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TABLE OF CONTENTS
TABLE OF CONTENTS ..................................................................................................... i
INTRODUCTION ...............................................................................................................1
HISTORY ............................................................................................................................2
CASE DESCRIPTION ........................................................................................................7
ANALYSIS ........................................................................................................................16
CONCLUSION ..................................................................................................................18
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TORTS: Never Mind, I’ll Find Someone Who Can Make a Meaningful Disclosure:
Evaluating the Efficacy of Expert Witness Affidavits—Guzick v. Kimball, 869 N.W.2d 42
(Minn. 2015).
I. Introduction
It is a bedrock principle of statutory interpretation, according to Justice Lillehaug of the
Minnesota Supreme Court, that where clear and unambiguous language exists, the court must
follow the plain meaning of the statute and not inject any of its own notions that might alter its
application.1 The Minnesota Supreme Court recently held in Guzick v. Kimball2 that a plaintiff’s
expert disclosure on proximate cause was insufficient under the Brown–Wilbert3 interpretation of
1 See Guzick v. Kimball, 869 N.W.2d 42, 52–53 (Minn. 2015) (Lillehaug, J., concurring); see
also Arthur W. Murphy, Old Maxims Never Die: The “Plain-Meaning Rule” and Statutory
Interpretation in the “Modern” Federal Courts, 75 COLUM. L. REV. 1299, 1313 (Nov. 1975)
(stating, “The invocation of the plain meaning rule results in an insistence upon specification and
attention to detail reminiscent of the insistence by courts of an earlier era that statutes in
derogation of the common law be strictly construed.”).
2 869 N.W.2d at 44.
3 732 N.W.2d 209, 218 (Minn. 2007) (“[I]f we look to the purpose for section 544.42, to provide
a mechanism for the early dismissal of frivolous actions, the minimum standards for such an
affidavit should be that it contains meaningful information on each of the issues for which expert
testimony will be required at trial to avoid a directed verdict.”) (emphasis added).
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MINN. STAT. § 544.42 (2014). Because the court followed the “meaningful disclosure” approach
pursuant to Brown–Wilbert4, it did not apply the traditional “plain meaning” approach.5
This case note begins by delving into the history of malpractice claims6, and the way
expert testimony supplements such claims—specifically as it relates to Minnesota law.7 Then it
discusses the facts of Guzick and the court’s rationale for its decision.8 Next, it argues that the
court incorrectly followed the Brown–Wilbert decision in upholding the decision of the district
court.9 Finally, this note concludes that the future development of expert disclosures in
malpractice suits is uncertain.10
II. History of the Relevant Law
A. An Evaluation of Malpractice Claims and Expert Witness Testimony
Dating back to the colonial period, legal malpractice has been recognized as a cause of
action through which an attorney’s actions are analyzed under the lens of the standard of care the
4 Id.
5 See generally MINN. STAT. § 645.16 (2014) (“When the words of a law in their application to
an existing situation are clear and free from all ambiguity, the letter of the law shall not be
disregarded under the pretext of pursuing the spirit.”).
6 See infra Part II(A).
7 See infra Part II(B).
8 See infra Part III.
9 See infra Part IV.
10 See infra Part V.
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attorney owed to the client, and there exists the principle that the plaintiff must declare a
sufficient cause of action.11 In the first instance (arguably) of legal malpractice heard in the
United States, the Supreme Court of Virginia determined that the plaintiff “must declare [the
damages], or else cannot recover.”12 The burden was, and remains, heavy upon a plaintiff’s
shoulders to demonstrate negligence by an attorney, and jurisdictions have construed rules that
range from three to five prongs in codifying this burden.13 Scholars have regarded various
burdens placed upon plaintiffs as too difficult to prove, and perhaps too speculative, including
but not limited to the “but-for” test, which is an approach that intends on whittling down all
potential causes of a harm to one specific circumstance.14
B. Minnesota Malpractice Cases
The burden on a plaintiff has been considered a tremendous feat in malpractice cases.
Minnesota has required expert testimony to assist, and has developed in its statutes provisions
that place requirements on such testimony.15 It has been regarded that a plaintiff in a malpractice
11 See George S. Mahaffey Jr., Cause-in-Fact and the Plaintiff’s Burden of Proof with Regard to
Causation and Damages in Transactional Legal Malpractice Matters: The Necessity of
Demonstrating the Better Deal, 37 SUFFOLK U. L. REV. 393, 401 (2004).
