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Mercer v. Andersen

June 6, 2006

ROBERT MERCER, APPELLANT,
v.
STEVEN ANDERSEN, M.D., ET AL., RESPONDENTS,
CONNIE RING, R.N., ET AL., RESPONDENTS.



Ramsey County District Court File No. C6-04-4675.

SYLLABUS BY THE COURT

I. On a motion to dismiss based on insufficient service of process and expiration of the statute of limitations, the district court has jurisdiction to determine the substantive effect of the statute of limitations even if the plaintiff concedes that service was insufficient.

II. A plaintiff does not engage in a diligent search for purposes of tolling the statute of limitations under Minn. Stat. § 541.13 (2004) when the plaintiff knows that the defendant does not reside in Minnesota but makes no attempt to locate him outside the state.

The opinion of the court was delivered by: LANSING,Judge

Affirmed

Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Shumaker, Judge.

OPINION

The district court dismissed with prejudice Robert Mercer's medical-malpractice claims against Steven Andersen and partially dismissed his malpractice claims against the remaining defendants for failure to comply with the expert-review requirements of Minn. Stat. § 145.682 (2004). On appeal Mercer challenges both dismissals. Because we conclude that the district court properly exercised its jurisdiction by dismissing the complaint against Andersen as outside the statute of limitations, correctly applied the statutory expert-review requirements, and acted within its discretion by denying Mercer's motion to extend the scheduling-order deadline, we affirm.

FACTS

Robert Mercer was an inmate at a Minnesota correctional facility in May 2000 when he developed an inflammation related to his previously diagnosed condition of psoriasis and sought treatment at the facility's health clinic. Dr. Steven Andersen consulted with Mercer and prescribed a treatment of ultraviolet light. Andersen ordered Mercer to expose the inflamed area of his face to ultraviolet light for twenty minutes, three times a week, for six months. Mercer began the self-administered treatment the next day. Connie Ring, a nurse at the facility, showed him Andersen's order prescribing treatment and instructed him on the use of the light machine and the necessity of wearing protective goggles. In his first and only treatment session, Mercer did not wear the goggles and, wearing only his underwear, exposed his entire body to the ultraviolet light for approximately fifteen minutes. As a result of this session, Mercer sustained burns all over his body and also experienced eye pain. He was diagnosed with keratitis, an inflammation of the cornea.

In March 2004 Mercer sued Andersen, Ring, Correctional Medical Services, Inc., and the State of Minnesota Department of Corrections for negligence and battery. Mercer did not obtain personal service of Andersen who had moved to Haiti with his family in August 2000 to accept a position as medical director of a missionary clinic. In July 2004 Andersen moved to dismiss the claims against him for insufficiency of process and expiration of the statute of limitations. The district court dismissed the complaint with prejudice, reasoning that the statute of limitations barred the action. The district court then granted partial dismissal for the remaining parties under Minn. Stat. § 145.682, subd. 6 (2004), holding that Mercer failed to satisfy the statutory expert-review requirements for medical-malpractice claims because his expert affidavit failed to address causation between the alleged negligent acts and Mercer's alleged permanent injuries. The court also denied Mercer's motion to extend the scheduling-order deadline to allow him to comply with the expert-review statute.

Mercer raises four issues on appeal. First, he argues that the court lacked jurisdiction to dismiss his case against Andersen with prejudice. Second, he asserts that, even if the court had jurisdiction, Andersen's absence from Minnesota tolled the statute of limitations. Third, he contends that the court erred by dismissing his claims alleging permanent injuries because he complied with the requirements of the expert-review statute. Finally, Mercer argues that, if his expert affidavit did not satisfy the statutory requirements, the court erred by denying his motion to extend the scheduling-order deadline for good cause.

ISSUES

I. When the plaintiff concedes that service was insufficient, does the district court have jurisdiction to determine whether the ...


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