Lead Opinion
OPINION
A personal representative/trustee filed a complaint alleging legal malpractice against an attorney and his law firm relating to a power of attorney drafted by the attorney’s legal assistant. The district court granted the attorney’s motion to dismiss, holding that the personal representative/trustee failed to provide a satisfactory expert disclosure on each element of a prima facie case of legal malpractice, in violation of Minn.Stat. § 544.42, subd. 4(a)
Contrary to the court of appeals, we hold that the personal representative/trustee’s expert disclosure on proximate cause was insufficient under BrownWWilbert. Therefore, the district court did not abuse its discretion when it dismissed the legal malpractice claim under Minn.Stat. § 544.42, subd. 6(c). We reverse.
I.
In April 2013, respondent Timothy Guz-ick, as Personal Representative of the Estate of George Nyberg and as Trustee of the George Nyberg Trust, filed a complaint against appellant Larry Kimball, an attorney, and appellant Kimball Law Office. The facts alleged in the complaint are as follows.
In 2008,- Louis Nyberg, Jr. (“Tony”) asked Colleen Bennett to prepare a power of attorney form (“POA”) authorizing Tony to act as attomey-in-fact for his uncle, George Nyberg (“George”). Bennett was a legal assistant for Larry Kimball, who practiced law at Kimball Law Office. Bennett printed a copy of the Minnesota Standard Short Form Power of Attorney (“Short Form”) and gave it to Tony to give to George. Later, at George’s house, Bennett showed George where to sign and then notarized his signature. The Short Form used by Bennett had automatically placed a checkmark on all lines, including: “This power of attorney authorizes the attorney-in-fact to transfer my property to the attorney-in-fact.” The Short Form included a disclosure that it had been drafted by Kimball Law Office, and Kimball' Law Office billed George for preparing the document. Bennett never asked George if he had read the form, and never discussed with George the level of authority that George sought to grant to Tony. Kimball, Bennett’s supervisor, never reviewed the POA or met with George to talk about the POA.
After George was hospitalized in early 2009, Tony went to Wells Fargo to add his name as a joint owner with a right of survivorship on two of George’s accounts. Tony provided Wells Fargo with the POA, and Wells Fargo consented to Tony’s request. Allegedly, George did not intend for Tony to be a joint owner of his accounts with a right of survivorship. Tony transferred money into the now-jointly owned accounts from other accounts owned by George and his trust, and in turn transferred some of those funds to accounts owned by Tony and Tony’s wife. George died several days later. Both before and after George’s death, Tony transferred a total of $226,524 to his and his wife’s accounts.
Guzick, the personal representative of George’s estate and trustee of George’s trust, brought a conversion action against Tony and his wife. Tony and his wife then filed for bankruptcy. Guzick was awarded a judgment against Tony in Tony’s bankruptcy proceeding. Guzick also brought an' action against Wells Fargo.
Guzick then filed suit against Kimball and Kimball Law Office (collectively “Kim-
As required by Minn.Stat. § 544.42, subd. 2(1) (2014), Guzick served an affidavit of expert review with the complaint. Guzick’s affidavit stated that his expert had reviewed the facts alleged in the complaint, that the expert’s qualifications “provide[d] a reasonable expectation that her opinions would be admissible at trial,” and that the expert’s opinion was that “Kimball deviated from the applicable standard of care, and by that action caused damages.”
The affidavit also identified, in the expert’s opinion, 10 different acts committed by Kimball that deviated from the standard of care and caused damages: (1) failure to supervise Bennett in drafting the POA; (2) failure to have in effect measures to provide reasonable assurance of the quality of Bennett’s conduct and work; (3) failure to meet with George to assess his need and desire for a POA; (4) failure to meet with George to assess his ability to understand the POA; (5) failure to meet with George to ensure that he was not acting under undue influence or duress; (6) failure to explain the scope of authority provided by the POA; (7) failure to discuss the risks of granting the attorney-in-fact the broad powers in the POA; (8) failure to assess whether Tony was the appropriate individual to be named as attorney-in-fact; (9) failure to discuss with George which lines should be checked on the statutory Short Form POA; and (10) failure to send the draft of the POA to George’s residence to assure that he received it unaltered.