12 Stephens v. White, 2 Va. 203, 212 (1796).
13 Mahaffey Jr., supra note 1, at 402 (citing Patrick J. Kelley, Restating Duty, Breach, and
Proximate Cause in Negligence Law: Descriptive Theory and the Rule of Law, 54 VAND. L. REV.
1039, 1041 (2001)).
14 Id. at 397.
15 See MINN. STAT. § 544.42, subds. 2(1)–(2) (2014).
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case should have to demonstrate that an underlying position was compromised or otherwise
negatively impacted by the negligence of the defendant-attorney.16 Minnesota places a four-
prong prima facie burden of production on a plaintiff in a malpractice action.17 Under MINN.
STAT. § 544.42 (2014), for a plaintiff to establish a prima facie case for malpractice, it must
submit two expert witness affidavits: an affidavit of expert review18, and an expert identification
affidavit19. According to MINN. STAT. § 544.42, subd. 6 (2014), if a party does not comply with
these disclosure requirements, an action shall be dismissed, subject however to a period in which
a party may cure its deficiency; this is regarded as a “safe harbor” provision.20 This “safe harbor”
provision is also in effect with respect to Minnesota’s medical malpractice statute.21 It is
16 Mahaffey Jr., supra note 11, at 436.
17 See, e.g., DAVID HERR, 28A MINN. PRAC., Elements of an Action § 13:1, Westlaw (database
updated Dec. 2015).
18 See MINN. STAT. § 544.42, subds. 2(1), 3(a)(1) (2014).
19 See id. at subds. 2(2), 4(a).
20 See MINN. STAT. § 544.42, subd. 6(c) (2014).
21 See MINN. STAT. § 145.682, subd. 6(c) (2014) (“Failure to comply with subdivision 4 because
of deficiencies in the affidavit or answers to interrogatories results, upon motion, in mandatory
dismissal with prejudice of each action as to which expert testimony is necessary to establish a
prima facie case, provided that: (1) the motion to dismiss the action identifies the claimed
deficiencies in the affidavit or answers to interrogatories; (2) the time for hearing the motion is at
least 45 days from the date of service of the motion; and (3) before the hearing on the motion, the
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important to note that the medical malpractice statute was amended to include this safe harbor
provision in 2001.22
While Minnesota law requires a plaintiff to make a prima facie case for malpractice, the
way expert testimony is incorporated to help meet such a burden may vary as to the elements to
which it gives credibility.23 The crux is whether plaintiff has brought sufficient factual evidence
and expert testimony as necessary on the issues presented; if not, then summary judgment is
proper.24
Brown–Wilbert is the controlling case in Guzick. In Brown–Wilbert, an accounting
malpractice case, plaintiffs timely filed affidavits of expert review and disclosure as answers to
interrogatories, but the affidavits were considered by the Supreme Court of Minnesota as
conclusory allegations about accounting malpractice that were not sufficient to meet the
plaintiff does not serve upon the defendant an amended affidavit or answers to interrogatories
that correct the claimed deficiencies.”).
22 See Act of May 22, 2002, ch. 403, § 1, 2002 Minn. Laws 1706, 1706–07 (codified as amended
at MINN. STAT. § 145.682, subd. 6(c) (2014)) (amending the medical malpractice statute to add a
safe harbor).
23 See generally Wartnick v. Moss & Barnett, 490 N.W.2d 108,116 (Minn. 1992) (stating,
“[P]laintiff must present evidence of the applicable standard of care, and that the standard of care
was breached. Generally expert testimony is required to establish these issues . . . ”).
24 See, e.g., Prawer v. Essling, 282 N.W.2d 493,495 (Minn. 1979).
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“minimum standards” for an affidavit of expert disclosure.25 Because the court held that the
minimum standards to satisfy the 180-day requirement in MINN. STAT., subds. 2(2) and (4)
(2014) were not met, it did not qualify for the 60-day cure period provided in subd. 6(c).26 In
reaching this “minimum standards” threshold test, the court began by analogizing both the
nonmedical and medical malpractice statutes, and distinguishing the amendment to the medical
malpractice adding the cure provision as “based on the perception that meritorious medical
malpractice claims were being dismissed where the expert disclosure affidavit was only missing
some technical information that could be corrected.”27 The court found that defendants’
argument emphasizing the legislative purpose quickly dismiss frivolous malpractice claims to be
effective, as well as plaintiffs’ argument that the cure provisions had the legislative purpose of
preventing the dismissal of meritorious claims on minor technicalities.28 Therefore, premised on
the notion that the legislative intent of MINN. STAT. § 544.42 (2014) was to avoid the waste of
time and money on frivolous malpractice actions, the court determined that there must be:
[M]inimum standards for an affidavit of expert disclosure , sufficient to satisfy the
180–day requirement, must be 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
25 See Brown–Wilbert, Inc. v. Copeland Buhl & Co., P.L.L.P., 732 N.W.2d 209, 219 (Minn.
2007).
