Case Law Update

Date: February 5, 2010 — Minneapolis, MN

During the week of February 5, 2010, the Minnesota appellate courts released opinions on the following topics that may be of interest to our clients:

1. Judicial Notice – Opportunity to Address and Object to Documents 2. Expert Review Statute, Minn. Stat § 145.682 -- Plaintiff Cannot Cure Failure to Serve Expert Affidavit by Amending Complaint to Add Defendant

1.  JUDICIAL NOTICE -- OPPORTUNITY TO ADDRESS AND OBJECT TO DOCUMENTS

• Judicial notice of documents addressing amount of fees improper if disputed and not in the record.

At a probate hearing, the guardians and conservators of an estate were ordered to demonstrate why their fees and expenses, which were charged to the estate, were not excessive. The court disallowed the fees finding that the accountings submitted by the guardians and conservators were disorganized, inaccurate, and contained excessive fees.  In its findings the court took judicial notice of a Service Fee Policy adopted by a county agency which imposed a fee rate-cap on guardians of indigent wards and the Standards of Practice published by the Minnesota Association for Guardianship and Conservatorship.  The guardians and conservators appealed the district court’s decision.

The Court of Appeals upheld the disallowance of the fees, but remanded the court’s post-hearing adoption of the Service Fee Policy and Standards of Practice as applied to the appropriate amount of fees to be charged. The Court of Appeals held that although the Service Fee Policy was a legislative fact and properly noticed by the court, the guardians and conservators could challenge its application in this case because the ward was not indigent.  Finally, because the Standards of Practice were not adjudicative or legislative facts, it was error for the court to take judicial notice of them and not permit the conservators and guardians a chance to challenge their application to the proceeding.

In re Guardianship and Conservatorship of Doyle, A09-452 (Minn. Ct. App. 2/2/10).

2.   EXPERT REVIEW STATUTE, MINN. STAT § 145.682 -- PLAINTIFF CANNOT CURE FAILURE TO
      SERVE EXPERT AFFIDAVIT BY AMENDING COMPLAINT TO ADD DEFENDANT

• A medical malpractice plaintiff who misses the deadline for serving an expert affidavit may not avoid dismissal of the suit by amending the complaint to add a new defendant whose alleged negligence constitutes the same cause of action.

In this medical malpractice action plaintiff sued an eye surgery clinic, naming the clinic as the sole defendant based on a theory of vicarious liability for the acts of the treating physician.  Plaintiff missed the deadline for serving the 180-day expert affidavit required by Minn. Stat. § 145.682.  The clinic moved to dismiss under the expert review statute, which mandates dismissal when the plaintiff fails to timely file the required affidavits.  Prior to a ruling on the motion, plaintiff amended her complaint to add the physician as a defendant and properly served the expert affidavits.  The district court granted the clinic’s motion to dismiss and subsequently granted the physician’s motion for summary judgment citing law of the case. This appeal followed.

The issue before the Court of Appeals was whether plaintiff’s failure to timely serve the expert affidavits on the clinic also required dismissal of her later claim against the treating physician.  The Court of Appeals affirmed finding that the singular form of language used in the statute set forth one deadline for serving the expert affidavits where, as here, the same cause of action was asserted against both defendants.  Because plaintiff failed to serve expert affidavits on the clinic within 180 days after commencement of the lawsuit, the result was mandatory dismissal of plaintiff’s claim against the clinic and as to any other claims arising from the same cause of action.

Juetten v. LCA-Vision, Inc., A09-683 (Minn. Ct. App. 2/2/10).

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