Guzick did not provide an affidavit of expert disclosure. But in response to one of Kimball’s interrogatories about expert witnesses, Guzick stated that he had regained Susan E. Johnson-Drenth as an expert, and referred Kimball to his affidavit of expert review for a summary of her opinion.
In September 2013 Kimball moved, pursuant to Minn. R, Civ. P. 56 and Minn.Stat. § 544.42 (2014), for “entry of summary judgment dismissing [Guzick’s] claims.” Kimball argued that Guzick failed to provide a satisfactory affidavit of expert disclosure within 180 days of commencement of the lawsuit, as required by Minn.Stat. § 544.42, subd. 2(2), and that Guzick did not qualify for subdivision 6’s curative provision. Kimball argued that Guzick was required to use an expert to establish all four elements of a prima facie case of legal malpractice: the existence of an attorney-client relationship, acts constituting negligence, proximate causation, and but-for causation, see Blue Water Corp. v. O’Toole,
In response, Guzick argued that his original affidavit of expert review, to which he referred in answering Kimball’s interrogatories, complied with subdivision 4 for the elements actually required to be established by an expert. In the alternative, Guzick argued that his affidavit was sufficient to qualify for safe-harbor protection.
The district court granted Kimball’s motion and dismissed the claim with prejudice. The district court first held that expert testimony is required to establish all four elements of Guzick’s malpractice claim. The court held that Guzick’s affidavit of expert review did not comply with subdivision 4 for any of the elements of the prima facie case, as Guzick’s affidavit consisted of “restatements of the facts and broad, conclusory statements.” The court also held that Guzick’s affidavit did not qualify for subdivision 6’s safe harbor because it was “grossly deficient” under Brown-Wilbert,
Guzick appealed, and the court of appeals reversed and remanded. Guzick v. Kimball, No. A14-0429,
The court of appeals’ dissent concluded that an expert was required to establish but-for causation, asserting that the case did not present “one of those rare or exceptional legal-malpractice cases in which the plaintiff should be relieved of the requirement to introduce expert evidence to prove causation.” Id. at *11 (Johnson, J., dissenting). The dissent also concluded that the expert disclosure on both forms of causation was not sufficient to satisfy Brown-Wilbert, asserting that the disclosure “could not possibly be any more con-clusory or any less meaningful.” Id. at *13.
We granted Kimball’s petition for review.
II.
Kimball asks us to reverse the court of appeals and hold that an expert was necessary to establish each element of Guzick’s prima facie case, and that Guzick’s disclosure failed to meet the Brown-Wilbert standard for any of the prima facie elements.
We “review a district court’s dismissal of an action for procedural irregularities under an abuse of discretion standard.”
A prima facie case of legal malpractice requires a plaintiff to establish four things: “(1) the existence of an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts were the proximate cause of the plaintiffs damages; [and] (4) that but for defendant’s conduct the plaintiff would have been successful in the prosecution or defense of the action.” Blue Water Carp., Inc. v. O’Toole,
If “expert testimony is to be used by a party to establish a prima facie case,” a plaintiff in a professional malpractice suit must provide two affidavits. MinmStat. § 544.42, subd. 2; see also MinmStat. § 544.42, subd. 1(1) (defining a “professional” as “a licensed attorney or an architect, certified public accountant, engineer, land surveyor, or landscape architect”). The first affidavit, the expert review affidavit, generally must be served upon the defendant with the pleadings, MinmStat. § 544.42, subd. 2(1), and must contain a statement that, “in the opinion of [the] expert, the defendant deviated from the applicable standard of care and by that action caused injury to the plaintiff,” Minn. Stat. § 544.42, subd. 3(a)(1). The second affidavit, the expert disclosure affidavit, must be served upon the opponent within 180 days of the commencement of discovery, Minn.Stat. § 544.42, subd. 2(2),
be signed by the party’s attorney and state the identity of each person whom the attorney expects to call as an expert witness at trial to testify with respect to the issues of negligence, 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. MinmStat. § 544.42, subd. 4(a). The expert disclosure affidavit requirement may also be satisfied by answers to interrogatories instead of a formal affidavit. MinmStat. § 544.42, subd. 4(a). The issue presented here is the sufficiency of the expert disclosure.
