Timothy Guzick, as Personal Representative of the Estate of George J. Nyberg and as Trustee of the George Nyberg Trust v. Larry Alan Kimball, Colleen Bennett

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0429

Timothy Guzick, as Personal Representative of
the Estate of George J. Nyberg and as Trustee of
the George Nyberg Trust,
Appellant,

vs.

Larry Alan Kimball, et al.,
Respondents,

Colleen Bennett,
Defendant.

Filed October 6, 2014
Reversed and remanded
Connolly, Judge
Dissenting, Johnson, Judge

Cass County District Court
File No. 11-CV-13-689

Lori J. Beck, Steven R. Peloquin, Peloquin Beck, P.A., Perham, Minnesota; and

Michael T. Feichtinger, Cally R. Kjellberg-Nelson, Quinlivan & Hughes, P.A., St. Cloud,
Minnesota (for appellants)

Nicholas Ostapenko, Roy J. Christensen, Michele Miller, Johnson, Killen & Seiler,
P.A., Duluth, Minnesota (for respondents)

Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and

Hooten, Judge.
 UNPUBLISHED OPINION

CONNOLLY, Judge

Appellant challenges the district court’s grant of summary judgment dismissing

his legal-malpractice claim for failure to comply with the expert-disclosure requirements

of Minn. Stat. § 544.42 (2012). Because appellant submitted an affidavit and subsequent

interrogatory answers sufficient to satisfy the statute, we reverse and remand.

FACTS

In December 2008, Tony Nyberg contacted Colleen Bennett, who was an

acquaintance of Tony and a legal secretary working at attorney Larry Alan Kimball’s law

firm. Tony was seeking assistance to become attorney-in-fact for his mother, Geraldine

Nyberg, and his elderly uncle, George Nyberg. At that time, George was 94 years old

and recovering from a recent fall that fractured his neck. Using a template on the law

firm’s computer, Bennett drafted power-of-attorney forms for Geraldine and George

naming Tony as their attorney-in-fact. The default setting for the form template, which

Bennett did not alter, authorized the attorney-in-fact to transfer to himself title of the

principal’s property. This is the broadest possible authorization a principal may provide

the attorney-in-fact. Bennett placed the forms in a file she created at the law firm and

provided Tony with copies of the forms. Using the law firm’s paper calendar, Bennett

scheduled a phone call for Kimball to discuss George’s power-of-attorney form and also

scheduled an in-home appointment to deliver and execute the forms.

On December 11, 2008, Kimball met with Geraldine, Tony, and Tony’s wife at his

office where they discussed Geraldine’s estate planning. Geraldine mentioned that

2
George was also interested in executing a power-of-attorney form, but the meeting was

focused primarily on Geraldine. At the end of that same day, Bennett took the forms

from the office and met with Geraldine and George at Geraldine’s home. George signed

the power-of-attorney form created by Bennett, and Bennett notarized the form. Bennett

did not ask George whether he understood the power-of-attorney form or whether it was

tailored to meet his needs. Bennett was not sure whether the scheduled phone call

regarding George’s power-of-attorney form had occurred and did not recall asking

Kimball about the forms before she left. Kimball did not recall reviewing George’s

power-of-attorney form, asking Bennett to draft the form, or talking to George at any

point. Kimball Law Office generated a bill for George and Geraldine that same day. The

bill was paid in July 2009.

Prior to and after George’s death on January 7, 2009, Tony used the power of

attorney to transfer $226,524.39 from George’s bank accounts to his personal accounts.

In December 2009, appellant Timothy Guzick, acting as personal representative of

George’s estate and trustee of George’s trust, sued Tony for conversion of George’s

funds. The case was stayed when Tony filed for bankruptcy, but appellant was able to

secure a nondischargeable judgment in the amount of $226,524.39 against Tony. In

January 2012, appellant also sued Wells Fargo for breach of contract, breach of statutory

duties, and negligence. Appellant’s case against Wells Fargo was dismissed with

prejudice in December 2012.

In February 2013, appellant initiated the current lawsuit against Kimball and

Kimball Law Office, alleging legal malpractice for failing to advise George on the scope

3
of authorization provided by the power-of-attorney form. Appellant served an affidavit

of expert review with the complaint, outlining an expert’s opinion that Kimball’s actions

constituted legal malpractice. In May 2013, appellant amended the complaint to assert a

claim of negligence against Bennett and to assert additional legal-malpractice claims

against Bennett and Kimball and Undem (an alleged precursor to Kimball Law Office).

In September 2013, Kimball, Kimball Law Office, and Kimball and Undem

(respondents) moved for summary judgment on the ground that appellant failed to

comply with section 544.42, which requires certain pretrial expert-witness disclosures in

a professional-malpractice case requiring expert testimony. In January 2014, the district

court granted the motion. The district court reasoned that expert testimony is necessary

to establish appellant’s legal-malpractice claim, that appellant’s expert disclosures were

insufficient to comply with section 544.42, and that appellant was not entitled to cure

deficiencies in his expert disclosures under the safe-harbor provision in section 544.42.

This appeal follows.

DECISION

A district court shall grant summary judgment “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.” Minn. R. Civ. P. 56.03. “On appeal from summary

judgment, we must review the record to determine whether there is any genuine issue of

material fact and whether the district court erred in its application of the law.” Dahlin v.

Kroening, 796 N.W.2d 503, 504 (Minn. 2011).

