STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1919
Julie L. Pfeiffer,
Trustee on behalf of the heirs and next of kin of Dale R. Pfeiffer,
Appellant,
vs.
Allina Health System,
d/b/a Allina Hospitals & Clinics Behavioral Health Services,
and d/b/a United Hospital,
Respondent,
Paul A. Ekberg, D. O., P. A., et al.,
Defendants.
Filed July 21, 2014
Reversed and remanded
Huspeni, Judge*
Ramsey County District Court
File No. 62-CV-13-2607
Kay Nord Hunt, Lommen, Abdo, Cole, King & Stageberg, P.A., Minneapolis, Minnesota;
David E. Wandling, Wandling Law Group, PC, Minnetonka, Minnesota; and
Stephen P. Watters, Watters Law Office, Minnetonka, Minnesota (for appellant)
Rebecca Egge Moos, Jessica L. Klander, Bassford Remele, P.A., Minneapolis, Minnesota
(for respondent)
Patrick Stoneking, Robins, Kaplan, Miller & Ciresi, L.L.P., Minneapolis, Minnesota; and
Lori L. Barton, Harper & Peterson, P.L.L.C., Woodbury, Minnesota (for amicus curiae
Minnesota Association for Justice)
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Huspeni,
Judge.
SYLLABUS
A curative expert affidavit filed by a medical-malpractice plaintiff under the safe-
harbor provision of Minnesota Statute § 145.682, subd. 6(c) (2012) is not subject to the
filing deadlines detailed in general rule of practice 115.03.
OPINION
HUSPENI, Judge
On appeal from dismissal of her medical-malpractice action, appellant argues that
the district court erred in determining that Minnesota Statute § 145.682, subd. 6(c)
(2012), governing the filing of affidavits of expert disclosure, is subject to the filing
deadlines set forth in rule of general practice 115.03. We reverse and remand.
FACTS
Factual Background
The present action arises out of a medical malpractice action brought by appellant
Julie L. Pfeiffer (appellant) against respondent Allina Health System, d/b/a Allina
Hospitals & Clinics Behavioral Health Services, and d/b/a United Hospital, (respondent
or Allina) and Paul A. Ekberg, D. O., P. A., and Paul A. Ekberg, D.O. (Ekberg) following
the death of appellant’s husband, Dale Raymond Pfeiffer (decedent), on January 9, 2010.
On January 7, decedent informed his wife that he was distressed because he had
made a mistake at work. Decedent decided to spend the night at his parents’ house. At
about 1:45 a.m. on January 8, 2010, decedent’s parents awoke and found decedent
2
standing in his bedroom, fully dressed, and staring into space. He began pacing in his
bedroom and indicated he was in trouble for taking files from work related to “national
security.” Decedent locked himself in a room in the basement and began striking his
forehead against a hard surface. He attempted to stab himself in the neck with a drill bit
and did stab himself in the neck several times with a mechanical pencil. Decedent’s
parents became alarmed when they saw blood on the floor and called 911 to request help.
Sheriff’s Department officers responded to the emergency call and noted that decedent
appeared to have self-inflicted puncture wounds on his head. An ambulance from Allina
Medical Transportation arrived at the scene and transported decedent to United Hospital
for a psychological evaluation.
Upon decedent’s arrival at the hospital, an emergency room physician treated and
closed decedent’s head wounds. Decedent went into the restroom and emerged with his
wounds open and bleeding profusely. An admitting physician determined that decedent
had inflicted the wounds upon himself and ordered “intensive” patient monitoring for
him. “Intensive” monitoring requires hospital staff to monitor the patient at least once
every fifteen minutes and to keep the bathroom door locked in order to prevent
unsupervised use of the restroom. Decedent was voluntarily admitted to the hospital and
placed in a mental health room pending further evaluation and psychiatric assessment.
On January 8, decedent was assigned to defendant Dr. Ekberg, a psychiatrist
affiliated with the hospital.1 Ekberg, an independent practitioner with a private practice
1
Each patient admitted to the hospital is assigned to an attending physician. The patient
is then admitted to a general pool of patients called the “psychiatry call group.” Patients
3
within the community, participated in the hospital’s call-sharing agreement to provide
psychiatric services to the hospital’s patients. He met with decedent and determined that
he should be admitted for “stabilization, safety and further evaluation.” Ekberg reduced
decedent’s monitoring level from “intensive monitoring” to “close monitoring,” the only
difference being that the patient’s bathroom is unlocked. In addition, Ekberg issued an
order authorizing a four-hour BHS Therapeutic Pass allowing decedent to leave the
psychiatric unit with a family member.
