Articles Posted in North Dakota Supreme Court

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Kelly McCarthy appealed after a district court dismissed her complaint against Dr. Ariane Getz with prejudice. On September 23, 2015, McCarthy’s daughter died by suicide. Prior to her death, McCarthy’s daughter received psychological counseling from Dr. Getz for several months for symptoms relating to anxiety and depression. McCarthy’s daughter had ten total visits with Dr. Getz, occurring roughly once to twice a month. McCarthy’s daughter was a minor when she was first seen by Dr. Getz, but turned 18 prior to her death. During the course of her visits with Dr. Getz, McCarthy’s daughter expressed self-injurious behavior, anxiety, depression, passive thoughts about suicide, discord with her mother, and inconsistency in taking her medications. McCarthy’s daughter’s last visit with Dr. Getz occurred on September 10, 2015. On September 23, 2015, prior to discovering her daughter’s death, McCarthy contacted Dr. Getz to report her daughter missing. McCarthy requested Dr. Getz put her daughter on a 72-hour hold once located. On September 22, 2017, one day shy of the two-year anniversary of her daughter’s death, McCarthy filed a complaint with the district court. On November 9, 2017, McCarthy filed a summons and complaint alleging malpractice against Dr. Getz. McCarthy’s issue on appeal was whether the district court erred as a matter of law in granting the motion for summary judgment based on the statute of limitations. The North Dakota Supreme Court affirmed, concluding the district court did not err in determining McCarthy’s claim was barred by the statute of limitations. View "McCarthy v. Getz" on Justia Law

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Branden Wilkens appealed a district court judgment and order dismissing his complaint against Tarin Westby without prejudice, concluding service under N.D.C.C. 39-01-11 was improper. Wilkens and Westby were involved in a car accident in North Dakota, resulting in Westby’s death. In February 2018, Wilkens served a summons and complaint asserting a claim of negligence against Westby upon the director of the Department of Transportation (“the Department”) under N.D.C.C. 39-01-11, which allowed residents to serve legal process upon the director of the Department when the party being served was: (1) a resident absent from the state continuously for at least six months following an accident, or (2) a nonresident. In March 2018, an attorney answered on Westby’s behalf, moving to dismiss the complaint, arguing personal jurisdiction was lacking and service under the statute was improper, because Westby, a deceased person, did not fit into the definition of “nonresident,” under the statute and was not “absent from the state” by virtue of his death. The district court concluded Westby was neither a “nonresident,” nor “absent from the state” by virtue of his death for purposes of service. The court granted Westby’s motion to dismiss without prejudice, basing its decision on lack of jurisdiction, but recognized the practical effect, based on the statute of limitations, would be a dismissal with prejudice. Wilkens appealed from the court’s order dismissing his claim. Finding no reversible error, the North Dakota Supreme Court affirmed. View "Wilkens v. Westby" on Justia Law

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Mark Klein appealed a judgment following a jury verdict awarding him compensatory damages resulting from a vehicular accident. Klein and Sarah Luithle were in a vehicular accident in 2011 (Luithle died in 2014 from unrelated causes). The case was tried before a jury in August 2018. Prior to trial, Luithle’s Estate moved the district court to exclude two of Klein’s witnesses, Reg Gibbs and Scott Stradley, Ph.D., arguing their testimony and opinions did not meet the requirements of N.D.R.Ev. 702 and 703. The court denied the motion, stating the arguments raised by Luithle’s Estate went to the credibility of the experts, not to the admissibility of their testimony. On the second day of trial, Bill Rosen, M.D., testified as Klein’s medical expert witness. After Dr. Rosen testified, Luithle’s Estate moved to strike part of Dr. Rosen’s testimony, arguing it did not meet the reasonable degree of medical certainty standard and was therefore speculative and inadmissible. After acknowledging Klein’s continuing objection, the court struck all of Dr. Rosen’s testimony. The court also excluded proposed testimony from Gibbs and Stradley because it held there was a lack of foundation for these experts to testify without Dr. Rosen’s testimony. The jury determined Klein was 25% at fault and Luithle was 75% at fault for the accident that caused Klein’s injuries. On appeal, Klein argued the district court incorrectly struck the entirety of his expert witness’s testimony from the record and improperly excluded testimony from two other expert witnesses under N.D.R.Ev. 702 and 703. The North Dakota Supreme Court determined Klein’s substantial rights were affected because his medical expert’s testimony was completely struck and Klein was significantly limited in proving both past and future damages. Additionally, the matter of medical expenses was a major issue at trial, and exclusion of Klein’s only medical expert left him to rely solely on the medical witness called by Luithle’s Estate. Therefore, the Court remanded for a new trial. View "Klein v. Estate of Luithle" on Justia Law

