author: TOUSSAINT, Chief Judge.

text:
    Fatih M. UCKUN, M.D., Appellant, v. MINNESOTA STATE BOARD OF MEDICAL PRACTICE, Respondent.
    No. A06-1365.
    Court of Appeals of Minnesota.
    June 26, 2007.

      Stuart T. Williams, Alan C. Eidsness, Henson & Efron, Minneapolis, MN, for appellant.
    Lori Swanson, Attorney General, John S. Garry, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge; TOUSSAINT, Chief Judge; and HUDSON, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Appellant Fatih M. Uckun, M.D., challenges procedures followed by respondent Minnesota Board of Medical Practice in temporarily suspending his medical license. The district court granted respondent’s motion to dismiss appellant’s claims and denied appellant’s motion for partial summary judgment on several of his claims. Because (1) appellant’s due process rights were not violated when respondent applied the preponderance of the evidence standard of proof in its proceedings to temporarily suspend appellant’s medical license, (2) appellant failed to exhaust all administrative remedies and did not show that exhaustion of such remedies would be futile, and (3) respondent did not violate the Minnesota Government Data Practices Act or the Medical Practice Act when it published appellant’s temporary suspension order, on its website, we affirm.

FACTS

Appellant, a medical doctor, was licensed in 1993 by respondent to practice medicine and surgery in Minnesota. In 1997, appellant became the director of Parker Hughes Clinics, a position which he held until 2005. Appellant remains employed by Parker Hughes Clinics.

After a two-year investigation by the Minnesota Attorney General’s Office into patient-care complaints, respondent’s Complaint Review Committee filed a petition in November 2005 seeking to have appellant’s license temporarily suspended. In January 2006, respondent held a hearing on the petition during which appellant was given 20 minutes to make an oral presentation but was not allowed to present live testimony, cross-examine witnesses, or supplement the record. On January 27, 2006, respondent made findings and conclusions and issued an order temporarily suspending appellant’s.license pending a final decision after a contested case hearing. Respondent found that appellant’s continued practice would create a serious risk of harm to others. Respondent published the temporary suspension order on its website, including appellant’s name and business address, the nature of the misconduct, and the action taken by respondent.

On February 3, 2006, appellant filed a complaint against respondent in district court, seeking: (1) a declaratory judgment that respondent’s use of the probable cause and/or preponderance of the evidence standards of proof rather than the clear and convincing evidence standard of proof in proceedings to temporarily suspend appellant’s medical license violated his due process rights; (2) an injunction prohibiting respondent from using the probable cause and/or preponderance of the evidence standard in seeking to permanently suspend appellant’s medical license and instead requiring respondent to use the clear and convincing evidence standard of proof in future proceedings, and an injunction ordering respondent to rescind the temporary suspension order and reinstate appellant’s license; (3) a declaratory judgment that respondent’s publication of the temporary suspension order on its website violated both the Minnesota Government Data Practices Act (MGDPA), Minn.Stat. §§ 13.01-13.90 (2006), and the Medical Practice Act (MPA), Minn.Stat. §§ 147.001-147.37 (2006); (4) an injunction prohibiting respondent from publicly disclosing or revealing any disciplinary proceedings related to appellant; and (5) damages, including costs and attorney fees, for violations of the MGDPA and MPA.

Respondent subsequently moved to dismiss the complaint, and appellant moved for partial summary judgment on several claims. The district court issued an order granting respondent’s motion to dismiss and denying appellant’s motion for partial summary judgment. With regard to appellant’s claims that respondent had applied the wrong standard of proof and had improperly published the temporary suspension order, the district court concluded that the complaint did not allege a claim on which relief could be granted.

ISSUES

1. Did respondent violate appellant’s due-process rights by applying the preponderance of the evidence standard of proof in the proceeding to temporarily suspend appellant’s medical license?

2. Did appellant exhaust his administrative remedies, and if not, did appellant show that exhaustion would be futile?

3. Did respondent violate the Minnesota Government Data Practices Act and the Medical Practice Act when it published appellant’s temporary suspension order on its website?

ANALYSIS

In reviewing cases dismissed for failure to state a claim on which relief can be granted, the only question before the reviewing court is whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997). Thus, the dismissal of a complaint for failure to state a claim is reviewed de novo. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn.2003). “Where ... the [district] court is itself acting as an appellate tribunal with respect to the agency decision, this court will independently review the agency’s record.” In re Hutchinson, 440 N.W.2d 171, 175 (Minn.App.1989), review denied (Minn. Aug. 9,1989).

I.

Appellant argues that respondent violated his due-process rights by improperly applying the preponderance of the evidence standard of proof in its proceedings to temporarily suspend his medical license rather than applying the clear and convincing evidence standard of proof. We disagree.

The Fourteenth Amendment to the United States Constitution and article I, section 7 of the Minnesota Constitution provide that no person shall be deprived of life, liberty, or property without due process of law. “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976). A three-part test set out in Mathews guides the determination of the minimum standard of proof necessary to satisfy due process: 1) the private interest affected, 2) the risk of erroneous deprivation of the interest, and 3) the government’s interest including any additional burdens it would incur. Id. at 335, 96 S.Ct. at 903. “ ‘The function of a standard of proof ... is to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ ” Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979) (quotation omitted). “The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.” Id.

First, Minnesota law supports our conclusion that respondent properly applied the preponderance of the evidence standard of proof in its temporary suspension of appellant’s license. Respondent is authorized to temporarily suspend the license of a physician without a hearing if the board finds that “the physician has violated a statute or rule which the board is empowered to enforce and continued practice by the physician would create a serious risk of harm to the public.” Minn. Stat. § 147.091, subd. 4 (2006). Minnesota rules provide the standard of proof applicable in administrative proceedings, including license revocation proceedings. The preponderance of the evidence standard applies “unless the substantive law provides a different burden or standard.” Minn. R. 1400.7300, subp. 5 (2005). Minnesota statutory law does not provide a different standard for respondent’s discipline of medical doctors. Minn.Stat. § 147.091 (2006).

Furthermore, to date, Minnesota case law has not addressed the specific question of the correct standard to be applied in temporary suspensions of physician licenses pending contested case hearings. Minnesota law, however, does not support the higher clear and convincing evidence standard at this stage of the disciplinary hearings, as Minnesota has rejected application of the higher clear and convincing evidence standard at the contested case hearings for both dentists and physicians. In re Wang, 441 N.W.2d 488, 489 (Minn.1989) (affirming one-year suspension of license to practice dentistry using preponderance standard); In re Friedenson, 574 N.W.2d 463, 466 (Minn.App.1998) (affirming preponderance standard in medical license suspension), review denied (Minn. Apr. 30,1998).

Appellant contends that both his property and liberty interests were significantly impacted by respondent’s decision to temporarily suspend his medical license and that application of the three-part Mathews test mandates use of the clear and convincing evidence standard of proof in temporary suspension proceedings. We conclude there is no legal basis to support appellant’s argument because the Mathews factors do not weigh in appellant’s favor, particularly at this stage of the disciplinary proceedings.

