Hall Approved Free Access to American Case Law

Mullins v. Morgan

U.S. District Court, District of Minnesota

Mullins v. Morgan

Trial Court Opinion

               UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                


Gary Mullins, Jr.,                                   Civ. No. 23-1855 (JWB/DTS) 

          Plaintiff,                                                    
                                    ORDER ACCEPTING AS                  
v.                                   MODIFIED REPORT AND                  
                                    RECOMMENDATION OF                   
Dr. Morgan, Chief Medical Doctor;      MAGISTRATE JUDGE                   
United States of America; Karin                                           
Kay Parsons, P.A.; and Rachel                                             
Wolfe, R.N.,                                                              

          Defendants.                                                   


Gary Mullins, Jr., pro se Plaintiff.                                      

Trevor Brown, Esq., DOJ-USAO, counsel for Defendants.                     


   United States Magistrate Judge David T. Schultz issued a Report and  
Recommendation (“R&R”) on July 17, 2024. (Doc. No. 52.) The government timely 
objects to the R&R. (Doc. No. 62.) For the reasons below, the government’s objection is 
overruled, and the R&R is accepted as modified.                           
                        BACKGROUND                                      
I.   Factual Allegations                                                  
   Plaintiff Gary Mullins, Jr. (“Mr. Mullins”) is a federal prisoner. Medical staff at 
Federal Medical Center, Rochester (“FMC-Rochester”) placed seven staples in 
Mr. Mullins’s forehead to close a wound that had opened during a fall from his bunk. 
(Doc. No. 11 ¶ 12.) The number of staples used to close the wound was     
contemporaneously documented in Mr. Mullins’s medical file. (Id. ¶ 16.)   
   When Mr. Mullins returned as advised to have the staples removed, Nurse Rachel 

Wolfe (“Nurse Wolfe”) accidentally removed only five of the seven staples from 
Mr. Mullins’s head. (Id. ¶¶ 17–20.) Even though Mr. Mullins insisted that Nurse Wolfe 
had failed to account for two staples, Nurse Wolfe did not investigate the matter further. 
(Id. ¶¶ 21–23.)                                                           
   In the following months, as Mr. Mullins’s wound continued to grow swollen and 
painful, he continued to plead that staples remained in his head and to have them 

removed. (Id. ¶¶ 24–25.) Approximately four months after Nurse Wolfe’s mistake, 
imaging revealed the obvious for Mr. Mullins—two staples were still in his head. (Id. 
¶¶ 26–27.) While Dr. Mark Morgan (“Dr. Morgan”) and Physician’s Assistant Karin 
Parsons (“PA Parsons”) managed to remove one staple, the other had migrated too close 
to Mr. Mullins’s eye to be removed without surgery. (Id. ¶¶ 28–29.) Fifteen months 

would pass between Nurse Wolfe’s mistake and the final staple being surgically removed 
at the Mayo Clinic. (Id. ¶¶ 29–30.)                                       
   During this time, Mr. Mullins claims he suffered headaches and experienced fear 
and anxiety that he would lose his vision. (Id. ¶ 33.) He also claims the delay in removing 
the sixth and seventh staples caused facial disfigurement, pain, irritation, emotional 

distress, and embarrassment. (Id. ¶¶ 34–36, 47.)                          
II.  Procedural History                                                   
   On June 20, 2023, Mr. Mullins filed a Complaint that asserts a claim for negligent 
treatment and care against the United States under the Federal Tort Claims Act 
(“FTCA”). (Doc. Nos. 1, 11.) The government moved to dismiss or for summary 
judgment near the start of the action, arguing Mr. Mullins was required by
Minn. Stat. § 145.682
 to serve on them expert affidavits supporting the claim of medical negligence, 
and that his failure to do so necessitates mandatory dismissal with prejudice under the 
Minnesota statute.                                                        
   The Magistrate Judge considered whether
Minn. Stat. § 145.682
 required an expert 
affidavit to establish five allegations, each claiming that Defendants breached their duty 
of care when failing to:                                                  

   (1)  verify the number of staples;                                   
   (2)  consult Mr. Mullins’s medical records to verify the number of staples;  
   (3)  order imaging to locate the missing staples;                    
   (4)  timely intervene to prevent the need for surgery; and           
   (5)  timely arrange and refer Plaintiff for surgery.                 

