This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Harry L. Lewis, as Trustee for the heirs

and next-of-kin of Carrie Lewis, deceased,





North Memorial Medical Center, et al.,



Dr. Kelley Salo, M.D., et al.,



Dr. Kurt W. Nisi, M.D., et al.,



Filed October 10, 2002


Willis, Judge


Hennepin County District Court

File No. WD-01-3896


Michael Mobley, The Mobley Law Firm, 701 South Fourth Avenue, Suite 500, Minneapolis MN  55415 (for appellant)


David C. Hutchinson, Carolin J. Nearing, Geraghty, O’Loughlin & Kenney, P.A., 386 North Wabasha Street, Suite 1400, Saint Paul, MN  55102 (for respondents North Memorial Medical Center, et al.)


William M. Hart, Melissa Dosick Riethof, Meagher & Geer, PLLP, 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN  55402 (for respondents Dr. Kelley Salo, M.D., et al.)




            Considered and decided by Willis, Presiding Judge, Minge, Judge, and Parker, 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 abused its discretion by dismissing his medical-malpractice action with prejudice for failure to comply with the expert-witness-disclosure requirements of Minn. Stat. § 145.682, subd. 4 (2000).  Because we find no abuse of discretion, we affirm.



            On April 20, 2000, Carrie Lewis died of colorectal cancer.  On May 11, 2001, appellant Harry L. Lewis, as trustee for the heirs and next-of-kin of his deceased wife, sued respondents North Memorial Medical Center; Ibrahim A. Mujir, M.D.; Kelley Salo, M.D.; Gregory G. Mevissen, M.D.; Timothy G. Larson, M.D.; Kurt W. Nisi, M.D.; and Mark Bisignani, M.D., for medical malpractice.[1]  Lewis alleged that respondents were negligent in their treatment of his wife; he attached to his complaint the affidavit of expert review that Minn. Stat. § 145.682 (2000) requires in medical-malpractice actions. 

            In late May 2001, Salo and Mevissen served Lewis with interrogatories and requests for production of documents.  Lewis served his responses in late July.  On June 7, 2001, North Memorial, Larson, and Mujir served Lewis with interrogatories and requests for production of documents; he responded on August 2.  Lewis’s answers to the interrogatories indicated that as of August 2001, he had not identified the experts he would call at trial.

            On July 30, 2001, Lewis first sought discovery from any of the respondents by serving Salo and Mevissen with interrogatories and requests for production of documents, and three days later he served similar requests on North Memorial, Larson, and Mujir.  Salo and Mevissen served responses to Lewis’s discovery requests on October 12; North Memorial and Larson served responses on November 7.  Lewis did not notice any depositions in this matter.

            By the terms of Minn. Stat. § 145.682, subd. 4(a), Lewis was required to serve respondents within 180 days after commencement of his action with a disclosure specifying what experts would testify on his behalf at trial, the substance of their testimony, and a summary of the grounds for their opinions.  To comply with the statute, Lewis should have served the disclosure on Salo by November 7, 2001; on North Memorial, Larson, and Mujir by November 11;and on Mevissen by November 13.  But at Lewis’s request, respondents agreed to an extension to December 3.  Also at Lewis’s request, Salo and Mevissen agreed to a second extension to December 7, and North Memorial, Larson, and Mujir agreed to a second extension to December 14.  Respondents advised Lewis that they would not agree to any additional extensions.

            Lewis did not serve the required expert-witness disclosure on any respondent.  Instead, on December 12, he brought a motion under rule 6.02 of the Minnesota Rules of Civil Procedure, asking for an extension of time to serve the disclosure and asserting that his failure to have already done so was due to excusable neglect.  The hearing on Lewis’s motion was held on January 4, 2002.  Before the hearing, respondents moved to dismiss Lewis’s claim because of his failure to comply with the disclosure requirements of Minn. Stat. § 145.682, subd. 4.

At the hearing, Lewis requested two additional weeks to provide the disclosure.  The district court denied Lewis’s motion, concluding that his excuse for the delay was “weak” and that he had not acted with due diligence.  The district court noted that, because of Lewis’s failure to comply with Minn. Stat. § 145.682, subd. 4, it could conceive of no fact or argument that would persuade it to deny respondents’ motion for dismissal and dismissed Lewis’s case with prejudice.  Lewis now appeals.




