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The Eighth Circuit Further Strengthens the Mandatory Expert Affidavit Requirements In Litigation Against Attorneys

August 19, 2019
Minnesota Lawyer and Finance & Commerce - Partner Content
Author: Janel M. Dressen

Minnesota law recognizes various legal theories of recovery related to attorney misconduct, including intentional fraud and misrepresentation, breach of contract, breach of fiduciary duty, and professional negligence, also known as “malpractice.”  Noske v. Friedberg, 713 N.W.2d 866, 875 (Minn. App. 2006).  Under Minn. Stat. § 544.42 (“Section 544.42”), if a party alleges claims that require expert testimony to make out a prima facie case against an attorney, that party must submit two affidavits in support of the claims to avoid mandatory dismissal.

The first affidavit must be served upon the defendant with the pleadings (unless waived or modified by the court), and must state that “the facts of the case have been reviewed by the party’s attorney with an expert whose qualifications provide a reasonable expectation that the expert’s opinions could be admissible at trial and that, in the opinion of this expert, the defendant deviated from the applicable standard of care and by that action caused injury to the plaintiff.” Minn. Stat. § 544.42, subd. 2(1) and subd. 3.

The second affidavit must be served upon the opponent within 180 days of the commencement of discovery, be signed by the party’s attorney and state the identity of each person whom the attorney expects to call as an expert witness 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. Id. at subd. 2(2) and subd. 4(a).

Section 544.42 does not apply if “the conduct complained of can be evaluated adequately by a jury in the absence of expert testimony.”  Fontaine v. Steen, 759 N.W.2d 672, 677 (Minn. App. 2009) (quoting Hill v. Okay Constr. Co., 312 Minn. 324, 252 N.W.2d 107, 116 (1977)).  However, attorney misconduct cases in which a plaintiff may dispense with expert testimony are “rare and exceptional.”  Id. (quoting Sorenson v. Saint Paul Ramsey Med. Ctr., 457 N.W.2d 188, 191 (Minn. 1990)). Read more.

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