4
A. Expert Testimony

We begin our analysis by quoting the late, great Tallulah Bankhead1: “There is

less in this than meets the eye.” The Yale Book of Quotations 43 (Fred R. Shapiro ed.,

2006). An attorney is asked to draft a power of attorney for his elderly client. The

document is drafted by a secretary. The lawyer never meets the client. Neither the

lawyer nor the secretary ever discusses the ramifications of signing the document with

the client. The document allows the attorney-in-fact to transfer all of the client’s assets to

himself. Days after the client signs the document, that is precisely what happens.

Appellant argues that the district court erred by concluding that expert testimony is

required to establish all of the elements of a prima facie claim of legal malpractice. We

agree.

To establish a prima facie claim of legal malpractice “not involving damage to or

loss of a cause of action,” the plaintiff must prove each of the following four elements:

“(1) the existence of an attorney-client relationship; (2) acts constituting negligence or

breach of contract; (3) that such acts were the proximate cause of the plaintiff’s damages;

and (4) that but for defendant’s conduct, the plaintiff would have been successful in the

prosecution or defense of the action.” Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly &

Lindgren, Ltd., 711 N.W.2d 811, 816, 819 (Minn. 2006).

In an action for legal malpractice in which expert testimony is required to establish

any element of a prima facie case, section 544.42 requires a plaintiff to produce certain

expert affidavits. Minn. Stat. § 544.42, subd. 2; see also Fontaine v. Steen, 759 N.W.2d

1
American stage and screen actress 1902-1968.

5
672, 676 (Minn. App. 2009). If a plaintiff fails to comply with these requirements, he

risks the dismissal of his legal-malpractice claim, with prejudice. Fontaine, 759 N.W.2d

at 676; see also Minn. Stat. § 544.42, subd. 6(a)-(c). Expert testimony generally is

required to establish the second, third, and fourth elements of a legal-malpractice claim.

Id. at 677. Only the “rare” or “exceptional” case is capable of resolution without expert

testimony. Id. But expert testimony is not necessary if “the conduct complained of can

be evaluated adequately by a jury in the absence of expert testimony.” Hill v. Okay

Constr. Co., 312 Minn. 324, 337, 252 N.W.2d 107, 116 (1977). “[W]hether expert

testimony is required depends on the nature of the question to be decided by the trier of

fact and on whether technical or specialized knowledge will assist the trier of fact.” Blatz

v. Allina Health Sys., 622 N.W.2d 376, 388 (Minn. App. 2001) (addressing expert

testimony in medical-malpractice case), review denied (Minn. May 16, 2001); see also

Minn. R. Evid. 702. This court reviews de novo whether expert testimony is necessary to

establish a prima facie case of legal malpractice. Fontaine, 759 N.W.2d at 676.

The district court concluded that expert testimony is required to prove all four

elements of appellant’s malpractice claim. Appellant does not challenge the district

court’s conclusion with respect to the second element; appellant challenges only the

district court’s conclusion with respect to the first, third, and fourth elements.

Accordingly, section 544.42 required appellant to make expert disclosures addressing, at

a minimum, the second element of a prima facie case. Appellant’s contention requires

this court to determine whether expert testimony is also required to establish the first,

6
third, or fourth elements in this case and, as a result, whether appellant was also required

to make expert disclosures concerning any of these other three elements.

1. First Element: Attorney-Client Relationship

Appellant argues that expert testimony is not required to establish the existence of

an attorney-client relationship. We agree.

To prove the existence of an attorney-client relationship, a party may rely on either

a contract theory or a tort theory. Gramling v. Mem’l Blood Ctrs. of Minn., 601 N.W.2d

457, 459 (Minn. App. 1999), review denied (Minn. Dec. 21, 1999). Appellant relies on

the contract theory. Under the contract theory, “the parties to the alleged attorney-client

relationship must have either explicitly or implicitly agreed to a contract for legal

services.” Id. In Minnesota, “[t]he existence of an attorney-client relationship is a

factual determination.” Id.

The caselaw indicates that expert testimony generally is required to establish the

standard of care and causation in a legal-malpractice case, but none of these cases

indicate that expert testimony is also required to prove the existence of an attorney-client

relationship. See, e.g., Jerry’s Enters., 711 N.W.2d at 817; Schmitz v. Rinke, Noonan,

Smoley, Deter, Colombo, Wiant, Von Korff & Hobbs, Ltd., 783 N.W.2d 733, 739 (Minn.

App. 2010), review denied (Minn. Sept. 21, 2010); Fontaine, 759 N.W.2d at 677.

Respondents do not cite any authority holding that expert testimony is required to prove

the existence of an attorney-client relationship in a legal-malpractice case, and we are

unaware of any such authority. However, our analysis is informed by a case from the

Sixth Circuit. See Innes v. Howell Corp., 76 F.3d 702 (6th Cir. 1996). There, the Sixth

7
Circuit considered whether the district court erred by excluding expert testimony on the

existence of an attorney-client relationship in a legal-malpractice case. Id. at 711. The

Sixth Circuit reasoned that, based on the contractual nature of an attorney-client

relationship,

the existence of the relationship hinges upon the fact of
mutual assent, either explicit or tacit, and not on the special
ethical rules that govern in a unique negligence regime. The
latter is a proper subject for expert opinion; the former is not.
A jury does not need an expert to tell it whether there has
been mutual assent for a contract. Indeed, it would truly be
unfortunate if specialized legal knowledge were required for
reasonable laypersons to ascertain whether they are actually
being represented by counsel.

