(concurring in part and dissenting in part).
I concur in the majority’s opinion relating to the sufficiency of the expert’s affidavit based on our recent decisions in Sorenson v. St Paul Ramsey Medical Center, 457 N.W.2d 188 (Minn.1990), Stroud v. Hennepin County Medical Center, 556 N.W.2d 552 (Minn.1996), and Lindberg v. Health Partners, Inc., 599 N.W.2d 572 (Minn.1999). However, I respectfully dissent on reversing the court of appeals’ decision to remand. Respondent should be allowed to file a supplemental affidavit.
Prior to the enactment of Minn.Stat. § 145.682 in 1986,1 we had used restraint in reviewing the adequacy of pleadings and tried to avoid such harsh summary pretrial dispositions of serious cases on procedural grounds. Now, we seem to be reverting back to code pleading in medical malpractice cases, requiring plaintiffs to initially allege all detailed facts sufficient to prove the cause of action. In fact, we became a notice pleading state when this court promulgated the rules of civil procedure, effective January 1, 1952.2 Notice pleading under Minn. R. Civ. P. 8.01 merely “requires a short and plain statement of the claim * ⅜ *.” We have interpreted this language as only requiring a “broad general statement which may express conclusions,” in contrast to code pleading. Northern States Power Co. v. Franklin, 265 Minn. 391, 394, 122 N.W.2d 26, 29 (1963). Under both our current rule and the code pleading system, we had preferred to dispose of matters on the merits rather than on technical procedural grounds. See, e.g., Minn. R. Civ. P. 61; Rees v. Storms, 101 Minn. 381, 384, 112 N.W. 419, 420 (1907).
We now have used this legislative initiative embodied in Minn.Stat. § 145.682 that dictates the form of pleadings, pre-trial discovery disclosures, court rules and establishes evidentiary requirements to change our long-standing precedent and modify our rules. In doing so, we appear to defer to the legislature on establishing judicial procedures that are inherently in the province of the judiciary. See, e.g., State v. Johnson, 514 N.W.2d 551, 553-54 (1994). Recently, in Holmberg v. Holmberg, 588 N.W.2d 720, 723-26 (Minn.1999) and Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 137-42 (Minn.1999), we reiterated the importance of maintaining our jurisdiction over court rules and procedures in the context of both separation of powers and our inherent power to establish rules of court and those governing lawyers.
Importantly, Minn.Stat. § 480.051 (1998) specifically grants to the supreme court the power to regulate pleadings, procedures and form in all civñ actions. Accordingly, our court rules already cover these issues. We have rules of evidence relating to testimony by experts, disclosure of facts or data underlying expert opinions and even provide for court appointed experts. See Minn. R. Evid. 702, *85370S and 706. We even have rules relating to depositions and discovery of experts, Minn. R. Civ. P. 26.02(d), and provide that such discovery “may be obtained only as follows * ⅜ *.” See also Minn. R. Civ. P. 35.04 (governing medical disclosures and depositions of medical experts). Similarly, we have specific rules regarding summons and complaints in Minn. R. Civ. P. 4.01 and 8.01. In fact, Minn. R. Civ. P. 7.01, which relates to pleadings, defines what is sufficient and provides that “no other pleading shall be allowed, except that a court may order a reply to an answer.”
The more pertinent conceptual question may relate to the constitutional separation of powers doctrine. The respondent in this matter did raise some constitutional issues but did not raise a separation of powers challenge to the statute. Nor was the separation of powers issue raised in Sorenson, Stroud, or Lindberg. Because the issue has neither been briefed nor argued, it should not be considered by the majority. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). Nonetheless, this question should give this court pause before adopting the legislature’s directives in such a wholesale fashion when this legislation may be at odds with our long established precedent and rules.
Given that we are a notice pleading state and that we have historically preferred to decide cases on their merits, parties should be permitted to reasonably utilize the “good cause shown” exception offered to them by Minn.Stat. § 145.682, subd. 4(b) (1998) to allow more time to correct any perceived errors in their affidavits. The statute was never meant to require plaintiffs in medical malpractice cases to literally try their cases in pre-trial affidavits. I would affirm the court of appeals on the issue of extension of time.
. See Act of March 25, 1986, ch. 455, § 60, 1986 Minn. Laws 871-72.
. See Pirsig on Minnesota Pleading §§ 1, 21-23 (4th ed. 1956).