ORDER

RAYMOND ERICKSON, Magistrate Judge

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A), upon the Plaintiffs' Motions to Amend the Complaint, and to Amend the Scheduling Order.

A Hearing on the Motions was conducted on May 22, 2003, at which time, the Plaintiffs appeared by Stanley E. Karon, Esq.; the Defendants Emerson Tool Company, and Emerson Electric Company ("Emerson"), appeared by Paul Van Tol, and Thomas K. Klosowski, Esqs.; and the Defendant Sears, Roebuck Company ("Sears") appeared by Gregory M. Kopacz, Esq.

For reasons which follow, we deny the Plaintiffs' Motion to Amend the Complaint, and we deny, as moot, the Plaintiffs' Motion to Amend the Scheduling Order.

II. Factual Background

The Plaintiffs contend that the Defendants deliberately disregarded his safety, and the safety of other purchasers of the saw, by failing to equip the saw with a lower blade guard. The saw had a ten-inch blade and, while substantially similar to the twelve-inch blade saw, which was also manufactured, and sold, by the Defendants, the ten-inch saw was not equipped with a lower blade guard, while the Defendants' twelve-inch saw was equipped with a standard, lower blade guard. In the 1970s, the Occupational Safety and Health Administration ("OSHA") mandated a lower blade guard on all radial arm saws that would be used in industrial settings. Nevertheless, the Defendants continued to sell their ten-inch saw, without a lower blade guard, assertedly because it was primarily used in non-industrial settings, but such a guard was available, from the Defendants, as an optional item, at extra expense. In the Owner's Manual, that was provided with Berczyk's saw, the Defendants cautioned users that the optional lower blade guard had the potential of increasing the risk of harm, when the saw was used for some rip positioned cuts, and that the lower blade guard should be employed only on ninety-degree cross cuts.

In 1992, however, the Consumer Products Safety Commission ("CPSC") announced a recall retrofit, in which lower blade guards were issued, by the Defendants, to the owners of the saws. After 1993, the Defendants' saws, including those with ten-inch blades, came equipped with a standard, lower blade guard. The Plaintiffs contend that the Defendants then touted their lower blade guard as enhancing the safety of their saws, even when used during rip cuts. The Plaintiffs further contend that the retrofit lower blade guard is the guard, which was offered as an option at an extra cost, and which the Defendants misrepresented as dangerous for certain cuts. According to the Plaintiffs, the Defendants' acts and omissions were motivated by "corporate greed," and reflected a "callous disregard for the safety of their customers."Affidavit/Memorandum of Krister D. Johnson ("Johnson Affidavit"), at pp. 9-10. The Defendants deny the Plaintiffs' contentions.

III. Discussion

As noted, the Plaintiffs seek to add a claim for punitive damages to their Complaint, as well as a claim under the Minnesota Prevention of Consumer Fraud Act ("CFA"), Minnesota Statutes Section 325 F.69. We address each of the proposed amendments in turn, commencing with the Plaintiffs' proposed claim for punitive damages.

A. The Proposed Punitive Damage Claim .

1. Standard of Review . As we have previously recounted, "`[i]n the Federal Courts of this District, the pleading of punitive damage claims, under causes of actions premised upon the law of the State of Minnesota, must generally conform to the requirements of Minnesota Statutes Sections 549.191 and 549.20.'" Olson v. Snap Products, Inc., 29 F. Supp.2d 1027, 1034 (D. Minn. 1998), quoting Ulrich v. City of Crosby, 848 F. Supp. 861, 866 (D. Minn. 1994); see also,Bunker v. Meshbesher, 147 F.3d 691, 696 (8th Cir. 1998). Under Section 549.191, a plaintiff who seeks to assert a punitive damage claim must first obtain leave of the Court to do so, based upon a prima facie showing of entitlement. See, Ulrich v. City of Crosby, supra at 867. A plaintiff need not demonstrate an entitlement to punitive damages per se, but only an entitlement to allege such damages. See, Olson v. Snap Products, Inc., supra at 1034. As the Statute provides, a Court "shall grant a Motion to amend to allege punitive damages if it finds prima facie evidence in support of the motion." Bunker v. Meshbesher, supra at 696 [quotations omitted].

