Minnesota Session Laws - 1997, Regular Session

                            CHAPTER 212-S.F.No. 627 
                  An act relating to public administration; requiring 
                  certification of expert review in civil actions 
                  against certain professionals; setting duties of the 
                  office of technology; amending Minnesota Statutes 
                  1996, section 136F.59, by adding a subdivision; 1997 
                  S. F. No. 1905, article 3, section 9, subdivisions 1 
                  and 3; proposing coding for new law in Minnesota 
                  Statutes, chapter 544; repealing 1997 S. F. No. 1888, 
                  article 3, section 35. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  Minnesota Statutes 1996, section 136F.59, is 
        amended by adding a subdivision to read: 
           Subd. 3.  [OFFICE OF TECHNOLOGY.] The system office and the 
        campuses shall cooperate with the office of technology in its 
        responsibility to coordinate information and communications 
        technology development throughout the state.  The system and 
        campuses shall consult with the office of technology throughout 
        any efforts to plan or implement information and communication 
        systems to ensure that the systems are effective, efficient, 
        and, where appropriate, compatible with other state systems. 
           Sec. 2.  [544.42] [ACTIONS AGAINST PROFESSIONALS; 
        CERTIFICATION OF EXPERT REVIEW.] 
           Subdivision 1.  [DEFINITIONS.] For purposes of this section:
           (1) "professional" means a licensed attorney or an 
        architect, certified public accountant, engineer, land surveyor, 
        or landscape architect licensed or certified under sections 
        326.02 to 326.229; and 
           (2) "action" includes an original claim, cross-claim, 
        counterclaim, or third-party claim.  An action does not include 
        a claim for damages requiring notice pursuant to section 604.04. 
           Subd. 2.  [REQUIREMENT.] In an action against a 
        professional alleging negligence or malpractice in rendering a 
        professional service where expert testimony is to be used by a 
        party to establish a prima facie case, the party must: 
           (1) unless otherwise provided in subdivision 3, paragraph 
        (a), clause (2) or (3), serve upon the opponent with the 
        pleadings an affidavit as provided in subdivision 3; and 
           (2) serve upon the opponent within 180 days an affidavit as 
        provided in subdivision 4. 
           Subd. 3.  [AFFIDAVIT OF EXPERT REVIEW.] (a) The affidavit 
        required by subdivision 2, clause (1), must be drafted by the 
        party's attorney and state that: 
           (1) the facts of the case have been reviewed by the party's 
        attorney with an expert whose qualifications provide a 
        reasonable expectation that the expert's opinions could be 
        admissible at trial and that, in the opinion of this expert, the 
        defendant deviated from the applicable standard of care and by 
        that action caused injury to the plaintiff; 
           (2) the expert review required by clause (1) could not 
        reasonably be obtained before the action was commenced because 
        of the applicable statute of limitations; or 
           (3) the parties have agreed to a waiver of the expert 
        review required by clause (1) or the party has applied for a 
        waiver or modification by the court under paragraph (c). 
           (b) If an affidavit is executed under paragraph (a), clause 
        (2), the affidavit in paragraph (a), clause (1), must be served 
        on the defendant or the defendant's counsel within 90 days after 
        service of the summons and complaint. 
           (c) The certification of expert review required under this 
        section may be waived or modified if the court where the matter 
        will be venued determines, upon an application served with 
        commencement of the action, that good cause exists for not 
        requiring the certification.  Good cause includes, but is not 
        limited to, a showing that the action requires discovery to 
        provide a reasonable basis for the expert's opinion or the 
        unavailability, after a good faith effort, of a qualified expert 
        at reasonable cost.  If the court waives or modifies the expert 
        review requirements, the court shall establish a scheduling 
        order for compliance or discovery.  If the court denies a 
        request for a waiver under this subdivision, the plaintiff must 
        serve on the defendant the affidavit required under subdivision 
        2, clause (1), within 60 days, and the affidavit required under 
        subdivision 2, clause (2), within 180 days. 
           Subd. 4.  [IDENTIFICATION OF EXPERTS TO BE CALLED.] (a) The 
        affidavit required by subdivision 2, clause (2), must be signed 
        by the party's attorney and state the identity of each person 
        whom the attorney expects to call as an expert witness at trial 
        to testify with respect to the issues of negligence, 
        malpractice, or causation, the substance of the facts and 
        opinions to which the expert is expected to testify, and a 
        summary of the grounds for each opinion.  Answers to 
        interrogatories that state the information required by this 
        subdivision satisfy the requirements of this subdivision if they 
        are signed by the party's attorney and served upon the opponent 
        within 180 days after commencement of the action against the 
        defendant or within 180 days after service of the affidavit 
        required by subdivision 3, paragraph (a), clause (2) or (3). 