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Keith Steffes, Kelly Steffes and Tasha (Rohrbach) Steffes appealed a district court order granting Nodak Mutual Insurance Company’s motion for a new trial. The Steffeses argued the district court abused its discretion in vacating the judgment and granting Nodak’s motion for a new trial. The North Dakota Supreme Court dismissed the appeal because the order granting a new trial was not then reviewable. View "Nodak Mutual Insurance Company v. Steffes, et al." on Justia Law

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Tessa Bride, as personal representative of the estate of John Pelkey, appealed an order dismissing without prejudice her medical malpractice action against Trinity Hospital, Marc Eichler, M.D., Kim Koo, M.D., and unnamed others. On September 11, 2015, Pelkey fell at home and was transferred to Trinity where he was treated for spinal cord injuries. Neurosurgeons Dr. Eichler and Dr. Koo both operated on him. On September 20, 2015, Pelkey fell at the hospital and sustained serious injuries. Pelkey died on February 2, 2017. The North Dakota Supreme Court affirmed because Bride failed to serve an affidavit containing an admissible expert opinion supporting a prima facie case of professional negligence within three months of the commencement of the action and failed to request an extension of the time period to serve the affidavit within the three months as required by N.D.C.C. 28-01-46. View "Bride v. Trinity Hospital, et al." on Justia Law

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Robin Ayling appealed a judgment dismissing her claims against Mary Ann Sens, M.D., UND School of Medicine employees, and the Grand Forks County State’s Attorney and Board of Commissioners relating to her son’s death. Ayling’s son, Blake, was a student at UND. He was last seen alive at an on-campus party at approximately 1:30 a.m. on March 24, 2012. He was found dead in the rail yard south of UND’s campus at approximately 6:30 a.m. to 7:00 a.m. on March 24, 2012. Dr. Sens performed the autopsy on the same day. She determined Blake was intoxicated, he had a 0.278 blood-alcohol concentration at the time of death, he died from blood loss, and his death was accidental. After learning of the autopsy results, Ayling questioned the blood-alcohol concentration because Blake reportedly did not show signs of intoxication at the party or before the party. Ayling met with Dr. Sens in April 2013, and Sens explained the autopsy report and defended her conclusions. On December 27, 2013, Ayling spoke with a forensic toxicologist who questioned Dr. Sens’ methods in performing the autopsy. The toxicologist believed Blake's urine and vitreous humor should have been tested for alcohol to corroborate the blood test. Ayling sued Dr. Sens, UND School of Medicine employees, and Grand Forks County employees in February 2017, alleging Sens failed to competently perform a medical autopsy as a part of the investigation of Blake's death. Ayling alleged the other Defendants failed to properly supervise Dr. Sens. The district court concluded Ayling’s claims against the Defendants were untimely. After reviewing the record, the North Dakota Supreme Court agreed with the district court that Ayling’s voluminous discovery requests did not relate to the statute of limitations issue and would not have created an issue of material fact supporting denial of the summary judgment motion. The court’s discovery decisions were not an abuse of discretion. View "Ayling v. Sens, et al." on Justia Law

