as introduced - 80th Legislature (1997 - 1998) 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 in actions against certain 1.4 professionals; proposing coding for new law in 1.5 Minnesota Statutes, chapter 544. 1.6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.7 Section 1. [544.50] [ACTIONS AGAINST PROFESSIONALS; 1.8 CERTIFICATION OF EXPERT REVIEW.] 1.9 Subdivision 1. [DEFINITIONS.] For purposes of this 1.10 section, "professional" means a licensed attorney or an 1.11 architect, certified public accountant, engineer, land surveyor, 1.12 or landscape architect licensed or certified under sections 1.13 326.02 to 326.229. "Action" includes an original claim, 1.14 cross-claim, counterclaim, or third-party claim. 1.15 Subd. 2. [REQUIREMENT.] In an action alleging malpractice, 1.16 error, or mistake against a professional that includes a cause 1.17 of action concerning which expert testimony is necessary to 1.18 establish a prima facie case, the plaintiff must: 1.19 (1) unless otherwise provided in subdivision 3, clause (2), 1.20 serve upon the defendant with the summons and complaint an 1.21 affidavit as provided in subdivision 3; and 1.22 (2) serve upon the defendant within 180 days after 1.23 commencement of the action an affidavit as provided in 1.24 subdivision 4. 1.25 Subd. 3. [AFFIDAVIT OF EXPERT REVIEW.] The affidavit 2.1 required by subdivision 2, clause (1), must be drafted by the 2.2 plaintiff's attorney and state that: 2.3 (1) the facts of the case have been reviewed by the 2.4 plaintiff's attorney with an expert licensed by the state of 2.5 Minnesota in the respective profession whose qualifications 2.6 provide a reasonable expectation that the expert's opinions 2.7 could be admissible at trial and that, in the opinion of this 2.8 expert, the defendant deviated from the applicable standard of 2.9 care and by that action caused injury to the plaintiff; or 2.10 (2) the expert review required by clause (1) could not 2.11 reasonably be obtained before the action was commenced because 2.12 of the applicable statute of limitations. 2.13 If an affidavit is executed under clause (2), the affidavit 2.14 in clause (1) must be served on the defendant or the defendant's 2.15 counsel within 90 days after service of the summons and 2.16 complaint. 2.17 Subd. 4. [IDENTIFICATION OF EXPERTS TO BE CALLED.] (a) The 2.18 affidavit required by subdivision 2, clause (2), must be signed 2.19 by each expert listed in the affidavit and by the plaintiff's 2.20 attorney and state the identity of each person whom the 2.21 plaintiff expects to call as an expert witness at trial to 2.22 testify with respect to the issues of malpractice or causation, 2.23 the substance of the facts and opinions to which the expert is 2.24 expected to testify, and a summary of the grounds for each 2.25 opinion. Answers to interrogatories that state the information 2.26 required by this subdivision satisfy the requirements of this 2.27 subdivision if they are signed by the plaintiff's attorney and 2.28 by each expert listed in the answers to interrogatories and 2.29 served upon the defendant within 180 days after commencement of 2.30 the suit against the defendant. 2.31 (b) The parties or the court for good cause shown, may by 2.32 agreement, provide for extensions of the time limits specified 2.33 in subdivision 2, 3, or this subdivision. Nothing in this 2.34 subdivision prevents either party from calling additional expert 2.35 witnesses or substituting other expert witnesses. 2.36 (c) In any action alleging malpractice by a professional, 3.1 all expert interrogatory answers must be signed by the attorney 3.2 for the party responding to the interrogatory and by each expert 3.3 listed in the answers. The court shall include in a scheduling 3.4 order a deadline prior to the close of discovery for all parties 3.5 to answer expert interrogatories for all experts to be called at 3.6 trial. No additional experts may be called by any party without 3.7 agreement of the parties or by leave of the court for good cause 3.8 shown. 3.9 Subd. 5. [RESPONSIBILITIES OF PLAINTIFF AS ATTORNEY.] If 3.10 the plaintiff is acting pro se, the plaintiff shall sign the 3.11 affidavit or answers to interrogatories referred to in this 3.12 section and is bound by those provisions as if represented by an 3.13 attorney. 3.14 Subd. 6. [PENALTY FOR NONCOMPLIANCE.] (a) Failure to 3.15 comply with subdivision 2, clause (1), within 60 days after 3.16 demand for the affidavit results, upon motion, in mandatory 3.17 dismissal with prejudice of each cause of action concerning 3.18 which expert testimony is necessary to establish a prima facie 3.19 case. 3.20 (b) Failure to comply with subdivision 2, clause (2), and 3.21 subdivision 4 results, upon motion, in mandatory dismissal with 3.22 prejudice of each cause of action concerning which expert 3.23 testimony is necessary to establish a prima facie case. 3.24 Subd. 7. [CONSEQUENCES OF SIGNING AFFIDAVIT.] The 3.25 signature of the plaintiff or the plaintiff's attorney and the 3.26 expert constitutes a certification that the person has read the 3.27 affidavit or answers to interrogatories, and that to the best of 3.28 the person's knowledge, information, and belief formed after a 3.29 reasonable inquiry, it is true, accurate, and made in good 3.30 faith. A certification made in violation of this subdivision 3.31 subjects the attorney, plaintiff, or expert responsible for that 3.32 conduct to reasonable attorney's fees, costs, disbursements, and 3.33 other damages that may be determined by the court. 3.34 Sec. 2. [EFFECTIVE DATE; APPLICATION.] 3.35 Section 1 is effective August 1, 1997, and applies to 3.36 actions commenced on or after that date.