(Doc. No. 52 at 7.) Allegations (1) and (2) were found by the Magistrate Judge to fall 
within the knowledge of a layperson and thus did not require expert affidavits. (Id. at 
7–8);
Minn. Stat. § 145.682
(1) (no affidavit needed where expert testimony unnecessary 
to establish prima facie case). As to allegations (3) through (5), Mr. Mullins was directed 
to serve affidavits by October 14, 2024. (Id. at 8) Failure to comply with
Minn. Stat. § 145.682
 would result in mandatory dismissal with prejudice of Mr. Mullins’s FTCA 
claim. (Id.)                                                              
   The government objects to the R&R’s finding that Mr. Mullins need not serve 
expert affidavits as to allegations (1) and (2). (Doc. No. 62.)           
                          ANALYSIS                                      
I.   Standard of Review                                                   

   The portions of the R&R to which the government objects are reviewed de novo, 
and the R&R may be accepted, rejected, or modified, in whole or in part.
28 U.S.C. § 636
(b)(1); D. Minn. LR 72.2(b)(3). Any aspect of an R&R to which no specific 
objection is made is reviewed for clear error. Grinder v. Gammon,
73 F.3d 793, 795
 (8th 
Cir. 1996); see also Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 amendment 
(“When no timely objection is filed, the court need only satisfy itself that there is no clear 

error on the face of the record in order to accept the recommendation.”).  
II.  Mr. Mullins’s Negligent Treatment and Care Claim under the FTCA      
   The FTCA creates federal liability for personal injuries caused by the negligent or 
wrongful acts or omissions of a government employee acting within the scope of his or 
her office or employment.
28 U.S.C. § 1346
(b). Liability is limited to circumstances 

where the government, if it were a private person, would be liable to the claimant in 
accordance with the law of the place where the act or omission occurred.
Id.
 Thus, the 
FTCA enables a claimant to assert claims against the government as if it were the 
employer of a negligent federal employee, not as if it were itself the negligent employee. 
Knowles v. United States,
91 F.3d 1147
, 1151–52 (8th Cir. 1996) (Beam, J., dissenting). 

Ascertaining liability also requires finding a private entity that is most reasonably 
analogous to the United States under like circumstances. See Lozada v. United States,
974 F.2d 986, 989
 (8th Cir. 1992).                                            
   Here, Mr. Mullins’s FTCA claim is based on allegations of inadequate medical 
care provided at FMC-Rochester. (Doc. No. 11 ¶ 2.) Under the present circumstances, it 
is most reasonable to analogize FMC-Rochester to a private hospital. Lozada,
974 F.2d at 989
; see United States v. Smith,
499 U.S. 160, 162
 (1991). Hospitals may be held 
vicariously liable under Minnesota law for the negligent acts or omissions of their 
employees. Plutshack v. Univ. of Minn. Hospitals,
316 N.W.2d 1
, 5–7 (Minn. 1982). 
Therefore, the government may be liable under the FTCA if one of its employees 
provided negligent treatment and care to Mr. Mullins. Additionally, Minnesota is a 
jurisdiction that applies joint and several liability to indivisible injuries, and it is difficult 

at this stage of the litigation (especially without argument from the parties on the issue) to 
conclusively determine that Mr. Mullins’s injury is divisible. See Canada by Landy v. 
McCarthy,
567 N.W.2d 496, 507
 (Minn. 1997).                               
   The government contends that Mr. Mullins’s case should be dismissed because he 
failed to comply with
Minn. Stat. § 145.682
, which applies to actions “alleging 

malpractice, error, mistake, or failure to cure, whether based on contract or tort, against a 
health care provider which includes a cause of action as to which expert testimony is 
needed to establish a prima facie case.”
Minn. Stat. § 145.682
. Failure to timely serve the 
two affidavits required by
Minn. Stat. § 145.682
 results in “mandatory dismissal with 
prejudice of each cause of action as to which expert testimony is necessary to establish a 

