This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).








Lenord E. Marquardt,





Charles Wilkinson, D.D.S., et al.,




Filed February 27, 2007


Toussaint, Chief Judge


Hennepin County District Court

File No. 27-CV-05-009126



William Starr, 746 East Mill Street, Wayzata, MN 55391; and


Robert Gittleman (pro hac vice), 24472 Northwestern Highway, Southfield, MI 48075 (for appellant)


Carolin J. Nearing, Geraghty, O’Loughlin & Kenney, P.A., 1400 Ecolab University Center, 386 North Wabasha Street, St. Paul, MN 55102 (for respondents)



            Considered and decided by Stoneburner, Presiding Judge; Toussaint, Chief Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Lenord E. Marquardt challenges the district court’s dismissal of his dental-negligence claim under Minn. Stat. § 145.682 (2006) for non-compliance with the statute’s expert-witness disclosure requirements.  Because appellant’s position on appeal is inconsistent with his petition before the district court and because his disclosures fail to satisfy the requirements of Minn. Stat. § 145.682, we affirm. 


            We review the district court’s dismissal of a malpractice claim under Minn. Stat. § 145.682 (2006) for an abuse of discretion.  Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 725 (Minn. 2005).

            When a medical malpractice action requires expert-witness testimony to establish a prima facie case, Minn. Stat. § 145.682 imposes two expert-witness review requirements on the plaintiff.  First, the plaintiff must serve the defendant with a summons, a complaint, and an accompanying affidavit providing that the

facts of the case have been reviewed by the plaintiff’s attorney with an expert whose qualifications provide a reasonable expectation that the expert’s opinions could be admissible at trial and that, in the opinion of this expert, one or more defendants deviated from the applicable standard of care and by that action caused injury to the plaintiff . . . .


Id., subd. 3(a).  Additionally, the plaintiff must serve the defendant with a second affidavit within 180 days of commencing litigation.  Id., subd. 2.  This second affidavit

must be signed by each expert listed in the affidavit and by the plaintiff’s attorney and state the identity of each person whom plaintiff expects to call as an expert witness at trial to testify with respect to the issues of malpractice or causation, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion. 


Id., subd. 4(a).  Interrogatory answers are sufficient to meet the second affidavit-requirement if they provide the requisite information, are signed by the plaintiff’s counsel and each expert, and are served within the 180-day time period.  Id., subd. 4(b).  Failure to serve a second affidavit “results, upon motion, in mandatory dismissal with prejudice . . . .”  Id., subd. 6(b). 

            Minnesota courts have interpreted the expert-disclosure statute strictly, in accordance with the legislature’s intention to “dismiss meritless claims at an early stage of litigation.”  Mercer v. Andersen, 715 N.W.2d 114, 122 (Minn. App. 2006); see Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 725 (Minn. 2005) (requiring “strict compliance” with Minn. Stat. § 145.682).  To comply with subdivision 4(a) of the statute, the plaintiff’s second affidavit or interrogatory answers must

(1) disclose specific details concerning the expert’s expected testimony, including the applicable standard of care, (2) identify the acts or omissions that the plaintiff alleges violated the standard of care, and (3) include an outline of the chain of causation between the violation of the standard of care and the plaintiff’s damages.


Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 428 (Minn. 2002) (construing Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 193 (Minn. 1990)).  Under the third prong, broad and conclusory statements of causation, or an expert’s  mere recitation of the facts, are insufficient to meet the mandate under subdivision 4(a).  Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 556 (Minn. 1996).  Rather, to adequately describe a chain of causation between a violation of the standard of care and the resulting damages, the affidavit must show how the defendant’s actions led to the plaintiff’s damages.  Sorenson, 457 N.W.2d at 192-93.

            Upon commencement of appellant’s dental malpractice claim, appellant filed and served the affidavit of Dr. Roger Druckman, D.D.S., with the summons and complaint.  But after passage of the 180-day deadline for filing of the second expert-affidavit, the district court concluded that appellant did not satisfy Minn. Stat. § 145.682 because no disclosure received prior to the 180-day deadline sufficiently described the chain of causation between the alleged breach of standard of care by respondent Charles Wilkinson, D.D.S., and appellant’s claimed injuries.  For the first time on appeal, appellant claims that the Druckman affidavit meets the substantive causation requirement of the statute and that therefore the district court abused its discretion in dismissing appellant’s claim.