26 Id.
27 Id. at 217 (citing Sen. debate on S.F. 0936, 82nd Minn. Leg., May 16, 2001 (audio tape)
(statement of Sen. Neuville, author of the bill)).
28 Id.
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(4) summarizes the expert's opinion that the defendant's departure was a direct
cause of the plaintiff's injuries.29
Consequently, in Wesely v. Flor, a case interpreting the medical malpractice statute, the
Supreme Court of Minnesota determined that Brown–Wilbert did not control, and noted the
difference in statutory provisions as well as the sufficiency in expert testimony.30
III. The Guzick Decision
A. Facts and Procedure
Colleen Bennett (“Bennett”) was a legal assistant for Larry Kimball at Kimball Law
Office (collectively “Kimball”).31 Bennett was asked by Louis Nyberg, Jr. (“Tony”), nephew of
George Nyberg (“George”), to prepare a power of attorney (“POA”) form for George to sign that
would authorize Tony to act as his attorney-in-fact.32 Bennett then proceeded to provide George
with a POA that already had checkmarks placed on all lines, she did not seek to discuss with
George the level of authority he wanted to grant Tony, nor did she ask George if he had read the
form before he signed it and she subsequently notarized it.33 Thereafter, Tony provided Wells
29 Id. at 219.
30 See Wesely v. Flor, 806 N.W.2d 36, 41 (Minn. 2011) (stating, “[I]n Brown–Wilbert, we were
considering a different statute with a different safe-harbor provision. . . . [And] the information
disclosed in this case was substantial compared to the insignificant amount of information
disclosed in Brown–Wilbert.”).
31 Guzick, 869 N.W.2d at 44.
32 Id. at 44.
33 Id.
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Fargo with the POA, and Wells Fargo allowed him to add his name as a joint owner with a right
of survivorship on two of George’s accounts.34 Tony then began to transfer money into the now
jointly-owned account, as well as transfer money out of it and into accounts that were held by
him and his wife.35
Guzick, the personal representative of the now-deceased George’s estate36 and trustee of
George’s trust, filed suit against Kimball alleging a single count of legal malpractice under two
theories: (1), “Kimball had a duty to supervise Bennett and ensure that her conduct and work
product were ‘compatible with Kimball’s professional obligations;’” and (2), Kimball had a duty
to meet and talk with George to discuss various aspects of the POA.37 In accordance with MINN.
STAT. § 544.42, subd. 2(1) (2014)38, Guzick submitted an affidavit of expert review with the
complaint, which stated that his expert reviewed the facts in the complaint, the expert’s opinions
provided a reasonable expectation that they would be admissible at trial, and that Kimball
34 Id.
35 Id.
36 George died while Tony was in the process of transferring a total of $226,524 out of George’s
account. Id.
37 Id. at 44–45. Guzick also brought a conversion action against Tony and his wife, which
Guzick won. Id. at 44.
38 “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 . . . serve upon opponent with the pleadings an affidavit as provided in
subdivision 3 . . . .”
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deviated from the applicable standard of care, resulting in damages.39 While Guzick provided an
affidavit of expert review, he failed to provide an affidavit of expert disclosure40, which provide
grounds for Kimball to move for summary judgment; further arguing that Guzick did not qualify
for the statutory safe harbor provision41, and that Guzick was required to utilize an expert to
establish all four elements of a prima facie case of legal malpractice42.
39 Guzick, 869 N.W.2d at 45. The expert also identified a list of ten acts committed by Kimball
that resulted in a deviation from the standard of care and caused damages. Id.
40 See MINN. STAT. § 544.42, subds. 2(2), 4(a) (2014) (“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 discovery under the Rules of Civil Procedure, rule 26.04(a).”).
41 See MINN. STAT. § 544.42, subd. 6(c) (2014) (“Failure to comply with subdivision 4 results . . .
in mandatory dismissal of each action with prejudice . . . unless, after notice by the court, the
nonmoving party is given 60 days to satisfy the disclosure requirements in subdivision 4.”).