With regard to the private interest affected, we recognize that appellant has a significant interest in his medical license and that depriving appellant of such license may result in a monetary loss as well as a loss of professional reputation. Indeed, the Minnesota Supreme Court noted in Wang the seriousness of “attacking a person’s professional and personal reputation and character and seeking to impose disciplinary sanctions,” stating that “in all professional disciplinary matters, the finder of fact, bearing in mind the gravity of the decision to be made, will be persuaded only by evidence with heft.” 441 N.W.2d at 492. But the seriousness of the deprivation here is lessened by the fact that appellant’s license has only been temporarily suspended pending a final disciplinary hearing, and thus appellant has not been permanently deprived of the interest affected.

We also consider the risk of an erroneous result. “[P]roceedings that ‘employ imprecise substantive standards that leave determinations unusually open to subjective values of the judge’ magnify the risk for erroneous deprivation of private interests.” SooHoo v. Johnson, 731 N.W.2d 815, 823 (Minn.2007) (quoting Santosky v. Kramer, 455 U.S. 745, 762, 102 S.Ct. 1388, 1399, 71 L.Ed.2d 599 (1982)). The record indicates that prior to filing a petition seeking to have appellant’s license temporarily suspended, the Minnesota Attorney General’s Office conducted a two-year investigation into patient-care complaints against appellant. In addition, the record shows that appellant was allowed to make an oral argument during the hearing on the petition. Most importantly, however, the risk of an erroneous deprivation of appellant’s licensing privileges through this temporary suspension can be corrected if appellant’s license is reinstated after the contested case proceeding. Therefore, the procedure afforded appellant did not create an unacceptable risk of erroneous deprivation of his license to practice medicine.

Finally, Mathews directs us to consider “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” 424 U.S. at 335, 96 S.Ct. at 903. It is true that requiring an increased standard of proof during proceedings for the temporary discipline of medical practitioner’s licenses would not have a significant fiscal impact on the state and would not impose additional administrative burdens. But the state’s interest in the public function involved (i.e., assuring a high quality of medical care and protecting the public from serious risk or injury resulting from incompetent or irresponsible medical practitioners) is substantial. Indeed, in creating the Medical Practice Act, the legislature expressly stated that the “primary responsibility and obligation of [respondent] is to protect the public.” Minn.Stat. § 147.001 (2006). Additionally, the legislature granted respondent the authority to impose disciplinary action against any physician, in part, for engaging in conduct likely to harm the public; demonstrating disregard for a patient’s health, welfare or safety; and engaging in medical practice that is professionally incompetent so as to unnecessarily endanger a patient’s life, health, or safety. Minn.Stat. § 147.091, subd. 1(g) (2006).

Therefore, we conclude, after analyzing and balancing the three Mathews factors, that respondent did not violate appellant’s right to due process by utilizing the preponderance of the evidence standard of proof for the temporary suspension of appellant’s medical license.

In support of his position, appellant also identifies other state courts that have concluded that due process requires proof by clear and convincing evidence in medical disciplinary proceedings. See, e.g., In re Setliff, 645 N.W.2d 601, 605 (S.D.2002) (stating that in matters concerning revocation of professional license, appropriate standard of proof to be utilized by agency is clear and convincing evidence); Nguyen v. State, Dep’t of Health Med. Quality Assurance Comm’n, 144 Wash.2d 516, 29 P.3d 689, 697 (2001) (stating that “constitutional minimum standard of proof in a professional disciplinary proceeding for a medical doctor must be something more than a mere preponderance,” and remanding to conduct further proceedings under elear-and-convincing standard of proof). Other jurisdictions, however, have held that due process is satisfied in medical disciplinary proceedings by the application of the preponderance of the evidence standard of proof. See, e.g., N.D. State Bd. of Med. Exam’rs-Investigative Panel B v. Hsu, 726 N.W.2d 216, 229-30 (N.D.2007) (applying Mathews and concluding that preponderance of evidence standard for medical disciplinary proceedings satisfied due process). We conclude the Hsu court’s reasoning to be more persuasive because of its similar application of the Mathews factors and because the decision comports with Minnesota precedent. Moreover, appellant does not cite, and we are unaware of, any case expressly adopting the clear-and-eonvincing evidence standard as the appropriate standard of proof in temporary suspension proceedings.

For these reasons, we conclude that respondent did not erroneously apply the preponderance of the evidence standard of proof to appellant’s temporary suspension proceedings and therefore the district court did not err in its dismissal of those claims.

II.

Appellant seeks an injunction prohibiting respondent from using the preponderance of the evidence standard of proof and requiring respondent to apply the clear and convincing evidence standard of proof in the disciplinary hearing for a final order on suspension of his medical license. The district court determined that the preponderance of the evidence standard was applicable to both temporary and permanent suspension proceedings and dismissed the request for an injunction.

Respondent argued below and argues on this appeal that appellant’s claim for an injunction is barred by the doctrine of exhaustion of administrative remedies. The district court did not reach the exhaustion issue, having concluded that appellant’s claim failed on the merits. We conclude that appellant has not exhausted available administrative remedies and this court cannot grant the requested relief.

It is a “long-settled rule that no one is entitled to injunctive protection against the actual or threatened acts of an administrative agency until” all administrative remedies have been exhausted, unless exhaustion of administrative remedies will cause “imminent and irreparable harm.” Thomas v. Ramberg, 240 Minn. 1, 4-5, 60 N.W.2d 18, 20 (1953); see also Amcon Corp. v. City of Eagan, 348 N.W.2d 66, 71 (Minn.1984) (noting that generally party “must first exhaust the administrative remedies available before bringing an action for judicial review”); City of Richfield v. Local No. 1215, 276 N.W.2d 42, 51 (Minn.1979) (stating “[i]t is fundamental that before judicial review of administrative proceedings will be permitted, the appropriate channels of administrative appeal must be followed”). This requirement has several purposes, including to protect the autonomy of administrative agencies created by the legislature to resolve particular problems, to promote judicial efficiency, to produce a record during the administrative process that facilitates judicial review, and to potentially reduce the need to resort to judicial review. Zaluckyj v. Rice Creek Watershed Dist, 639 N.W.2d 70, 74-75 (Minn.App.2002), review denied (Minn. Apr. 16, 2002). But “administrative remedies need not be pursued if it would be futile to do so.” McShane v. City of Faribault, 292 N.W.2d 253, 256 (Minn.1980); see also Local No. 1215, 276 N.W.2d at 51 (stating that “[t]he doctrine of exhaustion of administrative remedies is not applicable where it would be futile to seek such redress”). In such cases, a party may ask the courts for redress. 276 N.W.2d at 51. The issue of exhaustion and futility generally present legal issues for the appellate court to review. Zaluckyj, 639 N.W.2d at 74.