If a plaintiff fails to serve an expert disclosure affidavit or answers to interrogatories that satisfy subdivision 4(a) within 180 days, the defendant may move for mandatory dismissal “of each action with prejudice as to which expert testimony is necessary to establish a prima facie case.” MinmStat. § 544.42, subd. 6(c). But the statute provides a “safe harbor” that requires the court, before granting such a motion to dismiss, to: (1) give the plaintiff notice of the deficiencies of the affidavit; and (2) give the plaintiff 60 days to cure those deficiencies. Id.
In order to give life to the second affidavit requirement, we have read a limitation into the safe-harbor provision of Minn. Stat. § 544.42, subd. 6(c). In Brown-Wilbert, Inc. v. Copeland Buhl & Co., an accounting malpractice case, we held that, to qualify for the safe harbor, a disclosure must “provide some meaningful information, beyond conclusory statements.”
(1) identiffy] each person the attorney expects to call as an expert; (2) de-scribef ] the expert’s opinion on the applicable standard- of care, as recognized by the professional community; (3) ex-plaint ] the expert’s opinion that the defendant departed from that standard; and (4) summarize[ ] the expert’s opinion that the defendant’s departure was a direct cause of the plaintiffs injuries.
Brown-Wilbert,
The first requirement for a minimally sufficient disclosure we identified in Brown-Wilbert — identity—is satisfied here. In response to Kimball’s interrogatory, which asked Guzick to “[ijdentify each expert witness whom you expect to call ... as a witness at trial,” Guzick answered that he had retained “Susan E. Johnson-Drenth,” and referred Kimball to the affidavit of expert review filed with the complaint.
The other three requirements we identified in Brown-Wilbert are the prima facie elements of an accounting malpractice case. Brown-Wilbert should not be read to require each of the latter three requirements in every professional malpractice case. See Brown-Wilbert,
We have discussed whether expert testimony is required for the elements of a legal malpractice case on only a few occasions. The issue first appeared in Hill v. Okay Construction Co.,
Expert testimony should be generally required to establish the standard of care applicable to an attorney whose conduct is alleged to have been negligent and further to establish that his conduct deviated from that standard. That general rule should be subject to the exception that such expert testimony is not necessary in cases where the conduct complained of can.be evaluated adequately by a jury in the absence of expert testimony.
Id. at 337,
In Wartnick v. Moss & Barnett, we reiterated the holding of Hill and stated that expert testimony is generally required to establish both the applicable standard of care and breach of that standard, “unless the conduct can be evaluated by a jury in the absence of expert testimony.”
We have never required expert testimony on the other elements of a prima facie ease of legal malpractice. Broum-Wilbert, an accounting malpractice case, credited Admiral Merchants, a legal malpractice case, as “stating that expert testimony is generally required to establish the standard of care applicable to legal malpractice, whether the attorney deviated from that standard, and whether that deviation caused the plaintiff’s injury.” Brown-Wilbert,
Here, the parties do not dispute that an expert was required to establish the acts constituting negligence and proximate causation elements, but dispute whether an
III.
We first consider but-for causation. Kimball argues that the court of appeals “unilaterally rewrote malpractice law” when it concluded that expert testimony was not required to establish but-for causation, as this is not a “rare” exempt case. ■Kimball argues that it would not be within the competence of a jury — absent expert testimony — to determine whether George would have signed the POA but for Kim-ball’s alleged negligent acts. Guzick responds that but-for causation is not even necessary in this case, as it does not involve damage to or loss of a cause of action.
