author: BLATZ, Chief Justice.

text:
    A.C. FORD, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-282.
    Supreme Court of Minnesota.
    Jan. 13, 2005.
   OPINION

BLATZ, Chief Justice.

A.C. Ford appeals from the postconviction court’s denials of his third and fourth petitions for postconviction relief. On May 28, 1993, a jury found Ford guilty of first-degree premeditated murder and first-degree murder of a peace officer in connection with the shooting death of Minneapolis Police Officer Jerome Haaf. State v. Ford, 539 N.W.2d 214, 217 (Minn.1995), cert. denied, 517 U.S. 1125, 116 S.Ct. 1362, 134 L.Ed.2d 529 (1996). Ford was also found guilty of attempted first-degree murder of Gerald Lubarksi, a citizen bystander to the Haaf shooting. Id. On direct appeal, we affirmed Ford’s convictions but reversed and remanded on a sentencing issue. Id. Subsequently, Ford filed four petitions for postconviction relief, all of which were denied by the postconviction court. Ford began to appeal the denials of his first and second petitions for postcon-viction relief, but did not perfect the appeals. The postconviction court denied Ford’s third petition on March 27, 2003, but Ford did not file a motion to amend the petition until November 20, 2003. Because there was no pending petition at the time, the postconviction court treated the November 20 motion as a fourth petition for posteonviction relief (hereinafter “fourth petition”). In the fourth petition, Ford claimed that two communications between the judge and the jury during jury deliberations violated his right to be present at trial. The postconviction court denied relief without holding an evidentiary hearing. Ford filed a notice of appeal from the denials of his third and fourth petitions on February 25, 2004. We hold that we lack jurisdiction over the untimely appeal from Ford’s third petition for post-conviction relief and affirm the denial of Ford’s fourth petition for postconviction relief without an evidentiary hearing.

I.

Before we address the substance of Ford’s claims, we must first address whether we have jurisdiction over Ford’s appeal from the March 27, 2003 denial of his third petition for postconviction relief. Ford did not file his notice of appeal until February 25, 2004, almost eleven months after the postconviction court denied relief. Under Minn. R.Crim. P. 29.03, subd. 3, a petitioner must appeal a final order in a postconviction proceeding within 60 days after entry of that order. For good cause, one extension of 30 days may be granted. Id.

Ford argues that we should consider his untimely appeal because he alleges that he did not receive notice of the entry of the postconviction court’s order denying his third petition. We have held, however, that the time requirements for the filing of an appeal are jurisdictional. See, e.g., State v. Parker, 278 Minn. 53, 55, 153 N.W.2d 264, 266 (1967). Even when a party has not received notice of the entry of an order, the court has not extended the time for appeal. See Tombs v. Ashworth, 255 Minn. 55, 62, 95 N.W.2d 423, 428 (1959) (holding that failure of the clerk to comply with Rule 77.04 requiring service of notice of entry of judgment does not extend the time for appeal); State v. Scott, 529 N.W.2d 11, 12 (Minn.App.) (stating that the court cannot extend the time to appeal even when defendant did not have notice of entry of the order), rev. denied (Minn. March 14, 1995); accord United States v. Robinson, 361 U.S. 220, 229-30, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960) (filing of notice of appeal in criminal case after expiration of time prescribed did not confer jurisdiction of the appeal even though the later filing was the result of excusable neglect). Accordingly, we hold that we lack jurisdiction over Ford’s untimely appeal from the denial of his third postcon-viction petition.

II.

Recognizing that we lack jurisdiction over Ford’s appeal of his third petition for postconviction relief, the remaining issue is whether the postconviction court erred when it denied, without an evidentiary hearing, Ford’s fourth petition for postcon-viction relief. Specifically, the fourth petition sets forth his claims that two separate instances of communication between the judge and the jury occurred outside of open court and without Ford’s knowledge, consent, or presence and therefore violated his right to be present at trial. The post-conviction court denied relief as to both claims.

A full statement of the underlying facts in this case is set forth in our decision on Ford’s direct appeal. Ford, 539 N.W.2d at 217. To provide a context for the present appeal, however, the following additional facts are necessary. On May 28, 1993, during jury deliberations, the jury sent two written notes to the substitute trial judge. The first note, sent at 4:22 p.m. and written directly on a copy of the jury instructions, concerned the transferred intent instruction relating to the attempted murder of Lubarski. The court’s instruction to the jury on the “intent element” of attempt to commit first-degree murder was as follows:

[The] defendant or another aided and abetted by the defendant intended to commit the crime of murder in the first degree. The statutes of Minnesota define that crime as follows: whoever causes the death of a human being with premeditation and with the intent to effect the death of the person or another is guilty of murder in the first degree.

