• April 27, 2011

The subject-line, above, were the words of U.S. District Court Judge Patrick J. Schiltz (D. Minn.) in this morning’s hearing on the defendant law firm’s motion for partial summary judgment (denied) and defendant’s motion for sanctions (denied) in Afremov v. LaFond, Sulloway & Hollis, a complex legal malpractice action.

The case will now apparently be entering into the deposition phase of discovery.

The “missing witness,” that is, the often-mentioned apparent evidentiary lynch-pin appeared to be preeminent Minnesota criminal defense counsel, Doug Kelley, who was Michael Afremov’s criminal defense counsel, at one point somehow alongside attorney Michael LaFond (at the time, or at least at one point, apparently a suspected co-conspirator).

Putting this mess of a case to one side, this morning’s hearing also touched on one aspect of professional malpractice litigation that should be of some interest to lawyers who work in the area of professional malpractice under Minnesota law.

Subdivision 5(c) of Minn. Stat. § 542.42 provides:

Failure to comply with [the required expert disclosure under 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.

Judge Schiltz pointed out that the statute’s 60-day “safe harbor” to correct deficiencies in incomplete “expert reports” (whether in the form of an affidavit or interrogatory answers) contains no minimal baseline requirements to trigger a malpractice plaintiff’s right to the 60-day safe harbor.

The Minnesota Supreme Court, on the other hand, engrafted such a “gatekeeper” “minimum requirements” function to Minnesota courts.  That is, under the Brown-Wilbert case, the Minnesota Supreme Court applied “minimum standards” for an affidavit of expert disclosure to satisfy the 180-day requirement…”sufficient to minimally satisfy the 180-day requirement.”

In the colloquy between defense counsel Charles Jones of the Meagher & Gear firm and Judge Schiltz, the two noted that the statute itself does not seem to say anything about “minimum standards” to trigger a right to the 60-day safe harbor.  Lower courts, on the other hand, have quite broadly if not universally interpreted Brown-Wilbert to deny plaintiffs leave to the 60-day safe harbor, finding their initial expert reports failed to meet “minimum standards.”

The Brown-Wilbert decision provides the minimal standards are:

that the affidavit provide some meaningful information, beyond conclusory statements, that (1) identifies each person the attorney expects to call as an expert; (2) describes the expert’s opinion on the applicable standard of care, as recognized by the professional community; (3) explains the expert’s opinion that the defendant departed from that standard; and (4) summarizes the expert’s opinion that the defendant’s departure was a direct cause of the plaintiff’s injuries.

Putting to one side that one person’s “meaningful information” is often another person’s “conclusory statement,” plaintiff-side malpractice lawyers had better go through points 1-4 on the first “go-round” of an expert affidavit, expert report, or expert interrogatory answers.  Or there probably won’t be a second chance.

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