Perius v. Nodak Mutual Insurance Co.

2010 ND 80 PERIUS, Appellant

Allen Plaintiff and

NODAK INSURANCE MUTUAL

COMPANY, Defendant and

Appellee Kessler,

Jacob Defendant.

No. 20090239.

Supreme Court of North Dakota.

May Bismarck, N.D., Hager, Andrew

Scott appellant. plaintiff for Bismarck, N.D., Armstrong, Mitchell D. appellee. for defendant CROTHERS, Justice. from a sum- appeals Allen Perius action

mary judgment dismissing his insurer, his motor vehicle Nodak no-fault Company, Insurance Mutual cover- for uninsured motorist benefits and disputed there are is- age. We conclude of material fact about whether Peri- sues damages us’s claimed accident, and we a motor vehicle and remand. reverse I 8, 2004, On October Perius he was driving his motor vehicle when in an an uninsured involved accident with by Jacob Kessler. motor vehicle driven motor vehicle with No- Perius insured his dak, coverage for no- basic fault benefits and for uninsured motorist injured he benefits. Perius claimed accident, in the upper neck and back 12, 2004, sought on October he primary physician, from his care treatment Tello, prescribed physical Dr. Ron who $1,020.75 in therapy. paid Nodak no-fault for Perius’s with Dr. benefits consultation physical ther- prescribed Tello and for the apy. completed prescribed Perius therapy on November physical not seek additional medical and he did he saw treatment until March when those chiropractor. Perius submitted payment as chiropractic bills to Nodak for in- requested no-fault benefits. Nodak Perius, medical examination for dependent receiving the results of that ex- and after amination, payment Nodak denied medical treatment after Deceyiber 31, 2004, concluding that treatment was viders had diagnosed “severe arthritis” to the motor accident. . not related vehicle from the accident which had “shifted around someplace my neck where it Perius sued Kessler and bothers me more.” Perius submitted affi-

Nodak, alleging negligently oper- Kessler davits of two of his treating medical pro- proximately ated his uninsured vehicle and viders, Quasi Dr. Michael and Dr. Kelly injuries including caused Perius “severe Quast’s Remillard. Dr. affidavit said Peri- injuries spine not limited to to the but us “is continuing to have persistent pain surrounding spine.” soft tissues Peri- and I believe it is a result of traumatic alleged us also Nodak its insur- breached arthritis from the injury” sustained ance contract with him for uninsured mo- motor vehicle Quast’s accident. Dr. affida- coverage torist and for no-fault benefits. stated, vit further “To a degree reasonable liability, asserting Nodak denied Perius’s certainty,' of medical I believe the medical injuries claimed were the result of an ex- treatment I provided have Allen Perius isting proximately condition and were not and associated medical expenses are rea- by the caused October accident. No- sonable, necessary and related to the Octo- against dak also asserted a cross-claim ber 2004 motor vehicle accident.” Dr. regarding Kessler Perius’s uninsured mo- said, Remillard’s affidavit “To a reasonable torist claim. did not answer the Kessler degree of certainty,-1 medical believe the claims him. medical/chiropractic I pro- treatment -A scheduling required [¶ 4] order Peri- vided Allen Perius and associated medi- experts by May us to disclose cal/chiropractic expenses reasonable, May provided On Perius Nodak necessary and related to the October with a of 11 providers expected list medical 2004 motor vehicle accident.” Nodak re- testify about damages.” “causation and sponded that Quast affidavits of Dr. information, requested Nodak further stat- and Dr. Remillard were conclusory and did ing Perius’s experts disclosure of was in- provide competent, admissible evi- “provides sufficient because it meaning- no dence of causation and that those affidavits ful information identify and does not ‘the should they be excluded because did not opinions substance of the facts and comply with applicable discovery rules. which the expected testify grounds of the opin- for each granted [¶ 6] district court Nodak required ion’ as under 26.” [N.D.R.Civ.P.] summary judgment, concluding Perius produce failed to competent, admissible ev- In June Nodak moved for creating idence a factual issue that his summary judgment, claiming Perius’s injuries proximately claimed were caused treatment after December by decision, In accident. its oral 2004, was for an existing degenerative ar- court stated: thritis and no competent, admissible evi-

