Lead Opinion
[¶ 1] Allen Perius appeals from a summary judgment dismissing his action against his motor vehicle insurer, Nodak Mutual Insurance Company, for no-fault benefits and for uninsured motorist coverage. We conclude there are disputed issues of material fact about whether Peri-us’s claimed damages were proximately caused by a motor vehicle accident, and we reverse and remand.
I
[¶ 2] On October 8, 2004, Perius was driving his motor vehicle when he was involved in an accident with an uninsured motor vehicle driven by Jacob Kessler. Perius insured his motor vehicle with No-dak, which provided coverage for basic no-fault benefits and for uninsured motorist benefits. Perius claimed he injured his neck and upper back in the accident, and on October 12, 2004, he sought medical treatment from his primary care physician, Dr. Ron Tello, who prescribed physical therapy. Nodak paid $1,020.75 in no-fault benefits for Perius’s consultation with Dr. Tello and for the prescribed physical therapy. Perius completed the prescribed physical therapy on November 30, 2004, and he did not seek additional medical treatment until March 2005, when he saw a chiropractor. Perius submitted those chiropractic bills to Nodak for payment as no-fault benefits. Nodak requested an independent medical examination for Perius, and after receiving the results of that examination, Nodak denied Perius payment for any medical treatment after Deceyiber
[¶ 3] In 2007, Perius sued Kessler and Nodak, alleging Kessler negligently operated his uninsured vehicle and proximately caused Perius “severe injuries including but not limited to injuries to the spine and soft tissues surrounding the spine.” Peri-us also alleged Nodak breached its insurance contract with him for uninsured motorist coverage and for no-fault benefits. Nodak denied liability, asserting Perius’s claimed injuries were the result of an existing condition and were not proximately caused by the October 2004 accident. No-dak also asserted a cross-claim against Kessler regarding Perius’s uninsured motorist claim. Kessler did not answer the claims against him.
[¶ 4] - A scheduling order required Peri-us to disclose his experts by May 12, 2009. On May 10, 2009, Perius provided Nodak with a list of 11 medical providers expected to testify about “causation and damages.” Nodak requested further information, stating Perius’s disclosure of experts was insufficient because it “provides no meaningful information and does not identify ‘the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion’ as required under [N.D.R.Civ.P.] 26.”
[¶ 5] In June 2009, Nodak moved for summary judgment, claiming Perius’s medical treatment after December 31, 2004, was for an existing degenerative arthritis and no competent, admissible evidence established his claimed injuries were proximately caused by the motor vehicle accident. Perius resisted Nodak’s motion for summary judgment, claiming he had sustained a serious injury under no-fault law because he had incurred more than $16,000 in medical expenses for treatment directly related to injuries sustained in the accident. Perius claimed his medical providers had diagnosed “severe arthritis” from the . accident which had “shifted around someplace in my neck where it bothers me more.” Perius submitted affidavits of two of his treating medical providers, Dr. Michael Quasi and Dr. Kelly Remillard. Dr. Quast’s affidavit said Peri-us “is continuing to have persistent pain and I believe it is a result of traumatic arthritis from the injury” sustained in the motor vehicle accident. Dr. Quast’s affidavit further stated, “To a reasonable degree of medical certainty,' I believe the medical treatment I have provided Allen Perius and associated medical expenses are reasonable, necessary and related to the October 8, 2004 motor vehicle accident.” Dr. Remillard’s affidavit said, “To a reasonable degree of medical certainty,-1 believe the medical/chiropractic treatment I have provided Allen Perius and associated medical/chiropractic expenses are reasonable, necessary and related to the October 8, 2004 motor vehicle accident.” Nodak responded that the affidavits of Dr. Quast and Dr. Remillard were conclusory and did not provide competent, admissible evidence of causation and that those affidavits should be excluded because they did not comply with applicable discovery rules.
