• October 22, 2014


When I first started the practice of personal injury law some thirty years ago, there seemed to be a bedrock consensus about certain principles of law and procedure underlying the civil justice system. Lawyers and judges of all stripes tended to agree to them.  One of those ideas was the oft recited mantra in court opinions that favored resolution of claims on the merits rather than by technicalities.

That is a notion that has taken a bit of a beating over the last thirty years. Through a drip, drip, drip of unfavorable court decisions, hostile legislation, crowded dockets, new filing requirements and assorted trip wires, it has become much harder for claimants to get their cases to a jury. In this historical context, it is noteworthy that the Supreme Court just beat back another of those small assaults on the right to get a jury trial.  Last week they denied a petition to review the Court of Appeals decision in Pfeiffer v. Allina Health Systems.

This case dealt with the notorious requirement that a malpractice case be summarily dismissed if there was not a sufficient “affidavit of expert opinion” filed within six months of commencement of the suit.  This requirement was initially adopted by the legislature as a “tort reform” compromise to assure that medical malpractice cases were only brought if they had been appropriately vetted with medical experts who could attest to a violation of standard of care that caused the injury or death complained of.  In the years following its adoption, the requirement was used vigorously by the defense bar as a means for obtaining summary dismissals of these lawsuits.  Almost always, this provision was used to obtain dismissal of cases that never would have been otherwise possible under the usual rules for summary judgment.

In its most extreme application, the affidavit requirement became a bit of a “gotcha” provision to snare plaintiff lawyers who would file the affidavits relying heavily upon their expert’s guidance. These were then open to retrospective critique by the defense, usually because they failed to anticipate and address all possible theories of the defense.  The defendant’s experts would pick apart the affidavits, finding some issue of causation or standard of care that was left unaddressed.

Since malpractice victims are usually being treated for a poor health condition in the first place, and often the alleged malpractice includes failures to perform certain tests or gather certain diagnostic information, it is not surprising that the defense experts may find many ways to utilize the ambiguity inherent in incomplete diagnostic information, or to raise questions of causation arising from the preexisting poor health condition of the plaintiff. When the plaintiff’s affidavit doesn’t anticipate and address all of these possible issues, then they were subject to attack as deficient.  Unlike standard summary judgment analysis in which the court would merely determine whether there were material fact issues for the jury, these motions invited judges to evaluate the underlying facts and then scrutinize the affidavits for thoroughness and comprehensiveness.  If the affidavit it is found lacking, then the statute dictated the ultimate sanction and left no room for court discretion.  Dismissal with prejudice.

Since the original purpose of the law was simply to weed out frivolous claims, but the aggressive use of the statute became a significant barrier to consideration of cases on their merits, the Legislature revisited this requirement. To minimize the “gotcha” problem, the Legislature amended the law to include a “safe harbor” clause that permitted a response to perceived inadequacies of the original affidavit.  The amendment permits the plaintiff to file a curative or supplemental affidavit before the hearing on the motion.  It allows the amendment within 45 days of the motion filed to challenge the affidavit.  A 45 day “safe harbor” helped to prevent this affidavit requirement from interfering with the right to have a trial of meritorious claims.

In the Pfeiffer case, the district court rejected a safe harbor affidavit filed the day before the hearing, in keeping with the statute’s 45 day requirement, because it failed to also comply with the General Rules of Practice requirement that responses to dispositive motions be filed at least nine days before the motion hearing. In effect, the District Court was using the General Rules of Practice as an additional screen to further shorten the period for “safe harbor”. So much for preferring to have cases tried on the merits.

Fortunately, the Court of Appeals reversed this. They concluded that in the case of a legislatively created “defense” of this sort, the legislature’s provision for the time requirements should trump the Court rules, and the amended affidavit should be allowed when submitted in accordance with the statute.  (Ordinarily, I would be one to say that is the Courts, rather than the Legislature, that should control such matters of court “procedure”.  But this case is an exception. The motion for dismissal relied upon a unique statutory defense created by the Legislature itself. The statute defined the scope and application of the defense by including specific time parameters and procedure.)

The Court of Appeals decision was a victory for the right of litigants with a plausible case to have their day in court. While undoubtedly a last minute filing of a curative affidavit does create an unwelcomed burden on the court (or at least for those judges who have actually read the file before the hearing), the entire statutory affidavit requirement could be viewed as such a burden, since it seems to have occasioned a cottage industry of dismissal motions and appeals.

The considerations of administrative ease are not to be ignored, but they should generally give way to the more compelling consideration of the interests of justice by having these claims adjudicated on the merits. Bravo for the Supreme Court.  By rejecting a request for review of Pfeiffer and allowing the Court of Appeals decision to stand, I am hopeful it means that the Supreme Court may see these competing values of administrative ease vs. access to our civil justice system in much the same way.

By Michael W. Unger

Mr. Unger, of Unger Law Office in Minneapolis, is a certified civil trial specialist who represents plaintiffs in personal injury, wrongful death and medical malpractice cases.

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