This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Susannah Mellett,





Fairview Health Services, et al.,



David Lee Johnson, M.D.,



Dr. Davis,




Filed September 26, 2000

Affirmed in part, reversed in part and remanded
Klaphake, Judge


Hennepin County District Court

File No. 99-1914


Susannah Mellett, 6820 Antrim Road, Edina, MN  55439  (pro se appellant)


Mark R. Whitmore, Shalanda D. Ballard, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth St., Minneapolis, MN  55402 (for respondents Fairview Health Services, et al.)


Barbara A. Burke, Cousineau, McGuire & Anderson, Chartered, 600 Travelers Express Tower, 1550 Utica Avenue S., Minneapolis, MN  55416-0628 (for respondent David Lee Johnson)


            Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


Pro se appellant Susannah Mellett brought this action against respondent David Lee Johnson, M.D. (Dr. Johnson) and against respondents Fairview Health Services and others (Fairview), alleging defamation, intentional infliction of emotional distress, negligence, and false imprisonment.  The district court granted summary judgment to respondents on all claims.  Mellett appeals from the dismissal of her action.

Because Mellett’s defamation and intentional infliction of emotional distress claims are barred by the two-year statute of limitations, Minn. Stat. § 541.07(1) (1998), and because Mellett’s expert affidavit from Dr. Michael Fuhrman fails to satisfy the requirements of Minn. Stat. § 145.682 (1998), we affirm the district court’s grant of summary judgment and dismissal of those claims.  Because Mellett has established a prima facie case of false imprisonment and because her expert affidavit from Professor Eric Janus questions whether respondents followed Minn. Stat. § 253B.05, subd. 1 (1998), which authorizes 72-hour emergency holds when a person poses an imminent danger to herself or others if not immediately restrained, we reverse the grant of summary judgment on Mellett’s false imprisonment claim and remand that claim for further proceedings.



On January 3, 1997, Mellett voluntarily sought treatment at the emergency room of Fairview Southdale Hospital.  Hospital staff placed her on a 72-hour hold and transported her by ambulance to Fairview Riverside Hospital’s locked ward.  Dr. Johnson was assigned as Mellett’s psychiatrist.

When the hold expired on January 7, Mellett voluntarily agreed to enter Fairview Riverside’s chemical dependency program.  On January 10, Fairview staff placed Mellett on a second 72-hour hold and again transferred her to the locked ward.

On January 12, Dr. Johnson prepared an “examiner’s statement in support of petition for commitment.”  On January 15, Fairview staff filed the petition in Hennepin County District Court.

A preliminary hearing was held on January 21.  The district court released Mellett pending a January 24 hearing on the commitment petition, because “[t]here has been a failure to prove by a preponderance of the evidence that [she] is a danger to herself or others if not confined until January 24, 1997.”  When Mellett and her mother returned to Fairview Riverside to collect her belongings, Fairview staff would not allow her to leave until she was discharged by Dr. Johnson.

At the January 24 hearing, Fairview moved to dismiss the petition because the court-appointed examiner concluded that Mellett’s mental illness symptoms were secondary to chemical abuse and because Mellett had provided documentation that she had been accepted at an appropriate residential treatment program located in California.  The district court dismissed the petition without prejudice.

On January 21, 1999, Mellett served Fairview with her complaint.  On January 22, 1999, she delivered a copy of her complaint to the sheriff for service on Dr. Johnson.[1]


            On appeal from a grant of summary judgment, we determine whether genuine issues of material fact exist or whether the district court erred as a matter of law.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997); see also Minn. R. Civ. P. 56.03.  We view the evidence in a light most favorable to the party against whom summary judgment was granted.  Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn. 1982).


            Mellett alleges that she was defamed by the “inaccuracies, distortions, misleading and incomplete information” contained in the commitment petition and examiner’s statement.  At the latest, these documents were disseminated or published on January 15, 1997, when they were filed in Hennepin County District Court.[2]  Because the statute of limitations for defamation begins to run on the date of publication, not on the date of discovery, the district court did not err in concluding that Mellett’s defamation claim was untimely.  See McGovern v. Cargill, Inc., 463 N.W.2d 556, 558 (Minn. App. 1990) (statute of limitations for defamation begins to run on publication); Minn. Stat. § 541.07(1) (1998) (providing two-year statute of limitations for defamation actions).