With respect to the instruction’s use of the term “human being,” a juror wrote: “Who is this in reference to? Haaf or Lubar-ski?” Referring to the term “person or another,” a juror wrote: “Does this mean Haaf or Lubarski?”

Further, on the jury instruction defining “attempt to commit a crime,” a juror circled the sentence which stated: “An act by a person who intends to commit a crime is an attempt if the act itself clearly indicates the intent to commit that specific crime and if [it] tends directly to accomplish the crime.” Within the circled sentence, the juror underlined the word “specific” and wrote below it: “Does the intent have to be specifically against Lubarski?”

Upon receipt of the jury questions and in Ford’s absence, the substitute judge contacted the attorneys for both parties. The judge conferred with the attorneys via a telephone conference that was recorded by a stenographic court reporter. After consensus was reached, the judge sent a reply note to the jury stating: “You must rely on all the instructions as given to you by [the trial judge] in answering the questions you have posed. The answer to your question is contained in the instructions.”

Later, at approximately 4:54 p.m., the jury sent the trial judge a second note: “We, the jury for case no. 92095955, request that our deliberation materials as well as a copy of each of the charges and instructions to the jury be returned to us by contacting juror # 7 at [telephone number redacted].” Without contacting counsel, the substitute judge responded in writing at 5:00 p.m. that “[a]ll materials in the jury room will be preserved pending resolution by [the trial judge].” After the jury returned its verdict, the substitute judge referred to the second note on the record stating: “a request was sent out about the various materials that apparently you have in the jury room. I am not sure what it is, notes or whatever. And the request made came out that those be preserved.”

Ford’s claims of error arise out of the fact that he was not present when the trial court received and responded to these two communications from the jury. When reviewing a postconviction decision, we must determine “whether there is sufficient evidence to sustain the postconviction court’s findings,” and we will not disturb a postconviction court’s decision absent an abuse of discretion. Sanders v. State, 628 N.W.2d 597, 600 (Minn.2001) (citing Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995)). A petitioner seeking postconviction relief has the burden of establishing by “a fair preponderance of the evidence” the facts alleged in the particular petition. Minn.Stat. § 590.04, subd. 3 (2002); see also Sanders, 628 N.W.2d at 600. A petitioner’s allegations must be “more than argumentative assertions without factual support.” Hodgson, 540 N.W.2d at 517 (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)).

As to the first communication from the jury, regarding the jury instructions and the definitions of words contained therein, Ford claims that the trial court erred by failing to have him present and by failing to make a contemporaneous record of his waiver of the right to be present. The state concedes it was error not to secure Ford’s presence or, in the alternative, his waiver of his right to be present. However, the state argues that Ford should have raised the issue on direct appeal and that the claim is precluded under our decision in State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). The postcon-viction court agreed with the state’s position and found that Ford’s claim was barred.

In Knaffla, we held that once a direct appeal has been taken, “all matters raised therein and all claims known but not raised, will not be considered upon a subsequent petition for postconvietion relief.” 309 Minn. at 252, 243 N.W.2d at 741 (.Knaffla rule). There are two exceptions to this rule: (1) if a novel legal issue is presented, or (2) if the interests of justice require relief. Ives v. State, 655 N.W.2d 633, 636 (Minn.2003). The second exception may be applied when fairness so requires and the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal. Fox v. State, 474 N.W.2d 821, 825 (Minn.1991).

Ford did not raise this first jury communication on direct appeal or in any of his previous three petitions for postconvietion relief. Nevertheless, Ford argues that the Knaffla exception allowing review in the “interests of justice” applies in this case. Specifically, he avers that he did not deliberately or inexcusably fail to raise the issue because he was forced to “send out” his transcript from his maximum-security prison cell due to prison regulations limiting the amount of paper prisoners may keep in their cells. Due to this prison regulation, Ford claims he did not have his transcript long enough to discover the error in the record. To support his contention that he was refused additional access to his transcript, Ford attached an order from our court denying, inter alia, his motion for an order to return all legal materials to him. Our order denying his motion, however, is dated after his first postconvietion petition was denied and his appeal was dismissed due to inactivity. Further, Ford concedes in his brief to this court that he had access to his transcript during his direct appeal. Therefore, the record lacks persuasive evidence that Ford had inadequate opportunity to present his claims in his direct appeal. We conclude that the “interests of justice” exception to Knaffla does not apply, and hold that the postconvietion court did not err when it denied Ford’s claim on this issue.