dence injuries established his claimed comply didn’t in a meaningful “[Perius] by way the motor vehicle scheduling order in terms accident. Perius resisted Nodak’s motion of discovery responses regarding the ex- for summary judgment, claiming he pert had disclosure. Those were due on 12th, sustained a serious under no-fault May my review of the materi- law because he had incurred more than als indicate that discovery re- [Perius’s] $16,000 in medical expenses sponse for treatment basically just a list of a - directly related sustained in the providers number of medical and that accident. pro- only matter, Perius claimed his medical subject disclosure as to or dam- of fact as to causation testimony was issues of the

and the substance insufficient evidence testify ages. as to causation There was they would [Perius], therefore, that that by I don’t believe damages. contemplat- Court Supreme will be is what full, talks about law that ed in case granted.” subject fair disclosure complete and granting written decision its testimo- matter and the substance summary judgment, the district Nodak that there has to be just ny. I believe the affidavits submitted explained I realize in the that. And lot more than conclu- only unsupported, “contain motion, summary judgment context of any sup- or sory without basis statements really dispositive, discovery isn’t ad- competent, not constitute port, and do compe- me to is the that leads but what The court also said missible evidence.” that admissibility of the affidavits tency comply with the Perius had “failed Quast Dr. by Dr. in a scheduling order in this matter mean- They, argued, as [Nodak] Remillard. respect ingful way with disclosure conclusory basically statements are The court further ex- expert witnesses.” accident, by caused the injury was not be hereto- plained, “Nodak shall bound their opinions no basis for but there’s any ruling action or on respect fore with nothing any on which There’s provided. Kes- against claim defendant [Perius’s] say okay, look at them and person could subsequently entered a sler.” evidence, on this or opinion is based this against Kessler for default records, or state- of the this this review $264,400. anything or else. by [Perius] with just conclusory statements They’re II just I