[¶ 6] The district court granted Nodak summary judgment, concluding Perius failed to produce competent, admissible evidence creating a factual issue that his claimed injuries were proximately caused by the accident. In its oral decision, the court stated:
“[Perius] didn’t comply in a meaningful way with the scheduling order in terms of discovery responses regarding the expert disclosure. Those were due on May 12th, and my review of the materials indicate that [Perius’s] discovery response was basically just a list of a number of medical providers - and that the only disclosure as to subject matter,and the substance of the testimony was that they would testify as to causation and damages. I don’t believe that that is what the Supreme Court contemplated in case law that talks about full, complete and fair disclosure of subject matter and the substance of the testimony. I just believe that there has to be a lot more than that. And I realize in the context of a summary judgment motion, a discovery issue isn’t really dispositive, but what that leads me to is the competency admissibility of the affidavits that were provided by Dr. Quast and Dr. Remillard. They, as [Nodak] argued, are basically conclusory statements that the injury was caused by the accident, but there’s no basis for their opinions provided. There’s nothing on which any person could look at them and say okay, this opinion is based on this evidence, or this review of the records, or this statement by [Perius] or anything else. They’re just conclusory statements with absolutely no support. And I just believe that that is not competent admissible evidence. It’s well, first of all, you could make a pretty good argument that it isn’t even accurate because there was some evidence of previous injuries. And I realize [counsel for Perius], you know, I guess didn’t go in real detail, but there was certainly evidence of some previous issues at least with the back. And you may be correct, not with the neck, but again I don’t believe those affidavits are suffieient[ly] detailed to stand up to the test of competent admissible evidence on the issue of causation. You know, again I’m getting repetitive here, but the fact is is that these affidavits merely state that the injuries were caused by the accident, or secondary to the accident, and there’s absolutely no basis for those opinions. So on the state of the evidence before the Court, at this point, I don’t find that there are any material issues of fact as to causation or damages. There was insufficient evidence provided by [Perius], and therefore, the motion for summary judgment will be granted.”
[¶ 7] In its written decision granting Nodak summary judgment, the district court explained the affidavits submitted by Perius “contain only unsupported, conclu-sory statements without any basis or support, and do not constitute competent, admissible evidence.” The court also said Perius had “failed to comply with the scheduling order in this matter in a meaningful way with respect to disclosure of expert witnesses.” The court further explained, “Nodak shall not be bound heretofore with respect to any action or ruling on [Perius’s] claim against defendant Kes-sler.” The court subsequently entered a default judgment against Kessler for $264,400.
II
[¶ 8] The district court said Perius had failed to comply in a “meaningful way” with a scheduling order to disclose expert witnesses, but the court did not exclude Perius’s affidavits nor dismiss his action as a discovery sanction. See Wolf v. Estate of Seright,
[¶ 9] The district court dismissed Perius’s action by summary judgment, and we therefore review the court’s
Ill
[¶ 10] Perius’s lawsuit against Nodak seeks recovery for no-fault benefits and for uninsured motorist coverage for damages allegedly caused by Kessler.
[¶ 11] Under N.D.C.C. § 26.1-41-06(l)(a), a “basic no-fault insurer of a secured motor vehicle shall pay basic no-fault benefits without regard to fault for economic loss resulting from ... [accidental bodily injury sustained ... by the owner of the motor vehicle ... [w]hile occupying any motor vehicle.” “ ‘Basic no-fault benefits’ means benefits for economic loss resulting from accidental bodily injury,” and “ ‘[e]conomie loss’ means medical expenses, rehabilitation expenses, work loss, replacement services loss, survivors’ income loss, survivors’ replacement services loss, and funeral, cremation, and burial expenses.” N.D.C.C. .§ 26.1-41-01(2) and (7). To recover on his claim against No-dak for no-fault benefits under those statutes, Perius must “prove that [his] injuries qualify as ‘accidental bodily injury,’ which is injury ‘arising out of the operation of a motor vehicle ... and which is accidental as to the person claiming basic or optional excess no-fault benefits.’ ” Halvorson,
[¶ 12] To recover on his claim against Nodak for uninsured motorist coverage, Perius must prove liability by an uninsured driver. See N.D.C.C. §'§ 26.1-40-15.1(3) and 26.1-40-15.2(1). The’parties do not dispute that Kessler was uninsured, and as an insurer providing Perius with uninsured motorist coverage, Nodak was entitled to “contest and press all defenses that the uninsured motorist could press.” N.D.C.C. § 26.1-40-15.2(4). Uninsured benefits are not payable “[f]or damages for pain, suffering, mental anguish, inconvenience, or other noneconomic loss which could not have been recovered had the
[¶ 13] In his negligence claim against Kessler, Perius must prove that Kessler owed him a duty, that Kessler failed to discharge that duty, and that Kessler’s negligence proximately caused Perius “serious injury.” See Klimple,
[¶ 14] Perius argues the opinions of Dr. Quast and Dr. Remillard are admissible evidence that Perius sustained a serious injury proximately caused by the motor vehicle accident. Nodak counters that the affidavits of Dr. Quast and Dr. Remillard are not competent, admissible evidence that Perius’s medical treatment and injuries were proximately caused by the motor vehicle accident. Nodak claims Perius failed to present competent, admissible evidence in response to Nodak’s motion for summary judgment to raise a factual issue that the October 2004 accident caused him any economic loss after December 1, 2004, and that he suffered a serious injury necessary to recover for non-economic loss.
