STATE OF MINNESOTA
IN COURT OF
M.D., et al.,
Connie Ring, R.N., et
Filed June 6, 2006
File No. C6-04-4675
J. Mark Catron, Patrick W.
Ostergren, Hansen, Dordell, Bradt, Odlaug & Bradt, PLLP, 3900 Northwoods
Drive, Suite 250, St. Paul, MN 55112-6973 (for appellant)
Mark W. Hardy, Geraghty, O’Loughlin & Kenney, 386 North Wabasha Street, Suite 1400, St.
Paul, MN 55102(for respondents Steven Andersen, M.D., et al.)
Mike Hatch, Attorney General, P. Kenneth Kohnstamm, Assistant Attorney
General, 1100 Bremer
Tower, 445 Minnesota Street, St. Paul, MN 55101(for respondents Connie
Ring, R.N., et al.)
Considered and decided by Halbrooks,
Presiding Judge; Lansing, Judge; and Shumaker, Judge.
Y L L A B U S
a motion to dismiss based on insufficient service of process and expiration of
the statute of limitations, the district court has jurisdiction to determine the
substantive effect of the statute of limitations even if the plaintiff concedes
that service was insufficient.
plaintiff does not engage in a diligent search for purposes of tolling the
statute of limitations under Minn. Stat. § 541.13 (2004) when the plaintiff
knows that the defendant does not reside in Minnesota but makes no attempt to locate him
outside the state.
P I N I O N
The district court dismissed with prejudice
Robert Mercer’s medical-malpractice claims against Steven Andersen and partially
dismissed his malpractice claims against the remaining defendants for failure
to comply with the expert-review requirements of Minn. Stat. § 145.682(2004). On appeal Mercer challenges both dismissals. Because we conclude that the district court properly
exercised its jurisdiction by dismissing the complaint against Andersen as
outside the statute of limitations, correctly applied the statutory
expert-review requirements, and acted within its discretion by denying Mercer’s
motion to extend the scheduling-order deadline, we affirm.
A C T S
Mercer was an inmate at a Minnesota
correctional facility in May 2000 when he developed an inflammation related to
his previously diagnosed condition of psoriasis and sought treatment at the
facility’s health clinic. Dr. Steven
Andersen consulted with Mercer and prescribed a treatment of ultraviolet
light. Andersen ordered Mercer to expose
the inflamed area of his face to ultraviolet light for twenty minutes, three
times a week, for six months. Mercer
began the self-administered treatment the next day. Connie Ring, a nurse at the facility, showed him
Andersen’s order prescribing treatment and instructed him on the use of the
light machine and the necessity of wearing protective goggles. In his first and only treatment session,
Mercer did not wear the goggles and, wearing only his underwear, exposed his
entire body to the ultraviolet light for approximately fifteen minutes. As a result of this session, Mercer sustained
burns all over his body and also experienced eye pain. He was diagnosed with keratitis, an
inflammation of the cornea.
March 2004 Mercer sued Andersen, Ring, Correctional Medical Services, Inc., and
the State of Minnesota Department of Corrections for negligence and
battery. Mercer did not obtain personal
service of Andersen who had moved to Haiti with his family in August
2000 to accept a position as medical director of a missionary clinic. In July 2004 Andersen moved to dismiss the
claims against him for insufficiency of process and expiration of the statute
of limitations. The district court
dismissed the complaint with prejudice, reasoning that the statute of
limitations barred the action. The
district court then granted partial dismissal for the remaining parties under
Minn. Stat. § 145.682, subd. 6 (2004), holding that Mercer failed to
satisfy the statutory expert-review requirements for medical-malpractice claims
because his expert affidavit failed to address causation between the alleged
negligent acts and Mercer’s alleged permanent injuries. The court also denied Mercer’s motion to
extend the scheduling-order deadline to allow him to comply with the
raises four issues on appeal. First, he
argues that the court lacked jurisdiction to dismiss his case against Andersen
with prejudice. Second, he asserts that,
even if the court had jurisdiction, Andersen’s absence from Minnesota tolled the statute of
limitations. Third, he contends that the
court erred by dismissing his claims alleging permanent injuries because he
complied with the requirements of the expert-review statute. Finally, Mercer argues that, if his expert
affidavit did not satisfy the statutory requirements, the court erred by
denying his motion to extend the scheduling-order deadline for good cause.