In order to establish a claim for punitive damages, a party must show, by clear and convincing evidence, that the Defendant acted with a "deliberate disregard for the rights or safety of others." Minnesota Statutes Section 549.20, Subdivision 1(a). The pivotal phrase "deliberate disregard" has been statutorily defined as follows:

(b) A defendant has acted with deliberate disregard for the rights or safety of others if the Defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the rights or safety of others and:

(1) deliberately proceeds to act in conscious or intentional disregard of the high degree of probability of injury to the rights or safety of others; or

(2) deliberately proceeds to act with indifference to the high probability of injury to the rights or safety of others.

In substance, "[a] defendant operates with `deliberate disregard' by acting with intent or indifference to threaten the rights or safety of others." Gamma-10 Plastics, Inc. v. American President Lines, Ltd., 32 F.3d 1244, 1256 (8th Cir. 1994). As such, "[a] mere showing of negligence is not sufficient" to sustain a claim of punitive damages.Admiral Merchants Motor Freight, Inc. v. O'Connor Hannan, 494 N.W.2d 261, 268 (Minn. 1992).

In addition, under the Section 549.20 standard, the Court "is required to search for evidence which is `clear and convincing.'" Olson v. Snap Products, Inc., supra at 1036. "To be `clear and convincing,' there must be `more than a preponderance of the evidence but less than proof beyond a reasonable doubt.'" Ulrich v. City of Crosby, supra at 868, quoting Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978). Ultimately, the Court's independent search for clear and convincing, prima facie evidence, that the defendant acted with a deliberate disregard for the rights or safety of others, requires the Court to do more than "rubber stamp" the allegations in the Motion papers. Id.; Swanlund v. Shimano Indus. Corp., Ltd., 459 N.W.2d 151, 154 (Minn.App. 1990).

2. Legal Analysis. As our Court of Appeals has recognized, the statutory procedures of Sections 549.191, and 549.20, were "enacted to prevent frivolous punitive damages claims by allowing a court to determine first if punitive damages are appropriate." Gamma-10 Plastics, Inc. v. American President Lines, Ltd., supra at 1255, citing Bougie v. Sibley Manor, Inc., 504 N.W.2d 493, 499 (Minn.App. 1993); see also, Ulrich v. City of Crosby, 848 F. Supp. 861, 866-67 (D. Minn. 1994)("As recognized by our Court, the Minnesota Legislature adopted, in 1986, the pleading requirements of Section 549.191 in order to deter certain practices in the presentment of punitive damage claims which were thought to be abusive, and in order to address a perceived insurance crisis."), citing Gobuty v. Kavanaugh, 795 F. Supp. 281, 287 (D. Minn. 1992), Kuehn v. Shelcore, Inc., 686 F. Supp. 233, 234 (D. Minn. 1988), and Filz v. Mayo Foundation, 136 F.R.D. 165, 174 (D. Minn. 1991).

As a result, "[a] plaintiff must file a motion seeking punitive damages and must include the applicable legal basis and one or more affidavits setting forth the factual grounds supporting issuance of punitive damages." Williamson v. Prasciunas, 661 N.W.2d 645, 653 (Minn.App. 2003)[emphasis added], citing Minnesota Statutes Section 549, 191. "The trial court may not allow an amendment where the motion and supporting affidavits `do not reasonably allow a conclusion that clear and convincing evidence will establish the defendant acted with willful indifference * * *.'" Swanlund v. Shimano Indus. Corp., Ltd., supra at 154, quoting McKenzie v. Northern States Power Co., 440 N.W.2d 183, 184 (Minn.App. 1989); see also, Gamma-10 Plastics, Inc. v. American President Lines, Ltd., supra at 1255. Given the language of Section 549.191, and its legislative purpose, we construe the term "must" to impose a mandatory obligation, on a party moving to plead punitive damages, to accompany its Motion with one or more Affidavits.

