STATE OF MINNESOTA
IN COURT OF APPEALS
Lawrence C. Goeb,
Timothy Tharaldson, d/b/a Duluth Quality Pest Control,
Dow Chemical Company, d/b/a DowElanco,
Elliot Silberman, intervenor,
Filed August 3, 1999
Affirmed; motion to strike granted
St. Louis County District Court
File No. C3-92-602051
Nicholas Ostapenko, David M. Johnson, Johnson, Killen, Thibodeau & Seiler, P.A., 811 Norwest Center, 230 West Superior Street, Duluth, MN 55802 (for respondent Timothy Tharaldson)
Mark S. Olson, Cynthia J. Atsatt, Oppenheimer, Wolff & Donnelly, Suite 3400 Plaza VII, 45 South Seventh Street, Minneapolis, MN 55402; and
Robert D. MacGill, Joseph G. Eaton, Barnes & Thornburg, 11 South Meridian Street, Indianapolis, IN 46204 (for respondent Dow Chemical Company)
Earl Singh, 250 Second Avenue South, Suite 228, Minneapolis, MN 55401 (for respondent Elliott Silberman)
Considered and decided by Peterson, Presiding Judge, Short, Judge, and Shumaker, Judge.
Appellants Lawrence and Diane Goeb brought this action against respondents Timothy Tharaldson and Dow Chemical Company alleging that, as a result of exposure to the pesticide Dursban, they suffered personal injuries and property damage. The district court granted summary judgment in favor of respondents. On appeal, the Goebs argue that the district court erred in (1) excluding expert opinion testimony and Environmental Protection Agency (EPA) memoranda; (2) concluding that the claims based on inadequate warnings were preempted by the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) and denying the Goebs leave to amend their complaint to add a claim regarding Dow's duty to provide information about Dursban to the general public; (3) concluding that the Goebs presented insufficient evidence to support their claims of breach of warranty, fraud, and intentional misrepresentation; (4) denying the Goebs leave to amend their complaint to add statutory claims for consumer fraud, false advertising, and punitive damages; (5) concluding that Minnesota law does not recognize a claim for personal injury based on negligent misrepresentation; and (6) determining that the Goebs presented insufficient evidence to prove causation on their claims for damage to their furniture and other personal possessions. We affirm.
Alleging that Dursban was defective and unreasonably dangerous, the Goebs brought strict liability claims against Dow and Tharaldson. The Goebs also brought negligence claims against Dow and Tharaldson. They alleged that Tharaldson had negligently applied the Dursban in breach of express and implied warranties that the application would be performed safely in accordance with acceptable industry standards and practices. The Goebs alleged that Dow was negligent in manufacturing, marketing, and selling Dursban and in failing to provide adequate warnings and instructions for its use.
Dow moved for summary judgment on the ground that the Goebs' claims were preempted by the Federal Insecticide Fungicide and Rodenticide Act (FIFRA). The Goebs then sought leave to file a second amended complaint, alleging that Dow negligently manufactured, marketed, and sold Dursban and negligently failed to provide reasonable and adequate warnings and instructions for use, including instructions directed to the general public regarding avoidance, evacuation, exposure, and treatment. The Goebs also sought to add the following claim against Dow.
[I]mmediately following and during exposure, the [Goebs] did communicate with [Dow] and its representatives, and were provided with technical advice as to the appropriate response, including, but not limited to, specific advice that the product was not hazardous, toxic or dangerous, the premises in question was not hazardous, toxic or dangerous, and that the [Goebs] would safely remain in the house without problem. Further, that said Dow representatives did misrepresent the level of contamination within the house.
The district court granted in part Dow's summary judgment motion, dismissing all claims based on inadequate warnings and instructions on Dow's label affixed to its product, Dursban, on the ground that those claims were preempted by FIFRA. The district court granted the Goebs' motion to amend their complaint, except for allegations regarding the adequacy of warnings and instructions on the use of Dursban and allegations regarding Dow's duty to provide information concerning properties and propensities of its product to the general public through point of sale signs, consumer notices, or other informational materials. The Goebs later sought leave to amend their complaint by adding statutory claims for consumer fraud, false advertising, and punitive damages, and the district court denied their motion.