Guzick’s claim that he need not establish but-for causation is wrong. When a case does not involve damage to or loss of a cause of action, but instead involves transactional malpractice, we have modified the but-for element to require a plaintiff to show that, “but for defendant’s conduct, the plaintiff would have obtained a more favorable result in the underlying transaction than the result obtained.” Jerry’s Enters.,
On the other hand, Kimball and the court of appeals are mistaken when they claim that, for but-for causation in a legal malpractice case, “[o]nly the ‘rare’ or ‘exceptional’ case is capable of resolution without expert testimony.” Guzick,
Instead of relying on a general rule, we analyze whether the facts needed to establish but-for causation are within an area of common knowledge and lay comprehension such that they can be adequately evaluated by a jury in the absence of an expert. Hill, 312 Minn, at 337,
To find but-for causation for the first causal link a jury would need to determine whether, but for Kimball’s failure to supervise Bennett and meet with George, the POA, would not have been overbroad. This chain of evidence could be adequately evaluated by a jury in the absence of expert testimony. To determine what George wanted or would have wanted after
To find but-for causation for the second causal link the jury would need to determine whether, but for the overbroad POA, Tony would not have converted George’s funds. This could be answered by the POA itself (whether the POA gave Tony the ability to transfer funds), and by Tony and Wells Fargo concerning Tony’s conversion (whether Tony relied on the POA to transfer funds). None of this information is so complex that it requires an expert to explain it. Thus, Guzick was not required to make an expert disclosure on but-for causation.
IV.
Kimball agrees with the court of appeals that an expert was required to establish proximate causation, and Guzick does not dispute this. Thus, because an expert was required to establish proximate cause, we must determine whether Guz-ick’s expert disclosure satisfied Brown-Wilbert to qualify for safe-harbor protection. The court of appeals held that it did. “By identifying the standard of care, the manner in which respondents breached that standard, and the injuries suffered by appellant, the affidavit necessarily implies that the injuries arising from the breaches were foreseeable.” Guzick,
We disagree. Although the affidavit read as a whole may very well imply that Kimball’s actions were the proximate cause of Guzick’s injuries, it is not enough to satisfy Bronmr-Wilbert, which requires an affidavit to provide meaningful information that “summarizes the expert’s opinion.”
This is not a minor defect. When he commenced this action, Guzick was not just beginning to explore the issues of liability and causation; he had previously brought actions against not one but two parties. Guzick had knowledge of the facts, and had been pursuing claims, for multiple years. To allow him to use the safe harbor, in light of these circumstances and given the conclusory statements we previously disapproved of in Brown-Wilbert, would eviscerate the second affidavit requirement.
Thus, Guzick’s expert disclosure contains a major defect; it lacks a meaningful disclosure of an expert’s opinion on an element of the prima facie case required to be established by an expert. Pursuant to Brown-Wilbert, such an expert disclosure does not qualify for safe-harbor protection to cure the defect. Because the disclosure’s major defect precludes the use of the safe harbor of MinmStat. § 544.42, subd. 6(c), the district court did not abuse
Reversed.
Notes
. Guzick later amended the complaint to include two more defendants: Kimball's previous law firm, Kimball and Undem, and the legal assistant, Bennett. Guzick alleged the same legal malpractice claim against Kimball and Undem as he had alleged against Kimball and Kimball Law. As for Bennett, Guzick alleged one count of negligence relating to the preparation of the POA. Bennett later successfully moved for summary judgment, an issue not before us.
. Although the parties, the district court, and the court of appeals labeled the motion as one for summary judgment, it is more accurately described as a motion for “statutory dismissal for procedural reasons.’’ See Sorenson v. St. Paul Ramsey Med. Ctr.,
. The statute has been amended since the disclosure affidavit was served in this case, to require such an affidavit to be served within 180 days of commencement of discovery. See Act of April 3, 2014, ch. 153, § 3, 2014 Minn. Laws 110, 111 (codified as amended at Minn. Stat. § 544.42, subd. 2(2) (2014)). This amendment does not affect the analysis of this case.
. Kimball argues that Guzick's expert review affidavit cannot also serve as the expert disclosure affidavit. It is at least conceivable that a carefully drawn and detailed expert review affidavit could also qualify as an expert disclosure affidavit. We need not, and do not, decide that issue here.
. Kimball argues that expert testimony is always required to establish the existence of an attorney-client relationship when the evidence of the relationship is disputed. We have never held that expert testimony is necessarily required to establish the existence of an attorney-client relationship. It is, of course, conceivable that expert disclosure may be necessary on this first element of a legal malpractice claim. See Minn.Stat. § 544.42, subd. 6(c) (stating that a motion to dismiss may be granted only with respect to each action “as to which expert testimony is necessary to establish a prima facie case”). But it is also possible to posit circumstances that establish sufficient evidence of an attorney-client relationship without resorting to expert witness testimony. But because we conclude that Guzick’s disclosure was insufficient as to proximate cause, we need not, and do not, decide whether an expert was required to establish the existence of an attorney-client relationship in this case.