On January 8, appellant went to the hospital to visit her husband and speak with
the doctor. She met with Paula Boeckmann, a registered nurse in the mental health unit,
who stated that Ekberg had left the hospital for the day and was not expected to return.
Boeckmann did not enter appellant’s information into the computer or contact the on-call
doctor to meet with decedent’s family. The protocol within the hospital is that if a family
member wishes to speak to a doctor, a staff member pages the doctor, enters the request
into a computer with the family member’s name and contact information, or pages the
on-call doctor to address the family’s concerns.
On January 8, Boeckmann granted decedent a therapeutic four-hour day-pass pass
for the vicinity of the hospital area. When appellant learned that decedent had been
granted a day pass and that she would be responsible for his care, she became “concerned
and scared.” Boeckmann informed appellant that a day pass was appropriate for decedent
and important for his well-being. Decedent accompanied his wife and his parents to the
admitted through the evening hours are assessed the following morning and assigned an
attending psychiatrist by one of the staff members.
4
hospital cafeteria. After walking to the cafeteria, decedent and his wife sat and talked
quietly before returning to the in-patient psychiatric unit.
On January 9 at approximately 1:30 p.m., Boeckmann again processed a four-hour
day pass for decedent. The pass indicated that decedent would be accompanied by his
spouse and did not require any medications from the pharmacy. With respect to the
destination, the day-pass restricted decedent to “[s]tay around [the] hospital.” The goal
of the pass was to “just go out and enjoy some family time.” Although the language on
the pass issued by Ekberg limited decedent’s movement to the hospital grounds,
Boeckmann encouraged appellant to take decedent for a drive so he could get some time
away from the hospital.
During the drive, decedent became agitated and demanded to be taken to his
parent’s home. Appellant became frightened and said she was going to drive decedent
back to the hospital. At approximately 2:30 p.m., while their vehicle was stopped at a
stop light on the Marion Street overpass in St. Paul, decedent ran from the vehicle and
jumped over the Marion Street overpass fencing onto Interstate 94 below. He died
instantly from multiple traumatic injuries. His death was ruled a suicide.
Procedural Posture
The procedural posture of this case is complicated and encompasses more than
three years of litigation, personal and business bankruptcy filings, and numerous civil
court filings.
5
On May 9, 2011, appellant filed a complaint asserting claims for negligence2 and
vicarious liability against Allina and Ekberg in court file number 62-CV-11-4890 (the
2011 lawsuit). The complaint was brought in the name of “Julie L. Pfeiffer, Trustee on
behalf of the heirs and next of kin of Dale R. Pfeiffer.” Although appellant’s petition for
appointment of trustee was filed in Ramsey County district court on April 8, 2010 and
signed by a judicial officer on April 9, 2010, the judicially-signed petition was not filed
with the Ramsey County district court at the time appellant commenced the 2011 lawsuit.
On November 1, 2011, appellant submitted an expert affidavit of Robert I. Simon, MD,
DLFAPA. Simon is a licensed psychiatrist and forensic psychiatrist. He stated that, in
his medical opinion, Allina and Ekberg failed to meet the applicable standards of medical
care. On February 24, 2012, Allina moved to dismiss the 2011 suit pursuant to Minn.
Stat. § 145.682 and, in the alternative, moved for summary judgment arguing in part that
Simon’s expert affidavit was deficient. Although a hearing was originally scheduled for
this dispositive motion, it was cancelled due to a bankruptcy filing and resulting stay.3
On January 4, 2013, appellant initiated the present lawsuit (the 2013 lawsuit) by
serving a complaint in her capacity as trustee, intending to correct the potential
2
Although appellant styled her cause of action as a negligence claim, the gravamen of the
complaint sounds in medical malpractice and we analyze it as such. D.A.B. v. Brown,
570 N.W.2d 168, 171 (Minn. App. 1997).
3
Ekberg filed for personal bankruptcy on March 12, 2012. There were various delays in
the case attributable to this bankruptcy filing. On August 17, 2012, the bankruptcy court
granted appellant relief from the automatic stay and allowed her to resume the civil
lawsuit against Allina and Ekberg.