Ford’s second claim again concerns his absence when the substitute judge communicated with the jury. In the jury’s second written communication with the judge, the jury requested that their “deliberation materials as well as a copy of each of the charges and instructions to the jury be returned to us by contacting juror # 7 at [phone number redacted].” Without contacting the attorneys or assuring Ford’s presence, the judge replied to the jury: “All materials in the jury room will be preserved pending resolution by [the trial judge].” In denying Ford’s claim, the postconvietion court relied on State v. Hendry, 636 N.W.2d 158, 164 (Minn.App.2001), rev. denied (Minn. Jan. 29, 2002), and concluded that the jury’s request to return their deliberation materials was a housekeeping question not related to the substantive issues in the case, and therefore not error.

Ford argues that his absence from this written communication between the judge and the jury violated his right to be present at trial as protected by the United States Constitution and Minn. R.Crim. P. 26.03. A defendant’s constitutional right to be present is grounded in the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). In jury communications, Sixth Amendment rights are not at issue because there are no witnesses to confront. The due process right of the defendant “to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge,” Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934), however, may be implicated. The defendant’s due process right at issue consists of the right to be present at all critical stages of trial. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987); id. at 748, 107 S.Ct. 2658 (Marshall, J., dissenting). Our court has recognized that Minn. R.Crim. P. 26.03, subd. 1(1), requiring defendant’s presence “at every stage of the trial,” provides a broader right to be present than the right guaranteed by the United States Constitution. State v. Thompson, 430 N.W.2d 151, 152-53 (Minn.1988).

The interpretation of the rules of criminal procedure is a question of law subject to de novo review. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998). Minnesota Rules of Criminal Procedure 26.03, subd. 19(2) and (3) specifically govern the procedure for communicating with a deliberating jury and provides that when a deliberating jury “requests a review of certain testimony or other evidence” or “desires to be informed on any point of law, the jurors, after notice to the prosecutor and defense counsel, shall be conducted to the courtroom.” Applying the language of the rule to the facts before us, it is clear that the jury’s request for preservation of the deliberation materials was not a request to review evidence or testimony or to receive instructions on the law. Therefore, the communication at issue here is not governed by subdivision 19, but must be analyzed under the more general requirement of subdivision one that defendant must be present at “every stage of the trial.”

Generally, responding to a deliberating jury’s question is a stage of trial under the Minnesota Rules of Criminal Procedure. State v. Sessions, 621 N.W.2d 751, 755 (Minn.2001) (citing State v. Hudspeth, 535 N.W.2d 292, 295 (Minn.1995)). Thus, the general rule in Minnesota is that a trial judge should have no communication with the jury after deliberations begin unless that communication is in open court and defendant is present. In Sessions, this court held that “the trial court erred by engaging in substantive communications with a deliberating jury outside of open court, without the appellant’s knowledge, consent or presence, and without the presence of appellant’s counsel and the prosecutor * * 621 N.W.2d at 753.

This court, however, has not directly addressed whether communication between the judge and the jury outside defendant’s presence violates defendant’s right to be present at all stages of trial under Minn. R.Crim. P. 26.03 when the communication at issue relates solely to housekeeping matters. Although not central to our holdings, we have indicated in two prior cases that housekeeping matters can be treated differently than matters related to the law and evidence of the case. State v. Greer, 635 N.W.2d 82, 93 n. 3 (Minn.2001); State v. Kelley, 517 N.W.2d 905, 908 (Minn.1994). For example, in Kelley we stated that the “trial judge * * * should not communicate with a juror or the jury on any aspect of the case itself (as distinguished from matters relating to physical comforts and the like), except after notice to all parties and reasonable opportunity for them to be present.” 517 N.W.2d at 908 (quoting the ABA Standards for Criminal Justice § 15-3.7(b) (1986) (currently ABA Standards for Criminal Justice § 15-4.1(b) (1996)). Rule 26.03 is designed to protect defendants’ Sixth and Fourteenth Amendment rights. See Gagnon, 470 U.S. at 526, 105 S.Ct. 1482. Communications about .routine housekeeping matters do not fall within its embrace. We hold, therefore, that when a judge communicates in writing with the jury about a housekeeping matter, the defendant’s right to be present at trial is not violated. We caution, however, that any doubt regarding whether a communication relates to a housekeeping or substantive matter should be resolved in favor of defendant’s presence. In addition, we emphasize that a record should be made of all communication between the judge and jury, regardless of its substance. See Sessions, 621 N.W.2d at 756.

