This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA IN COURT OF APPEALS A14-0383
Curtis Anderson, Appellant,
vs.
Bradly J. Donabauer, et al., Respondents.
Filed December 22, 2014 Affirmed Smith, Judge
Polk County District Court File No. 60-CV-13-1046
Alexander F. Reichert, Reichert Law Office, Grand Forks, North Dakota (for appellant)
Daniel J. Supalla, John M. Degnan, Diane B. Bratvold, Briggs & Morgan, P.A., Minneapolis, Minnesota (for repsondents)
Considered and decided by Hooten, Presiding Judge; Smith, Judge; and Klaphake,
Judge.*
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
SMITH, Judge
We affirm the district court’s dismissal of appellant’s dental-malpractice action
because the district court did not abuse its discretion by determining that the replacement
expert appellant identified lacked qualifications to testify as to causation.
FACTS
On November 29, 2011, appellant Curtis Anderson served respondent Bradley
Donabauer, D.D.S. with a complaint, alleging dental malpractice. Specifically, Anderson
alleged that, while conducting a tooth extraction four years earlier, Donabauer had failed
to prescribe an antibiotic, and, as a result, Anderson contracted meningitis. Anderson’s
counsel submitted an affidavit from Dr. John Williams, a general-practice and forensic
dentist, attesting that “the standard of care is to prescribe antibiotics every time you
extract a tooth” and that the failure to prescribe one in Anderson’s case “ultimately
culminated into streptococcus agalactiae meningitis.”
Dr. Williams died on July 8, 2012. On November 16, 2012, Donabauer’s counsel
sent a letter to Anderson’s counsel, informing him that Dr. Williams had died and, in any
event, had lacked qualifications to opine on causation. The letter invited Anderson to
identify another expert but claimed that the replacement expert must have the same
qualifications as Dr. Williams.
On May 23, 2013, Donabauer moved the district court to dismiss Anderson’s suit,
arguing that, because Dr. Williams had died and because Dr. Williams had lacked
qualifications as an expert on infectious diseases, Anderson had failed to identify an
2 expert who could provide testimony regarding causation. The memorandum supporting
the motion argued that, “even if [Anderson] was allowed to replace Dr. Williams with a
new qualified general practice dentist . . . this would not remedy the fatal defect in [his]
case” because “[a] general practice dentist, like Dr. Williams, does not have the
qualifications or experience to outline . . . the chain of causation between the violation of
the standard of care and plaintiff’s damages.”
On September 12, 2013, Anderson served Donabauer’s counsel with an affidavit
from a replacement expert, Dr. Phillip R. Devore. Dr. Devore stated that he had been a
general dentist since 1980, had served as a consultant for more than 1,600 dentists, and
had lectured in dentistry courses at two universities. Dr. Devore opined that, based on his
review of Anderson’s medical records, Donabauer’s failure to prescribe antibiotics after
performing Anderson’s tooth extraction “likely caused” his meningitis infection. Dr.
Devore also cited “medical records” from “several treating physicians” that he said
supported the claim that “the meningitis stemmed from a dental infection.”
The district court held a hearing on October 14, 2013. On January 10, 2014, it
granted Donabauer’s motion to dismiss, ruling that, under Minn. Stat. § 145.682, subd. 2
(2012), Dr. Devore’s affidavit was untimely, and that Anderson had failed to show good
cause or excusable neglect warranting an extension of the deadline for filing the affidavit.
It also found that, even if Dr. Devore’s affidavit had been timely, Dr. Devore lacked
qualification as an infectious-disease specialist as required by Minn. Stat. § 145.682,
subd. 4 (2012) to “give an expert opinion on the transmission or prevention of
meningitis.” It further held that, even if Dr. Devore were qualified, his “affidavit is
3 deficient because it does not detail the chain of causation between Anderson’s tooth
extraction and the development of meningitis,” containing instead only “broad
conclusory statements that Donabauer’s failure to prescribe an antibiotic caused
Anderson to develop meningitis.”
DECISION
Anderson argues that the district court erred both by finding that Dr. Devore’s
affidavit was untimely and that Dr. Devore lacked qualifications to testify as to causation.
We need not address the timeliness issue because, even if we assume that Dr. Devore’s
affidavit was timely, Dr. Devore’s affidavit fails to state the qualifications necessary to
testify as to causation and the chain of causation.
