Ct. 2979, 165 L.Ed.2d 985 (2006). In Wright, in the absence of a more definitive explanation from the Supreme Court, we listed eight considerations we thought relevant to whether a statement is testimonial. Id. at 812-13. Those considerations included such things as “whether the declarant was a victim or an observer” and “whether it was the police or the declarant who initiated the conversation.” Id. at 812.

We then applied our eight-part test to statements by child sexual abuse victims in State v. Bobadilla, 709 N.W.2d 243 (Minn.2006), and State v. Scacchetti, 711 N.W.2d 508 (Minn.2006). In Bobadilla, the court concluded that statements by a child sexual abuse victim to a child protection worker were not testimonial by reference to what it concluded was the “main purpose” of the interview: “assessing and responding to imminent risks to [the child’s] health and welfare.” 709 N.W.2d at 255. I dissented in Bobadilla because the interview of the child was part of a police interrogation, in the presence of a police officer, conducted by “a government official who was taking the statement as a surrogate interviewer for the police.” Id. at 257 (Page, J., dissenting). In Scacchetti we concluded that the child’s statements were not testimonial because they were made to a pediatric nurse practitioner whose “purpose in interviewing and examining [the child] was to assess her medical condition,” 711 N.W.2d at 515; “no government actor initiated, participated, or was involved in any way,” id. at 514.

But then came the Supreme Court’s decisions in Davis v. Washington which, in my view, significantly altered the testimonial landscape. There were two statements at issue in Davis and its companion case, Hammon v. Indiana. In Davis, as in Wright, the statement at issue was a call to a 911 operator made by Davis’s former girlfriend, which began, “He’s here jumpin’ on me again.” 126 S.Ct. at 2271. The 911 operator determined whether the call was being made from a house or an apartment, whether there were any weapons involved, whether the assailant had been drinking, the assailant’s name and birth date, and the fact that the assailant was leaving the scene in a car with someone else. Id. When the former girlfriend did not testify at trial, the tape of her 911 call was admitted instead. Id.

In Hammon, the statements at issue were made by Hammon’s wife, at the couple’s home, to police responding to a reported domestic disturbance. 126 S.Ct. at 2272. When police arrived at the home, Hammon’s wife was on the front porch, and denied to the officers that anything was wrong. Id. After Hammon himself admitted there had been an argument, and after the officers observed physical evidence of a fight, the officers took Ham-mon’s wife into another room and asked her a second time what had happened. Id. As Hammon protested, his wife first told officers and then wrote out an affidavit to the effect that Hammon had shoved her to the floor on broken glass, hit her, disabled the phone and her van, and attacked her daughter. Id. After Hammon’s wife defied a subpoena and refused to testify at trial, the district court allowed the responding officers to testify as to her statements to them as “excited utterances” and admitted her affidavit as a “present sense impression.” Id.

The Court concluded that while the statement in Davis was not testimonial, the statement in Hammon was. See id. at 2280. Comparing the two statements, the Court observed:

The statements in Davis were taken when McCottry [Davis’s former girlfriend] was alone, not only unprotected by police (as Amy Hammon [Hammon’s wife] was protected), but apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past. McCottry’s present-tense statements showed immediacy; Amy’s narrative of past events was delivered at some remove in time from the danger she described. And after Amy answered the officer’s questions, he had her execute an affidavit, in order, he testified, “[t]o establish events that have occurred previously.”

Id. at 2279. The Court summarized its overall holding this way:

Without attempting to produce an exhaustive classification of all conceivable statements — or even all conceivable statements in response to police interrogation — as either testimonial or nontes-timonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. at 2273-74.

In the Court’s discussion of the differences between the results in Crawford, Davis, and Ham/mon, there is significance for this case. In Davis, the Court distinguished between “interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator,” on the one hand, and “[a] 911 call, on the other hand, and at least the initial interrogation conducted in connection with a 911 call,” which the Court observed “is ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current circumstances requiring police assistance.” 126 S.Ct. at 2276. The Court contrasted McCottry’s 911 call in Davis with the police questioning of Sylvia Crawford:

The difference between the interrogation in Davis and the one in Crawford is apparent on the face of things. In Davis, McCottry was speaking about events as they were actually happening, rather than “describing] past events.” Sylvia Crawford’s interrogation, on the other hand, took place hours after the events she described had occurred. Moreover, any reasonable listener would recognize that McCottry (unlike Sylvia Crawford) was facing an ongoing emergency. Although one might call 911 to provide a narrative report of a crime absent any imminent danger, McCot-try’s call was plainly a call for help against bona fide physical threat. Third, the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford), what had happened in the past. That is true even of the operator’s effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon. And finally, the difference in the level of formality between the two interviews is striking. Crawford was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; McCottry’s frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe.

