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Kaplan v. Mayo Foundation et al.: US District Court : MEDICAL MALPRACTICE - "within 180 days after" doesn't mean "any time before 180 days after": "after within 180 days"

ELLIOT KAPLAN, Individually and
Husband, and JEANNE KAPLAN, Wife,
Civil No. 07-3630 (JRT/JJK)
605 West 47th Street, Suite 350, Kansas City, MO 64112; and Peter H.
Watson, PETER H. WATSON & ASSOCIATES, PA, 2124 Dupont
Avenue South, Minneapolis, MN 55405; for plaintiffs.
William R. Stoeri and Heather M. McCann, DORSEY & WHITNEY
LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402-1498, for
Plaintiffs Elliot and Jeanne Kaplan brought this action for medical malpractice
against defendants Mayo Foundation, Mayo Foundation for Medical Education and
Research, Mayo Rochester, Inc., Mayo Clinic Rochester, Inc., Mayo pathologist
Lawrence Burgart, and Mayo surgeon David Nagorney (collectively, Mayo). The
Kaplans also allege loss of consortium, breach of contract, and lack of informed consent.
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This case is now before the Court on Mayos motion for summary judgment. For the
reasons given below, the Court grants in part and denies in part Mayos motion.
In July 2003, Elliot Kaplan was hospitalized in Missouri after experiencing severe
abdominal pain. Kaplans Missouri doctors performed a needle biopsy on his pancreas.
Kaplans pathologist reviewed the pathology slides and determined that Kaplan had
cancer of the pancreas. Kaplan elected to undergo a pancreatoduodenectomy, or
Whipple procedure, which involves excising portions of the pancreas and stomach as
well as the entire pylorus and duodenum.
Kaplan chose to have the procedure performed at Mayo Clinic in Rochester,
Minnesota. Dr. Lawrence Burgart, a Mayo pathologist, reviewed the pathology slides
prepared by Kaplans physicians in Missouri. Based on his review of the slides,
Dr. Burgart diagnosed Kaplan with grade 2 infiltrating pancreatic cancer and scheduled
the Whipple procedure. On August 14, 2003, Dr. David Nagorney, a Mayo surgeon,
performed surgery on Kaplan and removed part of Kaplans pancreas, stomach, and small
intestines. Following surgery, upon further review of the pancreatic tissue, Mayo
pathology determined that Kaplan did not in fact suffer from pancreatic cancer.
Elliot and Jeanne Kaplan filed an action for medical malpractice in 2005 in
Jackson County, Missouri, alleging that the Missouri doctors, Mayo, and the Mayo
doctors were negligent in diagnosing him with pancreatic cancer and in performing an
unnecessary surgical operation. The Kaplans filed and served an affidavit prepared by
their medical expert, Dr. Barry M. Shmookler, in support of their claims in the Missouri
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action. In January 2007, the Missouri court dismissed without prejudice all of the Mayo
defendants, including Drs. Burgart and Nagorney, for lack of personal jurisdiction in
Following dismissal of the action in Missouri, the Kaplans, acting pro se, filed this
medical malpractice action on August 6, 2007. Elliot and Jeanne Kaplan each filed an
affidavit of expert report along with their complaint, stating that the facts had been
reviewed by an expert whose opinions would be admissible at trial. (Docket Nos. 2, 3.)
On October 19, 2007, Mayo served on the Kaplans a demand for expert affidavits
requesting any and all affidavits as required by Minnesota Statute 145.682. (Torvik
Decl. Ex. 9.) On November 6, 2007, the Kaplans filed and served an additional expert
affidavit that was identical to the first two affidavits, but that specifically referenced
Minnesota Statute section 145.682, subdivision 2. However, the Kaplans did not file a
second expert affidavit required under Minnesota Statute section 145.682, subdivision 4,
identifying the experts to be called and summarizing the issues of malpractice and
causation. Plaintiffs subsequently retained counsel in this matter on December 17, 2007.
On May 21, 2008, Mayo filed the instant motion for summary judgment, arguing
that the Kaplans failure to file the second required expert affidavit within 180 days of
commencement of the action mandates dismissal with prejudice under Minnesota law.