S S U E S
When the plaintiff concedes that service was
insufficient, does the district court have jurisdiction to determine whether
the statute of limitations bars the claim?
Did the district court err by concluding that a
nonresident defendant was subject to service of process in Minnesota and that the
plaintiff did not conduct a diligent search under Minn. Stat. § 541.13 (2004)
that would toll the statute of limitations?
Did the district court abuse its discretion by
partially dismissing medical-malpractice claims for noncompliance with the expert-review
requirements of Minn. Stat. § 145.682 (2004)?
Did the district court abuse its discretion by denying the
plaintiff’s motion to extend for excusable neglect a scheduling-order deadline?
N A L Y S I S
Jurisdiction is a question of law, which we
review de novo. Johnson v. Murray, 648 N.W.2d 664,
670 (Minn. 2002). Mercer argues that because he conceded that
service on Andersen was insufficient, the court lacked jurisdiction to consider
that part of Andersen’s motion requesting dismissal with prejudice based on
expiration of the statute of limitations.
We are unable to find authority that supports Mercer’s claim that the
court exceeded its jurisdiction by considering the effect of the statute of
limitations on Mercer’s claims against Andersen.
A case commences when a
summons and complaint are served.
Minn. R. Civ. P. 3.01-.02. Ineffective service of a defendant results in
a lack of personal jurisdiction. Tullis v. Federated Mut. Ins. Co., 570
N.W.2d 309, 311 (Minn. 1997). Although a court’s authority over an
ineffectively served defendant may be circumscribed, the court has the power to
determine whether it has jurisdiction. United States v. United Mine Workers of Am., 330 U.S.
258, 290-92, 67 S. Ct. 677, 694-95 (1947) (holding that court has jurisdiction
to determine whether it has jurisdiction); Carter
v. United States, 135 F.2d 858, 861 (5th Cir. 1943) (“[E]xcept in case of
plain usurpation, a court has jurisdiction to determine its own
jurisdiction.”); see also Dan B.
Dobbs, Beyond Bootstrap: Foreclosing the
Issue of Subject-Matter Jurisdiction Before Final Judgment, 51 Minn. L.
Rev. 491, 494 (1967) (discussing court’s ability to determine whether it has
jurisdiction unless legislature has stated otherwise).
Andersen, the ineffectively
served defendant, has not challenged the district court’s jurisdiction to
determine the statute-of-limitations issue.
To the contrary, it is Andersen’s motion for dismissal with prejudice
that invokes the district court’s consideration of the issue. Mercer has neither directly challenged Andersen’s
capacity to raise the statute-of-limitations issue nor argued that this request
for relief waived Andersen’s defense of insufficient service of process. See
Patterson v. Wu Family Corp., 608 N.W.2d 863, 867-68 (Minn.
2000) (addressing circumstances under which defendant involuntarily waives
defense of lack of personal jurisdiction).
Instead, Mercer argues that a court dismissing a case for lack of
personal jurisdiction has no authority to decide any other issue and must
dismiss the action without prejudice. We
conclude that Mercer characterizes the district court’s authority too narrowly.
Statutes of limitations are
both procedural and substantive because they regulate when a party may file a
lawsuit and when a lawsuit is barred. Lombardo v. Seydow-Weber, 529 N.W.2d
702, 704 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995). Although the statute of limitations is a
waivable affirmative defense, Andersen immediately raised the issue as a bar to
the claim in his first motion to the court, thereby bringing the issue into
controversy. See Bd. of County Comm’rs v. Miller, 101 Minn.
294, 297, 112 N.W. 276, 277 (1907) (stating that statute of limitations is
affirmative defense that can be waived if not raised timely). Andersen raised both ineffective service and
the statute of limitations in his motion to dismiss.