Here, the Defendants complain that the Plaintiffs have failed to support their Motion with a competent Affidavit, both procedurally, and substantively. At the outset, we note that Section 549.191 does not specify the precise form that a supportive Affidavit should take, but the structure of an Affidavit is not unique to the pleading of punitive damages. Under the governing Minnesota law, the "clear and convincing" quantum of proof "is implicitly incorporated into the requirement that the movant present a prima facie case of [d]eliberate disregard for the rights or safety of others." Swanlund v. Shimano Indus. Corp., Ltd., supra at 154, citing McKenzie v. Northern States Power Co., supra at 184. Quite plainly, a "prima facie case," established by "clear and convincing" evidence, requires evidence that is both competent, and probative, that is, the evidence must be admissible. See,State ex rel. Sime v. Pennebaker, 215 Minn. 75, 77, 9 N.W.2d 257, 258-59 (Minn. 1943) (Affidavit which is not founded upon personal knowledge, and founded upon hearsay "furnishes nothing of evidentiary worth."); cf., In re Engen, 2001 WL 910059 at *3 (Minn.App., August 14, 2001) (same); In re Aiken-Johnson, 2001 WL 185076 at *2 (Minn.App., February 27, 2001)(same).

What the Plaintiffs initially proffered, by way of the Johnson Affidavit, is simply an amalgam of legal argument, rhetorical invective, conclusory surmise, and hearsay stacked upon hearsay. More fundamentally, however, we discern little in the Affidavit which attests to the existence of facts. To be sure, the Affiant, who is the Plaintiffs' attorney, purports that, being "first duly sworn upon oath deposes and states that he is co-counsel," and that he "makes this Affidavit/Memorandum in Support of Plaintiffs' Motion to Amend the Complaint to allege punitive damages * * *," but that is the only facts to which he expressly attests. Plainly read, the only competent averment is as to such inconsequential propositions as the identity of the Affiant, and the purpose of the Affidavit. Notably, the Affidavit was not prefaced with any declaration that the Affiant was attesting to the veracity of any other assertion, that is contained in the Affidavit and, if he had, the attestation would have no substantive meaning, as the assertions are simply arguments of fact and law — and not evidence. We recognize that the Affiant has concluded the Affidavit with the legend "Further your affiant sayeth not," but that adds nothing to lend probative weight to what are, at best, the grist of pure advocacy.

Beyond averring to the identity of the Affiant, and the purpose of the Affidavit, what the Plaintiffs have submitted in support of their Motion to Amend is devoid of any probative value, and serves as an "Affidavit" by designation, alone. Much of the Affidavit asserts propositions that are mere predictions of what the Plaintiffs intend to prove at Trial. See, Johnson Affidavit, at p. 3 ("In summary form, the evidence to be offered at trial will show * * *"); p. 5 ("Plaintiff will offer evidence that it was just a hoax."; "Plaintiff will offer testimony * * *"); p. 6 ("Plaintiff will offer evidence * * *"); p. 7 ("Plaintiff will offer to prove further * * *"). Had the Minnesota Legislature intended to allow punitive damage claims on nothing more than unsupported offers of proof, we are confident that the Legislature would not have insisted upon the submission of competent Affidavits.

Repeatedly, the Affiant presents hearsay testimony, which he summarizes from depositions in unrelated cases, that have not been submitted for the Court's review, or he facilely construes the contents of documents, infused with his robust advocacy, as supplemented by a liberal use of surmise, conjecture, and conclusory comment. See, Johnson Affidavit, at p. 6 ("Emerson * * * intentionally chose * * *); (They knew * * *"); p. 10 ("Defendants spent excessive efforts in defending itself [sic] and callously ignored safety features available that would have prevented accidents — the only basis for such action is corporate greed."). Given its astounding procedural, and substantive inadequacies, we credit no appreciable weight to the Johnson Affidavit.

When, at the time of the Hearing, we advised counsel for the Plaintiffs that the Johnson Affidavit was incompetent, counsel suggested a misunderstanding of the Court's Local Rules, and requested leave to file the documents, which were referenced in the Plaintiffs' submission. According to counsel, he had an "understanding and interpretation of the rules * * * that an affidavit of counsel listing the documents and evidence that has been produced, and summarizing, in part, the deposition testimony of defendants' [sic] employees in prior cases, was acceptable."Transcript of Motion Hearing of May 22, 2003, at p. 7 ["T. 7"]. Plaintiffs' counsel then requested leave to submit documents to the Court after the Hearing. [T. 8]. We rejected that proposal, and advised that the Court was "taking the matter as submitted on the record that you folks presented to the court." [T. 9; 53]. Counsel then proposed that, because he had assertedly received some documents only after the Johnson Affidavit had been prepared, he would "simply like to list the documents that we have found after the affidavit." [T. 54]. We responded: "If you want to do that in a letter filed with the court * * * that would be fine." [T. 54].

