Erica Vipond, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1248

Erica Vipond,
Appellant,

vs.

Lance J. Beebout, et al.,
Respondents.

Filed April 26, 2021
Affirmed
SLieter, Judge

Douglas County District Court
File No. 21-CV-19-1533

Michael A. Bryant, Bradshaw & Bryant, PLLC, Waite Park, Minnesota (for appellant)

Kenneth H. Bayliss, Steven R. Schwegman, Michelle M. Draewell, Quinlivan & Hughes,
P.A., St. Cloud, Minnesota (for respondents)

Considered and decided by Hooten, Pres iding Judge; Johnson, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
This appeal is from the di smissal of appellant Erica Vipond’s medical-malpractice
claim against her orthopedic physician’s assistant in which she claims “tortious assault and
battery” occurred during a medical examina tion. Vipond argues that because the
allegations in her complaint are within the “general kn owledge or experience of

2
laypersons,” the district court erred by determining that she was required to submit expert
affidavits pursuant to Minn. Stat. § 145.682 (2020). Alternatively, Vipond argues that the
expert affidavits she did submit were legally sufficient. We conclude that an expert
affidavit was required and the expert affidavit Vipond submitted was insufficient because
it did not identify the standard of care and how it was violated during the medical
examination. Therefore, we affirm.
FACTS
In September 2016, Vipond attended a me dical appointment with respondent Lance
Beebout, a physician’s assistant with respondent Heartland Orthopedic Specialists. Vipond
was experiencing knee pain, shooting pain in her back and legs, and numbness and tingling.
Vipond alleges that during the examination, Beebout, who remained in the room, instructed
Vipond to remove her clothing from the wais t up, including her bra, for purposes of a
scoliosis examination. Vipo nd alleges that, after her clothes were removed, Beebout
instructed Vipond to bend over and straighten her back several times. After Vipond was
again fully clothed, Beebout instructed Vip ond to lie on an ex am table and Beebout
examined her spine and lower body. This examination included Beebout touching Vipond
on the front of her pelvic bone and on the inside of her leg near her pelvic area, referred to
by Vipond’s medical record as a “palpation.”

3
Vipond commenced a medical malpractice action alleging tortious assault and
battery by Beebout based on Beebou t’s actions during the examination. 1 Vipond alleges
that the following actions constituted tortious assault and battery: his request that she
disrobe, his failure to leave the room while she disrobed, his failure to provide her a gown
or otherwise ensure that she did not unnecessa rily require her to expose herself, and his
touching of her pelvic area.
Vipond submitted the affidavit of e xpert witness Mark R. Halstrom, M.D. 2 The
affidavit indicated that Dr. Halstrom had “read the complaint,” that he was “familiar with
the standard of care” for such situations, a nd that “[i]n providing care to Vipond on
September 22, 2016, Beebout deviated from the applicable standard of care and by that
action caused injury to Vipond.”
Respondents subsequently moved to dismi ss for failure to comply with Minn. Stat.
§ 145.682, alleging that Vipond’s affidavit failed to meet the specificity requirements of
that statute. The district court concluded that general statements in the affidavit failed to
satisfy the statutory requirements and dismissed Vipond’s claims. This appeal follows.

1 Vipond also asserts negligence on the part of Heartland Orthopedic, including negligence
in hiring, supervising, and continuing to re tain Beebout as an em ployee. Those claims
were also dismissed, and that dismissal is not before us.
2 Vipond initially submitted an expert affidavit from Dr. David B. Ketroser. However, Dr.
Ketroser died and Vipond subs tituted Dr. Ketroser’s affidav it with Dr. Halstrom’s. The
district court found this to be a proper su bstitution, pursuant to Minn. Stat. § 145.682,
subd. 6. On appeal, respondents argue th at such substitution was improper. However,
Minn. Stat. § 145.682, subd. 4(b) clearly states that “[n]othing in this subdivision may be
construed to prevent either party from calling additional expert witnesses or substituting
other expert witnesses.” (emphasis in original).

