Mills v. Mayo Clinic
U.S. District Court, District of Minnesota
Mills v. Mayo Clinic
Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Kathleen Mills, et al., Case No. 19-cv-2859 (SRN/ECW)
Plaintiffs,
v. ORDER
Mayo Clinic, et al.,
Defendants.
Michael Kemp, Hansen Dordell, 3900 Northwoods Drive, Suite 250, St. Paul, MN
55112, for Plaintiffs.
Gregory E. Karpenko and John Pavelko, Fredrikson & Byron, PA, 200 South Sixth
Street, Suite 4000, Minneapolis, MN 55402; Matthew J. Hanzel, Mayo Clinic Legal
Department, 200 First Street Southwest, Rochester, MN 55905, for Defendants.
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on the Motion to Dismiss [Doc. No. 24] filed by
Defendants Mayo Clinic and Dr. Scott Kelley, and the Motion for Extension of Time to
Serve Expert Report [Doc. No. 30] filed by Plaintiffs Kathleen Mills and Wilson Mills.
Based on a review of the files, submissions, and proceedings herein, and for the reasons
below, the Court DENIES the Motion to Dismiss and GRANTS the Motion for Extension
of Time to Serve Expert Report.
I. BACKGROUND
The Complaint alleges that, on November 7, 2015, Kathleen Mills sought medical
treatment at Mayo Clinic’s emergency room in Red Wing, Minnesota. (Compl. [Doc. No.
3], at ¶ 10.) Mills was then transferred to Mayo Clinic’s Rochester, Minnesota location and
received medical care there from Dr. Scott Kelley, but her condition allegedly worsened
over the following weeks. (Id. ¶¶ 11-17.) As a result, Dr. Kelley performed surgery, and
Mills experienced complications requiring hospital stays and rehabilitation. (Id. ¶¶ 16-17.)
Mills received additional surgical care from Dr. Kelley at Mayo Clinic on multiple
occasions in 2016. (Id. ¶¶ 18-20.) Mills alleges that Dr. Kelley’s substandard medical care
has caused her to suffer significant injuries, including repeated hospitalizations, additional
surgeries, disfigurement, and mental and emotional distress. (Id. ¶ 23.) In addition, her
husband, Wilson Mills, claims that Dr. Kelley’s substandard medical care has injured him
through the loss of consortium. (Id. ¶ 24.)
Plaintiffs brought this action against both the Mayo Clinic and Dr. Kelley. Plaintiffs
allege that Defendants were negligent in failing to appropriately and timely diagnose and
treat Kathleen Mills’s condition. (Id. ¶¶ 25-28.) In addition, Plaintiffs allege that an implied
contract existed between the parties, which required Defendants to perform a higher level
of medical care upon Kathleen Mills’s transfer to Dr. Kelley, and that Defendants failed to
timely perform that care. (Id. ¶¶ 32-37.) Thus, the Complaint alleges both a medical
malpractice claim and a breach-of-implied-contract claim against Defendants.
Defendants now move to dismiss, arguing that Plaintiffs did not timely serve an
expert affidavit as required by Minnesota Statutes § 145.682, Subdivision 2(2). Under
§ 145.682, medical malpractice plaintiffs are required to serve an expert affidavit meeting
certain statutory criteria “within 180 days after commencement of discovery.” Minn. Stat.
§ 145.682, Subd. 2(2). Here, the statutory deadline was originally September 17, 2020. The
Court extended the deadline, per the parties’ stipulation, to November 12, 2020. (Am.
Scheduling Order [Doc. No. 22].) Plaintiffs’ counsel avers that the stipulation was based
on a need to depose Dr. Kelley and give Plaintiffs’ expert time to review the deposition
transcript. (Kemp Decl. [Doc. No. 32], ¶ 4.) Ultimately, Dr. Kelley was not deposed until
October 22, 2020. (Id. ¶ 6.)
In the week prior to the November 12 deadline, several attorneys and legal assistants
at Plaintiffs’ counsel’s firm tested positive for COVID-19. (Id. ¶ 7.) As a result, the firm
experienced “a sudden breakdown in administration.” (Id.) On the morning of
November 12, Plaintiffs’ counsel emailed Defendants’ counsel, stating that he had not yet
received the transcript of Dr. Kelley’s deposition. (Id. ¶ 8.) Defendants’ counsel provided
an electronic copy. (Id.) However, Plaintiffs’ counsel did not explicitly ask for an extension
of the deadline, nor did Defendants’ counsel indicate an intent to move for dismissal under
§ 145.682. (Id., Ex. B.) Despite the lack of the transcript, the expert report was purportedly
“substantially complete” and could have been served (albeit without a review of the
deposition transcript) on November 12. (Id. ¶ 9.) Defendants moved to dismiss on
November 16, Plaintiffs served the expert report on November 20, and Plaintiffs moved
for an extension of time to serve on December 1.