Id. at 712 (citation omitted). We conclude that expert-witness testimony generally is not

essential to establish the existence of an attorney-client relationship in a legal-malpractice

claim.

Moreover, expert testimony in this case would not assist a jury in understanding

whether George and Kimball formed an attorney-client relationship. The facts of this

case are relatively straightforward: Bennett prepared a power-of-attorney form for

George, the form indicates it was prepared by “Kimball Law Office,” George signed the

form, and Kimball Law Office sent George a bill. Whether the two formed a contract for

legal services does not require “technical or specialized knowledge.” See Fontaine, 759

N.W.2d at 677; see also Minn. R. Evid. 702.

The district court erred by concluding that expert testimony is required to establish

the existence of an attorney-client relationship in this case.

8
 2. Third and Fourth Elements: Causation

Appellant also argues that expert testimony is not required to prove causation.

This is a more difficult question. We conclude that it is required to establish proximate

causation but that it is not required for but-for causation.

The first step to resolving this question is to determine the precise causation issues

that must be resolved in this case. In the context of legal malpractice, proximate cause is

defined as:

For negligence to be the proximate cause of an injury, it must appear that if
the act is one which the party ought, in the exercise of ordinary care, to
have anticipated was likely to result in injury to others, then he is liable for
any injury proximately resulting from it, even though he could not have
anticipated the particular injury which did happen.

Wartnick v. Moss & Barnett, 490 N.W.2d 108, 113 (Minn. 1992) (quotation omitted).

But-for causation in a legal-malpractice claim, not involving a failed cause of action,

requires proof that “but for defendant’s conduct, the plaintiff would have obtained a more

favorable result . . . than the result obtained.” Jerry’s Enters., 711 N.W.2d at 819.

Although expert testimony generally is required to prove causation in a legal-malpractice

claim, see, e.g., Fontaine, 759 N.W.2d at 677; Schmitz, 783 N.W.2d at 741, expert

testimony is not required if “the conduct complained of can be evaluated adequately by a

jury in the absence of expert testimony,” Hill, 312 Minn. at 337, 252 N.W.2d at 116.

As to proximate cause, the question in this case is whether the respondents had a

duty to explain the ramifications of signing such an unlimited power-of-attorney form to

George and whether failing to do so was the proximate cause of George’s loss. The

question seems to be whether the respondents should have anticipated that failing to

9
advise George about the breadth of the power-of-attorney form would result in the

attorney-in-fact, Tony, using his authorization to convert funds in George’s bank

accounts. To address this question, “technical or specialized knowledge” would likely

assist the trier of fact. See Fontaine, 759 N.W.2d at 677. For example, as appellant

recognizes, an expert would provide helpful testimony about the legal effect of George

signing the power-of-attorney form and the scope of authority it provided Tony.

Additionally, expert testimony would be helpful to the trier of fact in fleshing out the

foreseeability issue, namely, whether it is likely that an attorney-in-fact would use broad

authorization to misappropriate a principal’s property and, if so, whether attorneys should

be aware that an attorney-in-fact would likely abuse such a broad grant of power. Thus,

expert testimony is necessary to establish the element of proximate cause.

As to but-for causation, the question is whether, absent respondents’ alleged

negligence, a more favorable result would have been achieved during the representation

(i.e., whether Tony would not have taken George’s money). There are several sub-

questions related to this issue. The first is whether, absent the respondents’ alleged

negligence, George would have refused to sign the power-of-attorney form or would have

limited the form’s authorization. Another question is whether some other person or entity

was the but-for cause of George’s injuries, such as Tony or Wells Fargo. The answers to

these questions do not require any “technical or specialized knowledge.” See id. For

example, an expert cannot answer the question of whether George would have signed or

limited the power-of-attorney form if respondents had provided him with more

information. Nor would an expert be helpful in establishing whether Tony would have

10
found another way to misappropriate George’s funds. And expert testimony is not

necessary to establish whether Wells Fargo would have allowed Tony to obtain George’s

money without the power-of-attorney form or with a more limited power-of-attorney

form. All of these questions may be answered with lay-witness testimony. This is not a

typical legal-malpractice case in which the opinions of an expert witness would be crucial

to establish difficult but-for-causation questions, such as whether a plaintiff would have

been successful in an underlying lawsuit without the attorney’s negligence. See Jerry’s

Enters., 711 N.W.2d at 819 (describing usual but-for-causation element as requiring a

party to show they “would have been successful in the prosecution or defense of the

action”). Appellant does not need expert testimony to establish but-for causation.

In sum, expert testimony is required to establish the elements of negligence and

proximate causation but is not required to establish the elements of attorney-client

relationship and but-for causation.

B. Section 544.42

Appellant next argues that the district court erred by concluding that he failed

to file a sufficient affidavit of expert disclosure. He contends that his affidavit of

expert review and answers to interrogatories satisfy the requirements of an affidavit of

expert disclosure. We agree.

When a plaintiff pursuing a professional-malpractice claim needs expert

testimony to establish a prima facie case, section 544.42 requires the plaintiff to file

two affidavits: an affidavit of expert review and an affidavit of expert disclosure.