Section 145.682 of the Minnesota Statues requires medical-malpractice plaintiffs
to disclose “specific details concerning their experts’ expected testimony, including the
applicable standard of care, the acts or omissions that plaintiffs allege violated the
standard of care, and an outline of the chain of causation between the violation [of] the
standard of care and the plaintiff’s damages.” Lindberg v. Health Partners, Inc., 599
N.W.2d 572, 577 (Minn. 1999) (quotation omitted). It also requires that an expert
affidavit demonstrate that the expert possesses qualifications sufficient to “provide a
reasonable expectation that the expert’s opinions could be admissible at trial” and state
“the substance of the facts and opinions to which the expert is expected to testify, and a
summary of the grounds for each opinion.” Minn. Stat. § 145.682, subds. 3(a), 4(a)
(2012). The purpose of these requirements is “to dismiss meritless claims at an early
stage of litigation,” Mercer v. Andersen, 715 N.W.2d 114, 122 (Minn. App. 2006),
4 by providing the district court with information to assess the merits of a medical-
malpractice case immediately after it is filed, see Lindberg, 599 N.W.2d at 578 (stating
that the statute “is the legislative choice to implement the policy of eliminating frivolous
medical malpractice lawsuits by dismissal”). Dismissal is mandatory when an expert
affidavit is deficient and the deficiencies are not corrected within 45 days of a motion to
dismiss. Minn. Stat. § 145.682, subd. 6(c) (2012).
The district court held that, as a general dentist without specific expertise in
infectious diseases, Dr. Devore lacked sufficient qualifications to opine on whether
Anderson’s meningitis was caused by Donabauer’s failure to prescribe antibiotics. We
review a district court’s determination of an expert’s qualifications under section 145.682
for an abuse of discretion. Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 427 (Minn.
2002). To be qualified to offer an expert opinion on a medical matter, a witness must
possess “both sufficient scientific knowledge of and some practical experience with the
subject matter of the offered testimony.” Cornfeldt v. Tongen, 262 N.W.2d 684, 692
(Minn. 1977). Although Dr.
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA IN COURT OF APPEALS A14-0383
Curtis Anderson, Appellant,
vs.
Bradly J. Donabauer, et al., Respondents.
Filed December 22, 2014 Affirmed Smith, Judge
Polk County District Court File No. 60-CV-13-1046
Alexander F. Reichert, Reichert Law Office, Grand Forks, North Dakota (for appellant)
Daniel J. Supalla, John M. Degnan, Diane B. Bratvold, Briggs & Morgan, P.A., Minneapolis, Minnesota (for repsondents)
Considered and decided by Hooten, Presiding Judge; Smith, Judge; and Klaphake,
Judge.*
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
SMITH, Judge
We affirm the district court’s dismissal of appellant’s dental-malpractice action
because the district court did not abuse its discretion by determining that the replacement
expert appellant identified lacked qualifications to testify as to causation.
FACTS
On November 29, 2011, appellant Curtis Anderson served respondent Bradley
Donabauer, D.D.S. with a complaint, alleging dental malpractice. Specifically, Anderson
alleged that, while conducting a tooth extraction four years earlier, Donabauer had failed
to prescribe an antibiotic, and, as a result, Anderson contracted meningitis. Anderson’s
counsel submitted an affidavit from Dr. John Williams, a general-practice and forensic
dentist, attesting that “the standard of care is to prescribe antibiotics every time you
extract a tooth” and that the failure to prescribe one in Anderson’s case “ultimately
culminated into streptococcus agalactiae meningitis.”
Dr. Williams died on July 8, 2012. On November 16, 2012, Donabauer’s counsel
sent a letter to Anderson’s counsel, informing him that Dr. Williams had died and, in any
event, had lacked qualifications to opine on causation. The letter invited Anderson to
identify another expert but claimed that the replacement expert must have the same
qualifications as Dr. Williams.
On May 23, 2013, Donabauer moved the district court to dismiss Anderson’s suit,
arguing that, because Dr. Williams had died and because Dr. Williams had lacked
qualifications as an expert on infectious diseases, Anderson had failed to identify an
2 expert who could provide testimony regarding causation. The memorandum supporting
the motion argued that, “even if [Anderson] was allowed to replace Dr. Williams with a
new qualified general practice dentist . . . this would not remedy the fatal defect in [his]
case” because “[a] general practice dentist, like Dr. Williams, does not have the
qualifications or experience to outline . . . the chain of causation between the violation of
the standard of care and plaintiff’s damages.”
On September 12, 2013, Anderson served Donabauer’s counsel with an affidavit
from a replacement expert, Dr. Phillip R. Devore. Dr. Devore stated that he had been a
general dentist since 1980, had served as a consultant for more than 1,600 dentists, and
had lectured in dentistry courses at two universities. Dr. Devore opined that, based on his
review of Anderson’s medical records, Donabauer’s failure to prescribe antibiotics after
performing Anderson’s tooth extraction “likely caused” his meningitis infection. Dr.
Devore also cited “medical records” from “several treating physicians” that he said
supported the claim that “the meningitis stemmed from a dental infection.”
The district court held a hearing on October 14, 2013. On January 10, 2014, it
granted Donabauer’s motion to dismiss, ruling that, under Minn. Stat. § 145.682, subd. 2
(2012), Dr. Devore’s affidavit was untimely, and that Anderson had failed to show good
cause or excusable neglect warranting an extension of the deadline for filing the affidavit.
