This opinion will be unpublished and

may not be cited except as provided by

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






Douglas Lanner, as Trustee for the
heirs of Herbert Lanner,


Fairview-University Medical Center,
Riverside Campus, et al.,

Henry Fink, M.D., et al.,

Suburban Radiologic Consultants,

Dr. Scott Holthaus, et al.,



Filed December 12, 2000

Affirmed; motion granted

Stoneburner, Judge


Hennepin County District Court

File No. 988039


John O. Murrin, Murrin Law Firm, 4018 West 65th Street, Edina, MN 55435 (for appellant)


Rebecca Egge Moos, Kelly A. Putney, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402; and


Terence O’Loughlin, Ann D. Bray, Geraghty, O’Loughlin & Kenney, P.A., 1400 Ecolab University Center, 386 North Wabasha Street, St. Paul, MN 55102; and


Paul C. Peterson, William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., Suite 1700, 150 South Fifth Street, Minneapolis, MN 55402 (for respondents)


            Considered and decided by Lansing, Presiding Judge, Stoneburner, Judge, and Mulally, Judge.*

U N P U B L I S H E D  O P I N I O N




            Appellant brought a wrongful-death action against respondents, alleging respondents’ medical malpractice resulted in his father’s death.  In support of his claim, appellant submitted expert affidavits under Minn. Stat. § 145.682 (1998).  The district court dismissed appellant’s claim after it determined that appellant’s affidavits failed to satisfy the requirements of the statute.  Because appellant’s affidavits fail to establish causation, we affirm.



A plaintiff must support a malpractice claim with an affidavit of expert identification under Minn. Stat. § 145.682, subd. 4 (1998).  Absent an abuse of discretion, this court will not reverse a district court’s dismissal of a suit pursuant to Minn. Stat.       § 145.682.  Anderson v. Rengachary, 608 N.W.2d 843, 846 (Minn. 2000). Statutory construction, however, is a question of law reviewed de novo.  Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn. 1996).


1.      Appellant’s expert affidavits fail the requirements of Minn. Stat. § 145.682.


Under Minnesota law, plaintiffs who bring a medical-malpractice claim must file an affidavit that identifies (1) testifying experts; (2) the substance of their testimony; and (3) a summary of the basis for the experts’ opinions.  Minn. Stat. § 145.682, subd. 4(a).  Failure to comply with the affidavit requirements mandates that the district court dismiss the plaintiff’s cause of action with prejudice.  Id. at subd. 6 (1998); see Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 577 (Minn. 1999) (recognizing plaintiff’s failure to file a sufficient affidavit results in mandatory dismissal).

The Minnesota Supreme Court first interpreted the substantive requirements of an expert affidavit in Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).  The court noted that under Minn. Stat. § 145.682, subd. 4, the affidavit must set forth specific details concerning the expert’s expected testimony, including (1) the applicable standard of care; (2) the acts or omissions that plaintiffs allege violated the standard of care; and (3) an outline of the chain of causation that resulted in the injury or death.  Sorenson, 457 N.W.2d at 193.

            In Stroud, the supreme court echoed the requirements set forth in Sorenson, emphasizing that affidavits of expert identification must outline the chain of causation, and that broad, conclusory statements fail to satisfy the statute.  Stroud, 556 N.W.2d at 555-56.  Recently, the supreme court reaffirmed the holdings in Sorenson and StroudSee, e.g., Anderson, 608 N.W.2d at 848 (“The Sorenson and Stroud opinions * * * offer[] clear guidance to lower courts as to the requirements of Minn. Stat. § 145.682, subd. 4.”); Lindberg, 599 N.W.2d at 577 (“The requirements of Minn. Stat. § 145.682 are uncomplicated and unambiguous, and in Sorenson and Stroud we provided additional clarity as to what information the affidavit of expert identification must contain in order to meet the statutory requirements of subdivision 4 and avoid mandatory dismissal.”).

            Here, appellant submitted the affidavits of three experts.[1]  Appellant first submitted the affidavit of Dr. Mark Preston.  In his affidavit, Dr. Preston drew these conclusions:

[I]t is my opinion that the care received by Herbert Lanner during his emergency room encounter was negligent and that such negligence led or contributed significantly to the death of Herbert Lanner.


* * *


Based upon the medical records, it appears that the fracture in Mr. Lanner’s neck was the most significant injury he sustained as a result of the assault and that it was the fracture and resulting paralysis that led to his eventual death.


Appellant’s second expert, Dr. David B. Ketroser, identified the standard of care and subsequent deviation from that standard of care, but provided only scant detail regarding the chain of causation leading to Lanner’s death:

Because prolonged recumbency and quadriparesis from the spinal cord injury ultimately caused Mr. Lanner’s death, the failure to prevent the spinal cord injury led directly to his death.