126 S.Ct. at 2276-77 (citations omitted). According to the Court, McCottry “simply was not acting as a witness; she was not testifying.” Id. at 2277.

In contrast, the statements in Hammon “were not much different from the statements [the Court] found to be testimonial in Crawford.” Id. at 2278. The questioning of Hammon’s wife “was part of an investigation into possibly criminal past conduct.” Id. “There was no emergency in progress.” Id. The Court noted, “[o]b-jectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime.” Id. And, although the Court acknowledged that the questioning in Crawford was “more formal,” id., the questioning in Hammon was “formal enough.” Id.

What we called the “striking resemblance” of the Crawford statement to civil-law ex parte examinations is shared by Amy’s statement here. Both declar-ants were actively separated from the defendant — officers forcibly prevented [Hammon] from participating in the interrogation. Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.

Id. (citations omitted).

From the Supreme Court’s reasoning in Davis, it appears to me that some of the eight factors we recounted in Wright— such as whether the declarant was a victim or an observer — may no longer be germane to the analysis. Instead, the Court’s distinction between testimonial and nontes-timonial statements appears to depend on four factors: (1) when the statement was made (for example, whether the statement was made contemporaneous with or after the incident); (2) what the statement describes (for example, whether the statement describes a current emergency or past events); (3) if describing a current emergency, whether the declarant’s statement is necessary to resolve the current emergency; and (4) the circumstances giving rise to the statement (such as by whom the statement was initiated and the level of its formality).

From what this record discloses about T.K.’s statements to MCRC, they are testimonial. The questioning took place approximately 18 months after Krasky’s last contact with T.K. There was no current emergency; as the court acknowledges, by the time T.K. was interviewed at MCRC, Krasky had already been incarcerated and his parental rights had been terminated. T.K’s statements to MCRC recounted, in response to questions, how past criminal events began and progressed. That is to say, the nurse elicited from T.K. a narrative of her alleged abuse at the hands of Krasky. The questioning was intended as a substitute for, and indeed produced, “precisely what a witness does on direct examination.” Davis, 126 S.Ct. at 2278. Indeed, the nurse began her questioning of T.K. by asking T.K. to do what the court asks witnesses to do: promise to tell the truth. Finally, the interview at MCRC was at the behest of government actors, having been arranged by the police, in conjunction with a county social worker. On this record, T.K.’s statements at MCRC were testimonial and therefore inadmissible in the absence of T.K.’s testimony or a previous opportunity for Krasky to cross-examine her.

The court in this case rests its decision on what it characterizes as “the primary purpose of T.K.’s statements to Carney,” that is, “to assess and protect T.K.’s health and welfare.” Doing so is misguided. First, to say the “primary purpose” of the statement was to assess T.K.’s health begs the question because that “primary purpose” does not alter the fact that another purpose for taking the statement was to assist in the prosecution of Krasky. Second, Carney’s purpose in questioning T.K. may have been to assess T.K’s health, but it cannot be said on this record that T.K. had any understanding of why she was at MCRC and therefore I cannot assume that in answering Carney’s questions T.K. thought she was protecting her health and welfare. Finally, even if T.K. understood the purpose of the MCRC examination, it seems to me that the court’s reliance on “the primary purpose of T.K’s statements to Carney” is simply a fallback to the historical underpinnings of the hearsay exception under Minn. R. Evid. 803(4) for “[sjtatements made for purposes of medical diagnosis and treatment,” namely, that statements made for purposes of medical treatment provide “ ‘special assurance of reliability’ ” because of “ ‘the patient’s belief that accuracy is essential to effective treatment.’ ” State v. Robinson, 718 N.W.2d 400, 404 (Minn.2006) (quoting 2 John W. Strong, et al., McCormick on Evidence § 277, at 247 (4th ed.1992)). If anything is clear in the Supreme Court’s definition of “testimony,” it is that statements are not to be categorized as “non-testimonial” (and therefore admissible) simply because a court believes them to be inherently reliable. See Crawford, 541 U.S. at 61, 124 S.Ct. 1354 (“Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation.”). I therefore conclude that T.K’s statements at MCRC are testimonial under Davis.

The statements were also properly excluded from evidence for another reason.