Before issuing a final order suspending a physician’s license, respondent is required to schedule a disciplinary hearing under the Administrative Procedure Act (APA), Minn.Stat. §§ 14.001-14.69 (2006). During the disciplinary hearing, physicians are afforded the opportunity to present witnesses and cross-examine witnesses. See Minn.Stat. §§ 147.091, subd. 4, 14.50, 14.60; Minn. R. 1400.7200, 1400.7800 (2005). A physician must be given notice of the hearing at least 20 days before it is to occur, and the hearing must be scheduled to begin within 30 days after the issuance of the temporary suspension order. Minn.Stat. § 147.091, subd. 4. All parties may bring motions to request orders from the administrative law judge (ALJ). Minn. R. 1400.6600 (2005). Following receipt of the ALJ’s report, and after “an opportunity has been afforded to each party adversely affected to file exceptions and present argument to a majority of the officials who are to render the decision,” respondent must make its final decision. Minn.Stat. § 14.61; Minn. R. 1400.8200 (2005). When respondent determines that a physician has violated a provision of sections 147.01 to 147.22, it has a wide array of actions it may take to address the violation, ranging from suspension or revocation of a license to reprimand or civil penalties. Minn.Stat. § 147.141. A person aggrieved by a final disciplinary decision of respondent may petition for judicial review of that decision. Minn.Stat. §§ 14.63,147.151.

At the present stage of appellant’s disciplinary proceedings he continues to have the opportunity to argue that any alleged misconduct should be proven by clear and convincing evidence. He may move for relief prior to the hearing, submit written exceptions or oral argument for relief after the ALJ’s report, and file an appeal to this court after respondent issues a final decision. Accordingly, there are additional administrative remedies available to appellant that he has not yet exhausted and injunctive relief would be premature.

But appellant contends that it would be futile to argue this issue during the permanent disciplinary proceedings because respondent has already applied the lesser preponderance of the evidence standard during appellant’s temporary suspension proceedings. We disagree. As respondent notes, the futility exception only applies when the administrative board has “unequivocally committed” itself to a position on an issue. State Bd. of Med. Exam’rs v. Olson, 295 Minn. 379, 387, 206 N.W.2d 12, 17 (1973); Ellingson Assoes., Inc. v. Keefe, 410 N.W.2d 857, 860 (Minn.App.1987). Here, respondent has not committed itself to applying the same standard of proof during appellant’s ongoing disciplinary proceedings. In fact, appellant brought a motion to the ALJ seeking an order declaring that the clear and convincing evidence standard of proof should be applied to the ongoing contested case proceeding; a step one is unlikely to take if respondent had already “unequivocally committed” itself to the preponderance of the evidence standard. Therefore, we conclude that appellant has failed to show that respondent has “unequivocally committed” itself to the standard of proof to be applied in appellant’s ongoing disciplinary proceedings such that using the administrative process would be futile.

III.

Appellant argues that respondent violated both the MGDPA and the MPA by publishing the temporary suspension order on its website. Specifically, the temporary suspension order concluded that appellant had:

1. Engaged in advertising that is false or misleading ...;
2. Engaged in unethical conduct; conduct likely to deceive, defraud or harm the public, or demonstrating a willful or careless disregard for the health, welfare or safety of a patient; and in medical practice that is professionally incompetent in that it may create unnecessary danger to any patient’s life, health, or safety ...; [and]
3. Engaged in unprofessional conduct, including by departing from or failing to conform to the minimal standards of acceptable and prevailing medical practice....

Appellant argues that the order was private and confidential data under the MGDPA and the MPA and thus was barred from disclosure. Respondent contends that the temporary suspension order is classified as public data. The parties dispute the construction to be given to the relevant statutes.

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). Application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996).

Generally, the Minnesota Government Data Practices Act, MinmStat. §§ 13.01-13.90 (2006), protects from public disclosure only private or confidential data on individuals if classified as such by statute. Minn.Stat. § 13.03, subd. 1 (2006). All other data is public. “Private data on individuals” is defined as data which is made “not public” by statute, and is “accessible to the individual subject of that data.” Minn.Stat. § 13.02, subd. 12 (2006). “Confidential data on individuals” is data made “not public” by statute and is “inaccessible to the individual.” Minn.Stat. § 13.02, subd. 3 (2006). “Public data on individuals” is data which is accessible to the public. Minn.Stat. § 13.02, subd. 15 (2006).

The MGDPA specifically classifies data generated by a “licensing agency” as “public data.” Minn.Stat. § 13.41, subd. 5 (2006). This includes “[ljicensing agency minutes, application data on licenses except nondesignated addresses, orders for hearing, findings of fact, conclusions of law and specification of the final disciplinary action contained in the record of the disciplinary action.” Id. In fact where there is a public hearing concerning the disciplinary action, “[t]he entire record concerning ... disciplinary proceedings is public data.” Id. Although “data collected by state agencies as part of an active investí-gation undertaken for the purpose of the commencement or defense of’ an administrative proceeding or other pending civil legal action is deemed confidential, an agency may make that data “accessible to any person, agency or the public if the agency ... determines that the access will aid the law enforcement process, promote public health or safety or dispel widespread rumor or unrest.” Minn.Stat. § 13.39, subd. 1, 2(a); Westrom v. Minn. Dep’t of Labor, 686 N.W.2d 27, 34-36 (Minn.2004) (determining that orders released by agency reflected data collected during investigation and was civil investigative data).

Here, the record indicates that respondent collected data on appellant over a two-year period for purposes of instigating administrative proceedings against him. Thus, the data is classified as confidential under section 13.39, subdivision 2(a). But respondent published the temporary suspension order on its website after specifically finding that appellant’s continued practice posed a serious risk of harm to the public. Accordingly, we conclude that even though the data published by respondent was confidential, respondent was permitted to publish the data so as to promote public health and safety.

The Medical Practice Act, Minn. Stat. §§ 147.001-37 (2006), generally protects from public disclosure “all communications or information received by or disclosed to the board relating to any person or matter subject to its regulatory jurisdiction.” Id., § 147.01, subd. 4. Although the MPA classifies this information as confidential and privileged, “[i]f the board imposes disciplinary measures of any kind, whether by contested case or by settlement agreement, the name and business address of the licensee, the nature of the misconduct, and the action taken by the board are public data.” Id.

Appellant argues that the phrase “disciplinary measures of any kind” does not include interim disciplinary actions such as a temporary suspension order because the phrase is qualified by the limiting phrase “whether by contested case or by settlement agreement.” Therefore, appellant contends that the language “disciplinary measures of any kind” refers only to either a contested case hearing or a settlement agreement, and any other reading would effectively eliminate the phrase “whether by contested case or by settlement agreement.” We disagree.

“When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (citation omitted). “A statute should be interpreted, whenever possible, to give effect to all of its provisions; ‘no word, phrase, or sentence should be deemed superfluous, void, or insignificant.’ ” Id. (quoting Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999)). And “[w]e are to read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations.” Id.