            Intentional Infliction of Emotional Distress

            Mellett alleges that she suffered “great mental pain and anguish” because Dr. Johnson initially indicated that he would “strongly recommend that [Mellett] go to Hazelden” Treatment Center, but she later learned that Hazelden could not accept her because it “does not take commitable patients, that [it is] not a locked facility.”  Even assuming that these allegations are sufficient to support such a claim, because these representations took place between January 14 and January 17, 1997, the district court did not err in concluding that this claim was time-barred.  See Elstrom v. Independent Sch. Dist. No. 270, 533 N.W.2d 51, 57 (Minn. App. 1995) (affirming grant of summary judgment where alleged distress not sufficiently severe), review denied (Minn. July 27, 1995); Hempel v. Fairview Hosps. & Healthcare Servs., Inc., 504 N.W.2d 487, 492-93 (Minn. App. 1993) (affirming grant of summary judgment where defendants’ behavior failed to meet threshold for finding severe emotional distress); Krause v. Farber, 379 N.W.2d 93, 97 (Minn. App. 1985) (applying two-year statute of limitations to intentional infliction of emotional distress claim), review denied (Minn.  Dec. 17, 1985).


            Mellett alleges that while she was hospitalized, respondents were negligent because they failed to thoroughly review her medical records, which revealed that she had suffered a stroke in April 1993.  This claim is arguably not time-barred under the two-year statute of limitations, as respondents last treated Mellett on January 21, 1997, when Dr. Johnson authorized her release.  See Minn. Stat. § 541.07(1) (action alleging medical malpractice must be brought within two years of date cause of action accrues); Fabio v. Bellomo, 504 N.W.2d 758, 762 (Minn. 1993) (cause of action accrues when physician’s treatment for particular condition ceases).

            Nonetheless, this claim was properly dismissed because Mellett failed to satisfy the requirements of Minn. Stat. § 145.682, subd. 6 (1998) (failure to provide expert affidavit in malpractice action results in “mandatory dismissal with prejudice of each cause of action as to which expert testimony is necessary to establish a prima facie case.”).  Although Mellett did submit a letter from licensed psychologist Michael J. Fuhrman, that letter fails to opine that respondents breached any applicable standard of care or that respondents’ actions caused Mellett any injury.  Rather, Fuhrman merely states that the effects of the 1993 stroke on Mellett’s behavior “would need to be considered by any professionals who render diagnoses or prescribe treatments concerning [her] post-stroke functioning and behavior.”  The district court therefore did not abuse its discretion in dismissing Mellett’s negligence claim.  See Anderson v. Rengachary, 608 N.W.2d 843, 848 (Minn. 2000) (expert affidavit insufficient where it failed to clearly set forth standard of care, describe acts or omissions that allegedly violated that standard, or explain chain of causation between defendant’s actions and plaintiff’s injuries).

            False Imprisonment

            Mellett alleges that from January 3 to January 21, 1997, respondents falsely imprisoned her.  During this time, she was involuntarily placed on two 72-hour holds.  The first hold, from January 3 to January 7, 1997, occurred after she came to the emergency room and sought medication for withdrawal symptoms related to her chemical dependency, with the most extreme symptom being described as visual hallucinations of spiders.  The second hold, from January 10 to January 13, occurred after respondents overheard Mellett telling her mother that she wanted to leave the chemical dependency treatment program.  When the second hold expired, Mellett was detained pursuant to the commitment petition.  And when she was ordered released to the custody of her parents following the preliminary hearing on January 21, 1997, Fairview staff detained her until Dr. Johnson authorized her discharge.

            Because Mellett’s complaint can be read to allege a continuing course of conduct on the part of respondents, the statute of limitations is tolled until the tort is complete. See Ciardelli v. Rindal, 582 N.W.2d 910, 912 (Minn. 1998) (“[w]hen read in the light most favorable to [plaintiff], the complaint asserts a pattern of negligence spanning the entire period of her treatment”); Fabio, 504 N.W.2d at 762 (statute of limitations in medical malpractice action will be extended when doctor’s negligence is part of continuing course of treatment).  Thus, Mellett’s complaint was timely served within two years of the date that her false imprisonment cause of action accrued.  See Minn. Stat. § 541.07(1) (providing two-year statute of limitations for action alleging false imprisonment).

            The district court nevertheless dismissed Mellett’s false imprisonment claim based on its conclusion that an expert affidavit was required because “at its core,” Mellett’s false imprisonment claim “is one of misdiagnoses and improper medical care, treatment and medical 72 hour hold(s).”  The court further concluded that the affidavit submitted by Mellett from Eric Janus, a law professor who is an expert in the law of civil commitment, failed to satisfy Minn. Stat. § 145.682.

            Mellett argues that she does not necessarily need an affidavit from a medical expert because she can establish a prima facie case of false imprisonment without such testimony.  See Tousignant v. St. Louis County, 615 N.W.2d 53, 58 (Minn. 2000) (expert testimony not necessary to establish prima facie case of medical malpractice when facts alleged are within general knowledge and experience of lay persons).  When the evaluation of whether medical personnel breached a particular standard does not involve “complex scientific or technological issues” but are issues “within the general knowledge and experience of lay persons,” expert affidavit testimony is not necessary under Minn. Stat. § 145.682.  Id. (quotation omitted).

