Mechele M. Greene, Plaintiff and Appellant
Gary A. Matthys, M.D., d/b/a Matthys Orthopaedic Center, Defendant and Appellee
from the District Court of Cass County, East Central Judicial
District, the Honorable Wade L. Webb, Judge.
S. Rosenquist (appeared) & Lawrence E. King (argued), 301
N. Third St., Ste. 300, Grand Forks, ND 58203, for plaintiff
Michael C. Waller (argued), P.O. Box 2798, Bismarck, ND
58502-2798, for defendant and appellee.
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.
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.
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 ...