[¶ 15] In Klimple, we said that when a causal relationship between a condition affecting the human body and a motor vehicle accident is not a matter within the common knowledge or comprehension of a lay person, the party bearing the burden of proof must present expert testimony establishing that causal relationship.
[¶ 16] Under N.D.R.Civ.P. 56(e), affidavits supporting and opposing summary judgment “must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein.” Materials submitted in opposition to a supported motion for summary judgment “must set forth specific facts showing that there is a genuine issue for trial.” Id.
[¶ 18] Affidavits containing con-clusory allegations on an essential element of a claim are insufficient to raise a genuine issue of material fact. See Skjervem v. Minot State University,
[¶ 19] Under N.D.R.Ev. 702, “a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” “Testimony in the form of an opinion ... is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” N.D.R.Ev. 704. An expert’s opinion may be based on facts or data that are not admissible in evidence if the facts or data are of the type reasonably relied upon by experts in the field. N.D.R.Ev. 703. Moreover, an expert may testify about an opinion without first testifying to the underlying facts or data unless the court requires otherwise, but the expert may be required to disclose the underlying facts or data on cross-examination. N.D.R.Ev. 705. Those rules of evidence for expert opinions reflect some conflict with the language of N.D.R.Civ.P. 56(e) requiring a party opposing summary judgment to “set forth specific facts showing that there is a genuine issue for trial.”
[¶ 20] The language of N.D.R.Civ.P. 56(e) and N.D.R.Ev. 705 is essentially identical to the language of F.R.Civ.P. 56 and F.R.Ev. 705, and we have recognized that federal court interpretations of substantially similar federal rules may be highly persuasive in construing our rules. See Harp,
[¶ 21] Federal courts have decided that although F.R.Ev. 705 permits experts to testify by opinion without disclosing underlying facts or data, affidavits containing expert opinions, like other materials submitted in opposition to a supported motion for summary judgment, must comply with F.R.Civ.P. 56(e) and set forth specific facts showing there is a genuine issue for trial. See Hayes v. Douglas Dynamics, Inc.,
[¶ 22] State courts similarly have concluded affidavits containing opinion testimony supporting or opposing summary judgment must comply with their jurisdiction’s equivalent of F.R.Civ.P. 56(e). States addressing the issue have used different approaches and have articulated different descriptions to harmonize their summary judgment rule and their rules regarding testimony of experts.
[¶ 23] In a case involving personal injury from a car-bicycle collision, the Alabama Court of Civil Appeals stated that “expert opinion evidence as to the point of impact of a collision is clearly admissible, so long as the expert details the facts upon which his conclusion is based.” Stevens v. Stanford,
“A witness, even one qualified as an expert, must have a factual basis for an opinion. Although any challenge to the adequacy of the factual basis for an expert’s opinion normally goes to the weight rather than to the admissibility of the evidence, if the facts relied on by the witness clearly are insufficient to support an opinion, then the challenge may go even to the admissibility of the opinion. A witness’s testimony cannot be based on mere speculation and conjecture.”
[¶24] The Hawaii Supreme Court relied on many of the federal court decisions cited in this decision to conclude its Civil Rule 56(e) must be read with its Evidence Rule 705 to require expert’s affidavits in a workplace wrongful death action to contain more than bare conclusions. Acoba v. General Tire, Inc.,
“Pursuant to Civ.R. 56(C), a court may not consider any evidence when ruling on a motion for summary judgment unless it conforms with Civ.R. 56. According to Civ.R. 56(E), ‘[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.’ Thus, affidavits containing opinions, like the one in this case, must meet the requirements in the Rules of Evidence governing the admissibility of opinions.”
