Mario A. Ruiz, et al., Appellants,

This opinion will be unpublished and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
A19-1013

Mario A. Ruiz, et al.,
Appellants,

vs.

Michael W. Unger, et al.,
Respondents.

Filed April 13, 2020
Affirmed
Reyes, Judge

Ramsey County District Court
File No. 62-CV-16-2980

Joe Crosby, Crosby Law Office, LLC, St. Paul, Minnesota (for appellants)

Richard J. Thomas, Bryon G. Ascheman, Burke & Thomas, P.L.L.P., Arden Hills,
Minnesota (for respondents)

Considered and decided by Reyes, Presiding Judge; Bratvold, Judge; and Segal,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this appeal from judgment entered under Minn. R. Civ. P. 41.02(b) in a legal -
malpractice claim, appellants challenge the district court’s denial of their motion for
continuance of trial. We affirm.

2
FACTS
Appellant Mario A. Ruiz (Ruiz) underwent heart -valve-replacement surgery on
November 28, 2006. Ruiz and his wife, appellant Maria Ruiz (collectively, the Ruizes) ,
allege that a cardiovascular surgeon employed by Regions Hospital breached the standard
of care for heart -valve-replacement surgery by implanting too small of a valve. Ruiz
alleges that , as a result, he suffered “iatrogenic aortic stenosis, cardiac dysfunction,
shortness of breath, decreased energy, and deconditioning. ” These conditions resulted in
his permanent disability and left him unable to work.
In October 2009, the Ruizes retained attorney Michael W. Unger (Unger) of
Michael W. Unger, Attorney at Law, PLLC (collectively, respondents) to represent them
in a medical malpractice suit against the operating surgeon . On April 29, 2011, Unger
withdrew from representation of the Ruizes because he had not yet initiated a malpractice
suit against the operating surgeon and he anticipated a legal -malpractice action, which
would create a conflict of interest with the Ruizes. The date that the statute of limitations
expired is unclear, but at the time, Unger believed it had passed. The Ruizes never
commenced a malpractice claim against the operating surgeon.
The Ruizes filed suit against respondents, arguing that the legal standard of care
required respondents to file suit before the medical -malpractice statute of limitations
expired, which respondents raise in their notice of related appeal . Respondents obtained
counsel and moved for summary judgment on the legal-malpractice claim, arguing that the
statute of limitations did not expire until after the Ruizes secured a new attorney. The
district court denied respondents’ motion for summary judgment , stating that a genuine

3
issue of material fact existed on when the medical malpractice cause of action accrued .
The district court noted that “there is a fundamental question of fact as to what ultimately
caused the damage [to Ruiz’s health] and gave rise to the medical malpractice claim- the
initial installation of the valve or the failure of the treating physicians to replace the valve
promptly over the course of [Ruiz’s] continued treatment.”
The Ruizes’ new counsel retained three expert witnesses to establish a prima facie
case for the underlying medical malpractice claim: two cardiovascular surgeons, Drs.
Joseph Boyer and Daniel DiBardino, and one cardiologist, Dr. Morton Rinder.
Respondents submitted a motion in limine to exclude Dr. Rinder from testifying on the
standard of care, which the Ruizes opposed by contending that he qualified as an expert.
Dr. Rinder asserted “knowledge of the standard of care relative to the treatment of aortic
stenosis by bioprosthetic valve replacement, ” and claimed that “the implant of the 19
[millimeter] bio-prosthetic valve did not meet the standard of care.” The district court did
not decide the issue at that time because the Ruizes stated that Dr. Rinder would not testify
on the standard of care.
A month before trial, on April 5, 2019, the Ruizes sought a continuance, citing the
unavailability of Drs. DiBardino and Boyer. Dr. DiBardino notified the Ruizes on April 4,
2019, that he would be unable to testify due to his fear of professional repercussions. Dr.
Boyer notified the Ruizes on April 5, 2019, that he would not testify or even give a video
deposition, citing his son’s health crisis, already -scheduled surgeries, and a resulting lack
of time to prepare for dep osition or trial. Dr. Boyer noted that “hopefully he will be able
to . . . fulfill his obligations in this case by October of 2019.” The Ruizes argued that,

