MN Legal Malpractice Law Notes

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Minnesota Legal Malpractice law is like a lot of other states. Here are excerpts.

Standard of Admission of Expert Testimony on Professional Malpractice.

In Minnesota an expert's opinion is admissible at trial if the witness has both sufficient knowledge in the field and and also some practical experience with the subject matter of the proposed testimony. Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn. 1977); see also Minn. R. Evid. 702 (requiring evidence of expertise before a witness may be qualified as an expert).

The expert [on professional standards] must have had basic education and professional training as a general foundation for his testimony, but it is a practical knowledge of what is usually and customarily done by [persons in the profession involved] physicians under circumstances similar to those which confronted the [professional person] charged with malpractice that is of controlling importance in determining competency [of the testifying expert]. Cornfeldt, 262 N.W.2d at 692-693

Rejection of Daubert in favor of Existing Frye/Mack standard in Minnesota

Lawrence C. Goeb, et al., petitioners, Appellants, vs. Timothy Tharaldson, d/b/a Duluth ...http://www.lawlibrary.state.mn.us/archive/supct/0008/cx982275.htm stated, in part:

Having reviewed the cases and the commentary surrounding this issue, we reaffirm our adherence to the Frye-Mack standard and reject Daubert. Therefore, when novel scientific evidence is offered, the district court must determine whether it is generally accepted in the relevant scientific community. See Moore, 458 N.W.2d at 97-98; Schwartz, 447 N.W.2d at 424-26. In addition, the particular scientific evidence in each case must be shown to have foundational reliability. See Moore, 458 N.W.2d at 98; Schwartz, 447 N.W.2d at 426-28. Foundational reliability A requires the `proponent of a * * * test [to] establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability.'@ Moore, 458 N.W.2d at 98 (alteration in original) (quoting State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977)). Finally, as with all testimony by experts, the evidence must satisfy the requirements of Minn. R. Evid. 402 and 702C be relevant, be given by a witness qualified as an expert, and be helpful to the trier of fact. See State v. Nystrom, 596 N.W.2d 256, 259 (Minn. 1999).

Having concluded that Frye-Mack remains the standard for admissibility in Minnesota, we now consider the district court's decision to exclude appellants' expert witnesses. The district court determined that appellants' experts' methodologies are not generally accepted and not reliable, and thus do not satisfy either prong of the Frye-Mack standard. The standard of review of admissibility determinations under Frye-Mack is two-pronged. Whether a particular principle or technique satisfies the first prong, general acceptance in the relevant scientific field, is a question of law that we review de novo. See Fenney, 448 N.W.2d at 58. District court determinations under the second prong, foundational reliability, are reviewed under an abuse of discretion standard, as are determinations of expert witness qualifications and helpfulness. See Moore, 458 N.W.2d at 96, 98.

Legal Malpractice, How to Prove, Standard

To prevail in a legal malpractice action, a plaintiff must demonstrate (1) the existence of an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts proximately caused plaintiff's damages; and (4) that, but for the alleged legal malpractice, plaintiff would have been successful in the underlying action. Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 281 (Minn. 1983). Failure to prove any one element defeats a malpractice claim. Id. at 282; see also Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 408 (Minn. 1994).

To Determine whether Additional Work would have changed Judge's Decision, the question is what a reasonable judge would have decided, not what the particular judge would have decided.

Thomas Bowe, Appellant, vs. Helen A. Dovolis, d/b/a Dovolis & Associates, Respondent. C6-96 ... http://www.lawlibrary.state.mn.us/archive/ctapun/9707/2205.htm

Bowe contends that by excluding Judge Peterson's memorandum, the district court excluded the only piece of evidence that would have allowed a finding of what Judge Peterson would have found or ordered but for Dovolis's negligence in presenting his workers' compensation case before Judge Peterson.

Bowe's argument is at odds with the standard applied in legal malpractice claims, which is an objective one. It is not what the particular judge presiding over the original case could or would have found if additional evidence were presented, but instead, what a reasonable judge or trier-of-fact would have concluded if the additional evidence had been presented. See Helmbrecht v. St. Paul Ins. Co., 362 N.W.2d 118, 125 (Wis. 1985) (holding that in legal malpractice case, jury did not have to decide what the trial court judge in the case would have done, but what a reasonable judge would have done if the case were properly presented). The exception set forth in Rule 803(3) does not allow the admission of the declarant's statement as to why the declarant held a particular state of mind, or what the declarant believed caused the state of mind. See Hase v. American Guar. & Liab. Ins. Co., 312 Minn. 271, 276, 251 N.W.2d 638, 642 (1977) (holding that state-of-mind exceptions to hearsay rule do not embrace statements made to explain the cause of the mental or emotional condition). Bowe simply wants to introduce Judge Peterson's memorandum as evidence that if certain changes had been made in the presentation of Bowe's claim, Judge Peterson's decision would have been different. We do not find error in the trial court's discretionary decision not to admit the evidence. The district court had before it the evidence Bowe claims Dovolis should have presented to Judge Peterson, including expert testimony on the appropriate standard of care. After reviewing this evidence, the district court noted that it was not persuaded that if presented, it would have caused Judge Peterson to find differently on the issue of the causation of Bowe's injuries.