Douglass v. Salem Cmty. Hosp.,
[¶ 25] Courts in Illinois and Utah explained the rationale supporting harmonization of Civil Rule 56(e) and Evidence Rule 705. The Illinois Supreme Court addressed the issue in a personal injury lawsuit and stated:
“The plaintiffs in Hayes [v. Douglas Dynamics, Inc.,8 F.3d 88 (1st Cir. 1993),] raised essentially the same argument as did the plaintiff in Kosten [v. St. Anne’s Hosp.,132 Ill.App.3d 1073 ,88 Ill.Dec. 149 ,478 N.E.2d 464 (1985),] and plaintiff in the case at bar, i.e., that under Federal Rule of Evidence 705, the conclusory assertions made in their experts’ affidavits were sufficient to withstand a motion for summary judgment. The court in Hayes disagreed, and affirmed the trial court’s granting of summary judgment. According to the Hayes court, such affidavits submitted in opposition to a motion for summary judgment must meet the standards of Rule 56(e), which ‘requires that the non-moving party “set forth specific facts showing that there is a genuine issue for trial.’ ” Hayes, 8 F.3d at 92, quoting Fed.R.Civ.P. 56(e). The court added that the plaintiffs’ reliance upon Rule 705 was ‘largely inapposite’ because that rule ‘was designed to apply in the context of a trial, where cross-examination provides an opportunity to probe the expert’s underlying facts and data and to test the conclusions reached by the expert.’ Hayes,8 F.3d at 92 .
“The court in Hayes further stated:
“The evidentiary rules regarding expert testimony at trial were ‘not intended ... to make summary judgment impossible whenever a party has produced an expert to support its position.’ We are not willing to allow the reliance on a bare ultimate expert conclusion to become a free pass to trial every time that a conflict of fact is based on expert testimony. As with all other evidence submitted on a motion for summary judgment, expert affidavits must be reviewed in light of [Rule] 56.” Hayes, 8 F.3d at 92 .
“See also Merit Motors, Inc. v. Chrysler Corp.,569 F.2d 666 , 673 (D.C.Cir.1977) (‘To hold that Rule 703 prevents a court from granting summary judgment against a party who relies solely on an expert’s opinion that has no more basis ... than ... theoretical speculations would seriously undermine the policies of Rule 56. We are unwilling to impose the fruitless expenses of litigation that would result from such a limitation on the power of a court to grant summary judgment’); Evers v. General Motors Corp.,770 F.2d 984 , 986 (11th Cir.1985) (concluding that Rules 703 and 705 ‘do not alter the requirement of [Rule] 56(e) that an affidavit must set forth specific facts in order to have any probative value’).”
Robidoux v. Oliphant,
[¶ 26] The Utah Court of Appeals also explained, in a personal injury case stemming from an automobile accident, that more than conclusory expert affidavits were required in summary judgment proceedings:
“The rule requiring an expert affiant to state the factual basis for his or her opinion appears to be at odds with Utah Rule of Evidence 705, which allows an expert to give his or her opinion without stating the facts and data upon which he or she relied. However, Rule 705 also recognizes that the expert may have to divulge the basis for his or her opinion if the court requires and if requested upon cross examination. Since an affiant is not subject to cross examination, it makes some sense to require the expert affiant to divulge at least part of the basis for his or her opinion. Stated another way, Utah R.Civ.P. 56(e)’s explicit requirements that affidavits ‘be made on personal knowledge’ and ‘set forth such facts as would be admissible in evidence,’ together with its implicit recognition that statements in an affidavit must not be conclusory in form and that affidavits not contain unsubstantiated opinions, control in the summary judgment context over Utah R.Evid. 705.”