With this distinction between substantive and housekeeping matters in mind, we must determine whether, in fact, the communication at issue here was related to a housekeeping matter, as the postconviction court found, .or to substantive matters, as Ford argues. We conclude that the post-conviction court was correct in its determination that the jury’s request for preservation of the deliberation materials was merely a housekeeping matter. The trial court’s response to the jury communication simply indicated to the jury, in writing, that the materials would be preserved. Accordingly, we hold that the postconviction court did not abuse its discretion when it determined that the second jury communication related solely to a nonsubstantive housekeeping matter. ■ ■

Ford’s last claim as to his fourth petition for postconviction relief is that the postconviction court erred by failing to hold an evidentiary hearing. Under Minn.Stat. § 590.04, subd. 1 (2002), the court must grant a hearing on a postcon-viction petition unless the petition, files and record “conclusively show that petitioner is entitled to no relief * * *.” See also Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995) (citing Fratzke v. State, 450 N.W.2d 101, 102 (Minn.1990)). A post-conviction court is not required to hold an evidentiary hearing unless there are material facts in dispute which must be resolved in order to determine the postcon-viction claim on its merits. King v. State, 562 N.W.2d 791, 794 (Minn.1997) (citing Hodgson, 540 N.W.2d at 517). Any doubt as to whether to hold an evidentiary hearing should be resolved in favor of the party’s request therefor. State ex rel. Roy v. Tahash, 277 Minn. 238, 244, 152 N.W.2d 301, 305 (1967).

In the present case, there are no disputed facts. Ford’s petitions for postconviction relief, taken together with the record before us, “conclusively show” that Ford is not entitled to posteonviction relief. We therefore hold that the postconviction court did not abuse its discretion in denying Ford’s fourth petition for postconviction relief without holding an evidentiary hearing.

Affirmed.

ANDERSON, G. BARRY, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.

      . We reversed the part of Ford’s sentence that vested discretion in the Minnesota Department of Corrections to modify Ford's consecutive sentences to a concurrent sentence if he dedicated half of his earnings to a victim’s reparations fund. Ford, 539 N.W.2d at 230-31. On remand, Ford was resentenced to consecutive sentences of life and twenty years.

      . One judge presided over the trial, but a second judge filled in for the first judge while the jury deliberated. The second judge received both jury communications at issue here.

      . The original note contains a phone number and is signed by a juror. To preserve the anonymity of the juror, the telephone number was redacted.

      . This communication between the judge and the jury, as noted above, is referenced briefly in the trial record and therefore arguably barred by Knaffla. For purposes of this appeal, however, we accept the state’s concession that review of the communication “is not barred under Knaffla because it does not appear clearly in the record.” (emphasis added).

      . The commentary to this ABA Standard further states that it is not "intended to apply to communications to or from jurors involving only housekeeping matters,” but also notes that “to the extent practicable, even housekeeping matters should be reduced to writing and communicated on the record in order to eliminate future misunderstandings of any communications.” Id.


source: Caselaw Access Project

license: Public Domain

text:
    In re Petition for Disciplinary Action against Larry Martin JENNINGS, a Minnesota Attorney, Registration No. 202630.
    No. A04-2371.
    Supreme Court of Minnesota.
    Jan. 14, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Larry Martin Jennings has committed professional misconduct warranting public discipline. The Director alleges that Jennings failed to pursue with reasonable diligence and promptness patent applications submitted on behalf of a client, failed to notify the client of all correspondence from the U.S. Patent and Trademark Office and of abandonments of the patent applications, told the client that the applications were pending when the applications had been abandoned, and failed to deposit in his trust account $3,000 delivered to him by the client when he had not yet become entitled to all of those funds. The Director asserts that Jennings’ conduct violated Minn. R. Prof. Conduct 1.3,1.4,1.15, 4.1, and 8.4(c).

Respondent admits his conduct violated the Rules of Lawyers Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a 90-day suspension and payment of $900 in costs and disbursements under Rule 24, RLPR. The parties further agree that the reinstatement hearing provided for in Rule 18(a) through (d), RLPR, be waived and that upon reinstatement, respondent be subject to a two-year period of probation subject to the following conditions:

(a) Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(b) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(c) Respondent, during the term of his probation, shall not engage in the practice of law except as an employee of a law firm in which he is subject to direct supervision by a licensed Minnesota lawyer and is provided with sufficient support to ensure his prompt response to client requests for information and compliance with deadlines.
(d) Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which respondent is handling, and which ensure that respondent regularly reviews each ■ and every file and completes legal matters on a timely basis.
(e) Within thirty days from the commencement of his employment with a law firm, respondent shall provide to the Director a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.
(f) Respondent shall continue current treatment by a licensed consulting psychologist or other mental health professional acceptable to the Director, and shall complete all therapy programs recommended ■ by the therapist. Respondent shall continue with his participation in Lawyers Concerned for Lawyers. Upon request, respondent shall provide to the Director medical authorizations sufficient to authorize the, Director to obtain his treatment records and reports and to discuss his treatment with the treatment providers.

