2nd Engrossment - 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 section: 1.10 (1) "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; and 1.14 (2) "action" includes an original claim, cross-claim, 1.15 counterclaim, or third-party claim. An action does not include 1.16 a claim for damages requiring notice pursuant to section 604.04. 1.17 Subd. 2. [REQUIREMENT.] In an action against a 1.18 professional alleging negligence or malpractice in rendering a 1.19 professional service where expert testimony is to be used by a 1.20 party to establish a prima facie case, the party must: 1.21 (1) unless otherwise provided in subdivision 3, paragraph 1.22 (a), clause (2) or (3), serve upon the opponent with the 1.23 pleadings an affidavit as provided in subdivision 3; and 1.24 (2) serve upon the opponent within 180 days an affidavit as 1.25 provided in subdivision 4. 2.1 Subd. 3. [AFFIDAVIT OF EXPERT REVIEW.] (a) The affidavit 2.2 required by subdivision 2, clause (1), must be drafted by the 2.3 party's attorney and state that: 2.4 (1) the facts of the case have been reviewed by the party's 2.5 attorney with an expert whose qualifications provide a 2.6 reasonable expectation that the expert's opinions could be 2.7 admissible at trial and that, in the opinion of this expert, the 2.8 defendant deviated from the applicable standard of care and by 2.9 that action caused injury to the plaintiff; 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; or 2.13 (3) the parties have agreed to a waiver of the expert 2.14 review required by clause (1) or the party has applied for a 2.15 waiver or modification by the court under paragraph (c). 2.16 (b) If an affidavit is executed under paragraph (a), clause 2.17 (2), the affidavit in paragraph (a), clause (1), must be served 2.18 on the defendant or the defendant's counsel within 90 days after 2.19 service of the summons and complaint. 2.20 (c) The certification of expert review required under this 2.21 section may be waived or modified if the court where the matter 2.22 will be venued determines, upon an application served with 2.23 commencement of the action, that good cause exists for not 2.24 requiring the certification. Good cause includes, but is not 2.25 limited to, a showing that the action requires discovery to 2.26 provide a reasonable basis for the expert's opinion or the 2.27 unavailability, after a good faith effort, of a qualified expert 2.28 at reasonable cost. If the court waives or modifies the expert 2.29 review requirements, the court shall establish a scheduling 2.30 order for compliance or discovery. If the court denies a 2.31 request for a waiver under this subdivision, the plaintiff must 2.32 serve on the defendant the affidavit required under subdivision 2.33 2, clause (1), within 60 days, and the affidavit required under 2.34 subdivision 2, clause (2), within 180 days. 2.35 Subd. 4. [IDENTIFICATION OF EXPERTS TO BE CALLED.] (a) The 2.36 affidavit required by subdivision 2, clause (2), must be signed 3.1 by the party's attorney and state the identity of each person 3.2 whom the attorney expects to call as an expert witness at trial 3.3 to testify with respect to the issues of negligence, 3.4 malpractice, or causation, the substance of the facts and 3.5 opinions to which the expert is expected to testify, and a 3.6 summary of the grounds for each opinion. Answers to 3.7 interrogatories that state the information required by this 3.8 subdivision satisfy the requirements of this subdivision if they 3.9 are signed by the party's attorney and served upon the opponent 3.10 within 180 days after commencement of the action against the 3.11 defendant or within 180 days after service of the affidavit 3.12 required by subdivision 3, paragraph (a), clause (2) or (3). 3.13 (b) The parties by agreement, or the court for good cause 3.14 shown, may provide for extensions of the time limits specified 3.15 in subdivision 2, 3, or this subdivision. Nothing in this 3.16 subdivision prevents any party from calling additional expert 3.17 witnesses or substituting other expert witnesses. 3.18 Subd. 5. [RESPONSIBILITIES OF PARTY AS ATTORNEY.] If a 3.19 party is acting pro se, the party shall sign the affidavit or 3.20 answers to interrogatories referred to in this section and is 3.21 bound by those provisions as if represented by an attorney. 3.22 Subd. 6. [PENALTY FOR NONCOMPLIANCE.] (a) Failure to 3.23 comply with subdivision 2, clause (1), within 60 days after 3.24 demand for the affidavit results, upon motion, in mandatory 3.25 dismissal of each cause of action with prejudice as to which 3.26 expert testimony is necessary to establish a prima facie case. 3.27 (b) Failure to comply with subdivision 3, paragraph (b) or 3.28 (c), results, upon motion, in mandatory dismissal of each cause 3.29 of action with prejudice as to which expert testimony is 3.30 necessary to establish a prima facie case. 3.31 (c) Failure to comply with subdivision 4 results, upon 3.32 motion, in mandatory dismissal of each action with prejudice as 3.33 to which expert testimony is necessary to establish a prima 3.34 facie case, provided that an initial motion to dismiss an action 3.35 under this paragraph based upon claimed deficiencies of the 3.36 affidavit or answers to interrogatories shall not be granted 4.1 unless, after notice by the court, the nonmoving party is given 4.2 60 days to satisfy the disclosure requirements in subdivision 4.3 4. In providing its notice, the court shall issue specific 4.4 findings as to the deficiencies of the affidavit or answers to 4.5 interrogatories. 4.6 Subd. 7. [CONSEQUENCES OF SIGNING AFFIDAVIT.] The 4.7 signature of the party or the party's attorney constitutes a 4.8 certification that the person has read the affidavit or answers 4.9 to interrogatories, and that to the best of the person's 4.10 knowledge, information, and belief formed after a reasonable 4.11 inquiry, it is true, accurate, and made in good faith. A 4.12 certification made in violation of this subdivision subjects the 4.13 attorney or party responsible for that conduct to reasonable 4.14 attorney's fees, costs, disbursements, and other damages that 4.15 may be determined by the court. 4.16 Sec. 2. [EFFECTIVE DATE; APPLICATION.] 4.17 Section 1 is effective August 1, 1997, and applies to 4.18 causes of action arising from incidents occurring on or after 4.19 that date and to actions commenced on or after August 1, 1998.