            To prove a prima facie case of false imprisonment, Mellett need only show (1) acts intended to confine a person, (2) actual confinement, and (3) awareness that she is confined.  Eilers v. Coy, 582 F. Supp. 1093, 1096 (D. Minn. 1984); Peterson v. Sorlien, 299 N.W.2d 123, 133 (Minn. 1980).  These elements are clearly within the knowledge and experience of lay persons; the mere fact that Mellett is suing a hospital and psychiatrist does not transform her claim into one “alleging malpractice, error, mistake, a failure to cure, whether based in contract or tort” so as to require her to submit an expert affidavit under Minn. Stat. § 145.682, subd. 2.  Thus, an expert affidavit is not necessary for Mellett to establish a prima facie case of false imprisonment.

            Mellett further argues that Professor Janus was qualified to render an opinion as to whether respondents followed the law when they detained her.  In his affidavit, Professor Janus states that based on his review of the records provided him by Mellett, he did not believe that Fairview complied with Minn. Stat. § 253B.05, subd. 1, which authorizes 72-hour holds, because he saw no documentation that Mellett posed an imminent danger to herself or others if not immediately restrained.

            An expert opinion may be necessary in this case, if at all, to support a claim by respondents that their actions were legally justified to preclude liability for false imprisonment.  See Eilers, 582 F. Supp. at 1097-98 (defendants may assert necessity defense to counter claim of false imprisonment, and show that they attempted lawful alternative of emergency hospitalization under civil commitment act).  Legal justification may be shown under the civil commitment act, which provides that a person may be held for emergency care and treatment for up to 72 hours if the person is chemically dependent and “is in imminent danger of causing injury to self or others is not immediately restrained.”  Minn. Stat. § 253B.05, subd. 1(a) (1998); see Eilers, 582 F. Supp. at 1098 (Minnesota legislature has prescribed specific procedures that must be followed before person can be deprived of liberty on basis of mental illness).

            At this point, respondents have moved for summary judgment based solely on the alternative grounds that the statute of limitations has expired or that Mellett has failed to provide the requisite expert affidavit under Minn. Stat. § 145.682.  Other issues are not yet before us, such as whether respondents have met their burden of proving a necessity defense or whether they are entitled to immunity under Minn. Stat. § 253B.23, subd. 4 (1998) (persons assisting in proceeding to commit individual under civil commitment act are immune from suit unless they act maliciously or commit willful wrong).  Indeed, to the extent that Professor Janus’ affidavit questions whether respondents met the requirements of the civil commitment act when they detained Mellett, a grant of summary judgment on this issue would be inappropriate.  Cf. Enberg v. Bonde, 331 N.W.2d 731, 734-35 (Minn. 1983) (jury allowed to determine factual issue of whether persons assisting in hospitalization under civil commitment act entitled to immunity).

            Finally, Mellett challenges the district court’s assessment of $731.54 in costs against her under Minn. Stat. § 549.04 (1998) (prevailing party “shall be allowed reasonable disbursements paid or incurred”).  Given our decision to reverse the grant of summary judgment on the false imprisonment claim and remand on that issue, we reverse the award of costs; no one is yet the “prevailing party” for purposes of determining entitlement to costs and disbursements.  See Borchert v. Maloney, 581
N.W.2d 838, 840 (Minn. 1998) (prevailing party in action is one in whose favor decision or verdict is rendered and judgment entered).

            Affirmed in part, reversed in part, and remanded.

[1]  Mellett argues that the controlling date of service for all respondents is January 21, 1999, the date that Fairview was served, because respondents were engaged in a joint enterprise when they sought to commit her.  Cf. Dang v. St. Paul Ramsey Med. Ctr., 490 N.W.2d 653, 657-58 (Minn. App. 1992) (joint enterprise existed between government hospital and separately incorporated group of staff physicians, so as to make both liable for mistakes of first-year resident), review denied (Minn.  Dec. 15, 1992).  While the precise nature of the relationship between Fairview and Dr. Johnson is not known, when Mellett’s allegations are viewed most favorably to her at this summary judgment stage, Fairview and Dr. Johnson appear to have been working toward a common purpose over which they had mutual control.  Thus, the controlling date of service for determining whether the statue of limitations has run is January 21, 1999, the date Fairview was served with Mellett’s complaint.


[2]  Although not raised by either party, we note that these statements, even if defamatory, may be privileged as having been published in the course of a judicial or quasi-judicial proceeding.  See Kellar v. VonHoltum, 568 N.W.2d 186, 192 (Minn. App. 1997) (defamatory matter published in course of hearing on bank charter application is absolutely privileged), review denied (Minn. Oct. 31, 1997).