and i want to just hark briefly about the summary judgment standard as you know summary judgment is not the time for resolving fact disputes determining credibility or weighing the evidence it is an opportunity to consider peterson's evidence in the most favorable light to draw all justifiable inferences in her favor when her evidence contradicts the employer's evidence then her evidence needs to be believed and the question alternately is whether under this minnesota whistleblower act case there's work for a jury to do and we respectfully submit there's work for a jury to do here there are two disputes the fact that the district court resolved against  peterson the first is whether or not the employer already knew about them and the conduct that she reported and the second is whether or not the conduct she reported implicated a violation of law or ru adopted pursuant to law or of professional ethical clinical standards and i'd like to talk about each of those the minnesota wisdom of party second what what is your contention that rule of law ethics or some standard was violated by what happened here we contend that this is conduct first of all i mean it's conduct about mishandling blood samples and packaging and transporting blood samples is not just left to the discretion of the guys in the mail room it is regulated by the department of transportation and the staff at the employer were trained on using a department of transportation d v d on how to properly package what was violated specifically was rules created by spector of the lab pursuant to those regulations that required the use of a particular box and prohibited the use of a different box and that required a certain amount of ice to be placed in the box and the reason for all of this is that the sample needed to stay below a temperature of forty six degrees in order for the lamb to be able to return valid results so the first violation is missing packaging those blood samples so that their integrity might be compromised additionally the violations that we're concerned about are forty two c f r but the not return an accurate result in addition dialysis is heavily regulated by the centers for medicare and medicaid services because it is funded by medicare and as a result there are c f r provisions that apply we maintain one is forty two c f r for ninety four point eight another is for ninety four point nine day these speak to requiring a facility to individually a patient needs and to ensure that they're receiving dialysis treatment based on their specific individual needs there's a lot of testimony in the record that dialysis is not a one size f proposition that it depends on medications being administered depending on what a patient's blood work shows there's also two it's really on the record but a very small difference can make a big difference in terms of patient health but it can cause a heart attack that it can cause death and that's one of the reasons why was peterson was concerned when blood samples of her employer were not properly packaged in addition to the cea far there's also actually another c f r provision for ninety four point six to which speaks to the operation of dialysis equipment dialysis equipment needs to be operated in accordance with the manufacturer's requirements and that means having accurate lab results so that the medication can be properly titrated if the medication isn't if the lab results are accurate the medication might be off if the medication is off the equipment can't be properly operated and finally there are in addition to the handling of the blood there's a second layer of whistleblowing that's going on here the has to do with communication when mrs peterson reported the blood problem to her supervisor the clinic manager and to the area manager the area manager told her don't tell the doctor we don't tell the doctors we're going to handle this in the clinic and she reasonably took that to mean that the medical director was not going to be informed the patients doctors were not going to be informed one fact we have testimony on the record that the patient's doctors would want to know about blood not being properly handled and the communication issue that is involved in suppressing her telling the doctor violates additional regulations that violates the on end stage renal dialysis course survey pro which is the c m s directions on how facilities are evaluated requires a culture of safety that encourages open communication where there's no retaliation or fear of retribution it also implicates the minnesota nurse practice act which is not necessarily something that the facility is subject to but the two individuals the quick manager and the area manager or both nurses and the nurse practice act prohibits any nursing practice that may create an unnecessary danger to a patient's life health or safety you don't need to have an actual injury just an unnecessary danger it also prohibits knowingly providing false or misleading information that is directly related to the care of the patient and so it is our position that both you know i'm not telling the doctors about the blood samples and prohibiting the staff from telling the doctors about the blood samples is directly related to the care of the patient we have testimony from dr hunt that this is information she would want to know and so that we we maintain also violate its potential violates the minnesota nurse practice act in addition the district court also concluded that the employer already knew everything and so there was no whistle left a blow and i would respectfully submit that that finding was in error the issue here is good faith and so the focus isn't on what the employer knew its