Because section 147.01, subdivision 4(b) is subject to more than one reasonable interpretation, we first consider the language of the statute itself, giving effect to all of its provisions. Appellant reads the word “whether” as a word of limitation. A number of courts, however, have reasoned that the word “whether,” when preceded by a general term, is not a word of limitation. See, e.g., Galbreath v. Gulf Oil Corp., 294 F.Supp. 817, 824 (D.Ga.1968) (stating that “[t]he cases hold without exception that words following ‘whether’ do not restrict the meaning to any following terms; rather, they enlarge upon it”), aff'd, 413 F.2d 941 (5th Cir.1969); State ex rel. Berra v. Sestrie, 349 Mo. 182, 159 S.W.2d 786, 789 (1942) (stating that “the word whether, neither in common parlance, nor in legal phraseology, has ever had the force of a videlicet”). This interpretation of the word “whether,” following as it does the broad and general phrase “disciplinary measures of any kind,” emphasizes and makes clear that contested cases and settlement agreements fall within “disciplinary measures of any kind.” The legislature intended to include discipline whether it was litigated or resolved by agreement of the parties.

We also consider surrounding sections so as to avoid inconsistent interpretations. This interpretation of the statute is also consistent with the MPA mandate that respondent, at least annually, “shall publish and release to the public a description of all disciplinary measures taken by the board. The publication must include, for each disciplinary measure taken, the name and business address of the licensee, the nature of the misconduct, and the disciplinary measure taken by the board.” Minn. Stat. § 147.02, subd. 6 (2006) (emphasis added). No limitation is reasonably read into this requirement to publish the very data appellant seeks to protect. Finally, appellant’s interpretation of section 147.01, subdivision 4, would lead to absurd results because respondent would be prohibited from informing the public of the temporary suspension of a physician’s license, thereby endangering the public. Accordingly, we conclude that the phrase “disciplinary measures of any kind” is not limited to only contested case hearings and settlement agreements, but also includes interim disciplinary actions such as temporary suspension orders.

In sum, we conclude that disclosure of the data was authorized under the MGDPA and the MPA. Respondent found that appellant posed a serious risk to the public and was thereby permitted to make the data accessible to the public under the MGDPA. Under the MPA, the temporary suspension order fell within any disciplinary measure and the order was properly limited in scope. The publication disclosed only the “nature of the misconduct” and a description of “the disciplinary measure taken by the board.” The “nature” of appellant’s misconduct followed the statutory grounds which respondent found appellant had violated and contained no other findings or details. Furthermore, the published order briefly and accurately described the disciplinary measures taken by respondent, and nothing more. Therefore, the district court correctly dismissed appellant’s claim that respondent had improperly published the temporary suspension order for failure to state a claim on which relief can be granted.

DECISION

We conclude that the district court did not err by granting respondent’s motion to dismiss appellant’s claims. Respondent’s application of the preponderance of the evidence standard of proof at the temporary suspension hearing did not violate appellant’s due process rights. Appellant has not exhausted his administrative remedies and, in his pending administrative proceeding, may request application of the clear and convincing evidence standard or proof during the permanent suspension hearing. Respondent complied with the Minnesota Government Data Practices Act and the Medical Practice Act by publishing appellant’s temporary suspension order on its website.

Affirmed.

      . Appellant also argues that respondent erroneously applied the probable cause standard of proof. In determining whether the evidence supported the petition to temporarily suspend appellant’s medical license, respondent first applied the probable cause standard of proof, concluding that "the [committee] met its burden in showing that a temporary suspension must issue." But "[i]n an exercise of caution,” respondent also applied the higher standard of proof and found that “evidence presented by the Committee has shown by a preponderance of the evidence that [appellant] has violated [Minn.Stat. § 147.091 (2004)] and that his continued practice poses a serious risk of harm to the public.” Therefore, we need not address appellant’s argument that respondent improperly applied the probable cause standard of proof to the temporary suspension proceedings.

      . Appellant argues that neither Wang nor Friedenson involved a challenge to the preponderance of the evidence standard of proof on due process grounds, and thus both cases are distinguishable. While we recognize that Wang involved a challenge to the standard of proof on equal protection grounds, we agree with respondent that it is implausible to believe that Friedenson involved a challenge to the preponderance of the evidence standard of proof on anything other than due process grounds. In addition, we decline to apply, by analogy, the clear and convincing evidence standard required in attorney disciplinary proceedings. See In re Gillard, 271 N.W.2d 785, 805 n. 3 (Minn.1978) (applying clear- and-convincing standard of proof in attorney disciplinary proceedings). The Minnesota Supreme Court previously rejected this argument in a dental-license revocation action, noting that attorney discipline is unique because it involves the administration of the judicial system. In re Wang, 441 N.W.2d 488, 492 n. 5 (Minn.1989).

      . Section 147.001 further provides that "[i]n the interest of public health, safety, and welfare, and to protect the public from the unprofessional, improper, incompetent, and unlawful practice of medicine, it is necessary to provide laws and regulations to govern the granting and subsequent use of the license to practice medicine.”


source: Caselaw Access Project

author: HARTEN, Judge.

license: Public Domain

text:
    Neal PETERSON, a minor, By and Through his parent and natural guardian, Wanda PETERSON, et al., Appellants, v. David DONAHUE, Respondent.
    No. A06-1824.
    Court of Appeals of Minnesota.
    June 26, 2007.
    D. Patrick McCullough, McCullough, Smith, Williams & Cyr, P.A., St. Paul, MN, for appellants.
    Susan D. Thurmer, Sandra P. Barnes, Kathleen M. Ghreichi, Cousineau McGuire Chartered, Minneapolis, MN, for respondent.
    Considered and decided by PETERSON, Presiding Judge; ROSS, Judge; and HARTEN, Judge.
   OPINION

HARTEN, Judge.

Appellant brought this action in district court for injuries he sustained when he collided with respondent on a ski slope. Respondent moved successfully for summary judgment on the grounds of primary assumption of the risk. Because we see no error in the district court’s award of summary judgment dismissing appellant’s action, we affirm.

FACTS

In February 2000, respondent David Donahue, then 43, was crossing a ski slope when appellant Neal Peterson, then 11, collided with him. In August 2005, appellant brought this action. Depositions, taken in February 2006, indicated that both parties were experienced skiers at the time of the accident.

Appellant answered, “Yes” when asked, “And even though you were 11 at the time you were good?” and “You were very good?” He testified that he had been skiing since the age of two, that his whole family skied, that he was in his fourth year as a member of a ski race team at the time of the accident, and that he had raced the morning of the day of the accident, but he did not remember how well he did in the race. He also testified that he remembered nothing at all about the accident itself, that he had been told where it happened but would not otherwise have known, and that “nobody has really told me how the accident happened because nobody really saw it.”

Respondent testified that he would classify his level of skiing at the time as advanced, that he was on his way to the parking lot, that he saw appellant when he turned his head to the right and had “split seconds” to observe him before the impact, that he was “skating” on his skis (a movement much slower than skiing), and that appellant was skiing fast, that appellant’s head and body struck his right shoulder, that the impact knocked him downhill and out of his skis, that he was thrown ten or twelve feet and landed on his back and side, and that he saw appellant lying motionless and immediately sought attention.

Respondent’s wife was the only witness to testify about the accident. She testified that, as she was taking her daughter from the parking lot to the chalet, she saw a boy “slam [ ] right into” a man, that the boy came from above the man, that the boy was skiing very fast and his skis were not touching the ground, that the man was gliding or skiing very slowly, that in the chalet she learned that other people had seen the aftermath of the accident but no one appeared to have witnessed the actual collision, and that she learned her husband was the man involved in the accident only after she returned to the parking lot from the chalet.