The effect of a statute of
limitations is an issue separate from subject matter jurisdiction and personal
jurisdiction. See Day v. McDonough, 126 S. Ct. 1675, 1681 (2006) (stating that
statute-of-limitations defense is not jurisdictional); Larson v. Dunn, 460 N.W.2d 39, 43 (Minn.
1990) (“[W]hether a claim is time barred is an issue separate from the issue of
personal jurisdiction.” (quotation omitted)). But some interplay exists between the two
doctrines. Larson, 460 N.W.2d at 43. And, although a district court is not
obligated to consider on its own initiative whether a claim is timely, it
nonetheless has the authority to dismiss, sua sponte, an untimely claim if the
parties have fair notice and an opportunity to present their position. See Day,
126 S. Ct. at 1681 (holding that court has discretion, but not obligation, to
raise time bar on its own); Eberhart v.
United States, 126 S. Ct. 403, 403-05 (2005) (distinguishing between rules
governing subject matter jurisdiction and inflexible claims-processing rules); Rubey v. Vannett, ___ N.W.2d ___, ___,
2006 WL 1171857, at *4 (Minn. May 4, 2006) (discussing jurisdictional and
claims-processing rules); see also
Miernicki v. Duluth Curling Club, 699 N.W.2d 787, 788-89 (Minn. App. 2005)
(noting that statute of limitations “prescribe[s] a period within which a
right may be enforced and after which a remedy is unavailable for reasons of
private justice and public policy” (quotation omitted)), review denied (Minn. Sept. 20, 2005). For these
reasons, we conclude that the district court did not err by addressing both the
service and timeliness components of Andersen’s motion.
We reject Mercer’s claim
that this result conflicts with Lewis v. Contracting Northwest, Inc., 413 N.W.2d 154 (Minn.
App. 1987). In Lewis, the court held that a determination that service is ineffective
should result in a dismissal without prejudice.
Id. at 157. The Lewis
holding must be read in the context of the facts presented in that case. The plaintiff in Lewis sought an order retroactively validating his improper service.
issue in Lewis was whether the
district court had the power to retroactively validate insufficient service of
process, not whether a district court has jurisdiction to consider a timely
motion to dismiss based on both insufficient service of process and expiration
of the statute of limitations. Id. We further note that this court has
previously considered and affirmed a district court decision to dismiss with
prejudice an action for insufficient service of process in conjunction with a
statute-of-limitations argument. See Johnson v. Husebye, 469 N.W.2d 742,
745-46 (Minn. App. 1991) (affirming district court’s determinations that
service was ineffective and statute of limitations would bar refiled
complaint), review denied (Minn. Aug.
A plaintiff must bring a medical-malpractice
claim within four years of the date the cause of action accrued. Minn. Stat. § 541.076(b)
(2004). It is undisputed that
Mercer did not effect service on Andersen as required by the Minnesota Rules of
Civil Procedure. See Minn. R. Civ. P. 3.01, 4.03-.04 (setting forth when action
commences and methods of service). When
a medical-malpractice claim is based on a single act of allegedly negligent
conduct rather than a course of treatment, the cause of action accrues when the
plaintiff sustains damage from the act. Doyle v. Kuch, 611 N.W.2d 28, 31 (Minn. App. 2000). Mercer’s
cause of action against Andersen therefore accrued on May 31, 2000, after exposure to the
ultraviolet light. Unless Andersen’s
absence from the state tolled the statute of limitations, Mercer could not sue
Andersen for malpractice after May
A statute of limitations may be tolled if the
person against whom a cause of action accrued later leaves the state. Minn. Stat. § 541.13
(2004). If the absent person is not
subject to Minnesota
laws governing service of process while out of the state or cannot be found
after a diligent search for personal service, the period during which the
person is absent from the state is not counted for purposes of the statute of
limitations. Id. Tolling ensures that the statute of
limitations will not bar a cause of action when a plaintiff cannot obtain
personal jurisdiction over a defendant who is outside the state. Long v.