. In reaching the but-for causation issue, Guzick’s expert would already have established a standard of care that Kimball should have followed in giving George legal advice.
Concurrence Opinion
(concurring).
I cannot disagree with the opinion of the court that, under existing law regarding Minn.Stat. § 544.42, subd. 6(c) (2014), as applied to the parties’ arguments in this particular case of alleged legal malpractice, we must reverse the court of appeals. I write separately to suggest that the controlling case, Brown-Wilbert, Inc. v. Copeland Buhl & Co.,
I.
The court correctly accepts Guzick’s interrogatory answer incorporating the expert review affidavit as the expert disclosure affidavit required by section 544.42, subdivision 6(c). The court then accurately articulates the test for whether expert testimony is required: “whether a plaintiff is required to make an expert disclosure is something that must be determined on a case-by-case basis for each element of the prima facie case of malpractice.” Expert testimony is generally required on the elements of the standard of care and its breach. Wartnick v. Moss & Barnett,
The remaining element of malpractice is proximate cause. As the court indicates, Kimball agrees with the court of appeals that, in this legal malpractice case, an expert was required to establish proximate causation and, interestingly, Guzick does not disagree. Had he done so, it would, have been a close call as to whether an expert was necessary to establish proximate cause under the facts of this case.
Given Guzick’s concession, the court does not err in considering his expert disclosure to be “conclusory.” If an expert disclosure is only “conclusory,” then, pursuant to Brown-Wilbert, it does not qualify for the safe harbor of section 544.42, subdivision 6(c), discussed below. Thus, given the particular posture of this case, and applying the existing precedent under the applicable statute, it follows that the court of appeals must be reversed and Kimball must be granted summary judgment.
While I concur, reluctantly, in this result, I hope that soon we will have an opportunity to revisit Brown-Wilbert. While neither party urged us to overrule it, the holding of Brovm-Wilbert conflicts with both the plain language of section 544.42 and our later interpretation of the substantively similar medical malpractice statute.
I read section 544.42, the statute governing expert disclosures in malpractice cases against lawyers, accountants, and design professionals, as clear and unambiguous. Under the statute, a plaintiff must serve an expert disclosure — containing an expert’s opinion, if necessary, establishing the elements of the prima facie case— within 180 days after commencement of discovery. Minn.Stat. § 544.42, subds. 2(2), 4(a) (2014). If the plaintiff fails to “comply with subdivision 4,” the defendant may move the district court for “mandatory dismissal of each action with prejudice as to which expert testimony is necessary to establish a prima facie ease.” Minn. Stat. § 544.42, subd. 6(c). • But such a motion “based upon claimed deficiencies of the affidavit or answers to interrogatories shall not be granted” unless the district court provides: (1) notice containing “specific findings as to the deficiencies of the affidavit or answers to interrogatories; and (2) 60 days to “satisfy the disclosure requirements in subdivision 4.” Minn.Stat. § 544.42, subd. 6(c) (emphasis added). The 60 days to cure the deficiencies is the so-called “safe harbor.”
Here, Guzick submitted as his expert disclosure an answer to an interrogatory incorporating the expert review affidavit in which the expert opined that ten different acts were negligent. Upon the motion to dismiss by Kimball, the statute required the district court to provide notice to Guz-ick identifying any deficiencies in his disclosure — such as, in this case, a condusory statement on proximate causation — and allow 60 days for Guzick to cure the deficiencies. Thus, when the district court granted Kimball’s motion to dismiss without allowing safe harbor, it did not follow the plain language of the statute.
But I cannot fault the district court because it relied — as the court does today— on Brovmr-Wilbert to deny access to the safe harbor. In Brown-Wilbert, our court, in a 5-2 decision, held that plaintiffs must provide a “meaningful disclosure” in order to qualify for the safe harbor.