            Minn. Stat. § 145.682 (2000) requires the plaintiff in a medical-malpractice action to serve the defendant with specified information regarding the claim.  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190-1 (Minn. 1990).  Absent an abuse of the district court’s discretion, this court will affirm the dismissal of an action for failure to comply timely with the requirements of section 145.682.  Tousignant v. St. Louis County, 615 N.W.2d 53, 58 (Minn. 2000). 

            A complaint asserting a medical-malpractice claim must be accompanied by an “affidavit of expert review.”  Minn. Stat. § 145.682, subds. 2, 3.  Here, it is uncontested that Lewis properly served such an affidavit.

            A plaintiff, within 180 days after commencing his action, must also provide the defendant, either by affidavit or by answers to interrogatories, with a description of the plaintiff’s expected expert testimony.  Id., subds. 2(2), 4.  That disclosure must set forth (1) the applicable standard of care, (2) the acts or omissions that the plaintiff claims violated that standard of care, and (3) an outline of the chain of causation that allegedly resulted in the plaintiff’s claimed injury.  Sorenson, 457 N.W.2d at 193; see also Minn. Stat. § 145.682, subds. 2, 4.  If the plaintiff fails to comply with the disclosure requirement, a defendant is entitled to a dismissal of each of the plaintiff’s claims for which expert testimony is required.  Minn. Stat. § 145.682, subds. 2, 4, 6; Sorenson v. St. Paul Ramsey Med. Ctr., 444 N.W.2d 848, 853 (Minn. App. 1989), aff’d as modified, 457 N.W.2d 188 (Minn. 1990) (modifying on other grounds).  But a district court, or the parties by agreement, may extend the 180-day deadline for disclosure. 

            The rules of civil procedure provide 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; see also Stern v. Dill, 442 N.W.2d 322, 324 (Minn. 1989) (holding that requirements of Minn. Stat. § 145.682 must be read in conjunction with Minn. R. Civ. P. 6.02). 

Excusable neglect in the context of failure to serve an expert-witness disclosure in a medical-malpractice action exists when:  (1) the plaintiff has a reasonable case on the merits, (2) the plaintiff has a reasonable excuse for his failure to comply with the requirement of Minn. Stat. § 145.682 for service of an expert-witness disclosure, (3) the plaintiff acted with due diligence, and (4) the defendant would not suffer substantial prejudice if the extension of time were granted.  Anderson v. Rengachary, 608 N.W.2d 843, 850 (Minn. 2000) (upholding the district court’s dismissal of a medical-malpractice claim for failure to comply with disclosure requirements of Minn. Stat. § 145.682, subd. 4).  But a plaintiff is not entitled to relief under rule 6.02 if he does not have a reasonable excuse for the failure to provide the disclosure in a timely fashion.  Moen v. Mikhail, 454 N.W.2d 422, 422 (Minn. 1990) (explaining that a plaintiff with no reasonable excuse for not supplying the expert-witness disclosure is not entitled to a rule 6.02 extension).  A district court’s ruling on a rule 6.02 motion is discretionary and will be affirmed absent an abuse of discretion.  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).

            Lewis claims that the district court abused its discretion by finding that (1) he had no reasonable excuse for his non-compliance with the disclosure requirement, (2) he failed to act with due diligence, and (3) respondents would suffer serious prejudice if the extension were granted. [2]

            Lewis claims that he had a reasonable excuse for the delay in producing the required disclosure because of respondents’ failure to produce discovery in a timely manner.  But he acknowledged at the hearing on his rule 6.02 motion that there was merely the “possibility” that respondents had not produced all relevant medical records.  The district court found that (1) Lewis was aware of the statutory requirement from the beginning of the suit, (2) Lewis failed to request discovery for more than two months after filing the suit, (3) since at least October 2000, Lewis had access to all of the decedent’s medical records, and (4) respondents had told Lewis, after agreeing to the second extension, that they would not agree to any further extensions.  This supports a conclusion that Lewis lacked a reasonable excuse.  See Maloney v. Fairview Cmty. Hosp., 451 N.W.2d 237, 240 (Minn. App. 1990) (finding that no reasonable excuse existed where same attorney had represented plaintiff since well before expiration of statutory time period, plaintiff’s attorney knew of the requirements of Minn. Stat. § 145.682, and an extended period of time had passed since the suit commenced), review denied (Minn. Mar. 22, 1990).  The district court did not abuse its discretion by finding that Lewis had no reasonable excuse for the delay.