6
jurisdictional defect occasioned by the failure to file the 2010 appointment order.4
Simultaneously, appellant served an affidavit of expert review stating that the case had
been reviewed by an expert who was expected to testify that Allina deviated from the
applicable standard of care resulting in injury to the decedent. Allina submitted an
answer on January 17, 2013 alleging that the complaint was subject to the requirements
of Minn. Stat. § 145.682 and demanding that appellant fully comply with the statute.
In March 2013, respondents moved to dismiss the 2011 lawsuit based on the fact
appellant was not a trustee when she initiated the action. On April 17, 2013, appellant
filed the 2013 lawsuit in district court and the parties appeared for a status conference.
The district court issued an order on April 18, 2013 addressing with some specificity the
relationship between the 2011 and 2013 lawsuits:
4
In November 2011, appellant learned that the April 9, 2010 trustee-appointment order,
as signed by the judge, had not been filed with the district court administrator. Attempts
by the parties to stipulate to the delayed filing of the appointment order failed and Allina
and Ekberg urged appellant to dismiss the 2011 case and re-serve the complaint. The
district court later issued an order providing that “[t]he Order appointing Julie L. Pfeiffer
as Trustee, signed on April 9, 2010 is valid, and the Appointment of Trustee Case shall
be filed with the Court on November 30, 2011.” This order, along with the April 9, 2010
order appointing trustee, was filed with the court administrator on November 30, 2011.
On appeal, appellant appears to have adopted Allina’s earlier position that the 2011
lawsuit was “fatally flawed” due to its jurisdictional defect. Ortiz v. Gavenda, 590
N.W.2d 119, 122-23 (Minn. 1999). We have serious concerns about Allina’s conduct in
first acquiescing to the 2011 lawsuit, only to challenge it now on appeal. However,
because the district court ultimately did not address the issue of nullification we will not
address it for the first time on appeal.
7
. . .[T]he parties shall file papers, schedule hearings, and
generally conduct this litigation only in [the 2011 lawsuit].
The amended scheduling order signed on March 28, 2013,
and filed on March 29, 2013, in [the 2011 lawsuit] is hereby
incorporated by reference into [the 2013 lawsuit], is adopted
in its entirety as the governing scheduling order in the
litigation going forward, and is, for all purposes, a part of the
record in that file.
Hearing dates and times that have been obtained by the
parties for motions pending in [the 2011 lawsuit] shall remain
on the Court’s calendar, but shall be conducted as hearings in
[the 2013 lawsuit], and the records of those hearings shall be,
for all purposes, a part of the record in that file.
All papers that have been filed by the parties related to
motions pending in [the 2011 lawsuit] are hereby
incorporated by reference into [the 2013 lawsuit] and are, for
all purposes, a part of the record in that file.
The April 18 order further stated that “[i]t is anticipated that [the 2013 lawsuit]
will be assigned to the undersigned judge as a related case to [the 2011 lawsuit].”
Appellant and Ekberg subsequently reached a settlement and the Ekberg defendants were
dismissed without prejudice from the action.
On June 3, 2013, appellant submitted an amended expert affidavit of Dr. Simon
and an affidavit from a new expert, Carolyn Lucas-Dreiss (Lucas-Dreiss), a clinical nurse
specializing in the area of behavioral health. On June 4, 2013, a hearing was held on
Allina’s motions for dispositive relief. On June 5, 2013, the district court dismissed the
2011 lawsuit without prejudice. On July 31, 2013, the district court declared that
appellant’s affidavits of expert review were insufficient under Minn. Stat. § 145.682,
subdivision 6, and dismissed the complaint in the 2013 lawsuit with prejudice in Allina’s
favor.
8
In its July 31, 2013 order (more fully discussed in the Analysis section of this
opinion) the district court ruled that Simon’s November 1, 2011 affidavit was “afflicted
with noncurable problems” and failed to meet the substantive requirements of the expert
review statute; that Simon’s opinions regarding Ekberg’s malpractice were irrelevant to
appellant’s claims against Allina; that the November 2011 affidavit was insufficient with
respect to Boeckmann, the only other individual identified by name in the affidavit,
because it failed to identify “nursing standards of care, deviations therefrom or a causal
link between such deviations and [decedent’s death];”5 that Dr. Simon’s November 2011
affidavit “was so riddled with fundamental problems that it did not qualify for curative
measures in the form of his amended affidavit and the new affidavit of Ms. Lucas-
Dreiss;” and that even if the safe-harbor provision applied, Dr. Simon’s amended expert
affidavit and Lucas-Dreiss’s expert affidavit, filed on June 3, 2013, were untimely under
Rule 115 of the Minnesota general rules of practice and lacked foundational reliability
under Minnesota Rule of Evidence 702. This appeal followed.