This appeal arises because the district court ruled that T.K. was incompetent to testify at trial. The basis for the court’s incompetency finding is the court’s determination that T.K. “lacks the capacity to truthfully and accurately relate the facts about the defendant’s alleged abuse.” There was no separate evidentiary hearing in this matter on T.K.’s competency; rather, the state “stipulated” that T.K. was not competent to testify. In a memorandum attached to its order on competency, the court describes T.K’s demeanor during the interview at MCRC and her answers to the nurse’s questions. As a result, the evidentiary bases for the court’s competency determination are the very statements the state proposed to admit at trial in lieu of T.K’s testimony — that is, her interview at MCRC, described by the court as follows:

TLK is six years old, suffers from developmental delays to such an extent that she was held back in school last year, and receives special educational services. During her visit to MCRC, she inaccurately stated that her birthday was the day before the interview, and when asked if she knew what “true and real” means, she responded “There’s fish outside.” When asked to promise to talk about only things that are “true and real,” TLK did not respond. When asked again, she looked at the floor and nodded her head slightly. TLK lacks the capacity to truthfully and accurately relate the facts about the defendant’s alleged abuse. She is not competent to testify at trial, and is therefore unavailable at trial.

Thus, this is not a case like Crawford or Davis, in which the unavailable witness is an adult who was presumably competent at the time of the out-of-court statements that were at issue in those cases. Nor is this a case in which the witness could be presumed competent at the time of the out-of-court statement but has become incompetent in the interim, for example as a result of illness. Nor is this a case in which the court made a later determination as to competency based on T.K’s responses to questions in a separate competency hearing. Rather, this is a case in which the witness was not competent when she made the out-of-court statement, as demonstrated by the out-of-court statement itself. As such, it should be beyond dispute that T.K’s out-of-court statements are therefore inadmissible under any circumstances.

The Supreme Court has apparently not addressed such a conundrum directly, but I find the Court’s statements in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), a strong indication that it would reach the same conclusion. Idaho v. Wright also involved a Confrontation Clause challenge to the admissibility of the out-of-court statements of a child sexual abuse victim. Id. at 808, 110 S.Ct. 3139. Although the Court analyzed the matter under Idaho’s “residual hearsay exception,” id. at 817, 110 S.Ct. 3139, the Court specifically rejected the defendant’s contention that the child’s out-of-court statements were unreliable per se, because the child had been ruled only “unavailable” to testify and not “incompetent”:

Finally, we reject respondent’s contention that the younger daughter’s out-of-court statements in this case are per se unreliable, or at least presumptively unreliable, on the ground that the trial court found the younger daughter incompetent to testify at trial. First, respondent’s contention rests upon a questionable reading of the record in this case. The trial court found only that the younger daughter was “not capable of communicating to the jury.” Although Idaho law provides that a child witness may not testify if he “appearfs] incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly,” the trial court in this ease made no such findings. Indeed, the more reasonable inference is that, by ruling that the statements were admissible under Idaho’s residual hearsay exception, the trial court implicitly found that the younger daughter, at the time she made the statements, was capable of receiving just impressions of the facts and of relating them truly. In addition, we have in any event held that the Confrontation Clause does not erect a per se rule barring the admission of prior statements of a de-clarant who is unable to communicate to the jury at the time of trial. Although such inability might be relevant to whether the earlier hearsay statement possessed particularized guarantees of trustworthiness, a per se rule of exclusion would not only frustrate the truth-seeking purpose of the Confrontation Clause, but would also hinder States in their own “enlightened development in the law of evidence.”

497 U.S. at 824-25, 110 S.Ct. 3139 (citations omitted). We have similarly excluded statements made by witnesses who were judged incompetent at the time the statements were made. See, e.g., Ammundson v. Tinholt, 228 Minn. 115, 120, 36 N.W.2d 521, 524 (1949) (excluding statements made by a husband who had just witnessed his wife’s car accident on grounds that he lacked capacity at the time of the statement to recollect and narrate the facts to which the statements related).

Again, this is not a case of a witness whose only problem is the inability to communicate to the jury at the time of trial. This is a case of a witness who, when she made the very statements that the state proposes to admit in lieu of her testimony at trial, was incompetent to testify because she lacked “the capacity to truthfully and accurately relate the facts about the defendant’s alleged abuse” to MCRC as well as to the jury. I would affirm the district court: under the facts of this case, such statements simply are not admissible on any grounds.