            Lewis also claims that respondents would not have been prejudiced by another extension.  But Lewis had begun his lawsuit almost eight months before the date of the hearing on his 6.02 motion, his wife died more than 19 months before that date, and the medical treatment that Lewis alleges was negligently provided began approximately three years before the date of the hearing.  As the district court noted, at the time of the hearing respondents still did not know what standard of care they allegedly breached and how that alleged breach was claimed to have harmed the decedent.  And as time passes, it becomes increasingly difficult for a party to marshal evidence in defense of a claim.  The legislature enacted Minn. Stat. § 145.692 to eliminate “nuisance medical malpractice lawsuits by requiring plaintiffs to file affidavits verifying that their allegations of malpractice are well-founded.”  Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn. 1996) (upholding district court’s dismissal of medical-malpractice claim for failure to comply with disclosure requirements of Minn. Stat. § 145.682, subd. 4); see also Sorenson, 457 N.W.2d at 191 (stating that “a malpractice action without supporting expert testimony is frivolous per se”).  We conclude that the district court did not abuse its discretion by finding that granting Lewis an additional extension of time would have prejudiced respondents.


            Lewis also argues that the district court abused its discretion by dismissing his suit without giving him an opportunity to address respondents’ motion to dismiss.  Specifically, Lewis argues that a prima facie case of medical malpractice can be presented without an expert witness.  See Tousignant, 615 N.W.2d at 58 (explaining that Minn. Stat. § 145.682 does not apply to cases when standard of care, breach of standard of care, and chain of causation are all within the general knowledge and experience of laypersons).  Because Lewis did not raise this issue in the district court, it is not properly before us.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that an appellate court’s review is generally limited to those issues presented to, and considered by, the district court).  Nevertheless, we choose to address Lewis’s argument.  Minn. R. Civ. App. P. 103.04 (stating that an appellate court has the authority to review “any other matter as the interest of justice may require”).

            Under Minnesota law, “expert testimony is necessary to support all but the most obvious medical malpractice claims.”  Haile v. Sutherland, 598 N.W.2d 424, 428 (Minn. App. 1999) (citations omitted); see also Hestbeck v. Hennepin County, 297 Minn. 419, 424-26, 212 N.W.2d 361, 365 (1973) (holding that malpractice claim resulting from physician’s failure to retrieve sponge from patient’s body during surgery did not need to be supported by expert testimony).  Lewis’s complaint alleges failure to treat, failure to refer, and failure to disclose to decedent the risks associated with treatment for her colorectal cancer.  Because Lewis’s claims relate to the diagnosis and treatment of cancer, this is not a rare case in which expert testimony is unnecessary.  Chizmadia v. Smiley’s Point Clinic, 768 F. Supp. 266, 271 (D. Minn. 1991) (citation omitted) (“This limited exception [to the requirement of expert testimony in medical-malpractice cases] is applied in the simplest of fact situations, such as when metal clips or a sponge have been left in the body after surgery or a dentist’s grinding disc has slipped and cut membranes and tissues at the base of the tongue.”).  Lewis admits as much when he argues in this appeal that without additional records his experts could not opine as to whether respondents “satisfied the standards of care controlling Plaintiff’s claims.” 

            The district court did not abuse its discretion by dismissing Lewis’s claim with prejudice.


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


[1] Subsequently, Bisignani and Nisi were dismissed from the suit.


[2] The district court, for purposes of the order denying appellant’s rule 6.02 motion, assumed that appellant had a reasonable case on the merits; but the district court also noted that whether appellant has a reasonable case on the merits is precisely what cannot be determined without the affidavit.