prima facie case.”
Id.
 subd. 6(a)–(b). Plutshack,
316 N.W.2d at 5
.        
   It is premature to conclude that
Minn. Stat. § 145.682
 applies to Mr. Mullins’s 
FTCA claim. The R&R commits clear error by not fully considering that Mr. Mullins’s 
claim, brought under the FTCA, effectively mirrors a claim against the employer of the 
allegedly negligent medical staff. See Knowles, 91 F.3d at 1151–52. Consequently, 
whether Mr. Mullins could establish a prima facie case of negligent treatment and care 

against the government, potentially without needing to satisfy allegations (2) through (5), 
or by substantiating these allegations by means other than expert testimony, was not fully 
considered. See Chizmadia v. Smiley’s Point Clinic,
873 F.2d 1163
, 1165 (8th Cir. 1989) 
(directing courts to explore all possible means of establishing a prima facie case without 
expert testimony).                                                        
   The statute here only becomes applicable when expert testimony is necessary to 

establish a prima facie case of negligent treatment and care. There are three elements of 
such a claim in Minnesota: (1) the standard of care recognized by the medical community 
as applicable to the defendant’s conduct; (2) that the defendant in fact departed from that 
standard; and (3) that the defendant’s departure from the standard was a direct cause of 
the injuries. Plutshack,
316 N.W.2d at 5
.                                 

   Expert testimony must usually be offered with respect to the standard of care and 
departure from that standard. Silver v. Redleaf,
194 N.W.2d 271, 272
 (Minn. 1972). But 
there are exceptional cases in which expert testimony is not necessary. Sorenson v. 
St. Paul Ramsey Med. Ctr.,
457 N.W.2d 188, 191
 (Minn. 1990). Expert testimony is not 
required when the jury can rely on common knowledge to determine that the results of 

surgical or medical treatment were the product of negligence. Miller v. Raaen,
139 N.W.2d 877
, 880–81 (Minn. 1966). Generally, these types of cases involve circumstances 
that could not have happened in the absence of negligence, such as where medical 
devices are left in the body after surgery.
Id.
 (collecting cases); Bellecourt v. United 
States,
784 F. Supp. 623
, 637–38 (D. Minn. 1992). Conversely, expert testimony will 
typically be needed when a claim is prefaced on a failure to diagnose, for example, 

because laypersons are typically unable to diagnose disease. Miller,
139 N.W.2d at 880
. 
Likewise, expert testimony is typically required for cases implicating the standards of 
practice in different schools of medicine, matters of science or specialized art, and with 
respect to matters resting on pure theory, judgment, and opinion.
Id.
     
   At this stage, Mr. Mullins may be able to establish a prima facie case of negligent 
treatment and care against the government without the need for expert testimony, and 

thus the expert affidavit requirement of
Minn. Stat. § 145.682
 does not currently bar his 
claim. To proceed, Mr. Mullins only needs to show that the medical staff employed by 
the government at FMC-Rochester departed from the standard of care recognized by the 
medical community when they failed to remove all seven staples from his head, and that 
the retained staples were a direct cause of his injury. These determinations lie within the 

common understanding of laypeople, as they reflect issues of negligence that are readily 
apparent. See Chizmadia, 873 F.2d at 1165 (noting that expert testimony may not be 
required where the injury is an obvious consequence of negligence); cf. Swierkiewicz v. 
Sorema N. A.,
534 U.S. 506
, 511–12 (2002) (“It thus seems incongruous to require a 
plaintiff, in order to survive a motion to dismiss, to plead more facts than he may 

ultimately need to prove to succeed on the merits . . . .”).              
   Alternatively, at this time, it is uncertain whether expert testimony is necessary to 
support allegations (3) and (4), which concern the government’s failure to order imaging 
of Mr. Mullins’s forehead and to intervene in a timely manner to prevent the need for 
surgery. First, these actions may not be readily distinguishable from allegations (1) and 
(2) in terms of Mr. Mullins’s overall injury. Second, while a layperson may not be 

familiar with the technical distinctions among various imaging methods—such as a CT 
scan, ultrasound, or x-ray—it is within common knowledge to recognize that modern 
medical technology can be used to detect foreign objects, such as a staple, within the 
body. This understanding supports the notion that the alleged failure to employ such 
technology could be seen as a product of negligence, even without specialized medical 
expertise.                                                                