Dow and Tharaldson filed motions to exclude from evidence the testimony of the Goebs' experts on causation, Dr. Kaye Kilburn and Dr. Janette Sherman, and the testimony of the Goebs' expert on pesticide application, Nobert Norman. Based on its conclusion that Dr. Kilburn's and Dr. Sherman's opinions that the Goebs' medical problems were caused by Dursban were not scientifically reliable because neither doctor attempted to determine the level or concentration of Dursban to which the Goebs were exposed, the district court excluded their testimony on causation. The district court excluded for lack of foundation Norman's testimony regarding the propriety of the mechanics of Tharaldson's application of Dursban to the Goebs' residence based on its findings that Norman was not an applicator of pesticide products, had no experience as to the appropriate mechanics of application, and had not established the reliability of the information on which he relied.
The district court also excluded from evidence EPA memoranda, entitled the Blondell memoranda. The memoranda were based on data gathered from phone calls to an 800 number and from Poison Control Center reports. The memoranda did not indicate that any standard protocol was followed in producing the memoranda. The memoranda did not quantify the exposure level, specifically identify the substances to which callers had been exposed, or determine the duration or method of exposure.
Because the district court excluded the testimony of Dr. Sherman and Dr. Kilburn, the district court granted summary judgment in favor of Tharaldson and Dow based on the absence of evidence to prove causation. The district court also concluded that Tharaldson's contract with Silberman was a contract for services, not goods, and dismissed the Goebs' claim against Tharaldson for breach of warranty under the Uniform Commercial Code. The district court also granted summary judgment in favor of Dow on the Goebs' claims for breach of warranty, fraud, and intentional and negligent misrepresentation.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Minn. R. Evid. 702. "The proponent of a scientific test has the burden of demonstrating its reliability." State v. Moore, 458 N.W.2d 90, 97 (Minn. 1990). It is the district court's role to ensure that an expert's testimony rests on a reliable foundation. Kumho Tire Co., Ltd. v. Carmichael, 119 S. Ct. 1167, 1171 (1999).
In determining the admissibility of expert testimony based on emerging scientific techniques, Minnesota courts have applied the test set forth in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). State v. Schwartz, 447 N.W.2d 422, 424-25 (Minn. 1989). The Frye standard requires "that experts in the field generally agree that the evidence is reliable and trustworthy." Id. at 424. Factors that may be relevant in determining reliability include:
whether the theory or technique employed by the expert is generally accepted in the scientific community; whether it's been subjected to peer review and publication; whether it can be and has been tested; and whether the known or potential rate of error is acceptable.
Daubert v. Merrell Pharm., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995).
Dr. Sherman's testimony
Dr. Sherman comprehensively interviewed the Goebs regarding their medical histories and the symptoms they suffered following exposure to Dursban. She also reviewed their medical records and a St. Louis County Health Department report containing the results of air monitoring tests performed about six weeks after the Dursban application. Dr. Sherman concluded:
Review of the medical records, and of the history and physical examinations obtained from Larry, Diane and Stephen Goeb indicate no significant prior illnesses in any of them, and no pattern of illness reflecting organophosphate pesticide poisoning. Each member of the family was functioning to their own accustomed and satisfactory level of physical and mental activity, prior to their exposure to pesticides applied in the rental home in April 1990.
Subsequently, there occurred a dramatic change in the state of the health and level of functioning of each member of the Goeb family, corresponding in time (April 1990) to their exposure to the pesticides applied in the rental home.
In the way of a differential diagnosis, there were initial findings related to the flu, but this has proved incorrect. The flu does not result in classical findings of organophosphate poisoning, nor in the persistent findings displayed by the Goeb family.
* * * *
Each member of the Goeb family demonstrated signs and symptoms of organophosphate poisoning, as described in the scientific literature as well as in some of the Dow/DowElanco publications. Dursban contains both an organochlorine and organophosphate components, and it is a pesticide designed to kill via interference with nerve function. The members of the Goeb family demonstrate interference with all three divisions of the nervous system * * *.