ISSUE

Does appellant’s assumption of the risk preclude his negligence claim?

ANALYSIS

The district court granted respondent’s motion for summary judgment on the ground that, as a matter of law, appellant’s primary assumption of the risk precluded his negligence claim. “Generally a question for the jury, the applicability of primary assumption of the risk may be decided by the court as a matter of law when reasonable people can draw only one conclusion from undisputed facts.” Snilsberg v. Lake Washington Club, 614 N.W.2d 738, 744 (Minn.App.2000), review denied (Minn. 17 Oct. 2000) (quotations omitted). An appellate court reviews that decision de novo. See, id. at 746.

Primary assumption of the risk arises when parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. The defendant has no duty to protect the plaintiff from the well-known, incidental risks assumed, and the defendant is not negligent if any injury to the plaintiff arises from an incidental risk....
In primary assumption of the risk, by voluntarily entering into a situation where the defendant’s negligence is obvious, by his conduct, the plaintiff consents to the defendant’s negligence and agrees to undertake to look out for himself and relieve the defendant of the duty.

Id. at 743-44 (quotations and citations omitted). The application of primary assumption of the risk requires that a person who voluntarily takes the risk (1) knows of the risk, (2) appreciates the risk, and (3) has a chance to avoid the risk. Andren v. White-Rodgers Co., 465 N.W.2d 102, 104-05 (Minn.App.1991), review denied (Minn. 27 Mar. 1991).

Appellant does not argue that he did not know of the risk of colliding with another skier, appreciate that risk, or have a chance to avoid the risk. He had been skiing for years and was a member of a ski racing team at the time of the accident. During his deposition, he was asked, “[I]t’s a known risk that you can collide with another skier?” and answered, ‘Yes.” He also answered, “Yes” when asked if he “knew before this day [of the accident] that falls or collisions and accidents and injuries are something that can happen with skiing[.]” Appellant relies on Seidl v. Trollhaugen, Inc., 305 Minn. 506, 232 N.W.2d 236 (1975), but that case is readily distinguishable: it declined to apply assumption of the risk between skiers because the defendant did not “introduce evidence as to plaintiffs knowledge of the specific risk of being hit on the slopes by other skiers.” Id. at 509, 232 N.W.2d at 240-41. Here, the record provides ample evidence of appellant’s knowledge of that specific risk.

Appellant argues that Minnesota law has not recognized primary assumption of the risk between skiers. But although no Minnesota appellate court has addressed this precise issue in a published opinion, other cases support the inference that recognition of primary assumption of the risk between skiers would be consistent with existing law.

Minnesota courts have accepted primary assumption of the risk as a bar to recovery in actions related to various sports. See, e.g., Grisim v. TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874, 876 (Minn.1987) (golf); Moe v. Steenberg, 275 Minn. 448, 450-51, 147 N.W.2d 587, 589 (1966) (ice skating); Schneider v. Erickson, 654 N.W.2d 144, 151 (Minn.App.2002) (paintball); Swagger v. City of Crystal, 379 N.W.2d 183, 184-85 (Minn.App.1985) (softball), review denied (Minn. 19 Feb. 1986); Snilsberg, 614 N.W.2d at 746-47; Jussila v. U.S. Snowmobile Ass’n, 556 N.W.2d 234, 237 (Minn.App.1996) (snowmobiling), review denied (Minn. 29 Jan. 1997).

More specifically, the courts have applied primary assumption of the risk to actions between sporting participants. See, e.g., Moe, 275 Minn. at 450-51, 147 N.W.2d at 589 (ice skater who fell and was injured by another skater who fell over her could have assumed risk); Schneider, 654 N.W.2d at 151 (in paintball game, “[because participants in sports enter into relationships in which they assume well-known, inherent risks, they consent to relieve other participants of their duty of care with regard to those risks”).

In light of these cases applying primary assumption of the risk to several sports and to actions between participants in those sports and given the decision in Seidl, 305 Minn. at 509, 232 N.W.2d at 240, which declined to apply primary assumption of the risk to an action between skiers in the absence of evidence that the plaintiff knew of the risk of being hit by other skiers, we hold that primary assumption of the risk applies to actions between skiers who knew and appreciated the risk of collision.

Appellant also argues that respondent increased the risk inherent in skiing because he did not look up the hill for other skiers when he began to cross it. See Jussila, 556 N.W.2d at 237 (when defendant’s conduct increased plaintiffs risk, defendant may not argue that plaintiff assumed the risk). But it is undisputed that appellant was above respondent on the hill and that he skied into respondent. Both parties testified to a skier’s responsibility to be in control, and appellant does not assert that respondent was not in control or that he did not have the right to be on the hill. None of appellant’s allegations, even if true, would support the conclusion that respondent’s conduct increased the risk inherent in skiing.

DECISION

Collision with another skier is a risk inherent in skiing. Primary assumption of the risk precludes liability for collisions between skiers who know and appreciate the well-known and inherent risk of such collisions. The district court lawfully concluded that summary judgment in favor of respondent was warranted, having found as a matter of law that appellant assumed the risk of the skiing collision.

Affirmed.

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

      . We note that this court has addressed very similar issues in unpublished decisions. See, e.g., Manns v. Afton Alps, No. A06-752, 2007 WL 1412882 (Minn.App.15 May 2007) (affirming summary judgment on the ground that ski patrol volunteer riding on a snowmobile had primarily assumed the inherent risk of collision with snowboarder); Cooper v. Powder Ridge Ski Corp., No. C7-91-2436, 1992 WL 160649 (Minn.App.14 July 1992) (affirming jury finding that skier who fell while skiing over unusual terrain had primarily assumed risk of falling inherent in siding), review denied (Minn. 4 August 1992); see also Verberkmoes v. Lutsen Mountains Corp., 844 F.Supp. 1356, 1359-60 (D.Minn.1994) (citing Cooper as unpublished Minnesota opinion on applicability of primary assumption of the risk to skiing but declining to apply it because an ATV parked on or near a ski trail is not among the inherent risks of skiing).


author: KLAPHAKE, Judge.

text:
    STATE of Minnesota, Respondent, v. Gordon Douglas WEAVER, Appellant.
    No. A06-551.
    Court of Appeals of Minnesota.
    July 3, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, St. Paul, MN, for respondent.
    Lisa Lodin Peralta, Joseph S. Fried-berg, Casey M. Oppenheim, Joseph S. Friedberg, Minneapolis, MN; and Paul Engh, Minneapolis, MN, for appellant.
    Considered and decided by RANDALL, Presiding Judge, KLAPHAKE, Judge, and WILLIS, Judge.
   OPINION

KLAPHAKE, Judge.

On appeal from his conviction for second-degree unintentional felony murder, Minn.Stat. § 609.19, subd. 2(1) (1998), Gordon Dennis Weaver challenges several of the district court’s evidentiary rulings, including its decision to allow the assistant medical examiner to testify regarding laboratory test results on the carbon-monoxide level in the victim’s blood. Appellant also challenges the district court’s imposition of a 300-month sentence, which represents a double upward departure, based on the jury’s finding that appellant acted with particular cruelty.