11
Minn. Stat. § 544.42 subds. 2-4. The first affidavit, the affidavit of expert review,

should be “served with the complaint and requires the attorney to certify that the

attorney has consulted with an expert with adequate qualifications and that the expert

has reached the opinion that the defendant deviated from the applicable standard of

care in a way that caused the plaintiff’s injuries.” Brown-Wilbert, Inc. v. Copeland

Buhl & Co., P.L.L.P., 732 N.W.2d 209, 218 (Minn. 2007); see also Minn. Stat.

§ 544.42, subds. 2(1), 3. The second affidavit, the affidavit of expert disclosure, must

be served within 180 days after the commencement of the action and provides a more

detailed account of the expected expert testimony. Brown-Wilbert, 732 N.W.2d at

218; see also Minn. Stat 544.42, subds. 2(2), 4(a). Whether appellant complied with

the requirements of the affidavit of expert disclosure is the central issue in this appeal.

The affidavit of expert disclosure has specific requirements; it

must be signed by the party’s attorney and state the identity of each
person whom the attorney expects to call as an expert witness at trial to
testify with respect to the issues of negligence, malpractice, or causation,
the substance of the facts and opinions to which the expert is expected to
testify, and a summary of the grounds for each opinion.

Minn. Stat. § 544.42 subd. 4(a). A plaintiff may also satisfy the requirements of

expert disclosure through answers to interrogatories served within 180 days of

commencing discovery. Id. Failure to comply with these requirements results in

mandatory dismissal, with prejudice, of each claim requiring expert testimony. Id.,

subd. 6(c).

12
 Section 544.42 also contains a safe-harbor provision, which entitles a plaintiff

to 60 additional days to correct “minor deficiencies” in the plaintiff’s initial affidavit

of expert disclosure. Brown-Wilbert, 732 N.W.2d at 215-16, 217; see also Minn. Stat.

§ 544.42, subd. 6(c). But a plaintiff is not entitled to the benefits of the safe harbor as

a matter of course. Brown-Wilbert, 732 N.W.2d at 219-20. To invoke the safe-harbor

provision, the plaintiff’s initial affidavit of expert disclosure must provide some

“meaningful information, beyond conclusory statements,” that

(1) identifies each person the attorney expects to call as an expert;
(2) describes the expert’s opinion on the applicable standard of care, as
recognized by the professional community; (3) explains the expert’s
opinion that the defendant departed from that standard; and
(4) summarizes the expert’s opinion that the defendant’s departure was a
direct cause of the plaintiff’s injuries.

Id. at 219. This minimal showing serves the public policy of “avoid[ing] the waste of

time and money spent on defending against frivolous actions that will ultimately be

the subject of a directed verdict.” Id. If the plaintiff’s affidavit of expert disclosure

does not satisfy the Brown-Wilbert factors, the safe-harbor provision does not apply

and the district court must dismiss the plaintiff’s case with prejudice. Id. at 215-16,

219-20; see also Minn. Stat. § 544.42, subd. 6(c). The legal sufficiency of an affidavit

of expert disclosure is a question of law we review de novo. See Schmitz, 783 N.W.2d

at 744.

13
 1. Initial Filing of Expert-Disclosure Affidavit

Respondents argue that this court should affirm the district court because

appellant failed to file any documents that could satisfy the expert-disclosure affidavit

requirements.2 We disagree.

If a plaintiff entirely fails to timely file an initial affidavit of expert disclosure

or answers to interrogatories, the case must be dismissed with prejudice; a party may

not invoke the safe-harbor provision to file a first affidavit of expert disclosure. See

Middle River-Snake River Watershed Dist. v. Dennis Drewes, Inc., 692 N.W.2d 87,

91-92 (Minn. App. 2005). Thus, if appellant failed to file documents that could

satisfy the expert-disclosure requirement, his appeal would falter at this step.

Appellant acknowledges that he did not actually file a document entitled

“affidavit of expert disclosure.” But appellant contends that the contents of his

affidavit of expert review, which he referenced in his answers to interrogatories,

satisfy the requirements for an affidavit of expert disclosure. We agree.

Even respondents concede that an affidavit of expert review could, in some

instances, satisfy the requirements of an affidavit of expert disclosure. But they

contend appellant’s “initial affidavit of expert review specifically states that it is made

only to fulfill the requirements of” an affidavit of expert review. In support of their

2
Although the district court did not address this argument in its order, respondents
raised this alternative theory in the district court, and they may assert it again on
appeal. See Day Masonry v. Indep. Sch. Dist. 347, 781 N.W.2d 321, 332 (Minn.
2010).

14
argument, respondents rely on an unpublished case of this court, Sheehan v. Suk, No.

A09-1383, 2010 WL 2035814 (Minn. App. May 25, 2010). In Sheehan, this court

concluded that a plaintiff could not rely on a single affidavit to fulfill the requirements

of both the affidavit of expert review and the affidavit of expert disclosure because

she did not “clearly indicate the affidavit’s dual purpose.” Id. at *4. This court

reasoned that “[w]ithout a requirement that the plaintiff indicate an affidavit’s dual

purpose, a plaintiff filing a single affidavit could leave the defendants uncertain

whether to exercise their statutory right to challenge inadequate affidavits.” Id.

Sheehan is unpublished and holds no precedential value. See Minn. Stat.

