Greene v. Matthys, 2017 ND 107

Greene sued Dr. Matthys for medical negligence after a November 2013 revision left total hip arthroplasty; suit was commenced by service on November 24, 2015.
N.D.C.C. § 28-01-46 requires a plaintiff in a medical negligence action to serve an expert affidavit supporting a prima facie case within three months of commencement.
Greene did not serve an expert affidavit within three months but her lawyer sent a January 25, 2016 letter disclosing an expert and summarizing proposed testimony.
The case was transferred to Cass County in Feb 2016; Matthys moved to dismiss under § 28-01-46 for failure to serve an expert affidavit.
The district court granted dismissal without prejudice; because the statute of limitations had run, the dismissal effectively foreclosed further litigation, making the order appealable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 28-01-46 requires an expert "affidavit" (vs. disclosure letter) within three months	Greene: Lawyer’s letter naming an expert and summarizing opinion satisfied the statute’s purpose and should suffice	Matthys: Statute plainly requires an affidavit from the expert; the letter is not an affidavit	Held: Statute is unambiguous; an expert affidavit is required and the letter did not satisfy § 28-01-46
Whether the "obvious occurrence" exception applies	Greene: Two-inch post-op leg-length discrepancy is an obvious occurrence not requiring expert affidavit	Matthys: The alleged occurrence arose from a technical surgical procedure and is not obvious to a layperson	Held: Exception does not apply; surgical technicality makes expert testimony necessary
Whether defenses (waiver, estoppel, scheduling-order extension) bar dismissal	Greene: Matthys waived the defense, was estopped, or the parties’ scheduling order extended expert-disclosure deadlines	Matthys: § 28-01-46’s statutory deadline governs despite scheduling discussions; defense timely raised	Held: Court rejected these arguments; scheduling/disclosures for trial did not satisfy the statute and defenses did not prevent dismissal
Whether dismissal without prejudice was appealable	Greene: Implicit challenge to appealability	Matthys: Dismissal effectively ends case due to limitations	Held: Dismissal was appealable because statute of limitations expired, effectively foreclosing relief

Scheer v. Altru Health Sys., 734 N.W.2d 778 (N.D. 2007) (dismissal without prejudice may be appealable where defect cannot be cured)
Haugenoe v. Bambrick, 663 N.W.2d 175 (N.D. 2003) (technical surgical procedures are beyond lay understanding; obvious-occurrence exception inapplicable)
Larsen v. Zarrett, 498 N.W.2d 191 (N.D. 1993) (obvious-occurrence exception limited to matters within lay knowledge)
Larson v. Hetland, 593 N.W.2d 785 (N.D. 1999) (procedural standards for expert-affidavit requirements)
Van Klootwyk v. Baptist Home, 665 N.W.2d 679 (N.D. 2003) (limitations-run dismissal may render order effectively final and appealable)