The Minnesota Court of Appeals held in its opinion filed on April 30, 2018 that under the expert-review statute, Minn. Stat. § 145.682 (2016), plaintiffs must file an affidavit of expert identification in medical malpractice cases within 180 days of the “commencement of discovery.” For purposes of this statute, discovery commences no later than the date of a discovery conference pursuant to Rule 26.06, or 30 days after the answer is initially due, whichever is earlier.
Minnesota Medical Malpractice Expert-Review Statute
The Minnesota expert-review statute states that in actions alleging malpractice against a healthcare provider that include a cause of action requiring expert testimony, the plaintiff must “serve upon defendant within 180 days after commencement of discovery under the Rules of Civil Procedure, rule 26.04(a) an affidavit as provided by subdivision 4.” Minn. Stat. § 145.682, subd. 2. This affidavit must identify, and be signed by, each expert witness the plaintiff plans to call at trial, and it must include “the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion.” Minn. Stat. § 145.682, subd. 4.
The Minnesota medical malpractice plaintiff argued on appeal that the district court erred in its interpretation of the expert-review statute and that the 180-day period did not begin because discovery never commenced. The plaintiff further argued that even if the 180-day period expired, the district court abused its discretion when it held that the doctrine of excusable neglect was inapplicable.
The Minnesota Court of Appeals stated that the statutory language is ambiguous because it was subject to two reasonable interpretations. In interpreting the phrase “commencement of discovery,” the Minnesota Court of Appeals concluded that the phrase means when discovery should commence under rule 26 of the Minnesota Rules of Civil Procedure. This in turn means that, because discovery is to commence no later than 30 days after the initial due date of the answer—the same date as the deadline for the discovery conference—this date triggers the latest possible start of the 180-day period to file the affidavit of expert identification.
The Minnesota Court of Appeals stated that its interpretation provides parties with a bright-line rule, a feature of the statutory language before the amendment. Given the legislative intent to maintain the status quo, rather than create delays, the Minnesota Court of Appeals stated that this reading of the statute best reflects the legislature’s intent.
In the case the Minnesota Court of Appeals was deciding, neither party had taken any action to begin the discovery process. The Minnesota Court of Appeals stated that when neither party moves the case toward discovery, the deadline to file the required affidavit of expert identification (as proposed by the plaintiff) would be extended indefinitely, and this is inconsistent with the legislature’s intent.
The Minnesota Court of Appeals concluded: “The parties’ failure to move the case along revealed an ambiguity with the expert-review statute: it is unclear when discovery commences and when the 180-day period to file the affidavit of expert identification begins. Because the legislative history and circumstances surrounding the amendments establish that the legislature did not intend to substantively change the law, but rather bring the statute in conformance with the amended Minnesota Rules of Civil Procedure, the latest discovery may commence under the statute is the date of a discovery conference pursuant to Rule 26.06, or 30 days from the initial due date for an answer, whichever is earlier.”
Source Firkus v. Harms, A17-1088.
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