absolutely support. no And be- competent admissi- lieve that that is had The district court said Perius well, all, you It’s first ble evidence. “meaningful way” in a comply failed to good argument that pretty could make a scheduling expert order to disclose it accurate because there isn’t even witnesses, the court did not exclude but previous injuries. And some evidence of action as affidavits nor dismiss his Perius’s know, Perius], you I realize [counsel See v. Estate discovery sanction. Wolf detail, go in real but there guess I didn’t ¶¶ 16-18, Seright, ND previous of some certainly evidence (stating trial court has discre- N.W.2d 161 you at least with the back. And issues tionary authority appropriate to decide neck, correct, not with the but may be discovery sanction for violations and I believe those affidavits again don’t scope of exclude outside up to stand to the suffieient[ly] detailed Rather, interrogatories). answers on competent admissible evidence test of provide failed to com- court decided Perius know, again of causation. You the issue a ma- petent, evidence to raise here, the fact getting repetitive I’m but fact about causation and terial issue of merely that these affidavits state is is for Nodak on granted summary judgment by were caused benefits and for Perius’s claims for no-fault accident, accident, secondary to the coverage. uninsured absolutely no those and there’s basis for court dis The district on the state of the evi- opinions. So by summary judg Court, missed Perius’s action I point, dence before the this ment, review the court’s and we therefore there are material don’t find requirements under the for sum Ill decision procedural “is a mary judgment, which [¶ 10] Perius’s lawsuit Nodak resolution of a con prompt device for the recovery seeks for no-fault benefits and for without a if troversy on the merits trial coverage uninsured for damages motorist allegedly by issues of material Kessler. disputed there are no can reasonably fact or inferences that Under N.D.C.C. 26.1-41- facts, undisputed only drawn from 06(l)(a), a “basic no-fault insurer of a se- questions of issues to be resolved are law.” pay cured motor vehicle shall basic no- Bahl, 13, ¶4, ND Klimple regard fault benefits without to fault for economic loss from ... presented resulting on a [acciden- N.W.2d 256. Evidence mo bodily tal ... sustained the own- is tion for viewed er motor vehicle ... occupy- [w]hile light party op most favorable “ ing any motor vehicle.” ‘Basic no-fault motion, posing given benefits’ means benefits economic loss the benefit of all favorable inferences resulting bodily from injury,” accidental be drawn from reasonably can “ and ‘[e]conomie loss’ means medical ex- Ins., Sentry evidence. Halvorson v. 2008 penses, expenses, loss, rehabilitation work ¶ Summary ND 398. 757 N.W.2d loss, replacement “ services survivors’ in- ‘against a judgment appropriate is loss, come replacement survivors’ services who fails to establish existence of a loss, funeral, cremation, and and burial dispute factual as to an essential element 26.1-41-01(2) expenses.” .§ N.D.C.C. claim he will and on which bear the (7). To claim against recover on his No- ” proof burden of Id. (quoting trial.’ for no-fault under dak benefits those stat- Sletten, Pulkrabek v. 557 N.W.2d utes, injuries Perius that “prove must [his] (N.D.1996)). seeking summary A party qualify bodily injury,’ as ‘accidental judgment has the initial burden of injury ‘arising operation is out of of a that no dispute exists as either material motor vehicle ... and which accidental facts or drawn inferences to be from undis person claiming as to the basic or optional ” puted the movant facts and that is entitled Halvorson, excess no-fault benefits.’ Halvorson, of law. as a matter ¶ ND 398 (quoting 757 N.W.2d ¶at 5. If that the movant meets initial 26.1-41-01(1)). § N.D.C.C. burden, opposing party may simply not To his claim against recover on rely upon or pleadings upon unsup Nodak for motorist coverage, uninsured “ ported conclusory but allegations, ‘must liability by Perius must an unin- prove present competent by admissible evidence §'§ sured driver. See N.D.C.C. 26.1-40- comparable affidavit or other means which 15.1(3) 26.1-40-15.2(1). The’parties must, fact raises issue of material dispute uninsured, do not that Kessler appropriate, draw the court’s attention to and as an Perius providing insurer relevant by setting the record coverage, uninsured motorist Nodak was depositions out the page and line or press all entitled to “contest and defenses comparable other containing documents press.” that the uninsured motorist could raising or evidence an issue of 26.1-40-15.2(4). § N.D.C.C. Uninsured ” material fact.’ Beckler Bismarck Pub. payable damages “[f]or are not benefits Dist., 58, ¶7, Sch. 2006 ND 711 N.W.2d suffering, anguish, inconven- pain, mental Zerr, (quoting ience, Peterson N.W.2d or other noneconomic loss which (N.D.1991)). recovered had the could have been by the ries were caused motor proximately of the motor vehicle operator or

