author: STRINGER, Justice.

text:
    David VEZINA, Relator, v. BEST WESTERN INN MAPLEWOOD and State Fund Mutual Insurance Company, Respondents, and Commissioner, Minnesota Department of Labor and Industry, Intervenor, Respondent. Lloyd G. Shelton, Relator, v. National Painting and Sandblasting and Wausau Insurance Company, Respondents, National Painting and Drywall and Grinnell Mutual/ASU Risk Management, Respondents, and Commissioner, MN Department of Labor and Industry, Intervenor, Respondent, and Special Compensation Fund.
    Nos. C9-00-1457, C9-00-1488.
    Supreme Court of Minnesota.
    May 31, 2001.

      Thomas D. Mottaz, Law Offices of Thomas D. Mottaz, Anoka, Dougals Peine, St. Paul, for Employee-Relator Vezina.
    Andrew W. Lynn, Lynn Scharfenberg & Associates, Minneapolis, for Respondents Vezina.
    Mike Hatch, Attorney General, State of Minnesota, Richard L. Vareo, Jr., Assistant Attorney General, St. Paul, for Inter-venor/Respondent Vezina and Shelton.
    Pustorino, Tilton & Parrington, P.A., Peter J. Pustorino, Jeffrey James Lindquist, Minneapolis, Amicus for Minnesota Defense Lawyers Association.
    Thomas R. Longfellow, Sieben, Polk, LaVerdiere, Jones & Hawn, P.A., Douglas Peine, St. Paul, for Employee-Relator Shelton.
    Mark E. Tracy, Conley and Borgeson, Thomas L. Cummings, Jardine, Logan & O’Brien, P.L.L.P., St. Paul, for Respondents Shelton.
   OPINION

STRINGER, Justice.

The primary issue presented by these two appeals consolidated for review on cer-tiorari is whether Minn.Stat. § 176.101, subd. 4, requires that compensation for a permanently and totally disabled employee as defined in Minn.Stat. § 176.101', subd. 5 (2000), must be subject to a full offset for benefits received from other government disability programs. The parties do not dispute that David D. Vezina and Lloyd Shelton (employee-relators) sustained com-pensable injuries and meet the statutory threshold for permanent total disability (PTD) as defined in Minn.Stat. § 176.101, subd. 5, see McClish v. Pan-O-Gold, Baking Co., 336 N.W.2d 538, 541-42 (Minn.1983), and that the PTD benefits are subject to an offset under section 176.101, subdivision 4, once $25,000 in PTD benefits have been paid. The dispute centers around the extent of the offset. The workers’ compensation judge in each case ruled that under section 176.101, subdivision 4, the offset may not reduce the compensation rate below 65 percent of the statewide average weekly wage. The Workers’ Compensation Court of Appeals (WCCA) reversed based on the determination that Minn.Stat. § 176.101, subd. 4, clearly and unambiguously provides that PTD benefits must be offset by benefits received from “any government disability benefit program” even if application of the offset results in a reduction of benefits below the minimum compensation rate of 65 percent of the statewide average weekly wage. We agree and affirm.

The controlling statute is Minn.Stat. § 176.101, subd. 4, which provides:

For permanent total disability, as defined in subdivision 5, the compensation shall be 66-2/3 percent of the daily wage at the time of the injury, subject to a maximum compensation equal to the maximum weekly compensation for a temporary total disability and a minimum weekly compensation equal to 65 percent of the statewide average weekly wage. This compensation shall be paid during the permanent total disability of the injured employee but after a total of $25,000 of weekly compensation has been paid, the amount of the weekly compensation benefits being paid by the employer shall be reduced by the amount of any disability benefits being paid by any government disability benefit program if the disability benefits are occasioned by the same injury or injuries which give rise to payments under this subdivision.

For purposes of our analysis, it is important to note that in 1995 the legislature amended the first sentence of Minn.Stat. § 176.101, subd. 4, to delete language indicating that the minimum weekly compensation for PTD is equal to “the minimum weekly compensation for a temporary total disability” and substituted language indicating that the minimum weekly compensation for PTD is equal to “65 percent of the statewide average weekly wage.” Act of May 25, 1995, ch. 231, art. 1, § 20, 1995 Minn. Laws 1977, 1990.

In 1995 the legislature also repealed the supplementary benefits program that provided benefits if the permanent total disability benefit provided by Minn.Stat. § 176.101, subd. 4, dipped below the supplementary benefit rate of 65 percent of the statewide average weekly wage. Act of May 25, 1995, ch. 231, art. 1, § 35, 1995 Minn. Laws 1977, 1998 (repealing Minn. Stat. § 176.132 (1994)). The supplementary benefit was based upon the “gap” between the permanent total disability benefit and 65 percent of the statewide average weekly wage. Minn.Stat. § 176.132 (1994). Unlike workers’ compensation benefits which are paid by the employer and are not reimbursable, in the case of supplementary benefits employers were reimbursed through a special compensation fund established by the state. Id.

Employee-relator David Vezina suffered a compensable injury on October 27, 1995, in the nature of a fracture at the T-6 level of his back while employed by Best Western Inn Maplewood. On the date of injury, the employer was insured for workers’ compensation liability by State Fund Mutual Insurance Company. The parties in that case also stipulated that Vezina has serious heart and lung conditions and he is permanently and totally disabled. The compensation judge found that the back injury was a substantial contributing cause of the permanent total disability. The parties do not contest that Vezina has been paid $25,000 in PTD benefits, triggering the offset required under Minn.Stat. § 176.101, subd. 4.

In addressing the issue now before the court, the compensation judge in Vezina cited Owens v. Water Gremlin Co., 60 Minn. Workers’ Comp. Dec. 16, 34-35 (W.C.C.A., Aug. 6, 1999), which stated that it is “difficult to discern” the legislative intent behind the 1995 amendments to the Workers’ Compensation Act. On this basis and what she referred to as the plain language of the statute, the compensation judge in Vezina determined that because the 1995 amendment eliminated the supplemental benefits applicable to individuals under Minn.Stat. § 176.132, subd. 2(d) (1994), the legislature must have intended the minimum PTD benefit of 65 percent of the statewide average weekly wage to be fixed, and that the minimum should not be reduced by the social security offset — ’Otherwise the employee would not get the higher rate that the compensation judge perceived the legislature intended.

In Shelton, the workers’ compensation judge determined that the employee suffered a compensable injury to his cervical spine on February 4, 1983, while employed by National Painting and Sandblasting. On the date of injury, the employer was insured for workers’ compensation liability by Wausau Insurance Company. As a result of the injury, Shelton had cervical spine surgery on December 7, 1984. The judge found that Shelton returned to work after surgery with minimal functional limitations although he continued to experience pain in the first year after returning to work.

Beginning in April 1994, Shelton sought treatment for painful shoulder symptoms. The judge found that Shelton sustained a Gillette-type injury to his shoulders, elbows and forearms. At the time of this injury, the employer, National Painting and Drywall, was insured by Grinnell Mutual. The employer and its insurer accepted liability and furnished various benefits, including rehabilitative services and temporary total disability (TTD) benefits. Based on the opinions of several medical and vocational experts, including the employer’s vocational expert, that Shelton was permanently and totally disabled, the workers’ compensation judge ordered that the employee be paid permanent total disability benefits from January 6, 1998, the date the insurer terminated rehabilitative services. The compensation judge determined that “pursuant to Minn.Stat. § 176.101, Subd. 4 (1995), the Social Security offset shall not reduce the employee’s permanent total disability benefits below 65% of the statewide average weekly wage.”

On review the WCCA reversed the compensation judge’s orders regarding application of the offset in both Shelton and Vezina. The WCCA framed the issue as whether the statutory minimum in Minn. Stat. § 176.101, subd. 4, is the minimum only at the time of determination of the employee’s initial compensation rate, and only prior to the $25,000 threshold, or whether the statutory minimum remains the minimum even after the $25,000 threshold that triggers the offset is met. The WCCA noted that the minimum compensation rate has always been a part of section 176.101, subdivision 4, and that pri- or to the 1995 amendment it was not uncommon for workers’ compensation benefits to be reduced below the minimum, even to the point of a complete offset. The WCCA further observed that the 1995 amendment did not alter the offset provision and cited our decision in Potucek v. City of Warren where we affirmed the dollar-for-dollar reduction of compensation benefits to offset other government benefits. 535 N.W.2d 333, 336 (Minn.1995) (“[Sjection 176.101, subd. 4 contemplates a simple dollar-for-dollar reduction in the ‘amount of the weekly compensation benefits being paid by the employer’ by the ‘amount of any disability benefits being paid by any government disability benefit program ⅜ * ”).

The WCCA concluded that the plain language of the statute clearly and unambiguously provides that the employee’s weekly compensation being paid by the employer was to be offset by disability benefits being paid by other government disability benefit programs, and that the amendment of Minn.Stat. § 176.101, subd. 4, in conjunction with the repeal of the supplementary benefits provision in 1995 was not intended to establish 65 percent of the statewide average weekly wage as an absolutely fixed minimum benefit.

I.

Statutory interpretation by the WCCA is subject to de novo review by this court. Owens v. Water Gremlin Co., 605 N.W.2d 738, 735 (Minn.2000) (“When reviewing questions of law determined by the WCCA, we are free to exercise our independent judgment.”).

The parties agree that the first sentence of Minn.Stat. § 176.101, subd. 4, unambiguously^ provides PTD benefits equal to two-thirds of the wage the employee was earning at the time of the injury, subject to a maximum and minimum weekly compensation level of no more than the maximum weekly compensation for TTD and no less than 65 percent of the statewide average weekly wage. The parties also agree that the 1995 amendment changed the minimum weekly compensation from the minimum required for TTD to 65 percent of the statewide average weekly wage. The parties disagree on the interpretation of the language that requires application of the offset after $25,000 in PTD benefits have been paid.

Respondents argue that under the offset, the benefits paid under Minn.Stat. § 176.101, subd. 4, are reduced by one dollar for each dollar of government disability program benefits, even if application of the offset results in the worker being paid workers’ compensation benefits in an amount less than 65 percent of the statewide average weekly wage. Employee-relators argue that the offset may not be used to reduce PTD benefits to less than 65 percent of the statewide average weekly wage, no matter how much the employee receives in government disability benefit program benefits.