The “meaningful disclosure” standard, and the related concepts of “major” and “minor” deficiencies, are judicial concoctions. The statute does not use the phrase “meaningful disclosure,” and nothing in the statute states or implies that only affidavits with “minor” deficiencies qualify for safe-harbor protection. Rather, the statute says clearly that any deficient affidavit or interrogatory answer qualifies for the safe harbor.
Further, the precedent invoked by Brown-Wilbert does not prop up its house of cards. Brown-Wilbert cited four medical malpractice cases that espoused some variation of the “meaningful disclosure” standard.
But the medical malpractice cases cited by Brown-Wilbert had no real value, as the medical malpractice statute did not even contain a safe harbor at the time. See Act of May 22, 2002, ch. 403, § 1, 2002 Minn. Laws , 1706, 1706-07 (codified as amended at Minn.Stat. § 145.682, subd. 6(c) (2014)) (amending the medical malpractice statute to add a safe harbor). Indeed, in the absence of a statutory safe harbor, the “meaningful disclosure” standard was actually a judicially-created safe harbor, giving “borderline” plaintiffs— those with minor deficiencies — “less drastic alternatives to a procedural dismissal.”
Perceiving that this judicial safe harbor was inadequate, the Legislature enacted a statutory safe harbor for medical malpractice cases. See Wesely,
[Mandatory dismissal with prejudice of each action as to which expert testimony is necessary to establish a prima facie case, provided that: (1) the motion to dismiss the action identifies the claimed deficiencies in the affidavit or answers to interrogatories; (2) the time for hearing the motion is at least 45 days from the date of service of the motion; and (3) before the hearing on the motion, the plaintiff does not serve upon the defendant an amended affidavit or answers to interrogatories that correct the claimed deficiencies.
Minn.Stat. § 145.682, subd. 6(c) (2014). This medical malpractice safe harbor is substantively the same as the non-medical professional malpractice safe harbor found in section 544.42, subdivision 6(c).
In Wesely v. Flor,
The effect of today’s application of Brown-Wilbert is that plaintiffs in professional malpractice cases may have refuge in the safe harbor if their affidavits contain only “minor deficiencies,” however defined, while those in medical malpractice cases may have refuge for both major and minor deficiencies. This disparate treatment of similar statutory provisions makes no sense. But I acknowledge that the disparity is required by our existing case law.
When the right case arrives, the obvious solution to this contradiction is to conform Broum-Wilbert to Wesely and thereby return to the plain language of the safe harbor of section 544.42, subdivision 6(c). I acknowledge that, under Brown-Wilbert, baseless claims are dismissed 60 days earlier than they would be if allowed into the safe harbor. But that benefit is far outweighed by two costs: damage to our bedrock principle of statutory interpretation, and the premature death of potentially meritorious claims.
Although we are “extremely reluctant” to overrule our previous cases, “stare deci-sis does not bind us to unsound principles.” Oanes v. Allstate Ins. Co.,
. Further, as discussed in the amicus brief of Minnesota Defense Lawyers Association, it is not entirely clear whether proximate cause in this case is even a question of fact for the jury, or rather a question of law for the court. Compare Wartnick,
. The only statutory language cited by Brown-Wilbert to support its holding is the existence of the 180-day requirement. But it does not explain why the 180-day requirement would be so "meaningless,” see Brcwn-Wilbert, 111 N.W.2d at 217-18, without the “meaningful disclosure" standard.. After receiving notice of deficiencies upon a motion to dismiss, a
. The majority states that "[i]n order to give life to the second affidavit requirement, we have read a limitation into the safe-harbor provision of” the statute. Exactly; Brown-Wilbert added to the letter of the law under the pretext of pursuing its purported spirit.
. Such alternatives included the authorization of a deposition of the expert at the plaintiff’s expense or a limitation of the expert’s testimony to those matters adequately disclosed, Sorenson,
. Justice Paul Anderson, who wrote a strong and prescient dissent in Brown-Wilbert,
. Wesely justified treating the safe harbors of the two statutes differently because the professional malpractice statute provides that the district court triggers the start of the safe-harbor period by way of giving notice, while the medical malpractice statute's safe harbor is "automatic” and does not require the court to give notice.
Concurrence Opinion
(concurring).
I join in the concurrence of Justice Lille-haug.