Because the laboratory test results were testimonial in nature under Crawford, and because appellant had no opportunity to cross-examine the laboratory technician, whose identity was unknown, the district court erred in allowing the assistant medical examiner to testify regarding the test results. And because this error was not harmless beyond a reasonable doubt, appellant is entitled to a new trial. We therefore reverse appellant’s conviction and remand for a new trial.

FACTS

On the morning of October 16, 1999, a fire was reported at appellant’s home in White Bear Lake. Police and firefighters arrived within minutes. The firefighters found the family dog in an upstairs closet and appellant’s wife, Jean Weaver, face down on the basement floor with her head close to a cement laundry tub. Her body was partially burned and her head was matted with blood. She was carried outside, where paramedics unsuccessfully attempted to revive her.

The state fire marshal soon determined that the fire had been intentionally set with an accelerant, and Jean Weaver’s death was deemed a homicide. Appellant was arrested and released on bail, but he disappeared in March 2000, shortly after he was indicted for first-degree intentional felony murder and second-degree unintentional felony murder under Minn.Stat. §§ 609.185(a)(3) (intentionally causing death “while committing or attempting to commit” arson), 609.19, subd. 2(1) (1998) (unintentionally causing death while committing felony). Four years later, authorities located appellant living in Oregon under a false name, and he was returned to Minnesota to face trial.

Several days into trial, the defense moved to exclude the testimony of Dr. Susan Roe, the Assistant Ramsey County Medical Examiner who performed the autopsy, and who was to testify on the results of carbon-monoxide testing on blood samples taken from the victim and the family dog. The defense argued that the test results lacked foundation because the identity of the laboratory technician who conducted the tests was unknown and the blood samples had been destroyed. The defense also argued that the reports were inadmissible hearsay and that admission of the test results would violate appellant’s right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The state explained that the medical examiner’s office sent the blood samples to Regions Hospital Toxicology Department, where the tests were performed, and that in accordance with its policy, Regions destroyed the data after two years. The state insisted that “any unavailability ... has been caused by the fact that this defendant absented himself’ from the state for four years. The state further argued that the test results were admissible as the basis for their expert’s opinion under Minn. R. Evid. 703.

The state called Dr. Roe in limine to make an offer of proof. Dr. Roe testified that she has performed more than 4,000 autopsies as a medical examiner. She testified that all tissue and fluid specimens she obtained during autopsies were sent to toxicology laboratories outside the medical examiner’s office, like the one at Regions Hospital. Dr. Roe acknowledged that she lacked the expertise to perform such tests. But from her general knowledge and from her experience with the laboratory, she knew that Regions Hospital and its laboratory were accredited and met applicable national standards, that the instruments were calibrated on a routine basis, and that other medical examiner’s offices in the metro area used hospital laboratories for such tests. Dr. Roe testified that she was confident in relying on these test results because the laboratory had been reliable in the past; the results from the blood samples were consistent, and the measurements were not unexpected under the circumstances. She further assumed that the laboratory would have known that the medical examiner’s office was a medical-legal operation and that, with the chain-of-possession forms, there were legal implications. Dr. Roe testified that she received the results from these tests in two ways: either the laboratory called her office the day after the autopsy or it sent paperwork confirming the results.

The district court ruled that even though the laboratory results were hearsay, they were admissible under Minn. R. Evid. 703. The court further ruled that because the laboratory technician was unavailable, an oral report of the test results could be communicated to the jury by Dr. Roe under Minn. R. Evid. 804(5).

Dr. Roe then testified before the jury. While she appears to have referred to her autopsy report, it was not admitted into evidence. Dr. Roe testified that the victim received the injury to the back of her head when she hit her head on the concrete laundry tub. Dr. Roe explained that the force of impact caused a “contrecoup” injury in which the victim’s brain began to swell and herniate in the area of the brain-stem.

Dr. Roe also observed soot in the openings of the victim’s nose, lips, tongue, and ears. During the internal exam, she found soot extending past the trachea and into the bronchi. Based on the presence of soot in those body recesses, Dr. Roe concluded that the victim was alive and breathing when the fire started.

Dr. Roe was then asked about the blood samples sent to Regions Hospital for carbon-monoxide testing. She testified that the dog’s blood measured 85.3% and that the sample taken from the victim measured 61.4%, a lethal concentration.

Dr. Roe concluded that, based on the autopsy and test results, she believed that the victim died of asphyxia, or lack of oxygen due to carbon-monoxide poisoning caused by the fire. Dr. Roe acknowledged that while the head injury could have caused death, she did not believe it did so in this case, given evidence that the victim was alive when the fire started, had a lethal carbon-monoxide level, and showed incomplete brain herniation.

On cross-examination, Dr. Roe acknowledged that the head injury would have caused unconsciousness and profuse bleeding and that the victim was already in the process of dying from the head injury. Dr. Roe further acknowledged that she did not know who performed the carbon-monoxide testing or the type of machine on which the testing was done, and that people have survived carbon-monoxide poisoning at levels greater than the levels measured here.

The defense presented expert testimony from neurologist Dr. David Ketroser. He testified that the victim suffered a traumatic head injury that was consistent with falling backwards and hitting a cement laundry tub. In addition, Dr. Ketroser testified that all herniations of the brain are partial and that there is no such medical term as a “complete” herniation. He claimed that it was not possible to render a medical opinion that a head injury did not cause death merely because the herniation was not complete. Dr. Ketroser further testified that the victim’s death was likely caused by both the head injury and carbon-monoxide poisoning, and that it was not possible to limit the cause of death to only one source with any degree of medical certainty. Finally, Dr. Ketroser was asked about methods for testing for carbon-monoxide poisoning and he opined that the method used here failed to provide a reliable measurement.

Appellant testified that on the morning of the fire, he and his wife were in the basement having a discussion when he became annoyed with her and pushed her with his forearm. He testified that she took a step back, bumped into a plastic rack used for drying clothes, and collapsed the rack, causing her to fall and hit the back of her head against the laundry tub. Appellant testified that his wife took a few deep breaths, went limp, and did not appear to be breathing or have any pulse. Appellant believed that she was dead.

Appellant testified that he panicked and decided to burn the house to destroy its contents and his wife’s body. He poured accelerant on everything in the laundry room, lit a fire on a shelf, and left. He never considered calling for help or going to the police and tried to act as if nothing was wrong. He conceded that he had committed arson and had caused his wife’s death.

During closing arguments, the defense argued that in order to convict appellant of first or second-degree felony murder, the jury had to find that it was the “act of arson that caused the death.” The defense argued that if “you’re not convinced beyond a reasonable doubt that carbon-monoxide poisoning [was] the actual cause of death ... then you pass on to manslaughter.”

The jury found appellant guilty of second-degree unintentional felony murder. The jury then heard arguments and was instructed on the aggravating sentencing factors of particularly cruelty to and particular vulnerability of the victim. The jury returned a special verdict finding that appellant had acted with particular cruelty. The district court thereafter sentenced appellant to a double upward durational departure of 300 months.