owner claims loss maintained the accident. Nodak for such vehicle responsible any applicable present competent, under failed to admissible ev- required security § response law.” N.D.C.C. 26.1-40- idence in to Nodak’s motion for state no-fault 26.1-41-08, § 15.6(3). a a N.D.C.C. to raise factual issue Under recover non-economic dam- him plaintiff cannot that the 2004 accident October caused person unless ages from secured economic after December loss injury” a “serious plaintiff has suffered and that suffered serious nec- he by 26.1-41- which is defined N.D.C.C. essary to for non-economic loss. recover 01(21), bodily injury which as “accidental said Klimple, we when death, dismemberment, serious results causal a condition af- relationship between disfigurement disability or permanent fecting body and a motor the human vehi- sixty days, expenses beyond a matter within the cle accident is not thousand five dol- of two hundred excess comprehension common of a knowledge lars.” lay person, party bearing the burden proof present must In his claim negligence relationship. establishing that causal Kessler, prove Perius must ¶13, 6, Here, ND duty, him that Kessler Kessler owed issue is Perius’s med- whether discharge duty, and failed to ical condition were negligence proximately caused Kessler’s accident, the motor and Perius vehicle injury.” Klimple, See Perius “serious “ ¶ does not that issue is a matter with- argue proxi ND 727 N.W.2d 256. ‘A comprehen- which, knowledge in the common or a cause natural mate cause is in Consequently, of a lay person. expert sion sequence, produces injury continuous required to estab- the injury would not and without which ” proximate requirement That in Ins., lish cause. (quoting Id. Rued have occurred.’ Inc., hinges turn Blackburn, Smith, on whether affidavits sub- Nickels & Inc. v. by (N.D.1996)). mitted Perius were sufficient raise a 770, 773 N.W.2d “When fact to genuine of material withstand negligence aggravates a defendant’s summary us requires to con- preexisting injury, defendant must interplay expert opin- sider the between the victim for full extent of compensate in summary ions in a motion for affidavits but is not liable for the aggravation judgment under N.D.R.Civ.P. 56 and the preexisting Klimple, condition itself.” ¶ admissibility expert of under the questions “Negligence 5. involves of fact applicable rules of evidence. inappropriate generally and is for sum unless the mary judgment evidence is such 56(e), [¶ 16] Under N.D.R.Civ.P. affi- only that a reasonable factfinder can reach opposing summary davits supporting Id. one conclusion.” personal on judgment “must be made argues knowledge, such facts as opinions of Dr. set forth would [¶ 14] evidence, Quast Remillard affir- and Dr. are admissible be admissible show matively competent that Perius that the affiant is evidence sustained serious testify therein.” by the motor the matters stated Ma- opposition sup- Nodak terials to a vehicle accident. counters that the submitted summary Quast ported Dr. and Dr. affidavits of Remillard motion specific showing “must set forth facts competent, are not admissible evidence inju- there is issue for trial.” Id. genuine that Perius’s medical treatment and genuine Affidavits submitted in insufficient to raise of issues mate- fact”). rial summary judgment proceedings must be personal knowledge.