The mechanism we deliberately chose — namely, of submitting a letter which listed the documents that had been received after the Johnson Affidavit — would allow the Defendants to contest any representation, by the Plaintiffs, that the specific documents were not produced before the Johnson Affidavit was prepared, as the parties have had a continuing disagreement as to when specific documents were produced by the Defendants. [T. 56]. Notwithstanding that arrangement, and without leave of the Court, the Plaintiffs filed a second Affidavit — the Affidavit of Stanley E. Karon ("Karon Affidavit"), after the Hearing, notwithstanding our express rejection of that approach. [T. 53-57]. In offering the Karon Affidavit, Plaintiffs' counsel represented as follows:

Your Affiant interpreted Rule LR7.1 not to mandate attaching exhibits referenced in affidavits and considered quoting from said documents sufficient. Your Affiant has been advised that this may not be sufficient and did, at the time of hearing, offer [sic] newly discovered documents to the Court and at what I believe was an invitation of the Court is [sic] writing the Court at this time. It was unclear at the time whether the Court would review the documents to be attached. However, because of the gravity of this issue, it is hoped the Court will do so, giving precedents [sic] to substance over form with respect to bringing of the instant motion.

One would have thought that "the gravity" of the Plaintiffs' interest in seeking an entitlement to plead punitive damages would have counseled the Plaintiffs to abide by the long-established law concerning the procedures, and requisite showings, which would allow them to advance such a claim. Plainly, it has not.

The Karon Affidavit suffers from the same critical shortcomings as did the Johnson Affidavit. The mere designation of a document — in plainly argumentative language — does not convert the submission into a competent evidentiary showing. As was the case with the Johnson Affidavit, the only valid attestation, vouched for by the Karon Affidavit, is the assertion that the Affiant is "one of counsel for Plaintiffs and makes this Affidavit in support of Plaintiff's Motion to Amend the Complaint against Defendants Emerson and Sears to allege a claim of punitive damages." Karon Affidavit, at p. 1. From that point on, the Affiant offers no more than the Affiant's construction of the appended documents, as imbued by his descriptive, and largely unsupported, commentary.

Once again, given the fatal, critical shortcomings of the Karon Affidavit, we extend little probative weight to its content. Nonetheless, we are presented with nineteen exhibits, which were appended to that Affidavit, and which the Plaintiffs exhort us to review, so as not to prejudice their "opportunity to present this matter fully to the Court."Karon Affidavit, at p. 5. Notably, the Defendants have not objected to the Karon Affidavit, have not requested an opportunity to respond, and they have not sought leave to submit responsive Affidavits. Although we have grave misgivings about rewarding parties for their counsels' abuse of the Rules, those concerns are dwarfed by our overriding interest in being fully informed. As a result, our attention turns to the Plaintiffs' proffered Exhibits, which we review under the loupe of the clear and convincing evidence standard.

The Plaintiffs' Exhibits are a hodge-podge of largely disconnected documents which, like snapshots of different scenes, foreclose any responsible attempt to see the whole. Memoranda, or correspondence, are offered to suggest that the Defendants had settled upon a lower blade guard which would have prevented Berczyk's injury. We have no means, however, based upon the submitted papers, to ascertain what guard, or guards, are being evaluated, nor are we informed as to whether any Defendant accepted the views of an author of any particular writing. Rather the Plaintiffs encourage us to infer that an effective, and feasible guard, was discovered well before Berczyk's accident, but that, for reasons of "corporate greed," the Defendants "callously disregarded" their customers' safety. If properly founded upon admitted evidence, such advocacy could be effective as a closing argument to a Jury, but we are confronted, here, with an obligation by the moving party to present evidence, and not mere argument. Of course, we are mindful that, with snippets from one document, when appended to another, some apparitions seem vaguely visible, but we must be presented, here, not with nebulous shadows, but with a requisite showing undergirded by clear and convincing evidence.

