This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-97-2147

Mary Ann Bastian,

Appellant,

vs.

William Kane M.D.,

Respondent,

Sidney Premer M.D.,

Respondent.

Filed May 12, 1998

Affirmed

Amundson, Judge

Hennepin County District Court

File No. 95-13687

John M. Steele, P.A., 418 Groveland Avenue, Minneapolis, MN 55403 (for appellant)

William M. Hart, Katherine A. McBride, Rodger A. Hagen, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Kane)

Michael Freeman, Hennepin County Attorney, Michael B. Miller, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondent Premer)

Considered and decided by Harten, Presiding Judge, Short, Judge, and Amundson, Judge.

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

AMUNDSON, Judge

Appellant sued respondents for medical malpractice involving treatment for injury caused by a slip-and-fall. Dr. Premer was granted summary judgment because of appellant's failure to meet the procedural requirements of Minn. Stat. § 145.682. Because an earlier personal injury suit revolving around the incident resulted in a verdict in the defendant's favor, respondent Dr. Kane was granted a directed verdict based on collateral estoppel. Dr. Premer also successfully sought costs and attorney fees for a psychological independent medical exam (IME) which appellant did not complete. Appellant challenges the summary judgment, the directed verdict, and the award of costs and fees. We affirm.

FACTS

In 1991, appellant Mary Ann Bastian slipped and fell in a commercial office building and sustained soft tissue injuries to her lower back. Dr. William treated her injuries. When conservative treatment did not relieve Bastian's pain, Dr. Kane recommended, and Bastian consented to, sacroiliac fusion surgery. Having been asked to assist Dr. Kane with the surgery, surgical resident, Dr. Sidney Premer, met Bastian on the day of her surgery, July 27, 1993. After surgery, Dr. Premer attended Bastian in the post-surgical intensive care unit and wrote a post-surgical note on July 31, 1993, his last day of involvement with Bastian's medical care.

Bastian brought a personal injury claim against American Building Maintenance Corporation, the owners of the building where her accident occurred. The suit went to trial and in February 1995, the jury issued a verdict in favor of the owners. On July 20, 1995, Bastian served Drs. Kane and Premer with a complaint alleging failure to obtain her informed consent, failure to establish criteria for the surgery, and negligent surgical performance. On July 30, 1996, both Drs. Kane and Premer moved to compel expert responses to their interrogatories. After a series of problems with Bastian's production of expert disclosures, the district court ordered that Dr. Premer could take depositions of both of Bastian's experts, completely at Bastian's expense. This took place in January and February of 1997.

In April 1997, Drs. Premer and Kane moved for summary judgment based on Bastian's failure to satisfy Minn. Stat. § 145.682 requirements for production of expert affidavits. The district court granted summary judgment (a statutory dismissal; see comments in Decision, section I) for Dr. Premer.

Bastian's suit against Dr. Kane went to trial; on the sixth day of trial, the district court granted Dr. Kane's motion for a directed verdict based on collateral estoppel. The collateral estoppel doctrine was invoked because the district court decided that the damage element in Bastian's suit against Dr. Kane was identical to that in her personal injury suit that had already been resolved.

On June 5, 1997, Dr. Premer moved for sanctions against Bastian's attorney for: (1) failing to timely notify Dr. Premer that Bastian would not attend the second half of her psychological IME; and (2) failing to pay court reporter fees for depositions of Bastian's experts, despite the court's order to do so. The district court ordered Bastian's counsel to pay Dr. Premer $300 for the cost of the incomplete IME and $500 in attorney fees for the necessity of bringing the motion. Bastian challenges the district court's dismissal of her suit against Dr. Premer; the district court's grant of Dr. Kane's motion for a directed verdict; and the district court's award of costs to Dr. Premer.

D E C I S I O N

I. Statutory Dismissal

Bastian asserts that the district court improperly granted summary judgment in favor of Premer for failure to comply with Minn. Stat. § 145.682 (1994). What both parties and the district court, referred to as a "summary judgment" it is a statutory dismissal based on Bastian's failure to satisfy the requirements of Minn. Stat. 145.682.[1] Absent an abuse of discretion, this court will not reverse a district court's dismissal of medical malpractice claims for failure to satisfy Minn. Stat. § 145.682. Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn. 1996). The statute was enacted to eliminate nuisance lawsuits by requiring plaintiffs to file expert affidavits verifying the merit of the plaintiff's allegations. Stroud, 556 N.W.2d at 555. The district court dismissed Bastian's suit against Dr. Premer based on the inadequacies of Bastian's expert's affidavit, which required detailing

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.

Minn. Stat. § 145.682, subd. 4(a). The district court stated:

The affidavit of Dr. Richard Gardner is of dubious quality in two respects; first, it is inaccurate, a point conceded by plaintiff; and second, even when viewed in the best possible light, it does not advance a coherent theory in support of defendant Premer's alleged culpability.

Bastian, however, argues that when the combination of affidavits and answers to interrogatories are viewed, there is sufficient information to satisfy the requirements of section 145.682. The supreme court has held that if the expert is adequately identified, the issue regarding the requirements of section 145.682, subd. 4 is whether

the affidavits and answers to interrogatories in question contained sufficient details concerning "the substance of the facts and opinions" and a sufficiently precise "summary" of the grounds for each opinion.

Sorenson, 457 N.W.2d at 191. Here, the district court did consider all of Gardner's disclosures and correctly found that section 145.682 was not satisfied. The district court did not abuse its discretion in dismissing Bastian's suit against Premer.