made on See Hum [¶ 19] Under N.D.R.Ev. “a wit- Clinic, Dakota mel v. Mid 526 N.W.2d qualified ness an by knowledge, as (N.D.1995) trial court (stating 707-08 skill, experience, training, education, attorney’s properly refused consider af may testify thereto in the form an opin- of on fidavit made information and belief be ion or otherwise.” “Testimony in the form comply cause affidavit did not with Rule an opinion of objectionable ... is not be- 56(e) only and was admissible to facts cause it an embraces ultimate issue to be personal knowledge attorney within of decided the trier fact.” N.D.R.Ev. attorney to which to testi An competent expert’s opinion 704. may be based on Stanton, fy); facts or Matter Estate data that are not admissible in (N.D.1991) evidence the facts or data are of (concluding N.W.2d type reasonably relied by experts in in affidavits statements must be admissible Moreover, the field. N.D.R.Ev. 703. an hearsay in evidence and inadmissible state expert may testify about with- ments in be not used in affidavits first testifying out to the underlying facts summary judgment proceeding); Farmers data requires unless the court other- Harp, Union Oil Co. v. wise, but expert may required be (N.D.1990) (stating facts identified disclose the underlying facts or data on affidavit must evidence cross-examination. N.D.R.Ev. to be purpose considered Those rules of for expert opin- Taverna, judgment); Luithle ions reflect some conflict with the lan- (N.D.1973) (stating N.W.2d attor guage requiring N.D.R.Civ.P. ney’s affidavit made on information and opposing judgment to “set 56(e)). comply belief Rule does forth that there ais trial.” genuine issue for containing Affidavits con- language [¶ of N.D.R.Civ.P. clusory allegations on an essential element 56(e) and essentially N.D.R.Ev. 705 of a claim insufficient raise a is genu are identical to language of F.R.Civ.P. 56 Skjervem ine issue of material fact. See v. 705, and F.R.Ev. recognized ¶ we have University, Minot State 2003 ND interpretations that federal court of sub- (stating 658 N.W.2d 750 conclusory bare stantially similar federal rules allegations knowledge about defendant’s of highly persuasive in construing our rules. condition on property hazardous insuf Harp, See genuine ficient to of raise issue material ] fact); BTA Oil v. MDU Re Producers Federal courts have decided 21 ¶¶ 55, 49-50, Group, sources 2002 ND 642 although permits experts 705 F.R.Ev. (stating N.W.2d 873 affidavits must set testify by opinion disclosing without under specific forth facts showing genuine issue data, lying facts containing affidavits of material fact and conclusory statements expert opinions, like other sub materials by specific facts insuffi in unsupported opposition mitted to a supported motion fact); cient to raise material of comply judgment, must Asbridge, 56(e) Federal Land Bank v. 414 specific F.R.Civ.P. and set facts forth (N.D.1987) 596, (stating N.W.2d 598 “[a]ffi- a genuine there is issue for trial. containing Inc., davits conclusory Douglas statements Hayes Dynamics, See v. 8 (1st Cir.1993) supported by are not specific (stating facts are F.3d 92 expert that F.R.Ev. and 705 do alter although tion “703 action that death wrongful 56(e) that requirement inferential than of may be more F.R.Civ.P. testimony witness, in order to sur set facts in specific fact must forth affidavit expert value”); summary judgment any probative to have vive order un specific must set forth Kleppe, affidavits F.2d 533-34 Bieghler v. 56(e) expert Cir.1980) (9th negligence der F.R.Civ.P. (recognizing conclusory assertion more than must be regard- inquiries there are separate action La issue); ultimate Ambrosini about admissibility expert’s of affidavit and ing (D.C.Cir. F.2d barraque, summary judg- sufficiency withstand 1992) alleging pre (recognizing in action stating affidavit more defects that drug caused birth scription neg- that defendant’s than bare conclusion separate admissibility expert opinion of accident); see James ligence testimony is distinct from whether Moore, Practice Moore’s Federal Wm. motion for sum to withstand sufficient (3d 2010). ed. 56.14[l][e] 56); M & mary judgment under F.R.Civ.P. similarly have con- State courts Serv., v. Pleas Supplies and Inc. M Med. containing opinion affidavits testi- cluded Inc., 160, 165 Hosp., 981 F.2d Valley ant mony supporting opposing summary Cir.1992) (4th in antitrust action (stating jurisdic- must their comply with 705 ... not alter the “F.R.Ev. does 56(e). equivalent of States tion’s F.R.Civ.P. 56(e) that affi requirements F.R.Civ.P. addressing the used different issue have submitted davits articulated different approaches set forth proceedings [must] descriptions to harmonize their Co., facts”); Elec. Monks General regarding rule and their rules Cir.1990) (6th (stating 1192-93 F.2d experts. liability that admissibili products action inju involving personal In a case from ty expert’s separate affidavit is collision, the ry car-bicycle from a Ala affidavit is to withstand whether sufficient Appeals bama Court Civil stated that Fertilizer summary judgment); Mid-State point to the “expert opinion evidence as Bank, Exchange Nat’l 877 F.2d Co. v. admissible, clearly of a impact collision is (7th Cir.1989) (stating in expert the facts long so as details under federal statute F.R.Ev. action which his conclusion is based.” Stevens v. opin- present allows “naked Stanford, (Ala.Civ.App. 766 So.2d affida- ion,” requires but F.R.Civ.P. 1999). explained: The court in Stevens facts; specific affirming to forth vits set witness, qualified “A one as an even concluso- expert’s that for expert, must a factual basis an to raise factual ry affidavit was insufficient to opinion. Although any challenge the issue); Corp., Bulthuis v. Rexall 789 F.2d the an adequacy of factual basis for ex- Cir.1985) (9th 1315, (stating in 1317-18 to pert’s opinion normally goes the liability expert’s affi- products action that admissibility rather the weight than to state factual basis to specific davit must evidence, the facts relied on the summary and doctors’ judgment defend clearly the witness are insufficient to plaintiffs opinions about cause of an support opinion, challenge then for conclusions ab- cancer disclosed basis admissibility to may go even any greater court that sent indication from A cannot necessary); opinion. witness’s Evers General detail (11th Motors, 984, speculation on mere con- 986 be based Corp., F.2d Cir.1985) liability jecture.” ac- (stating in products County of Educ., 03CA579, at Ammons v. Mas- (quoting Id. Vinton Bd. No. Inc., 961, 232129, (Ohio sey-Ferguson, 663 So.2d 964-65 2004 at WL *5 Ct.App. (Ala.1995)) (citations omitted). 2004) Feb.5, court (“Expert The affidavits offered in concluded, the expert’s proposed “When or in support opposition to summary 56(E) lacks a factual foundation and is judgment must comply with Civ.R. best, it can speculative appar- at be of no as well as the evidence rules governing Stevens, help ent fact-finder.” at expert opinion testimony, Evid.R. 702- 705.”). 851. Supreme Hawaii re- [¶24] The Court in Courts Illinois and Utah ex- many