5
The legislature set out specific requirements for the affidavit of expert disclosure. Minn.
Stat. § 145.682, subd. 4. To comply with this portion of the statute, the affidavit of
expert disclosure must (1) disclose specific details concerning the expert's expected
testimony, including the applicable standard of care, (2) identify the acts or omissions
that the plaintiff alleges violated the standard of care, and (3) include an outline of the
chain of causation between the violation of the standard of care and the plaintiff's
damages. Teffeteller, 645 N.W.2d at 428. The district court found that Simon’s affidavit
lacked all three elements and, with respect to Boeckmann, “[did] not explain the how and
the why this terrible suicide can be traced back to [Boeckmann] deviating from a
specified standard of nursing care.”
9
ISSUES
I. Did the district court err in dismissing medical-malpractice action,
concluding that appellant’s affidavit of expert disclosure was flawed to such a degree that
appellant could not avail herself of the statutory safe-harbor provision?
II. Did the district court err in dismissing medical-malpractice action, by first
characterizing the June 3 affidavits as curative affidavits, and then subjecting them to the
timeliness requirements of general rule of practice 115.03?
III. Did the district court abuse its discretion by invading the province of the
jury when it concluded that appellant’s expert affidavits lacked foundational reliability
under Minnesota Rule of Evidence 702?
ANALYSIS
Standard of Review
Dismissal of a medical malpractice action for failure to comply with Minn. Stat.
§ 145.682 is reviewed for an abuse of discretion. See Anderson, 608 N.W.2d at 846
(“We will reverse a district court's dismissal of a suit pursuant to Minn. Stat. § 145.682
only if the district court abused its discretion.”); Stroud v. Hennepin Cnty. Med. Ctr., 556
N.W.2d 552, 555 (Minn. 1996) (“A trial court's dismissal of an action for procedural
irregularities will be reversed on appeal only if it is shown that the trial court abused its
discretion”). Statutory construction and other questions of law, however, are subject to
de novo review. Brown–Wilbert, Inc. v. Copeland Buhl & Co., 732 N.W.2d 209, 215
(Minn. 2007).
10
The parties appear to disagree about the applicable standard of review to be
applied by this court. Not surprisingly, appellant urges a de novo standard and
respondent urges an abuse of discretion standard. Some of the determinations of the
district court require a deferential standard of review by this court; others we review de
novo. In addressing the several decisions of the district court, the applicable standard
will be identified.
I.
The district court erred in determining that the November 1, 2011 expert
affidavit was “non-curable” to such a degree that the statutory safe-harbor
provision could not apply.
In order to establish a claim for medical malpractice, a plaintiff must show: (1) the
standard of care recognized by the medical community as applicable to the particular
defendant's conduct; (2) that the defendant departed from that standard; (3) that the
defendant's departure from that standard was a direct cause of the patient's injuries; and
(4) damages. Tousignant v. St. Louis Cnty., 615 N.W.2d 53, 59 (Minn. 2000). A
medical-malpractice plaintiff must meet two procedural requirements: first, the plaintiff
must serve with the complaint an affidavit of the plaintiff's attorney stating that the
attorney has reviewed the case with an expert and that in the expert's opinion the
defendant injured the plaintiff due to a deviation from the standard of care; second, the
plaintiff must serve an affidavit identifying the experts who will testify at trial, the
substance of their testimony, and a summary of the grounds for their opinions within 180
days of the commencement of the suit. Minn. Stat. § 145.682, subds. 2-4 (2012);
Anderson v. Rengachary, 608 N.W.2d 843, 846 (Minn. 2000).
11
Addressing Simon’s November 2011 affidavit, the district court dismissed as
irrelevant any opinions regarding malpractice by Ekberg as supporting a claim against
Allina, inasmuch as Ekberg was not an employee of Allina. As to any reference to
Boeckmann in the affidavit, the district court stated: “Dr. Simon does not identify
nursing standards of care, deviations therefrom or a causal link between such deviations
and Dale Pfeiffer’s death.” The district court thereafter dismissed appellant’s complaint
for failure to comply with the statutory requirements. See Minn. Stat. § 145.682, subd.