This court has independently reviewed the file and approves the jointly. recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Larry Martin Jennings is suspended from the practice of law for 90 days, effective immediately. Respondent may petition for reinstatement by affidavit under Rule 18(f), RLPR. Upon reinstatément, respondent shall be placed on probation for two years subject to the agreed-upon conditions set forth abqve. Respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice. ■


author: PER CURIAM.

text:
    In re CHARGES OF UNPROFESSIONAL CONDUCT FILED JANUARY 20, 2005 IN PANEL CASE. NO. 19453.
    No. A04-501.
    Supreme Court of Minnesota.
    Jan. 20, 2005.

      Paul A. Sortland, Sortland Law Office, Minneapolis, MN, for Panel Case No. 19453.
    Kenneth L. Jorgensen, Director, Cassie Hanson, Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Office Lawyers Professional Responsibility.
   OPINION

PER CURIAM.

Appellant was admitted to practice law in Minnesota on September 29, 1978. On April 2, 2003, the Office of Lawyers Professional Responsibility (OLPR) received a complaint from one of appellant’s clients, Z.S., regarding the representation she received from appellant. In response to the complaint, the Director of the OLPR initiated an investigation. See Rule 8(a), Rules on Lawyers Professional Responsibility (RLPR). Based on his findings, the Director issued an admonition to appellant on October 31, 2003. Thereafter, appellant demanded that the Director present' the charges against him to a panel for de novo consideration. See Rule 8(d)(2)(iii), RLPR. A panel was convened in accordance with Rule 9, RLPR. After a hearing on the matter, the panel concluded that appellant had engaged in unprofessional conduct and affirmed the admonition- issued by the Director, and appellant appealed to this court. See Rule 9(j)(2), (m), RLPR.

The complaint that led to the admonition arose out of appellant’s representation' of Z.S. between February 2000 and May 2003. Z.S. contacted appellant to seek advice regarding an attorney malpractice claim against an attorney who represented her in a separate matter. Appellant and Z.S. had a telephone conversation in February 2000 to discuss the malpractice claim. As a result of that conversation, appellant agreed to review the case-for a retainer of $5,000.. Z.S. paid appellant the $5,000 retainer on February 18, 2000.

On March 10, 2000, Z.S. sent appellant an email inquiring into appellant’s progress on her case.. On March 11, 2000, appellant responded that he continued to believe there was merit to Z.S.’s claim but needed additional time to perform a complete analysis, and would have a complete analysis prepared within one week. Appellant did not complete his analysis within that period. By letter dated July 7, 2000, appellant notified Z.S. that he had not completed the. analysis of her claim but that be would do so when he returned from a two-week vacation. In August 2000 appellant returned from his vacation, prepared a draft analysis of Z.S.’s claim, and concluded that the claim was almost certainly not viable. Appellant .did not, however, inform Z.S. that he had completed the preliminary , analysis or that he had altered his view of her case.

Appellant testified before the panel that his practice became increasingly busy in the fall of 2000 and that he put Z.S.’s case on the “back burner” because the statute of limitations would not run out for four more years. Appellant also testified that' in the early fall of 2000, several billing statements that he mailed to Z.S.’s address on record were returned by the post office as undeliverable. Appellant testified that when the billings were returned he assumed that Z.S. had moved to Florida based on an earlier conversation in which Z.S. mentioned that she- might be moving to Florida. At that point, appellant chose not to locate Z.S. because he was concerned about the cost of hiring a private investigator to contact her and because he was certain that she would eventually contact him.

Although Z.S-. had not moved to Florida, she had moved from her address in South Minneapolis to a new address in Plymouth, Minnesota. In December 2000, Z.S. relocated again, but remained in Plymouth. Z.S.’s email address remained the same after each move. Appellant made no attempt to contact Z.S. by email or otherwise.

Appellant and Z.S.’s next contact occurred in May 2002 when Z.S. contacted appellant to provide a change of address and to check on the progress of her case. In response, appellant sent Z.S. a letter dated May 13, 2002, confirming receipt of the change of address, apologizing for the delay in communicating with her, and notifying her that an analysis had been conducted that resulted in “some difficulties that I wanted to talk with you about.” The letter was not specific about what those difficulties were or when Z.S. should contact appellant to discuss the difficulties mentioned. ' The letter again indicated that appellant would prepare an analysis for Z.S. shortly.