II. Waiver of Collateral Estoppel Defense

The portion of Bastian's appeal involving Dr. Kane challenges the district court's directed verdict. When reviewing a directed verdict, this court makes "an independent assessment of its appropriateness." Claflin v. Commercial State Bank of Two Harbors, 487 N.W.2d 242, 247 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992). A directed verdict should only be granted where, viewing the evidence as a whole, a contrary verdict would be manifestly contrary to the evidence or to the law. Id. Bastian's first argument is a matter of law. She asserts that Kane waived his right to exercise collateral estoppel as a defense because he did not raise the defense in his pleadings, but after six days of the trial. Minnesota Rule of Civil Procedure 8.03 dictates that the affirmative defenses such as estoppel should be set forth in a responsive pleading. Failure to raise an affirmative defense in such pleading or amendments is deemed a waiver of the defense. St. Cloud Aviation, Inc. v. Pulos, 375 N.W.2d 543, 545 (Minn. App. 1985). Collateral estoppel, however, is a defense which may be raised later if the defense was unavailable at the time of the original answer. See Graham v. Special Sch. Dist. No. 1, 462 N.W.2d 78, 81 (Minn. App. 1990) (specifically, collateral estoppel could be raised in motion for summary judgment), aff'd in part, rev'd in part, 472 N.W.2d 114 (Minn. 1991) (reversed on other grounds).

Bastian asserts that Graham does not apply because Dr. Kane's collateral estoppel defense had been available earlier, because the personal injury suit that was the basis of the defense had been concluded at the time of pleadings. Dr. Kane responds that he did not raise the defense because he did not know that Bastian would not present any evidence of damages different from those claimed in the first action. The parties were given an opportunity to argue and brief the motion for directed verdict.

It is within the discretion of the district court to permit an amendment to the pleading to allow a collateral estoppel defense. Beutz v. A. O. Smith Harvestore Products, Inc., 431 N.W.2d 528, 532 n. 3 (Minn. 1988). Here, the district court impliedly allowed an amendment to the pleadings by granting the motion for directed verdict. The district court did not abuse its discretion in allowing Dr. Kane to raise his collateral estoppel defense in his motion

III. Collateral Estoppel

Bastion argues that if Dr. Kane did not waive his right to raise a collateral estoppel defense, her claims are not barred by collateral estoppel. Collateral estoppel applies when:

(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

Ellis v. Minneapolis Comm'n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982). The doctrine of collateral estoppel is not rigidly applied, but is a flexible doctrine focusing on "whether its application would work an injustice on the party against whom estoppel is urged." Johnson v. Consolidated Freightways, Inc., 420 N.W.2d 608, 613-14 (Minn. 1988). Bastian asserts that the personal injury lawsuit determined the defendant's liability for damages proximately caused by the fall. But the suit against Dr. Kane revolves around the damages arising from his alleged negligence. In these two suits involving very different issues, Bastian contends that collateral estoppel should not bar her claims.

The two cases presented different theories of liability. But because Bastian has already litigated damages, a necessary element of her claim against Dr. Kane, the liability issues are moot. A tortfeasor is liable not only for injuries to the plaintiff, but also for enhanced or aggravated injuries the plaintiff suffers as a result of alleged medical malpractice committed during treatment required by the tortfeasor's wrongful act. Couillard v. Charles T. Miller Hosp., Inc., 253 Minn. 418, 422, 92 N.W.2d 96, 99 (1958). It is recognized that a release of the person allegedly responsible for the initial injury bars action against a medical practioner for malpractice in treating the injury. Id. Because the damages in the personal injury case would have included the damages Bastian sought from Dr. Kane, the damages issue is barred by collateral estoppel. Damages are a necessary element to the malpractice suit, hence the collateral estoppel doctrine would support a directed verdict in favor of Kane.

IV. "One Action" Rule

Bastian further argues that her suit against Dr. Kane is not barred by the "one action" rule. While this argument was made in Dr. Kane's memorandum in support of his motion for directed verdict, it was not the reason ultimately cited by the district court. Instead, the district court granted the motion for directed verdict on the basis of collateral estoppel.

V. Fees and Costs

This court will not reverse the district court's award of attorney fees or costs unless the award is an abuse of discretion. Becker v. Alloy Hardfacing & Eng'g, Co., 401 N.W.2d 655, 661 (Minn. 1987) (attorney fees); In re Gershcow's Will, 261 N.W.2d 335, 340 (Minn. 1977) (costs).

Bastian argues that Dr. Premer should have brought a stipulation before he moved for the recovery of fees and costs. This argument, lacking any merit, the district court did not abuse its discretion.

Affirmed.

[1] This is identical to the situation in an earlier case, in which this court wrote:

While the parties and the trial court both referred to the * * * order as a "summary judgment," an actual summary judgment was neither sought nor obtained. Instead, respondents argued that appellants failed to meet the statutory requirements of Minn. Stat. § 145.682, subds. 2 and 4 (1986), and that dismissal was mandated under Minn. Stat. § 145.682, subd. 6 (1986). The trial court agreed.

Respondents actually sought, argued for, and obtained a statutory dismissal based on appellants' failure to meet the requirements of Minn. Stat. § 145.682.

Sorenson v. St. Paul Ramsey Med. Ctr., 444 N.W.2d 848, 851 (Minn. App. 1989), affirmed as modified, 457 N.W.2d 188 (Minn. 1990) (modified on other grounds).