COMPLIMENTARY MINNESOTA FALL 2020 QUALIFIED IMMUNITY: PAST AND RECENT DEVELOPMENTS AT THE (UNCERTAIN?) FUTURE INTERSECTION OF MINN. STAT. § 541.051 AND PRODUCTS LIABILITY ACTIONS STAYING POWER: WHAT KEEPS WOMEN PRACTICING LAW? MDLA OFFICERS and DIRECTORS PRESIDENT Matt Thibodeau The President’s Column 302 W. Superior St. #800 By Matt Thibodeau 3 Duluth, MN 55802 (218) 722-0073 Articles from Past Issues 4 VICE PRESIDENT Anthony J. Novak 30 E Seventh St #2800 Join a Committee 4 St. Paul MN 55101 (651) 312-6500 Qualified Immunity: Past and (Uncertain?) Future TREASURER By Andrew Wolf and Timothy Sullivan 5-10 Tammy Reno 610 Ottawa Avenue North Minneapolis, MN 55422 Recent Developments at the Intersection of Minn. Stat. § (612) 522-2040 541.051 and Products Liability Actions SECRETARY Brendan Tupa By Louise A. Behrendt 11-16 701 Xenia Ave. S. Ste. 220 Golden Valley MN 55416 Staying Power: What Keeps Women Practicing Law? (763) 546-8444 By Lauren Nuffort, Kelly Sofio, and Elizabeth Sorenson Brotten 17-20 PRESIDENT EMERITUS Benjamin D. McAninch 127 S. Second St. MDLA Congratulates 22 Mankato, MN 56002 (507) 345-1166 DRI Corner DIRECTORS By Richard Scattergood 23 Chris Angell Tessa McEllistrem St. Paul Lake Elmo Stephanie Angolkar Jessica Ommen Bloomington Appleton Rachel Beauchamp Michael Rowley Minnetonka Minneapolis Steve Erffmeyer Amie Penny Sayler Minneapolis Minneapolis Andrea Hoversten Elizabeth Sorenson St. Paul Brotten Cally Kjellberg-Nelson Minneapolis St. Cloud Katie Storms Minneapolis PAST PRESIDENTS 1974|75: Richard R. Quinlivan (deceased) | 1975|76: Paul Q. O’Leary | 1976|77: G. Alan Cunningham (deceased) | 1977|78: Richard P. Mahoney | 1978|79: William T. Egan (deceased) | 1979|80: James D. Cahill (deceased) | 1980|81: Clyde F. Anderson | 1981|82: George S. Roth (deceased) | 1982|83: Tyrone P. Bujold | 1983|84: Martin N. Burke (deceased) | 1984|85: Richard L. Pemberton | 1985|86: Lynn G. Truesdell | 1986|87: Gene P. Bradt (deceased) | 1987|88: Phillip A. Cole | 1988|89: Thomas R. Thibodeau | 1989|90: Former Chief Justice Eric J. Magnuson | 1990|91: John M. Degnan | 1991|92: Lawrence R. King (deceased) | 1992|93: Michael J. Ford (deceased) | 1993|94: The Honorable Dale B. Lindman (deceased) | 1994|95: The The Editorial Committee welcomes articles for publication in Minnesota Honorable Steve J. Cahill | 1995|96: Theodore J. Smetak | 1996|97: Rebecca Egge Moos | 1997|98: Richard J. Defense. If you are interested in writing an article, please contact one of Thomas | 1998|99: Nicholas Ostapenko | 1999|00: The the Chief Editors or call the MDLA office at 651-290-6293. Honorable John H. Scherer | 2000|01: Michael S. Ryan | 2001|02: The Hon. Kathryn Davis Messerich | 2002|03: Steven J. Pfefferle | 2003|04: Leon R. Erstad | 2004|05: CHIEF EDITORS EDITORIAL COMMITTEE Steven R. Schwegman | 2005|06: Gregory P. Bulinski | 2006|07: Patrick Sauter | 2007|08: Paul A. Rajkowski | 2008|09: Kay Elizabeth Tuveson | 2009|10: Thomas Sean J. Mickelson Rachel B. Beauchamp Benjamin C. Johnson Marshall | 2010|11: Patricia Y. Beety | 2011|12: Mark A. Solheim | 2012|13: Lisa R. Griebel | 2013|14: Mark A. Jeffrey R. Mulder Jonathan C. Marquet João C. Medeiros Fredrickson | 2014|15: Dyan J. Ebert | 2015|16: Richard Andrea E. Reisbord C. Scattergood | 2016|17: Troy A. Poetz | 2017|18: Jessica E. Schwie | 2018|19: Steven M. Sitek | 2019|20: Benjamin D. McAninch VOLUME 41, ISSUE 3 • FALL 2020 EXECUTIVE DIRECTOR Minnesota Defense is a regular publication of the Minnesota Defense Lawyers Association for Margaux Meyer the purpose of informing lawyers about current issues relating to the defense of civil actions. 1000 Westgate Drive, Suite 252 St. Paul, MN 55114 All views, opinions and conclusions expressed in this magazine are those of the authors, and do (651) 288-3433 not necessarily reflect the opinion and/or policy of the editors, the Minnesota Defense Lawyers www.mdla.org Association or its leadership. e-mail: [email protected] The publication of any advertisement is not to be construed as an endorsement by Minnesota Defense, the Minnesota Defense Lawyers Association, or its leadership, of the product or service offered. All inquiries should be directed to MDLA, 1000 Westgate Drive, Suite 252, St. Paul, MN 55114. © Copyright 2020 MDLA. All rights reserved. 