On December 27, 2018 a
Motion-Secondary
was filed
involving a dispute between
and
for Personal Injury
in the District Court of Goodhue County.
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25-CV-1 8-3291
Filed in District Court
State of Minnesota
10/23/2019 4:14 PM
STATE OF MINNESOTA DISTRICT COURT - CIVIL DIVISION
COUNTY OF GOODHUE FIRST JUDICIAL DISTRICT
Court File No. 25—CV—18—3291
Dylan Michael King, a minor, by his Case Type: Personal Injury
Mother and natural guardian Carrie King,
and Carrie King, individually, DEFENDANT’S REPLY
MEMORANDUM OF LAW IN
Plaintiffs, SUPPORT OF MOTION TO
VS
DEPOSE EXPERT WITNESS
Dennis Furlong,
Defendant.
INTRODUCTION
This Reply Memorandum 0f Law is submitted by Defendant Dennis Furlong in
support 0f his Motion t0 Depose Expert Witness Michael Long.
ARGUMENT
Plaintiffs’ lead authority, Leininger v. Swadner, 156 N.W.2d 254 (Minn. 1968), is
0f limited usefulness. (Pls.’ Resp. Opp. Def.’s Mot. to Depose Expert 1—3.) Leininger
interpreted the 1967 version 0f the rules, 156 N.W.2d at 253 n.3, which differ from the
current rules. In 1967, the applicable rule stated: “The production 0r inspection of. . .any
writing that reflects. .. the conclusions 0f an expert. . . shall not be required.” Id. at 253.
But in 1975 there was “a substantial change in existing practice.” Minn. R. CiV. P. 26.02
comm. cmt.—1975, subd. 4. Whatever may have been the rule in 1968, discovery of
expert opinions is now allowed. See Minn. R. CiV. P. 2602(6).
Plaintiffs are incorrect that Rule 26.02 does not permit depositions. (Pls.’ Resp.
Opp. Def.’s Mot. to Depose Expert 3.) The Rule contains no such prohibition.
961912 700013-182329
25-CV-18-3291
Filed in District Court
State of Minnesota
10/23/2019 4:14 PM
Discovery beyond interrogatories is expressly allowed, upon motion. Minn. R. Civ. P.
26.02(e)(1)(B).
Plaintiffs do not respond to the substance of Defendant’s citation to a (recent)
Minnesota treatise, which describes that expert depositions are “routinely allowed” by
district courts. 27 Michael K. Steenson, J. David Prince, & Sarah L. Brew, Minnesota
Practice: Products Liability Law § 11.20 (2019–2020 ed.). Citing the official advisory
comments, the treatise explains that the motion-requirement was intended to curb
runaway discovery in “small” cases. Id. (quoting Minn. R. Civ. P. 26.02 comm. cmt.—
1985). Plaintiffs do not dispute that this case is large, not “small.”
Plaintiffs instead argue that the treatise is irrelevant because it focuses on
products-liability cases, not negligence cases. (Pls.’ Resp. Opp. Def.’s Mot. to Depose
Expert 4). This distinction makes little difference. The rationale for expert discovery in
one kind of case holds equally true for the other. Minnesota favors liberal discovery,
State v. Deal, 740 N.W.2d 755, 763 (Minn. 2007), disfavors trial by surprise, see Minn.
R. Civ. P. 26.02 comm. cmt.—1975, subd. 4, and provides parties an “absolute right” to
disclosure of expert opinions, Dennie v. Metro. Med. Ctr., 387 N.W.2d 401, 406
(Minn. 1986), just as much in negligence cases as in products-liability cases.
Defendant reasserts that Long’s report is confusing and does not provide
disclosure proportionate to the stakes of this case. Plaintiffs have not disputed that their
costs will be minimal. See Minn. R. Civ. P. 26.02(e)(3). Plaintiffs have not otherwise
argued prejudice. The Court should allow a deposition pursuant to Minn. R. Civ. P.
26.02(e)(1)(B).
961912 700013-182329 2
25-CV-1 8-3291
Filed in District Court
State of Minnesota
10/23/2019 4:14 PM
CONCLUSION
For the reasons set forth above, Defendant respectfully requests that his Motion t0
Depose Expert Witness Michael Long be granted.
Dated: October 23, 2019. DUNLAP & SEEGER, P.A.
