This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-95-2580

Barbara A. Nerad, et al.,
Appellants,

vs.

James M. Schaffhausen, M.D., et al.,
Respondents,
Fairview Ridges Hospital, a division of
Fairview Hospitals and
Healthcare Services,
Respondent.

Filed July 2, 1996

Affirmed
Klaphake, Judge

Dakota County District Court
File No. C8-94-10410

Paul Sortland, Sortland Law Office, Suite 500, 701 Fourth Avenue South, Minneapolis, MN 55415-1810 (for Appellants)

Richard L. Pemberton, James F. Roegge, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402-3788 (for Respondents Schaffhausen, et al.)

Barry G. Vermeer, Anne T. Johnson, Gislason, Dosland, Hunter & Malecki, P.L.L.P., Opus Center, Suite 215E, 9900 Bren Road East, Minnetonka, MN 55343-9666 (for Respondent Fairview Ridges Hospital)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Schultz, Judge.*

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Appellant Barbara Nerad appeals from a judgment dismissing her medical malpractice action against respondents James M. Schaffhausen, M.D., his surgical group, and the hospital where she received surgery. We observe no abuse of discretion in the trial court's rulings that Nerad's proffered medical expert was not qualified and that Nerad was not entitled to a continuance to obtain a qualified expert. Accordingly, we affirm.

D E C I S I O N

Expert Witness Disqualification

The trial court's decision to disqualify Dr. Keith Sehnert as an expert witness in this case was not an abuse of discretion. See Williams v. Wadsworth, 503 N.W.2d 120, 123 (Minn. 1993) (abuse of discretion standard applies to trial court's ruling on expert witness qualification). To qualify as a medical expert, a witness "must have both the necessary schooling and training in the subject matter involved, plus practical or occupational experience with the subject." Lundgren v. Eustermann, 370 N.W.2d 877, 880 (Minn. 1985) (citation omitted). "[T]heoretical expertise" without "practical knowledge or experience" is insufficient to establish foundation for expert testimony. Id. Where the proffered expert testimony also fails to establish a foundation for the plaintiff's case, the trial court may disqualify the expert from testifying. Williams, 503 N.W.2d at 123-24.

Here, Dr. Sehnert lacks the practical experience to testify on the claimed negligence of both Dr. Schaffhausen and Fairview Ridges Hospital, and his proffered opinions fail to establish a foundation for Nerad's claims. Dr. Sehnert revealed that his family practice consists solely of out-patient work; he has not had hospital privileges for 18 years; and he has not given an injection, other than inoculations, for 12 years. He neither revealed nor claimed expertise in the areas of orthopaedics or postoperative care. Furthermore, Dr. Sehnert did not claim that performing the surgery or giving a postoperative injection in Nerad's leg breached any standard of care, nor did he provide an opinion on the then-existing standard of care regarding Nerad's surgery or postoperative care. Thus, the trial court properly suppressed Dr. Sehnert's testimony and dismissed Nerad's case. See Minn. Stat. ' 145.682, subd. 3 (1992) (requiring pretrial identification of qualified medical expert witness in medical malpractice actions).

Continuance Ruling

The trial court's denial of Nerad's request for a continuance "to possibly obtain further expert testimony" after Dr. Sehnert was disqualified on the first day of trial was not an abuse of discretion. See Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977) (abuse of discretion standard applies to trial court's ruling on continuance motion). The record reveals that respondents challenged both Dr. Sehnert's qualifications and opinions as early as November 1994. Dr. Sehnert's depositions of July 21 and August 18, 1995 strongly indicated that he would be unqualified to testify as an expert in this case. Despite this, Nerad's attorney did not move for a continuance to obtain a different medical expert until the first day of trial, August 21, 1995, after the trial court's ruling to exclude Dr. Sehnert's testimony.

We recognize that "a party must be afforded a reasonable opportunity to prepare a case." Cotroneo v. Pilney, 343 N.W.2d 645, 650 (Minn. 1984). Nevertheless, a party requesting a continuance to conduct further discovery must have made a diligent effort to prepare for trial. Kissner v. Norton, 412 N.W.2d 354, 357-58 (Minn. App. 1987); Westbrook State Bank v. Anderson Land & Cattle Co., 364 N.W.2d 416, 420 (Minn. pp. 1985). In this case, the chronology of pretrial proceedings reveals that Nerad's attorney was on notice prior to trial that Nerad's proffered expert witness was likely unqualified to testify.

Affirmed.


Footnotes

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