2 MN DEFENSE s FALL 2020 THE PRESIDENT’S COLUMN Matt Thibodeau THIBODEAU, JOHNSON & FERIANCEK, PLLP I am excited to be MDLA’s president and look forward to Do you remember the ALS Ice Bucket Challenge on social serving our organization this year. My earliest memories of media? The ALS Ice Bucket Challenge swept the globe in the MDLA are attending large gatherings with my father 2014 as millions of people posed and posted pictures on Tom (who served as the MDLA President from 1988-1989) social media of themselves being doused with buckets of and my mother Mollie for mid-winter at Quadna Mountain ice-cold water. in Hill City and the Trial Techniques Seminar (TTS) in Tower Hall at the College of St. Scholastica in Duluth. I The George Floyd Challenge imitated the ALS Ice Bucket remember stories of multi-week trials, cross examinations Challenge. Fortunately, it only included some. Sadly, it of experts, camaraderie and lots of laughter. included Minnesotans. In the George Floyd Challenge, I saw white, teenage boys from Minnesota kneeling on each This year the pandemic cancelled our largest event — other’s necks posing and posting pictures on social media. TTS in Duluth. While the pandemic may continue to Smiling. impact our large gatherings, the MDLA still provides us benefits in our smaller, efficient committee meetings. Our As we watched the images on television and in the organization has 500 of the best civil defense lawyers in newspaper, we started talking about the events as a Minnesota actively engaged in 19 committees — please family, trying to explain to children ages 7 and 9 what we join one! were seeing. It was uncomfortable. We continued talking throughout the summer. Eventually, my 7-year-old said: My first committee involvement was MDLA’s Diversity “when are we going to be done talking about this?” I Committee. As is often the case, I joined with the intention didn’t know the answer. of giving to our organization and ended up receiving. I received perspective and insight from my MDLA The moment of silence at the Vikings opening game started colleagues. My committee involvement challenged me to the conversation in our house all over again. The kids explore areas that I never would have. For the first time, I couldn’t understand why everyone wasn’t supportive. We read Martin Luther King’s “Letter from Birmingham Jail,” continued talking. Again, it was uncomfortable. from 1963, in which he writes: During the summer, I didn’t know the answer to my “I must confess that over the past few years I have been 7-year old’s question about “when are we going to be done gravely disappointed with the white moderate…who talking about this?” Today, I still don’t know the answer. is more devoted to order than to justice; who prefers a negative peace which is the absence of tension to a positive But re-reading the “Letter from Birmingham Jail”, I do peace which is the presence of justice; who constantly says know that I need to talk about it with my kids. I can’t wait ‘I agree with you in the goal you seek, but I can’t agree with for a “more convenient season” to have the discussion. your methods of direct action’, who paternalistically feels As your President this year, my hope is that we can have he can set the timetable for another man’s freedom, who similar conversations as professionals and as people to lives by the myth of time and who constantly advises the create equitable outcomes for our clients, our organization Negro to wait until a more convenient season”. and Minnesota. Unfortunately, the pandemic hasn’t been the only difficult issue we have faced as a state and a Nation. I also watched Minnesota struggle with George Floyd. I watched and listened with my family. MN DEFENSE s FALL 2020 3 ARTICLES FROM PAST ISSUES JOIN A COMMITTEE Members wishing to receive copies of articles from past MDLA committees provide great opportunities for learning issues of Minnesota Defense should forward a check made and discussion of issues and topics of concern with other payable to the Minnesota Defense Lawyers Association in members in similar practices. Activity in committees can vary the amount of $5 for postage and handling. In addition to from planning CLE programs, to working on legislation, to the articles listed below, articles dating back to Fall ‘82 are informal gatherings that discuss updated practice information available. Direct orders and inquiries to the MDLA office, or changes in the law. Serving on a committee is one of the 1000 Westgate Drive, Suite 252, St. Paul, MN 55114. best ways to become actively involved in the organization and increase the value of your membership. Summer 2020 COVID-19 in the Workplace — An Occupational Disease If you would like to join a committee’s distribution list, please Amy M. Byrne update your member profile on mdla.org specifying the The Rise of Modular Construction: Common Legal Issues appropriate committee under the “Practice Type” section. Janet G. Stellpflug, John F. Thomas and Eric H. Chadwick You will be automatically added to the distribution list. Why Women Want: An Analysis of Addiction in Females Jessie Sogge To learn more about an MDLA committee, please visit www. mdla.org. Meeting times and dates for each committee are Spring 2020 listed online. Mandatory Retirement Age Requirements Hannah Felix Committees available include: When Worker’s Compensation and Tort Law Collide Elizabeth Roff and Cindy Butler Same as It Ever Was: Lambertson Contribution in a Post-Fish v.