II. DISCUSSION
The issue before the Court is whether Plaintiffs’ eight-day delay in furnishing the
expert report requires dismissal of this lawsuit. Section 145.682 provides that the failure to
serve the required affidavit “results, upon motion, in mandatory dismissal with prejudice
of each cause of action as to which expert testimony is necessary to establish a prima facie
case.” Minn. Stat. § 145.682, Subd. 6(b). Although the statute’s text states that dismissal is “mandatory,” the Minnesota Supreme Court has held that the time limits imposed by the statute “may be extended, even after the time limits have expired, . . . upon a showing of excusable neglect.” Stern v. Dill,442 N.W.2d 322, 324
(Minn. 1989). “Excusable neglect exists where the plaintiff (1) has a reasonable suit on the merits, (2) has a reasonable excuse for failure to comply with [the] time limit set forth byMinn. Stat. § 145.682
, subd. 2, (3) acted with due diligence after receiving notice of the time limit, and (4) no substantial prejudice results to the defendant.” Anderson v. Rengachary,608 N.W.2d 843, 850
(Minn.
2000).
The Court finds that the failure to timely serve the expert report was attributable to
excusable neglect. The COVID-19 outbreak at Plaintiffs’ counsel’s law firm, which
resulted in “a sudden breakdown in administration,” furnishes a “reasonable excuse” for
the failure to comply with the statute. (Kemp Decl. ¶ 7.) And although Plaintiffs’ counsel
could have expressly requested an extension in his email to Defendants’ counsel, counsel’s
email on the morning of November 12 and subsequent serving of the report on November
20 constitute “due diligence” in attempting to meet the statutory deadline in the wake of
the COVID-19 outbreak. Finally, Defendants have not asserted any prejudice as a result of
the delay. Accordingly, the Court finds good cause to extend § 145.682’s deadline.
Therefore, the Court denies Defendants’ Motion to Dismiss and grants Plaintiffs’
Motion for Extension of Time to Serve Expert Report.
III. CONCLUSION
Based on the submissions and the entire file and proceedings herein, IT IS
HEREBY ORDERED that Defendants’ Motion to Dismiss [Doc. No. 24] is DENIED,
and Plaintiffs’ Motion for Extension of Time to Serve Expert Report [Doc. No. 30] is
GRANTED.
IT IS SO ORDERED.
Dated: December 11, 2020 s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Kathleen Mills, et al., Case No. 19-cv-2859 (SRN/ECW)
Plaintiffs,
v. ORDER
Mayo Clinic, et al.,
Defendants.
Michael Kemp, Hansen Dordell, 3900 Northwoods Drive, Suite 250, St. Paul, MN
55112, for Plaintiffs.
Gregory E. Karpenko and John Pavelko, Fredrikson & Byron, PA, 200 South Sixth
Street, Suite 4000, Minneapolis, MN 55402; Matthew J. Hanzel, Mayo Clinic Legal
Department, 200 First Street Southwest, Rochester, MN 55905, for Defendants.
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on the Motion to Dismiss [Doc. No. 24] filed by
Defendants Mayo Clinic and Dr. Scott Kelley, and the Motion for Extension of Time to
Serve Expert Report [Doc. No. 30] filed by Plaintiffs Kathleen Mills and Wilson Mills.
Based on a review of the files, submissions, and proceedings herein, and for the reasons
below, the Court DENIES the Motion to Dismiss and GRANTS the Motion for Extension
of Time to Serve Expert Report.
I. BACKGROUND
The Complaint alleges that, on November 7, 2015, Kathleen Mills sought medical
treatment at Mayo Clinic’s emergency room in Red Wing, Minnesota. (Compl. [Doc. No.
3], at ¶ 10.) Mills was then transferred to Mayo Clinic’s Rochester, Minnesota location and
received medical care there from Dr. Scott Kelley, but her condition allegedly worsened
over the following weeks. (Id. ¶¶ 11-17.) As a result, Dr. Kelley performed surgery, and
Mills experienced complications requiring hospital stays and rehabilitation. (Id. ¶¶ 16-17.)
Mills received additional surgical care from Dr. Kelley at Mayo Clinic on multiple
occasions in 2016. (Id. ¶¶ 18-20.) Mills alleges that Dr. Kelley’s substandard medical care
has caused her to suffer significant injuries, including repeated hospitalizations, additional
surgeries, disfigurement, and mental and emotional distress. (Id. ¶ 23.) In addition, her
husband, Wilson Mills, claims that Dr. Kelley’s substandard medical care has injured him
through the loss of consortium. (Id. ¶ 24.)
