This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Sharyl Uhde,





Brook West Chiropractic Clinic, et al.,




Filed November 22, 2005

Klaphake, Judge


Hennepin County District Court

File No. CT 03-14644



Thomas F. Handorff, Handorff Law Offices, 1055 E. Wayzata Boulevard, Suite 300, Wayzata, MN  55391 (for appellant)


Donald Chance Mark, Jr., Shannon M. McDonough, Fafinski, Mark & Johnson, P.A., Flagship Corporate Center, 775 Prairie Center Drive, Suite 400, Eden Prairie, MN  55344 (for respondents)


            Considered and decided by Dietzen, Presiding Judge, Klaphake, Judge, and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            This appeal involves a medical malpractice action brought by appellant Sharyl Uhde after she received chiropractic treatment from respondent Patrick A. Gallagher at his clinic, respondent Brook West Chiropractic Clinic.  Appellant claimed that Gallagher’s treatment resulted in an arterial tear in her neck that caused her to suffer many strokes.  Appellant challenges the district court’s decision granting respondents’ motion for summary judgment, which was based on her failure to comply with the expert affidavit requirements of Minn. Stat. § 145.682 (2002).  Because appellant failed to file the necessary medical expert affidavit within the statutorily prescribed time period, we conclude the district court did not err in granting summary judgment.  We therefore affirm.


            Minnesota appellate courts review a district court’s dismissal of a medical malpractice action for failure to comply with the statutory expert disclosure requirements under an abuse of discretion standard of review.  Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 725 (Minn. 2005).  Within 180 days of filing a claim, a medical malpractice plaintiff must file a signed affidavit by an expert witness that sets forth a prima facie case.  Minn. Stat. § 145.682, subds. 2, 4 (2002).  If the plaintiff fails to provide the required expert affidavit, the defendant may move for a mandatory dismissal of the claim.  Minn. Stat. § 145.682, subd. 6 (2002).  By agreement of the parties or upon motion to the court “for good cause shown,” the 180-day expert affidavit deadline may be extended.  Id., subd. 4(b).  Under Minnesota law, this provision “‘must be read in conjunction with Minn. R. Civ. P. 6.02.’”  Anderson v. Rengachary, 608 N.W.2d 843, 849 (Minn. 2000) (quoting Stern v. Dill, 442 N.W.2d 322, 324 (Minn. 1989)).  The rule allows for extension of a statutory deadline “where the failure to act was the result of excusable neglect.”  Minn. R. Civ. P. 6.02.   

            We conclude that the district court did not abuse its discretion or otherwise err by dismissing appellant’s case under Minn. Stat. § 145.682.  The primary purpose of this statute is to prevent nuisance lawsuits at an early stage in the proceedings and to ensure that the party who initiates a medical malpractice claim can establish a prima facie case.  Broehm, 690 N.W.2d at 725; Maudsley v. Pederson, 676 N.W.2d 8, 12 (Minn. App. 2004).  “So as not to undermine the legislative aim of expert review and disclosure, we have stressed that plaintiffs must adhere to strict compliance with the requirement of Minn. Stat. § 145.682.”  Broem, 690 N.W.2d at 726.  While a district court has discretion to extend the time period for serving an expert witness affidavit, it properly denies a motion for such an extension where the plaintiff fails to show a reasonable excuse for failure to provide the affidavit.  Broehm, 690 N.W.2d at 727-28; see also Bellecourt v. United States, 784 F. Supp. 623, 637 (D. Minn. 1992) (affirming dismissal for failure to provide expert witness affidavit, when plaintiff was aware of expert affidavit requirement but submitted it 11 months beyond the statutory deadline); Anderson, 608 N.W.2d at 850 (attorney’s inadvertence in missing statutory deadline for serving expert witness affidavit in medical malpractice action did not excuse plaintiff from statutory requirement). 

            The procedural posture of this case admittedly does not lend itself to simple application of the statute.  After appellant initiated her medical malpractice action in July 1999, respondents moved for and were granted dismissal of the case on statute of limitations grounds within 98 days.  Upon further appeal, this court reversed and remanded on the sole issue of whether the statute of limitations was tolled because of appellant’s mental impairment due to her many strokes and resulting depression.  Uhde v. Brook W. Chiropractic Clinic, 2004 WL 1559825 (Minn. App. July 13, 2004), review denied (Minn. Sept. 21, 2004).  It was only after the supreme court denied respondents’ petition for further review that appellant informally sought an extension of the expert affidavit deadline; she did not file a formal motion to extend the deadline until November 8, 2004.  Appellant did not file an affidavit of expert identification until February 19, 2005, more than one month after respondents brought the current motion for summary judgment based on appellant’s failure to file the affidavit. 

            Given these facts, even if we agree with appellant’s contention that the statute was tolled during the pendency of her appeal, we nevertheless conclude that appellant was aware of the statutory deadline but failed to timely submit an expert affidavit.  Under either the good cause or excusable neglect standard, appellant failed to provide an appropriate reason for extending the time to serve the expert witness affidavit.  We therefore conclude that the district court did not err in dismissing appellant’s complaint.[1] 


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

[1] Appellant also argues that she is entitled to a default judgment or that respondents are estopped from seeking mandatory dismissal under Minn. Stat. § 145.682 (2002), because they failed to answer the complaint.  The district court did not rule on these issues, which were raised for the first time in appellant’s brief in opposition to respondents’ motion for summary judgment.  See Krueger v. State Farm Fire & Cas. Co., 510 N.W.2d 204, 212 (Minn. App. 1993) (appellate court declines to decide ineffective service of process issue that was raised before but not decided by the district court); Minn. R. Civ. P. 55.01 (party seeking default judgment must offer affidavit showing facts supporting default judgment and is only entitled to default judgment where party failed to “plead or otherwise defend” against action).  We decline to address these issues.