§ 480A.08, subd. 3 (2012). Furthermore, unlike the plaintiff in Sheehan, appellant

submitted answers to interrogatories within the 180-day period. A plaintiff may satisfy

the expert-disclosure requirements through answers to interrogatories instead of

providing a second affidavit. See Minn. Stat. § 544.42, subd. 4(a). In answer to an

interrogatory requesting that appellant identify expert witnesses expected to testify,

appellant stated, “Susan E. Johnson-Drenth, a Certified Elder Law Attorney (CELA), has

been retained as an expert by Tim Guzick. See the Affidavit of Expert Review.”

(Emphasis added). Appellant contends that his reference to the affidavit of expert review

essentially imported the document into his answer, thus allowing the district court to

consider whether the contents of that affidavit also satisfy the requirements for an

affidavit of expert disclosure.

15
 The practice used by appellant is not addressed by section 544.42 or by the

caselaw. However, Brown-Wilbert provides indirect support that such a practice is

permitted. There, the appellant argued that it had satisfied the expert-disclosure

requirements by “incorporating the . . . complaint [into] its answer to interrogatories.”

732 N.W.2d at 219. The supreme court concluded that the information in the

complaint, as incorporated by answers to interrogatories, did not provide sufficient

information to satisfy the expert-disclosure requirements. Id. However, the supreme

court did not take issue with the underlying premise that the appellant was permitted

to incorporate the complaint into its answers to interrogatories. See id.

Thus, appellant could rely on his affidavit of expert review to establish the

requirements of his affidavit of expert disclosure by incorporating it in his timely

answers to interrogatories.

2. Brown-Wilbert Factors

Appellant argues that the district court erred by concluding that his answers to

respondents’ interrogatories and affidavit of expert review did not satisfy the Brown-

Wilbert elements. We agree.

The district court concluded:

[Appellant’s] argument fails because the answers to
interrogatories and expert review affidavit consist of
restatements of the facts and broad, conclusory statements
about causation. The information provided does not satisfy
the statutory requirements. The answers and expert review
affidavit say nothing about why Kimball’s actions
constitute negligence or malpractice, and they do not set

16
 forth a causal link between Kimball’s acts or omissions and
[appellant’s] harm. [Appellant] also fails to disclose the
identity of expert witnesses to be called at trial. The expert
review affidavit and interrogatory answers state that Susan
Johnson-Drenth has been retained as an expert, but
[appellant] does not identify her or any other experts as
expected trial witnesses.
....
[Appellant’s] expert review affidavit and answers to
interrogatories do not set forth the standard of care, nor do
they present an expert opinion that Kimball’s violation of
the standard of care directly caused injury to [appellant].
The answers and affidavit recite the facts and argue that
Kimball committed malpractice, but they do not explain
how an expert used the facts to reach the conclusion that
Kimball’s acts constitute malpractice.

The district court essentially concluded that appellant failed to satisfy any of the Brown-

Wilbert elements. Appellant challenges the district court’s decision with respect to each

element.

a. Identity of Expert Witnesses

Appellant argues that the district court erred by concluding that he failed to

identify the expert witnesses he expects to call at trial. We agree.

The first Brown-Wilbert element requires the affidavit or interrogatory to

“identif[y] each person the attorney expects to call as an expert.” 732 N.W.2d at 219.

Appellant’s answer to an interrogatory clearly indicates that he intends to call Susan E.

Johnson-Drenth as an expert witness. Interrogatory number seven states: “Identify each

expert whom you expect to call at [sic] as a witness at trial.” Appellant’s answer states:

“Susan E. Johnson-Drenth . . . has been retained as an expert.” Although appellant’s

answer does not explicitly state that he intends to call Susan Johnson-Drenth as an expert

17
witness, he offered her name in response to a question asking only for information about

experts he expects to call at trial; the implication is clear. Appellant’s affidavit satisfies

the first Brown-Wilbert element.

b. Standard of Care and Breach of the Standard of Care

Appellant next argues that the district court erred by concluding that he failed to

identify the applicable standard of care and the breach of that standard of care. We agree.

The second and third Brown-Wilbert elements require the affidavit or interrogatory

to “describe[] the expert’s opinion on the applicable standard of care, as recognized by

the professional community [and to] explain[] the expert’s opinion that the defendant

departed from that standard.” Id.

Appellant’s affidavit of expert review does not actually state the applicable

standard of care as recognized by the professional community. Rather, the affidavit

states that, in Johnson-Drenth’s opinion, “Kimball breached his duty to use a

reasonable degree of professional skill and learning possessed by attorneys in a

similar practice and in like circumstances, and failed to use reasonable care, causing

damages to [appellant].” By itself, this sentence might qualify as a “conclusory

statement.” See id. But appellant’s affidavit also provides a detailed list of actions

taken by Kimball that allegedly constitute a breach of the standard of care. For

example, the list indicates that Kimball failed to supervise Bennett, failed to

implement sufficient office procedures, and failed to speak with George to assess his

competency and to ensure George understood the form. The standard of care is

18
clearly identified by these alleged breaches. Thus, appellant’s affidavit satisfies the

second and third Brown-Wilbert elements.

c. Causation

Appellant also argues that the district court erred by concluding that his affidavit

did not set forth the necessary summary of his expert’s opinion concerning causation.

We agree.