* * * *
Within a reasonable degree of scientific certainty, more likely than not, it is my opinion that the adverse reactions and illnesses that developed in [the Goebs] after their exposure in April 1990, result from exposure to pesticides applied in their rental home, and particularly, result from exposure to Dursban.
Dr. Sherman explained her method of diagnosis as follows:
I have used standard scientific methodology in reaching my conclusions in the Goeb family case: medical and exposure histories, physical examinations, review of medical records, differential diagnosis in ruling out other likely causes of their illnesses, correlation with known adverse effects in other similarly exposed patients, and scientific, governmental and Dow Chemical Company reports.
* * * *
There are few data available as to exact amounts or concentrations of Dursban used by pesticide applicators, and even less information after it has been misapplied. In the Goeb situation, no pesticide samples were immediately collected in the home and furnishings at the time the Goeb family initially contacted the Dow Corporate representative. Nor did the Dow Corporation representative urge the Goeb family to get urine samples for trichloropyridinol, the definitive excretory product of chlorpyrifos.
The cholinesterase tests, while low, are not especially useful because the blood was drawn after the family had moved out of the house. And, there was no pre-exposure baseline for any of the three. However, their low cholinesterase levels, along with symptoms which they developed is consistent with exposure to a known organophosphate pesticide.
Sampling was not done on the Goeb family home until after approximately six weeks had elapsed from the time of application, and after Mrs. Goeb had tried to clean up the contamination. With that passage of time, and after cleanup attempts, the levels ranged from 6 to 12 micrograms/cubic meter in the air.
Respondents argue that Dr. Sherman's differential diagnosis method is not generally accepted in the scientific community as reliable and trustworthy in determining whether an illness was caused by a pesticide. Dr. Sherman stated that she used standard scientific methodology in reaching her conclusions regarding the Goebs. But an expert's assurance that she relied on standard scientific methodology is insufficient to demonstrate reliability. See Daubert, 43 F.3d at 1316 (an expert's bald assurance of validity is not sufficient to show reliability; the party presenting the expert must show that the expert's findings are based on sound science, and this will require some objective, independent validation of the expert's methodology); see also Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998) (proponent of expert testimony need not prove to the judge that the testimony is correct but must prove by a preponderance of the evidence that the testimony is reliable).
Dow submitted an affidavit by Dr. Charles Becker stating that the generally accepted method within the fields of medicine and toxicology for determining whether exposure to a toxic substance caused injury to a person requires identification of the specific substance at issue and the duration and levels of exposure; the dose of exposure received by the person, whether by injection, inhalation, dermal contact, or ingestion; analysis of relevant scientific and medical literature to determine whether there is valid scientific proof of an established causal relationship between a particular dose of a potentially toxic substance and a specific medical condition; and differential diagnosis to rule out other possible causes of the medical condition. Dr. Becker stated that he had reviewed Dr. Sherman's and Dr. Kilburn's reports and deposition testimony and concluded that neither expert followed the generally accepted method in determining that the Goebs' symptoms were caused by exposure to pesticides.
Although Dr. Sherman concluded that "the Goeb family members had prolonged exposure to a level of Dursban sufficient to cause their illnesses," she did not explain the basis for that conclusion, and she admitted that she did not know the level of the Goebs' exposure to Dursban. Dr. Sherman's affidavit and report indicate that her diagnosis was based on the Goebs' medical histories, ruling out other potential causes of the Goebs' symptoms, and the temporal connection between the Goebs' symptoms and exposure. The district court did not abuse its discretion in finding that the Goebs failed to demonstrate the reliability of Dr. Sherman's diagnostic method and excluding her testimony on causation. See Mitchell v. Gencorp, Inc., 165 F.3d 778, 781 (10th Cir. 1999) (plaintiff must prove level of exposure; expert's estimates of exposure level based on plaintiff's own testimony regarding the number and length of visits that he made to chemical storage room and expert's examination of pictures of spill and lists of chemicals stored at site insufficient to establish exposure level); Moore, 151 F.3d at 378-79 (affirming exclusion of expert testimony when expert did not know level of plaintiff's exposure and based diagnosis substantially on temporal connection between exposure and symptoms).
