Wesely v. Flor
2011 Minn. LEXIS 556
Minn.2011Background
- Wesely sues Flor for dental malpractice; initial expert disclosure used an internist (Dr. Vocal) not a dentist.
- Under Minn. Stat. § 145.682, subds. 2, 4, plaintiff must file a second affidavit within 180 days identifying expected experts and summarizing their opinions.
- Flor moves for mandatory dismissal under § 145.682, subd. 6, asserting deficiencies in Dr. Vocal’s qualification.
- During the 45-day safe-harbor period, Wesely’s new attorney serves an affidavit identifying Dr. Lingle, a dentist, with substantially similar information.
- District court dismisses, ruling the second affidavit did not amend the first since it identified a different expert; court of appeals affirms.
- Supreme Court reverses, holding the second affidavit is an amended affidavit under § 145.682, allowing substitution of a dentist for the internist and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the safe-harbor provision applies on a dismissal motion under § 145.682 | Wesely may use safe-harbor to cure deficiencies | Safe-harbor does not apply here | Safe-harbor applies; automatic 45-day period usable each time a dismissal is sought |
| Whether the second affidavit amends the first when it names a different expert | Second affidavit amends the first to cure deficiencies | Second affidavit cannot amend a different expert | Second affidavit amends the first; valid to cure deficiencies and substitute the expert |
| Who may sign/amend the affidavit of expert disclosure | Affidavits may be authored by plaintiff or attorney | Experts must sign; otherwise improper | Plaintiffs and counsel may amend each other’s affidavits; the attorney can amend on the plaintiff's behalf |
Key Cases Cited
- Lindberg v. Health Partners, Inc., 599 N.W.2d 572 (Minn. 1999) (strict compliance prior to safe-harbor; harsh results acknowledged but statute now uses safe-harbor to cure technical deficiencies)
- Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721 (Minn. 2005) (safe-harbor provision added to address meritorious claims dismissed for technical deficiencies)
- Brown-Wilbert, Inc. v. Copeland Buhl & Co., 732 N.W.2d 209 (Minn. 2007) (distinguishes safe-harbor application when affidavit is materially deficient; informs limitations under 544.42 comparison)
- Stroud v. Hennepin Cnty. Med. Ctr., 556 N.W.2d 552 (Minn. 1996) (affidavit by plaintiff's attorney; details of expert testimony required)
- Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188 (Minn. 1990) (discussion of two affidavits and sufficiency of details in disclosure)
- Anderson v. Rengachaiy, 608 N.W.2d 843 (Minn. 2000) (treatise on affidavit identification of experts in medical malpractice)