This opinion will be unpublished and

may not be cited except as provided by

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






James W. Latta,





Dan Miner, et al.,



Filed November 8, 2000


Willis, Judge


Mille Lacs County District Court

File No. C699324


Kevin S. Carpenter, Office of Kevin Carpenter, 204 Midsota Center, 3701 12th Street North, St. Cloud, MN  56303 (for appellant)


Rebecca Egge Moos, Shalanda D. Ballard, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN  55402 (for respondents)


            Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant argues that the district court erred in dismissing his medical malpractice action and in granting summary judgment to respondent.  Because we find that the district court did not abuse its discretion in dismissing appellant’s complaint, we affirm.


In April 1997, appellant James W. Latta sought medical treatment from respondent Dan Miner, a physician’s assistant, because Latta was concerned that he had testicular cancer.  Miner concluded that Latta had an infection and prescribed antibiotics.  In August 1997, Latta, complaining of pain, went to the emergency room of a hospital in St. Cloud, where he was diagnosed with testicular cancer.

            In March 1999, Latta served Miner with a summons and complaint alleging medical malpractice.  Miner moved for dismissal with prejudice for failure to provide the affidavits required under Minn. Stat. § 145.682 (1998), or, in the alternative, for summary judgment.  The district court granted Miner’s “motion to dismiss and for summary judgment.”  Latta appeals.


I.          Motion to Dismiss.


Minn. Stat. § 145.682 requires that a plaintiff in a medical malpractice action must timely serve on the defendant certain expert-opinion information regarding the merits of the case.  Minn. Stat. § 145.682, subd. 2; see Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190-91 (Minn. 1990).  Absent an abuse of the district court’s discretion, we affirm the dismissal of an action for failure to comply with section 145.682.  Haile v. Sutherland, 598 N.W.2d 424, 426 (Minn. App. 1999).

Section 145.682 requires that an “affidavit of expert review” must accompany a summons and complaint alleging medical malpractice when it is served on the defendant.  Minn. Stat. § 145.682, subds. 2, 3.  This affidavit, authored by the plaintiff’s attorney, must state that the attorney has reviewed the facts of the case with a qualified expert and that in the expert’s opinion (1) the defendant deviated from the applicable standard of care and (2) deviation from that standard of care caused injury to the plaintiff.  Id., subd. 3.  The parties here agree that Latta properly served the affidavit of expert review.

            Section 145.682 also requires a plaintiff to provide an affidavit that sets forth “specific details” concerning the plaintiff’s experts’

expected testimony, including the applicable standard of care, the acts or omissions that [the plaintiff] allege[s] violated the standard of care, and an outline of the chain of causation that allegedly resulted in [the plaintiff’s claimed injury].


Sorenson, 457 N.W.2d at 193; see Minn. Stat. § 145.682, subds. 2, 4.  In place of this affidavit, a party may provide the required information in answers to interrogatories.  Id., subd. 4.  When a plaintiff fails to provide the required information by affidavit or interrogatory answers within 180 days after the service of the summons and complaint, section 145.682 mandates that “dismissal with prejudice of each cause of action as to which expert testimony is necessary to establish a prima facie case” upon motion by the defendant.  Id., subds. 6, 2; cf. Tousignant v. St. Louis County, 615 N.W.2d 53, 58 (Minn. 2000) (stating that Minn. Stat. § 145.682 does not apply to cases where standard of care, breach of standard of care, and chain of causation are all within the general knowledge and experience of lay persons because expert testimony is not required to establish a prima facie case).  But Minn. Stat. § 145.682, subd. 4(b), provides that the district court may, “for good cause shown,” extend the 180-day time limit.  Also, a party may move for “enlargement” of the time limit, pursuant to Minn. R. Civ. P. 6.02, even after the time limit has expired, upon a showing of excusable neglect.  Stern v. Dill, 442 N.W.2d 322, 324 (Minn. 1989); Minn. R. Civ. P. 6.02.

            Latta does not argue that he provided Miner with the required information within the 180-day time limit.[1]  Rather, Latta argues that the district court erred in denying his rule 6.02 motion for enlargement of the time limit and, therefore, erred in dismissing his malpractice action with prejudice.  Rule 6.02 provides that a district court may, in its discretion, “upon motion made after the expiration of the specified period permit the [required] act to be done where the failure to act was the result of excusable neglect.”  Minn. R. Civ. P. 6.02.  

Excusable neglect exists where the plaintiff (1) has a reasonable suit on the merits, (2) has a reasonable excuse for failure to comply with time limit set forth by Minn. Stat. § 145.682, subd. 2, (3) acted with due diligence after receiving notice of the time limit, and (4) no substantial prejudice results to the defendant.


