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• Expert Affidavits in Claims Against Professionals in Minnesota

Claims against certain “professionals” in Minnesota are often subject to expert review pursuant to Minnesota Statute Section 544.42. The statute creates a trap for those persons not aware of it’s existence because a failure to properly follow the law results in dismissal of the lawsuit prior to a trial. 

What follows below is a general outline of the framework of the statute.  The specifics of the affidavits that must be produced, and when and how to satisfy the content requirements of those affidavits, involves a detailed legal analysis that is beyond the scope of this article.  If you believe you have a claim against a professional, you are best served to contact a qualified lawyer to provide you the legal guidance necessary to properly protect your rights. 

That being said, when does the statute require that professional liability claims be supported by expert certification in Minnesota? 

•The statute requires expert support “in an action against a professional alleging negligence or malpractice in rendering professional services where expert testimony is to be used by a party to establish a prima facie case.”

Who is a “professional” under the statute?

•A licensed attorney, an architect, certified public accountant, engineer, land surveyor, or licensed landscape architect

The necessity of serving two affidavits per the statute:

•Affidavit #1 – The “Affidavit of Expert Review”

This affidavit must be served “with the pleadings” (typically the Summons and Complaint (original or third-party); could also be with served with Counterclaim or Cross claim)

If the affidavit is not served “with the pleadings,” opposing counsel must demand compliance.  A failure to comply within 60 days after demand for compliance results, upon motion, in “mandatory” dismissal with prejudice of all claims to which expert testimony is required to establish a prima facie case

•Affidavit #2 – “Identifying Experts”

This affidavit must be served within 180 days of service of the “pleadings”

A failure to serve Affidavit #2 results, upon motion, in mandatory dismissal of each action with prejudice as to which expert testimony is necessary to establish a prima facie case

A broad overview of the content requirements of both affidavits

•Affidavit #1 - The “Affidavit of Expert Review”

Option 1:  Must be drafted by party’s attorney or pro se litigant and state that the facts have been reviewed with an expert whose qualifications provide a reasonable expectation the expert’s opinion could be admissible at trial and the expert opines the professional deviated from accepted standards of care and by that action caused injury to the plaintiff

Option 2:  Must be drafted by party’s attorney or pro se litigant and state that expert review and Option 1 could not be performed because of the applicable statute of limitations 

If an affidavit is submitted via Option 2, then the Option 1 affidavit must be served within 90 days after service of the Summons and Complaint or other “pleading”

Failure to comply with 90-day deadline results, upon motion, in “mandatory” dismissal with prejudice of all claims that require expert support

 Option 3:  Must be drafted by party’s attorney or pro se litigant and state that  parties have agreed to a waiver of Option 1

 Option 4: Must be drafted by party’s attorney or pro se litigant and state that the  party has applied for waiver or modification with the Court;  notice of the motion  before the court must be served with the commencement of the action

A Court must determine if “good cause” exists for not requiring or modifying certification 

If “good cause” exists, the Court shall establish a scheduling order for compliance or discovery;  if no “good cause” exists, a plaintiff must comply with Option 1 within 60 days

Failure to comply results, upon motion, in “mandatory” dismissal with prejudice of all claims that require expert support

•Affidavit #2 - “Identifying Experts”

Must be signed by the plaintiff's attorney or pro se litigant and

must (1) identify each expert who will testify at trial; (2) identify the “substance of the facts and opinions” from each expert; and (3) provide a “summary of the grounds for each opinion”

Timely served Answers to Interrogatories, signed by party’s attorney, can satisfy this requirement.  

If you or someone you know believes they have a valid claim of professional malpractice, you are urged to contact a qualified lawyer to protect your claim from possible dismissal for a failure to satisfy the expert affidavit requirements under Minnesota law.

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