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Brown-Wilbert11/22/2005
Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).
I.
Minnesota statutes require plaintiffs in an action alleging professional negligence or malpractice to serve on defendants two affidavits. Minn. Stat § 544.42, subd. 2 (2004). The first affidavit is the affidavit of expert review, which must generally be served with the pleading. Id., subds. 2, 3 (2004). The affidavit must be drafted by the party's attorney and state that, the facts of the case have been reviewed by the party's attorney with an expert whose qualifications provide a reasonable expectation that the expert's opinions could be admissible at trial and that, in the opinion of this expert, the defendant deviated from the applicable standard of care and by that action caused injury to the plaintiff . . . .
Id., subd. 3(1).
The second affidavit is the identification of experts to be called. Id., subds. 2, 4 (2004). Failure to comply with the affidavit requirements "results, upon motion, in mandatory dismissal of each cause of action with prejudice as to which expert testimony is necessary to establish a prima facie case." Minn. Stat. § 544.42, subd. 6 (2004). Minnesota courts have been firm in holding that failure strictly to satisfy expert disclosure requirements will result in dismissal of a claim with prejudice. Broehm, 690 N.W.2d at 726; see Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 428 (Minn. 2002) (dismissal mandated when expert disclosure falls short of the substantive disclosure requirements); Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 578 (Minn. 1999) (dismissal of malpractice action mandated when expert disclosure contains only "broad and conclusory statements"). But the statute includes safe-harbor provisions for a party who does not comply. Minn. Stat. § 544.42, subd. 6(a), (c).
Appellants argue that the safe-harbor provisions of the statute protect them from mandatory dismissal. Under Minn. Stat. § 544.42, subd. 6 (a), " ailure to comply with [the affidavit of expert review requirement] within 60 days after demand for the affidavit results, upon motion, in mandatory dismissal of each cause of action with prejudice as to which expert testimony is necessary to establish a prima facie case." (Emphasis added.) Typically--and preferably--when a defendant discovers that an affidavit of expert review has not been filed, a routine letter is sent to the plaintiff demanding the affidavit. That was not done here. Indeed, respondents never made a demand specifically for the affidavit of expert review. Thus, appellants argue that respondents' September 21 motion to dismiss was the demand for the affidavit and that by supplying their affidavit of October 15--twenty-four days after respondents' motion to dismiss--they complied with the safe-harbor requirement.
Respondents, however, argue that they demanded the affidavit of expert review when they served their first set of interrogatories on about May 18 and that appellants' October 15 affidavit was therefore untimely. Respondents' interrogatories included questions regarding any expert witnesses and requested the identity of and contact information for anyone having knowledge of the facts substantiating the claims and the substance of their knowledge. The interrogatories did not specifically mention Minn. Stat. § 544.42 or use the word "affidavit."
The district court determined that respondents' May 18 request for interrogatories was the demand for the affidavit of expert review, thus putting appellants' October 15 affidavit well outside the 60-day safe harbor. It is clear from the plain language of the statute that the intent of the affidavit of expert review requirement is to ensure that attorne
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