42 The four elements include: (1) existence of an attorney-client relationship, (2) acts constituting
negligence, (3) proximate causation, (4) but-for causation. See, e.g., Blue Water Corp. v.
O’Toole, 336 N.W.2d 279, 281 (Minn. 1983).
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The district court utilized precedent set in Brown–Wilbert, Inc. v. Copeland Buhl & Co.,
P.L.L.P.,43 and determined that the expert disclosure did not qualify for the safe harbor provision
because Brown–Wilbert added a “meaningful disclosure” requirement to the provision that the
expert did not satisfy through its conclusory affidavit, and thereby granted Kimball’s motion and
dismissed the claim, further finding that Guzick’s affidavit failed to establish any element of his
prima facie burden of proof.44 In determining the efficacy of Guzick’s expert disclosures, the
district court found that Guzick failed to file an expert identification affidavit.45 Accordingly, the
district court also found Guzick undeserving of the safe harbor period because the answers to
Kimball’s interrogatories were “grossly deficient.”46 The district court, in its memorandum,
cited Brown–Wilbert, which set the precedent that answers to interrogatories that were timely
served but failed to disclose substantive facts/opinions to which the expert was expected to
testify are insufficient to invoke the safe harbor.47
Guzick was successful on appeal48 as the court of appeals found that Guzick’s expert
disclosure was sufficient to satisfy the minimum expert-disclosure requirements set forth by
Brown–Wilbert, and that an expert was not necessary to establish each element of the prima facie
43 732 N.W.2d 209, 217–219 (Minn. 2007).
44 Guzick, 869 N.W.2d at 46.
45 Guzick v. Kimball, No. 11-CV-13-689, 2014 WL 9963420 at *2 (Minn. Dist. Ct. Jan. 2014).
46 Id.
47 732 N.W.2d 209, 219.
48 Guzick v. Kimball, No. A14–0429, 2014 WL 4957973, at *10–11 (Minn. Ct. App. Oct. 6,
2014).
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burden.49 Kimball subsequently petitioned for review, asking the Minnesota Supreme Court to
reverse the court of appeals, and hold that expert testimony was in fact necessary to establish
each element of a prima facie case for legal malpractice, and that Guzick’s expert disclosure
failed to meet the standard set by Brown–Wilbert.50
B. Minnesota Supreme Court Decision
In reversing the court of appeals, the Minnesota Supreme Court recognized the limitation
previously read into the safe-harbor provision of MINN. STAT. § 544.42, subd. 6(c) (2014),
requiring that a disclosure “provide some meaningful information, beyond conclusory
statements.”51 This “meaningful information” was evinced by an exhaustive list of four
“minimum standards”: (1) identify each person the attorney expects to call as an expert, (2)
describe the expert’s opinion on the applicable standard of care, (3) explain the expert’s opinion
that the defendant departed from that standard, (4) summarize the expert’s opinion that the
defendant’s departure was a direct cause of the plaintiff’s injuries.52
The court reasoned that the first requirement was satisfied because Guzick specifically
responded to Kimball’s interrogatory with the expert’s name, “Susan E. Johnson–Drenth,” and
cited to the affidavit of expert review.53 For the other three elements, the court reasoned that
49 The dissent disagreed with this finding, and asserted that the disclosure by Guzick’s expert
“could not possibly be any more conclusory or any less meaningful.” Id. at *13.
50 Guzick, 869 N.W.2d at 46.
51 Brown–Wilbert, 732 N.W.2d at 219.
52 Id.
53 Guzick, 869 N.W.2d at 48.
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expert disclosure is not necessarily required, and that such a requirement should be determined
on a case-by-case basis.54 Here, the court found a disparity in precedent concerning whether
expert testimony is required for determining standard of care.55 However, the parties did not
dispute that an expert was required to establish acts constituting negligence and proximate cause,
but whether an expert was required to establish but-for causation and existence of attorney-client
relationship elements.56
The court held that Guzick was wrong in arguing he did not need to establish but-for
causation57, but the court also held that expert testimony is not necessary in determining but-for
54 Id.
55 Compare Brown–Wilbert, 732 N.W.2d at 218 (stating, “[E]xpert testimony is generally
required to establish the standard of care applicable to legal malpractice, whether the attorney
deviated from that standard, and whether that deviation caused the plaintiff’s injury.”), with
Admiral Merchants Motor Freight, Inc. v. O’Connor & Hannan, 494 N.W.2d 261, 265–66
(Minn. 1992) (stating, “Expert testimony generally is required to establish a standard of care
applicable to an attorney whose conduct is alleged to have been negligent . . . .”).