on what the employee knew what the real reason that she came forward was to report a violation or to protect patient safety and here we have plenty of evidence that that was the case obviously at some point the court does have to declare the whistle is blown but in this case there were several reports over a very short period of days and all of them were attempts to make sure that the the doctors knew the versus back come the same employee reported violations three times four times actually on in the space of a few weeks and the first three of them were considered to be good faith reports protected by the act they were reported to different people  there are two scenarios that we would submit applied to whether or not the employer knows here the first is it's the conduct is protected by the act if the first report goes nowhere and that's what we're saying happened here peterson's evidence suggests that she reported to her clinic manager who said it's taking care of she reported to her the area manager who said we don't tell the doctors and at that point it was clear that the the information was not going to go any further it was not going to go the doctors it was not going to go the patients of the medical directors and when my happens it's appropriate the minnesota supreme court has recognized for an employee to go outside their chain of command and in fact that's exactly ms peterson did and the very next morning she called the employee access line and she reported both the mishandling of the blood and the fact that she had been told by the area manager not to tell the doctors so that is a report that's protected within also it is permissible a second or a subsequent report is protected if there's a new violation and again the district court here really focused only on the blood and not on the communication and said well because they knew about the blood there was no whistle after blow in fact what was peter's and years of reporting was not just the blood but a new violation the fact that her supervisor had told her you can't tell the doctors don't tell the so peterson first went to her chain of command and then she went she reported to a patient care conference and then she went outside of her chain of command and from this evidence a jury could find that the conduct she was reporting implicated a law or a rule a professional clinical of a standard and also could find that the employer did not already know about it such that there was no music left and that was all i see my time is counsel my name is mark american hatch and i'm here today on behalf of biomedical applications and of minnesota that it sometimes operates under the trade name for serious and this is an employment case that involves the routine application of well settled minnesota whistleblowing law as interpreted both by the minnesota supreme court this court and the trial court threw out minnesota to a set of undisputed facts judge trial correctly decided this case on public purpose or the purpose of exposing illegality in making her alleged communications at the time she did or that the key action she reported it proven violated any identified legal standard in fact a judge trial chosen to do so the undisputed facts also showed that there was no adverse action against ms peterson and attributable to the alleged whistle blowing activity and in fact that her own decisions resulted in decision not to work any longer at percentages those issues are adverse action and causation are not part of this appeal right now but they are within the reach of the court should they choose to reach it as a matter of law the decision made by judge should be  d the undisputed facts are clear and it's important i think to keep them in order i miss peterson was working as a dialysis nurse in the shakopee clinic as of april two thousand and twelve she had performance issues and those were spirit a patient had complained because she called her at home and asked her to baker a pie and some cookies a patient had complained that she had slapped and abused him that she had used the wrong thing those aren't really what this case is on the night of april eleventh blood samples had been drawn during the day and they were packaged in the spectra package to be sent to the spector lab spector has two different kinds of package one goes to one address one goes to another address one goes one contains mostly water one contains mostly blood the packages in question were put into the wrong box and they were not picked up by the u p s man or the federal express man whoever the overnight delivery person was so that's the night of april eleventh the morning of april twelfth this is the second fact at about five thirty in the morning one of the patient care technicians find that finds that last night's package has been the refrigerator it's still cool there's no evidence that the blood was ever warm when she sends it to the refrigerator the clinic also draws blood on april twelfth that evening the blood package in it sent out to the to anyone until four days later so this is six days old news before ms peterson even mentions it so ms kinsell learns and says what should we do and she says we'll wait to see what the lab results are because of the lab results are skewed then we know we have a problem and if the lab results are are within the normal range for the patients we can presume we do not have a problem and we can avoid drawing more blood from patients because it's an invasive procedure the is to minimize that she also directs samantha in the manager of the clinic in shakopee to contact the lab to arrange for training for the staff so they understand how to do this correctly and also to find out what