The fourth prong of the Brown-Wilbert test requires the affidavit or interrogatory

to “summarize[] the expert’s opinion that the defendant’s departure was a direct cause of

the plaintiff’s injuries.” Id. In Minnesota, the term “direct cause” is synonymous with

“proximate cause.” Curtis v. Klausler, 802 N.W.2d 790, 793 (Minn. App. 2011), review

denied (Minn. Oct. 18, 2011). Thus, the fourth Brown-Wilbert requirement appears most

concerned with the disclosure of an expert’s opinion on proximate cause, not on but-for

causation.3

Above, we concluded that expert testimony would be helpful to address at least

two facets of proximate cause in this case. First, expert testimony would help the jury

understand the scope of the power-of-attorney form. Appellant’s affidavit of expert

3
Even if the fourth prong of the Brown-Wilbert test requires disclosure of an expert’s
opinion on but-for causation, such a disclosure is unnecessary in this case because we
have already concluded that expert testimony on but-for causation is unnecessary. It
would make little sense if Brown-Wilbert required expert disclosure on an element that
requires no expert testimony. Furthermore, even if expert testimony is necessary to
establish but-for causation in this case, we would conclude that appellant’s affidavit of
expert review contains sufficient information. The affidavit indicates that the
respondents created a power-of-attorney form that authorized Tony to transfer George’s
property to himself, and that is precisely what Tony did.

19
review states, “[m]aking checkmarks on the lines on the form was how the principal gave

authority to the attorney-in-fact to do various things, such as acting for the principal in

gifting and banking transactions and transferring the property of the principal to the

attorney-in-fact.” The affidavit also states that Tony used his power-of-attorney form to

take money from George’s bank accounts. These statements illustrate the types of

powers an attorney-in-fact may hold, and the statements also put the respondents on

notice that the appellant’s expert may opine about the scope of authorization.

Second, expert testimony is required to determine whether Tony’s actions and the

damages he caused were foreseeable. Although the word “foreseeable” does not appear

in the affidavit of expert review, the affidavit adequately addresses the foreseeability of

appellant’s injuries. The affidavit states that respondents breached their duty to George

by failing to assess George’s competency, failing to determine whether George

understood the breach of the power-of-attorney form, failing to discuss risks of granting

broad powers to Tony, failing to determine whether Tony was an appropriate person to be

George’s attorney-in-fact. The affidavit then goes on to say:

The acts and omissions of [Kimball] caused damages to [appellant]
in the amount of $226,524, which is the total amount Tony Nyberg took
from accounts owned by George Nyberg, his Estate, and his Trust using the
subject Minnesota Statutory Short Form Power of Attorney that was
provided to him by [Bennett], $168,852 in attorney’s fees and $21,618 in
costs incurred in [appellant’s] lawsuits against Tony Nyberg . . . and against
Wells Fargo.

Like proximate cause, the standard of care is circumscribed by the foreseeability of the

injury suffered by a plaintiff. See Connolly v. Nicollet Hotel, 254 Minn. 373, 381, 95

N.W.2d 657, 664 (1959) (stating that the “common-law test of duty is the . . .

20
foreseeability of injury to the plaintiff”) (citing Palsgraf v. Long Island R. Co., 248 N.Y.

339, 344, 162 N.E. 99, 100 (1928)). By identifying the standard of care, the manner in

which respondents breached that standard, and the injuries suffered by appellant, the

affidavit necessarily implies that the injuries arising from the breaches were foreseeable.

Because the affidavit discloses the expert’s opinion that the injuries are foreseeable in the

context of the standard of care, the affidavit also necessarily discloses the expert’s

opinion that the injuries suffered by the appellant, or damages, are foreseeable for

purposes of proximate cause. Thus, appellant’s affidavit satisfies the fourth prong of the

Brown-Wilbert test.

In sum, we conclude that appellant’s affidavit of expert review and answers to

interrogatories are sufficient to satisfy the minimum expert-disclosure requirements

identified in Brown-Wilbert. Therefore the district court erred by granting summary

judgment to the respondents.

Reversed and remanded.

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JOHNSON, Judge (dissenting)

I respectfully dissent from the opinion of the court. Although I agree with my

colleagues in many respects, I disagree in two ways. First, this case is not one of those

rare or exceptional legal-malpractice cases in which the plaintiff should be relieved of the

requirement to introduce expert evidence to prove causation. Second, Guzick’s expert

disclosure does not satisfy the minimum disclosure requirements with respect to the issue

of causation. My disagreement on these two issues necessarily leads me to a different

result.

A.

In Jerry’s Enterprises, Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711

N.W.2d 811 (Minn. 2006), the supreme court distinguished between proximate cause and

but-for cause by separately identifying them as the third and fourth elements of a prima

facie case of legal malpractice. Id. at 816. In part A.2., the opinion of the court

concludes that Guzick must introduce expert evidence to establish proximate cause, the

third element, but need not introduce expert evidence to establish but-for cause, the

fourth element. I would conclude that expert evidence also is required with respect to

but-for cause.

At the outset, it should be noted that the power-of-attorney form that George

Nyberg signed does not compel the conclusion that Kimball was negligent per se. The

particular version of the standard form that George Nyberg signed is one of the

possibilities contemplated and suggested by the legislature in the statutory short form.

See Minn. Stat. § 523.23, subd. 1 (2012). Guzick’s expert does not intend to testify that

D-1
Kimball was negligent solely because of the content of the form that George Nyberg

signed. Rather, she has opined that Kimball was negligent because he never had a

conversation with George Nyberg in which his situation and his goals could be fully

explored so that Kimball could advise him of the most appropriate course of action.

