Richard R. Ryan, Trustee for the Next-of-Kin of Debra Lynn Ryan, Decedent for Action for Death by Wrongful Act, Plaintiff,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0522

Richard R. Ryan,
Trustee for the Next-of-Kin of Debra Lynn Ryan,
Decedent for Action for Death by Wrongful Act,
Plaintiff,

Richard R. Ryan, Trustee for Injury Action, and
Richard R. Ryan in his Personal Capacity,
Appellant,

vs.

Dr. Christopher Lindquist, et al.,
Respondents.

Filed March 25, 2019
Reversed in part and remanded
Schellhas, Judge

Olmsted County District Court
File No. 55-CV-17-1522

Jerry Korba, Korba Law Office P.A., Fridley, Minnesota (for appellant)

Katherine A. McBride, Meagher & Geer, P.L.L.P., Minneapolis, Minnesota (for
respondents)

Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Hooten,
Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant-trustee challenges the dismissal of his dental -malpractice claims against
respondents, arguing that the district court erred by dismissing his claim under Minn. Stat.
§ 573.02, subd. 2 (2018), on the basis that he failed to present the requisite expert testimony
to support his claim. Appellant also argues that the district court erred by dismissing his
loss-of-consortium claim because it relates to his c laim under Minn. Stat. § 5 73.02, subd.
2. We reverse in part and remand.
FACTS
In February 2014, Debra Ryan visited respondent 12th Street Dental Office
complaining of “significant jaw pain.” Respondent Dr. Christopher Lindquist determined
that tooth #32 was impacted and required extraction, and he surgically removed the tooth
on March 10, 2014. Following the surgery, Ms. Ryan continued to experience pain in her
jaw and surrounding areas, resulting in several follow -up visits with Dr. Lindquist and
other medical doctors. Eventually , Dr. Lindquist referred Ms. Ryan to Dr. Kevin
Amundson, who determined that a portion of the root from tooth #32 remained in the gum
following the extraction.
Dr. Amundson removed the root tip of tooth #32 in June 2014, but Ms. Ryan
continued having sign ificant jaw pain. As a result, Dr. Amundson diagnosed Ms. Ryan
with “significant” temporomandibular joint dysfunction (TMJ) and referred her to the
Mayo Clinic, where she received treatment for TMJ. But despite Ms. Ryan making a

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multitude of visits to various doctors and undergoing several jaw procedures, her condition
worsened.
In January 2015, Ms. Ryan was diagnosed with cancer. Because of the “advanced”
nature of the cancer, Ms. Ryan was “not a candidate” for surgery. She received
chemotherapy but died on November 1, 2015.
On April 15, 2016, the district court appointed Ms. Ryan’s husband, appellant
Richard Ryan, as trustee for Ms. Ryan’s next of kin. As trustee, Mr. Ryan commenced this
lawsuit under Minn. Stat. § 573.02 (201 8), against respondents Dr. Lindquist and 12th
Street Dental. Mr. Ryan claimed that Dr. Lindquist was negligent by using “excessive”
force in extracting tooth #32, causing Ms. Ryan’s “lower jaw to become dislocated,” which
led to multiple surgeries. Mr. Ryan alleged that, as a result of the trauma inflicted upon her
temporomandibular joint, Ms. Ryan was unable to open her mouth to eat, which caused her
to become “malnourished.” Mr. Ryan further alleged that Ms. Ryan’s malnourishment led
to a decrease in her immunities that caused her to develop nasopharyngeal cancer that
ultimately caused her death, and he sought damages under the wrongful-death statute.
In addition to seeking wrongful-death damages, Mr. Ryan asserted a separate claim
for special damages under Minn. Stat. § 573.02, sub d. 2. Specifically, Mr. Ryan sought to
recover medical expenses for treatment provided to Ms. Ryan from the date of the
extraction, March 10, 2014, to January 20, 2015, the date on which she was diagnosed with
nasopharyngeal cancer. Mr. Ryan also sought to recover damages for his loss of
consortium. Mr. Ryan supported his claims with an affidavit by Dr. Eric Schleder, a dentist