Understandably, the Plaintiffs complain that, realistically, proof of a deliberate disregard will infrequently be revealed in an inculpatory admission by a defendant. We do not dispute that proposition, and we recognize, as we did at the Hearing on their Motion, that circumstantial showings can serve, as readily as direct admissions, as the predicate for punitive damages. [T. 28-29]. Here, however, the Plaintiffs would have us read the practical equivalent of "tea leaves" in order to surmise a state of deliberate indifference. It appears, however, that the circumstance confronting the Plaintiffs is largely due to their own pretrial strategies, as they readily concede that, at the time that their Motion papers were filed, they had "not yet taken the first Emerson and/or Sears employee deposition." Johnson Affidavit, at p. 13, and 15. Moreover, having treated the culpability for punitive damages as being somehow fungible, the Plaintiffs have made no attempt to focus any specific showing of deliberate disregard as to either of the Defendants.

Moreover, we cannot exclude the potential that the Plaintiffs woefully misunderstood their burdens under Sections 549.191 and .20. We read, with more than passing dismay, their argument as to the proofs, with which they are saddled, in pleading a claim of punitive damages:

Plaintiff does not have to provide clear and convincing evidence of willful indifference "at this stage of the proceeding" to amend a complaint alleging punitive damages. McKee v. MEPACO, Inc., et al., Civ. No. C5-90-78. The standard is prima facie evidence: "[t]he Court need only determine whether the evidence is sufficient to submit the issue to the jury." Id.

Unfortunately, as to the Slip Opinion cited, the Plaintiffs have failed to submit a copy for the Court's independent review. While we hesitate to comment upon a decision of the State Court, as to which we bear great deference, we find nothing in Minnesota law to suggest that the requisite prima facie case, can be predicated on the ethereal showings, that the Plaintiffs advance here, which defy a critical analysis.

We have closely reviewed the documentary evidence that the Plaintiffs submitted for our review, and we are not persuaded that the showings are either clear and convincing, or sufficient to reasonably establish a prima facie showing. We deliberately refrain from a document-by-document assessment of the Plaintiffs' proffered Exhibits, as most do not warrant such attention. Rather, we focus on the Plaintiffs' assertion, that some 300 or more injuries were caused by the absence of a lower blade guard, on a ten-inch radial arm saw, the Plaintiffs' expert opinion evidence, and the occurrence of a CPSC induced recall.

With respect to Exhibit 11 to the Karon Affidavit, the Plaintiffs represent that this is a ninety-page listing of radial arm saw claims, or lawsuits, which was produced by Emerson. While the listing of such claims is prodigious, we are unable to determine, with any reliability, which claims are substantially similar to Berczyk's, nor do we have any means of appraising the probability of the occurrence of injuries, consistent with Berczyk's, based upon this Exhibit. Reference is made by the Plaintiffs to various tabulations concerning the amputation of fingers, or other appendages, but we are unable, based on the documents presented, to draw any reasonable inference as to the probability of injury, with anything approaching reliability. We note, for example, that the recall of ten-inch radial arm saws, in 2000, involved some 3.7 million saws. See, Affidavit of Richard Figueroa, Exhibit 1, at p. 35. Assuming, without deciding, that over the same time period, there were 300, or thereabouts, injuries, which were somehow attributable to ten-inch radial arm saws, that were manufactured and sold by the Defendants, we are still unable to ascertain the number of injuries which replicate, with substantial similarity, those allegedly sustained by the Plaintiff. See, Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496, 508 (8th Cir. 1993) ("For other accident evidence to be admissible, the proponent of the evidence must show that the facts and circumstances of the other incident are substantially similar to the case at bar."), citingLewy v. Remington Arms Co., 836 F.2d 1104, 1108 (8th Cir. 1988).

In Exhibit 17, the Plaintiffs proffer the opinion evidence of their expert, Lanny R. Berke ("Berke"). At best, Berke's report is an unsworn letter, which carries little evidentiary weight. See, Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 544 n. 7 (Minn. 2001)("In reaching our conclusions in this case, we did not consider the unsworn letters [from "purported experts"]."). Even apart from its non-evidentiary status, the Berke report does not constitute "clear and convincing" evidence. We apply no Daubert gatekeeping function, here, for the Defendants have not challenged Berke's expertise. See,Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Rather, we simply abide by our obligation to assess Berke's opinions, consistent with the prohibition that we not "rubber stamp" the showings advanced by a moving party. Berke's opinion is rife with concessions that he had been "advised" of certain predicates to his opinion, or that he had an "understanding" as to certain predicate facts. As but one example, Berke opines as follows:

It is my understanding that the CPSC requires manufacturers of products who believe that their products may be defective and constitute a substantial product hazard, to notify the CPSC of the evidence to which might lead them to that conclusion; and to voluntarily recall its product and provide warnings to owners. It appears from the information available at this time, that Emerson did not contact the CPSC. I am told the CPSC contacted Emerson Electric and Sears and ultimately demanded a recall.