If Kimball breached his professional duty in the manner described by Guzick’s

expert, it would be necessary to determine what would have happened if Kimball had not

committed a breach. See Jerry’s Enters., Inc., 711 N.W.2d at 820; Schmitz v. Rinke,

Noonan, Smoley, Deter, Colombo, Wiant, Von Korff & Hobbs, Ltd., 783 N.W.2d 733, 741

(Minn. App. 2010), review denied (Minn. Sept. 21, 2010); Christians v. Grant Thornton,

LLP, 733 N.W.2d 803, 813 (Minn. App. 2007), review denied (Minn. Sept. 18, 2007).

An attorney who previously has counseled persons in George’s situation would have

much to say on the subject. For example, an experienced attorney likely would testify

about, among other things, the issues that an attorney should discuss with a client who

wishes to grant a power of attorney, the risks that the attorney should seek to identify, and

the situations in which the various options provided by the short form are appropriate or

inappropriate. Those topics go directly to issues of duty and breach as well as the issue

of causation. With respect to causation, an experienced attorney likely would also testify

about, among other things, the advice that attorneys typically give to clients on this

subject based on various factors, the frequency with which clients accept an attorney’s

advice on the subject, and the incidence of malfeasance by persons who are granted the

authority of an attorney-in-fact. These are mere examples.

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 These issues and related issues are not matters that lay jurors are likely to know or

to understand without expert testimony. In fact, the law forbids a person from providing

advice concerning the granting of a power of attorney and from preparing a power-of-

attorney form without a valid license to practice law. See Minn. Stat. § 481.02, subd. 1

(2012) (prohibiting “unauthorized practice of law,” which includes providing legal

services and preparing legal documents); In re Disciplinary Action Against Ray, 610

N.W.2d 342, 346 (Minn. 2000) (disbarring attorney who prepared power-of-attorney

form and performed other legal services on suspended license). If lay persons are

prohibited from providing any services with respect to a power-of-attorney form, they

cannot reasonably be expected to decide matters of negligence and causation unless they

have the benefit of the input of an attorney with expertise in the subject matter.

It is well established that expert testimony generally is necessary to prove

causation in a legal-malpractice case. See Admiral Merchs. Motor Freight v. O’Connor

& Hannan, 494 N.W.2d 261, 266 (Minn. 1992); Schmitz, 783 N.W.2d at 741; Fontaine v.

Steen, 759 N.W.2d 672, 678-79 (Minn. App. 2009); see also Brown-Wilbert, Inc. v.

Copeland Buhl & Co., 732 N.W.2d 209, 218 & n.4 (Minn. 2007). More specifically, we

have affirmed the dismissal of a plaintiff’s legal-malpractice claim on the ground that he

was “required to produce expert testimony on the issue of but-for causation” but “did not

do so.” Schmitz, 783 N.W.2d at 741. The Minnesota appellate courts have said that a

plaintiff may establish causation without expert evidence only in a “rare” or

“exceptional” legal-malpractice case. See, e.g., Hill v. Okay Constr. Co., 312 Minn. 324,

337, 252 N.W.2d 107, 116 (1977); Schmitz, 783 N.W.2d at 741; Fontaine, 759 N.W.2d at

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678-79; Thomas A. Foster & Associates, Ltd. v. Paulson, 699 N.W.2d 1, 8 (Minn. App.

2005). My research reveals only one “rare” or “exceptional” case in which a plaintiff

actually was excused from the requirement. See Hill, 312 Minn. at 337, 252 N.W.2d at

116. This case is not so rare or exceptional that it should become the second such case.

B.

In Brown-Wilbert, the supreme court held that an expert disclosure must, at a

minimum, “summarize[] the expert’s opinion that the defendant’s departure was a direct

cause of the plaintiff’s injuries.” 732 N.W.2d at 219. In part B.2.c., the opinion of the

court concludes that Guzick’s expert disclosure satisfies the disclosure requirements of

Brown-Wilbert. I would conclude that Guzick’s expert disclosure is so lacking in

information concerning causation that it does not satisfy the minimum disclosure

requirement.

As an initial matter, I do not accept the premise that the term “direct cause” is

equivalent to “proximate cause” such that Brown-Wilbert is concerned only with

proximate cause and not with but-for cause.4 In any event, the statute governing expert

4
In an ordinary negligence case, the supreme court generally tends to combine the
concepts of cause-in-fact and proximate cause into what is referred to as the “substantial
factor test”: a “negligent act is a direct, or proximate, cause of harm if the act was a
substantial factor in the harm’s occurrence.” See George v. Estate of Baker, 724 N.W.2d
1, 10 (Minn. 2006); see also Mike Steenson, Minnesota Negligence Law and the
Restatement (Third) of Torts: Liability for Physical and Emotional Harms, 37 Wm.
Mitchell L. Rev. 1055, 1109-10 (2011). In such cases, the courts seem to use the terms
“direct cause,” “proximate cause,” and “substantial factor” interchangeably. See, e.g.,
Curtis v. Klausler, 802 N.W.2d 790, 793 (Minn. App. 2011), review denied (Minn.
Oct. 18, 2011). In professional negligence cases, the supreme court has maintained a
distinction between the concepts of cause-in-fact and proximate cause. See Brown-
Wilbert, Inc., 732 N.W.2d at 218 n.4; Jerry’s Enters., Inc., 711 N.W.2d at 819. Cause-in-

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disclosures uses the word “causation.” See Minn. Stat. § 544.42, subd. 4(a) (2012). The

statute does not limit the disclosure obligation to the issue of proximate cause. See id.

