This opinion will be unpublished and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UNPUBLISHED OPINION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
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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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