While we accept that an expert can rely on evidence that is not otherwise admissible, so long as it is of a type that experts, in the same field would rely upon, see, Rule 703, Federal Rules Evidence, we seriously doubt that an engineering, and safety expert, would place great reliance on pure hearsay, and not investigate the matter to his, or her, full satisfaction.

As best as we can discern, Berke's report is predicated on many of the same documents that we found to be an inadequate basis on which to establish a claim of deliberate disregard. We find little to suggest that the inadequacies of those showings can be rectified by the expedient of passing them through a retained expert. See, In re Potash Antitrust Litigation, 954 F. Supp. 1334, 1389 (D. Minn. 1997)("With modest exception, the mere passage of an untrustworthy evidentiary showing, through the mechanism of an expert's Report, will be wholly unavailing in curing foundational deficiencies."), aff'd, 203 F.3d 1028 (8th Cir. 2000), cert. denied sub nom., Hahnaman Albrecht, Inc. v. Potash Corp. of Saskatchewan, 531 U.S. 815 (2000), citing Rule 703, Federal Rules of Evidence.

Further, we find little in the recall issue which constitutes clear and convincing evidence, such that the Plaintiffs would be warranted to plead a punitive damages claim. Though wholly ignored by the Plaintiffs, the law of the District, insofar as it has been developed to date, imposes no duty upon the manufacturer of a product, to institute a product recall, or retrofit. See, McDaniel v. Bieffe USA, Inc., 35 F. Supp.2d 735, 743 (D. Minn. 1999)("While no Minnesota court has addressed this issue directly, this Court is convinced that Minnesota would refuse to impose a duty on manufacturers to recall and/or retrofit a defective product because the overwhelming majority of other jurisdictions have rejected such an obligation."), citing cases. We cannot envision an award of punitive damages for the asserted breach of an underlying duty which does not exist, under the common law, or under any Statute that the Plaintiffs have drawn to our attention.

Lastly, even if we were to reach the legal issues, by assuming that a adequate factual predicate for punitive damages has been properly laid, we have substantial doubt that, under the applicable laws of Minnesota, the Plaintiffs have reasonably established a showing of deliberate disregard. In Beniek v. Textron, Inc., 479 N.W.2d 719 (Minn.App. 1992), rev. denied (February 19, 27, 1992), a plaintiff commenced a products liability action against a chain saw manufacturer for injuries suffered when the defendant's chain saw `kicked back' and injured his face. As detailed by the Court:

The [plaintiffs'] experts testified that the chain saw was unreasonably dangerous and defective because it was manufactured without a chain break or tip guard safety device. The experts further testified that Homelite knew about chain break and tip guards in 1974, the year the Model 150 chain saw was manufactured. Homelite applied for a patent for a chain break in 1974 and installed tip guards on all chain saws manufactured in and after 1976. Homelite knew about tip guards since 1968. According to [the plaintiffs'] experts, if Homelite equipped the Model 150 chain saw with a tip guard, it would have prevented [the plaintiff's] injuries.

After the close of its case, the defendant moved to dismiss the plaintiffs' punitive damages claim, and the Trial Court directed a Verdict in favor of the defendant on the punitive damages claim, and the plaintiffs took an appeal. The Court of Appeals affirmed the dismissal of the punitive damage claim, reasoning as follows:

The [plaintiffs] failed to present clear and convincing evidence that Homelite's conduct was malicious. Homelite was the first chain saw manufacturer in this country to install a tip guard on all of its chain saws manufactured after 1976. Even though Homelite knew about chain saw kickback in 1968 when it first started research on a safety tip, this fact does not provide evidence of maliciousness. In fact, the evidence shows that Homelite actively sought ways to prevent the dangers associated with its product. Because there was no evidence that demonstrated Homelite acted with a malicious disregard for the rights and safety of others, the trial court properly granted Homelite's motion for a directed verdict.