   While
Minn. Stat. § 145.682
 does not currently apply to Mr. Mullins’s claims, this 
does not preclude its applicability as the case progresses, nor does it suggest that he may 
ultimately present his case at trial unencumbered by applicable evidentiary standards and 
requirements. As discovery proceeds and a more developed record emerges, it may 
become evident that certain aspects of Mr. Mullins’s claims, such as the permanency and 

financial valuation of his injuries, will require expert testimony. Similarly, a fuller record 
may reveal that allegation (5) (“timely arrange and refer Plaintiff for surgery”) 
necessitates expert insights to establish a prima facie case. Should it become apparent that 
expert testimony is essential to substantiate Mr. Mullins’s claim of negligent treatment 
and care, the government may renew its demand for expert affidavits under
Minn. Stat. § 145.682
. See Chizmadia v. Smiley’s Point Clinic,
965 F.2d 647
, 648 (8th Cir. 1992) 
(“[D]espite the opportunity to do so, Chizmadia has not offered any evidence to establish 
the prima facia case required to survive pretrial dismissal [under
Minn. Stat. § 145.682
 
for inability to demonstrate a prima facie case of negligent failure to diagnose].”).  
   Because this matter does not currently require the statutorily mandated expert 
affidavits, the Order setting a new deadline for Mr. Mullins to supply expert affidavits is 

rendered moot.

ORDER

   Based on the foregoing, and on all the files, records, and proceedings in this case, 
IT IS HEREBY ORDERED that:                                                
   1.   Defendant United States of America’s Objection to the Report and 
Recommendation (Doc. No. 62) is OVERRULED;                                

   2.   The Report and Recommendation (Doc. No. 52) is ACCEPTED AS      
MODIFIED as set forth above;                                              
   3.   Defendant’s Motion to Dismiss or for Summary Judgment (Doc. No. 25) is 
DENIED; and                                                               
   4.   The Order granting Plaintiff’s Motion for Extension of Time (Doc. No. 51) 

is STRICKEN AS MOOT.                                                      
Date: October 11, 2024            s/ Jerry W. Blackwell                 
                                 JERRY W. BLACKWELL                     
                                 United States District Judge

Trial Court Opinion

               UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                


Gary Mullins, Jr.,                                   Civ. No. 23-1855 (JWB/DTS) 

          Plaintiff,                                                    
                                    ORDER ACCEPTING AS                  
v.                                   MODIFIED REPORT AND                  
                                    RECOMMENDATION OF                   
Dr. Morgan, Chief Medical Doctor;      MAGISTRATE JUDGE                   
United States of America; Karin                                           
Kay Parsons, P.A.; and Rachel                                             
Wolfe, R.N.,                                                              

          Defendants.                                                   


Gary Mullins, Jr., pro se Plaintiff.                                      

Trevor Brown, Esq., DOJ-USAO, counsel for Defendants.                     


   United States Magistrate Judge David T. Schultz issued a Report and  
Recommendation (“R&R”) on July 17, 2024. (Doc. No. 52.) The government timely 
objects to the R&R. (Doc. No. 62.) For the reasons below, the government’s objection is 
overruled, and the R&R is accepted as modified.                           
                        BACKGROUND                                      
I.   Factual Allegations                                                  
   Plaintiff Gary Mullins, Jr. (“Mr. Mullins”) is a federal prisoner. Medical staff at 
Federal Medical Center, Rochester (“FMC-Rochester”) placed seven staples in 
Mr. Mullins’s forehead to close a wound that had opened during a fall from his bunk. 
(Doc. No. 11 ¶ 12.) The number of staples used to close the wound was     
contemporaneously documented in Mr. Mullins’s medical file. (Id. ¶ 16.)   
   When Mr. Mullins returned as advised to have the staples removed, Nurse Rachel 

