This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Wayne E. Pflughoeft, et al.,
Filed December 13, 2005
Olmsted County District Court
File No. C8-04-3781
Peter H. Ames, William Skemp Law Firm, S.C., 700 North Third Street, Suite 202, P.O. Box 397, La Crosse, WI 54602-0397 (for appellant)
Kay Nord Hunt, Phillip A. Cole, Lommen, Nelson, Cole & Stageberg, P.A., 2000 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondents)
Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from summary judgment in a legal malpractice action, appellant challenges the district court’s dismissal of the action with prejudice based on her failure to file the expert-review affidavit within the time period required by Minn. Stat. § 544.42, subds. 2(1), 3 (2004). We affirm.
D E C I S I O N
On appeal from summary judgment, this
court considers whether genuine issues of material fact exist and whether the
district court erred in applying the law.
Negligence actions against
professionals, including attorneys, must comply with expert-disclosure
requirements under Minn. Stat. § 544.42, subd. 2 (2004). See
Middle River-Snake River Watershed Dist. v. Dennis Drewes, Inc., 692 N.W.2d
87, 90-91 (Minn. App. 2005) (discussing expert-affidavit requirements in
negligence action against engineer). The
expert-review provisions of Minn. Stat. § 544.42 are similar to those contained
in Minn. Stat. § 145.682 (2004), the medical-malpractice expert-affidavit
statute. See Middle River, 692 N.W.2d at 91 (discussing parallel reasoning
used in construing requirements of Minn. Stat. § 145.682 and Minn. Stat. §
544.42 in context of engineering-malpractice claim); see also House v. Kelbel, 105 F. Supp.2d 1045, 1051 (D. Minn. 2000)
(stating that the
The affidavit statute for
professional, nonmedical malpractice actions requires, subject to certain
exceptions inapplicable here, that a plaintiff serve two expert-witness
disclosure affidavits on an adverse party.
The affidavit of expert review must
generally be served with the pleadings. Id., subd. 2(1). Failure to serve this affidavit within 60
days after demand “results, upon motion, in mandatory dismissal of each cause
of action . . . as to which expert testimony is necessary to establish a prima
Here the district court dismissed appellant’s action, concluding that appellant failed to establish (1) a reasonable excuse for failing to meet the statutory deadline; and (2) that she proceeded with due diligence after respondents demanded strict adherence to the time limits. We agree.
It is undisputed that appellant failed to serve the expert-review affidavit either with the pleadings or within the 60-day demand period. And the record contains a September 9, 2004 letter from respondent’s counsel to appellant’s counsel, acknowledging service of the complaint, stating that the required expert affidavit was not included, and demanding that the deficiency be cured within the statutory time frame or respondent would “obtain the mandatory dismissal provided by law.” Notwithstanding this demand, appellant did not serve the affidavit until November 18, 2004, 70 days after the notice of demand and 10 days past the statutory time allowed. Moreover, as emphasized by the district court in denying appellant’s request for relief, appellant failed to ask the court for an extension or modification of the affidavit requirement any time within the 60-day demand period.
The only explanation provided by appellant for missing the statutory deadline involved the time it took to secure an expert. Appellant’s counsel claims that he found a qualified expert before serving the complaint but subsequently learned that the expert was no longer willing to render an opinion. He states that he missed the deadline because it took additional time to find a new expert. On these facts, we cannot say the district court erred in not granting an extension to appellant. If difficulty in securing an expert was a sufficient basis for securing an extension, the statutory deadlines would be rendered meaningless.
As cited above, the statute requires
mandatory dismissal for failing to serve the affidavit of expert review within
60 days of demand. And appellate courts
have generally required strict adherence to statutory time limits for
submitting expert affidavits in malpractice actions. See,
On this record we cannot say the district court erred in dismissing appellant’s claim with prejudice based on appellant’s failure to file an expert-review affidavit within the statutory period.