Affidavit of Expert Review Requirement Eased

Most legal malpractice cases end up focusing upon the affidavits of expert review and the proposed testimony of those experts.  It has always been a hurdle, essentially manufactured when the Minnesota legislature first enacted the expert witness affidavit requirements in 1997.  In October, 2014, the Minnesota Court of Appeals suggested that those requirements are not so broad as many district courts had been suggesting.   In Gusick v Kimball, the plaintiff, the personal representative of an estate, brought a claim against an attorney whose firm had drafted powers of attorney which proved defective in that they allowed a relative to wrongfully drain the decedent's accounts.

The Court of Appeals held that an expert witness was not required to establish that "but-for" causation, but only proximate cause.  The court quoted Wartnick v Moss & Barnett for the holding that, in a legal malpractice case, one must show that 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. The attorney is then liable for any injury proximately resulting from it, even though the attorney could not have anticipated the particular injury which did happen.  The appeals court in Gusick held that as to but-for causation expert testimony was not necessary as these issues did not require any "technical or specialized knowledge."  For example the question as to whether a person would have refused to sign the form or would have limited the form's authorization was not a matter of expert testimony.  This decision eases the requirements of expert review as a number of experts may shy away from making such predictions.

Unfortunately, as is true with most plaintiff oriented decisions from the Court of Appeals, Gusick is a unpublished opinion and may be disregarded by the courts in the future.  It is however, a harbinger that the appellate courts may finally becoming a bit more reasonable in interpreting the expert affidavit requirements of Minn. Stat. sec. 544.42.