We recognize that the record in Beniek has distinctions from that presented here. There, no mention is made of the number of prior accidents involving chain saw kickback but, insofar as we are unable, on the Record presented, to determine how many of the prior radial arm saw accidents are substantially similar to Berczyk's, each case represents foreknowledge, by the manufacturer of a motor-driven saw, that a risk of injury was presented by the use of that saw. As the Court made plain, in Beniek, that foreknowledge did "not provide evidence of maliciousness." Id. Moreover, while the Plaintiffs chide the Defendants for not solving the lower blade design more expeditiously, their evidence does reflect, as a general proposition, that the Defendants were not seeking an effective design. Strangely, notwithstanding the Court's solicitation of the Plaintiffs' views on Beniek, the Plaintiffs offered nothing. [T. 24-29].

In sum, since the Plaintiffs' Motion papers "do not reasonably allow a conclusion that clear and convincing evidence will establish the defendant[s] acted with [a deliberate disregard], no basis for amendment is made out." McKenzie v. Northern States Power Co., supra at 184. Accordingly, their Motion to Amend is denied. B. The Plaintiffs' Proposed Minnesota Prevention of Consumer Fraud Act Claim .

1. Standard of Review . Rule 15(a), Federal Rules of Civil Procedure, provides, in pertinent part, as follows:

[A] party may amend the party's pleading only by leave of court or by written consent of the adverse party and leave shall be freely given when justice so requires.

In construing this Rule, the Supreme Court has observed:

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reasons — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave should, as the rules require, be "freely given."

While leave to amend should be freely given, such leave should not be afforded where the proposed amendments are futile. See DeRoche v. All American Bottling Corp., 38 F. Supp.2d 1102, 1005 (D. Minn. 1998)("Although we begin with a presumption of liberality, an amendment to a pleading can be successfully challenged on grounds of futility if the claims created by the amendment would not withstand a Motion to Dismiss for failure to state a claim upon which relief can be granted"), citing Humphreys v. Roche Biomedical Laboratories, Inc., 990 F.2d 1078, 1082 (8th Cir. 1993); Weimer v. Amen, 870 F.2d 1400, 1407 (8th Cir. 1989); Holloway v. Dobbs, 715 F.2d 390, 392-93 (8th Cir. 1983);Norbeck v. Davenport Community Sch. Dist., 545 F.2d 63 (8th Cir. 1976), cert. denied, 431 U.S. 917 (1977); see also, United States ex rel. Gaudineer Comito, L.L.P. v. Iowa, 269 F.3d 932, 935 (8th Cir. 2001) ("The denial of leave to amend based on futility means that the court found that the amended complaint failed to state a claim * * *."), cert. denied, 536 U.S. 925 (2002). "Accordingly, futility must be assessed in the same manner as a 12(b)(6) motion." Lumsden v. Ramsey County Community Corrections Dept., 2002 WL 31886630 at *1 (D. Minn., December 23, 2002).

2. Legal Analysis . Generally, the Consumer Fraud Act does not provide a private right of action to individual consumers. In limited circumstances, however, private remedies may be available to individuals, through the Private Attorney General Act, Minnesota Statutes Section 8.31. See, e.g., Tuttle v. Lorillard Tobacco Co., 2003 WL 1571584, *5 (D. Minn., March 3, 2003), citing, Ly v. Nystrom, 615 N.W.2d 302, 311. (Minn. 2000); Pecarina v. Tokai Corp., 2002 WL 1023153 , at *5 (D. Minn., May 20, 2002).

In Ly v. Nystrom, the Minnesota Supreme Court held that, under Minnesota Statutes Section 8.31, the Attorney General was provided the authority to seek injunctive relief, and civil penalties, on behalf of the State, "regarding unlawful business practices barred by a variety of statutory prohibitions, including the [CFA]." In addition, the Private AG Statute, Minnesota Statutes Section 8.31, Subdivision 3a, "provide[d] that `any person injured by a violation' of the laws entrusted to the attorney general to investigate and enforce," including the CFA, "may recover damages together with costs and attorney fees." Id. Thus, the Private AG Statute was the measure that invested authority, in individual consumers, to bring actions under the CFA.