Employee-relators argue that the use of the word “minimum” in the first sentence of Minn.Stat. § 176.101, subd. 4, clearly indicates that PTD benefits cannot be lower than the 65 percent of the statewide average weekly wage because the plain meaning of the word “minimum” is the least or lowest. Thus, employee-relators assert, applying the offset to reduce PTD benefits below 65 percent of the statewide average weekly wage violates the clear meaning of the statute.

Employee-relators further argue that the WCCA’s reference to the generally accepted practice of a dollar-for-dollar application of the offset under Minn.Stat. § 176.101, subd. 4, violates the general rule that extrinsic aids are not consulted unless the court finds that the statute is ambiguous. Arlandson v. Humphrey, 224 Minn. 49, 54, 27 N.W.2d 819, 823 (1947) (“Where there is no uncertainty or ambiguity in the language, the statute speaks for itself.”). Further, employee-relators note that before the 1995 amendments, the state-funded supplemental benefits program ensured that notwithstanding the offset, PTD employees would receive at least 65 percent of the statewide average weekly wage in workers’ compensation benefits, and thus there was no incentive for employees to litigate the issue of the proper application of the offset before the 1995 amendments.

Employee-relators also argue that if legislative intent is considered, proponents of the amendment during the 1995 legislative debates stated that “Nobody is going to take a cut under this.” House debate on H.F. 642, 79th Minn. Leg., May 9, 1995 (audio tape) (statement of Rep. Girard). Further, the simultaneous repeal of the supplementary benefit provision and the amendment to section 176.101, subdivision 4, raising the minimum benefit to 65 percent of the statewide average weekly wage demonstrates legislative intent not to reduce PTD benefits.

Respondents and intervenor, the Minnesota Department of Labor and Industry, explain that the plain language of the statute establishes a three-part process to determine PTD benefits. The first step is a computation of compensation under the first sentence of subdivision 4 without regard to benefits being paid by other government disability programs. The second step is to take into account that PTD benefits are subject to an offset once $25,000 in PTD benefits have been paid. The third step is the calculation of the offset. Minn.Stat. § 176.101, subd. 4 (“[A]fter a total of $25,000 of weekly compensation has been paid, the amount of the weekly compensation benefits being paid by the employer shall be reduced ⅜ * *.”).

Citing the rule that “Every law shall be construed, if possible, to give effect to all its provisions,” Minn.Stat. § 645.16 (2000), the Commissioner of the Department of Labor and Industry (commissioner) argues that employee-relators’ proposed interpretation would ignore the second sentence of subdivision 4 because the word “but” in the second sentence of section 176.101, subdivision 4, can be read only to mean “with the exception that” or “except that” — plainly and unambiguously indicating that the second sentence is an exception to the first sentence of that section. Therefore “minimum” has its plain meaning in the first step, but is subject to the exception provided by the plain language of the offset provision in the second sentence. The commissioner argues that when read as a whole, the statute contemplates that application of the offset may result in compensation benefits below the “minimum.”

The commissioner notes that the offset methodology was not affected by the 1995 amendments. The legislature repealed the supplementary benefits program and amended Minn.Stat. § 176.101, subd. 4, to increase the minimum weekly compensation level. That is all it did — it did not change the second sentence of section 176.101, subdivision 4, regarding the offset for benefits paid by other government disability benefit programs. As further evidence of legislative intent, the commissioner cites Representative Sviggum’s comment during the legislative debate that “today we are taking the opportunity to finally put ⅜ * * into law” the recommendations made in the legislative auditor’s report of 1988 that criticized the supplementary benefit system for failing to coordinate benefits with other government disability benefit programs, in some cases creating a disincentive for injured employees to return to work because total payments to injured employees exceeded their pre-injury wage. House debate on H.F. 642, 79th Minn. Leg., May 22, 1995 (audio tape) (statement of Rep. Sviggum). Respondents argue that adoption of employee-relators’ proposed interpretation of Minn.Stat. § 176.101, subd. 4, would revive the duplication in benefits criticized in the 1988 report.

We conclude that the statute is clear in the application of the three-step formula. The minimum and maximum limits are established in the period in which benefits are first paid to the injured employee, but once $25,000 in benefits have been paid, the offset is to be apjolied. There is no language indicating that the offset may be taken only against the benefits in excess of 65 percent of the statewide average weekly wage — the statute simply and straightforwardly provides that compensation benefits are offset dollar-for-dollar by other benefits paid under other government programs. Respondents’ proposed interpretation of the statute gives full effect to both sentences of section 176.101, subdivision 4, and is most consistent with the plain language of the statute.

The coordination of workers’ compensation benefits with other government disability program benefits is furthered by this straightforward application of the offset provision as a dollar-for-dollar reduction. As we noted in Poiucek, “workers’ compensation is but one element of a system of wage-loss protection [and] the Minnesota legislature early on provided a means for coordinating workers’ compensation with the federal social security system and the state pension system.” Potucek, 535 N.W.2d at 336. The changes to the workers’ compensation system in 1995 reflect the importance of coordination of benefits, as the language of the offset provision in Minn.Stat. § 176.101, subd. 4, was not modified by the 1995 legislature. It is important to note that 65 percent of the statewide average weekly wage is indeed a minimum — but it is an aggregate of benefits paid under the compensation laws and other government disability benefit programs such as social security. So while PTD benefits may be offset below the base compensation level of 65 percent of the statewide average weekly wage after $25,000 in PTD benefits have been paid, the benefits received by a PTD employee will not fall below that level.

Thus, the language of the statute and indications of -legislative intent demonstrate that the offset is to be applied dollar-for-dollar even though the offset may reduce the workers’ compensation benefits paid under section 176.101, subdivision 4, below 65 percent of the statewide average weekly wage, and we so hold.

II.

The second issue on appeal concerns a contribution and reimbursement claim raised by Shelton respondents National Painting and Drywall and Grinnell Mutual Reinsurance Company (Grinnell). Grinnell sought contribution and reimbursement from respondents National Painting and Sandblasting and Wausau Insurance Company (Wausau), asserting that Shelton’s permanent and total disability was partially caused by the 1988 cervical spine injury suffered when Wausau carried the risk. Conflicting medical testimony was presented regarding the effect of the 1988 cervical spine injury and the later Gillette injury suffered when Grinnell carried the risk. The compensation judge denied the contribution and reimbursement claim, concluding that Shelton was not significantly restricted in his work activities after 1985. On appeal, the WCCA observed that the employee returned to full-time work at a physically demanding job after recovering from the 1983 injury and performed his job duties for approximately 10 years without loss of time from work or further medical treatment in connection with the 1983 injury. The WCCA determined that the findings of the compensation judge were supported by substantial evidence and affirmed the denial of the contribution and reimbursement claim. We will not disturb the factual findings of the compensation judge regarding equitable apportionment unless they are manifestly contrary to the evidence. DeNardo v. Divine Redeemer Mem’l Hosp., 450 N.W.2d 290, 293 (Minn.1990).

After a careful review of the record we conclude that the compensation judge’s denial of equitable apportionment, as affirmed, was based on reasonable factual findings consistent with the evidence presented. We therefore affirm.

Affirmed.

      . Vezina v. Best Western Inn, 2000 WL 1177704 (W.C.C.A., July 28, 2000) and State Fund Mut. Ins. v. Nat'l Painting and Sandblasting, 2000 WL 1177706 (W.C.C.A., July 28, 2000).

      . The WCCA stated in Owens:

      Although a reasonable argument can be made that the 1995 statutory changes were intended to reduce rather than to expand benefits owed to injured employees, such an argument does not supplant the clear language of the statute. While the legislature did place a cap on entitlement to temporary total disability benefits and required permanent partial disability thresholds for entitlement to permanent total disability, it also raised the maximum compensation rate to $615.00 per week and increased the minimum compensation rate for permanent total disability to 65% of the statewide average weekly wage. Given such evidence of compromising considerations at work in the total picture of the 1995 amendments, the ultimate "legislative intent" behind any single provision among those amendments remains difficult to discern.

        Owens, 60 Minn. Workers Comp. Dec. at 33-34.

      . See Gillette v. Harold, Inc., 257 Minn. 313, 321-22, 101 N.W.2d 200, 206 (1960) (holding employee suffered compensable injury where disability of foot was aggravated by constant and continued use in performing the ordinary and necessary duties of employment).

      . The commissioner criticizes employee-rela-tors’ selective omission of key statements when referring to the legislative debates. Employee-relators assert that during the 1995 debate of the amendment to Minn.Stat. § 176.101, subd. 4, on the floor of the House, Representatives Girard and Betterman stated that the amendment would not cut benefits to workers. House debate on H.F. 642, 79th Minn. Leg., May 9, 1995 (audio tape) (statements of Reps. Girard and Betterman). The commissioner argues that employee-relators misrepresented the discussion as' relating to the application of the offset on future injured employees when in fact the statements were made in the context of a discussion about the retroactive effects of the repeal of supplementary benefits.
      Employee-relators argue that their position is further supported by the exchange in which Representative Leighton asked the bill's author Representative Kelso whether the minimum rate would be paid before or after application of the offset and Representative Kelso answered, "before.” House debate on H.F. 642, 79th Minn. Leg., May 9, 1995 (audio tape) (statements of Reps. Leighton and Kel-so). Respondents counter that Representative Leighton immediately responded, "I think its [sic] important for the members of this body to understand that [65 percent of the statewide average weekly wage] would not be a floor and that there is going to be an offset after that amount.” Id.