6(c) (2012) (mandating that failure to comply with the requirements of the expert review
statute results in mandatory dismissal with prejudice of the lawsuit); Lindberg v. Health
Partners, 599 N.W.2d 572, 577-78 (Minn. 1999) (holding that Minn. Stat. § 145.682 is
unambiguous and requires strict compliance with its provisions).
The expert review statute provides plaintiff with 45 days after a defendant moves
for dismissal to correct alleged deficiencies in an expert disclosure affidavit. Minn. Stat.
§ 145.682, subd. 6(c). This safe-harbor provision was added to correct a perception that
“meritorious medical malpractice claims were being dismissed where the expert
disclosure affidavit was only missing some technical information that could be
corrected.” Wesely v. Flor, 806 N.W.2d 36, 40 (Minn. 2011). The applicability of the
safe-harbor provision is a question of law subject to de novo review. Brown–Wilbert,
Inc., 732 N.W.2d at 215.
In declaring that Simon’s affidavit “which appears to have been relied upon by
(plaintiff’s) counsel is afflicted with noncurable problems” the district court relied
principally on Brown-Wilbert, Inc., 732 N.W.2d at 209, an accounting-malpractice case
12
arising under Minn. Stat. § 544.42 (2007). In that case, the Minnesota supreme court
held that a curative affidavit could be used to repair minor technical deficiencies in an
otherwise-sufficient expert affidavit and concluded that “it is also undoubtedly true that
an affidavit is not sufficient to satisfy the 180–day requirement if the deficiencies are so
great that it provides no significant information,” as “[a]ny other interpretation would
render the 180–day requirement meaningless.” Id. at 217-18.
We find that Wesely v. Flor, 806 N.W.2d 36 (Minn. 2011), rather than Brown-
Wilbert, provides substantial guidance on the issue of the sufficiency of an initial expert
affidavit in a medical-malpractice case. Wesely recognized that unlike the statute
addressing accounting malpractice in Brown-Wilbert, under which the district court
triggers the safe-harbor period when it finds the plaintiffs expert disclosure affidavit is
deficient, the medical-malpractice statute does not contemplate that a trial court will
make factual determinations regarding the sufficiency of the initial expert affidavit. Id.
Indeed, the safe-harbor period under section 145.682 “is an automatic, 45-day delay
before the court hears any arguments or makes any decisions regarding deficiencies in the
affidavit.” Id. at 41-42.
The Wesely court concluded that Brown-Wilbert was distinguishable on both the
facts and the law and did not control in medical-malpractice cases arising under a
different statutory scheme. Id. at 41. With respect to Minn. Stat. § 145.682, the Wesely
court held that “[t]he statute plainly states that the safe-harbor period applies every time
the defendant moves to dismiss under Minn. Stat. § 145.682, subd. 6.” Id. at 41. Thus,
the safe-harbor period is not limited to only “certain types of deficiencies.” Id. Indeed,
13
the Wesely court took such an expansive view of a plaintiff’s ability to cure that it
concluded that Minn. Stat. § 145.682 allows a plaintiff to submit an affidavit identifying
a new, previously undisclosed expert in order to cure any deficiencies in the initial
affidavit of expert disclosure. Id. at 44. Given Wesely’s broad treatment of the safe-
harbor provision in medical-malpractice cases, we find the district court erred in making
a factual determination that appellant’s first affidavit was so deficient that the safe-harbor
provision could not be utilized.6
II.
A.
The district court erred in characterizing the June 3, 2013 expert affidavits as
curative affidavits.
In its order, the district court characterized Simon and Lucas-Dreiss’s June 3
affidavits as curative of Simon’s affidavit submitted in the 2011 action. Appellant argues
that this characterization deprived her of the full 180-day statutory period within which to
file expert affidavits—initial as well as curative—in the 2013 action. We agree.
We are not insensitive to the fact that the procedural record here is exceedingly
complex, and that complexity added to the burden placed upon the district court as it
sorted through the arguments of the parties. As discussed above, the parties disagree, and
understandably so, with regard to whether the substantive issues addressed by the court
are based on the suit commenced in 2011, the suit commenced in 2013, or on a
6
It is understandable that Simon’s November 2011 affidavit would emphasize the conduct
of Ekberg rather than that of Boeckmann, given that Ekberg was at that time still a
defendant in the 2011 lawsuit.
14
coordination or combination of the two. The language of the district court’s April 18,
2013 order seems to support a decision by this court that by incorporating the scheduling
order, hearing dates and times, records, and all papers filed by the parties from the 2011
suit into the 2013 suit, reliance could reasonably be placed on both suits.