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Dr. Allen Booth and St. Alexius Medical Center appeal from a district court judgment finding North Dakota’s noneconomic damages cap in medical malpractice cases unconstitutional. Dr. Booth and St. Alexius also argue the district court erred in denying a motion for a new trial. On May 29, 2012, Chenille Condon gave birth to a child at St. Alexius Medical Center. Within hours, Condon complained about chest discomfort and shortness of breath. A pulmonary embolism was suspected and testing was ordered in an effort to diagnose the issue. Testing revealed multiple pulmonary nodules in Condon’s mediastinum. Condon was eventually referred to Dr. Booth for a mediastinoscopy for the purpose of collecting a larger tissue sample. The larger tissue sample was necessary for a definitive diagnosis. Not long into the procedure, an injury occurred to Condon’s right innominate artery, resulting in life-threatening bleeding. Condon was placed in intensive care where she had a stroke. The stroke was related to the injury that occurred during surgery. Condon underwent rehabilitation for several months. Condon filed a medical malpractice claim against Dr. Booth. After nine days of proceedings, the jury returned a verdict finding negligence and awarding Condon $265,000 in past economic loss, $1.735-million in future economic loss, $150,000 in past noneconomic loss, and $1.350-million in future noneconomic loss. The North Dakota Supreme Court concluded the damage cap in N.D.C.C. 32-42-02 did not violate the equal-protection provisions of N.D. Const. art. I, section 21. The Supreme Court reversed the district court’s judgment and remanded for a reduction in noneconomic damages consistent with the statute. The Court affirmed the district court’s denial of Dr. Booth’s request for a new trial. View "Condon v. St. Alexius Medical Center, et al." on Justia Law

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Josann Lupo appealed a district court judgment dismissing her complaint with prejudice. A car accident involving Lupo and Brianna McNeeley occurred in Dickinson, North Dakota on August 17, 2009. At that time McNeeley had a Minnesota address. Lupo sued McNeeley in North Dakota district court in August 2015, certifying that she sent the complaint and summons to a process server for service on McNeeley at an address in Battle Lake, Minnesota. The record did not reflect that service of process was effectuated through a process server. On August 15, 2016, the court filed a notice of intent to dismiss, to which Lupo replied requesting the court allow the case to remain pending on the grounds that “service of process upon the Defendant, by publication, will be perfected on September 6, 2016, the date that the last publication of the Summons is set to run in the Dickinson Press.” In October 2017, the court again filed a notice of intent to dismiss to which Lupo again responded seeking the court allow the case to remain pending. After a status conference in November 2017, Lupo filed an affidavit of service by publication in January 2018, and an affidavit of publication in February 2018. In April 2018, following a February 10, 2018 publication of the summons, McNeeley answered, raising the statute of limitations as an affirmative defense and also asserting insufficiency of service of process. In April 2018, McNeeley moved for summary judgment, arguing Lupo’s action was time-barred by the applicable six- year statute of limitations. Lupo opposed the motion, arguing the action was not time- barred because McNeeley was not a resident of North Dakota at the time of the accident and therefore the limitations period was tolled under N.D.C.C. 28-01-32. Lupo submitted the police report from the accident as an exhibit which reflected that, at the time of the accident, McNeeley had a Minnesota address. The district court granted McNeeley’s motion, dismissing Lupo’s complaint with prejudice as a matter of law. The North Dakota Supreme Court agreed N.D.C.C. 28-01-32 did not toll the statute of limitations, and affirmed dismissal with prejudice. View "Lupo v. McNeeley, et al." on Justia Law

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Nicholas Lechner appealed a judgment affirming an administrative order sustaining a Workforce Safety and Insurance ("WSI") order denying his claim for workers' compensation benefits. Lechner argued he proved by the greater weight of the evidence that he suffered a compensable injury and that his claim was timely. The North Dakota Supreme Court affirmed, concluding the administrative law judge's finding that Lechner failed to file a timely claim for benefits is supported by a preponderance of the evidence. View "Lechner v. WSI" on Justia Law

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William Beaulieu appealed a district court judgment reversing an administrative law judge's ("ALJ") order awarding benefits and affirming prior Workforce Safety & Insurance ("WSI") orders. The ALJ's order finding Beaulieu had a fifty percent permanent partial impairment rating was not in accordance with the law and not supported by the evidence. Therefore, the North Dakota Supreme Court concluded the ALJ erred in awarding permanent partial impairment and permanent total disability benefits. View "WSI v. Beaulieu" on Justia Law