However, the Court also noted that some concern had been raised about the scope of the Private AG Statute, and "particularly as it relate[d] to common law fraud actions and the recovery of attorney fees."Id. at 311. In addressing that concern, the Court related that the purpose of the Statute was to "provid[e] incentives to injured parties to enforce the unlawful business practices statutes as a substitute for the attorney general," as it was "simply impossible for the Attorney General's Office to investigate and prosecute every act of consumer fraud in th[e] state." Id., citing Hearing on S.F. 819, S. Comm. Labor and Commerce, 68th Minn. Leg., March 8, 1973 (audiotaped comments of Senator Borden, who was the Senate sponsor of the measure).

The Court also noted that, due to the limited purpose of the Private AG Statute, the Minnesota Courts of Appeal had "expressed reservations about broadening the scope of" the Private AG Statute, and "ha[d] required a showing of public benefit" as a predicate to an award of attorney fees under that Statute. Id. In particular, the Court of Appeals had warned that Courts "must take into account the degree to which the public interest is advanced by the suit, * * * otherwise `every artful counsel could dress up his dog bite case' to come under the attorney's fees statute." Lies v. Lindemyer, 354 N.W.2d 556, 558 (Minn.App. 1984), quoting, Boland v. City of Rapid City, 315 N.W.2d 496, 503 (S.D. 1982); see also, Behrens v. United Vaccines, Inc. v. Sprague Dawley, Inc., 228 F. Supp.2d 965, 969 (D. Minn. 2002); Wexler v. Brothers Entertainment Group, 457 N.W.2d 218, 222-23 (Minn.App. 1990).

The Court recognized that, in determining the proper scope of the authority granted by the Private AG Statute, it had to base its assessment on the fact that the Statute had been originally adopted "as part of the statutory charter for the duties and responsibilities of the attorney general." Since the private litigant would be acting in lieu of the Attorney General, the scope of the Attorney General's roles and duties, would properly define the scope of the private litigant's roles and duties. Under Minnesota Statutes Section 8.01, the Attorney General was to "appear for the state in civil lawsuits `whenever, in the attorney general's opinion, the interests of the state require it.'" Id. Conversely then, the Attorney General, and the private litigant who is acting in the Attorney General's stead, cannot act "to protect private or individual interests independent of the public purpose." Id.

In finding a public benefit requirement, the Court reasoned, in part, as follows:

[T]he legislature could not have intended to sweep every private dispute based on fraud, and falling within the CFA, into a statute where attorney fees and additional costs and expenses would be awarded, because to do so would substantially alter a fundamental principle of law deeply ingrained in our common law jurisprudence — that each party bears his own attorney fees in the absence of a statutory or contractual exception.

Ultimately, the Court held that "the Private AG Statute applie[d] only to those claimants who demonstrate that their cause of action benefits the public." Id. at 314.

Here, the Plaintiffs have failed to demonstrate that their proposed cause of action benefits the public and, indeed, they concede that it does not. [T. 25-26]. As a consequence, the essence of the Plaintiffs' lawsuit is personal injury, and actions seeking such damages do not benefit the public. See, e.g., Behrens v. United Vaccines, Inc., supra at 971 ("While we understand * * * that there might be some benefit to the public occasioned by their success in this action, we cannot agree that such a metaphysical potential is sufficient to satisfy the public benefit requirement enunciated in Ly v. Nystrom."); Pecarina v. Tokai Corp., supra at *5 ("Plaintiffs seek damages for past and future medical expenses, pain and suffering, wage loss, and emotional distress," and "[s]uch damages do not benefit the public.")[internal citation omitted];Tuttle v. Lorillard Tobacco Company, supra at *6. As a result, we find that the Plaintiffs' proposed Consumer Fraud Act claim is futile and, therefore, we deny the Plaintiffs' Motion to Amend in this respect.

THEREFORE, It is —

ORDERED:

1. That the Plaintiff's Motion to Amend the Complaint [Docket No. 37-1] is DENIED.

2. That the Plaintiff's Motion to Amend the Scheduling Order [Docket No. 37-2] is DENIED, as moot.

3. That the Defendants' Motions to Compel [Docket Nos. 58, and 64] are DENIED.