It is uncontested that appellant initiated the 2013 suit on January 4 of that year,
and that the district court held its hearing on respondent’s motion to dismiss on June 4,
fewer than 180 days later. We conclude that the clear mandate of Minn. Stat. S 145.682,
as well as consistent compliance with the April 18, 2013 order, required that the district
court give appellant 180 days after commencement of her 2013 suit to serve affidavits
identifying the experts who would testify at trial, the substance of their testimony, and a
summary of the grounds for their opinions. Minn. Stat. § 145.682, subds. 2-4 (2012). By
dismissing the suit before the 180-day period had run, the district court erred.
Given the tangled nature of the record here, it is possible to resolve the
determinative issues by examining, as did the district court, the record of all proceedings
since May 9, 2011 through June 4, 2013. Doing so, it seems to us, would be consistent
with the expansive interpretation of Minn. Stat. § 145.682 evidenced in Wesely v. Flor,
806 N.W.2d at 41-42.
B.
The district court erred in determining that the June 3, 2013 expert affidavits
were untimely under Minn. Stat. § 145.682.
As discussed above, we find that appellant was entitled to the full 180-day period
to file her expert affidavits. Our conclusion that this matter must be reversed and
15
remanded is further bolstered by the district court’s mistaken application of rule 115.03
of the rules of general practice to the facts of this case7 when, in considering the June 3,
2013 affidavits as curative, it further ruled them to be untimely.
The safe-harbor provision of Minn. Stat. S 145.682 provides that a hearing on a
motion to dismiss must be “at least 45 days from the date of service of the motion” and
that the curative affidavits must be served “before the hearing.” Minn. Stat. § 145.682,
subd. 6(c) (2012). Appellant submitted her affidavits on June 3, one day in advance of
the June 4 dispositive motion hearing date. The district court held the curative affidavits
were untimely. In doing so, the court theorized that Minn. Stat. § 145.682, subd. 6(c)
must be read in conjunction with rule 115.03 of the rules of general practice, which
requires a party responding to a dispositive motion under Minnesota rule of civil
procedure 56.03 to submit its opposition memorandum and any supplementary affidavits
“at least nine days prior to the hearing.” Minn. R. Gen. Pract. 115.03(b) (2012).
Appellant and amici curiae argue that the district court’s holding conflicts with the plain
language of Minn. Stat. § 145.682 and is clearly contrary to the legislative intent. We
agree.
The issue in this case is one of first impression, to wit: the interplay between
Minn. Stat. § 145.682, subd. 6(c), and Rule 115.03. As a matter of statutory
interpretation, this question is subject to de novo review. Wesely, 806 N.W.2d at 39.
7
Rule 115.03 is a general rule of practice. The general rules of practice “shall govern all
the district courts of the state.” Minn. Stat. § 484.33 (2012). They may be relaxed or
modified “in furtherance of justice.” Id. Enforcement of local rules, such as rule 115, is
left to the discretion of the district court. Hopkins by LaFontaine v. Empire Fire &
Marine Ins. Co., 474 N.W.2d 209, 212 (Minn. App. 1991).
16
District court procedures are governed by the rules of civil procedure unless
specifically excepted by the rules. Minn. R. Civ. P. 1, 81.01. The rules of civil
procedure arise from the supreme court’s power to regulate “the pleadings, practice,
procedure, and the forms” in civil actions. Minn. Stat. § 480.051 (2012). However, these
rules “shall not abridge, enlarge, or modify the substantive rights of any litigant.” Minn.
Stat. § 480.051 (2012). “[S]ubstantive law is that part of the law which creates, defines,
and regulates rights, as opposed to ‘adjective or remedial’ law, which prescribes method
[sic] of enforcing the rights or obtaining redress for their invasion.” Stern v. Dill, 442
N.W.2d 322, 324 (Minn. 1989) (citing Meagher v. Kavli, 251 Minn. 477, 488, 88 N.W.2d
871, 879–80 (1958)); Lombardo v. Seydow-Weber, 529 N.W.2d 702, 704 (Minn. App.
1995) (“A statute that does not create a new cause of action or affect a defense is
procedural.”).