           (b) The parties by agreement, or the court for good cause 
        shown, may provide for extensions of the time limits specified 
        in subdivision 2, 3, or this subdivision.  Nothing in this 
        subdivision prevents any party from calling additional expert 
        witnesses or substituting other expert witnesses. 
           Subd. 5.  [RESPONSIBILITIES OF PARTY AS ATTORNEY.] If a 
        party is acting pro se, the party shall sign the affidavit or 
        answers to interrogatories referred to in this section and is 
        bound by those provisions as if represented by an attorney. 
           Subd. 6.  [PENALTY FOR NONCOMPLIANCE.] (a) Failure to 
        comply with subdivision 2, clause (1), within 60 days after 
        demand for the affidavit results, upon motion, in mandatory 
        dismissal of each cause of action with prejudice as to which 
        expert testimony is necessary to establish a prima facie case. 
           (b) Failure to comply with subdivision 3, paragraph (b) or 
        (c), results, upon motion, in mandatory dismissal of each cause 
        of action with prejudice as to which expert testimony is 
        necessary to establish a prima facie case. 
           (c) Failure to comply with subdivision 4 results, upon 
        motion, in mandatory dismissal of each action with prejudice as 
        to which expert testimony is necessary to establish a prima 
        facie case, provided that an initial motion to dismiss an action 
        under this paragraph based upon claimed deficiencies of the 
        affidavit or answers to interrogatories shall not be granted 
        unless, after notice by the court, the nonmoving party is given 
        60 days to satisfy the disclosure requirements in subdivision 
        4.  In providing its notice, the court shall issue specific 
        findings as to the deficiencies of the affidavit or answers to 
        interrogatories. 
           Subd. 7.  [CONSEQUENCES OF SIGNING AFFIDAVIT.] The 
        signature of the party or the party's attorney constitutes a 
        certification that the person has read the affidavit or answers 
        to interrogatories, and that to the best of the person's 
        knowledge, information, and belief formed after a reasonable 
        inquiry, it is true, accurate, and made in good faith.  A 
        certification made in violation of this subdivision subjects the 
        attorney or party responsible for that conduct to reasonable 
        attorney's fees, costs, disbursements, and other damages that 
        may be determined by the court. 
           Sec. 3.  1997 S. F. No. 1905, article 3, section 9, 
        subdivision 1, if enacted, is amended to read: 
           Subdivision 1.  [DEFINITIONS.] For the purposes of sections 
        16E.03 to 16E.05, the following terms have the meanings given 
        them. 
           (a) "Information and communications technology activity" 
        means the development or acquisition of information and 
        communications technology devices and systems, but does not 
        include MNet or its contractors. 
           (b) "Data processing device or system" means equipment or 
        computer programs, including computer hardware, firmware, 
        software, and communication protocols, used in connection with 
        the processing of information through electronic data processing 
        means, and includes data communication devices used in 
        connection with computer facilities for the transmission of data.
           (c) "State agency" means an agency in the executive branch 
        of state government and includes state colleges and universities 
        and the Minnesota higher education services 
        office notwithstanding any other law enacted at the 1997 
        legislative session. 
           Sec. 4.  1997 S. F. No. 1905, article 3, section 9, 
        subdivision 3, if enacted, is amended to read: 
           Subd. 3.  [EVALUATION AND APPROVAL.] A state agency may not 
        undertake an information and communications technology activity 
        until it has been evaluated according to the procedures 
        developed under subdivision 4.  The governor or governor's 
        designee shall give written approval of the proposed activity.  
        If the proposed activity is not approved, the commissioner of 
        finance shall cancel the unencumbered balance of any 
        appropriation allotted for the activity.  This subdivision does 
        not apply to acquisitions or development of information and 
        communications systems that have anticipated total cost of less 
        than $100,000.  The Minnesota state colleges and universities 
        shall submit for approval any activity related to acquisitions 
        or development of information and communications systems that 
        has a total anticipated cost of more than $250,000. 
           Sec. 5.  [REPEALER.] 
           1997 S. F. No. 1888, article 3, section 35, if enacted, is 
        repealed. 
           Sec. 6.  [EFFECTIVE DATE; APPLICATION.] 
           Section 2 is effective August 1, 1997, and applies to 
        causes of action arising from incidents occurring on or after 
        that date and to actions commenced on or after August 1, 1998. 
           Presented to the governor May 27, 1997 
           Signed by the governor May 30, 1997, 1:07 p.m.