Dr. Kilburn's testimony
Dr. Kilburn stated in an affidavit:
Standard methodology to diagnose exposure to chlorpyrifos applies to this case. The first step is to determine whether the Goebs were exposed to Dursban. It is clear from the history that the Goeb family were exposed to Dursban. The second step is to assess the adverse health effects or toxicity of the agent including a review of relevant medical and scientific literature. The literature regarding adverse health effects is well established. The third step is to consider the dose response relationship of the agent. I have considered both the symptoms reported by the Goebs and the declarations of the St. Louis County Health Department, which is attached hereto as Exhibit C, and incorporated herein as if fully set out.
Such a dose is fully capable of causing nausea, diarrhea, excessive salivation, dizziness, headaches, intestinal cramping, tingling on top of tongue, lightheadedness, throat irritation, burning sensation in respiratory tract, difficulty breathing, lethargy, anxiety, incoordination, vomiting, and the constellation of other symptoms complained of by the Goeb family. These symptoms are well documented in the literature as being consistent with Dursban exposure as with exposure to other organophosphates.
Dr. Kilburn also stated that he had ruled out other potential causes of the Goebs' symptoms.
Although Dr. Kilburn's affidavit indicates that he used the dose-response method in diagnosing the Goebs, he testified in a deposition that the level of the Goebs' exposure was "not knowable," that such "information doesn't exist, and it's totally speculative." Dr. Kilburn identified four articles that he had relied on in diagnosing the Goebs. Dow submitted an affidavit by Dr. Barry Gordon stating that those articles contained methodological flaws and did not support the conclusion that acute, mild exposure to Dursban causes brain or neural damage. Dr. Kilburn testified that he had not reviewed any of the Goebs' medical records. The district court did not abuse its discretion in finding that the Goebs failed to demonstrate the reliability of Dr. Kilburn's testimony and excluding his testimony on causation.
2. The Goebs argue that the district court erred in applying preemption law under FIFRA. 7 U.S.C. § 136v provides:
(a) In general. A State may regulate the sale or use of any federally registered pesticide or devise in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.
(b) Uniformity. Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.
In Cipollone v. Liggett Group, Inc, 505 U.S. 504, 505-06, 112 S. Ct. 2608, 2612 (1992), the Supreme Court concluded that Congress expressly preempted state court claims for causes of action regarding omissions and inclusions in advertising or promotions and that the prohibition against state regulation included state common law tort claims as well as statutes. See also Shaw v. Dow Brands, Inc., 994 F.2d 364, 370-71 (7th Cir. 1993) (following Cipollone); Worm v. American Cyanamid Co., 5 F.3d 744, 748-49 (4th Cir. 1993) (claims based on point-of-sale and other promotional material containing inadequate warnings preempted when language on promotional material was identical with that approved by EPA).
The Goebs argue that FIFRA does not preempt the following causes of action against Dow: (1) negligent failure to warn and train the applicators adequately; (2) defective and negligent failure to make certain that Dow's warnings on the labels got to the people whom Dow could foresee would be exposed to their product (such as homeowners who have Dursban applied in their home); (3) negligent failure to appropriately follow up on the Goebs' questions and complaints regarding symptoms that they developed following exposure to Dursban; (4) improper advertising and literature that differed from EPA-approved labels; (5) failure to warn that Dursban may have been contaminated during production; (6) negligence in testing prior to releasing Dursban for sale; (7) breach of express warranties; (8) negligent failure to issue new warnings after being put on notice of new information following the initial registration, labeling and distribution of Dursban; (9) negligent failure to recall Dursban; (10) negligent compliance with EPA registration process; and (11) fraud, deceit, and negligent misrepresentation in connection with EPA registration process.
The pleadings filed in the district court do not include claims 1, 2, 4, 5, 7, 8, 9, 10, and 11. The Goebs do not cite to any documents or transcripts in the district court record in which those claims were raised. Because the Goebs did not present those claims to the district court, we will not consider them on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (generally, this court will address only those matters that the record shows were presented to and considered by the district court; a party may not obtain review by raising the same general issue presented to the district court but under a different theory on appeal).