Many statutes “have both procedural and substantive aspects.” Lombardo, 529
N.W.2d at 704 (Minn. App. 1995). The court’s analysis in Lombardo is informative, as it
involves a similar issue. In Lombardo, the trial court concluded that rule 41.01(b)8
superseded section § 145.682, subd. 6 and dismissed plaintiff’s medical-malpractice
action for procedural irregularities. 529 N.W.2d 703. The issue on appeal was whether
the legislature, by enacting section 145.682, usurped the trial court's inherent powers to
control procedural matters. Id. at 704. In addressing the mixed procedural and
8
This rule provides as follows: “Except as provided in clause (a) of this rule, an action
shall not be dismissed at plaintiff's instance except upon order of the court and upon such
terms and conditions as the court deems proper. Unless otherwise specified in the order,
a dismissal herein is without prejudice.” Minn. R. Civ. P. 41.01(b).
17
substantive nature of the medical-malpractice statute, the supreme court determined that
the timing requirements of section 145.682 were procedural in nature. Id. at 705.
Lombardo’s analysis was informed in part by the earlier case of Stern v. Dill, 442
N.W.2d 322 (Minn. 1989), in which the Minnesota supreme court considered whether the
requirement that an expert-affidavit in a medical-malpractice case be filed within 180
days was procedural or substantive. Id. at 324. The supreme court concluded that the
time limits set forth under sections 145.682, subd. 2(2) and subd. 3, relating to the initial
180-day affidavit of expert review, were procedural. Id. As a result, the time for serving
an expert affidavit under the statute could be extended under rule 6.02, even after the
time limits had expired.9 Id.
There are several instances in which a court has authorized the extension of the
expert-affidavit timelines. The statute itself provides that the parties may agree to extend
the 180-day time limit or the court may extend the time limit “for good cause shown.”
Minn. Stat. § 145.682, subd. 4(b) (2012). More recently, we addressed the issue of when
the parties or the court may extend the statutory expert-review deadlines for good cause.
Mercer v. Andersen, 715 N.W.2d 114, 123 (Minn. App. 2006). The Mercer court
reiterated that the statutory provisions of Minn. Stat. § 145.682 must be read in
conjunction with the rules of civil procedure, and we held the district court did not abuse
its discretion in denying plaintiff’s motion to extend the scheduling-order deadline
because plaintiff failed to show excusable neglect under rule 6.02. Id.
9
Rule 6.02 of the Minnesota Rules of Civil Procedure authorizes a court to extend the
statutory time limits for filing an affidavit where failure to act was the result of excusable
neglect.
18
Stern is distinguishable, as it addressed the extension of the statutory deadline in
Minn. Stat. § 145.682. This case involves the curtailment of a deadline and compels a
different conclusion. Lombardo is again instructive. In addition to the holding in
Lombardo that the deadlines of section 145.682 were procedural in nature, that opinion
held that insofar as section 145.682 requires mandatory dismissal of malpractice claims,
it “regulates substantive rights, has a jurisdictional component, and can be outcome
determinative.” 529 N.W.2d 705. Importantly, Lombardo concluded that a medical-
malpractice defendant could not rely on a court rule to “circumvent a substantive
provision of a statute.” Id. We conclude that here the district court erred by applying
rule 115.03 to Minn. Stat. § 145.682.
Section 145.682 is determinative with respect to the timeliness of expert affidavits.
The object of all interpretation and construction of laws is to ascertain and effectuate the
intention of the legislature. Minn. Stat. § 645.16 (2012). “When the language of a statute
is plain and unambiguous, it is assumed to manifest legislative intent and must be given
effect.” Burkstrand v. Burkstrand, 632 N.W.2d 206, 210 (Minn. 2001). “Section
145.682 is unambiguous and requires strict compliance with its provisions.” Mercer, 715
N.W.2d at 122. Subdivision 6 mandates that a motion to dismiss hearing must be set “at
least 45 days from the date of service of the motion,” and the curative affidavits must be
provided “before the hearing.” Minn. Stat. § 145.682, subd. 6(c); see also Wesely, 806
N.W.2d at 41-42 (“[T]he safe-harbor period is an automatic, 45-day delay before the
court hears any arguments or makes any decisions regarding deficiencies in the
affidavit.”). Appellant’s June 3 affidavits were served before the hearing and are timely
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under a plain reading of Minn. Stat. § 145.682, subd. 6(c). The legislature may
ultimately determine to amend the statute to achieve a result consistent with that reached
by the district court but we will not encroach upon the right of the legislature to enact law
by “writ[ing] into a statute what the legislature did not.” Hutchinson Tech., Inc. v.
Comm’r of Revenue, 698 N.W.2d 1, 12 (Minn. 2005). Based upon a clear reading of the
statute, we conclude that appellant’s June 3 affidavits were timely and the district court
erred in invoking rule 115 and holding otherwise.
