Update on Expert Witness Requirements in Malpractice Claims

Minn. Stat. § 544.42 generally requires that claimants, who are bringing negligence or malpractice claims against various types of professionals, provide expert testimony establishing the elements of their claim. Claimants may try to avoid this requirement by rebranding their claims as something other than negligence.

In Mittelstaedt v. Henney, decided January 4, 2021, the claimant sued his attorney for “breach of fiduciary duty.” The claimant argued that section 544.42’s expert review requirements did not apply because the claim was not for “negligence” or “malpractice.” The court disagreed. It compared the underlying elements of negligence and breach of fiduciary duty claims in attorney-client relationships and found them similar. It explained that a “simple change in nomenclature should not entitle a party to avoid the strict requirements of section 544.42.” Because the claimant had failed to provide expert opinions, his breach of fiduciary duty claim was dismissed for failure to comply with section 544.42’s strict disclosure mandates.

For more information about this or any other civil litigation issues, contact attorney Daniel J. Bellig at 507-625-2525 or by email.