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who “has been an Associate Professor at the University of Minnesota School of Dentistry
for 22 years.”
Respondents moved for summary judgment on the grounds that Mr. Ryan failed to
come forward with an admissible expert medical opinion that complied with Minn. R. Evid.
702’s expert -admissibility test to support his wrongful -death and medical -malpractice
claims, and that Mr. Ryan there fore could not establish that respondents’ actions or
inactions were a direct cause of Ms. Ryan’s death. Respondents claimed that they were
entitled to judgment as a matter of law because Mr. Ryan “failed to establish any of the
elements of his asserted causes of action.”
The district court determined that although Mr. Ryan’s expert witness “could testify
as an expert regarding the standard of care in dentistry,” he did not “qualify as an expert in
the field of oncology” and therefore “lacks the requisite k nowledge to testify about the
effect of a person’s immune system on the causation of cancer.” The court also determined
that even if Mr. Ryan’s expert witness “was qualified as an expert in the field of oncology,
his opinions lack [ed] foundational reliability” because he did not show that his opinions
were based on scientific peer-reviewed literature. The court concluded that Dr. Schleder’s
expert opinions were inadmissible, and that because Mr. Ryan lacked admissible expert
testimony to establish causation , respondents were entitled to summary judgment with
respect to Mr. Ryan’s wrongful-death claim.1 Without specifically addressing Mr. Ryan’s

1 Mr. Ryan does not challenge the dismissal of his wrongful-death action under Minn. Stat.
§ 573.02, subd. 1.

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claim for special damages, the court concluded that because “the underlying wrongful
death claim is dismissed, Mr. Ryan’s loss of consortium claim must follow suit.”
This appeal follows.
D E C I S I O N
Summary judgment is only appropriate when “there is no genuine issue as to any
material fact and [a party] is entitled to judgment as a matter of law.” Minn. R. Civ.
P. 56.01. This court reviews “a grant of summary judgment de novo to determine whether
there are any genuine issues of material fact and whether the court erred in its application
of the law to the facts.” Fenrich v. The Blake School, 920 N.W.2d 195, 201 ( Minn. 2018)
(quotation omitted). In conducting this review, we view “the evidence in the light most
favorable to the nonmoving party . . . and resolve all doubts and factual inferences against
the moving parties.” Rochester City Lines, Co. v. City of Rochester, 868 N.W.2d 655, 661
(Minn. 2015).
Minnesota law provides that “[a] cause of action arising out of an injury to the
person dies with the person of the party in whose favor it exists, except as provided in
section 573.02.” Minn. Stat. § 573.01 (2018). The exceptions provided in Minn. Stat.
§ 573.02 allow an appointed trustee to continue or maintain an action for wrongful death
if the decedent might have maintained such an action, or an action for special damages if
the decedent suffered personal injuri es and later died “from a cause unrelated to those
injuries.” Minn. Stat. § 573.02, subds. 1, 2. “‘Special damages’ are those damages to which
an exact dollar amount can be assigned, such as medical expenses or lost wages to date of
death.” Auers v. Progre ssive Direct Ins. Co. , 878 N.W.2d 350, 353 (Minn. App. 2016)

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(quoting Deal v. Northwood Children’s Home Soc’y , 608 N.W.2d 922, 925 n.1 (Minn.
App. 2000), review denied (Minn. June 13, 2000)), review denied (Minn. July 19, 2016).
Mr. Ryan argues that he pre sented the requisite expert testimony in support of his
cause of action for special damages under Minn. Stat. § 573.02, subd. 2, and that this court
therefore should partially reverse the district court’s judgment to allow him to prosecute
his claim for me dical expenses for treatment provided to Ms. Ryan from the date of the
extraction, March 10, 2014, to January 20, 2015, the date that she was diagnosed with
nasopharyngeal cancer. Mr. Ryan also argues that he is entitled to loss -of-consortium
damages incurred during the same time period.
A. Special damages under Minn. Stat. § 573.02, subd. 2
In a medical -malpractice action, a plaintiff must prove: “(1) the standard of care
recognized by the medical community as applicable to the particular defendant’s conduct,
(2) that the defendant in fact departed from that stand ard, and (3) that the defendant’ s
departure from the standard was a direct cause of the patient’s injuries.” MacRae v. Grp.
Health Plan, Inc., 753 N.W.2d 711, 717 (Minn. 2008) (quotation omitted). As to the third
element, a plaintiff must present competent expert testimony showing that the defendant’s
action or inaction was a direct cause of the injury. Teffeteller v. Univ. of Minn., 645 N.W.2d
420, 428 (Minn. 2002). “A mere possibility of caus ation is not enough to sustain a
plaintiff’s burden of proof.” McDonough v. Allina Health Sys. , 685 N.W.2d 688, 697
(Minn. App. 2004) (citing Walton v. Jones , 286 N.W.2d 710, 715 (Minn. 1979)) . A
plaintiff’s “failure to provide such admissible expert testimony results in the failure to