It also found that, even if Dr. Devore’s affidavit had been timely, Dr. Devore lacked
qualification as an infectious-disease specialist as required by Minn. Stat. § 145.682,
subd. 4 (2012) to “give an expert opinion on the transmission or prevention of
meningitis.” It further held that, even if Dr. Devore were qualified, his “affidavit is
3 deficient because it does not detail the chain of causation between Anderson’s tooth
extraction and the development of meningitis,” containing instead only “broad
conclusory statements that Donabauer’s failure to prescribe an antibiotic caused
Anderson to develop meningitis.”
DECISION
Anderson argues that the district court erred both by finding that Dr. Devore’s
affidavit was untimely and that Dr. Devore lacked qualifications to testify as to causation.
We need not address the timeliness issue because, even if we assume that Dr. Devore’s
affidavit was timely, Dr. Devore’s affidavit fails to state the qualifications necessary to
testify as to causation and the chain of causation.
Section 145.682 of the Minnesota Statues requires medical-malpractice plaintiffs
to disclose “specific details concerning their experts’ expected testimony, including the
applicable standard of care, the acts or omissions that plaintiffs allege violated the
standard of care, and an outline of the chain of causation between the violation [of] the
standard of care and the plaintiff’s damages.” Lindberg v. Health Partners, Inc., 599
N.W.2d 572, 577 (Minn. 1999) (quotation omitted). It also requires that an expert
affidavit demonstrate that the expert possesses qualifications sufficient to “provide a
reasonable expectation that the expert’s opinions could be admissible at trial” and state
“the substance of the facts and opinions to which the expert is expected to testify, and a
summary of the grounds for each opinion.” Minn. Stat. § 145.682, subds. 3(a), 4(a)
(2012). The purpose of these requirements is “to dismiss meritless claims at an early
stage of litigation,” Mercer v. Andersen, 715 N.W.2d 114, 122 (Minn. App. 2006),
4 by providing the district court with information to assess the merits of a medical-
malpractice case immediately after it is filed, see Lindberg, 599 N.W.2d at 578 (stating
that the statute “is the legislative choice to implement the policy of eliminating frivolous
medical malpractice lawsuits by dismissal”). Dismissal is mandatory when an expert
affidavit is deficient and the deficiencies are not corrected within 45 days of a motion to
dismiss. Minn. Stat. § 145.682, subd. 6(c) (2012).
The district court held that, as a general dentist without specific expertise in
infectious diseases, Dr. Devore lacked sufficient qualifications to opine on whether
Anderson’s meningitis was caused by Donabauer’s failure to prescribe antibiotics. We
review a district court’s determination of an expert’s qualifications under section 145.682
for an abuse of discretion. Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 427 (Minn.
2002). To be qualified to offer an expert opinion on a medical matter, a witness must
possess “both sufficient scientific knowledge of and some practical experience with the
subject matter of the offered testimony.” Cornfeldt v. Tongen, 262 N.W.2d 684, 692
(Minn. 1977). Although Dr. Devore undoubtedly possessed extensive knowledge of and
experience with tooth extractions, nothing in his stated qualifications revealed experience
with post-extraction meningitis. This rendered his affidavit insufficient under section
145.682.1 Cf. Teffeteller, 645 N.W.2d at 426-28 (holding that a doctor’s “extensive
1 The district court also compared Dr. Devore’s statements with those of an expert submitted by Donabauer, concluding that Donabauer’s expert’s testimony “completely rebuts” Dr. Devore’s opinion. Although it does not affect our conclusion in this appeal, we note that the district court should not have considered the statements of opposing experts when assessing the sufficiency of Anderson’s expert’s affidavit. See Demgen v. Fairview Hosp., 621 N.W.2d 259, 266 (Minn. App. 2001) (“There is nothing in Minn.
5 experience in general pediatrics” did not qualify him to submit an affidavit alleging that
the appropriate standard of care was violated in a pediatric bone-marrow-transplant case).
Even if he was qualified, Dr. Devore’s affidavit failed to sufficiently state
causation. To be sufficient to survive a motion to dismiss under section 145.682, expert
affidavits must “outline the chain of causation that allegedly resulted in damage.”
Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 193 (Minn. 1990).
Dr. Devore’s affidavit addressed causation only briefly, stating generally that
Donabauer’s failure to prescribe antibiotics “likely caused” Anderson’s meningitis. This
conclusory statement is inadequate to meet the statutory requirement. See Teffeteller, 645
N.W.2d at 429 (holding that “broad, conclusory statements regarding causation [that]
fail[] to set forth the chain of causation” do not meet the requirements of section
145.682). We therefore conclude that the district court did not abuse its discretion by
dismissing Anderson’s suit.
Affirmed.
Stat. § 145.682 that suggests district courts are to use defendant’s rebuttal affidavits . . . to judge the sufficiency of a plaintiff’s expert affidavit.” (emphasis in original)), review denied (Minn. Apr. 17, 2001).