Moore, 295 Minn. 266, 270, 204 N.W.2d 641,
643 (1973). When an adequate provision
exists for acquiring personal jurisdiction over a nonresident, however, this
danger is not present, and the statute of limitations is not tolled. Id. at 269-71,
204 N.W.2d at 643-44. The plaintiff
bears the burden of proving that the statute of limitations should be
tolled. Barlett v. Miller & Schroeder Muns., Inc., 355 N.W.2d 435, 441
(Minn. App. 1984).
We review a dismissal with prejudice for an
abuse of discretion, and we see no abuse of discretion in the court’s
determination that neither of the conditions that would toll the statute of
limitations is satisfied in this case. See Minn.
Humane Soc’y v. Minn. Federated Humane Soc’ys,
611 N.W.2d 587, 590 (Minn. App. 2000) (stating standard of review for dismissal
with prejudice). Minnesota’s
long-arm statute allows Minnesota courts with
subject matter jurisdiction to exercise personal jurisdiction over a
nonresident if the nonresident committed “any act in Minnesota causing injury.” Minn. Stat. § 543.19, subd. 1(c) (2004);
see also Webber v. Michela, 633 F.2d
518, 519 (8th Cir. 1980) (holding that Minnesota
long-arm statute confers jurisdiction to fullest extent permitted under United
States Constitution). When a nonresident
is subject to personal jurisdiction based on the long-arm provisions, the “service
of process . . . may be made by personally serving the
summons upon the defendant outside” Minnesota. Minn. Stat. § 543.19, subd. 2
(2004). Because Andersen’s alleged
negligence occurred in Minnesota, he remained
subject to service of process after leaving the state to reside in Haiti, and Minnesota courts could exercise personal
jurisdiction over him. See Duresky v. Hanson, 329 N.W.2d 44, 47
n.4 (Minn. 1983) (noting that plaintiff’s
knowledge of defendant’s whereabouts does not affect analysis of whether
defendant is subject to service of process).
Mercer argues that, because Haiti is not a signatory to the Hague Convention
on the Service Abroad of Judicial and Extrajudicial Documents, Andersen was not
subject to service of process while residing in Haiti. But the convention has no bearing on Mercer’s
claim precisely because Haiti
is not a signatory. See Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents, Nov. 15, 1965, 20 U.S.T. 361, 368-69 (listing
signatories). And the convention does
not provide the sole means for effecting international service; rather, it
provides a centralized process for service between countries that are parties
to the convention. Id. at 362 (limiting treaty
to signatories); Volkswagenwerk
Aktiengesellschaft v. Schlunk, 486 U.S.
694, 698, 108 S. Ct. 2104, 2107 (1988) (discussing purposes of convention); see also Minn. R. Civ. P. 4.04(c)
(stating methods for effecting service outside United States).
Mercer failed to engage in a diligent search
to serve Andersen. Minnesota courts have
not specifically defined what constitutes a “diligent search” for purposes of
Minn. Stat. § 541.13, but have noted that courts should consider “all
relevant evidence,” including when, relative to the expiration of the statute
of limitations, the plaintiff commenced the search. Duresky,
329 N.W.2d at 49.
Mercer made several attempts to serve
Andersen in Minnesota
between March and May 2004. He learned
on March 23, 2004,
however, that Andersen was likely living in Haiti
as a missionary after a sheriff attempted to serve Andersen at a former place
of employment in Minnesota.
Mercer presented no evidence to the
district court that he attempted to follow up on this information. He instead continued to attempt service in Minnesota by serving the Minnesota Commissioner of
Commerce in April 2004 and by publishing notice in a Minnesota legal newspaper in May 2004. The only indication that he attempted to
contact Andersen outside Minnesota occurred
after publication, when Mercer mailed a notice of publication to Andersen at a Florida address in May
and June 2004. In support of his motion to
dismiss, Andersen presented evidence that an internet search using Andersen’s
name and “Haiti” returned
one result, which provided a link to Andersen’s employer in Haiti. The linked website stated that Andersen was
the medical director, included a picture of him, and also provided U.S.
contact information for his organization. The district court did not err by concluding
the statute of limitations was not tolled and by dismissing Mercer’s claims
against Andersen with prejudice.