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establish an essential element of that party’s case, and the moving party is entitled to
summary judgment as a matter of law.” Id.
Expert testimony is inadmissib le unless it satisfies the requirements of Minn. R.
Evid. 702. Doe v. Archdiocese of St. Paul , 817 N.W.2d 150, 164 (Minn. 2012). The
supreme court has stated that expert testimony is only admissible under rule 702 if the
proponent establishes that the proffered testimony satisfies a four-part test: “(1) the witness
must qualify as an expert; (2) the expert’s opinion must have foundational reliability;
(3) the expert testimony must be helpful to the trier of fact; and (4) if the testimony involves
a novel scientific theory, it must satisfy the Frye–Mack standard.” Id.2
Respondents argue that the “district court properly dismissed the case in its entirety
because [Mr. Ryan] failed to provide a foundationally reliable expert opinion to support
his causes of action.” Specifically, respondents claim that Mr. Ryan’s expert was properly
excluded because Dr. Schleder “does not have medical foundation—admissible facts—for
his opinion that Dr. Lindquist dislocated [Ms. Ryan]’s jaw and that this alleged breach of
the standard of care caused her temporomandibular disks to become dislocated.”
Respondents also contend that Dr. Schleder’s opinion lacks foundational reliability
because his “admitted lack of expertise with respect to nasopharyngeal cancer means that
he cannot say when the cancer developed or whether the symptoms that she exhibit [ed]—
all of which are symptoms of nasopharyngeal cancer—were caused by the extraction, as
opposed to the existing and developing disease.”

2 Respondents do not argue that Mr. Ryan’s claim under Minn. Stat. § 573.02, subd. 2,
involves a novel or scientific theory.

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The supreme court has outlined three steps that a district court must follow in
analyzing the foundational reliability of expert testimony. Id. at 167–68. “First, the district
court must analyze the proffered testimony in light of the purpose for which it is being
offered.” Id. “Second, the court must consider the underlying reliability, consistency, and
accuracy of the subject about which the expert is testifying.” Id. at 168 . Finally, “the
proponent of evidence about a given subject must show that it is reliable in that partic ular
case.” Id. “As long as the district court considered the relevant foundational reliability
factors, [an appellate court] will not reverse its evidentiary finding absent an abuse of
discretion.” Id.
The parties here recite the facts at length to support their positions. But a review of
the district court’s order reveals that the court never considered Mr. Ryan’s cause of action
under Minn. Stat. § 573.02, subd. 2. Rather, the court specifically stated in its order that
Mr. Ryan asserted “two causes of action: (1) wrongful death in his capacity as Trustee for
Ms. Ryan’s Next of Kin, and (2) loss of consortium in his personal capacity.” The court
did not consider the steps set forth in Doe that must be considered in analyzing the
foundational reliability of Dr. Schleder’s opinion with respect to Mr. Ryan’s cause of action
under Minn. Stat. § 573.02, subd. 2. We therefore have nothing to review regarding the
admissibility of Dr. Schleder’s opinions under Minn. R. Evid. 702 with respect to Mr.
Ryan’s cause of action under Minn. Stat. § 573.02, subd. 2. Although respondents claim
that “implicit in the district court’s dismissal of the entire matter” is that Mr. Ryan’s claim
under Minn. Stat. § 573.02, subd. 2, “suffer[s] from the same lack of factual foundati on