56 Guzick, 869 N.W.2d at 49–50.
57 Id. at 50 (citing Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d
811, 819 (Minn. 2006) (requiring a plaintiff to show “but for defendant’s conduct, the plaintiff
would have obtained a more favorable result in the underlying transaction than the result
obtained.”)).
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causation, disagreeing with the court of appeals’ determination as well as Kimball’s argument.58
Therefore, the court made its determination on common knowledge and lay comprehension that
could be evaluated by a jury in the absence of an expert, and determined that two links existed in
the chain of causation: whether, but-for Kimball’s negligent acts, the POA would not have been
overbroad; and whether, but-for the overbroad POA, George’s funds would not have been
converted.59 The court held that neither question was so complex as to require an expert because
for the first link, a jury could examine the estate planning documents and any communications to
Bennett regarding his intent with the POA; and for the second link, the POA itself, along with
testimony by Tony and Wells Fargo could answer the concern regarding conversion.60
Interestingly, Guzick did not dispute that an expert was required to establish proximate
causation, so the court needed to determine whether Guzick’s expert disclosure satisfied the
Brown–Wilbert “meaningful disclosure” requirement.61 The court found that the expert
disclosure only stated that Kimball’s negligent acts “caused damages,” which was precisely the
nature of the conclusory statement the court disapproved in Brown–Wilbert.62 Therefore, the
court deemed the expert disclosure constituted a major, rather than a minor, defect which did not
58 Guzick, 869 N.W.2d at 50 (distinguishing the court of appeals’ reliance on medical
malpractice precedent, stating that complex issues of science or technology are generally not
found in legal malpractice cases).
59 Id.
60 Id. at 50–51.
61 Id. at 51.
62 Id.
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qualify for safe harbor protection and held that the district court did not abuse its discretion in
dismissing the complaint with prejudice.63
C. Concurrence
Justice Lillehaug, in his concurring opinion, agreed that the court reached the correct
determination pursuant to Brown–Wilbert and the relevant statutory code, but urged that Brown–
Wilbert represents an incorrect modification of the “clear and unambiguous” crafting of the
statute.64 The modification to which Justice Lillehaug referred is the “meaningful disclosure”
language which precludes a plaintiff from availing itself of the safe harbor provision in light of a
judicially concocted standard of a “major” deficiency.65 He goes on to criticize how Brown–
Wilbert only cited medical malpractice cases66 which failed to support the holding in relation to
the non-medical professional malpractice statute at issue, and were decided pursuant to the
medical malpractice statute that did not contain a safe harbor at the time67. Justice Lillehaug
63 Id. at 51–52.
64 Id. at 53.
65 Id.
66 See Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 430 (Minn. 2002); Lindberg v. Health
Partners, Inc., 599 N.W.2d 572, 578 (Minn. 1999); Stroud v. Hennepin Cty. Med. Ctr., 556
N.W.2d 552, 555 (Minn. 1996); Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 193
(Minn. 1990).
67 See Act of May 22, 2002, ch. 403, § 1, 2002 Minn. Laws 1706, 1706–07 (codified as amended
at MINN. STAT. § 145.682, subd. 6(c) (2014)) (amending the medical malpractice statute to add a
safe harbor); accord Act of Mar. 25, 1986, ch. 455, § 60, 1986 Minn. Laws 840, 871–72.
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posits that the “meaningful disclosure” standard was a judicially-created safe harbor that the
legislature deemed inadequate and thereby enacted a statutory provision to take its place68, and
notes that the medical malpractice statutory safe harbor provision is substantively identical to the
non-medical malpractice safe harbor69. While any deficiency is given safe harbor in the medical
malpractice context, Justice Lillehaug argues that requiring only “minor deficiencies” receive
safe harbor in the professional malpractice context is a disparate treatment in the law that has no
foundation.70
IV. Analysis 4
The concurrence in Guzick, as written by Justice Lillehaug, was exactly right in reading
the safe harbor provision as clear and unambiguous, noting that the district court did not follow
the plain language of the statute in favor of following the precedent set by the holding in Brown–
Wilbert.71 While the majority did not err in its application of Brown–Wilbert, there is an interest
68 Guzick, 869 N.W.2d at 54 (citing Wesely v. Flor, 806 N.W.2d 36, 40 (Minn. 2011) (stating the
Legislature added the safe-harbor provision because meritorious claims were being dismissed
where the expert disclosure was only missing correctable technical information)).