Given the discretion afforded district courts in evidentiary matters, we cannot say the court abused its discretion in excluding Judge Peterson's memorandum. The standard applied in legal malpractice claims is objective, and it is immaterial what Judge Peterson would have found or ruled had the case been presented differently by Dovolis.

Resist Summary Judgment with Affidavits and Depositions
--- Not only with an Expert's Report!

Marilyn J. Hellman, et al., vs. Samuel Hertogs, et al., and Richard I. Diamond, et al., www.lawlibrary.state.mn.us/archive/ctapun/9801/1467.htm

To establish that an attorney acted negligently, the plaintiff must show the applicable standard of care and that the attorney did not meet that standard. Prawer v. Essling, 282 N.W.2d 493, 495 (Minn. 1979). Parties who oppose summary judgment motions in legal malpractice cases must present expert testimony establishing that standard of care and that the standard was breached. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 116 (Minn. 1992); Spannaus v. Larkin, Hoffman, Daly & Lindgren, 368 N.W.2d 395, 399 (Minn. App. 1985), review denied (Minn. Aug. 20, 1985).

Appellants argue that they presented expert testimony that established both the standard of care and that respondents were not in compliance with that standard. Respondents contend that the testimony presented by appellants in response to the summary judgment motion was inadmissible because it was not in proper form.

The record shows that respondents moved for summary judgment in February 1997. In response, appellants provided the court with a "Submission" in opposition to respondents' motions for summary judgment. Attached to the "Submission" was a 2-volume, 655-page appendix that included undated, unsigned documents entitled "Anticipated Testimony of Faith Ohman" and "Anticipated Testimony of Howard Bard, Esq.," and letters from experts Thomas M. Conlin and Jerry G. Dygert. According to appellants, these are the documents and reports by which appellants established respondents' negligence.

. . . . In their response to respondents' proposed findings, appellants advised the court:

The plaintiffs' experts have all been deposed by the defendants' lawyers and have fully supported under oath the unsworn reports contained in the appendix to Plaintiffs' Submission in Opposition to the Motions for Summary Judgment. Therefore, the assertion that the plaintiffs have not submitted expert testimony opposing the motions is not accurate.

Although appellants provided excerpts from these depositions, they did not submit the depositions nor did they submit any expert affidavits with their response. The district court granted respondents' motions for summary judgment by order dated May 28, 1997. On June 3, 1997, appellants moved for reconsideration. Included in the materials submitted with the motion for reconsideration were the depositions of appellants' four expert witnesses.

According to Minn. R. Civ. P. 56.03, summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law. On a motion for summary judgment, a court must disregard materials that would not be admissible at trial. Murphy v. Country House, Inc., 307 Minn. 344, 349, 240 N.W.2d 507, 511 (1976). Further, this court has held that expert reports may not be considered in opposing a summary judgment motion if they are not submitted in proper affidavit form. Kay v. Fairview Riverside Hosp., 531 N.W.2d 517, 520 (Minn. App. 1995), review denied (Minn. July 20, 1995); see also Itasca County Soc. Servs. v. Milatovich, 381 N.W.2d 497, 498 (Minn. App. 1986) (trial court erred in granting summary judgment based on report not in evidence or affidavit form). Because the expert reports presented by appellants in response to the motion for summary judgment were not in proper affidavit form, the district court was correct in not considering them. Without the expert letters, the record shows that there was no evidence before the court establishing the standard of care and that respondents had failed to meet that standard.

Appellants contend on appeal that there is "abundant evidence of negligence that precludes summary judgment." Appellants then go on to excerpt from "the extensive and detailed deposition testimony" given by their experts. The deposition testimony, presented to the district court as part of appellants' motion to reconsider, came to the court too late. After a district court has made its order granting summary judgment, "the record does not remain open for the submission of new evidence." Midway Nat'l Bank v. Bollmeier, 462 N.W.2d 401, 404 (Minn. App. 1990), aff'd, 474 N.W.2d 335 (Minn. 1991).