source: Caselaw Access Project

author: /s/ Paul H. Anderson Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Eric A.L. De RYCKE, an Attorney at Law of the State of Minnesota.
    No. C1-98-589.
    Supreme Court of Minnesota.
    June 5, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Eric A.L. De Rycke has committed professional misconduct warranting public discipline, namely,

a. Respondent failed to cooperate with the Director’s Office in monitoring his probation in violation of the terms of his Court-ordered probation and Minn. R. Prof. Conduct 3.4(c);
b. Respondent failed to cooperate with the Director’s investigation in violation of the terms of his probation and Minn. R. Prof. Conduct 3.4(c), 8.1(a)(3), and 8.4(c) and (d), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR);
c. Respondent commingled personal and client funds, failed to maintain required books and records and falsely certified to the Court that he maintained such records in violation of the terms of his probation and Minn. R. Prof. Conduct 1.15 and 8.4(c), and Lawyers Professional Responsibility Board (LPRB) Opinion 9;
d. Respondent withdrew funds from his trust account by using an automated teller machine and by automatic transfers to cover overdrafts in his business/personal account in violation of Minn. R. Prof. Conduct 1.15, and LPRB Opinion 9;
e. Respondent failed to provide his clients with an accounting of earned fees before withdrawing those fees in violation of Minn. R. Prof. Conduct 1.15(b).
f. Respondent commingled law firm and client funds by leaving earned fees in his trust account and withdrawing them to pay business expenses in violation of Minn. R. Prof. Conduct 1.15.
g. Respondent failed to promptly deposit trust account funds for safekeeping in violation of Minn. R. Prof. Conduct I.15(c)(2).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a public reprimand and an extension of his current supervised probation for a period of two additional years subject to the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall be supervised by J. Brian O’Leary, or other licensed Minnesota attorney approved by the Director, to monitor compliance with the terms of this probation.
d. Respondent shall cooperate fully with the supervisor in his efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at more frequent intervals as may reasonably be requested by the Director.
e. Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
f. Within thirty days from the execution of this stipulation, respondent shall provide to the Director and to the probation supervisor a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.
g. Respondent shall maintain law office and trust account books and records in compliance with Rule 1.15, MRPC, and LPRB Opinion No. 9. In particular, respondent shall not use his trust account as a business account; shall have an operating business account and will use it appropriately; and respondent shall not use his trust account for any purposes other than those stated in the above-referenced rules. These books and records include the following: client subsidiary ledger, checkbook register, monthly trial balances, monthly trust account reconciliation, bank statements, canceled checks, duplicate deposit slips and bank reports of interest, service charges and interest payments to the Lawyer Trust Account Board. Such books and records shall be made available to the Director within 30 days of the approval of this stipulation and thereafter shall be made available to the Director at such intervals as he deems necessary to determine compliance.
h. Respondent shall timely file all required state and federal tax returns, including individual and employer withholding returns, and timely pay the taxes due thereon. Respondent shall affirmatively report to the Director, on or before the due date of the required returns, his compliance with filing and payment requirements. Such reports shall include copies of the required returns. On or before the filing deadline, respondent shall provide the Director with copies of all applications for filing extensions and proof of approval of such applications. Respondent shall provide all of the documents and information required herein without specific reminder or request.

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

'IT IS HEREBY ORDERED that respondent Eric A.L. De Rycke is publicly reprimanded and that his supervised probation is extended for a period of two additional years subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs and disbursements.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Daniel Francis JAMBOR, an Attorney at Law of the State of Minnesota.
    No. C9-99-1192.
    Supreme Court of Minnesota.
    June 7, 2001.
   AMENDED ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Daniel Francis Jambor has committed professional misconduct warranting public discipline, namely, while on probation respondent failed to cooperate with disciplinary proceedings, engaged in a pattern of frivolous and retaliatory litigation, neglected client matters, failed to adequately communicate with his clients, failed to return a client file, failed to comply with stipulated agreements and a court order, and made false and misleading statements to clients and others in violation of Minn. R. Prof. Conduct 1.3, 1.4, 1.15(c), 1.16(d), 3.1, 3.2, 3.4(c) and (d), 4.1, 7.1, 7.5, 8.1(a)(3) and 8.4(c) and (d) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR), and the probation order.

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a 2-year suspension commencing June 29, 2001, with no waiver of the reinstatement hearing provided for in Rule 18, RLPR. The parties also recommend that reinstatement should be conditioned upon: (1) compliance with Rule 26, RLPR; (2) successful completion of the professional responsibility exam pursuant to Rule 18(e), RLPR; (3) satisfaction of the continuing legal education requirements pursuant to Rule 18(e), RLPR, and (4) payment of costs in the amount of $900 plus interest and disbursements in the amount of $974.50 pursuant to Rule 24(d), RLPR.

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

IT IS HEREBY ORDERED that respondent Daniel Francis Jambor is suspended from the practice of law for a period of 2 years commencing June 29, 2001, with reinstatement conditioned on the terms set forth above. Respondent shall pay $1,874.50 in costs and disbursements pursuant to Rule 24, RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: HANSON, Judge

text:
    John C. DICKS, et al., Appellants, v. MINNESOTA DEPARTMENT OF ADMINISTRATION, Respondent.
    No. C8-00-2096.
    Court of Appeals of Minnesota.
    April 24, 2001.
    Review denied July 24, 2001.

      Michael R. Quinlivan, Bethan M. Davies, Cronan Pearson Quinlivan, P.A., Minneapolis; and Philip G. Villaume, Villaume & Associates, Edina (for appellants).
    Mike Hatch, Minnesota Attorney General, Gary R. Cunningham, Assistant Attorney General, St. Paul (for respondent).
    Considered and decided by HANSON, Presiding Judge, CRIPPEN, Judge, and HARTEN, Judge.
   OPINION

HANSON, Judge

Appellants, who are State of Minnesota employees, brought this action to compel the state to pay them according to Minnesota’s Prevailing Wage Act, Minn.Stat. §§ 177.41-44 (2000). They contend that the Act provides them with a private cause of action against the state to seek back wages and benefits. Because we conclude that state employees were not the intended beneficiaries of the Act, we affirm the judgment dismissing their action.

FACTS

Appellants are employees of the Minnesota Department of Administration whose duties include the construction and maintenance of public buildings and other public works. These duties are funded by state revenues. Appellants’ wages are determined through negotiations between their collective bargaining unit and the state.

Appellants brought suit under Minnesota’s Prevailing Wage Act, codified at Minn. Stat. §§ 177.41-44. At all times relevant to this case, appellants were paid at a rate below the prevailing wage rate established by § 177.42, subd. 6. The district court dismissed the action based upon its conclusion that the legislature designed the Act to benefit the employees of private contractors engaged in state projects, but not state employees. This appeal followed.

ISSUE

Did the district court err in concluding that state employees are not intended beneficiaries of the Minnesota Prevailing Wage Act?

ANALYSIS

On appeal from dismissal for failure to state a claim on which relief can be granted, the only question we review is whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997). Statutory construction is a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). The legislature has explicitly advised that “[t]he object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2000).

The district court concluded that appellants failed to state a claim for relief because the Minnesota Prevailing Wage Act was not enacted for the benefit of state employees. In so doing, the district court undertook to reconcile the general policy provision in the act, which refers to “laborers, workers and mechanics” on public projects without specifying by whom they are employed, with the penalty provisions which refer only to any “laborer, worker, or mechanic” employed by a “contractor” or “subcontractor.” The statement of public policy is as follows:

It is in the public interest that public buildings and other public works be constructed and maintained by the best means and highest quality of labor reasonably available and that persons working on public works be compensated according to the real value of the services they perform. It is therefore the policy of this state that wages of laborers, workers, and mechanics on projects financed in whole or part by state funds should be comparable to wages paid for similar work in the community as a whole.

Minn.Stat. § 177.41. The penalty section of the Act specifies the content that must be included in contracts for public projects and makes it

a misdemeanor for an officer or employee of the state to execute a contract for a project without complying with this section, or for a contractor, subcontractor, or agent to pay any laborer, worker, or mechanic employed directly on the project site a lesser wage for work done under the contract than the prevailing wage rate as stated in the contract.

Minn.Stat. § 177.43, subd. 5 (emphasis added).

The district court found an ambiguity between these provisions and applied the rules of statutory construction to resolve that ambiguity. See Minn.Stat. § 645.16 (authorizing the use of extrinsic factors to ascertain legislative intent where “the words of a law are not explicit”).

Appellants agree that Minnesota’s Prevailing Wage Act does not provide an explicit private right of action for any employees, whether employees of the state or a private contractor. Instead, appellants argue that a private right of action may be implied by using the analytical model approved in Flour Exch. Bldg. Corp. v. State, 524 N.W.2d 496 (Minn.App.1994) (applying the three-factor test enunciated in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975)). However, since the very first of those factors is absent here, our analysis need go no further. That first factor is whether the plaintiffs belong to the class for whose benefit the statute was enacted.

Appellants suggest that this court’s decision in Counties of Blue Earth v. Minnesota Dept. of Labor, 489 N.W.2d 265, 268 (Minn.App.1992), has already addressed the first factor because it stated that “persons working on public works” were the “especial beneficiaries” of the Minnesota Prevailing Wage Act. However, Counties of Blue Earth did not address whether claims for wages could be made under the Act. Instead, it focused on the procedure for establishing the prevailing wage rate, and found that the Act did not imply a private right of action to challenge the rate because it provided an administrative remedy for any “aggrieved party” to obtain review of the rate. Moreover, the statement in Counties of Blue Earth did not specifically identify employees of the state as being intended beneficiaries.

Appellants cite cases from other jurisdictions that imply a private right of action for employees under similar prevailing wage laws. See Dayhoff v. Temsco Helicopters, Inc., 848 P.2d 1367, 1374 (Alaska 1993); Callaway v. N.B. Downing Co., 172 A.2d 260, 263 (Del.Super.Ct.1961); Stampco Constr. Co. v. Guffey, 572 N.E.2d 510, 512 (Ind.Ct.App.1991); Fasse v. Lower Heating & Air Conditioning, Inc., 241 Kan. 387, 736 P.2d 930, 934 (1987); Green v. Jones, 23 Wis.2d 551, 128 N.W.2d 1, 5 (1964). However, each of those cases involved plaintiffs who were employees of a private contractor. No case has been cited or found that recognized a private right of action under any prevailing wage law for a government employee.

We agree with the district court that the legislature did not intend the Minnesota Prevailing Wage Act to benefit state employees. In reaching that conclusion, we are impressed that even those states that have recognized a private right of action for employees of private contractors have not extended that private right of action to state employees. We also find compelling evidence of a contrary legislative intent.