See Minn. Stat. 145.682, subd. 2. Shortly after Mayo filed their motion, on May 30,
2008, the Kaplans served on defendants a curative affidavit that was completed by
Dr. Shmookler and that purported to correct deficiencies with respect to the expert
affidavit filed in the Missouri action in 2005. See Minn. Stat. 145.682, subd. 6(c)
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(setting forth factors allowing a plaintiff to cure deficiencies in a previously filed
expert affidavit). The Kaplans contend that the expert affidavit filed in the Missouri
action in 2005 constitutes the second expert affidavit required under Minnesota Statute
section 145.682, subdivision 4.
Summary judgment is appropriate in the absence of any genuine issue of material
fact and when the moving party can demonstrate that it is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could cause a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Mayo argues that the Kaplans failed to file the second expert affidavit required
under Minnesota law in medical malpractice cases, and that this failure mandates
dismissal of the Kaplans negligence claims. In the alternative, Mayo contends that there
is no basis for a finding of excusable neglect that would allow for an extension of the
180-day filing deadline. The Court addresses each argument in turn.
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A. Application of Minnesota Statute 145.682
In a medical malpractice case where expert testimony is necessary to establish a
prima facie case, the plaintiff must meet two requirements. Anderson v. Rengachary,
608 N.W.2d 843, 846 (Minn. 2000) (citing Minn. Stat. 145.682, subd. 2). First, the
plaintiff must serve with the summons and complaint an affidavit by the plaintiffs
attorney, which states that the attorney has reviewed the facts with an expert and that the
experts opinion is that the defendant deviated from the standard of care and caused
injury to the plaintiff. Id.; Minn. Stat. 145.682, subds. 2, 3. Second, the plaintiff must
serve an affidavit identifying the experts who will testify at trial, the substance of their
testimony, and a summary of the grounds for their opinions.1 Rengachary, 608 N.W.2d
at 846; Minn. Stat. 145.682, subds. 2, 4. This second affidavit must be served upon the
defendant within 180 days after commencement of the suit. Minn. Stat. 145.682,
subd. 2(2).
Failure to comply with these requirements results, upon motion, in mandatory
dismissal with prejudice of each cause of action as to which expert testimony is required
to establish a prima facie case. Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 426
(Minn. 2002). While statutory dismissal may have harsh results in some cases, [i]t is
the legislative choice to implement the policy of eliminating frivolous medical
malpractice lawsuits. Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 578 (Minn.
1 Answers to interrogatories that state the information required by 145.682, subd. 4,
satisfy the second affidavit requirement if they are signed by plaintiffs attorney and by the listed
experts and served within 180 days after commencing the action.
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1999). In light of this clear legislative purpose, Minnesota courts have stressed that
plaintiffs must adhere to strict compliance with the requirements of Minn. Stat.
145.682. Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 726 (Minn. 2005).
The mandatory dismissal provision does, however, allow a plaintiff to cure a
deficient expert affidavit, provided that (1) a motion to dismiss identifies the claimed
deficiencies in the affidavit, (2) the hearing on the motion is at least 45 days after service
of the motion, and (3) before the hearing on the motion, the plaintiff serves an amended
affidavit correcting the claimed deficiencies. Minn. Stat. 145.682, subd. 6(c). This
cure provision was added by the Minnesota Legislature in 2000, 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. Brown-Wilbert, Inc. v. Copeland Buhl & Co., 732 N.W.2d 209, 217 (Minn.
2007). In addition, even where 145.682 by its terms mandates dismissal, the plaintiff
may avoid dismissal for noncompliance in one of two ways. Bellecourt v. United States,
784 F. Supp. 623, 636 (D. Minn. 1992). First, the Court may extend the time for filing
the affidavit upon a showing of excusable neglect. Id. Second, the affidavits are not
required where the medical malpractice claim does not require expert testimony. Id.
Here, the Court agrees with Mayo that, unless the Kaplans can demonstrate an
exception for noncompliance, the plain language of 145.682 mandates dismissal of the
Kaplans medical malpractice claim. Indeed, the Kaplans do not dispute that they failed
to file the second required expert affidavit in this action within 180 days of
commencing suit. See Minn. Stat. 145.682, subd. 4. Instead, the Kaplans contend that
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the affidavit filed in the Missouri litigation in 2005 nearly two years before they
commenced this action satisfies the second affidavit requirement. The Kaplans argue
that the statutory language within 180 days necessarily encompasses affidavits filed at
any time prior to the commencement of the Minnesota action, up until 180 days after
commencement of the action. The plain language of 145.682 does not allow for such a
reading, however. The affidavit requirement expressly states that the affidavit must be
serve[d] upon defendant within 180 days after commencement of the suit. Minn. Stat.