When a medical-malpractice claim requires expert
testimony to establish a prima facie case, the plaintiff must satisfy the
expert-review requirements set forth in Minn. Stat. § 145.682, subd. 2
(2004). The plaintiff must first serve
with the summons and complaint an affidavit by the plaintiff’s attorney stating
that an expert has reviewed the facts of the case and believes that the
defendant deviated from the appropriate standard of care and caused injury to
the plaintiff. Id.,
subds. 2, 3(a) (2004). Within 180 days
of commencing litigation, the plaintiff must serve a second affidavit that
identifies the experts expected to testify about malpractice or causation and
states “the substance of the facts and opinions to which the expert is expected
to testify, and a summary of the grounds for each opinion.” Id., subds. 2,
4(a) (2004). Answers to interrogatories
will satisfy the substantive requirements of the second affidavit if they are signed
by the plaintiff’s attorney and each expert and served within the 180-day time
Failure to comply with the expert-review
requirements results in mandatory dismissal with prejudice of each cause of
action for which expert testimony is necessary.
Id., subd. 6 (2004). The district court dismissed Mercer’s claim
for failure to comply with the requirements of the second affidavit. We review the dismissal of a medical-malpractice
claim for noncompliance with the expert-review statute for an abuse of
discretion. Broehm v. Mayo Clinic Rochester, 690
N.W.2d 721, 725 (Minn. 2005).
The purpose of the expert-review statute is
to dismiss meritless claims at an early stage of litigation. Id. Section 145.682 is unambiguous and requires
strict compliance with its provisions. Id. at 726; Lindberg v. Health Partners,599 N.W.2d 572, 577-78 (Minn. 1999). To
comply with the expert-review statute, plaintiffs must set forth “specific
details concerning their experts’ expected testimony, including the applicable
standard of care, the acts or omissions that plaintiffs allege violated the
standard of care and an outline of the chain of causation that allegedly
resulted in damage to them.” Sorenson v. St. Paul Ramsey Med. Ctr.,
457 N.W.2d 188, 193 (Minn. 1990). Broad or conclusory statements of causation
are insufficient. Anderson v. Rengachary, 608 N.W.2d 843, 847 (Minn.
2000); Stroud v. Hennepin
Ctr., 556 N.W.2d 552, 556 (Minn. 1996).
The district court did not abuse its
discretion by dismissing Mercer’s claims of permanent injuries for
noncompliance with section 145.682.
Mercer first argues that the expert-review statute does not apply to his
claims because expert testimony is not necessary to establish a prima facie
case. Expert testimony is generally
required in medical-malpractice cases because they involve complex scientific
or technological issues. Tousignant v. St. Louis
County, Minn., 615 N.W.2d 53,
58 (Minn. 2000). An exception to this rule applies when the
alleged negligent acts are within the general knowledge or experience of laypersons. Id. But only rarely does section 145.682 not
apply, and Mercer’s claims do not fall within this exception. See Sorenson,
457 N.W.2d at 191 (stating that medical-malpractice cases not requiring expert
testimony are rare).
Mercer’s complaint alleges that he sustained “severe
burns all over his skin and body which has resulted in permanent damage” and
eye damage, requiring future treatments “to restore eye function and care of
his skin.” Although laypersons could
understand the relationship between the burns sustained in 2000 and
overexposure to ultraviolet light, Mercer alleged that he suffered permanent
damage to his skin and eyes nearly four years later. Because these injuries and the alleged
causation are beyond the general knowledge of persons outside the medical
field, Mercer’s claims require expert testimony to establish a prima facie case
and are therefore subject to the requirements of section 145.682.
Mercer submitted one affidavit signed by Dr.
Alan Boyd, a dermatologist. Boyd’s
affidavit establishes that he specializes in treating skin disorders, including
psoriasis, and that he believes Andersen and Ring deviated from the proper
standard of care when treating Mercer.