4
without the testimony of either Dr . Boyer or Dr. DiBardino, they would be unable to
establish a prima facie case of negligence.
Before the trial began, the Ruizes argued that denying a continuance would be fatal
to their case, now taking the position that their only available expert witness, Dr. Rinder,
was not qualified to testify on the standard of care of implanting a heart valve of a specific
size because he had never performed the surgical procedure. When the district court again
refused to grant a continuance and instead proceeded to trial , the Ruizes rested their case
and respondents moved for a judgment as a matter of law under Minn. R. Civ. P. 41.02(b),
which the district court accepted, dismissing the Ruizes’ case. This appeal follows.
D E C I S I O N
The Ruizes argue that the district court abused its discretion by denying their motion
for continuance of trial. We disagree.
“We review district court rulings on continuance [motions] . . . for [an] abuse of
discretion.” Torchwood Props., LLC v. McKinnon , 784 N.W.2d 416, 418 (Minn. App.
2010). “A district court abuses its discret ion by making findings of fact that are
unsupported by the evidence, misapplying the law, or rendering a decision that is against
logic and the facts on record. A district court’s findings of fact are not set aside unless
clearly erroneous.” Knapp v. Kna pp, 883 N.W.2d 833, 835 (Minn. App. 2016) (citation
and quotation omitted). Moreover, we give “due regard” to the district court’s credibility
assessments. Minn. R. Civ. P. 52.01 . We view the record in the light most favorable to
sustaining the order. Cotroneo v. Pilney, 343 N.W.2d 645, 648 (Minn. App. 1984).

5
In deciding whether to grant a motion for continuance, the district court must
consider and balance (1) the degree of prejudice to the moving party; (2) prejudice to the
nonmoving party; “(3) the impact of a modification at that stage of the litigation; [and]
(4) the degree of willfulness, bad faith , or inexcusable neglect” by the nonmoving party.
Id. at 649. In addition, the district court must base its decision “on all facts and
circumstances surrounding the request.” State v. Vance , 254 N.W.2d 353, 358 (Minn.
1977).
Here, the district court denied the Ruizes’ motion for a continuance after analyzing
the four Cotroneo factors and the facts and circumstances surrounding the Ruizes’ request.
The record supports the district court’s determination.
Degree of prejudice to the moving party
The Ruizes argue that denying them a continuance prejudiced them by not allowing
them time to retain and prepare a new expert, whom they needed because Dr. Rinder did
not qualify to testify on the standard of care. We are not persuaded.
Expert-opinion testimony is admissible “[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to determine
a fact in issue . . . . ” Minn. R. Evid. 702. “[W]e have required both sufficient scientific
knowledge of and some practical experience with the subject matter of the offered
testimony.” Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn. 1977); see also Gross, 578
N.W.2d 757, 761 (Minn. 1998). “Occupational experience” is of “controlling importance”
when determining qualification. Cornfeldt, 262 N.W.2d at 692 -93 (holding that internist
had sufficient practical experience from consultations on suitability of patients for surgery

6
and familiarity with authoritative medical text qualified to testify); see also Koch v. Mork
Clinic, P.A. , 540 N.W .2d 526, 529 -30 (Minn. App. 1995) (concluding that doctor had
sufficient practical experience from consultations with specialists and general physicians,
knowledge of symptoms, and familiarity with authoritative literature) , review denied
(Minn. Jan. 12, 1996) ; Swanson v. Chatterton , 160 N.W.2d 662, 667 (Minn. 1968)
(upholding district court’s exclusion of internist’s testimony on standard of care of
orthopedic surgeon treating arm fracture because internist lacked “substantial experience
or expertise in the direct care of orthopedic patients”). “Moreover, opinion evidence is not
restricted to the testimony of the [expert] best qualified to give [it],” and “any person whose
profession or vocation deals with the subject at hand is entitled to be heard as an expert,
while the value of his evidence is to be tested by cross -examination and ultimately
determined by the jury.” Christy v. Saliterman, 179 N.W.2d 288, 303 (Minn. 1970).
The Ruizes argued against respondents’ motion in limine to exclude Dr. Rinder’s
testimony, asserting that “ voir dire will reveal that Dr. Rinder has ampl e practical
experience to qualify as an expert.” The district court invited the Ruizes to proceed with
Dr. Rinder at trial so it could assess the foundation of his opinions at voir dire. 1 But the
Ruizes declined to offer Dr. Rinder’s testimony, preventing the district court from
assessing his qualification s. Instead, the parties agreed to let respondents move for

1 The district court decides whether to admit expert testimony. Minn. R. Evid. 702 1977
comm. cmt. (“The admissibility of expert opinion has traditionally rested in the discretion
of the trial court. This discretion is primarily exercised in two areas: . . . 2. deciding if the
witness is sufficiently qualified as an expert in a given subject area to justify testimony in
the form of an opinion.”).