to do about the samples and she calls the wrong lab she calls the line a hospital lab initially and learns that blood can be out forty eight to seventy two hours if it's a child without a problem an april fourteen this is the fourth act the next day and this is under spewed the lab results come back all of the blood samples drawn on april eleventh the date with the packaging issue are within the normal range for the patients involved there is no problem there is one blood sample drawn on april twelfth the next day that is out of range so this was properly package properly cared for no problem with the packaging it's just a result out of range so that's what we know in april fourteenth the fifth fact is on april seventeenth three days later ms in tells ms peterson that she has been transferred from the shock clinic because of her performance problems because she is going to be working with a supervisor with whom she is closer and has more experience as a supervisor than museums the sixth fact is after that meeting there is a patient care meeting that involves ms peterson and dr hunt now the way the dialysis clinics work the doctors are not employed by the clinic and the clinics will service patients of more than one doctor so dr hunt not the medical director who is another physician but she is a doctor who's patients are seen at the clinic during this meeting ms peterson tells dr hunt that in fact the incident happened with the blood supply on the eleventh and the twelfth and dr hunt orders not that the eleventh test be redone dr hunt says the test results came back out of range from april twelfth let's redo that test to see if it's right but she does nothing about april eleventh and she does nothing to alert the patients from april eleventh that there's anything out of order with the blood sample again that's an undisputed fact after that ms peterson then report what follows from that is they retested the blood results from the april twelfth draw and learned whether it was the person people on dialysis will often have spikes of their bod doing things that the dialysis doesn't catch and it may be the treatment regime or the drug regime they're on is no longer working so basically they retest the person whose blood result was abnormal but dr hunt is not order any retesting of the samples that were drawn  whom are already well aware of it and tower that hey look this has already been taken care of we looked at it it was properly cool we sent it we got the test results they showed no problems no abnormalities peterson then goes out on an eprom illegally because at the same time the investigation about the patient abuse and she was also impersonating another manager in some telephone messages and written communications again issue was detected april seventeenth is when ms peterson first mentioned it to anybody after it had been reported and dealt with by at least five or six people when she reported it to dr hunt dr hunt ordered no new ta no new events as related to the april eleventh patients and in fact that this testimony about what was said regarding sharing information with the doctor ms can so and mr peterson have a disagreement ms c account was you can't criticize the p c t in front of the doctor you should tell us if there's a problem with the p c t ms peterson says otherwise and we don't need to get into that though because that only happens on april they are not basically there is no established long there is no established standard there is no established anything as judge trial found the creates a standard for dealing with blood in this way and there's no standard that was violated and as to which she has any facts to show her claim or allege of violation ms peterson needs to identify one of these standards and if you look at them she's pointed to a bunch of general things about medicare that have nothing to do with the packaging and transportation of blood her expert is a dialysis nurse not a blood expert there is no standard that's been pointed to even that you could look at and say show me where  reads this way the law is clear that showing a violation of internal rules or policies is not a violation of law or an ethical standard but if your honor it has to be good faith it has to be first of all you have to bow the whistle judge compound she didn't blow the whistle because it was known so it's not a good faith report second it was done we submit on the record to protect yourself against job problems not to expose case and the kid well case the last of the hitchcock case that in fact your honor wrote goes through and talks about the fact if true must violate the law and not simply violate some sort of internal standard or or best practice and it has to be a violation of the law we submit here that what she complained about didn't violate any of those things because if you look at the under spirited facts as to what happened even if you take what what she reported there wasn't a violation of law there so what does she claim happened she claims the blood was packed in the wrong package but she can't point to anything other than that as a problem and that issue was addressed so what is the legal standard that is violated by putting the blood in a packet and frankly there's no showing that it is absolutely the wrong package there's a test two packages the test where as one goes to one address one goes to another address one is intended primarily for water they're both cool and this one had the right amount of ice in it and it was not and eventually discovered so if if you come back to this particular case and if you look at where is the legal standard that's been violated there isn't one they haven't they pointed to the nursing