First, the parties agree that the federal Davis Bacon Act, 40 U.S.C. §§ 276a-276a-5 (1994), was the model for Minnesota’s Prevailing Wage Act. It governs the wages of those employed in construction, alteration, or repair of federal projects. Subsequent to its passage, the express language of the Davis-Bacon Act was interpreted by the United States Attorney General to apply only to employees of contractors and subcontractors engaged by the federal government, and not to federal employees. 38 Op. Att’y Gen. 229 (July 2, 1935). In the debate concerning Minnesota’s Prevailing Wage Act, the bill’s chief author stated that it was patterned after the federal Davis Bacon Act. Hearing on H.F. No. 131 Before the House Labor-Mgmt. Relations Comm. (Mar. 13, 1973) (statement of Rep. Samuelson). We infer that the Minnesota Legislature, in passing Minn.Stat. §§ 177.41-44, had knowledge of this interpretation of the federal statute which they sought to emulate.

Second, the legislative history of Minnesota’s Prevailing Wage Act focused exclusively on regulating wages paid from state contracts to private contractors. Id. The testimony of the bill’s author and various witnesses provides no indication that the legislation was intended for the benefit of state employees; rather, the bill was advanced to protect local workers from having their wages undermined by contractors from outside the area. Id.

Third, Minn.Stat. § 645.27 (2000) suggests that the legislature does not intend to imply rights of action against the state. It provides:

The state is not bound by the passage of a law unless named therein, or unless the words of the act are so plain, clear, and unmistakable as to leave no doubt as to the intention of the legislature.

The state is only named in the Minnesota Prevailing Wage Act in connection with its contractual duties. There is no mention of the creation of any liability of the state to its employees.

Finally, appellants are employed by the state subject to a collective bargaining agreement. The legislature has stated that

to the extent they are covered by a collective bargaining agreement, the compensation, terms, and conditions of employment for all employees ⅜ * * shall be governed solely by the collective bargaining agreement executed by the parties and approved by the legislature.

Minn.Stat. § 43A.18, subd. 1 (2000). The interpretation of the Act suggested by appellants would require the payment of compensation to state employees that was contrary to an existing agreement approved by the legislature. In construing a statute, we are to presume that the legislature did not intend a result that is “absurd” or “unreasonable.” Minn.Stat. § 645.17 (2000). We conclude that an interpretation of the Minnesota Prevailing Wage Act that caused the legislature to nullify its own act in approving the collective bargaining agreement would be just such an untenable result.

Because we find that appellants are not intended beneficiaries of the Minnesota Prevailing Wage Act, we hold that no private right of action can be implied for their benefit under that Act. We do not reach the issue whether a private cause of action may be implied under the Act for employees of a private contractor.

DECISION

Minnesota’s Prevailing Wage Act is not intended to benefit state employees. The district court properly dismissed appellants’ case for failure to state a claim.

Affirmed.

      . While this statute does not have an official title, we will adopt appellants’ reference to it as the "Minnesota Prevailing Wage Act.”


text:
    STATE of Minnesota, Appellant, v. Brian Russell TOMAINO, Respondent.
    No. C4-00-1964.
    Court of Appeals of Minnesota.
    May 8, 2001.

      Mike Hatch, Minnesota Attorney General, St. Paul, MN; and Marvin E. Ketola, Carlton County Attorney, Dennis Gener-eau, Jr., Assistant County Attorney, Carlton, MN, (for appellant).
    Joanna M. Wiegert, Duluth, MN, (for respondent).
    Considered and decided by HANSON, Presiding Judge, TOUSSAINT, Chief Judge, and CRIPPEN, Judge.
   OPINION

HANSON, Judge

The state contests a pretrial order suppressing evidence of a controlled substance found in respondent’s vehicle and dismissing a complaint charging fifth-degree possession of a controlled substance. The state argues that the district court erred in ruling that the police officer, after lawfully stopping respondent’s vehicle for a cracked windshield, did not have reasonable suspicion to prolong the stop based on respondent’s nervousness and possession of a marijuana-shaped key chain. The state also contests the district court’s conclusion that respondent’s admission to the presence of the controlled substance was coerced and not voluntary. We affirm.

FACTS

On the morning of June 1, 2000, Minnesota State Trooper Darren Juntunen saw a brown Chevrolet van with a cracked windshield pass the location where he had parked his squad car in the median of Interstate 35 in Carlton County. Juntu-nen pulled over the van, approached the vehicle, and asked the driver, Brian To-maino, for his license.

While looking into Tomaino’s van, Juntu-nen noticed a key chain in the shape of a marijuana leaf hanging from the ignition, but he saw no drug paraphernalia or any physical evidence of drugs. He requested that Tomaino accompany him to the squad car while he ran a check on Tomaino’s driver’s license. Tomaino cooperated, Juntunen verified that the license was valid and issued Tomaino a citation for the cracked windshield.

While Tomaino was in the squad car, Juntunen believed he perceived several indications of nervousness: shaky hands, restlessness, and a pulse in Tomaino’s stomach. Juntunen began a series of questions that were unrelated to the purpose of the stop. He asked why Tomaino was so nervous. Tomaino responded “cops make me nervous.” He asked if Tomaino had been using alcohol or prescription drugs. Tomaino looked away, paused and then denied any such use. Juntunen concluded that Tomaino’s behavior was consistent with someone deceitful or under the influence.

Juntunen did not advise Tomaino that he was free to leave. Instead, he sought consent to search the van, which Tomaino twice denied. When Juntunen announced that he would summon a narcotics canine to the scene, Tomaino admitted that he had psilocybin mushrooms in the van. Based upon this admission, Juntunen searched the van and found one gram of mushrooms.

Tomaino was charged with felony possession of a controlled substance under Minn.Stat. § 152.025, subd. 2(1) (2000). Following an omnibus hearing on September 5, 2000, the district court granted To-maino’s motions to suppress the evidence obtained from the search of his van and to dismiss the charges.

ISSUES

I. Did the district court err in concluding that the trooper did not have a sufficient basis for continuing to detain To-maino?

II. Did the district court err in concluding that the state did not prove that Tomaino’s admission and ultimate consent to the search of his vehicle was voluntary?

ANALYSIS

In reviewing a district court’s determinations of the legality of a limited investigatory stop, we review questions of reasonable suspicion de novo. State v. Munson, 594 N.W.2d 128, 135 (Minn.1999). We will find that the continued investigatory stop of a vehicle is lawful where the officer had “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” State v. Haataja, 611 N.W.2d 353, 354 (Minn.App.2000) (quotation omitted), review denied (Minn. July 25, 2000).

I.

The parties agree that the cracked windshield provided a legal basis for the investigatory stop. The courts have not imposed a rigid time limit on the permissible duration of a detention that follows a lawful stop. State v. Blacksten, 507 N.W.2d 842, 846 (Minn.1993). The general rule is that an investigatory detention “may not continue indefinitely but only as long as reasonably necessary to effectuate the purpose of the stop.” State v. Bell, 557 N.W.2d 603, 606 (Minn.App.1996) (quotation omitted), review denied (Minn. Mar. 18, 1997). Therefore, Juntu-nen’s continued detention of Tomaino for suspicion of possession of a controlled substance was valid only if supported by a distinct set of “particularized and objective” facts supporting a reasonable suspicion of criminal activity. Haataja, 611 N.W.2d at 354.

The district court concluded that Tomaino’s nervousness and the marijuana symbol on his key chain did not provide reasonable suspicion of criminal activity to justify his continued detention. Determination of reasonable suspicion requires consideration of the totality of circumstances. State v. Martinson, 581 N.W.2d 846, 852 (Minn.1998). In arriving at a reasonable suspicion of criminal activity, an officer may make inferences and deductions that might elude an untrained person. Appelgate v. Commissioner of Pub. Safety, 402 N.W.2d 106, 108 (Minn.1987). But the officer must demonstrate objective facts to justify that suspicion and may not base it upon a mere hunch. State v. Cripps, 533 N.W.2d 388, 391-92 (Minn.1995).

While an officer’s perception of a defendant’s nervousness may contribute to an officer’s reasonable suspicion, this indicator is not sufficient by itself and must be coupled with other particularized and objective facts. See State v. Wiegand, 621 N.W.2d 476, 477 (Minn.App.2001) (combining nervousness with officer’s perception of glassy eyes and slow speech); see also United States v. Beck, 140 F.3d 1129, 1139 (8th Cir.1998) (“It certainly cannot be deemed unusual for a motorist to exhibit signs of nervousness when confronted by a law enforcement officer. * * * We conclude that any suspicion associated with Beck’s nervous demeanor during the traffic stop to be, at best, minimal”).

The district court found Juntunen’s description of Tomaino’s nervousness inadequate and concluded that the nervousness was the product of his continued detention. Nervousness alone is not an objective fact, but rather a subjective assessment derived from the officer’s perceptions. The symbol on Tomaino’s key chain, while indiscreet, did not justify more than a hunch on Juntunen’s part that the van contained a controlled substance. We find that the district court properly concluded that these two factors together did not provide Juntunen with a reasonable suspicion to justify Tomaino’s continued detention.

II.

The state challenges the district court’s conclusion that the state failed to show that the search was made pursuant to a valid consent. The state argues that, rather than consenting to the search, To-maino admitted to the presence of a controlled substance in the van, and this admission gave Juntunen probable cause to search the vehicle, with or without consent. However, Tomaino’s admission came while he was being illegally detained and was the product of that detention. As such, evidence of Tomaino’s statement was inadmissible and, likewise, could not be used to provide probable cause for the search.

In State v. Hoven, 269 N.W.2d 849 (Minn.1978), the supreme court considered whether a confession and consent to a search after an illegal arrest was so tainted by the illegal arrest as to be inadmissible. The court concluded:

If, however, the arrest plays a significant role in inducing the confession, it will be suppressed just like any other product of an illegal arrest.

Id. at 854. The court quoted from Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963) as follows:

[T]he ⅜ * * apt question * * ⅜ is “whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

Id. (emphasis added) (quotation omitted). See also State v. Shellito, 594 N.W.2d 182, 186-187 (Minn.App.1999).