With respect to the result of these deviations, however, Boyd stated
only that, in his opinion, “the departure from the standard of care was a
direct cause of Robert Mercer’s second degree burns.” He provides no information as to the extent
or permanency of the burns. The
defendants do not dispute that Mercer had second-degree burns in June 2000, but
assert that Mercer did not sustain permanent damage. Further, Mercer did not provide an expert
affidavit addressing his claimed eye injuries.
Boyd’s single sentence on causation is insufficient to comply with Minn.
Stat. § 145.682. See Sorenson, 457 N.W.2d at 193
(requiring expert affidavits to include detailed chain of causation.) Similarly, Mercer did not provide answers to
interrogatories that would satisfy section 145.682. The district court therefore did not abuse
its discretion by dismissing Mercer’s claims of permanent injuries.
The parties or the court may extend the
statutory expert-review deadlines for good cause. Minn. Stat. § 145.682, subd. 4(b)
(2004). The statutory provision
permitting an extension, however, must be read in conjunction with rule 6.02 of
the Minnesota Rules of Civil Procedure. Stern v. Dill, 442 N.W.2d 322, 324 (Minn. 1989). Rule
6.02 gives the district court discretion to extend deadlines previously set in
an order. Minn. R. Civ. P. 6.02. If a previously set deadline has already
passed, however, the court may only grant an extension when the failure to act resulted
from excusable neglect. Id.
6.02(2). Excusable neglect exists when
the plaintiff has a reasonable case on the merits, has a reasonable excuse for
not complying with the section 145.682 time limits, acted with due diligence
after learning of the time limits, and will not prejudice the defendant by
extending the time limits. Anderson,
608 N.W.2d at 850. The district court
has broad discretion to amend scheduling-order deadlines, and we review its
decision for an abuse of discretion. Broehm, 690 N.W.2d at 727.
The district court did not abuse its
discretion by denying Mercer’s motion.
Mercer has not established that any of the components of excusable
neglect exists. Without an expert
affidavit, whether Mercer has a reasonable case on the merits is questionable. Although the defendants conceded that he had
second-degree burns in June 2000, medical records indicate that in 2000 and
2001 doctors believed his skin had healed and that they could not attribute problems
with his eyes to exposure to ultraviolet light.
Mercer also has not provided a reasonable
excuse for failing to satisfy the section 145.682 deadlines. The district court’s scheduling order
required Mercer to disclose his experts’ opinions by December 1, 2004. The Boyd affidavit is dated July 2, 2002. Correctional Medical Services’ attorney
notified Mercer of perceived deficiencies in the affidavit in October 2004 and
later moved for partial dismissal for noncompliance with section 145.682 in
December 2004. Section 145.682 requires that,
upon a motion for dismissal, the court cannot hold a hearing on the motion for
forty-five days and the plaintiff can avoid dismissal by serving an amended
affidavit to correct deficiencies in the original. Minn. Stat. § 145.682, subd. 6(c). The district court held a hearing on the
motion forty-five days after Correctional Medical Services filed its motion,
and Mercer did not file an amended affidavit.
Mercer argues that his incarceration limited
his ability to comply with the expert-review statute because he was subject to
state control and state-provided doctors.
But Mercer obtained the Boyd affidavit in 2002, indicating that he had
access to his medical records for an expert to review. Further, the Department of Corrections has
procedures that allow an inmate to schedule medical appointments outside the
facility. Using these procedures, Mercer
visited a dermatologist and an ophthalmologist in 2004. Mercer’s claims that the procedures were too
cumbersome to allow compliance with the deadlines are therefore
unreasonable. The district court did not
abuse its discretion by denying Mercer’s motion to extend the scheduling-order
E C I S I O N
The district court had jurisdiction
to consider the effect of the statute of limitations in conjunction with the
motion to dismiss for insufficiency of process and correctly determined that Mercer’s
claims against Andersen are barred. Because
Mercer’s expert affidavit did not adequately address causation to satisfy the
requirements of Minn. Stat. § 145.682 (2004) and Mercer did not establish
excusable neglect, the court did not abuse its discretion by partially
dismissing Mercer’s claims and by denying his motion to extend the