* * *


In summary Dr. Hager’s failure to properly convey his inability to exclude the presence of a cervical spine fracture, or Dr.’s Holthaus, Schmiechen and Van Pelt’s failure to properly act upon Dr. Hager’s interpretation, or both, were breaches of the standard of care that caused Mr. Lanner’s death.  In addition, Dr. Gustafson’s failure to review the lateral views of the * * * CT scan, and the hospital’s failure to send them to him, were breaches of the standard of care that prevented diagnosis of Mr. Lanner’s cervical fracture before he sustained a spinal cord injury that caused his death.


Finally, appellant offered the answers to interrogatories by a third expert, Dr. James C. Tyson.[2]  Dr. Tyson’s conclusions with respect to Lanner’s cause of death are also sparse:

I believe that several parties were negligent.  The errors made by Dr. Van Pelt, Dr. Gustafson, Dr. Gibboney and unnamed hospital employees breached the standard of care and contributed to Mr. Lanner’s sad outcome.


In light of the supreme court’s clear directive that expert affidavits provide a detailed chain of causation, appellant’s affidavits fall below the minimum requirements of Minn. Stat. § 145.682, subd. 4.  Here, Lanner died over a year after he became paralyzed.  While Dr. Preston’s and Dr. Ketroser’s affidavits detail the origin of Lanner’s paralysis, they fail to outline a direct causal link between Lansing’s paralysis and his death.  Dr. Ketroser’s affidavit indicates that “proglonged recumbency [the state of reclining] and quadriparesis [weakness of all four limbs] from the spinal cord injury ultimately caused Mr. Lanner’s death.”  Nevertheless, Dr. Ketroser’s affidavit provides no specific detail as to how “prolonged recumbency” and “quadriparesis” from paralysis culminated in Lanner’s death over a year later.  Instead, they function only as broad, conclusory statements of causation.  Moreover, Dr. Ketroser’s reference to “prolonged recumbency” simply repeats language contained in Lanner’s death certificate.  As a result, appellant’s affidavits lack the essential “chain of causation between the violation of the standard of care and the plaintiff’s damages.”  Stroud, 556 N.W.2d at 556 (citing Sorenson, 457 N.W.2d at 193).  Under the strict requirements of the statute, such deficiencies are fatal to the plaintiff’s cause of action. 

Appellant urges us to read the affidavits in conjunction with Lanner’s death certificate.  The supreme court, however, expressly forbids the use of death certificates to bolster insufficient affidavits.  SeeTousignant v. St. Louis County, 615 N.W.2d 53, 60 (Minn. 2000) (reiterating that “nonaffidavit materials may not be used to supplement an otherwise deficient affidavit under section 145.682.”); Lindberg, 599 N.W.2d at 577

(rejecting argument that death certificate read in conjunction with affidavit is sufficient); Stroud, 556 N.W.2d at 556 (indicating that a death certificate “is not a substitute for an expert medical opinion setting forth in detail the causal connection * * * because it does not provide any explanation of how that conduct led to * * * death.”).  As mentioned above, Dr. Ketroser’s affidavit merely parrots the “prolonged recumbency” language found in Lanner’s death certificate.  This falls short of the sufficiency requirement imposed by the statute.  The district court did not abuse its discretion in dismissing appellant’s case for failure to comply with Minn. Stat. § 145.682, subd. 4.

2.      Minn. Stat. § 145.682 applies to wrongful death actions.

Appellant argues that Minn. Stat. § 145.682 does not apply to wrongful-death actions.  Recently, the supreme court addressed a similar argument in Tousignant,in which the appellant argued that her claim was a negligence action and not a medical-malpractice action, and therefore the affidavit requirements of Minn. Stat. § 145.682 did not apply.  615 N.W.2d at 56 n.1.  The court disagreed, indicating that Minn. Stat.           § 145.682 applied to “any action against a health care provider ‘alleging malpractice, error, mistake, a failure to cure * * * .’” Id. (quoting Minn. Stat. § 145.682, subd. 2 (1998)).  Because Tousignant based her claim on the failure of health care providers to exercise the requisite standard of care, the court held that her claim was a medical-malpractice action and therefore covered by Minn. Stat § 145.682.  Tousignant, 615 N.W.2d at 56 n.1.

Here, appellant argues that respondents negligently failed to diagnose Lanner’s neck fracture, which resulted in Lanner’s paralysis and ultimate death.  Appellant’s claim presents a classic example of medical malpractice.  As a result, Minn. Stat. § 145.682 applies to appellant’s claim.  Moreover, the supreme court has consistently applied Minn. Stat. § 145.682 to wrongful-death malpractice claims.  See Lindberg 599 N.W.2d at 574 (applying statute where suit alleged negligence resulting in stillbirth of child); Stroud 556 N.W.2d at 553 (applying statute where plaintiff brought wrongful-death action based on malpractice alleging death resulting from misdiagnosis).  Contrary to appellant’s claim, Minn. Stat. § 145.682 applies to wrongful-death actions.