Between February and August 2000, appellant charged $3,375 to Z.S.’s trust account for the work, conducted on her case. The record reveals that the next and final billing to Z.S.’s account was in October 2002 for $750.

Appellant and Z.S. did not communicate again until Z.S. contacted appellant by email on February 10, 2003, to deliver a new change of address and to inquire as to the progress of the analysis on her case. Appellant testified that Z.S. was very anxious at the time because she feared that the statute of limitations was approaching that summer. Appellant replied to Z.S. by email on February 13, 2003, and informed her that his report was near completion when his office misplaced her earlier change of address. He also told Z.S. that he would email her a copy of a report early the following week.

On February 21, 2003, appellant emailed Z.S. a copy of his August 2000 draft opinion. In the email, appellant explained that the analysis had been conducted “some time ago” and that his attention had been required on more urgent client matters that limited the amount of time he was able to spend analyzing Z.S.’s claim. Appellant again confirmed that a final report would be forthcoming.

Z.S. attempted to contact appellant by email on February 28, March 15, and March 21, 2003. Appellant did not respond to the February and March 2003 emails. On March 27, 2003, Z.S. left a telephone message for appellant at his office. Appellant responded to Z.S.’s telephone call by email that same day. In his email, appellant apologized for the delay, citing his involvement in demanding litigation cases. He also informed Z.S. that her claim was not economically viable, but that he would consider pursuing the claim if Z.S. agreed to either pay an hourly rate or provide him with a substantial retainer to compensate for the likelihood that the claim would not be successful.

After receiving the March 27 email from appellant, Z.S. filed a complaint with the OLPR on April 2, 2003. Appellant submitted his reply to the complaint on May 2, 2003, and included a final analysis of Z.S.’s case. Appellant has never provided a final analysis directly to Z.S. On May 11, 2003, Z.S. received a letter of withdrawal from appellant and a check for $875, the balance remaining in her trust account.

This appeal presents the following two issues: (1) whether the facts support the finding of a violation of Rules 1.3 and 1.4 of the Minnesota Rules of Professional Conduct; and (2) if the facts support' a finding of a violation, whether the admonition issued by the Director is an appropriate disciplinary sanction.

I.

This court has the final responsibility for determining the appropriate discipline for an attorney’s violation of our professional conduct rules. In re Charges of Unprofessional Conduct Contained in Panel File 98-26, 597 N.W.2d 563, 568 (Minn.1999). In doing so, we weigh: (1) the nature of the misconduct; (2) the cumulative weight of the disciplinary rule violations; and (3) the potential harm to the public, to the legal profession, and to the administration of justice. See In re Pyles, 421 N.W.2d 321, 325 (Minn.1988). Sanctions are imposed according to the unique facts of each case. See id.

We have previously held that an attorney’s “failure to communicate adequately the status of the [client’s] claim, his misrepresentations concerning their status, and his failure to advise his client of the reasons for the delay in resolving the claim ⅜ ⅜ * violated Rules 1.3 and 1.4(a), Minn. R. Prof. Conduct.” In re Disciplinary Action Against Shaughnessy, 467 N.W.2d 620, 621 (Minn.1991). We have also held that a violation of Rules 1.3 and 1.4 occurs when an attorney neglects a client matter for an extended period of time and fails to communicate adequately with the client. In re Disciplinary Action Against Kolbinger, 417 N.W.2d 615, 616 (Minn.1988).

Admonition is the least severe disciplinary sanction available. Here, the panel affirmed the Director’s recommendation that an admonition was the appropriate form of discipline because the conduct was isolated and nonserious. We have held that when a panel has affirmed the Director’s issuance of an admonition due to the isolated and nonserious nature of the misconduct, this court must determine whether the panel’s conclusion was arbitrary, capricious, or unreasonable. In re Charges of Unprofessional Conduct Contained in Panel Case No. 15976, 653 N.W.2d 452, 457 (Minn.2002).

II.

Appellant asserts that the panel committed clear error when it affirmed the Director’s conclusion that appellant violated Minn. R. Prof. Conduct Rules 1.3 and 1.4. Specifically, he argues that: (1) the panel misinterpreted the meaning of the “reasonable diligence” requirement of Rule 1.3; (2) the Director’s findings and admonition went beyond the scope of the complaint; and (3) failure to provide a final written analysis to a client is not a violation of the communication principle of Rule 1.4. In response, the Director contends that the panel did not clearly err when it affirmed the recommended findings and discipline because: (1) appellant’s actions were inconsistent with the reasonable diligence requirement of Rule 1.3; (2) appellant failed to comply with the communication principle of Rule 1.4; and (3) appellant’s failure to provide a final written analysis to the client under the circumstances violated Rule 1.4.

