Minn. Stat. 544.42, Subd. 2, the Minnesota professional malpractice statute provides:
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….
After that ellipse (the “…”), the statute goes on to require (in statute-speak jargon) certain sworn affidavits to be submitted in the case and, if the expert affidavits are not forthcoming, the case is dismissed. It is dead.
Query: Does the “expert affidavit statute” apply in the imbroglio referenced in yesterday’s Minnesota Litigator post? Would the case against Schwebel be “an action against a professional alleging … malpractice in rendering a professional service where expert testimony is to be used by a party to establish a prima facie case”?
On the one hand, this is plainly not a standard claim for professional malpractice. On the other hand, the statute, entitled, “Actions Against Professionals,” does not spell out exactly what is (or is not) “an action against a professional alleging malpractice in rendering a professional service.”
This issue, apparently, will be for Hennepin County District Court Judge Tanya Bransford to decide.