II.
The district court abused its discretion in determining that the June 3, 2013
expert affidavits lacked foundational reliability.
The appellate court applies an abuse-of-discretion standard of review to a district
court’s ruling on the admissibility of expert testimony. Teffeteller, 645 N.W.2d at 426-
27. Evidentiary rulings concerning “materiality, foundation, remoteness, relevancy, or
the cumulative nature of the evidence” are within the trial court’s sound discretion.
Johnson v. Washington Cnty., 518 N.W.2d 594, 601 (Minn. 1994).
Here, the district court found that the June 3 affidavits were built upon the “faulty
premise” that Boeckmann had a legal duty to override Ekberg’s order to issue therapeutic
day-passes. The district court stated that “[t]here is no sufficient foundation for this
suggestion” and concluded that even if it were to “unreasonably bend the rules and allow
the last-minute expert disclosures of [appellant], her affidavits still run afoul of Rule 702
of the Minnesota rules of Evidence requiring adequate foundation.” The district court
then selectively identified certain evidence in the record suggesting that decedent was
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making positive progress and successfully used a day-pass on January 8, 2010, without
incident. The district court further faulted the affidavits for failing to address other
important facts relating to the issuance of the January 9, 2010 day-pass, including
Boeckmann’s encouragement to appellant that she take decedent for a drive, the lack of
geographical restrictions on the day-pass, and the designation that decedent was subject
to “close” monitoring.
Rule 702 governs the admissibility of expert testimony and provides that “[i]f
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. A rule 702 foundational reliability
analysis requires the district court to: (1) analyze the proffered testimony in light of the
purpose for which it is being offered, (2) consider the underlying reliability, consistency,
and accuracy of the subject about which the expert is testifying, and (3) determine if the
proffered evidence is reliable. Doe v. Archdiocese of St. Paul & Minneapolis, 817
N.W.2d 150, 167-68 (Minn. 2012).
The district court did not perform a Rule 702 analysis as elucidated in Archdiocese
of St. Paul & Minneapolis with respect to Simon’s and Lukas-Dreiss’s June 3 expert
affidavits. Again underscoring our recognition of the complex record with which the
district court was working, we conclude that the district court acted as the fact-finder and
based its decision on its view of the evidence. In so doing, the district court intruded
upon a function customarily reserved for the fact-finder at trial. The reliability of
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appellant’s expert opinion testimony with regard to causation goes to the “relative
weight” of that testimony rather than to its admissibility. State v. Myers, 359 N.W.2d
604, 611 (Minn. 1984). Any weaknesses in the testimony related to whether Boeckmann
failed to perform the duties required of her as a nurse are relevant to the weight of
appellant’s evidence but not to its admissibility. See Sentinel Mgmt. Co. v. Aetna Cas. &
Sur. Co., 615 N.W.2d 819, 824 (Minn. 2000). Several factual allegations in the record
are contested, including by way of example, what Boeckmann and other hospital staff
members knew about decedent’s condition, whether Boeckmann improperly issued a
day-pass without contacting a physician to address the family’s concerns, whether
decedent’s day-pass was limited to hospital grounds, and related factual inquiries.
Ultimately, the weight and credibility to be given to appellant’s witnesses—including
Simon’s and Lukas-Dreiss’s testimony—should be decided by a finder-of-fact and not by
the district court. See Knuth v. Emergency Care Consultants, P.A., 644 N.W.2d 106, 112
(Minn. App. 2002), review denied (Minn. Aug. 6, 2002).
Cognizant of both the necessity to comply with the intention of the legislature as
expressed in Minn. Stat. § 145.682 to prevent frivolous malpractice lawsuits and of the
caution expressed in Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 192
(Minn. 1990) that the “primary objective of the law is to dispose of cases on the merits,”
we conclude that this case must be reversed and remanded to the district court to enable
the fact-finder to resolve issues that remain.
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DECISION
The district court erred in concluding that appellant’s affidavit of expert disclosure
was fatally flawed such that the statutory safe-harbor provision could not attach; that the
district court erred by failing to give appellant the full 180 days within which to file
expert affidavits and by mischaracterizing her June 3 affidavits as curative and subjecting
them to the inapplicable timeliness requirements of general rule of practice 115.03; and
the district court abused its discretion by invading the province of the jury in its
foundational reliability analysis.
Reversed and remanded.
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