7
judgment as a matter of law under Minn. R. Civ. P. 41.02 (b), resulting in dismissal with
prejudice. By so agreeing, the Ruizes prevented the district court from determining Dr.
Rinder’s qualifications and prevented a possibly qualified expert from testifying. Because
the district court did not have the opportunity to assess Dr. Rinder’s expert qualifications,
we have no admissibility determination to review.
The Ruizes, relying on Weise, next contend that their inability to establish a prima
facie argument fatally prejudiced their case, requiring the district court to grant a
continuance. Weise v. Comm ’r of Pub. Safety, 370 N.W.2d 676, 678 (Minn. App. 1985)
(“The test is whether a denial [of a continuance] prejudices the outcome of the trial.”). The
Ruizes’ argument is misguided.
Because the Ruizes have not established their inability to make a prima facie case
with Dr. Rinder, we need not opine on whether the lack of an expert witness, which may
fatally prejudice a case, requires granting a continuance. However, we note that Cotroneo
provides a balancing test with four factors, only one of which is prejudice. Cotroneo, 343
N.W.2d at 649. “[P]revent[ing] manifest injustice” underlies the decision of whether to
grant a continuance, which goes beyond avoiding prejudicing the outcome of trial. Id.
Prejudice to the nonmoving party
The Ruizes, assuming that they would have been unable t o establish a prima facie
case, contend that the prejudice to them far outweighed any prejudice to respondents. The
district court determined that this factor weighed against granting the continuance because
the Ruizes sought an indefinite continuance, based on Dr. Boyer’s assertion that he would

8
“hopefully” be able to testify in October 2019, which would have prejudiced respondents.
The record supports the district court’s determination.
Impact of a modification at that stage of the litigation
The Ruizes contend that the district court considered irrelevant factors such as trial
delay and ample preparation time in concluding that this factor weighed against granting a
continuance. We disagree . This factor logically includes considerations such as trial
expediency, judicial resources, and the time, expense, and effort associated with trial
preparation, which the district court appropriately determined supported denying a
continuance. See id. at 649.
Degree of willfulness, bad faith, or inexcusable neglect by the nonmoving party
The Ruizes contend that, because they did not cause their experts’ unavailability,
the district court inappropriately punished them by denying a continuance . The Ruizes’
argument is misguided.
Even if the Ruizes did not willfully or in bad faith cause their experts’ unavailability,
this factor also includes inexcusable neglect. Id. at 649. “Courts are less sympathetic to
the modification of a pretrial order when the dilemma is attributable to the failure of a party
to properly prepare for trial.” Id. at 650; see also Kate v. Kate, 48 N.W.2d 551, 555 (Minn.
1951) ( stating that district court may deny motion for continuance if movant fails to
exercise due diligence in attempting to secure evidence).
The Ruizes do not explain why Dr. DiBardino cooperated in trial preparation yet
did not realize until a month before the trial that there might be professional repercussions
if he chose to testify. Moreover, the Ruizes provided an equivocal response for why they

9
were unable to determine that Dr. DiBardino was unwilling to testify until one month
before trial. The Ruizes contended that “[w]e had always hoped that Dr. DiBardino would
testify. And when we called him up to get the additional information that defense counsel
wanted, we had asked him to testify and he refused.” (Emphasis added.) The Ruizes never
asserted that they had communicated with Dr. DiBardino before learning at the last minute
that he would not testify. The district court did not clearly err by finding that the Ruizes
could have avoided this outcome.
Moreover, as the district court suggested, the Ruizes could have subpoenaed Dr.
Boyer’s testimony given that he continued 25% of his surgery practice. See Beyer v.
Comm’r of Pub. Safety, 358 N.W.2d 713, 715-16 (Minn. App. 1984) (finding no abuse of
discretion when district court denied continuance motion because moving party knew of
expert and expected testimony before conclusion of trial and failed to subpoena expert, and
denial of continuance did not prejudice moving party). 2 The record supports the district
court’s inference that the Ruizes’ predicament of lacking two expert witnesses was not
“unforeseen and unforeseeable.” Cotroneo, 343 N.W.2d at 650 (quotation omitted).

2 The Ruizes appear to argue that , under Bush v. Winter, an unwilling expert cannot be
compelled by subpoena to give an opinion. 402 N.W.2d 229, 230-31 (Minn. App. 1987).
But we held merely that “no Minnesota case, however, specifically address[es] the question
whether a litigant has an absolute right to compel an unwilling, non-party expert to give an
opinion on facts outside the expert ’s personal knowledge.” Id. Dr. Boyer is a retained
expert, not a nonparty expert. Moreover, in Bush we did not decide that unwilling nonparty
experts could not be subpoenaed. I nstead we noted that no case addresses whether they
could be. Id. We recognize that it may have been impractical to subpoena an unwilling
expert, but difficulty does not equate with impossibility.

10
The record supports the district court’s weighing of the Cotroneo factors, and we
conclude that the district court did not abuse its discretion by denying the Ruizes’ motion
for continuance. While the result of denying the Ruizes’ motion for continuance is
certainly harsh, the district court must consider more than just prejudice to the plaintiff .
Our function is to review the record to see whether it supports the district court’s exercise
of discretion, not to retry the case. See Turner v. Alpha Phi Sorority House , 276 N.W.2d
63, 68 n.2 (Minn. 1979). Because we affirm the district court’s denial of the Ruizes’ motion
for continuance, we need not address respondents’ argument, raised by notice of related
appeal, that the district court erred by denying their motion for summary judgment.
Affirmed.