Likewise, Brown-Wilbert more often uses the terms “causation” and “cause.” See 732

N.W.2d 217-19. Given that the caselaw requires plaintiffs to prove both proximate cause

and but-for cause to establish a claim of professional negligence, see Brown-Wilbert, Inc.,

732 N.W.2d at 218 n.4; Jerry’s Enters., Inc., 711 N.W.2d at 820, and given that the

caselaw almost always requires plaintiffs to introduce expert evidence on both proximate

cause and but-for cause, see Schmitz, 783 N.W.2d at 741, the legislature likely did not

intend to relieve a plaintiff of the disclosure obligation on but-for cause in all

professional-negligence cases. Accordingly, I do not read Brown-Wilbert to say that a

plaintiff is not required by section 544.42 to disclose its expert opinions on but-for cause.

In Brown-Wilbert, the supreme court described the minimum disclosure that is

necessary to warrant an opportunity to cure a deficient affidavit. 732 N.W.2d at 219; see

also Minn. Stat. § 544.42, subd. 6(c). The disclosure must “provide some meaningful

information, beyond conclusory statements, . . . [that] summarizes the expert’s opinion”

with respect to causation. Brown-Wilbert, Inc., 732 N.W.2d at 219. The disclosure

“should set out how the expert will use those facts to arrive at opinions of malpractice

and causation.” Id. (quotation and emphasis omitted). A disclosure that “merely

fact is determined by applying a but-for analysis, and proximate cause is determined by
asking whether the plaintiff’s injury or harm was a foreseeable consequence of
defendant’s advice. See Brown-Wilbert, Inc., 732 N.W.2d 218 n.4; Jerry’s Enters., Inc.,
711 N.W.2d at 819. Thus, although “direct cause” and “proximate cause” may be
interchangeable terms in ordinary negligence cases, that does not appear to be true in
professional negligence cases.

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repeat[s] or incorporate[s] the attorney’s conclusory allegations about malpractice [is] not

sufficient to meet the minimum standards for an affidavit of expert disclosure.” Id.

(emphasis omitted).

In this case, the expert’s disclosure concerning causation is contained in a single

sentence:

The acts and omissions of Larry Kimball and Kimball
Law described above caused damages to Tim Guzick in the
amount of $226,524, which is the total amount Tony Nyberg
took from accounts owned by George Nyberg, his Estate, and
his Trust using the subject Minnesota Statutory Short Form
Power of Attorney that was provided to him by Colleen
Bennett of Kimball Law . . . .

This conclusory disclosure falls far short of the minimum standards identified in Brown-

Wilbert. The disclosure could not possibly be any more conclusory or any less

meaningful. The disclosure does not attempt to state “the substance of the facts and

options to which the expert is expected to testify” and does not provide “a summary of

the grounds for each opinion” regarding causation. Minn. Stat. § 544.42, subd. 4(a); see

also Brown-Wilbert, Inc., 732 N.W.2d at 219. The deficiencies in Guzick’s expert

disclosure “are so great that it provides no significant information.” Id. at 217. If

Guzick’s expert disclosure satisfies Brown-Wilbert’s minimum requirement concerning

causation, that requirement is essentially rendered meaningless.

I also disagree with the conclusion that Guzick has gone beyond the minimum

disclosure necessary for an opportunity to cure by making a disclosure that fully satisfies

the statutory requirement. The deficiency of Guzick’s expert disclosure is demonstrated

by the caselaw in the analogous context of medical-malpractice expert disclosures. See

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id. A “single sentence on causation is insufficient.” Mercer v. Andersen, 715 N.W.2d

114, 123 (Minn. App. 2006). An expert disclosure must give more than a “sneak

preview” and must “explain[] to the jury the ‘how’ and the ‘why’ the malpractice caused

the injury.” Teffeteller v. University of Minn., 645 N.W.2d 420, 429 n.4, 430 (Minn.

2002). An expert disclosure must include “specific details” of the expert’s opinion,

including “an outline of the chain of causation that allegedly resulted in damage[s].”

Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 193 (Minn. 1990).

Furthermore, the substance of the disclosure must be expressed; it may not be implied

from statements concerning duty or breach. See Teffeteller, 645 N.W.2d at 429; Stroud v.

Hennepin Cnty. Med. Ctr., 556 N.W.2d 552, 556 (Minn. 1996). Guzick’s expert

disclosure does not fulfill these requirements.

The supreme court has recognized in the medical-malpractice context that

statutory expert-disclosure requirements “may have harsh results in some cases” but are

enforced nonetheless. See Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 578

(Minn. 1999). The supreme court also has noted that any harshness is mitigated by the

fact that “previous decisions of this court . . . provide[] some degree of notice” to

plaintiffs’ counsel of the expert-disclosure requirements. Anderson v. Rengachary, 608

N.W.2d 843, 849 (Minn. 2000).

For these reasons, I would affirm the district court’s entry of summary judgment in

favor of Kimball, the Kimball Law Firm, and Kimball and Undem.

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