This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed November 22, 2005
Hennepin County District Court
File No. CT 03-14644
Considered and decided by Dietzen, Presiding Judge, Klaphake, Judge, and Crippen, Judge.*
appeal involves a medical malpractice action brought by appellant
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.
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.
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.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 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.