HF 1823

as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to civil actions; requiring certification of 
  1.3             expert review for certain actions against design 
  1.4             professionals; proposing coding for new law in 
  1.5             Minnesota Statutes, chapter 604. 
  1.6   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.7      Section 1.  [604.15] [DESIGN PROFESSIONALS: CERTIFICATION 
  1.8   OF EXPERT REVIEW.] 
  1.9      Subdivision 1.  [DEFINITION.] For purposes of this section, 
  1.10  "design professional" means an architect, engineer, land 
  1.11  surveyor, landscape architect, or certified interior designer, 
  1.12  licensed or certified as provided for in sections 326.02 to 
  1.13  326.15. 
  1.14     Subd. 2.  [REQUIREMENT.] In an action alleging malpractice, 
  1.15  error, or mistake against a design professional that includes a 
  1.16  cause of action concerning which expert testimony is necessary 
  1.17  to establish a prima facie case, the plaintiff must: 
  1.18     (1) unless otherwise provided in subdivision 3, clause (2), 
  1.19  serve upon the defendant with the summons and complaint an 
  1.20  affidavit as provided in subdivision 3; and 
  1.21     (2) serve upon the defendant within 180 days after 
  1.22  commencement of the suit an affidavit as provided by subdivision 
  1.23  4. 
  1.24     Subd. 3.  [AFFIDAVIT OF EXPERT REVIEW.] The affidavit 
  1.25  required by subdivision 2, clause (1), must be by the 
  2.1   plaintiff's attorney and state that: 
  2.2      (1) the facts of the case have been reviewed by the 
  2.3   plaintiff's attorney with an expert whose qualifications provide 
  2.4   a reasonable expectation that the expert's opinions could be 
  2.5   admissible at trial and that, in the opinion of this expert, one 
  2.6   or more defendants deviated from the applicable standard of care 
  2.7   and by that action caused injury to the plaintiff; or 
  2.8      (2) the expert review required by clause (1) could not 
  2.9   reasonably be obtained before the action was commenced because 
  2.10  of the applicable statute of limitations.  If an affidavit is 
  2.11  executed under this clause, the affidavit in clause (1) must be 
  2.12  served on the defendant or the defendant's counsel within 90 
  2.13  days after service of the summons and complaint. 
  2.14     Subd. 4.  [IDENTIFICATION OF EXPERTS TO BE CALLED.] (a) The 
  2.15  affidavit required by subdivision 2, clause (2), must be signed 
  2.16  by each expert listed in the affidavit and by the plaintiff's 
  2.17  attorney and state the identity of each person whom the 
  2.18  plaintiff expects to call as an expert witness at trial to 
  2.19  testify with respect to the issues of malpractice or causation, 
  2.20  the substance of the facts and opinions to which the expert is 
  2.21  expected to testify, and a summary of the grounds for each 
  2.22  opinion.  Answers to interrogatories that state the information 
  2.23  required by this subdivision satisfy the requirements of this 
  2.24  subdivision if they are signed by the plaintiff's attorney and 
  2.25  by each expert listed in the answers to interrogatories and 
  2.26  served upon the defendant within 180 days after commencement of 
  2.27  the suit against the defendant. 
  2.28     (b) The parties or the court for good cause shown, may by 
  2.29  agreement, provide for extensions of the time limits specified 
  2.30  in subdivision 2, 3, or this subdivision.  Nothing in this 
  2.31  subdivision may be construed to prevent either party from 
  2.32  calling additional expert witnesses or substituting other expert 
  2.33  witnesses. 
  2.34     (c) In any action alleging malpractice, all expert 
  2.35  interrogatory answers must be signed by the attorney for the 
  2.36  party responding to the interrogatory and by each expert listed 
  3.1   in the answers.  The court shall include in a scheduling order a 
  3.2   deadline prior to the close of discovery for all parties to 
  3.3   answer expert interrogatories for all experts to be called at 
  3.4   trial.  No additional experts may be called by any party without 
  3.5   agreement of the parties or by leave of the court for good cause 
  3.6   shown. 
  3.7      Subd. 5.  [RESPONSIBILITIES OF PLAINTIFF AS ATTORNEY.] If 
  3.8   the plaintiff is acting pro se, the plaintiff shall sign the 
  3.9   affidavit or answers to interrogatories referred to in this 
  3.10  section and is bound by those provisions as if represented by an 
  3.11  attorney. 
  3.12     Subd. 6.  [PENALTY FOR NONCOMPLIANCE.] (a) Failure to 
  3.13  comply with subdivision 2, clause (1), within 60 days after 
  3.14  demand for the affidavit results, upon motion, in mandatory 
  3.15  dismissal with prejudice of each cause of action concerning 
  3.16  which expert testimony is necessary to establish a prima facie 
  3.17  case. 
  3.18     (b) Failure to comply with subdivision 2, clause (2), and 
  3.19  subdivision 4 results, upon motion, in mandatory dismissal with 
  3.20  prejudice of each cause of action concerning which expert 
  3.21  testimony is necessary to establish a prima facie case. 
  3.22     Subd. 7.  [CONSEQUENCES OF SIGNING AFFIDAVIT.] The 
  3.23  signature of the plaintiff or the plaintiff's attorney 
  3.24  constitutes a certification that the person has read the 
  3.25  affidavit or answers to interrogatories, and that to the best of 
  3.26  the person's knowledge, information, and belief formed after a 
  3.27  reasonable inquiry, it is true, accurate, and made in good 
  3.28  faith.  A certification made in violation of this subdivision 
  3.29  subjects the attorney or plaintiff responsible for that conduct 
  3.30  to reasonable attorney's fees, costs, and disbursements. 
  3.31     Sec. 2.  [EFFECTIVE DATE; APPLICATION.] 
  3.32     Section 1 is effective August 1, 1995, and applies to 
  3.33  actions commenced on or after that date.