act that doesn't have a standard for the packaging applied they they point to the issue involving the medicare regulations that doesn't have a standard involving blood dr hunt the physician did not report any of this to patients and did not direct that that be done there is no legal standard out there that requires that a patient be advised of the way in which their blood is shipped from a doctor's office or a medical facility to a laboratory there just isn't the fact that the manufacturer has regulations and best practices and guidelines those are not legal standards those are simply recommendations and that's what judge trial found he looked and he looked he looked at all of the things that were identified by the plaintive as potential sources of legal standard and one by one he went through and explained why it is not in fact a legal standard that was violated he also pointed out and i i think these two grounds stand together that there was no whistle bone here there was nothing that ms peterson brought forward that was not already well known to the company this is like the pope's versus my crown case where the court said you're talking about an issue that was dealt with repeatedly the company knew about had an approach to and as a matter of law this is not a protect there's no reasonable jury here that could find illegal retaliation because of whistle blowing instead of whistle blowing what we see is performance and behavior problems a packaging year that was addressed and fixed without harm to any patient whatsoever it was known and fixed before the plaintiff's initial report there's no whistle blowing that took place because of map it was not for a public person it was to deflect attention from a performance problems and there's no legal violation identified we respectfully request th wanted the employer's customer to know that there were problems with these windshield wiper modules and yet at the time the employee reported it she knew that the customer already knew and so that's why it was a problem with the employee's good faith that's not the situation that we are facing here at the time she reported this peterson testifies she didn't know what the employer knew specifically she didn't know what the lab results said she was sitting in a care conference and she's her immediate supervisor the clinic manager is in a conference with her in the doctor and the subject comes up because they're looking at lab reports and some of them are skewed and ms peterson thinks you know wow that could be some of the roof from the box that we had that was left out could that be the reason and so that was kind of what prompted her to raise it at that particular point as opposed to earlier and then her supervisor the clinic manager well we're taking care of it we've got the lab results back and we're done the problem and by the way many of the fact that counsel has mentioned it and described as undisputed are in fact disputed one of the things we say is disputed  what exactly spector was told we maintained they were never told that anything was wrong that blood was ever left out in the wrong box without enough ice pack without enough insulation instead what happened was the clinic manager called different lab a hypothetical question about how long properly packed blood could be left out and then called spectra to arrange a training so spectra never got the word that anything was wrong with this particular shipment they never had an opportunity to control for the variables that this blood might have exceeded forty six degrees and as a result it's great belair results came back in appeared to be within the range but they were not reliable and mr peterson had a good faith reason for having questions about whether they were reliable and whether she could permissibly titrate medications based on those results that also gave her reason to believe that the doctors for the patients ought to be informed that this had happened to their blood samples she did not know at the time she was in the care conference that the particular sample that they were looking at turned out to be a sample from a different day because the two days were packaged together and sent off to the lab but the minnesota whistleblower act protects her even if she's wrong on the facts she had a good faith reason for suspecting something was wrong with some of that blood and that's what she reported and as long as that report would potentially violate the law or was passed pursuant to law and in this case integrity of specimens so for what it's worth i think that that has been adequately established we also see that the differences in packages are much more than just having the wrong way will they were different packages and spectra specifically instructed not to use the one that was used for shipping blood that's in the appendix i believe it's around page four hundred were spector has its instructions to people so basically the employer there is relying on its own version of the fact today as it did in bringing its motion for summary judgment we would encourage you to look at news pearson's version of the facts there are are more than enough facts here to determine that she reported this because she believed it was a violation of law and clinical standards and rules and she reported it because she was concerned about patient safety that's what's necessary for good faith she also did not know at the time she reported it that the employer had  knew knew about it and had already received lab results back and when she did report it that was when she had a second violation which was that she was told not to tell the doctors amount was the subject of her future reports thank you your hon