145.682, subd. 2 (emphasis added). The Court finds that this statutory language
unambiguously requires that the expert affidavit be filed after, and not before,
commencement of the lawsuit in Minnesota. See Lindberg, 599 N.W.2d at 577-78
(requiring strict compliance with 145.682 and finding the statutory requirements as a
whole uncomplicated and unambiguous); Anderson v. Rengachary, 608 N.W.2d 843,
850 (Minn. 2000) (same); see also Boatwright v. Budak, 625 N.W.2d 483, 487 (Minn. Ct.
App. 2001) (stating that where the plain language of a statute is unambiguous, that
language is conclusive).
The Kaplans also argue that Mayo agreed to an extension of the 180-day filing
deadline by failing to raise the issue during the Magistrate Judges Rule 26 scheduling
conference. Under Minnesota Statute 145.682, subdivision 4(b), the parties or the
court for good cause shown, may by agreement, provide for extensions of the time limit
under subdivision 2. The Magistrate Judges scheduling order dated December 21, 2007,
required the parties to make full disclosure of the substance of expert testimony by July 1,
2008. The Kaplans contend that Mayos failure to object to the July 1, 2008 deadline was
- 8 -
an implicit agreement to an extension of the 180-day filing deadline. However, there is
no evidence supporting the Kaplans contention that Mayo agreed to an extension by
failing to object to the scheduling order. Instead, the record shows that Mayo served on
the Kaplans a demand for expert affidavits as required under 145.682, subd. 2, and have
contested the adequacy of the Kaplans affidavit filings throughout this action. As such,
the Court concludes that there is insufficient evidence in the record showing that Mayo
agreed to an extension of the 180-day filing requirement.
In sum, the Court concludes that application of the plain language of 145.682
mandates dismissal of the Kaplans medical malpractice claim, unless the Kaplans can
demonstrate some basis for excusing their noncompliance. The Court now turns to that
B. Expert Testimony and Excusable Neglect
A plaintiff in a medical malpractice action may escape dismissal for
noncompliance with 145.682 in one of two ways. Bellecourt, 784 F. Supp. at 636.
First, a plaintiff need not submit the required expert affidavits if liability may be
established without expert testimony. Id. Second, the Court may extend the time for
filing and serving the affidavits upon a showing of excusable neglect. Id.
The Kaplans first argue that no expert testimony is required for their medical
malpractice claim, or for their remaining state law claims, and that their failure to file the
second expert affidavit is therefore excused on this basis. The Court disagrees.
Minnesota courts hold that [e]xpert testimony is not necessary where the facts to be
determined are within the common knowledge of the jury and where the results of
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surgical or medical treatment, viewed in the light of all the circumstances, provide a
sufficient evidentiary basis to support an inference of negligence. Id. However, if it
would be speculative for the factfinder to decide the issue of negligence without having
the benefit of expert testimony on the standard of care, the expert testimony is
necessary. Atwater Creamery Co. v. W. Natl Mut. Ins. Co., 366 N.W.2d 271, 279
(Minn. 1985). Expert testimony is generally required to prove a prima facie case of
medical malpractice, and is particularly necessary in cases involving a failure to
diagnose. Bellecourt, 784 F. Supp. at 636. Here, the Kaplans malpractice claim is
based on Mayos failure to properly diagnose his cancer, and will require a showing that
Mayos examination and interpretation of microscopic pathology slides, and their
subsequent diagnosis of pancreatic cancer based on those slides, fell below the
appropriate medical standard of care. The Court finds that these issues are beyond the
common knowledge of a jury and therefore require expert testimony at trial. See, e.g.,
Todd v. Eitel Hosp., 237 N.W.2d 357, 361 (Minn. 1975) (Where, as here, the conduct of
the physician involves the complexities of pathological diagnosis, we are not persuaded
that nonmedically-trained jurors are competent to pass judgment.).