By: s/John T. Giesen
Ken D. Schueler
Registration N0. 190378
John T. Giesen
Registration N0. 0399951
Attorneys for Defendant Dennis Furlong
30 3rd Street, Suite 400
Post Office Box 549
Rochester, Minnesota 55903
Telephone: (507) 288-91 11
Email: kds@dunlaplaw.com
Email: jtg@dunlaplaw.com
961912 700013-182329 3
Document Filed Date
October 23, 2019
Case Filing Date
December 27, 2018
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25-CV-1 8-3291 Filed in District Court State of Minnesota 10/23/2019 4:14 PM STATE OF MINNESOTA DISTRICT COURT - CIVIL DIVISION COUNTY OF GOODHUE FIRST JUDICIAL DISTRICT Court File No. 25—CV—18—3291 Dylan Michael King, a minor, by his Case Type: Personal Injury Mother and natural guardian Carrie King, and Carrie King, individually, DEFENDANT’S REPLY MEMORANDUM OF LAW IN Plaintiffs, SUPPORT OF MOTION TO VS DEPOSE EXPERT WITNESS Dennis Furlong, Defendant. INTRODUCTION This Reply Memorandum 0f Law is submitted by Defendant Dennis Furlong in support 0f his Motion t0 Depose Expert Witness Michael Long. ARGUMENT Plaintiffs’ lead authority, Leininger v. Swadner, 156 N.W.2d 254 (Minn. 1968), is 0f limited usefulness. (Pls.’ Resp. Opp. Def.’s Mot. to Depose Expert 1—3.) Leininger interpreted the 1967 version 0f the rules, 156 N.W.2d at 253 n.3, which differ from the current rules. In 1967, the applicable rule stated: “The production 0r inspection of. . .any writing that reflects. .. the conclusions 0f an expert. . . shall not be required.” Id. at 253. But in 1975 there was “a substantial change in existing practice.” Minn. R. CiV. P. 26.02 comm. cmt.—1975, subd. 4. Whatever may have been the rule in 1968, discovery of expert opinions is now allowed. See Minn. R. CiV. P. 2602(6). Plaintiffs are incorrect that Rule 26.02 does not permit depositions. (Pls.’ Resp. Opp. Def.’s Mot. to Depose Expert 3.) The Rule contains no such prohibition. 961912 700013-182329 25-CV-18-3291 Filed in District Court State of Minnesota 10/23/2019 4:14 PM Discovery beyond interrogatories is expressly allowed, upon motion. Minn. R. Civ. P. 26.02(e)(1)(B). Plaintiffs do not respond to the substance of Defendant’s citation to a (recent) Minnesota treatise, which describes that expert depositions are “routinely allowed” by district courts. 27 Michael K. Steenson, J. David Prince, & Sarah L. Brew, Minnesota Practice: Products Liability Law § 11.20 (2019–2020 ed.). Citing the official advisory comments, the treatise explains that the motion-requirement was intended to curb runaway discovery in “small” cases. Id. (quoting Minn. R. Civ. P. 26.02 comm. cmt.— 1985). Plaintiffs do not dispute that this case is large, not “small.” Plaintiffs instead argue that the treatise is irrelevant because it focuses on products-liability cases, not negligence cases. (Pls.’ Resp. Opp. Def.’s Mot. to Depose Expert 4). This distinction makes little difference. The rationale for expert discovery in one kind of case holds equally true for the other. Minnesota favors liberal discovery, State v. Deal, 740 N.W.2d 755, 763 (Minn. 2007), disfavors trial by surprise, see Minn. R. Civ. P. 26.02 comm. cmt.—1975, subd. 4, and provides parties an “absolute right” to disclosure of expert opinions, Dennie v. Metro. Med. Ctr., 387 N.W.2d 401, 406 (Minn. 1986), just as much in negligence cases as in products-liability cases. Defendant reasserts that Long’s report is confusing and does not provide disclosure proportionate to the stakes of this case. Plaintiffs have not disputed that their costs will be minimal. See Minn. R. Civ. P. 26.02(e)(3). Plaintiffs have not otherwise argued prejudice. The Court should allow a deposition pursuant to Minn. R. Civ. P. 26.02(e)(1)(B). 961912 700013-182329 2 25-CV-1 8-3291 Filed in District Court State of Minnesota 10/23/2019 4:14 PM CONCLUSION For the reasons set forth above, Defendant respectfully requests that his Motion t0 Depose Expert Witness Michael Long be granted. Dated: October 23, 2019. DUNLAP & SEEGER, P.A. By: s/John T. Giesen Ken D. Schueler Registration N0. 190378 John T. Giesen Registration N0. 0399951 Attorneys for Defendant Dennis Furlong 30 3rd Street, Suite 400 Post Office Box 549 Rochester, Minnesota 55903 Telephone: (507) 288-91 11 Email: kds@dunlaplaw.com Email: jtg@dunlaplaw.com 961912 700013-182329 3