lied on the federal court decisions plained the rationale supporting harmoni- cited in this decision conclude its Civil 56(e) zation of Civil Rule and Evidence Rule must read with its Evidence be Rule The Supreme Illinois Court ad- in expert’s Rule 705 to a require affidavits dressed the issue in a personal injury law- workplace death action wrongful to contain suit and stated: more than bare conclusions. Acoba plaintiffs in Hayes “The Douglas [v. Tire, Inc., General Hawai'i 986 P.2d Inc., (1st Dynamics, 8 F.3d 88 Cir. (1999). noted, “Al- The court 1993),] essentially raised the same argu though expert testimony may in- be more did plaintiff as in Kosten St. [v. witnesses, ferential of fact in than that Hosp., Ill.App.3d Anne’s order summary to defeat motion for (1985),] Ill.Dec. 478 N.E.2d 464 expert opinion must more bar, plaintiff i.e., in the case at than conclusory assertion about ultimate under Federal Rule of Evidence omitted). legal (quotation issues.” Id. conclusory assertions made their ex involving hiring alleged case of an perts’ affidavits were sufficient to with molester, sexual Appeals the Ohio Court of summary motion judgment. stand a expert’s addressed affidavits submitted Hayes disagreed, The court and af connection with a mo- the trial granting firmed court’s of sum tion, stating: mary judgment. According to the 56(C), Civ.R. “Pursuant court, Hayes such affidavits submitted when consider opposition to a motion ruling on a summary judg- judgment must meet the standards of ment unless it conforms with Civ.R. 56. 56(e), ‘requires Rule that the non- 56(E), According ‘[supporting to Civ.R. “set moving forth and opposing affidavits shall be made on genuine there is a issue for personal knowledge, shall set forth such ” Hayes, trial.’ quoting F.3d evidence, facts as would be admissible in 56(e). court added Fed.R.Civ.P. affirmatively and shall show plaintiffs’ reliance Rule competent testify affiant is ‘largely inapposite’ because that Thus, matters stated in the affidavit.’ designed in apply rule ‘was to the con containing opinions, affidavits like the trial, text of a where cross-examination case, in require- one this must meet the provides probe an opportunity to in ments the Rules of Evidence govern- expert’s underlying data facts and ing admissibility opinions.” of the conclusions test reached Douglass Cmty. v. Hosp., Salem 153 Ohio expert.’ Hayes, at 8 F.3d 350, 107, (2003) App.3d N.E.2d 794 114 omitted). (quotation Hayes See also v. in stated: Frederick “The court further 364 summary judgment context regarding ex- affidavit in a evidentiary rules