Wolfe (“Nurse Wolfe”) accidentally removed only five of the seven staples from 
Mr. Mullins’s head. (Id. ¶¶ 17–20.) Even though Mr. Mullins insisted that Nurse Wolfe 
had failed to account for two staples, Nurse Wolfe did not investigate the matter further. 
(Id. ¶¶ 21–23.)                                                           
   In the following months, as Mr. Mullins’s wound continued to grow swollen and 
painful, he continued to plead that staples remained in his head and to have them 

removed. (Id. ¶¶ 24–25.) Approximately four months after Nurse Wolfe’s mistake, 
imaging revealed the obvious for Mr. Mullins—two staples were still in his head. (Id. 
¶¶ 26–27.) While Dr. Mark Morgan (“Dr. Morgan”) and Physician’s Assistant Karin 
Parsons (“PA Parsons”) managed to remove one staple, the other had migrated too close 
to Mr. Mullins’s eye to be removed without surgery. (Id. ¶¶ 28–29.) Fifteen months 

would pass between Nurse Wolfe’s mistake and the final staple being surgically removed 
at the Mayo Clinic. (Id. ¶¶ 29–30.)                                       
   During this time, Mr. Mullins claims he suffered headaches and experienced fear 
and anxiety that he would lose his vision. (Id. ¶ 33.) He also claims the delay in removing 
the sixth and seventh staples caused facial disfigurement, pain, irritation, emotional 

distress, and embarrassment. (Id. ¶¶ 34–36, 47.)                          
II.  Procedural History                                                   
   On June 20, 2023, Mr. Mullins filed a Complaint that asserts a claim for negligent 
treatment and care against the United States under the Federal Tort Claims Act 
(“FTCA”). (Doc. Nos. 1, 11.) The government moved to dismiss or for summary 
judgment near the start of the action, arguing Mr. Mullins was required by
Minn. Stat. § 145.682
 to serve on them expert affidavits supporting the claim of medical negligence, 
and that his failure to do so necessitates mandatory dismissal with prejudice under the 
Minnesota statute.                                                        
   The Magistrate Judge considered whether
Minn. Stat. § 145.682
 required an expert 
affidavit to establish five allegations, each claiming that Defendants breached their duty 
of care when failing to:                                                  

   (1)  verify the number of staples;                                   
   (2)  consult Mr. Mullins’s medical records to verify the number of staples;  
   (3)  order imaging to locate the missing staples;                    
   (4)  timely intervene to prevent the need for surgery; and           
   (5)  timely arrange and refer Plaintiff for surgery.                 

(Doc. No. 52 at 7.) Allegations (1) and (2) were found by the Magistrate Judge to fall 
within the knowledge of a layperson and thus did not require expert affidavits. (Id. at 
7–8);
Minn. Stat. § 145.682
(1) (no affidavit needed where expert testimony unnecessary 
to establish prima facie case). As to allegations (3) through (5), Mr. Mullins was directed 
to serve affidavits by October 14, 2024. (Id. at 8) Failure to comply with
Minn. Stat. § 145.682
 would result in mandatory dismissal with prejudice of Mr. Mullins’s FTCA 
claim. (Id.)                                                              
   The government objects to the R&R’s finding that Mr. Mullins need not serve 
expert affidavits as to allegations (1) and (2). (Doc. No. 62.)           
                          ANALYSIS                                      
I.   Standard of Review                                                   

   The portions of the R&R to which the government objects are reviewed de novo, 
and the R&R may be accepted, rejected, or modified, in whole or in part.
28 U.S.C. § 636
(b)(1); D. Minn. LR 72.2(b)(3). Any aspect of an R&R to which no specific 
objection is made is reviewed for clear error. Grinder v. Gammon,
73 F.3d 793, 795
 (8th 
Cir. 1996); see also Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 amendment 
(“When no timely objection is filed, the court need only satisfy itself that there is no clear 

error on the face of the record in order to accept the recommendation.”).  
II.  Mr. Mullins’s Negligent Treatment and Care Claim under the FTCA      
   The FTCA creates federal liability for personal injuries caused by the negligent or 
wrongful acts or omissions of a government employee acting within the scope of his or 
her office or employment.
28 U.S.C. § 1346
(b). Liability is limited to circumstances 

where the government, if it were a private person, would be liable to the claimant in 
accordance with the law of the place where the act or omission occurred.
Id.
 Thus, the 
FTCA enables a claimant to assert claims against the government as if it were the 
employer of a negligent federal employee, not as if it were itself the negligent employee. 
Knowles v. United States,
91 F.3d 1147
, 1151–52 (8th Cir. 1996) (Beam, J., dissenting). 

