This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Susan Leonhardt, et al.,





John J. Norton, D.D.S., et al.,




Filed March 16, 2004

Reversed and remanded; motions denied
Klaphake, Judge


Washington County District Court

File No. C3-01-7082


David W. VanDerHeyden, VanDerHeyden and Ruffalo, P.A., 302 Elton Hills Drive Northwest, Suite 300, P.O. Box 6535, Rochester, MN  55903-6535 (for appellants)


John M. Degnan, Kathryn R. Downey, Murnane, Conlin, White & Brandt, 444 Cedar Street, Suite 1800, St. Paul, MN  55101 (for respondents)


Charles A. Bird, Jeremy R. Stevens, Bird & Jacobsen Law Office, 300 Third Avenue Southeast, Suite 305, Rochester, MN  55904 (for amicus curiae Minnesota Trial Lawyers Association)


            Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            In this dental malpractice action, appellants Susan Leonhardt and Gayle Leonhardt challenge the district court’s grant of summary judgment to respondents John J. Norton, D.D.S. and John J. Norton, D.D.S, P.A.  Appellants argue that the district court abused its discretion by granting respondents’ motion in limine to exclude the testimony of appellants’ expert witness, Dean A. Flugstad, D.D.S.  After excluding Dr. Flugstad’s testimony, the district court granted summary judgment to respondents based on appellants’ failure to provide a witness capable of giving expert testimony.

            Because Dr. Flugstad met the qualifications for providing expert testimony under Minn. R. Evid. 702, we conclude that the district court abused its discretion by excluding his testimony.  We therefore reverse and remand.


            Summary judgment is appropriate where there is no genuine issue of material fact and either party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  Where there is a complete lack of proof on an essential element of a party’s claim, the other party is entitled to summary judgment.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  Here, the district court granted summary judgment after it concluded that appellants failed to produce proof of an essential element of their claim because they did not provide an expert capable of testifying to the appropriate standard of care in this dental malpractice action.

            Initially, we note that the issue here is not whether appellants failed to comply with the requirements of Minn. Stat. § 145.682 (2000), a medical malpractice statute that requires expert affidavits, because respondents failed to make a timely motion for dismissal under that statute.[1]  Rather, the district court determined the motion for exclusion of testimony under Minn. R. Evid. 702.  Under either the rule or statute, we apply the same “deferential standard to [the district court’s] determination as to expert qualification, reversing only if there has been a clear abuse of discretion.”  Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 427 (Minn. 2002) (quotation omitted).   

            Minn. R. Evid. 702 provides:

            If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.


The comment to this rule states:

If an opinion could assist the trier of fact it should be admitted subject to the proper qualification of the witness.  The qualifications of expert need not stem from formal training and may include any knowledge, skill, or experience that would provide the background necessary for a meaningful opinion on the subject.


Id. 1977 comm. cmt.

            An expert must have both “sufficient scientific knowledge of and some practical experience with the subject matter of the offered testimony.”  Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn. 1977).  The key phrase here is “subject matter of the offered testimony.”

            Dr. Flugstad’s first and second affidavits, which were before the district court when it decided the motion in limine, make it clear that both he and respondent Norton shared similar qualifications; both were general dentists who performed a fair amount of orthodontic procedures.  Nothing in this record provides any basis for a determination that the procedures performed by respondent Norton on appellant Susan Leonhardt were so specialized that testimony by a general practitioner about the standard of care applicable to another general practitioner would be insufficient.  In the absence of any allegation that the procedures were beyond the scope of a general practitioner experienced in the practice of routine orthodontia, the district court abused its discretion in excluding Dr. Flugstad’s testimony.

            An expert witness must have practical knowledge of what is usually and customarily done by health care providers in similar circumstances.  Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).  Generally, this assumes that the expert is providing the same type of services as the health care provider.  Id.  It is not an absolute requirement that the expert witness practice in the same area of health care or have the same subspecialty, so long as the witness has practical experience in the area about which testimony is offered.  Fiedler v. Spoelhof, 483 N.W.2d 486, 489 (Minn. App. 1992), review denied (Minn. June 10, 1992); Riewe v. Arnesen, 381 N.W.2d 448, 459 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986).

            The more specialized the procedure, the more critical it is that an expert’s knowledge and practical skills align with those about whom testimony is offered.  See, e.g., Teffeteller, 645 N.W.2d at 424, 427 (excluding testimony of expert witness who was board certified in pediatrics, head of pediatric intensive care unit, and taught pediatrics, because of lack of practical experience in specific area of pediatric bone marrow transplants).  Here, nothing in the record indicates that the procedures performed by respondent Norton were beyond the skills and knowledge of a general dental practitioner.  In fact, Dr. Flugstad’s second affidavit stated

[t]hat Susan Leonhardt’s orthodontic treatment was a simple case to treat and there was absolutely no reasonable doubt or uncertainty to the proper course of treatment.  That the amount of skill, knowledge, judgment and attention used by Dr. Norton to treat Susan Leonhardt was clearly below that exercised by dentists under the like circumstances in the same or similar community.


. . . .


That I would not have undertaken completion of orthodontic treatment of Susan Leonhardt that Dr. Norton started if I did not have prior practical experience and knowledge to do so competently.


            The purpose of rule 702 is to provide testimony that will assist a jury in evaluating a claim.  The purpose of Minn. Stat. § 145.682 is to assist the court in identifying frivolous claims.  Demgen v. Fairview Hosp., 621 N.W.2d 259, 264 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).  Neither the statute nor the rule sets the technical bar so high that no reasonable person may overcome it.  We therefore conclude that the district abused its discretion by excluding testimony that meet the standards of rule 702.

            Finally, respondents filed a motion with this court to exclude (1) Dr. Flugstad’s third affidavit, which the district court struck from the record, but is included in appellant’s appendix; and (2) the amicus brief, claiming it deals with matters beyond the record and the scope of this appeal.  Because our decision here does not rely on either of these documents, these motions to strike are moot; we therefore deny them.  See State v. Johnson, 659 N.W.2d 819, 822 (Minn. App. 2003), review denied (Minn. July 15, 2003). 

            Reversed and remanded; motions denied.



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

[1]  Subdivision 6 of this statute has been amended, and the changes are effective for actions commenced on or after May 23, 2002.  2002 Minn. Laws ch. 403, § 1.  This action was brought in 2001.