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Greene v. Matthys

Supreme Court of North Dakota

April 25, 2017

Mechele M. Greene, Plaintiff and Appellant
v.
Gary A. Matthys, M.D., d/b/a Matthys Orthopaedic Center, Defendant and Appellee

         Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wade L. Webb, Judge.

          Kerry S. Rosenquist (appeared) & Lawrence E. King (argued), 301 N. Third St., Ste. 300, Grand Forks, ND 58203, for plaintiff and appellant.

          Michael C. Waller (argued), P.O. Box 2798, Bismarck, ND 58502-2798, for defendant and appellee.

          McEvers, Justice.

         [¶ 1] Mechele Greene appeals a district court's judgment dismissing her claim without prejudice for failure to serve an affidavit from an expert witness on Gary Matthys, M.D., within three months of commencing the action under N.D.C.C. § 28-01-46. We conclude, as to the use of the term "affidavit, " N.D.C.C. § 28-01-46 is clear on its face; the statute required Greene to serve Matthys with an affidavit from an expert; and Greene has not met the requirements of N.D.C.C. § 28-01-46 as a matter of law. Therefore, we affirm the district court's judgment dismissing Greene's claim against Matthys.

         I

         [¶ 2] On November 27, 2013, Matthys performed a revision left total hip arthroplasty involving the femoral component, femoral head, and acetabular liner. On November 24, 2015, Greene commenced this medical negligence action in the Northeast Central Judicial District by serving a summons and complaint on Matthys. Matthys answered, denying that either he or any of his employees were the "proximate or legal cause of any alleged injury, loss or damage claimed by Plaintiff." Greene's attorney disclosed the existence of an expert witness willing to testify on Greene's behalf in a letter to Matthys's attorney on January 25, 2016.

         [¶ 3] The complaint was filed December 28, 2015, in Northeast Central Judicial District Court, Grand Forks County. On February 19, 2016, the parties stipulated and moved that venue should be changed to the East Central Judicial District Court, Cass County, because N.D.C.C. § 28-04-05 requires the action be brought in the county where the defendant resides at the time the action is commenced. The Northeast Central Judicial District Court granted the motion, and the case was transferred to the East Central Judicial District Court on February 22, 2016.

         [¶ 4] On March 18, 2016, Matthys moved to dismiss Greene's claim under N.D.C.C. § 28-01-46, arguing Greene failed to provide an affidavit from an expert witness within three months of commencing this action. Greene opposed the motion, arguing several theories: the purpose of N.D.C.C. § 28-01-46 was to screen frivolous cases and her case was not frivolous because she found an expert to testify on her behalf; the intent of N.D.C.C. § 28-01-46 is not to eliminate potentially meritorious cases by a "hard and invariable application" of the statute; an expert affidavit was not required because the negligence was an "obvious occurrence;" N.D.C.C. § 28-01-46 is an affirmative defense, and Matthys waived this defense by not pleading it in his answer; N.D.C.C. § 28-01-46 did not apply because the parties entered into a scheduling order changing the deadline for disclosing expert witnesses intended to be called at trial; and Matthys was estopped from asserting the three-month deadline based on his conduct leading up to the deadline. After a May 31, 2016, hearing, the district court granted Matthys's motion to dismiss ruling the "mandate of [N.D.C.C. § 28-01-46] is clear -- it requires the plaintiff to serve 'an affidavit containing an admissible expert opinion, '" Greene did not provide Matthys with an expert affidavit as required under N.D.C.C. § 28-01-46, the injury Greene suffered as a result of Matthys's alleged negligence did not fall under the "obvious occurrence" exception under N.D.C.C. § 28-01-46, and the parties were not bound by the scheduling order because their discussions only applied to experts to be called at trial, not for the requirements under N.D.C.C. § 28-01-46. Greene appeals.

         II

         [¶ 5] Within three months of commencing a medical negligence action, the plaintiff must "serve[] upon the defendant an affidavit containing an admissible expert opinion to support a prima facia case of professional negligence...." N.D.C.C. § 28-01-46. Greene acknowledges she did not serve an affidavit on Matthys within three months of commencing the action but contends she complied with the intent of N.D.C.C. § 28-01-46 by producing an expert opinion in her lawyer's letter to Matthys's lawyer. Greene argues the district court erred by strictly construing N.D.C.C. § 28-01-46 to require a plaintiff to serve an affidavit from an expert on a defendant in a claim of medical negligence.

         [¶ 6] Section 28-01-46, N.D.C.C., requires a district court to dismiss an action without prejudice when a plaintiff fails to meet the requirements of this statute. "[A] dismissal without prejudice is ordinarily not appealable." Scheer v. Altru Health System, 2007 ND 104, ¶ 9, 734 N.W.2d 778 (citations omitted) (quotation marks omitted). "'However, a dismissal without prejudice may be final and appealable if the plaintiff cannot cure the defect that led to dismissal, or if the dismissal has the practical effect of terminating the litigation in the plaintiff's chosen forum.'" Id. (quoting Rodenburg v. Fargo-Moorhead Y.M.C.A., 2001 ND 139, ¶ 12, 632 N.W.2d 407).

         [¶ 7] Here, even though the district court dismissed Greene's claim without prejudice, the statute of limitations has expired on her claim. Therefore, the dismissal effectively forecloses further litigation of Greene's claims in this state, and the district court's order and judgment dismissing Greene's claim without prejudice is appealable. Se ...


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