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Univ. of South Carolina School of Law

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Sunday, May 16, 2010

Just The Facts: Supreme Court Of North Dakota Finds NDRCP 56(e) Trumps NDRE 705 In Uninsured Motorist Appeal

Like its federal counterpart, North Dakota Rule of Evidence 705 provides that

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Also, like its federal counterpart, North Dakota Rule of Civil Procedure 56(e) provides in relevant part that, with regard to motions for summary judgment,

Supporting and opposing affidavits must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit must be attached thereto or served therewith.

So, do affidavits containing expert opinions submitted in connection with motions for summary judgment need to set forth specific facts showing there is a genuine issue for trial? In its recent opinion in Perius v. Nodak Mut. Ins. Co., 2010 WL 1875738 (N.D. 2010), the Supreme Court of North Dakota, like many courts before it, answered this question in the affirmative.

In Perius, Allen Perius appealed from a summary judgment dismissing his action against his motor vehicle insurer, Nodak Mutual Insurance Company, for no-fault benefits and for uninsured motorist coverage. Nodak had moved for summary judgment on the ground that Perius failed to sufficiently allege that he suffered any injuries from the car accident giving rise to his action. According to Nodak, the evidence clearly established that Perius was merely treated after the accident for an existing degenerative arthritis, with no competent, admissible evidence establishing that his claimed injuries were proximately caused by the motor vehicle accident.

Perius had

submitted affidavits of two of his treating medical providers, Dr. Michael Quast and Dr. Kelly Remillard. Dr. Quast's affidavit said Perius "is continuing to have persistent pain and I believe it is a result of traumatic arthritis from the injury" sustained in the motor vehicle accident. Dr. Quast's affidavit further stated, "To a reasonable degree of medical certainty, I believe the medical treatment I have provided Allen Perius and associated medical expenses are reasonable, necessary and related to the October 8, 2004 motor vehicle accident." Dr. Remillard's affidavit said, "To a reasonable degree of medical certainty, I believe the medical/chiropractic treatment I have provided Allen Perius and associated medical/chiropractic expenses are reasonable, necessary and related to the October 8, 2004 motor vehicle accident." Nodak responded that the affidavits of Dr. Quast and Dr. Remillard were conclusory and did not provide competent, admissible evidence of causation and that those affidavits should be excluded because they did not comply with applicable discovery rules.

The trial court agreed with Nodak and granted its motion for summary judgment, prompting Perius' appeal, which eventually reached the Supreme Court of North Dakota. The North Dakota Supremes noted the tension between Rule 705 and Rule 56(e) but noted that "[f]ederal courts have decided that although F.R.Ev. 705 permits experts to testify by opinion without disclosing underlying facts or data, affidavits containing expert opinions, like other materials submitted in opposition to a supported motion for summary judgment, must comply with F.R.Civ.P. 56(e) and set forth specific facts showing there is a genuine issue for trial."  

The court then noted that state courts across the country had reached the same conclusion and joined the chorus. That said, the court still reversed, finding that

Dr. Quast's affidavit stated that Perius continued to have persistent pain and that he believed Perius's pain was a result of traumatic arthritis from an injury in the October 2004 motor vehicle accident. Dr. Quast opined to a reasonable degree of medical certainty that the medical treatment he had provided Perius and the associated medical expenses were reasonable, necessary and related to the October 2004 motor vehicle accident. Dr. Quast's affidavit reflects his opinions were based on Perius's reports, on an MRI and on his treatment of Perius. These are the types of facts and sources of information reasonably relied upon by medical doctors when forming opinions about a patient's medical condition....

Dr. Quast's affidavit inferentially reflects personal knowledge as Perius's medical provider, sets forth admissible opinions on an ultimate issue to be decided by the trier of fact, and establishes that he was competent to render an opinion about his patient's condition....Although Dr. Quast's affidavit was minimal, we conclude the affidavit sets forth sufficient facts from a medical provider to raise a factual issue about whether the 2004 motor vehicle accident proximately caused Perius's claimed injuries and damages.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/05/705-56e--perius-v-nodak-mut-ins-co----nw2d------2010-wl-1875738nd2010.html

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