The means of obtaining Tomaino’s admission were not sufficiently distinguishable from the illegal detention. Juntunen never informed Tomaino that the investí-gation had ended and he was free to leave. Instead, he continued to detain Tomaino and asked a sequence of questions designed to place Tomaino into an investigatory corner from which the only apparent exit was an admission of information that Tomaino had no obligation to provide. The district court’s conclusions that To-maino’s admission was coerced (i.e., the product of the illegal- detention) and that the state had failed to prove that Tomaino voluntarily consented to a search of his van, were supported by the record and applicable law.

DECISION

Because the officer did not have a reasonable suspicion to continue the traffic stop after issuing the initial citation, or probable cause to search the vehicle, we affirm the district court’s suppression of evidence and dismissal of the charges.

Affirmed.


author: G. BARRY ANDERSON, Judge

text:
    Stacey A. FLYNN, Appellant, v. AMERICAN HOME PRODUCTS CORPORATION, et al., Respondents.
    No. C8-00-1885.
    Court of Appeals of Minnesota.
    May 15, 2001.

      Ronald S. Goldser, James P. Watts, Jr., Zimmerman Reed, P.L.L.P., Minneapolis, MN, for appellant.
    Jack M. Fribley, Bridget M. Ahmann, Peter J. Goss, Faegre & Benson, L.L.P., Minneapolis, MN, for respondents.
    Considered and decided by TOUSSAINT, Presiding Judge, ANDERSON and PORITSKY,  Judges.

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

   OPINION

G. BARRY ANDERSON, Judge

Appellant Stacey A. Flynn brought an action against respondents American Home Products Corporation (AHPC), et al., manufacturers of a brand-name drug, alleging that misrepresentations AHPC made to the federal Food and Drug Administration caused her to ingest a generic version of the drug, and that the generic drug injured her. The district court granted respondents’ motion for summary judgment. Because appellant’s state common law tort and consumer protection claims are preempted by federal law, we affirm.

FACTS

In October 1996, appellant Stacey A. Flynn began taking the diet drug “fen-phen,” a blend of fenfluramine and phen-termine. Appellant’s doctor prescribed the compound after appellant consulted the doctor for weight-loss treatment. The Professional Compounding Centers of America and Professional Compounding Pharmacy, d/b/a/ the Medicine Shoppe Pharmacy, made the generic fen-phen capsules from imported fenfluramine manufactured by Alfa Chemical, an Italian pharmaceutical company.

Appellant ceased taking the generic form of fen-phen in about July 1997. In late 1997, appellant was diagnosed as suffering from aortic insufficiency, commonly described as a leaky heart valve. Appellant claims her fen-phen regimen caused that condition. In October 1998 appellant brought a negligence action against Professional Compounding Centers of America and Professional Compounding Pharmacy and, by amended complaint, added respondents as defendants, alleging negligence and fraud.

Respondent American Home Products Corporation and its subsidiaries manufactured and marketed Pondimin, a brand-name version of fenfluramine hydrochloride. Appellant alleged that respondents, before and after obtaining federal Food and Drug Administration (FDA) approval of the drug, withheld from the FDA information that fenfluramine caused serious health problems such as primary pulmonary hypertension and valvular heart disease. Appellant alleged that, by breaching their duty to disclose known instances of adverse effects of fenfluramine to the FDA, respondents misrepresented the drug as safe and, consequently, physicians nationwide prescribed both brand name and generic versions of fen-phen without knowing the true risks to their patients. Appellant alleged that, had her doctor known the risks of fenfluramine, later removed from the market after the risks became known, appellant would not have taken the generic version of fen-phen made by the Medicine Shoppe Pharmacy and would not have suffered an injury.

Appellant settled her claim with the pharmacy defendants. Shortly thereafter, respondents moved for summary judgment, arguing that they did not owe appellant any legal duty because she did not use the product they manufactured. Respondents further argued that appellant’s fraud-and-misrepresentation-on-the-FDA claims are not actionable torts in Minnesota, nor do they create a cause of action under Minnesota’s consumer protection statutes. The district court agreed and granted respondents’ motion.

ISSUE

Are state common-law tort and consumer-fraud claims of manufacturer fraud on the federal Food and Drug Administration (FDA) actionable in Minnesota?

ANALYSIS

Appellant argues that the district court erred as a matter of law by granting summary judgment to respondents because her tort and consumer fraud claims are actionable in Minnesota. Summary judgment is appropriate when a district court determines that “there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. When reviewing a grant of summary judgment, we must consider (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). When, as in this case, the material facts are not in dispute, we review de novo the district court’s application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989).

Although at first blush this case appears to be a products-liability action, appellant insists, in her brief and in oral argument, that it is not:

Appellant’s claims do not sound in product liability ⅜ ⅜ *. Appellant’s claims are that these Respondents deliberately withheld information they were legally obligated [by the FDA] to disclose [to the FDA] * ⅜ *. Appellant was injured because these Respondents deliberately violated their legal duties imposed on them as manufacturers of prescription drugs.

Appellant does not dispute the district court’s conclusion that she was not injured by respondents’ product, Pondimin. Instead, appellant argues that respondents’ failure to fulfill its legal reporting duties to the FDA creates three causes of action: (1) fraudulent misrepresentation; (2) negligent misrepresentation; and (3) relief under Minnesota’s consumer protection statutes.

I.

Appellant first argues that Minnesota can and should recognize a tort characterized by other jurisdictions as “fraud-on-the-FDA.” The so-called tort of fraud-on-the-FDA creates liability based on a manufacturer’s misrepresentations made to the FDA, relied on by a third party, which causes injury to the third party. The district court concluded that Minnesota does not recognize this tort, and this is an issue of first impression in Minnesota appellate courts. We are mindful that “the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court.” Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987), review denied (Minn. Dec. 18, 1987). It is not the function of this court to establish new causes of action, even when such actions appear to have merit. Stubbs v. North Mem’l Med. Ctr., 448 N.W.2d 78, 81 (Minn.App.1989), review denied (Minn. Jan. 12, 1990). As a starting point to our analysis, we review some history of the proposed common-law tort of fraud-on-the-FDA beginning with disputes regarding the use of orthopedic bone screws.

Beginning in 1994, over 5,000 plaintiffs alleged that they were injured by implantation of bone screws in their spines, and filed approximately 2,000 actions in over 60 of the 94 federal judicial districts, claiming that the defendant screw manufacturers’ misrepresentations to the FDA regarding the intended use of the screws caused their injuries. Bruzer v. Danek Med. Inc., No. Civ. 3-95-971, 1998 WL 1048225 at *l-*2 (D.Minn. Oct.1, 1998). The judicial panel on multidistrict litigation consolidated and transferred the cases to a federal judge in the Eastern District of Pennsylvania. Id. at *1. After pretrial proceedings and a variety of rulings on motions to dismiss, including a determination by the federal district court that federal law preempted the state-law fraud-on-the-FDA claims, the cases were remanded to the originating districts for trial. Id.; In re Orthopedic Bone Screw Prods. Liab. Litig., 159 F.3d 817, 821 (3d Cir.1998), rev’d sub nom., Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001).

The Pennsylvania court remanded one of those cases to the Federal Court for the District of Minnesota: Bruzer. In Bruzer, the plaintiffs alleged, among other things, that defendant-manufacturers had conspired to make false representations to the FDA in order to receive the proper approval for the devices. Bruzer, 1998 WL 1048225 at *l-*2. Granting the defendants’ motion for summary judgment on the basis of earlier pretrial rulings, the federal district court also observed that the plaintiffs had “failed to show that Minnesota [state] law would allow such a claim, or that it differs in any .way from the rule that a substantial majority, if not all, of the states would follow” precluding such a claim. Id. at *5, n. 5 (citation and quotation omitted).

Meanwhile, other plaintiffs appealed the Pennsylvania federal district court’s preemption ruling to the United States Court of Appeals for the Third Circuit. The Third Circuit reversed the Pennsylvania federal district court’s pretrial preemption ruling and concluded that if the state law of fraudulent misrepresentation would impose liability on the manufacturer, a fraud-on-the-FDA claim was not preempted by federal medical device statutes. In re Orthopedic Bone Screw Prods. Liab. Litig., 159 F.3d at 829. Thus, the self-described “narrow” holding of Bone Screw recognized that existing state law of fraudulent misrepresentation determined whether a plaintiff could recover under a theory of fraud-on-the-FDA. Id.

In response to the Third Circuit’s ruling, some states have declined to recognize fraud-on-the-FDA as a cause of action under state tort law. See, e.g., Jones v. Danek Med., Inc., No. Civ. A.4:96-3323-12, 1999 WL 1133272 at *8 (D.S.C. Oct.12, 1999) (finding plaintiff failed to demonstrate common-law fraud elements of misrepresentation or causation, and that claim would fail “even if South Carolina recognized such a tort” as fraud-on-the-FDA, which it did not); Castle v. Danek Med. Inc., No. Civ. 96-2485, 1999 WL 1129649 at *2 (W.D.La. Oct.5, 1999) (“no cause of action relating to fraud ‘on the FDA’ * ⅜ * exists” under Louisiana law); Johnson v. Smith & Nephew Richards, Inc., No. 97-CV-363-K, 1999 WL 1117105 at *2 (N.D.Okla. Sept.30, 1999) (granting summary judgment on other grounds and suggesting “fraud on the FDA” theory of recovery may not be theoretically valid); Parks v. Danek Med., Inc., No. 2:95CV206, 1999 WL 1129706 at *9 (N.D.Ind. June 17, 1999) (“fraud on the FDA” not recognized under Indiana law). Other states, however, have recognized the tort as a derivation of common-law fraud. See, e.g., Baker v. Smith & Nephew Richards, Inc., No. Civ. A.1:97 CV1233RWS, 1999 WL 1129650 at *8 (N.D.Ga. Sept.30, 1999) (fraud-on-the-FDA derived from Restatement (Second) Torts § 533, an indirect fraud claim, supported by Georgia law, but granting summary judgment to medical manufacturer because “intent to defraud the FDA is not intent to defraud the Plaintiffs.”)