Finally, I note that only T.K.’s statements to Carney during the MCRC are at issue here. Crawford distinguished between “[a]n accuser who makes a formal statement to government officers” and “a person who makes a casual remark to an acquaintance.” 541 U.S. at 51, 124 S.Ct. 1354. This case began after T.K.’s foster mother reprimanded her for inappropriately touching T.K.’s sister, and T.K. defended herself on grounds that Krasky did the same to her. I do not believe that the Supreme Court’s concern with testimonial statements in Crawford and Davis is meant to reach T.K’s spontaneous statements to her foster mother that alerted the foster mother to the possibility of abuse in the first place. Nor does T.K.’s age-inappropriate behavior, such as pretending to masturbate, constitute testimony. Similarly, although I find T.K.’s statements to Carney inadmissible, the results of Carney’s physical examination of T.K. would still be admissible. Thus, without expressing any opinion as to the viability of the state’s case on remand, I do not believe that excluding T.K’s statements to Carney necessarily bars prosecution of Krasky.

I respectfully dissent.

ANDERSON, PAUL H., Justice

(dissenting).

I join in the dissent of Justice Page.

      . As of April 2004, Krasky had not had any contact with T.K. in approximately 18 months, having been incarcerated for much of that period in connection with various assault convictions stemming from physical abuse of T.K. and his other children.

      . Pursuant to á statutory scheme designed to "protect children whose health or welfare may be jeopardized through * * ⅜ sexual abuse,” local social service agencies are required "to conduct a family assessment or an investigation” upon receiving a report of child sexual abuse. Minn.Stat. § 626.556 (2006), subds. 1, 10(a) (2006). A local welfare agency responsible for assessing or investigating the allegations must request information relevant to the investigation, potentially including "a medical examination of the child.” Minn. Stat. § 626.556, subd. 10(h)(3) (2006). Local social service agencies must immediately share information about child sexual abuse allegations with law enforcement, Minn.Stat. § 626.556, subd. 3(a) (2006), and law enforcement and local welfare agencies are required to "coordinate the planning and execution of their respective investigation and assessment efforts to avoid a duplication of fact-finding efforts and multiple interviews,” Minn.Stat. § 626.556, subd. 10(a). Interviews of child sexual abuse complainants must be videotaped whenever possible. Minn.Stat. § 626.556, subd. 10(j)(2).

      . The state appealed the district court's decision to suppress Spreigl evidence, and the court of appeals affirmed the district court's decision. Krasky I, 696 N.W.2d at 820-21. The state did not raise the Spreigl issue to this court.

      . The dissent argues for excluding the child victim's statement for another reason — her statement is inadmissible because the judge found her to be incompetent to testify and, therefore, her statement is unreliable. A witness's competency to testify and a statement's reliability are matters that are completely separate from whether a statement is admissible under the Confrontation Clause. Neither the issue of the victim’s competency nor any reliability objections are properly before the court, though presumably both issues could be raised at a later time.

      . In both cases, we provided a list of eight nonexclusive factors that are relevant to our review:
      (1) whether the declarant was a victim or an observer; (2) the declarant’s purpose in speaking with the officer (e.g., to obtain assistance); (3) whether it was the police or the declarant who initiated the conversation; (4) the location where the statements were made (e.g., the declarant's home, a squad car, or the police station); (5) the declarant’s emotional state when the statements were made; (6) the level of formality and structure of the conversation between the officer and declarant; (7) the officers’ purpose in speaking with the declarant (e.g., to secure the scene, determine what happened, or collect evidence); and (8) if and how the statements were recorded.

        Scacchetti, 711 N.W.2d at 513, and Bobadilla, 709 N.W.2d at 250 (both quoting State v. Wright, 701 N.W.2d 802, 812-13 (Minn.2005), vacated and remanded, ■— U.S. -■, 126 S.Ct. 2979, 165 L.Ed.2d 985 (2006)).

      . In both Bobadilla and Scacchetti, we noted that it was unlikely the child complainant knew that the statements could be used at trial against an abuser. See Scacchetti, 711 N.W.2d at 516; Bobadilla, 709 N.W.2d at 255. While we do not decide this case on the grounds that T.K. did not know her statements might be used at trial, we note that it would be an odd outcome if we were to hold that, while T.K. is not competent to be called to the stand to give testimony in court, her out-of-court statements to Carney are nonetheless inadmissible because they are testimonial in nature.

      . The state makes an argument in the alternative that Krasky forfeited his rights under the Confrontation Clause by creating an "atmosphere of abuse ⅝ * * in the home” through physical "assaults of his wife and all of his children.” We decline to decide this question as it is not necessary to the resolution of this case.

      . The eight considerations we listed were: (1) whether the declarant was a victim or an observer; (2) the declarant's purpose in speaking with the officer; (3) whether it was the police or the declarant who initiated the conversation; (4) the location where the statements were made; (5) the declarant's emotional state; (6) the level of formality and structure of the conversation; (7) the officer's purpose in speaking with the declarant; and (8) if and how the statements were recorded. Wright, 701 N.W.2d at 812-13.