As to claims 3 and 6, the district court did not determine that those claims were preempted by FIFRA. Rather, the district court concluded:
1. [Dow's] motion for summary judgment against [the Goebs] is granted in part and to the extent that [the Goebs] seek damages for inadequate warnings and instructions on [Dow's] label affixed to the product Dursban L.O. because such claims in this proceeding are barred pursuant to [FIFRA]. [Dow's] motion for summary judgment against [the Goebs] is in all other respects denied.
2. [The Goebs'] motion to amend their complaint against [Dow] is granted except insofar as the amendments contain allegations concerning the adequacy of warnings and instructions for the use of its product Dursban L.O. on its label and except insofar as the amendments contain allegations that [Dow] had a duty to provide information concerning the properties and propensities of its product to the public in general through point of sale signs, consumer notices or other informational materials. The exceptions to the general grant of leave to amend the complaint are made because claims based on these allegations are barred by FIFRA.
The district court did not err in applying preemption law under FIFRA.
3. The Goebs next contend that the district court erred in denying their motion to amend their complaint by adding statutory claims against Dow for consumer fraud, false advertising, and punitive damages. Leave to amend a pleading must be given freely when justice so requires. Minn. R. Civ. P. 15.01. Nonetheless, this court will not reverse the district court's denial of a motion to amend unless the court clearly abused its discretion. Wagner v. Schwegmann's South Town Liquor, Inc., 485 N.W.2d 730, 733 (Minn. App. 1992), review denied (Minn. July 16, 1992). In deciding whether to permit an amendment, the district court may consider the stage of the proceedings and whether substantial delay would result. Envall v. Independent Sch. Dist. No. 704, 399 N.W.2d 593, 597 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987).
The district court explained its denial of the Goebs' motion to amend the complaint by adding statutory claims for consumer fraud, false advertising, and punitive damages as follows:
The Court concludes at this stage in the proceedings significant prejudice and delay would be caused by the addition of these claims. Liability discovery has already been significantly completed and would need to be reexamined and additional discovery probably conducted. The focus of the parties to date has been upon certain theories and trial strategies have been formulated, discovery prepared and conducted with these theories in mind. Additional delay would prejudice [Dow] as significant delays have already occurred in this matter for reasons wholly not of their making.
The Goebs have not demonstrated that the district court's findings regarding prejudice and delay are not supported by the record. We, therefore, cannot conclude that the district court abused its discretion in denying the Goebs' motion to amend.
4. The Goebs argue that the district court erred in granting summary judgment in favor of Dow on their claims for breach of warranty, fraud, and intentional misrepresentation. On appeal from a summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). We must view the evidence in the light most favorable to the nonmoving party. Id. The nonmoving party, however,
cannot rely on the pleadings alone to defeat a summary judgment motion but instead must produce specific facts which establish the existence of a genuine issue for trial.
Krogness v. Best Buy Co., 524 N.W.2d 282, 285 (Minn. App. 1994), review denied (Minn. Jan. 25, 1995).
[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.
Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).
An element of both fraud and intentional misrepresentation is that the defendant made a false statement to the plaintiff, with knowledge that the statement was false. Specialized Tours, Inc. v. Hagen, 392 N.W.2d 520, 532 (Minn. 1986) (fraud); M.H. v. Caritas Family Servs., 488 N.W.2d 282, 289 (Minn. 1992) (intentional misrepresentation). The district court concluded:
Dursban is a pesticide of wide use approved for application in an appropriate manner in appropriate quantities. From the record Dow's information concerning the manner and extent of application of the subject chemical could, during the relevant period, have come only from defendant Tharaldson. The record does not disclose Dow, prior to the Goebs leaving the home, had been supplied any information to reasonably suggest the Dursban had been improperly or excessively applied. It is true there was complaint of an odor. The product is known to have an odor for a period of time after normal application. It had been applied by a licensed applicator with whom Dow was in telephone contact. There is no evidence in this record, no expert opinion, Dow was provided such information as should have alerted it to imminent danger given the known attributes of the chemicals in question. Thus from the record before the Court Dow representatives in their phone conversation had a reasonable basis to understand the application had been appropriate and that they were being confronted with concerns arising upon a usual and customary application of Dursban not necessarily suggesting any risk of harm. Tharaldson has testified he did not even consider the odor to be particularly noticeable. Thus there is no evidence Dow knew or should have known at the time of the alleged phone contacts here that the situation presented an imminent risk of harm to the Goebs.