Ascertaining liability also requires finding a private entity that is most reasonably 
analogous to the United States under like circumstances. See Lozada v. United States,
974 F.2d 986, 989
 (8th Cir. 1992).                                            
   Here, Mr. Mullins’s FTCA claim is based on allegations of inadequate medical 
care provided at FMC-Rochester. (Doc. No. 11 ¶ 2.) Under the present circumstances, it 
is most reasonable to analogize FMC-Rochester to a private hospital. Lozada,
974 F.2d at 989
; see United States v. Smith,
499 U.S. 160, 162
 (1991). Hospitals may be held 
vicariously liable under Minnesota law for the negligent acts or omissions of their 
employees. Plutshack v. Univ. of Minn. Hospitals,
316 N.W.2d 1
, 5–7 (Minn. 1982). 
Therefore, the government may be liable under the FTCA if one of its employees 
provided negligent treatment and care to Mr. Mullins. Additionally, Minnesota is a 
jurisdiction that applies joint and several liability to indivisible injuries, and it is difficult 

at this stage of the litigation (especially without argument from the parties on the issue) to 
conclusively determine that Mr. Mullins’s injury is divisible. See Canada by Landy v. 
McCarthy,
567 N.W.2d 496, 507
 (Minn. 1997).                               
   The government contends that Mr. Mullins’s case should be dismissed because he 
failed to comply with
Minn. Stat. § 145.682
, which applies to actions “alleging 

malpractice, error, mistake, or failure to cure, whether based on contract or tort, against a 
health care provider which includes a cause of action as to which expert testimony is 
needed to establish a prima facie case.”
Minn. Stat. § 145.682
. Failure to timely serve the 
two affidavits required by
Minn. Stat. § 145.682
 results in “mandatory dismissal with 
prejudice of each cause of action as to which expert testimony is necessary to establish a 

prima facie case.”
Id.
 subd. 6(a)–(b). Plutshack,
316 N.W.2d at 5
.        
   It is premature to conclude that
Minn. Stat. § 145.682
 applies to Mr. Mullins’s 
FTCA claim. The R&R commits clear error by not fully considering that Mr. Mullins’s 
claim, brought under the FTCA, effectively mirrors a claim against the employer of the 
allegedly negligent medical staff. See Knowles, 91 F.3d at 1151–52. Consequently, 
whether Mr. Mullins could establish a prima facie case of negligent treatment and care 

against the government, potentially without needing to satisfy allegations (2) through (5), 
or by substantiating these allegations by means other than expert testimony, was not fully 
considered. See Chizmadia v. Smiley’s Point Clinic,
873 F.2d 1163
, 1165 (8th Cir. 1989) 
(directing courts to explore all possible means of establishing a prima facie case without 
expert testimony).                                                        
   The statute here only becomes applicable when expert testimony is necessary to 

establish a prima facie case of negligent treatment and care. There are three elements of 
such a claim in Minnesota: (1) the standard of care recognized by the medical community 
as applicable to the defendant’s conduct; (2) that the defendant in fact departed from that 
standard; and (3) that the defendant’s departure from the standard was a direct cause of 
the injuries. Plutshack,
316 N.W.2d at 5
.                                 

   Expert testimony must usually be offered with respect to the standard of care and 
departure from that standard. Silver v. Redleaf,
194 N.W.2d 271, 272
 (Minn. 1972). But 
there are exceptional cases in which expert testimony is not necessary. Sorenson v. 
St. Paul Ramsey Med. Ctr.,
457 N.W.2d 188, 191
 (Minn. 1990). Expert testimony is not 
required when the jury can rely on common knowledge to determine that the results of 

surgical or medical treatment were the product of negligence. Miller v. Raaen,
139 N.W.2d 877
, 880–81 (Minn. 1966). Generally, these types of cases involve circumstances 
that could not have happened in the absence of negligence, such as where medical 
devices are left in the body after surgery.
Id.
 (collecting cases); Bellecourt v. United 
States,
784 F. Supp. 623
, 637–38 (D. Minn. 1992). Conversely, expert testimony will 
typically be needed when a claim is prefaced on a failure to diagnose, for example, 

because laypersons are typically unable to diagnose disease. Miller,
139 N.W.2d at 880
. 
Likewise, expert testimony is typically required for cases implicating the standards of 
practice in different schools of medicine, matters of science or specialized art, and with 
respect to matters resting on pure theory, judgment, and opinion.
Id.
     