Appellant concedes that, after completing the draft analysis in August 2000, he took no further action on Z.S.’s case, did not inform her of his preliminary analysis, and did not attempt to contact Z.S. to notify her of his analysis until his May 13, 2002, letter to Z.S. indicating that there were difficulties with the case. Further, he does not contest the fact that he did not provide Z.S. a copy of his draft analysis of the case until February 2003.

In his defense, appellant asserts that his delay was reasonable because he believed there was no urgency to notify Z.S. of his progress on the matter because the statute of limitations was not going to run out for four years and because he believed that he had no obligation to attempt to locate Z.S. after the billings he had sent her were returned with no forwarding address. Appellant also asserts that there were mitigating circumstances that caused the delay in addressing Z.S.’s claim. In mitigation, appellant argues that an unexpected increase in his workload prevented him from working on Z.S.’s ease and that he was concerned for his children who were traveling abroad during the initial stages of the 2003 Iraq war.

Rule 1.3 requires a lawyer to act with reasonable diligence in representing a client. Black’s Law Dictionary defines “diligence” as “A continual effort to accomplish something.” Black’s Law Dictionary 488 (8th ed.2004). Rule 1.4 requires a lawyer to keep a client reasonably informed. Here, Z.S. paid appellant a $5,000 retainer on February 18, 2000. At the time, appellant believed that Z.S. had a viable malpractice claim. It took appellant approximately six months, until August of 2000, to prepare a more thorough analysis of the claim. That analysis raised serious doubts about the viability of the claim. That analysis was not finalized until March 2003 at the earliest, some 31 months after the preliminary draft was completed.

Appellant’s argument that his conduct was reasonable under the circumstances is unavailing. A lawyer has an obligation to act for the benefit of the client. Delaying a determination of the viability of the client’s claim because the statute of limitations is not presently going to expire provides no benefit to the client and may well be detrimental. If nothing else, it prevents the client from obtaining another opinion of the claim’s merits from a different attorney. Moreover, to the extent that the claim is not viable, the delay prevents the client from moving forward with his or her life. Appellant’s arguments in mitigation are also unavailing. An attorney’s workload cannot mitigate the attorney’s failure to act diligently in representing a client. As the comments to Rule 1.3 make clear, “A lawyer’s workload should be controlled so that each matter can be handled adequately.” Nor do we view appellant’s concerns about his children as a mitigating factor. While we understand and appreciate these concerns, they do not provide a justification for appellant’s delay in evaluating Z.S.’s case. We therefore conclude that appellant’s representation of Z.S. was neither diligent nor reasonable.

We also conclude that appellant failed to keep Z.S. reasonably informed about the status of her case, in violation of Rule 1.4. As with appellant’s failure to act with reasonable diligence in representing Z.S,, the fact that the statute of limitations would not expire for over four years does not provide a basis for failing to inform Z.S. about the status of her case. Appellant’s argument that his failure to contact Z.S. was reasonable because of his concerns about the expense of hiring a private investigator to locate Z.S. in Florida has no merit. Appellant had Z.S.’s current email address. Had he simply emailed Z.S., he would have been able to locate her immediately.

As Rules 1.3 and 1.4 indicate, a lawyer is required to “act with reasonable diligence * * * in representing a client” and to “keep the client reasonably informed about the matter.” In this case, appellant failed to do either. A client in a case of this type should not have to wait more than 25 months to get a preliminary analysis from an attorney on the viability of a potential claim. Nor should the client have to wait just.short of an additional 12 months to receive a final analysis. Having paid appellant a $5,000 retainer, Z.S. was entitled to and should have received a prompt assessment of her case. She did not. Thus, we conclude that appellant violated Rules 1.3 and 1.4, MRPC.

III.

Having concluded that appellant violated Rules 1.3 and 1.4, MRPC, we next consider the appropriateness of the disciplinary sanction imposed. Appellant asserts that the panel’s affirmance of the admonition issued by the Director was arbitrary, capricious, and unreasonable because the issuance of an admonition in this case was excessive. Inthe alternative, appellant argues that an admonition is not appropriate because any violation óf our professional conduct rules was de minimus.

