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Ayling v. Sens

Supreme Court of North Dakota

April 25, 2019

Robin E. Ayling, individually and as parent of Blake Christopher Ayling, deceased, Plaintiff and Appellant
v.
Mary Ann Sens, M.D., Ph.D., individually, as Grand Forks County Coroner (public official); as North Dakota State Forensic Examiner Pathologist Designee (public official); and as Co-Director of the University of North Dakota School of Medicine and Health Sciences Forensic Pathology Practice Facility, Defendant and Appellee and University of North Dakota, a public University of the North Dakota University System, Dr. Mark Koponen, individually and as Co-Director of the University of North Dakota School of Medicine and Health Sciences Forensic Pathology Practice Facility, and Dr. Joshua Wynn individually and in his official capacity as Dean of the University of North Dakota School of Medicine and Health Sciences including the Forensic Pathology Practice Facility, Defendants and Appellees and Grand Forks County, as a political subdivision and its States Attorney David Jones in his official capacity and individually, and its Commissioners in their official capacity as a Board and individually, specifically Gary Malm, David Engen, Tom Falck, Diane Knauf, and Cynthia Pic, Defendants and Appellees and Dr. William Massella, individually and in his official capacity as North Dakota State Forensic Examiner, Defendant and Appellee

          Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Steven E. McCullough, Judge.

          Robin E. Ayling, self-represented, Champlin, Minnesota, plaintiff and appellant.

          Matt A. Paulson (argued) and Randall S. Hanson (on brief), Special Assistant Attorneys General, Grand Forks, North Dakota, for defendants and appellees Mary Ann Sens, M.D., Ph.D., Dr. Mark Koponen, Dr. Joshua Wynn, and Dr. William Massella.

          Joseph E. Quinn (argued) and Daniel L. Gaustad (on brief), Grand Forks, North Dakota, for defendants and appellees Grand Forks County, State's Attorney David Jones, and County Commissioners Gary Malm, David Engen, Tom Falck, Diane Knauf, and Cynthia Pic.

          OPINION

          Tufte, Justice.

         [¶1] Robin Ayling appeals from a judgment dismissing her claims against Mary Ann Sens, M.D., UND School of Medicine employees, and the Grand Forks County State's Attorney and Board of Commissioners relating to her son's death. Ayling also appeals from an order denying her motion to reconsider. The district court concluded Ayling's claims against the Defendants were untimely. We affirm.

         I

         [¶2] Ayling's son, Blake Ayling, was a student at UND. He was last seen alive at an on-campus party at approximately 1:30 a.m. on March 24, 2012. He was found dead in the rail yard south of UND's campus at approximately 6:30 a.m. to 7:00 a.m. on March 24, 2012. Dr. Sens performed the autopsy on the same day. She determined Blake Ayling was intoxicated, he had a 0.278 blood-alcohol concentration at the time of death, he died from blood loss, and his death was accidental.

         [¶3] After learning of the autopsy results, Ayling questioned the blood-alcohol concentration because Blake Ayling reportedly did not show signs of intoxication at the party or before the party. Ayling met with Dr. Sens in April 2013, and Sens explained the autopsy report and defended her conclusions. [¶4] On December 27, 2013, Ayling spoke with a forensic toxicologist who questioned Dr. Sens' methods in performing the autopsy. The toxicologist believed Blake Ayling's urine and vitreous humor should have been tested for alcohol to corroborate the blood test.

         [¶5] Ayling sued Dr. Sens, UND School of Medicine employees, and Grand Forks County employees in February 2017, alleging Sens failed to competently perform a medical autopsy as a part of the investigation of Blake Ayling's death. Ayling alleged the other Defendants failed to properly supervise Dr. Sens. After serving and filing her complaint, Ayling requested numerous documents from the Defendants through discovery. The Defendants moved to quash or stay the discovery, arguing that dispositive motions would be filed. The district court stayed discovery, recognizing "that judicial economy will be best served by staying all discovery pending the outcome of the Defendants' dispositive Motions."

         [¶6] The Defendants brought motions to dismiss and for summary judgment, requesting dismissal of Ayling's complaint under several legal theories, including failure to bring her lawsuit within the three-year statute of limitations. In January 2018 the district court issued an order granting the Defendants' motions for summary judgment because Ayling sued more than three years after she discovered she had a possible claim against the Defendants. The court concluded Ayling discovered she had a possible claim no later than December 2013 when she spoke with the toxicologist who indicated Dr. Sens' autopsy of Blake Ayling may have been below the standard of care. The court entered a judgment dismissing Ayling's complaint.

         [¶7] Following entry of the judgment, Ayling filed a "motion to reconsider and/or vacate pursuant to N.D.R.Civ.P. 59(j) and Rule 60(b)" relating to the district court's January 2018 order granting the Defendants' motions for summary judgment. The district court denied the motion.

         II

         [¶8] Ayling argues the district court erred in granting the Defendants' motions for summary ...


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