   At this stage, Mr. Mullins may be able to establish a prima facie case of negligent 
treatment and care against the government without the need for expert testimony, and 

thus the expert affidavit requirement of
Minn. Stat. § 145.682
 does not currently bar his 
claim. To proceed, Mr. Mullins only needs to show that the medical staff employed by 
the government at FMC-Rochester departed from the standard of care recognized by the 
medical community when they failed to remove all seven staples from his head, and that 
the retained staples were a direct cause of his injury. These determinations lie within the 

common understanding of laypeople, as they reflect issues of negligence that are readily 
apparent. See Chizmadia, 873 F.2d at 1165 (noting that expert testimony may not be 
required where the injury is an obvious consequence of negligence); cf. Swierkiewicz v. 
Sorema N. A.,
534 U.S. 506
, 511–12 (2002) (“It thus seems incongruous to require a 
plaintiff, in order to survive a motion to dismiss, to plead more facts than he may 

ultimately need to prove to succeed on the merits . . . .”).              
   Alternatively, at this time, it is uncertain whether expert testimony is necessary to 
support allegations (3) and (4), which concern the government’s failure to order imaging 
of Mr. Mullins’s forehead and to intervene in a timely manner to prevent the need for 
surgery. First, these actions may not be readily distinguishable from allegations (1) and 
(2) in terms of Mr. Mullins’s overall injury. Second, while a layperson may not be 

familiar with the technical distinctions among various imaging methods—such as a CT 
scan, ultrasound, or x-ray—it is within common knowledge to recognize that modern 
medical technology can be used to detect foreign objects, such as a staple, within the 
body. This understanding supports the notion that the alleged failure to employ such 
technology could be seen as a product of negligence, even without specialized medical 
expertise.                                                                

   While
Minn. Stat. § 145.682
 does not currently apply to Mr. Mullins’s claims, this 
does not preclude its applicability as the case progresses, nor does it suggest that he may 
ultimately present his case at trial unencumbered by applicable evidentiary standards and 
requirements. As discovery proceeds and a more developed record emerges, it may 
become evident that certain aspects of Mr. Mullins’s claims, such as the permanency and 

financial valuation of his injuries, will require expert testimony. Similarly, a fuller record 
may reveal that allegation (5) (“timely arrange and refer Plaintiff for surgery”) 
necessitates expert insights to establish a prima facie case. Should it become apparent that 
expert testimony is essential to substantiate Mr. Mullins’s claim of negligent treatment 
and care, the government may renew its demand for expert affidavits under
Minn. Stat. § 145.682
. See Chizmadia v. Smiley’s Point Clinic,
965 F.2d 647
, 648 (8th Cir. 1992) 
(“[D]espite the opportunity to do so, Chizmadia has not offered any evidence to establish 
the prima facia case required to survive pretrial dismissal [under
Minn. Stat. § 145.682
 
for inability to demonstrate a prima facie case of negligent failure to diagnose].”).  
   Because this matter does not currently require the statutorily mandated expert 
affidavits, the Order setting a new deadline for Mr. Mullins to supply expert affidavits is 

rendered moot.

ORDER

   Based on the foregoing, and on all the files, records, and proceedings in this case, 
IT IS HEREBY ORDERED that:                                                
   1.   Defendant United States of America’s Objection to the Report and 
Recommendation (Doc. No. 62) is OVERRULED;                                

   2.   The Report and Recommendation (Doc. No. 52) is ACCEPTED AS      
MODIFIED as set forth above;                                              
   3.   Defendant’s Motion to Dismiss or for Summary Judgment (Doc. No. 25) is 
DENIED; and                                                               
   4.   The Order granting Plaintiff’s Motion for Extension of Time (Doc. No. 51) 

is STRICKEN AS MOOT.                                                      
Date: October 11, 2024            s/ Jerry W. Blackwell                 
                                 JERRY W. BLACKWELL                     
                                 United States District Judge

Reference

Status
Unknown
↑