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DECISION
Appellate courts review a district court’s dismissal of a case for failure to comply
with section 145.682 for an abuse of discretion, but statutory construction is a question of
law which is reviewed de novo. Stroud v. Hennepin Cnty. Med. Ctr., 556 N.W.2d 552, 555
(Minn. 1996).
“[E]xpert testimony is necessary to support all but the most obvious medical
malpractice claims.” Haile v. Sutherland, 598 N.W.2d 424, 428 (Minn. App. 1999). The
purpose of the affidavit requirement is to “eliminat[e] nuisance medical malpractice
lawsuits by requiring plaintiffs to file af fidavits verifying that their allegations of
malpractice are well-founded.” Stroud, 556 N.W.2d at 555.
Section 145.682 requires that a plain tiff alleging malpractice must submit an
“affidavit of expert disclosure.” Wesley v. Flor, 806 N.W.2d 36, 40 (Minn. 2011). This
affidavit must contain specific details of the plaintiff’s claims, including (1) identification
of any experts expected to testify, (2) “the facts and opinions to which the expert is
expected to testify,” and (3) “a summary of the grounds of each opinion.” Id.; Minn. Stat.
§ 145.682, subd. 4.
3
Vipond argues that, because the allegations contained within her complaint were
“within the general knowledge or experien ce of laypersons,” no expert testimony was
required at trial for a jury to make a finding of malpractice and, consequently, no expert

3 Though Minn. Stat. § 14 5.682, subd. 2 also requires an in itial, less detailed, affidavit of
expert review, which may be completed by plaintiff’s attorney, compliance with this
requirement of section 145.682 is not disputed.

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affidavit was necessary. Alternatively, Vipon d argues that Dr. Halstrom’s affidavit was
sufficient. We are not persuaded.
I. An expert affidavit was required.
An exception to the requirement for expe rt testimony and affidavit applies “when
the alleged negligent acts are within the general knowledge or experience of laypersons.”
Mercer v. Andersen , 715 N.W.2d 114, 122 (Minn. App. 2006) (citing Tousignant v. St.
Louis Cnty., 615 N.W.2d 53, 61 (Minn. 2000)). Ho wever, “it is an exceptional medical
malpractice case that does not require expert testimony.” Tousignant, 615 N.W.2d at 61.
The Minnesota Supreme Court in Tousignant examined the facts required to establish
“such an exceptional case.” Id. In that case, a plaintiff alleged that nursing home staff
failed to—after being explicitly directed to do so—restrain an elde rly patient recovering
from a broken hip. Id. at 60. The court reiterated that expert affidavits were required in
situations where the acts or omissions complained of are not within the “general knowledge
or experience of lay persons.” Id. at 58. However, the court found that an expert affidavit
and testimony were not required in that case because “[i]t is a matter of common knowledge
and experience that an elderly person, confused and recovering from a fractured hip, who
was likely to attempt to walk without assistance if left unattended, also likely would fall”
and “[t]hat a fall by such a person would result in . . . injuries.” Id. The matter before us
is not “such an exceptional case.” Id. at 61.
Vipond argues “[i]t is unthi nkable to believe that a male doctor needs to look at his
patients’ breasts when conducting an examination of her spine.” Regarding the touching,
she argues “[i]t is even more clear that a la y juror can determine that touching someone’s

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vagina when she is being seen for knee complaints is a sexual battery.” She summarizes:
“requiring a medical expert to explain to a jury that the standard of care that needed to be
exercised is to not sexually assault the patie nt does not make any sense. Requiring a
medical expert in sexual assault cases like this one borders on disrespectful.”
First, this argument has no factual basis in the record. Though Vipond’s brief refers
to this matter as a “sexual battery,” Vip ond testified during her deposition that Beebout
touched her near her vagina, inside her thigh and on the front of her pelvic bone. Second,
unlike Tousignant, this case does not involve allegatio ns a lay person would be equipped
to adequately assess. All of the alleged co nduct occurred during a medical examination.
An average layperson would not be equipped to know whet her Beebout’s examination
violated the applicable standard of care an d, therefore, constituted tortious assault and
battery. Expert testimony was required to esta blish Vipond’s claims and, therefore, an
expert affidavit was required. Minn. Stat. § 145.682, subd. 3; Mercer, 715 N.W.2d at
122-23.
II. The expert affida vit was insufficient.
Dr. Halstrom’s expert affidavit must provide “the substance of the facts and
opinions to which the expert is expected to testify, and a summary of the grounds for each
opinion.” Minn. Stat. § 145.682, subd. 4(a); Wesley, 806 N.W.2d at 40. The affidavit must
“[a]t a minimum . . . disclose specific details concerning their experts’ expected testimony,
including the applicable standard of care, th e acts or omissions that plaintiffs allege
violated the standard of care and an outline of the chain of causation between the violation
of the standard of care and the plaintiff’s damages.” Lindberg v. Health Partners, Inc., 599

