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Brown-Wilbert11/22/2005
ys consult an expert before bringing a negligence or malpractice suit against a professional. See Minn. Stat. § 544.42, subd. 3(a)(1) (2004); Minn. Stat. § 645.08 (2004). Although respondents' interrogatories may not have been a clear demand for the affidavit of expert review, appellants' answers to those interrogatories made it clear that an expert review had not occurred before the action was brought. On June 18, three months after the suit was brought, appellants merely answered that their experts had been "recently retained . . . [and were] expected to testify as to the conclusions set forth in the Complaint, based upon the facts alleged in the Complaint." The record failed to show that appellants had consulted any other expert.
We discourage future litigants from using interrogatories to make a demand for an affidavit of expert review. But on these peculiar facts, we cannot conclude that the district court abused its discretion in holding that respondents' request for interrogatories was effectively the demand for the affidavit and that appellants failed to provide the affidavit in a timely fashion. Because failure to satisfy either of the expert disclosure requirements results in dismissal of a claim with prejudice, we do not address appellants' contention that the district court also erred in holding that appellants did not satisfy the disclosure requirements for the second affidavit relating to the identification of experts. Accordingly, the district court properly dismissed appellants' professional-malpractice claim with prejudice.
II.
Appellants acknowledge that an accounting-malpractice claim is premised on a breach of the standard of care applicable to accountants, thereby requiring expert testimony to establish a prima facie case. Appellants argue that, even if the accounting malpractice was properly dismissed, the district court erred in dismissing the other three counts--breach of contract; breach of fiduciary duty; and restitution--because these claims do not require expert testimony to establish a prima facie case so that expert affidavits were not required. See Minn. Stat. § 544.42, subd. 6 (stating that failure to comply with the affidavit requirements "results, upon motion, in mandatory dismissal of each action with prejudice as to which expert testimony is necessary to establish a prima facie case" (emphasis added)).
In their motion to dismiss, respondents argued that all of appellants' claims required expert testimony to establish a prima facie case. The district court, presumably agreeing with respondents' argument but without providing any analysis, dismissed all of the claims.
Respondents' claim has merit. But appellants' position is persuasive as well. For example, appellants claim that their breach-of-contract count is premised on the terms of the annual contracts with engagement letters executed by the accountants at Brown-Wilbert. To the extent that characterization is accurate, it is not immediately clear why expert testimony is necessary to establish a prima facie case for this count. Accordingly, we conclude that the district court abused its discretion by dismissing all of the claims without analyzing whether the three remaining claims required expert testimony to establish a prima facie case. We remand to the district court for such analysis and a determination.
III.
Respondents argued as an alternative basis for summary judgment that the releases signed as a part of the 2003 settlement agreement between the parties provided an additional basis for dismissal of the case. Respondents argued that a contract providing the general release of all claims against a tortfeasor (Jerry Brown) from all li
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