“The in- of higher at trial ‘not than for the admission were would be pert Id., summary judg- ... to make at 266 Ill. opinion tended an trial.” expert’s (citation has whenever impossible 915, at Dec. N.E.2d omit- support po- expert to its ted). an produced willing not to allow sition.’ areWe Appeals The Court of also Utah expert a bare ultimate

the reliance on stem- personal injury in a case explained, pass a free conclusion to become accident, that ming an automobile from that a conflict of fact every trial time conclusory expert more affidavits than testimony. As with expert is based on pro- in required a mo- other submitted on all ceedings: summary judgment, expert tion requiring expert an affiant to “The rule light reviewed in affidavits must be her factual for his or Hayes, 8 F.3d at 92. state the basis 56.” [Rule] opinion to be at with Utah appears odds Motors, Chrysler Inc. v. also “See Merit 705, allows an (D.C.Cir.1977) Rule of Evidence Corp., F.2d expert (‘To give opinion his her without prevents Rule 703 a court hold that facts and data which he stating the granting from However, also solely an relied. Rule 705 party who relies on she no have to opinion expert may that has more basis that the expert’s recognizes than theoretical speculations ... ... the basis for or her divulge seriously policies would undermine the requires requested upon and if court unwilling impose of Rule 56. We Since an affiant is cross examination. litigation that expenses examination, fruitless it subject not to cross on result from such limitation would require sense to makes some grant summary power of a court divulge part affiant to least Motors judgment’); Evers General his or her opinion. basis for Stated (11th Cir.1985) Corp., F.2d 56(e)’s way, ex- another Utah R.Civ.P. (concluding that Rules 703 and 705 ‘do plicit ‘be requirements that affidavits requirement [Rule] not alter the personal knowledge’ on and ‘set made that an affidavit must set forth forth facts as such would be probative to have order evidence,’ together implicit with its value’).” in an affida- recognition statements Oliphant, Robidoux Ill.2d conclusory vit in form and must (2002). Ill.Dec. 775 N.E.2d that affidavits not contain unsubstantiat- this, concluded, court From the Robidoux ed control in the opinions, inconsistency in having is no one “[T]here context over R.Evid. Utah expert’s of an testi standard admission 705.” different, mony at trial and a more strin Dept. Transp., 798 P.2d Gaw v. Utah expert’s admission of an gent standard for (cita (Utah Ct.App.1990) 1137 n. 10 opposition or in to a support affidavit omitted). explained tions then noted, summary judgment. As support facts needed to type of ‘a an affidavit serves as substitute for such expert’s opinions: open court.’ taken Given factual “To the extent of the determine cross-examination is unavailable as affidavit, Rule required, it we looked to Utah surpris means to test an is not basis of 703 which allows an ing that the for admission of an Evidence standard opinion competent an on admissible evi- was to an opinion to base render about of patient’s and evidence the dence inadmissible condition. See v. Swenson use. experts that in the field We Ins., kind Safety & 2007 ND Workforce ¶ affidavit concluded that the was suffi- 892 (treating physician’s N.W.2d upon it cient articulated the facts medical opinion about cause of injury the was and if the based physician’s personal be based on experi- ‘type usually were of the relied in treating patient, ence patient’s a medi- ” by experts in the field.’ upon history, cal physician’s and the education experience); (citations omitted). Townjian, Gonzalez Gaw, See also ¶¶ 23-28, 2003 ND Lochhead, N.W.2d Concept Ins. Co. v. American (Utah (con- (treating emergency physician room quali- Ct.App.1988) 751 P.2d testify fied as expert patient’s about cluding “opinion properly was based on the injuries); Pierson, Collom 411 N.W.2d of records and materials of a examination (N.D.1987) (nontreating physi- type usually by experts in his relied cian with field”). knowledge, experience, and training qualified as expert). Although harmonize [¶ 27] We Quast’s minimal, Dr. affidavit was con- we 56(e) N.D.R.Civ.P. and N.D.R.Ev. clude the affidavit sets forth sufficient that conclude the rules of evidence do not provider facts from a medical to raise requirement the in N.D.R.Civ.P. alter factual issue about whether the 2004 motor “specific judg- facts” vehicle accident caused Peri- Here, proceedings. record indi- injuries us’s claimed damages. Quast Dr. one of cates Perius’s medi- providers. Quast’s cal Dr. affidavit stated reject [¶ 29] We Nodak’s that assertion persistent Perius continued require Klimple Halvorson and a different pain pain that he believed Perius’s Halvorson, result. we affirmed a sum- an result traumatic arthritis from mary judgment plaintiffs dismissal October 2004 motor vehicle breach of contract action for no-fault bene- Quast opined ¶¶ Dr. accident. to a reason- 9,1, fits. 2008 ND degree certainty able medical rejected plaintiffs argument 398. We medical treatment he had that motor vehicle accident her and the medical expenses associated were injuries, because the record included: reasonable, necessary related plaintiff] any “no from affidavit [the October 2004 vehicle Dr. motor accident. other competent describing Quast’s opinions affidavit reflects his type injuries plaintiff] [the received reports, based on Perius’s on an MRI and from the accident or her on his treatment of Perius. These injuries out occupying arose of her types of facts and sources of information Bottineau Good Samaritan van Center’s reasonably upon by relied medical doctors at the time the accident. Nor does forming opinions patient’s when about a record contain medical bills 703; medical condition. See N.D.R.Ev. only type of economic loss-the loss com- Gaw, P.2d at pensated under the no- North Dakota Quast’s Dr. affidavit fault inferentially insurance law according personal knowledge reflects as Perius’s N.D.C.C. 26.1-41-06-attributable provider, sets forth her in the allegedly sustained opinions on Despite ultimate to be decided accident. several [the insurer’s] fact, discovery the trier of requests during and establishes he and [the SANDSTROM, and DALE [¶ V. pro- 33] of medical care long list plaintiffs] KAPSNER, JJ., rely at CAROL RONNING intended to on whom she viders concur. any compe- trial, presented not she has link establishing causal