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N.W.2d 572, 577 (Minn. 1995) (quotations omitted). These details are required because
“empty conclusions . . . unless shown how they follow from the facts, can mask a frivolous
claim.” Id. at 576 (quotations omitted).
Dr. Halstrom’s affidavit, in relevant part, states:
1. I am a medical doctor practicing Family Medicine. I am
also a health care professional practicing as a member of
Williams Integracare Clinic . . . .
2. I have read the Complaint of plaintiff Erica Vipond
against Lance J. Beebout and Heartland Orthopedic
Specialists, P.A. . . . For purpose s of this affidavit, I assume
the allegations of the complaint to be true.
. . .
6. I am familiar with the standard of care recognized by
the health care industry in Minnesota as applicable to situations
in which a provider like Beebout is working with a patient like
Vipond.
7. In providing care to Vi pond on September 22, 2016,
Beebout deviated from the applicab le standard of care and by
that action caused injury to Vipond.

This expert affidavit is notably similar in its deficiencies to the expert affidavit rejected by
the Minnesota Supreme Court in Lindberg. In Lindberg, the affidavit of expert disclosure
examined read:
1. I am a board-certified specialist in obstetrics and
gynecology.
. . .
3. I am familiar with the standard and duty of care
applicable to doctors, midwives, nurses and other medical
personnel in the Twin Cities of Minnesota area.
4. Based upon a reasonable degree of medical certainty, it
is more probable th an not, that if, among other things, Debra
Lindberg had been instructed to seek medical treatment at the
time of her phone call on the morning of March 28, 1994,
Lukas Stewart Lindberg would not have died.
5. Based upon a reasonable de gree of medical certainty,
Lukas Stewart Lindberg died as a result of the negligent and

8
careless conduct of the Defendan ts and/or their agents and
employees, including midwif e Sharon Nichols and Donne
Mathiowitz.

Id. at 574-75. Affirming the district court’s dismissal of the claims allegedly supported by
this petition, the supreme court reemphasized “the importance of strict compliance with the
disclosure requirements of [Minn. Stat. § 145.682.]” Id. at 576. The supreme court held:
It is clear that [the affidavit] contains nothing more than broad
and conclusory statements as to ca usation . . . . It states that
[the doctor] is familiar with the applicable standard of care but
fails to state what it was or how the appellants departed from
it, it fails to recite any facts upon which [the doctor] will rely
as a basis for his expert opinion , it fails to outline a chain of
causation connecting the allege d failure [with the alleged
damages] and it fails to even identify the medical condition for
which [the plaintiff] was not given attention.

Id. at 578.
Just as in Lindberg, Dr. Halstrom notes that he is “familiar with the standard of care”
though he fails to state what that standard of care is or how it was violated. Dr. Halstrom
additionally fails to identify any facts upon wh ich he would rely at trial in forming his
opinion, apart from a broad reference to “the complaint.” 4 As in Lindberg, the types of
“broad and conclusory statements” contai ned within Dr. Halstrom’s affidavit are
insufficient to fulfil the requirements of section 145.682 and avoid dismissal. See Id. The
district court did not abuse its discre tion in dismissing Vipond’s claims. Lindberg, 599

4 Vipond argues that though the affidavit it self is brief, it was nevertheless sufficient
because it incorporated the factual information contained within the complaint. It was not.
Such an approach would violate the general ru le that “nonaffidavit materials may not be
used to supplement an otherwise defici ent affidavit under section 145.682.” Tousignant,
615 N.W.2d at 60.

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N.W.2d at 578 (“Dismissal is mandated under Minn. Stat. § 145.682, subd. 6 when the
disclosure requirements are not met.”).
Affirmed.