Petri R. Carmen v. Mayo Foundation ( 1996 )

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No. 95-2559
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Petri R. Carmen; Laila T. *
Kujala-Carmen, family and *
friends of Petri R. Carmen, *
*
Appellants, *
*
v. * Appeal from the United States
* District Court for the
Mayo Foundation, doing business * District of Minnesota.
as Mayo Clinic; St. Mary's *
Hospital; Rochester Methodist * [UNPUBLISHED]
Hospital, *
*
Appellees. *
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Submitted: March 26, 1996
Filed: March 27, 1996
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Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Petri and Laila Kujala-Carmen filed a pro se diversity medical
malpractice action alleging defendants negligently diagnosed and treated
Petri for various medical problems. The district court1 concluded that the
Carmens' malpractice claims were outside the common knowledge of the lay
juror, and thus the requisite standard of care, causation, and damages
could not be established without expert testimony. Citing Minn. Stat.
§ 145.682, the district court dismissed, on defendants' motion, the
Carmens' complaint with prejudice for failing to comply with the statute's
expert identity
1
The HONORABLE RICHARD H. KYLE, United States District Judge
for the District of Minnesota.
and opinions affidavit requirement, and this appeal followed.
We agree with the district court that expert testimony was necessary
for the Carmens to pursue their malpractice action, and that the Carmens'
failure to comply with Minnesota's expert affidavit requirements mandated
dismissal with prejudice. See Sorenson v. St. Paul Ramsey Medical Ctr.,
457 N.W.2d 188, 190 (Minn. 1990). We reject the Carmens' attempt to
supplement the record with regard to this claim, and grant defendants'
motion to strike the newly submitted evidence. See Dakota Indus., Inc. v.
Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir. 1993).
As to the Carmens' argument that the statute unconstitutionally
violates their Seventh Amendment right to a jury trial, we see no merit to
the contention that a party who has failed to present a prima facie case
has a right to a jury trial. We do not consider the Carmens' remaining
constitutional arguments presented for the first time on appeal. See
United States v. Dixon, 51 F.3d 1376, 1383 (8th Cir. 1995).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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