The defendant medical manufacturers appealed the'Third Circuit’s decision. The United States Supreme Court granted cer-tiorari and reversed by opinion filed February 21, 2001, five days after oral argument in this case. Buckman Co., 121 S.Ct. at 1017. The Supreme Court determined that the plaintiffs’ state-law fraud-on-the-FDA claims conflict with, and are therefore preempted by, the federal statutes regulating premarket approval of medical devices. Id.

The U.S. Supreme Court’s ruling raises the question of whether appellant’s fraud-on-the-FDA claims are likewise preempted by FDA regulations governing premarket approval and post-approval regulation of drugs. Because this issue is new, novel, legal, and decisive, and because the lack of a district court ruling causes no advantage or disadvantage to either party, we elect to review it. See Watson v. United Servs. Auto. Ass’n, 566 N.W.2d 683, 687 (Minn. 1997) (explaining the requirements for review of issue not addressed in district court); Pikop v. Burlington N. R., 390 N.W.2d 743, 748 (Minn.1986) (preemption is a matter of statutory construction that appellate courts review de novo).

The United States Constitution provides that the laws of the United States “shall be the supreme Law of the Land; * * * any thing in the Constitution or laws of any state to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2. This supremacy provision has given rise to preemption doctrine, under which federal statutes and agency regulations may preempt state law. Louisiana Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 369, 106 S.Ct. 1890, 1898-99, 90 L.Ed.2d 369 (1986). State statutes, as well as state common law, may be preempted. Midwest Motor Exp., Inc., v. International Bhd. of Teamsters, 512 N.W.2d 881, 887-89 (Minn.1994). State law is not to be preempted unless Congress, by “clear and manifest purpose,” intended to do so. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Congress may preempt state law by express statutory language, but preemption may also be implied. Dahl v. Charles Schwab & Co., 545 N.W.2d 918, 922 (Minn.1996). “If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted.” Silkwood v. Kerr McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984) (citations omitted). The U.S. Supreme Court, in Buckman, observed that:

Policing fraud against federal agencies is hardly a field which the States have traditionally occupied, such as to warrant a presumption against finding federal pre-emption of a state-law cause of action. To the contrary, the relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law. Here, [the medical device manufacturers’] dealings with the FDA were prompted by the [Medical Device Amendments] * ⅞ *. Given this analytical framework, we hold that the plaintiffs’ state-law fraud-on-the-FDA claims conflict with, and are therefore impliedly pre-empted by federal law.

121 S.Ct. at 1017 (citations and quotations omitted).

The Buckman Court described the comprehensive regulatory scheme for obtaining FDA approval for a medical device, which includes the FDA’s disclosure requirements and power to investigate suspected fraud. Id. at 1017-18. In addition, the Court reasoned that there are criminal statutes governing the making of false statements to the federal government, and the FDA may respond to fraud by seeking injunctive relief, civil penalties, or criminal prosecution. Id. (citing 18 U.S.C. § 1001 (1994 & Supp. IV) (proscribing fraud on the Government of the United States); 21 U.S.C. § 332 (1994) (providing for injunc-tive relief); 21 U.S.C. § 333(f)(1)(A) (1994) (providing for civil penalties); and 21 U.S.C. § 333(a) (1994) (providing for criminal prosecution)). The Court recognized that the FDA has a “variety of enforcement options that allow it to make a measured response to suspected fraud upon the Agency,” and that the flexibility of the statutory scheme “is a critical component of the ⅜ * * regulatory framework under which the FDA pursues difficult (and often competing) objectives.” Id. at 1018.

Considering the FDA’s comprehensive enforcement statutes and because “complying with the FDA’s detailed regulatory regime in the shadow of 50 States’ tort regimes will dramatically increase the burdens facing potential [FDA approval] applicants,” the Court held that “[s]tate-law fraud-on-the-FDA claims inevitably conflict with the FDA’s responsibility to police fraud consistently with the Agency’s judgment and objectives.” Id. The Court concluded:

[Wjere plaintiffs to maintain their fraud-on-the-agency claims here, they would not be relying on traditional state tort law which had predated the federal enactments in question. On the contrary, the existence of these federal enactments is a critical element of their case. * * * [The claims are] therefore preempted * * ⅝.

Id. at 1020.

In this case, appellant alleges that respondents committed fraud on the FDA by failing to comply with a number of agency regulations requiring disclosure of adverse drug experiences. Specifically, appellant cites 21 C.F.R. § 201.57 (2000), providing that labels contain safety information, and 21 C.F.R. § 314.80-.81 (2000), requiring postmarketing reporting of adverse drug experiences. The disclosure and reporting requirements of those provisions are part of the Food, Drug, and Cosmetic Act’s regulation of new drugs, governed by 21 U.S.C. § 355 (1994 & Supp. VI). Violations of § 355 are prohibited acts pursuant to 21 U.S.C. § 331 (1994). As Buckman makes clear, the FDA may respond to acts prohibited by § 331 by seeking injunctive relief, civil penalties, or criminal prosecution under the agency’s statutory authority. See Buckman, 121 S.Ct. at 1017-18.

As in Buckman, the existence of state-law claims against applicants for, and recipients of, FDA drug approval for alleged violation of FDA regulations conflicts with the FDA’s authority to consistently police fraud within the agency’s powers. Like the claims of fraudulent procurement of medical device approval at issue in Buck-man, the existence of the federal regulations is critical to appellant’s claims that those regulations were violated and caused her injuries. Moreover, the Buckman Court’s observation that 50 state-law causes of action for violation of the FDA’s detailed regulations would increase the burdens placed on applicants for FDA approval applies to drug manufacturers as well as to medical-device manufacturers. For these reasons, we conclude that appellant’s fraud-on-the-FDA common-law tort and statutory consumer fraud claims are preempted by federal law and are not actionable in Minnesota.

II.

Even if federal law did not preempt appellant’s fraud-on-the-FDA claims, her claims fail on the merits under Minnesota common law.

A Fraudulent Misrepresentation

Appellant’s amended complaint alleged that she suffered damages as a result of respondents’ fraudulent misrepresentations to the FDA. In Minnesota, a plaintiff must prove five elements to succeed on a claim for fraudulent representation:

(1) there was a false representation by a party of a past or existing material fact susceptible of knowledge;
(2) made with knowledge of the falsity of the representation or made as of the party’s own knowledge without knowing whether it was true or false;
(3) with the intention to induce another to act in reliance thereon;
(4) that the representation caused the other party to act in reliance thereon; and
(5) that the party suffer pecuniary damage as a result of the reliance.

Specialized Tours, Inc. v. Hagen, 392 N.W.2d 520, 532 (Minn.1986). Appellant does not point to any affirmative representations made by respondents that were relied upon by her physician when issuing the prescription for fen-phen. Instead, appellant seems to argue that the third and fourth elements are met because respondents’ failure to reveal damaging information concerning the brand-name drug Pon-dimin affected the FDA’s approval of the drug and, consequently, her physician’s decision to prescribe a generic version of fen-phen.

Under Minnesota law, fraudulent misrepresentation based on the concealment of a material fact occurs when one party knowingly conceals a material fact that is “peculiarly within his own knowledge,” and the other party relies on the presumption that the fact does not exist. Richfield Bank & Trust Co. v. Sjogren, 309 Minn. 362, 364, 244 N.W.2d 648, 650 (1976). But central to such a claim is that “there must be a suppression of facts which one party is under a legal or equitable obligation to communicate to the other, and which the other party is entitled to have communicated to him.” Id. Appellant has not presented any Minnesota authority supporting an extension of this duty to third parties, and indeed, the authority we have found holds to the contrary. See Karlstad State Bank v. Fritsche, 392 N.W.2d 615, 618 (Minn.App.1986) (no fraud for failure to disclose in the absence of defendant’s direct communication with plaintiffs).

Moreover, there is no fiduciary relationship here. The general rule is that “one party to a transaction has no duty to disclose material facts to the other” except “when the parties are in a fiduciary relationship with each other.” Midland Nat’l Bank v. Ferranoski, 299 N.W.2d 404, 413 (Minn.1980) (citation and quotation omitted). “A fiduciary relation exists when confidence is reposed on one side and there is resulting superiority and influence on the other * * Kennedy v. Flo-Tronics, Inc., 274 Minn. 327, 331, 143 N.W.2d 827, 830 (1966) (citation and quotation omitted). Although federal regulations required respondents to disclose product safety information to the FDA, respondents did not owe appellant, who did not purchase their product and with whom they had no relationship, the same obligation. See In re Minnesota Breast Implant Litig., 36 F.Supp.2d 863, 880 (D.Minn.1998) (holding that, under Minnesota’s fraudulent representation and fraudulent concealment law, a medical manufacturer does not have a duty to disclose to a plaintiff safety information concerning a product sold to the plaintiff by another manufacturer). Thus, appellant has not established that respondents intended that she rely on their representations to the FDA.

Appellant argues that respondents intended all consumers rely on their representations to the FDA and owed all consumers a duty to disclose material facts, but that contention conflicts with Minnesota common law, which requires a stronger relationship and a direct communication. Appellant did not purchase or use respondents’ product, and therefore, there was no direct relationship between them, let alone a fiduciary relationship that gave rise to a duty. The district court did not err as a matter of law by granting summary judgment to respondents on this basis.

B. Negligent Misrepresentation

Appellant’s amended complaint also alleges that respondent had a duty to appellant to make nonnegligent representations to the FDA. This state law claim, although preempted, would also have failed on the merits. The Restatement (Second) of Torts § 311 (1965) provides that the elements of the tort of negligent misrepresentation are:

(1) a duty of reasonable care in conveying information; (2) breach of that duty by negligently giving false information; (3) reasonable reliance on the misrepresentations, which reliance is the proximate cause of physical injury; and (4) damages.

Smith v. Brutger Cos., 569 N.W.2d 408, 413 (Minn.1997). Even if appellant were able to prove the elements of duty, reasonable reliance, and proximate cause, the Minnesota Supreme Court has recognized negligent misrepresentation involving damages only for pecuniary loss, and has expressly declined to recognize the tort of negligent misrepresentation involving the risk of physical harm. Id. at 414. Accordingly, the district court did not err as a matter of law by granting summary judgment to respondents on this claim.