Anderson v. Rengachary, 608 N.W.2d 843, 850 (Minn. 2000), reh’g denied (Minn. May 3, 2000).  But a plaintiff is not entitled to the extension requested under rule 6.02 when he does not have a reasonable excuse for his failure to provide the required information within the time limit set forth by Minn. Stat. § 145.682, subd. 2.  Moen v. Mikhail, 454 N.W.2d 422, 422 (Minn. 1990).  A district court’s denial of a rule 6.02 motion is discretionary, and we will affirm absent an abuse of that discretion.  See Coller v. Guardian Angels Roman Catholic Church, 294 N.W.2d 712, 715 (Minn. 1980) (citations omitted); Parker v. O’Phelan, 414 N.W.2d 534, 537 (Minn. App. 1987), aff’d by an equally divided court 428 N.W.2d 361 (Minn. 1988).

            Latta asserts that his “reasonable excuse” for neglect is that his counsel was “overwhelmed as a result of his workload virtually doubling when his partner abruptly resigned from their two-lawyer practice.”  See generally Haisch v. Coulter, 145 Minn. 115, 116-17, 176 N.W. 155, 155 (1920) (affirming district court’s opening of default judgment where defendant’s attorney, because of “pressure of office work,” served answer three days late).  But the district court concluded that “counsel’s inability to file the expert’s affidavit was unrelated to those events.”  Latta’s counsel first discussed this case with Dr. William Hulesch in July 1998, and Latta provided Miner with Dr. Hulesch’s affidavit purporting to comply with Minn. Stat. § 145.682, subd. 4, before service of the summons and complaint.  Additionally, Latta’s counsel first discussed this case with another physician, Dr. Elwin Fraley, in November 1997.  All of these events occurred well before counsel’s partner “abandoned” the firm in March 1999.  And while Miner served Latta with interrogatories in April 1999 specifically requesting the information required by Minn. Stat. § 145.682, subd. 4, Latta responded that “disclosures of expected testimony of experts will be supplied separately” but never supplied such disclosures.  Dr. Fraley provided Latta with an extensive letter setting forth his opinions regarding the case on July 19, 1999, nearly two months before the 180-day deadline of September 13, 1999.  But Latta did not have Dr. Fraley sign an affidavit presenting his opinions until November 23, 1999, nearly one month after Miner filed his motion to dismiss Latta’s action.  We conclude that the district court did not abuse its discretion in finding that Latta had no reasonable excuse for his failure to comply with the 180-day time limit or in denying Latta’s rule 6.02 motion.[2]

            As the supreme court stated in Lindberg v. Health Partners, Inc.,

Dismissal is mandated under Minn. Stat. § 145.682, subd. 6, when the disclosure requirements are not met and while we certainly recognize that the statute may have harsh results in some cases, it cuts with a sharp but clean edge.


Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 578 (Minn. 1999).  Because Latta failed to provide the information required by section 145.682 within the 180-day time limit, and because the district court did not abuse its discretion in refusing to extend that time limit in response to Latta’s rule 6.02 motion, the district court did not err in dismissing Latta’s action with prejudice.  In light of our affirmance of the dismissal with prejudice of Latta’s action, we need not address the issue of summary judgment.

II.        Constitutionality of Minn. Stat. § 145.682.

            Latta argues that Minn. Stat. § 145.682 violates provisions of both the federal and Minnesota constitutions.  This court may consider “only those issues that the record shows were presented and considered by the [district] court in deciding the matter before it.”  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted).  It is not clear that Latta “presented” these issues to the district court.  In Latta’s supplemental memorandum in response to Miner’s motion to dismiss, Latta stated that the statute violates the federal and Minnesota constitutions without citing to any provision of either constitution, providing any supporting authority, or providing any legal analysis in support of his contention.  In fact, Latta conceded the deficiency of the memorandum, stating, “If this [c]ourt reaches these constitutionality issues, [Latta] respectfully requests an opportunity to brief these issues further.”  Furthermore, the district court did not reach or consider these issues, and Latta did not raise them in any post-trial submission.  Therefore, this issue is not properly before this court.



[1] We note that the affidavit of Dr. William Hulesch, while served within the 180-day time limit, failed to provide the required outline of the chain of causation that allegedly resulted in Latta’s claimed injury:  the affidavit did not even mention any alleged injury suffered by Latta.  See Sorenson, 457 N.W.2d at 192.   

[2] The supreme court recently stated that where a party has filed an affidavit that does not provide fully the information required by section 145.682, “the failure of [a plaintiff’s] attorney to submit an adequate affidavit is not the sort of inadvertence” that constitutes excusable neglect under rule 6.02.  Anderson, 608 N.W.2d at 850.