Gaw v. Utah Dept. of Transp.,
“To determine the extent of the factual basis required, we looked to Utah Rule of Evidence 703 which allows an expertto base an opinion on admissible evidence and inadmissible evidence of the kind that experts in the field use. We concluded that the affidavit was sufficient if it articulated the facts upon which the opinion was based and if the facts were of the ‘type usually relied upon by experts in the field.’ ”
Gaw, at 1137 (citations omitted). See also American Concept Ins. Co. v. Lochhead,
[¶ 27] We harmonize N.D.R.Civ.P. 56(e) and N.D.R.Ev. 705 and conclude that the rules of evidence do not alter the requirement in N.D.R.Civ.P. 56(e) for “specific facts” in summary judgment proceedings. Here, the record indicates Dr. Quast was one of Perius’s medical providers. Dr. Quast’s affidavit stated that Perius continued to have persistent pain and that he believed Perius’s pain was a result of traumatic arthritis from an injury in the October 2004 motor vehicle accident. Dr. Quast opined to a reasonable degree of medical certainty that the medical treatment he had provided Perius and the associated medical expenses were reasonable, necessary and related to the October 2004 motor vehicle accident. Dr. Quast’s affidavit reflects his opinions were based on Perius’s reports, on an MRI and on his treatment of Perius. These are the types of facts and sources of information reasonably relied upon by medical doctors when forming opinions about a patient’s medical condition. See N.D.R.Ev. 703; Gaw,
[¶ 28] Dr. Quast’s affidavit inferentially reflects personal knowledge as Perius’s medical provider, sets forth admissible opinions on an ultimate issue to be decided by the trier of fact, and establishes that he was competent to render an opinion about his patient’s condition. See Swenson v. Workforce Safety & Ins.,
[¶ 29] We reject Nodak’s assertion that Halvorson and Klimple require a different result. In Halvorson, we affirmed a summary judgment dismissal of a plaintiffs breach of contract action for no-fault benefits.
“no affidavit from [the plaintiff] or any other competent evidence describing the type of injuries [the plaintiff] received from the accident or showing that her injuries arose out of her occupying the Bottineau Good Samaritan Center’s van at the time of the accident. Nor does the record contain any medical bills for economic loss-the only type of loss compensated under the North Dakota no-fault insurance law according to N.D.C.C. § 26.1-41-06-attributable to her injuries allegedly sustained in the accident. Despite [the insurer’s] several requests during discovery and [theplaintiffs] long list of medical care providers on whom she intended to rely at trial, she has not presented any competent evidence establishing a causal link between her injuries and the June 2005 accident. The medical records on which [the plaintiff] relies lack any supporting foundation. Therefore, her reliance on these documents for summary judgment purposes is misplaced. Records offered without proper foundation fail to meet the requirements in Rule 56 of the North Dakota Rules of Civil Procedure.”
Halvorson, at ¶ 8.
[¶ 30] In Klimple, we affirmed a summary judgment dismissal of a plaintiffs personal injury action, concluding a medical expert’s equivocal testimony on causation was not sufficient to create a genuine issue of material fact.
[¶ 31] In both Halvorson and Klimple, the plaintiffs failed to set forth specific facts showing a genuine issue of material fact for trial. Here, we have concluded the record includes minimally sufficient facts from one of Perius’s medical providers to raise a genuine issue of fact about whether Perius’s claimed injuries and damages were proximately caused by the 2004 motor vehicle accident. We therefore conclude the district court erred in granting summary judgment on Perius’s claims against Nodak.
IV
[¶ 32] We reverse the summary judgment and remand for further proceedings.
Concurrence Opinion
concurring specially.
[¶ 34] I hesitantly concur in the majority opinion concluding there is sufficient evidence in this record of disputed issues of material fact to preclude deciding this case on a motion for summary judgment. Apparently in response to Nodak Mutual’s motion for summary judgment alleging no evidence of causation, Perius added the names and affidavits of additional expert witnesses whose testimony could well be described as eonclusory. In reading the majority opinion I am left with the impression it is more akin to the issue of whether or not the names of the experts and the affidavits satisfied the requirements of N.D.C.C. § 28-01^16, which in professional medical negligence cases requires the plaintiff to provide an affidavit containing admissible expert opinions to support a prima facie case of professional negligence, than it is to the question of whether or not summary judgment was appropriate. One might ask what are the facts as opposed to the opinion of these witnesses?
[¶ 35] Nevertheless, while I reluctantly agree the inferences which might be drawn from the affidavits are sufficient to avoid deciding this case on a motion for summary judgment, this procedure is not a model to be emulated.