Articles Posted in North Dakota Supreme Court

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Mechele Greene appealed a district court's judgment dismissing her claim without prejudice for failure to serve an affidavit from an expert witness on Gary Matthys, M.D., within three months of commencing the action under N.D.C.C. 28-01-46. In 2013, Matthys performed a revision left total hip arthroplasty involving the femoral component, femoral head, and acetabular liner. In late 2015, Greene commenced this medical negligence action by serving a summons and complaint on Matthys. Matthys answered, denying that either he or any of his employees were the "proximate or legal cause of any alleged injury, loss or damage claimed by Plaintiff." Greene's attorney disclosed the existence of an expert witness willing to testify on Greene's behalf in a letter to Matthys' attorney in early 2016. Matthys moved to dismiss Greene's claim under N.D.C.C. 28-01-46, arguing Greene failed to provide an affidavit from an expert witness within three months of commencing this action. Greene opposed the motion. After review, the Supreme Court concluded, as to the use of the term "affidavit," N.D.C.C. 28-01-46 was clear on its face; the statute required Greene to serve Matthys with an affidavit from an expert; and Greene did not met the requirements of N.D.C.C. 28-01-46 as a matter of law. Therefore, the Court affirmed the district court's judgment dismissing Greene's claim against Matthys. View "Greene v. Matthys" on Justia Law