            Appellant’s changed position on appeal raises the threshold issue of whether this issue can be cconsidered.  When a party takes a position at the district court level, “[i]t may not change its position on appeal.”  Farmers State Bank of Delavan v. Easton Farmers Elevator, 457 N.W.2d 763, 765 (Minn. App. 1990), review denied (Minn. Sept. 20, 1990).  The reviewing court must consider “only those issues that the record shows were presented and considered by the [district] court in deciding the matter before it.”  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted); see also Edina Dev. Corp. v. Hurrle, 670 N.W.2d 592, 596 n.2 (Minn. App. 2003).

            In contrast to his position on appeal, appellant’s memorandum in opposition to respondent’s motion to dismiss conceded that Dr. Druckman was not competent to testify to the causes of appellant’s claimed medical injuries, thereby conceding that the Druckman affidavit did not and could not satisfy the causation requirement of Minn. Stat. § 145.682.  Appellant did not maintain that the Druckman affidavit met the statute’s chain-of-causation requirement; on the contrary, he stated that the statutory requirement could be met by an additional expert witness supplementing the Druckman affidavit.  Moreover, appellant’s position was not retracted during the district court hearing.  Because appellant changed his position on appeal, and the district court apparently relied on appellant’s statement, he is foreclosed from arguing on appeal that the Druckman affidavit satisfies the statute’s substantive chain-of-causation requirements.

            Even if appellant had asserted at the district court that the Druckman affidavit satisfies the causation requirement of the statute, we would still conclude that the affidavit fails to satisfy Minn. Stat. § 145.682.  Even the most liberal reading of the affidavit does not provide a description of the causes of appellant’s claimed damages.  Instead, the Druckman affidavit focuses exclusively on the applicable standard of care and the ways in which Dr. Wilkinson allegedly deviated from that standard.  The only portion of the affidavit that arguably speaks to the chain of causation between Dr. Wilkinson’s deviation from the standard and appellant’s claimed injuries provides:

Dr. Wilkinson’s deviation from the standard of care found in this dental community and similar dental communities caused aspiration of amalgam/tooth fragments into the pulmonary organs of Lenord Marquardt, which was preventable by treatment within the standards of care, in his and similar dental communities. 


But this statement does little more than state that Dr. Wilkinson’s allegedly negligent conduct caused aspiration of tooth fragments into appellant’s lungs, which led to appellant’s surgery. 

            The affidavit does not discuss appellant’s claimed damages in any way.  Those claimed damages include:  reoccurrences of pneumonia, chronic arm, shoulder, and chest pain, breathing problems requiring regular use of an oxygen machine, exacerbation of preexisting chronic obstructive pulmonary disorder, mental health problems, and curtailment of social and professional activities.  The record suggests that some of appellant’s claimed damages may be the result of physical conditions that existed prior to the surgery or were exacerbated by the surgery.  But the Druckman affidavit does nothing to explain, or attempt to explain, how Dr. Wilkinson’s conduct, aspiration of the filling, and the subsequent surgery caused the damages claimed by appellant.  Moreover, the affidavit does not even generally attempt to account for the potential impact of appellant’s pre-existing medical conditions.  The Druckman affidavit completes only half of the causal chain; it provides only a conclusory statement regarding the cause of the plaintiff’s injuries.  Accordingly, the district court did not abuse its discretion when it concluded that the Druckman affidavit did not meet the requirements of Minn. Stat. § 145.682.

            Contrary to statutory requirements, the only other expert disclosures appellant filed, those of Dr. N. Tracy Wolf, were not served within 180 days of the lawsuit’s commencement.  The summons and complaint was served on April 22, 2005.  The district court calculated 180 days at October 22, 2005, which is undisputed, and Dr. Wolf’s interrogatory answers and letter were not written until January 3 and 5, 2006, respectively, well after the statutory deadline.

            Not only did appellant fail to file Dr. Wolf’s disclosures within the 180-day deadline, Dr. Wolf’s letter was not in affidavit form and his supplemental interrogatory answers were never signed.  The statute unambiguously requires affidavit or interrogatory form and the signature of the expert.  Minn. Stat. § 145.682, subd. 4(a).  Because Dr. Wolf’s disclosures were procedurally deficient, dismissal with prejudice was mandatory under Minn. Stat. § 145.682, subd. 6(b).  The district court did not abuse its discretion in dismissing appellant’s claim.