C. Consumer Fraud Statutes

Finally, we conclude that appellant would not have been successful under Minnesota’s consumer fraud statutes, even if the statutes, to the extent they afforded relief for fraud-on-the-FDA, had not been preempted. Appellant’s complaint alleged that respondents violated a number of consumer protection statutes: Minn.Stat. § 325D.44 (1998), which prohibits deceptive practices concerning the quality of goods or services, Minn.Stat. § 325F.69 (1998), which prohibits fraud in connection with the sale of any merchandise, and Minn.Stat. § 325D.13 (1998), which prohibits misrepresentation of product ingredients or quality.

Minn.Stat. § 8.31, subd. 3a (1998) authorizes private action for violations of these statutes by “any person.” Id. The Minnesota Supreme Court has interpreted the “any person” language broadly, holding that a claim under Minn. Stat. § 8.31 may be brought by a plaintiff who is not the actual purchaser of the defendant’s products. Group Health Plan, Inc., v. Philip Morris Inc., 621 N.W.2d 2, 8-11 (Minn.2001). But Group Health, answering questions certified by the federal district court in the context of a Rule 12 motion to dismiss, emphasized that a “causal nexus” between the alleged injury and the wrongful conduct that violates the statute is a necessary element of an action to recover damages under § 8.31, subd. 3a. Id. at 14. “The statute requires that there must be some legal nexus between the injury and the defendant’s wrongful conduct.” Id. at 14 (citation and quotation omitted). The causal nexus includes a “reliance component” that may be proven by “direct or circumstantial evidence” that is relevant and probative “as to the relationship between the claimed damages and the alleged prohibited conduct.” Id. at 14-15. Thus, for appellant to prove causation, a necessary element of her statutory consumer fraud claims, she must at least present circumstantial evidence of some reliance on respondents’ alleged misrepresentations.

When a motion for summary judgment is made and supported as provided in Minn. R. Civ. P. 56, an adverse party may not rest on mere averments or denials in that party’s pleading but must present specific facts showing that there is a genuine issue for trial. Minn. R. Civ. P. 56.05. Summary judgment is mandatory against a party with the burden of proof that fails to establish an essential element of its claim. Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn.App.1994). In response to a motion for summary judgment, a plaintiff must produce sufficient evidence to show a genuine issue of material fact as to each element. Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 410-11 (Minn.1994).

Appellant’s response to respondents’ summary judgment motion did not include any deposition testimony, affidavits, interrogatory answers, or other evidence connecting respondents’ drug Pondimin to the alleged injury she sustained by ingesting a generic compound of fen-phen. Instead, the deposition testimony and medical records show that appellant decided to take the generic drug after viewing advertisements placed by unnamed sources and consulting with her doctor and her mother. Appellant alleges that, but for respondents’ fraud on the FDA, a physician’s desk reference would have contained negative information about Pondimin that would have aided her doctor. But appellant presented no evidence that either she or her physician relied on the physician’s desk reference, any representations, or the absence of representations made by respondents concerning Pondimin in the course of deciding that a generic phen-fen compound would be an appropriate treatment.

We conclude that appellant has not presented sufficient evidence to show that there is a genuine issue of material fact concerning causation. Accordingly, we hold the district court did not err by granting respondents’ motion for summary judgment on appellant’s consumer fraud claims.

DECISION

State law claims by a third party that drug manufacturers’ fraud on the federal Food and Drug Administration caused injury to the third party are preempted by federal law.

Affirmed.


author: CRIPPEN, Judge

text:
    STATE of Minnesota, Respondent, v. Jack Leroy STEMPF, Appellant.
    No. C4-00-1544.
    Court of Appeals of Minnesota.
    May 29, 2001.

      Mike Hatch, Attorney General, St. Paul; and Janelle P. Kendall, Mille Lacs County Attorney, Matthew M. Quinn, Assistant County Attorney, Milaca, for respondent.
    Mark D. Kelly, St. Paul, for appellant.
    Considered and decided by HANSON, Presiding Judge, CRIPPEN, and HARTEN, Judges.
   OPINION

CRIPPEN, Judge

A jury found appellant Jack Stempf guilty of one count of controlled-substance crime in the fifth degree for possession of a substance containing methamphetamine. The state charged him with only one count of possession but introduced evidence of two acts to support the conviction. Appellant contends that the trial court’s refusal to give a specific unanimity instruction, requiring the jurors to agree that the same underlying criminal act had been proven beyond a reasonable doubt, violated his right to a unanimous verdict. Because it is possible that the jury’s verdict of guilty was not unanimous, we reverse.

FACTS

Police executed a search warrant at appellant’s place of employment, Stempfs Auto Salvage, in February 1999. During the search, police seized 0.1 grams of a substance containing methamphetamine. When appellant arrived at work that same morning as the passenger in a pickup truck, the police searched the truck and seized .03 grams of a substance containing methamphetamine from a burnt piece of aluminum foil found inside an empty pack of Marlboro cigarettes. .

The state charged appellant with one count of controlled-substance crime in the fifth degree in violation of Minn.Stat. § 152.025, subds. 2(1), 3(a) (1998) for possession of a substance containing methamphetamine. Even though the state charged him with only one count, it introduced evidence that (1) appellant possessed methamphetamine found at the premises of his workplace; and (2) he possessed methamphetamine found in the truck.

Appellant testified at trial and denied ownership of the methamphetamine found on the premises. In addition, he presented evidence that he was not the owner or lessee of the premises: appellant worked part time at Stempfs Auto Salvage, which was owned by his father, and two other people worked there and had access to the building where the police seized the evidence. He also denied ownership of the cigarette package found in the truck, and it is undisputed that he was not the owner or lessee of the truck. Appellant admitted that he smokes Marlboro cigarettes, but Ty Cramer, who owned the truck and was driving it when police asked permission to search it, testified that he also smoked Marlboro cigarettes.

At the close of trial, appellant requested an instruction requiring the jurors to evaluate the two acts separately and unanimously agree that the state had proven the same underlying criminal act beyond a reasonable doubt. The trial court refused to give the instruction. The state told the jury in closing argument that it could convict if some jurors found appellant possessed the methamphetamine found in the truck while others found he possessed the methamphetamine found on the premises. The jury returned a guilty verdict. The court sentenced appellant to one year and one day in prison, stayed execution, and imposed a probationary jail term of 180 days.

ISSUE

Did the trial court’s refusal to give a specific unanimity instruction violate appellant’s right to a unanimous verdict?

ANALYSIS

The refusal to give a requested jury instruction lies within the discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn.1996). Where jury instructions allow for possible significant disagreement among jurors as to what acts the defendant committed, the instructions violate the defendant’s right to a unanimous verdict. State v. Begbie, 415 N.W.2d 103, 105 (Minn.App.1987), review denied (Minn. Jan. 20, 1988).

“A unanimous verdict shall be required in all cases.” Minn. R.Crim. P. 26.01, subd. 1(5); see also State v. Hart, 477 N.W.2d 732, 739 (Minn.App.1991) (stating the right to a unanimous jury verdict), review denied (Minn. Jan. 16, 1992). But “unanimity is not required with respect to the alternative means or ways in which the crime can be committed.” Begbie, 415 N.W.2d at 106 (quotation omitted). This occurs when a state court determines that “certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime.” Schad v. Arizona, 501 U.S. 624, 636, 111 S.Ct. 2491, 2499,115 L.Ed.2d 555 (1991). Under these circumstances, this court has cautioned against using “either/or” jury instructions because they are unclear and potentially raise doubt about the unanimity of the jury verdict. Hart, 477 N.W.2d at 739.

On the other hand, the jury must unanimously agree on which acts the defendant committed if each act itself constitutes an element of the crime. Richardson v. United States, 526 U.S. 813, 824, 119 S.Ct. 1707, 1713, 143 L.Ed.2d 985 (1999). Richardson addressed whether the phrase “series of violations” in the criminal-enterprise statute referred to one element or whether each violation was an element. Id. at 817, 119 S.Ct. at 1710. The United States Supreme Court noted that “[cjalling a particular kind of fact an ‘element’ carries certain legal consequences”; the jury “cannot convict unless it unanimously finds that the Government has proved each element.” Id. (citations omitted). The Court found that each violation in the series constituted an element. Id. at 818-19, 119 S.Ct. at 1710-11. The legal effect of that determination meant that the jury had to unanimously agree not only that the defendant committed some “continuing series of violations” but also had to unanimously agree on which three acts constituted the violations. Id. at 820-21, 824, 119 S.Ct. at 1711, 1713. The Court found that to hold otherwise would impose punishment on a defendant “without any factfinder having found that the defendant committed those crimes.” Id. at 822, 119 S.Ct. at 1712. Because the government introduced evidence that the defendant committed more underlying drug crimes than legally necessary to make up a series, the Court found that the trial court erroneously instructed the jury that they did not have to agree on which particular offenses the defendant committed. Id. at 815-24, 119 S.Ct. at 1709-13.

The New Hampshire Supreme Court explained the distinction between elements and means in the context of a crime of simple assault, where the elements are (1) mental state of knowingly acting and (2) proscribed conduct of unprivileged physical contact, and the prosecution presents evidence of different means used to show that an unprivileged physical contact occurred:

A conviction would have been proper if the jury had all agreed, for instance, that the defendant struck the officer in the face, but disagreed as to whether the blow occurred from a fist or knee. Also unassailable would have been a verdict of guilty based on agreement that a blow was struck to the officer’s torso, despite disagreement as to the body part of the defendant that caused the blow. In these examples, the element of contact would have been established through unanimous agreement, while the means — a punch or kick — need not have been agreed upon.

New Hampshire v. Greene, 137 N.H. 126, 623 A.2d 1342, 1345 (1993).