The Court also finds that the Kaplans remaining state law claims are derivative of
the medical malpractice claim and, therefore, similarly require expert testimony as to
Mayos alleged negligence. The Kaplans allege that Mayos failure to perform its own
biopsy and otherwise properly diagnose Kaplan was a breach of contract and resulted in
the Kaplans loss of consortium. As such, these claims are contingent on a finding of
medical malpractice. Further, the Court agrees with Mayo that the Kaplans lack of
- 10 -
informed consent claim is effectively a negligent non-disclosure claim, and not a
medical battery claim. Indeed, there appears to be no dispute as to whether Kaplan in
fact consented to the Whipple procedure at Mayo. Kaplan alleges instead that Mayo
failed to properly disclose the risk that, despite Kaplans diagnosis, Kaplan might not in
fact have cancer, and that the Whipple procedure might turn out to have been
unnecessary. The Court finds that these allegations state a claim for negligent nondisclosure.
See Kohoutek v. Hafner, 383 N.W.2d 295, 300 (Minn. 1986) (finding
plaintiffs claim that she had not been properly informed of the risks of a vaginal birth
was a claim for negligent non-disclosure, and not battery, since the plaintiff had in fact
consented to the birth procedure). Under Minnesota law, expert testimony is necessary
for a negligent non-disclosure claim to establish those risks similarly skilled
practitioners under similar circumstances would disclose. Adolphson v. United States,
545 F. Supp. 2d 925, 930 (D. Minn. 2008). As such, the Court concludes that expert
testimony is required for each of the Kaplans state law claims, and that the Kaplans
failure to file the second required expert affidavit is therefore not excused as to these
The Kaplans next contend that their failure to properly file the second required
affidavit within 180 days was due to excusable neglect, and that the Court should
extend the time to file the affidavit and consider the Shmookler affidavit served by the
Kaplans on May 30, 2008 as satisfying the second affidavit requirement. To make a
showing of excusable neglect, a plaintiff must demonstrate (1) a reasonable case on the
merits, (2) a reasonable excuse for the failure to meet the statutory time limits, (3) that he
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has proceeded with due diligence after notice of the statutory time limits, and (4) that no
substantial prejudice will result to the defendant from the extension of time. Rengachary,
608 N.W.2d at 850. The Courts determination as to whether a plaintiff has shown
excusable neglect is discretionary. See Parker v. OPhelan, 414 N.W.2d 534, 537 (Minn.
Ct. App. 1987). In making this determination, the Court is mindful of the clear judicial
preference that medical malpractice claims be decided on their merits, rather than on a
technical or procedural basis. See Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d
188, 192 (Minn. 1990).
The Court finds that the first, third, and fourth factors weigh strongly in favor of a
finding of excusable neglect. Based on the Courts review of the affidavits filed in this
action, as well as the history of the Missouri litigation which has produced a partial
settlement and is proceeding to trial the Kaplans have demonstrated a reasonable case
on the merits. Cf. Bellecourt, 784 F. Supp. at 639 (finding no reasonable case on the
merits where affidavits provided insufficient allegations of causation or damages). The
Court further finds that the Kaplans proceeded with due diligence after they were given
notice of the statutory time limits. A short time after Mayo served its demand for expert
affidavits, the Kaplans filed and served an affidavit of expert review that specifically
referenced 145.682. (Docket No. 10.) While this affidavit did not meet the
requirements of the second affidavit of expert review under 145.682, subd. 2, the
Kaplans were acting pro se at the time, and their response suggests both confusion as to
the statutory requirements and a good faith attempt to comply with Mayos request.
Shortly after Mayo filed its motion for summary judgment, again referencing the affidavit
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requirements under 145.682, the Kaplans, now acting through counsel, filed an expert
affidavit that was signed by the Kaplans medical expert, Dr. Shmookler, and that
describes the alleged negligence and its relationship to Kaplans injury, summarizes the
grounds for the experts opinion, and otherwise meets the expert affidavit requirements
set forth under 145.682, subdivision 4(a). (Schmookler Aff. Ex. 6.) In these
circumstances, the Court finds that the Kaplans have acted with sufficient due diligence
upon receiving notice of the time limits under 145.682.
With respect to the fourth factor, the Court finds that Mayo will not suffer
substantial prejudice from extending the time limit for the Kaplans affidavit of expert
review. In examining the prejudice to the defendant, courts generally consider the
amount of time between the alleged negligence and the filing of the malpractice action.
See, e.g., Bellecourt, 784 F. Supp. at 640 (finding substantial prejudice where plaintiff
filed expert affidavit eleven months after expiration of the 180-day deadline and three
and one-half years after the alleged malpractice). [A]s time passes, it becomes
increasingly difficult for a party to marshal evidence in defense of a claim. Lewis ex rel.