The evidence cited by the Goebs does not indicate that Dow gave inappropriate advice based on a proper application of Dursban or that Dow knew or should have known that the application was improper. The district court did not err in granting summary judgment in favor of Dow on the Goebs' fraud and intentional misrepresentation claims.
The Goebs do not specify their objection to the grant of summary judgment on their breach of warranty claim, and there is no obvious error in the district court's analysis of the claim. We, therefore, will not reverse the summary judgment in favor of Dow on the breach of warranty claim. See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (assignment of error in brief based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection).
5. The Goebs contend that the district court erred in granting summary judgment on their negligent misrepresentation claim against Dow for damage to their personal property. The district court concluded:
The causative link between Dursban and an unpleasant odor in the Goebs' furniture, clothing and personal effect might be inferred from the record here. The evidence is insufficient, however, to fairly link Dow to any such problem to justify submission of the claim to a finder of fact. Dow was at a distance and got its information by phone. Tharaldson reported he had made a customary application. Dow responded with their customary advice that the odor would dissipate within a few days upon proper ventilation. By the time it next heard anything additional a good number of days had passed during which the Goebs were in the home with their possessions. There is no evidence as to the rapidity of the process of odor absorption. A finder of fact would be left to speculate as to whether the odor was absorbed on the first day the possessions were in the home or whether it would take a given number of days. [The Goebs] have the burden to draw such distinctions and there is no evidence available upon which this could be done.
Absent evidence that Dow's initial advice was inappropriate or that its advice provided a good number of days later could have prevented the damage, the district court did not err in granting summary judgment in favor of Dow on the Goebs' personal property damage claim based on negligent misrepresentation.
6. The Goebs argue that the district court erred in concluding that under Minnesota law, a negligent misrepresentation will not support a personal injury claim. Our supreme court has neither specifically adopted nor rejected the tort of negligent misrepresentation involving physical harm. Smith v. Brutger, 569 N.W.2d 408, 414 (Minn. 1997). Although not foreclosing the possibility of recognizing the tort, the Smith court expressly declined to do so in that case. Id. We, likewise, decline to recognize the tort in this case. The district court did not err in granting summary judgment in favor of respondents on the Goebs' claim for personal injury based on a negligent misrepresentation.
7. The Goebs argue that the district court erred in excluding from evidence the Blondell memoranda. Hearsay evidence generally is not admissible. Minn. R. Evid. 802. The Blondell memoranda do not fall within any of the hearsay exceptions set forth in Minn. R. Evid. 803. To the extent the memoranda were relied on by the Goebs' experts, they do not satisfy the reliability requirements of Minn. R. Evid. 703(a). The district court did not abuse its discretion in excluding the Blondell memoranda.
8. Tharaldson argues that the Goebs waived the issues of whether the district court erred in excluding Norman's testimony from evidence and whether the district court erred in granting summary judgment in favor of Tharaldson on the Goebs' breach of warranty claim. We agree. The Goebs raised these issues but did not address them in the argument section of their brief. Issues not briefed on appeal are waived. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982). An assignment of error that is based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection. Modern Recycling, Inc., 558 N.W.2d at 772.
Dow filed a motion to strike certain documents from the appendix to the Goebs' brief, claiming that those documents were not part of the record before the district court. The papers filed in the district court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases. Minn. R. Civ. App. P. 110.01. The Goebs did not provide citations to the record for the documents identified in the motion to strike, and, in our independent review of the record, we did not discover any of the documents. We, therefore, grant the motion to strike.
Affirmed; motion to strike granted.
 The United States Supreme Court overruled Frye in Daubert v. Merrell Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993). Until our supreme court determines Daubert's impact in Minnesota, this court will continue to follow Frye, but Daubert may be considered as persuasive authority. State v. Alt, 504 N.W.2d 38, 46 (Minn. App. 1993).