It is evidently a matter of first impression in Minnesota to determine the effect of one-count pleading on the right to a unanimous verdict, where the state presents two different factual scenarios as alternatives for proving a single element of a crime. Our cases have dealt with the alternate-means analysis found in Schad. For example, this court found that the jury did not have to decide unanimously who the defendant intended to threaten — evidence showed that either husband or wife or both would have been threatened by the defendant’s call — because the terroristic-threats statute does not make the identity of the person who is threatened an element of the crime. Begbie, 415 N.W.2d at 106; see also Minn.Stat. § 609.713, subd. 1 (2000) (stating generally “with purpose to terrorize another”). Similarly, the right to a unanimous verdict was not violated in a criminal-sexual-conduct case when the facts were relatively undisputed and the statute provided alternate means for proving the crime — the statute allowed the jury to find the defendant guilty if he caused the complainant to have reasonable fear of imminent bodily harm, or if he caused personal injury and used force or coercion. Hart, 477 N.W.2d at 738-39; see also State v. Day, 501 N.W.2d 649, 651-52 (Minn.App.1993) (same). But nothing in Minnesota law permits trial on one count of criminal conduct that alleges different acts without requiring the prosecution to elect the act upon which it will rely for conviction or instructing the jury that it must agree on which act the defendant committed.

Near unanimous authority supports the conclusion that the Richardson analysis would apply to the circumstances of appellant’s case, and that appellant’s right to a unanimous verdict was violated. See Colorado v. Estorga, 200 Colo. 78, 612 P.2d 520, 523 (1980) (en banc) (finding defendant’s right to unanimous verdict violated where state offered evidence of more than one alleged sexual assault on different occasions and trial court instructed the jury it could find defendant guilty if “the evidence showed that the crime had occurred at any time within three years prior to the filing of the information”); Horton v. United States, 541 A.2d 604, 610-11 (D.C.Ct.App.1988) (finding defendant’s right to unanimous jury verdict violated when different factual scenarios could have supported jury verdict on assault conviction and appellate court could not “infer from the verdicts themselves that all the jurors were in agreement as to appellant’s specific criminal acts”); Hawaii v. Mahoe, 89 Hawaii 284, 972 P.2d 287, 294 (1998) (finding right to unanimous jury verdict violated when defendant made two distinct entries into residence, prosecution did not elect which entry to rely on for conviction, and jury not given specific instruction on requirement of unanimity for underlying criminal act); Illinois v. Scott, 243 Ill. App.3d 167, 183 Ill.Dec. 750, 612 N.E.2d 7, 9 (1993) (finding right to unanimous verdict violated when defendant charged with three counts of delivery of a controlled substance and verdict form included only one count of delivery, allowing jurors to find guilt without agreeing upon which count he was guilty); Greene, 623 A.2d at 1344-45 (finding right to unanimous jury verdict violated when complaint alleged three separate blows as evidence proving assault but jury was instructed that they did not have to agree on which of the alleged three blows occurred); Vermont v. Corliss, 149 Vt. 100, 539 A.2d 557, 558-59 (1987) (finding right to unanimous verdict violated when state charged defendant with single burglary of residence on a specific date but introduced evidence that the defendant entered the house two separate times that evening and conduct did not constitute one felonious act); Washington v. Petrich, 101 Wash.2d 566, 683 P.2d 173, 178 (1984) (finding right to unanimous verdict violated when state charged defendant with one count of indecent liberties and one count of second-degree statutory rape but introduced evidence of numerous incidents of sexual contact that did not constitute a continuing course of conduct).

The Hawaii Supreme Court and Washington Supreme Court have formulated appropriate safeguards to protect the defendant’s right to a unanimous verdict where evidence indicates that several distinct criminal acts have been committed, but the state charges only one count of criminal conduct: (1) the prosecution must elect the specific act on which it is relying for conviction; or (2) the trial court must give the jury a specific unanimity instruction stating that the jury must unanimously agree that the same underlying criminal act has been proven beyond a reasonable doubt. Hawaii v. Arceo, 84 Hawai'i 1, 928 P.2d 843, 874-75 (1996); Petrich, 683 P.2d at 178.

The provision of the eontrolled-sub-stance-crime statute under which appellant was charged and convicted contains two elements: (1) unlawful possession; and (2) one or more mixtures containing methamphetamine. Minn.Stat. § 152.025, subd. 2(1) (2000). An alternate means of unlawful possession involves using fraud or deceit to obtain possession. Id., subd. 2(2). Underlying facts about which the jury would not necessarily have to agree would be whether the defendant had actual or constructive possession. See State v. Denison, 607 N.W.2d 796, 799-800 (Minn.App.2000) (explaining the constructive-possession doctrine), review denied (Minn. June 13, 2000). But the statute makes the act of possession an element of the crime. Therefore, the jury must agree unanimously on one act of possession that has been proven beyond a reasonable doubt.

In this case, the state charged appellant with only one count of possession but alleged two distinct acts to support a conviction: (1) that he possessed methamphetamine found at the premises of his workplace; and (2) that he possessed methamphetamine found in the truck in which he was riding when he arrived at work. At trial, appellant requested an instruction requiring the jurors to evaluate the two acts separately and reach a unanimous verdict about which act he committed, but the trial court refused to give the instruction. Also, in closing argument, the state told the jury it could convict if some jurors believed appellant possessed the methamphetamine found on the premises while others believed he possessed the methamphetamine found in the truck.

Because the state did not elect which act of possession it was relying on for conviction, we find the trial court’s refusal to give a specific unanimity instruction violated appellant’s right to a unanimous verdict. Some jurors could have believed appellant possessed the methamphetamine found on the premises while other jurors could have believed appellant possessed the methamphetamine found in the truck.

The two incidents of possession did not constitute a single act. Both acts were premised upon constructive possession and appellant presented different defenses for each alleged act of possession. See Scarborough v. United States, 522 A.2d 869, 873 (D.C.Ct.App.1987) (en banc) (overruling prior case law that did not apply unanimity requirement to legally separable incidents — where the single count referred to “separate allegations and/or to separate defenses”). The acts occurred in different places and at different times. Upholding the conviction under these circumstances would impose punishment without any fact-finder having found that appellant committed the crime. This violation of appellant’s rights requires reversal.

The record in this case does not permit a conclusion that violation of appellant’s right to a unanimous verdict may have been harmless error. Compare id. at 872-75 (finding unanimity requirement violated when evidence showed legally separate incidents of receiving stolen property and complaint charged single count, but holding error harmless beyond a reasonable doubt because jury could not have found appellant guilty on one incident and not guilty on the other), with Horton, 541 A.2d at 611 (finding right to unanimous verdict “so clearly prejudiced by the confusion inherent in the separate defenses to the alleged gunshots, unaided by a special unanimity instruction, that plain error occurred” (citations omitted)). Unlike Scarborough, the jury could have believed appellant’s defense as to one act but not the other.

We need not decide, as respondent suggests, that a different result would be warranted when the separate acts constitute a continuing course of conduct. See Langdon v. State, 375 N.W.2d 474, 476-77 (Minn.1985) (finding multiple punishment improper when defendant burglarized several washers and dryers in the same apartment complex with one criminal objective). The two acts alleged in this case lack unity of time and place; they are separate and distinct culpable acts, either one of which could support a conviction.

Appellant also argues that the court erred in staying execution of his sentence instead of imposing a stay of imposition or a stay of adjudication. Because we find that the violation of appellant’s right to a unanimous verdict entitles him to a new trial, we decline to address this issue.

DECISION

Respondent did not elect one act on which to rely for a conviction, and the trial court did not instruct jurors that they were required to render a unanimous verdict regarding which possession crime appellant committed. Because some jurors could have believed appellant possessed the methamphetamine found on the premises while other jurors could have believed appellant possessed the methamphetamine found in the truck, it is possible that the jury’s verdict of guilty was not unanimous. Appellant’s conviction for controlled-substance crime in the fifth degree must be vacated, and we remand to the trial court for further proceedings.

Reversed and remanded.

      . Because this method of charging has existed for some time, the court has addressed the point at which the prosecution must select the factual scenario on which it is relying for conviction. See, e.g., State v. Wassing, 141 Minn. 106, 110-11, 169 N.W. 485, 486-87 (1918) (stating court has discretion to decide when the prosecution must elect the act on which it will rely for conviction and affirming timing of election at close of prosecution’s case).

      . Florida seems lo have found that a defendant forfeits his or her right to a unanimous verdict under these circumstances because the defendant has "reaped [the] benefits” from having only one crime charged. See Hernandez v. Florida, 749 So.2d 1284, 1285-86 (Fla.Ct.App.2000) (finding defendant was "attempting ‘to have his cake and eat it too' ” by not challenging the format of the complaint and later requesting a specific unanimity instruction). We reject this analysis.

      . The statute provides:
      A person is guilty of controlled substance crime in the fifth degree if:
      (1) the person unlawfully possesses one or more mixtures containing a controlled substance classified in schedule I, II, III, or IV, except a small amount of marijuana; or
      (2) the person procures, attempts to procure, possesses, or has control over a controlled substance by any of the following means:
      (i)fraud, deceit, misrepresentation, or subterfuge;
      (ii) using a false name or giving false credit; or
      (iii) falsely assuming the title of, or falsely representing any person to be, a manufacturer, wholesaler, pharmacist, physician, doctor of osteopathy licensed to practice medicine, dentist, podiatrist, veterinarian, or other authorized person for the purpose of obtaining a controlled substance.
      Minn.Stat. § 152.025, subd. 2 (2000).

      . The double-jeopardy statute prohibits punishment for more than one offense arising out of the same behavioral incident. Minn.Stat. § 609.035, subd. 1 (2000). The statute does not prohibit charging more than one offense in separate counts. Id. ("All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.”). Moreover, the advisory committee comment explains that several convicLions may be obtained but only one sentence imposed:
      As drawn, the recommended section will not prohibit a single indictment from charging several offenses arising out of the same conduct and obtaining convictions for any or all of them, but a sentence may be imposed for only one of them which may be for the highest sentence which any one of them carries.
      Minn.Stat. Ann. § 609.035 advisory committee’s cmt. (West 1987); accord State v. Carlson, 291 Minn. 368, 376, 192 N.W.2d 421, 426 (1971). But this statute and the cases construing the statute do not address the implications of charging only one offense on the defendant's right to a unanimous verdict.