Lewis v. North Mem. Med. Ctr., No. C4-02-429, 2002 WL 31303137, at *3 (Minn. Ct.
App. Oct. 10, 2002) (unpublished). Here, however, Mayo has been involved in
defending Kaplans malpractice claim since 2005, when the Kaplans commenced the
malpractice action in Missouri. Mayo was actively involved in the Missouri litigation
until January 2007, when the Missouri court dismissed the Kaplans claims against the
Minnesota defendants, without prejudice, for lack of personal jurisdiction. The Kaplans
then filed this action in August 2007. Because Mayo has been aware of the Kaplans
- 13 -
malpractice claims since at least 2005, and has engaged in extensive pre-trial litigation in
defense of those claims in another forum, the Court finds no substantial prejudice from
extending the 180-day time limit for the second expert affidavit under 145.682.
Finally, the Court considers whether the Kaplans have a reasonable excuse for
their failure to file the second required affidavit under 145.682. As noted above, the
Kaplans filed this action pro se after the Missouri court dismissed their claims without
prejudice for lack of personal jurisdiction, but before they retained counsel in this matter.
The record shows that the Kaplans attempted to file the required experts affidavit along
with their complaint on August 6, 2007. When served with Mayos demand for expert
affidavits pursuant to 145.682, the Kaplans promptly filed a new expert affidavit that
referenced the Minnesota statute but ultimately failed to meet the requirements of the
second affidavit under 145.682, subdivision 2. The fact that the Kaplans already had
affidavits available from Dr. Shmookler in the Missouri action, and were acting without
the benefit of counsel in the Minnesota action, suggests that the Kaplans were confused
about the affidavit requirements under Minnesota statute, and made a good faith effort to
understand and comply with those requirements. See OPhelan, 414 N.W.2d at 538
(finding that a plaintiffs confusion as to the filing requirements resulting from plaintiffs
case being handled by multiple attorneys supported a finding of reasonable excuse).
Indeed, the Kaplans counsel stated at oral argument that he had been assured by his
client that the requisite affidavits had been filed. While a more diligent review of the
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case file would likely have revealed the deficiency in the expert affidavits,2 Minnesota
courts have counseled against dismissal on procedural grounds where the plaintiffs
attorney bears responsibility for the procedural error. See Bielke v. Fairview-Univ. Med.
Ctr., No. A03-4, 2003 WL 22234892, at *6 (Minn. Ct. App. Sept. 30, 2003)
(unpublished). Thus, while this presents a slightly closer issue, the Court finds that the
overlapping cases in Missouri and Minnesota, the Kaplans obvious confusion as to the
statutory requirements under Minnesota law, and the Kaplans pro se status provide a
reasonable excuse for failing to file the expert affidavit within 180 days of commencing
this action.
In sum, the Court finds that the Kaplans have satisfied the four factors required to
show reasonable neglect. Accordingly, the Court concludes that the Kaplans expert
affidavit dated May 30, 2008, satisfies the second affidavit requirement under Minnesota
Statute section 145.682, subdivisions 2 and 4. However, the Court also notes that the
expert affidavit opines on medical negligence only with respect to Kaplans medical
diagnosis, and does not set forth the issues of malpractice or causation, or a summary of
the grounds of the experts opinion, with respect to the surgical procedure performed on
Kaplan. As such, the Court finds that the May 30, 2008 expert affidavit fails to set forth
sufficient information under 145.682, subdivision 4, with respect to Kaplans
negligence claim against Dr. Nagorney, the Mayo surgeon. Accordingly, the Court
2 The Kaplans retained counsel on December 17, 2007, over four months after they
commenced this litigation in August 2007. Thus, plaintiffs counsel still had approximately two
months after he was retained in which to timely file the second affidavit pursuant to 145.682,
subdivision 2.
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grants Mayos motion for summary judgment as it relates to the Kaplans claims against
Dr. Nagorney. The motion is denied in all other respects.
Based on the foregoing, all the records, files, and proceedings herein, IT IS
HEREBY ORDERED that defendants motion for summary judgment [Docket No. 20]
is GRANTED in part and DENIED in part, as follows:
1. Defendants motion is GRANTED with respect to defendant Dr. David
Nagorney. Plaintiffs claims against Dr. Nagorney are DISMISSED with prejudice.
2. Defendants motion is DENIED in all other respects.
DATED: October 27, 2008 ____s/ ____
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge


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