69 Compare MINN. STAT. § 145.682, subd. 6(c) (2014), with MINN. STAT. § 544.42, subd. 6(c)
(2014).
70 Guzick, 869 N.W.2d at 55.
71 Id. at 53.
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in overturning the decision in a future transactional malpractice case because the Supreme Court
of Minnesota overstepped its bounds in adding judicial constructs to the statute.72
While the plaintiffs in Brown–Wilbert initially raised the issue of “minimum standards,”
they intended to argue that the expert disclosure satisfied the requirements laid out by MINN.
STAT. § 544.42, subd. 4 (2014), which states that the affidavit must be “signed by the party’s
attorney and served upon the opponent within 180 days after commencement of discovery under
the Rules of Civil Procedure, rule 26.04(a).”73 The majority in Brown–Wilbert even conceded
that plaintiffs had satisfied these requirements; and while it states, “We find nothing in section
544.42 to suggest that subjective elements should be considered,” it continues to analyze the
subjective elements of plaintiffs’ expert disclosure.74 The majority also drew a strong
comparison between MINN. STAT. § 544.42 with MINN. STAT. § 145.682 in emphasizing a
common legislative purpose, and notes that the medical malpractice statute was amended in 2001
to enhance the similarity with its counterpart.75
Four years after the decision in Brown–Wilbert, the Supreme Court of Minnesota in
Wesely v. Flor did not consider Brown–Wilbert to be controlling as the instant case necessitated
72 Id. (urging, “While neither party urged us to overrule [Brown–Wilbert], the holding . . .
conflicts with both the plain language and our later interpretation of the substantively similar
medical malpractice statute.”). See generally Cty. of Dakota v. Cameron, 839 N.W.2d 700, 709
(Minn. 2013) (“[W]e do not add words or phrases to an unambiguous statute.”).
73 See Brown–Wilbert, 732 N.W.2d at 216.
74 Id.
75 Id. at 217.
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an analysis of the medical malpractice safe harbor.76 The court stated, “[MINN. STAT. § 145.682
(2014)] does not limit the safe-harbor period to only certain types of deficiencies,” eliminating
any notion of “minor” vs. “major” deficiencies in expert testimony.77 Accordingly, while the
statutes have been posited by the Supreme Court of Minnesota as similarly constructed with
similar goals, the fact is that they have been treated dissimilarly by these two cases.78 It therefore
follows that the court must follow the bedrock principle of utilizing the plain language of clear
and unambiguous statutes because not doing so could potentially lead to the death of viable
claims.79
V. Conclusion
The Minnesota Supreme Court was presented with the difficult question of how to apply
the expert disclosure made to the elements of the plaintiff’s prima facie burden in Guzick; and
once it decided that it was not necessary to establish but-for causation, it had the option of
utilizing stare decisis and further interpreting the holding in Brown–Wilbert or using a plain-
language approach to solve the question of whether the district court abused its discretion in not
76 See Wesely, 806 N.W.2d at 41–43.
77 Id. at 41.
78 Compare Brown–Wilbert, 732 N.W.2d at 217 (“[A]n affidavit may be sufficient to satisfy the
180-day requirement even though it contains minor deficiencies.”), with Wesely, 806 N.W.2d at
43 (acknowledging a concern in allowing safe harbor for deficient expert disclosures, stating,
“The Legislature . . . can amend section 145.682 . . . if plaintiffs do consistently use purposefully
deficient affidavits.”).
79 Guzick, 869 N.W.2d at 55.
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affording plaintiff a cure period.80 The court chose the former, and expounded the distinction
between a “minor defect” and a “major defect,” which had no basis in law other than the decision
in Brown–Wilbert, and deemed the major defect of plaintiff’s expert disclosure preclusive of the
safe harbor provision of MINN. STAT. § 544.42, subd. 6(c) (2014).81 While “stare decisis does not
bind . . . to unsound principles,”82 the court should elect to follow the approach taken in Wesely
whereby the plain meaning of the malpractice statute was considered paramount to any judicially
constructed notions on amending statutory code.83 As the facts of each case vary, and in light of
the conflicting precedent in the treatment of similar statutes, it is uncertain how the court will
handle future issues of deficient expert affidavits in transactional legal malpractice suits.
80 Id. at 50–52.
81 Id. at 51.
82 Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn. 2000).
83 Wesely, 806 N.W.2d at 41.