ISSUES

1. Did the district court commit reversible error by allowing Dr. Roe to testify regarding the laboratory test results and to render an opinion based in part on those results because admission of that evidence violated appellant’s right to confront witnesses?

2. Did the district court err or abuse its discretion with respect to the other issues raised by appellant?

ANALYSIS

I.

“[E]videntiary rulings — including the admission of chemical or scientific test reports — are within the discretion of the district court and will not be reversed absent a clear abuse of discretion.” State v. Caulfield, 722 N.W.2d 804, 308 (Minn.2006) (holding that Bureau of Criminal Apprehension (BCA) laboratory report identifying a substance as cocaine was testimonial and implicated defendant’s right to confrontation). “But whether the admission of evidence violates a criminal defendant’s rights under the Confrontation Clause is a question of law [which] this court reviews de novo.” Id.

Testimonial Nature of Laboratory Test Results

The threshold question in any Confrontation Clause analysis is whether the disputed evidence was “testimonial” under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Here, the parties and the district court initially discussed whether the test results were properly admissible under Minn. R. Evid. 703(a) (allowing expert to rely on facts or data if they are of types “reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject”). The state also characterized the laboratory test results as admissible hearsay under the business records exception, Minn. R. Evid. 803(6).

The rules of evidence, however, cannot justify admission of evidence that otherwise violates the Confrontation Clause. See Caulfield, 722 N.W.2d at 310 (rejecting argument that laboratory report is not testimonial because it falls within hearsay exception for public or business records). Thus, the constitutional issue of whether admission of the laboratory test results through the testimony of Dr. Roe violated appellant’s confrontation rights under Crawford takes precedence over the issue of whether the laboratory test results are admissible under the rules of evidence.

The state has the burden to prove that the laboratory test results are not testimonial. Caulfield, 722 N.W.2d at 308. The critical determinative factor in assessing whether a statement is testimonial is whether it was “prepared for litigation.” Id. at 309.

Here, the laboratory test results were obtained at the request of the medical examiner, Dr. Roe, during an autopsy that occurred in the course of a homicide investigation. The results were specifically relied on by Dr. Roe in reaching her conclusion on the cause of death. And the information was relayed to the jury in lieu of testimony at trial. See id. (concluding that BCA laboratory report “bears characteristics of each of the three generic descriptions” of testimonial evidence offered by Crawford).

The Crawford Court outlined three general formulations of what should be considered “testimonial” statements. Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354. But neither the Supreme Court nor our state supreme court has adopted a “comprehensive definition of ‘testimonial.’ ” Caulfield, 722 N.W.2d at 308. In the absence of further guidance, we are left with the holding in Caulfield that a BCA laboratory report identifying a substance as cocaine was testimonial. Id. at 310. We note that the medical examiner has duties independent of the police and of criminal investigations generally, unlike the BCA. See Minn. Stat. § 390.11, subd. 2 (2006). But here a homicide investigation had been started in which the carbon-monoxide testing would likely provide relevant evidence, although not evidence as clearly decisive as the drug testing in Caulfield.

Moreover, despite the state’s argument that the laboratory technician was nonad-versarial and removed from the prosecuto-rial process, Caulfield specifically rejects an approach that focuses on the intent of the declarant. Caulfield, 722 N.W.2d at 309. And despite the state’s argument that the laboratory tests were not conducted in anticipation of litigation, the blood samples were sent to the laboratory after police and the medical examiner had preliminarily determined that arson had occurred and after appellant had been arrested as a suspect. Dr. Roe acknowledged that the toxicology request form that she submitted along with the samples included chain-of-possession notes, that the laboratory technician performing the tests would have known that the medical examiner’s office was a medical-legal operation, and that the laboratory technician would have known that the test results might have legal implications. Dr. Roe’s testimony regarding the laboratory test results was introduced as a basis for her medical opinion that the cause of death was carbon-monoxide poisoning. We therefore conclude that the laboratory test results admitted through the testimony of Dr. Roe were testimonial in nature.

Waiver or Forfeiture of Right to Confrontation

The state insists that appellant “waived” or “forfeited” the right to cross-examine the laboratory technician by fleeing and evading prosecution for four years. The state notes that it could not produce the laboratory technician to testify because the hospital, following its normal policy, destroyed the test records after two years. Indeed, the district court agreed that the records would have been available at trial had appellant not fled the state.

Under certain circumstances, usually involving trial strategy, a defendant may waive the right to confront adverse witnesses by voluntarily leaving the courtroom once trial has commenced. State v. Worthy, 583 N.W.2d 270, 277-78 (Minn.1998). But waiver requires the voluntary relinquishment of a known right; we cannot conclude that appellant knew he would lose his right to confront the laboratory technician because the laboratory reports and underlying raw data would be destroyed after two years. See Caulfield, 722 N.W.2d at 313. And while the doctrine of forfeiture by wrongdoing continues to apply to Confrontation Clause violations under Crawford, that doctrine is usually applied in cases involving witness tampering or some other type of threats to witnesses to procure their unavailability. See Caulfield, 722 N.W.2d at 311-12; see also State v. Alvarez-Lopez, 136 N.M. 309, 98 P.3d 699, 703-05 (2004), cert. denied, 543 U.S. 1177, 125 S.Ct. 1334, 161 L.Ed.2d 162 (2005) (defendant did not forfeit his right to confrontation under Crawford by absconding from state and remaining fugitive for seven years).

The loss of evidence from a delay in trial is often predictable. See generally Black v. State, 725 N.W.2d 772, 776 (Minn.App.2007) (holding that motion to withdraw guilty plea was untimely when made more than two years later, given that drug evidence had been destroyed and witnesses’ memories had likely faded). Thus, a defendant may be deemed to forfeit his right to confrontation by absconding, such as when there is a terminally ill witness. Here, however, while appellant left the state after being indicted, there is no indication that he knew Regions Hospital would destroy its records after two years. We therefore reject the state’s argument that appellant has forfeited or waived his right to confront the laboratory technician by fleeing and evading trial for four years.

Harmless Error Analysis

The harmless error doctrine continues to apply to violations of the Confrontation Clause. Caulfield, 722 N.W.2d at 314. The “constitutional harmless error analysis is not a matter of analyzing whether a jury would have convicted the defendant without the error, but rather whether the error reasonably could have impacted upon the jury’s decision.” Id. (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997)). Thus, the analysis requires more than just consideration of the sufficiency or strength of the other remaining evidence of guilt.

In determining “whether a jury verdict was surely unattributable to an erroneous admission of evidence,” we must consider the “manner in which the evidence was presented, whether it was highly persuasive, whether it was used in closing argument, and whether it was effectively countered by the defendant.” State v. Al-Naseer, 690 N.W.2d 744, 748 (Minn.2005). A final factor to consider involves whether other evidence of guilt was overwhelming. Id.