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and foundational reliability as does the wrongful -death claim,” the court’s lack of any
reference to this cause of action belies respondents’ position.
Because the decision whether to admit expert testimony under rule 702 is
discretionary, and the district court did not address whether Dr. Schleder’s expert -opinion
testimony is admissible with respect to Mr. Ryan’s cause of action under Minn. Stat.
§ 573.02, subd. 2, we reverse the grant of summary judgment and remand for the court to
consider the admissibility of Dr. Schleder’s opinion testimony with respect to that cause of
action.
B. Loss-of-consortium claim
“‘Consortium,’ as a general description, represents reciprocal rights inherent in the
marital relationship of a husband and wife, including such undefined elements as comfort,
companionship, and commitment to the needs of each other.” Thrill v. Modern Erec ting
Co., 170 N.W.2d 865, 867 –68 (Minn. 1969) (footnote omitted) . Because a loss -of-
consortium claim is a derivative claim, the right to recover from a defendant derives,
through marriage, from an injured spouse’s ability to recover from the same defendant .
Huffer v. Kozitza, 375 N.W.2d 480, 482 (Minn. 1985). A spouse cannot recover for loss of
consortium in the absence of direct physical injury to his or her spouse in the underlying
tort claim. Kohler v. Fletcher , 442 N.W.2d 169, 173 (Minn. App. 1989) (sta ting that if
“wife’s underlying tort claim fails, [husband’s] claim for loss of consortium also fails ”),
review denied (Minn. Aug. 25, 1989).
Here, the district court concluded that because Mr. Ryan’s “underlying wrongful
death claim is dismissed, [his] l oss of consortium claim must follow suit.” Mr. Ryan

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challenges the dismissal of his loss-of-consortium claim as it relates to his cause of action
under Minn. Stat. § 573.02, subd. 2. Mr. Ryan contends that if we reverse and remand for
consideration of his cause of action under Minn. Stat. § 573.02, subd. 2, we also should
reverse and remand the dismissal of his loss -of-consortium claim for the “limited” time
period spanning from the date on which tooth #32 was surgically removed on March 10,
2014, to January 20, 2015, the date Ms. Ryan’s cancer was discovered. We agree.
As addressed above, a cause of action under Minn. Stat. § 572.02, subd. 2, is limited
to “special damages,” which are limited to those damages to which an exact dollar amount
can be assigned, such as medical expenses or lost wages to the date of death. Beaudry v.
State Farm Mut. Auto. Ins. Co., 518 N.W.2d 11, 12 n.1 (Minn. 1994), overruled on other
grounds by Oanes v. Allstate Ins. Co. , 617 N.W.2d 401 (Minn. 2000). But the supreme
court has recognized that although a loss-of-consortium claim is derivative, using the same
liability as the underlying tort claim, loss -of-consortium claims are “separate claims with
separate injuries.” Huffer, 375 N.W.2d at 482; see State Farm Mut. Auto. Ins. Co. v. Village
of Isle, 122 N.W.2d 36, 42 (Minn. 1963) (stating that “loss of consortium cannot fairly be
said to constitute an injury to the person, but rather appears to be a consequential item of
damage resulting from such a type of injury, and giving rise to a separate and independent
cause of action”). And a “spouse’s cause of action for loss of consortium does not abate
upon the death of his/her mate.” Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc. ,
355 N.W.2d 138, 145 (Minn. 1984).
Here, as Mr. Ryan concedes, “his claim for consortium fails” in “the event that [he]
fails to show malpractice and injury to [Ms. Ryan] as a result of th[e] malpractice on the

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part of the respondent.” Because Mr. Ryan’s loss -of-consortium claim is derivative of his
cause of action under Minn. Stat. § 572.02, subd. 2, and the district court failed to address
that cause of action in its order for summary judgment, the dismissal of the loss -of-
consortium claim was premature. We therefore reverse the district court’s dismissal of Mr.
Ryan’s loss-of-consortium claim pending a decision on his cause of action under Minn.
Stat. § 573.02, subd. 2.
Reversed in part and remanded.