tent evidence J., MARING, MARY MUEHLEN the injuries and June her between in the result. concurs which medical records on accident. The any supporting lack plaintiff] WALLE, Justice, relies concur- [the Chief VANDE Therefore, her reliance on foundation. ring specially. documents for these majori- hesitantly concur in the I [¶ 34] misplaced. Records offered purposes concluding is sufficient ty opinion there fail meet foundation proper without disputed record issues evidence in this in Rule requirements the this preclude deciding fact material Dakota Rules of Civil Procedure.” North summary judgment. case on a motion ¶

Halvorson, at 8. Mutual’s Apparently response to Nodak we a sum- Klimple, In affirmed 30] summary alleging [¶ no judgment plaintiffs of a mary judgment dismissal causation, the Perius added action, a medi- concluding personal affidavits of additional names and testimony on causa- expert’s equivocal cal well be testimony whose could witnesses genuine to create a tion was not sufficient eonclusory. reading the as described ¶¶ 2007 ND 12- issue of material fact. impres- I am the majority opinion left with ease, In that the of whether sion it is more akin the issue a mo- deposition stated expert’s the experts names of or not the the “[p]ossibly” caused or tor vehicle accident requirements the affidavits satisfied have” aggravated plaintiffs 28-01^16, “[c]ould in profession- N.D.C.C. condition, and we held negligence requires al medical cases opinion that the not an admissible medical containing plaintiff provide affidavit likely more than plaintiffs condition was support a expert opinions to by, by, aggravated caused the motor not professional negligence, prima facie case of ¶¶ 12,15. vehicle accident. Id. question than whether or it is to One appropriate. Klimple, In both Halvorson and 31] [¶ opposed might what are facts as ask to set forth plaintiffs failed of these witnesses? issue of material genuine Here, fact for trial. we concluded Nevertheless, reluctantly I while minimally the record includes sufficient drawn agree might inferences which provid- facts from one of Perius’s medical to avoid from the affidavits sufficient of fact genuine ers to raise a about on for sum- deciding this case a motion claimed whether Perius’s mary procedure this is not judgment, damages model emulated. to be 2004 motor vehicle accident. We therefore WALLE, W. GERALD VANDE grant- conclude district erred C.J. on claims ing Perius’s against Nodak.

IV summary judg- We reverse the proceedings. remand for further

ment and

Case Details

Case Name: Perius v. Nodak Mutual Insurance Co.

Court Name: North Dakota Supreme Court

Date Published: May 11, 2010

Citation: 782 N.W.2d 355

Docket Number: 20090239

Court Abbreviation: N.D.