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Broehm v. Rochester1/20/2005
ismiss. Our court has stated as an "incontestable proposition " that in a motion to dismiss "the facts alleged by complaint and affidavit are to be taken as true, and that the motion should not be granted unless the plaintiff fails to make out a prima facie case." Hardrives, Inc. v. City of LaCrosse, Wis., 307 Minn. 290, 296, 240 N.W.2d 814, 818 (1976) (citing Hunt v. Nev. State Bank, 285 Minn. 77, 172 N.W.2d 292 (1969)). We have also held that it is immaterial whether the plaintiff can prove the facts alleged in a complaint. Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739 (Minn. 2000) (citing Royal Realty Co. v. Levin, 244 Minn. 288, 290, 69 N.W.2d 667, 670 (1955)). Even at a later stage in the proceeding, such as a motion for summary judgment, a court "must take the evidence in a light most favorable to the nonmoving party." Fairview Hosp. v. St. Paul Fire & Marine, 535 N.W.2d 337, 341 (Minn. 1995) (citing Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).
In Sorenson, we recognized that section 145.682's sanction of abrupt termination with prejudice of potentially meritorious claims runs counter to our traditional preference for disposing of claims on their merits. 457 N.W.2d at 192. We have encouraged district courts to "carefully evaluate the degree of prejudice to the defendant caused by the inadequate disclosures" and suggested less drastic alternatives to procedural dismissal in cases where a plaintiff identifies experts and gives some meaningful disclosure of what that testimony will be. Id. at 193 (citing Dennie v. Metropolitan Med. Ctr., 387 N.W.2d 401, 406 (Minn. 1986)). For these reasons, dismissal of Broehm's case on the grounds articulated by the district court does not further an interest in adjudicating claims on their merits. Therefore, for all of the reasons stated above, the district court's dismissal of Broehm's action for nursing malpractice on the ground that the Wick disclosure failed to meet the requirements of section 145.682 was an abuse of discretion.
II.
Holding that the Wick disclosure meets the requirements of section 145.682 to the extent that Broehm may proceed with the nursing malpractice claim means that our affirmance of the district court's denial of an extension will not result in the complete dismissal of Broehm's action. Having met the section 145.682 deadline with one expert disclosure and thereby preserving the nursing malpractice cause of action, I note that a separate issue may arise. This issue is whether Broehm is permitted to later supplement or even replace the Wick disclosure with that of another expert--though still limited to the nursing duty to inspect the restraint as if it were a dressing.
Section 145.682 contains several possibly contradictory provisions regarding whether additional or substitute experts may be identified following the deadline for expert disclosure. Subdivision 4(a) requires the plaintiff to "state the identity of each person whom plaintiff expects to call as an expert witness at trial to testify with respect to the issues of malpractice or causation." Minn. Stat. § 145.682, subd. 4(a). However, subdivision 4(b) provides that "Nothing in this subdivision may be construed to prevent either party from calling additional expert witnesses or substituting other expert witnesses." Minn. Stat. § 145.682, subd. 4(b) (2004) (emphasis added). Also, subdivision 4(c) states:
The court shall include in a scheduling order a deadline prior to the close of discovery for all parties to answer expert interrogatories for all experts to be called at trial. No additional experts may be called by any party without agreement of the parties or by leave of the court
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