Plaintiffs brought this action against both the Mayo Clinic and Dr. Kelley. Plaintiffs
allege that Defendants were negligent in failing to appropriately and timely diagnose and
treat Kathleen Mills’s condition. (Id. ¶¶ 25-28.) In addition, Plaintiffs allege that an implied
contract existed between the parties, which required Defendants to perform a higher level
of medical care upon Kathleen Mills’s transfer to Dr. Kelley, and that Defendants failed to
timely perform that care. (Id. ¶¶ 32-37.) Thus, the Complaint alleges both a medical
malpractice claim and a breach-of-implied-contract claim against Defendants.
Defendants now move to dismiss, arguing that Plaintiffs did not timely serve an
expert affidavit as required by Minnesota Statutes § 145.682, Subdivision 2(2). Under
§ 145.682, medical malpractice plaintiffs are required to serve an expert affidavit meeting
certain statutory criteria “within 180 days after commencement of discovery.” Minn. Stat.
§ 145.682, Subd. 2(2). Here, the statutory deadline was originally September 17, 2020. The
Court extended the deadline, per the parties’ stipulation, to November 12, 2020. (Am.
Scheduling Order [Doc. No. 22].) Plaintiffs’ counsel avers that the stipulation was based
on a need to depose Dr. Kelley and give Plaintiffs’ expert time to review the deposition
transcript. (Kemp Decl. [Doc. No. 32], ¶ 4.) Ultimately, Dr. Kelley was not deposed until
October 22, 2020. (Id. ¶ 6.)
In the week prior to the November 12 deadline, several attorneys and legal assistants
at Plaintiffs’ counsel’s firm tested positive for COVID-19. (Id. ¶ 7.) As a result, the firm
experienced “a sudden breakdown in administration.” (Id.) On the morning of
November 12, Plaintiffs’ counsel emailed Defendants’ counsel, stating that he had not yet
received the transcript of Dr. Kelley’s deposition. (Id. ¶ 8.) Defendants’ counsel provided
an electronic copy. (Id.) However, Plaintiffs’ counsel did not explicitly ask for an extension
of the deadline, nor did Defendants’ counsel indicate an intent to move for dismissal under
§ 145.682. (Id., Ex. B.) Despite the lack of the transcript, the expert report was purportedly
“substantially complete” and could have been served (albeit without a review of the
deposition transcript) on November 12. (Id. ¶ 9.) Defendants moved to dismiss on
November 16, Plaintiffs served the expert report on November 20, and Plaintiffs moved
for an extension of time to serve on December 1.
II. DISCUSSION
The issue before the Court is whether Plaintiffs’ eight-day delay in furnishing the
expert report requires dismissal of this lawsuit. Section 145.682 provides that the failure to
serve the required affidavit “results, upon motion, in mandatory dismissal with prejudice
of each cause of action as to which expert testimony is necessary to establish a prima facie
case.” Minn. Stat. § 145.682, Subd. 6(b). Although the statute’s text states that dismissal is “mandatory,” the Minnesota Supreme Court has held that the time limits imposed by the statute “may be extended, even after the time limits have expired, . . . upon a showing of excusable neglect.” Stern v. Dill,442 N.W.2d 322, 324
(Minn. 1989). “Excusable neglect exists where the plaintiff (1) has a reasonable suit on the merits, (2) has a reasonable excuse for failure to comply with [the] time limit set forth byMinn. Stat. § 145.682
, subd. 2, (3) acted with due diligence after receiving notice of the time limit, and (4) no substantial prejudice results to the defendant.” Anderson v. Rengachary,608 N.W.2d 843, 850
(Minn.
2000).
The Court finds that the failure to timely serve the expert report was attributable to
excusable neglect. The COVID-19 outbreak at Plaintiffs’ counsel’s law firm, which
resulted in “a sudden breakdown in administration,” furnishes a “reasonable excuse” for
the failure to comply with the statute. (Kemp Decl. ¶ 7.) And although Plaintiffs’ counsel
could have expressly requested an extension in his email to Defendants’ counsel, counsel’s
email on the morning of November 12 and subsequent serving of the report on November
20 constitute “due diligence” in attempting to meet the statutory deadline in the wake of
the COVID-19 outbreak. Finally, Defendants have not asserted any prejudice as a result of
the delay. Accordingly, the Court finds good cause to extend § 145.682’s deadline.
Therefore, the Court denies Defendants’ Motion to Dismiss and grants Plaintiffs’
Motion for Extension of Time to Serve Expert Report.
III. CONCLUSION
Based on the submissions and the entire file and proceedings herein, IT IS
HEREBY ORDERED that Defendants’ Motion to Dismiss [Doc. No. 24] is DENIED,
and Plaintiffs’ Motion for Extension of Time to Serve Expert Report [Doc. No. 30] is
GRANTED.
IT IS SO ORDERED.
Dated: December 11, 2020 s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge Reference
- Status
- Unknown