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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.