3.      Special Damages.

            For the first time on appeal, appellant claims that the district court erred in dismissing his case because he alleged special damages under Minn. Stat. § 573.02, subd. 2 (1998).  The complaint only references a wrongful-death claim.  The district court did not address the issue of a claim under Minn. Stat. § 573.02 because it was not raised at the district court level.  We decline to address matters not argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see Brett v. Watts, 601 N.W.2d 199, 201 (Minn. App. 1999) (“Only matters considered by the district court may be submitted on appeal.”), review denied (Minn. Nov. 17, 1999).

4.      Constitutionality of Minn. Stat. § 145.682.

            Appellant claims that Minn. Stat. § 145.682 is unconstitutional.  Traditionally, courts will not decide constitutional questions except where necessary to dispose of a case.  State v. Hoyt, 304 N.W.2d 884, 888 (Minn. 1981).  In addition, to challenge the constitutionality of a statute in an appellate proceeding, an appellant must notify the attorney general.  Minn. R. Civ. App. P. 144.  Here, nothing in the record indicates that appellant notified the attorney general.  Moreover, appellant provides no support for his constitutional attack and we decline to address allegations unsupported by legal analysis or citation.  See Ganguli v. University of Minnesota, 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (refusing to address allegation not supported by constitutional analysis or citation).

5.      Denial of motion for reconsideration.

            Appellant argues that the district court abused its discretion by denying his motion to reconsider.  A district court will grant motions for reconsideration “only upon a showing of compelling circumstances.”  Minn. R. Gen. Pract. 115.11.  Appellant claims that the district court should have granted the motion to allow him to address the recent supreme court decision in Anderson

Appellant’s argument is misplaced, however, as Anderson simply clarified the court’s prior holdings in Lindberg,Stroud,and Sorenson.  The district court correctly recognized this when it stated that the “Anderson case merely confirmed the holdings of the cases the Court relied on in its opinion.”  The district court further noted that Lindberg supported its determination that appellant had failed to submit sufficient affidavits.  Here, the district court made use of current case law when it dismissed appellant’s case.  Denial of appellant’s motion to reconsider does not constitute an abuse of discretion.

Appellant also claims that the district court improperly considered respondent’s expert affidavit in reaching its decision to dismiss appellant’s case.  Contrary to appellant’s contention, however, the district court stated that it “did not even rely on Dr. Seymour’s affidavit in deciding whether Plaintiff’s affidavits met Minn. § 145.682.”  Appellant’s claim is without merit.

6.      Appellant’s motion to strike footnote from respondent’s brief

Appellant moves to strike a footnote from respondent HealthPartners and Dr. Fink’s brief because it contains inaccurate information.  Because the parties agree that the footnote information is erroneous, appellant’s motion to strike the footnote is granted.

7.      Respondent HealthPartners and Dr. Fink’s alternative basis for dismissal

            In their brief, respondents HealthPartners and Dr. Fink seek review of the district court’s July 1, 1999 order denying their motion for summary judgment.  Respondents also argue that the judgment in their favor should be affirmed on alternate grounds for summary judgment that were not ruled on by the district court.  Appellant moves to strike these issues from respondent’s brief.  Because we affirm the district court’s dismissal based on Minn. Stat. § 145.682, a review of these claims is unnecessary.

8.      Respondent’s motion to strike portions of appellant’s brief and appendix

            Respondents move to strike portions of appellant’s brief and appendix on the ground that they contain materials outside the record on appeal.  On appeal, the record consists of “[t]he papers filed in the trial court, the exhibits, and the transcripts of the proceedings.”  Minn. R. Civ. App. P. 110.01.  This court “will strike documents included in a party’s brief that are not part of the appellate record.”  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992) (citation omitted), aff’d, 504 N.W.2d 758 (Minn. 1993); see AFSCME, Council No. 14 v. Scott County, 530 N.W.2d 218, 222-23 (Minn. App. 1995), review denied (Minn. May 16 & June 14, 1995) (indicating court may selectively disregard improper references to evidence outside the record without striking entire brief).  A review of the record shows that the documents were not part of the district court file.  Consequently, they cannot be part of the record on appeal and respondents’ motion to strike is granted. 

            Affirmed; motion granted.


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Although two of the affidavits were served after the 180-day time limit provided in the statute, the district court decided to consider them.  See Minn. Stat. § 145.682, subd. 4(a).

[2] Answers to interrogatories qualify as a substitute for an affidavit, so long as the answers are served on the defendant within the 180-day time limit.  Minn. Stat. § 145.682, subd. 4(a); see Stroud, 556 N.W.2d at 555.