Opinion
No. A05-659.
Filed December 13, 2005.
Appeal from the District Court, Olmsted County, File No. C8-04-3781.
Peter H. Ames, William Skemp Law Firm, S.C., (for appellant).
Kay Nord Hunt, Phillip A. Cole, Lommen, Nelson, Cole Stageberg, P.A., (for respondents).
Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
In this appeal from summary judgment in a legal malpractice action, appellant challenges the district court's dismissal of the action with prejudice based on her failure to file the expert-review affidavit within the time period required by Minn. Stat. § 544.42, subds. 2(1), 3 (2004). We affirm.
DECISION
On appeal from summary judgment, this court considers whether genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. Univ. of Minn. Hosps. Clinics, 426 N.W.2d 425, 427 (Minn. 1988). We view the evidence in the light most favorable to the nonmoving party and resolve any doubt as to the existence of a material fact against the moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). We review a district court's determination as to whether a plaintiff failed to comply with mandatory expert-witness disclosure requirements for abuse of discretion. Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 725 (Minn. 2005); Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990). The interpretation of a statute is a question of law, reviewable de novo. Sorenson, 457 N.W.2d at 190.
Negligence actions against professionals, including attorneys, must comply with expert-disclosure requirements under Minn. Stat. § 544.42, subd. 2 (2004). See Middle River-Snake River Watershed Dist. v. Dennis Drewes, Inc., 692 N.W.2d 87, 90-91 (Minn.App. 2005) (discussing expert-affidavit requirements in negligence action against engineer). The expert-review provisions of Minn. Stat. § 544.42 are similar to those contained in Minn. Stat. § 145.682 (2004), the medical-malpractice expert-affidavit statute. See Middle River, 692 N.W.2d at 91 (discussing parallel reasoning used in construing requirements of Minn. Stat. § 145.682 and Minn. Stat. § 544.42 in context of engineering-malpractice claim); see also House v. Kelbel, 105 F. Supp.2d 1045, 1051 (D. Minn. 2000) (stating that the Minnesota legislature "used § 145.682 as a blueprint in drafting the language of § 544.42").
The affidavit statute for professional, nonmedical malpractice actions requires, subject to certain exceptions inapplicable here, that a plaintiff serve two expert-witness disclosure affidavits on an adverse party. Minn. Stat. § 544.42, subd. 2. The first, an affidavit of expert review, must establish that an expert reviewed the case, leading to the opinion that the defendant deviated from the applicable standard of care and that action caused plaintiff's injury. Id., subds. 2(1), 3(a)(1). The second, the expert-identification affidavit, identifies the expert witnesses and provides the substance of the experts' opinions and a summary of the grounds for each opinion. Id., subds. 2(2), 4(a). It is the affidavit of expert review that is at issue here.
The affidavit of expert review must generally be served with the pleadings. Id., subd. 2(1). Failure to serve this affidavit within 60 days after demand "results, upon motion, in mandatory dismissal of each cause of action . . . as to which expert testimony is necessary to establish a prima facie case." Id., subd. 6(a). The requirements for this affidavit "may be waived or modified if the court . . . determines, upon an application served with commencement of the action, that good cause exists for not requiring the certification." Id., subd. 3(c).
Here the district court dismissed appellant's action, concluding that appellant failed to establish (1) a reasonable excuse for failing to meet the statutory deadline; and (2) that she proceeded with due diligence after respondents demanded strict adherence to the time limits. We agree.
It is undisputed that appellant failed to serve the expert-review affidavit either with the pleadings or within the 60-day demand period. And the record contains a September 9, 2004 letter from respondent's counsel to appellant's counsel, acknowledging service of the complaint, stating that the required expert affidavit was not included, and demanding that the deficiency be cured within the statutory time frame or respondent would "obtain the mandatory dismissal provided by law." Notwithstanding this demand, appellant did not serve the affidavit until November 18, 2004, 70 days after the notice of demand and 10 days past the statutory time allowed. Moreover, as emphasized by the district court in denying appellant's request for relief, appellant failed to ask the court for an extension or modification of the affidavit requirement any time within the 60-day demand period.
The only explanation provided by appellant for missing the statutory deadline involved the time it took to secure an expert. Appellant's counsel claims that he found a qualified expert before serving the complaint but subsequently learned that the expert was no longer willing to render an opinion. He states that he missed the deadline because it took additional time to find a new expert. On these facts, we cannot say the district court erred in not granting an extension to appellant. If difficulty in securing an expert was a sufficient basis for securing an extension, the statutory deadlines would be rendered meaningless.
As cited above, the statute requires mandatory dismissal for failing to serve the affidavit of expert review within 60 days of demand. And appellate courts have generally required strict adherence to statutory time limits for submitting expert affidavits in malpractice actions. See, e.g., Anderson v. Rengachary, 608 N.W.2d 843, 849-50 (Minn. 2000) (affirming district court's dismissal of medical malpractice action when plaintiff failed to submit expert-identification affidavit within 180-day time period and contents of affidavit eventually filed did not meet requirements of statute); Moen v. Mikhail, 454 N.W.2d 422, 422 (Minn. 1990) (holding that no reasonable excuse was provided when expert-identification affidavit was furnished late in medical-malpractice action).
On this record we cannot say the district court erred in dismissing appellant's claim with prejudice based on appellant's failure to file an expert-review affidavit within the statutory period.