With regard to the first factor, the manner in which the evidence was presented, the trial in this case was lengthy, with a “plethora of other evidence.” Caulfield, 722 N.W.2d at 314. Nevertheless, the test results were a key part of Dr. Roe’s testimony and formed the basis, in part, for her opinion that the victim died from carbon-monoxide poisoning, not from the head injury she received when she was pushed by appellant. As with the BCA report involved in Caulfield, the laboratory test results were “presented in a way that was designed to secure the state’s verdict.” Id.

With respect to the second factor, the evidence was “highly persuasive” and not merely cumulative of other evidence presented at trial. As with the BCA test results in Caulfield, the laboratory test results at issue here have “the appearance of being conclusive proof’ of the cause of the victim’s death. Id. at 315.

As to the third factor, the test results were discussed by the state in its closing argument to the jury. The state cited the test results, along with the other physical observations made by Dr. Roe, as support for the conclusion that the victim was breathing and alive for at least 10 minutes after the fire was started. As in Caulfield, measured by these first three factors, “it cannot be said that the verdict was surely unattributable to the erroneous admission” of the laboratory test results. Id.

Finally, we are left with the fourth factor, whether the evidence was effectively countered by the defense, and the fifth factor, whether the other evidence of guilt was overwhelming. Although unrebutted evidence has greater impact on the verdict, the defense here vigorously attacked Dr. Roe’s reliance on the laboratory test results by cross-examining her, comparing the questionable nature of the laboratory tests conducted by the hospital with the safeguards and protocol followed by the BCA analyst and by the fire marshals, and presenting the testimony of Dr. Ketroser. During closing argument, the defense spent substantial time discussing and attacking the reliability of the laboratory test results. The test results became a central and critical focus of the defense, which argued that if the state did not prove that the victim died from carbon-monoxide poisoning, then the jury must find appellant not guilty of felony murder and guilty of some lesser offense.

The state argues on appeal that the defense focus on the cause of death was irrelevant because the jury was properly instructed that it need only find that appellant caused the victim’s death while “committing or attempting to commit” arson. The state appears to be correct on the law. See State v. Nielsen, 467 N.W.2d 615, 618 (Minn.1991) (holding that felony-murder rule applies whenever felony and homicide are parts of one continuous transaction, and rejecting defendant’s argument that he should have been acquitted of felony murder because rape was afterthought to homicide and the autopsy did not disclose whether rape took place before or after death). But the prosecutor did not present this theory or make this specific argument to the jury, which was left with the jury instructions and with defense counsel’s insistence that a finding of death from carbon-monoxide poisoning and not from the head injury was necessary for a felony murder conviction.

With respect to the final factor, even if other evidence of guilt was overwhelming, that does not necessarily mean that the error was harmless. Caulfield, 722 N.W.2d at 316. Here, the laboratory test results became so critical to the defense and were so thoroughly discussed that they surely attributed to the verdict. While the jury could have reached the same verdict without the laboratory test results, that evidence surely influenced the verdict in some way. We therefore conclude that the error in admitting this evidence was not harmless and that appellant is entitled to a new trial.

II.

Given our decision to grant appellant a new trial, we need not discuss in detail the remaining issues raised by appellant. We nevertheless mention the sentencing issue to give some guidance to the district court on retrial.

At sentencing, appellant concedes that the district court followed the procedure endorsed by the supreme court in State v. Chauvin, 723 N.W.2d 20, 27 (Minn.2006) (holding that district courts have inherent judicial authority to impanel sentencing jury for purposes of departing from presumptive sentence). Appellant merely challenges the instructions given to the jury on the aggravating factor of “particular cruelty.” The district court did not provide the jury with a definition for “particular cruelty” and merely read the special verdict form, which tracked the language of the guidelines and the standard jury instructions, as follows: “The first [aggravating factor] that’s being submitted to you is whether the victim ... was treated with particular cruelty for which the defendant should be held responsible.” See Minnesota Sent. Guidelines II. D.2.b.(2); 10 Minnesota Practice, CRIM-JIG 8.01 & Spec. Verdict Form (2006). This instruction fails to provide sufficient guidance to the jury.

When trial judges relied on their collective experience or collegial knowledge of typical cases, a definition of “particular cruelty” was unnecessary. See State v. Smith, 541 N.W.2d 584, 589-90 (Minn.1996). With sentencing juries, however, “particular cruelty” is a relative term that requires a uniform meaning irrespective of the jurors’ lay understanding of the term. The failure to define “particular cruelty” raises a multitude of problems, as identified in a recent law review article. See Kevin S. Burke, State v. Dettman: The End of the Sentencing Revolution or Just the Beginning?, 33 Wm. Mitchell L.Rev. 1331, 1341-44 (2007).

While we agree with appellant that the instruction given to the jury needs to precisely define “particular cruelty,” we do not agree with appellant’s proposed instruction, which requires conduct that is done with intent to harm. See State v. Bicek, 429 N.W.2d 289, 292 (Minn.App. 1988), review denied (Minn. Nov. 23, 1988). In general, a defendant’s conduct must be significantly more cruel than that usually associated with the offense of which he was convicted. See, e.g., Holmes v. State, 437 N.W.2d 58, 59 (Minn.1989) (departure unjustified when conduct not significantly different from that typically involved in crime); State v. Hanson, 405 N.W.2d 467, 469 (Minn.App.1987) (departure not warranted when defendant did not commit manslaughter in a manner significantly more serious than a typical manslaughter). In the past, judges have imposed upward sentencing departures based on “particular cruelty” when the defendant’s conduct included threats, degradation of the victim, or the gratuitous infliction of pain. See, e.g., Smith, 541 N.W.2d at 590. Courts have also found “particular cruelty” to exist when a defendant leaves the victim to die alone without notifying emergency personnel, sets fire to a victim who is still alive, or attempts to conceal or destroy a victim’s body. See, e.g., State v. Folkers, 581 N.W.2d 321, 327 (Minn.1998); State v. Jones, 328 N.W.2d 736, 738 (Minn.1983); State v. Gurske, 424 N.W.2d 300, 305 (Minn.App.1988); State v. Dircks, 412 N.W.2d 765, 767-68 (Minn.App.1987), review denied (Minn. Nov. 24,1987).

We acknowledge the possibility that a new criterion may be necessary, one that is easily defined and readily understood by jurors. But we decline to provide an exact definition of the phrase “particular cruelty,” and leave the matter to the district court and attorneys in this matter should the issue arise again.

DECISION

Because the laboratory test results were testimonial under Crawford and because their admission through the testimony of Dr. Roe violated appellant’s right to confront the laboratory technician who performed the tests, the district court erred in allowing admission of this evidence. Moreover, because the erroneous admission of this evidence was not harmless beyond a reasonable doubt, appellant is entitled to a new trial. We therefore reverse the conviction and remand for a new trial.

Reversed and remanded.

      . We have recently taken a similar position in an unpublished opinion where we reversed an upward departure and remanded for resen-tencing because the district court instructed the jury that there "is no legal definition for the term[ ]" "particular cruelty.” State v. Olson, 2006 WL 3490280, at *5-6 (Minn.App. Dec.5, 2006), review denied (Minn. Feb. 20, 2007).