Based upon our- review of the facts in this case, we conclude that there is no basis upon which to conclude that the-panel’s affirmance of the Director’s admonition was arbitrary, capricious, or unreasonable. In fact, we believe that on -the facts presented it would not have been unreasonable for the Director to have recommended and the panel to have affirmed a more severe disciplinary sanction because, although the conduct giving rise to Z.S.’s complaint was isolated and not as serious as some misconduct, it was nonetheless serious. However, we are satisfied that the isolated nature of appellant’s conduct counsels in favor of an admonition. Therefore, we affirm the admonition of appellant for his violation of Minn. R. Prof. Conduct Rules 1.3 and 1.4.

Affirmed.

      . Rule 1.3 provides, "A lawyer shall act with reasonable diligence and promptness in representing a client.” Minn. R. Prof. Conduct 1.3. The comments to Rule 1.3 specifically state that, "A lawyer's workload should be controlled so that each matter can be handled adequately.” Minn. R. Prof. Conduct 1.3 cmt. The comments state further that "unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness.” Id.

        . Rule 1.4 provides, "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Minn. R. Prof. Conduct 1.4. The comments to Rule 1.4 state, "The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation.” Minn. R. Prof. Conduct 1.4 cmt.

      . Appellant also asserts that the panel’s composition weighed against him and for that reason its conclusions should be disregarded. However, the panel was composed of one lawyer and two laypersons as permitted by Rule 4(e), RLPR.


author: ANDERSON, Russell A., Justice. ANDERSON, Paul H., J. PAGE, Justice

text:
    Amy Marie BROEHM, Appellant, v. MAYO CLINIC ROCHESTER, Respondent.
    No. C0-02-959.
    Supreme Court of Minnesota.
    Jan. 20, 2005.

      Gerald J. Brown,. Brown, Andrew & Sig-norelli, P.A., Duluth, MN, for Appellant.
    Trudi Noel Trysla, Mayo Clinic Rochester, Rochester, MN, of counsel! ’ Thomas Fraser, Ann E. Decker, Lora Esch Mitchell, Fredrikson & Byron,. P.A., Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, Russell A., Justice.

Appellant brought a medical malpractice action in connection with injury incurred during post-operative care following tracheal resection surgery. The district court granted defendant’s motion to dismiss on grounds that appellant had failed to comply with the expert witness disclosure requirements of Minn.Stat. § 145.682 (2004). The court of appeals affirmed, and we granted further review. Concluding that appellant’s expert disclosure was sufficient to preclude mandatory dismissal of a nursing malpractice cause of action, we affirm in part, reverse in part, and remand to the district court for further proceedings.

On December 17, 1999, appellant Amy-Marie Broehm underwent tracheal resection surgery, performed by Dr. Peter Pair-olero, thoracic surgeon and chief of surgery at respondent Mayo Clinic Rochester, for a congenital narrowing of her trachea. The surgery involved removing a one and a half inch section of the trachea where the narrowing had occurred and reconnecting the two sections of the trachea with sutures. Following tracheal resection surgery, the patient’s head and neck must be immobilized for two to three days as hy-perextension of the neck could cause the separation of the tracheal sutures, resulting in suffocation. One method used by thoracic surgeons to immobilize the head and neck area is to suture the patient’s chin to the chest. As an alternative, Dr. Pairolero designed a head restraint and has employed this method “dozens of times” for over 28 years.

The restraint consists of a surgical towel placed against the patient’s forehead and secured by two strips of 2-inch-wide surgical tape attached to a headboard. Paul Holland, a physician assistant who worked with Dr. Pairolero and helped in developing the restraint, constructed the device used on Broehm. The usual practice was for Dr. Pairolero’s “team” or “service” to manage the care of the device. On December 19, as Broehm began to recover from sedation, she complained of a headache and pain in her forehead. According to Broehm’s medical chart, at noon the “primary s[ervice]” removed the restraint and observed an abraded area on Broehm’s forehead. Triple antibiotic medication ointment was applied to the abraded area and the restraint was “redone to remove pressure from [the] site.” A plastic surgeon was consulted who recommended additional ointments and gels for the wound, noting that it would heal without difficulty. The wound, however, did not heal properly and left a permanent scar on Broehm’s forehead.

Broehm commenced an action against Mayo on July 31, 2001, alleging medical malpractice. As required under Minn. Stat. § 145.682, subds. 2, 3 (2004), Broehm served Mayo with an affidavit of expert review on the day that the suit was filed. Additionally, on January 21, 2002, within the 180-day period required under Minn. Stat. § 145.682, subd. 4 (2004), Broehm served Mayo with an expert witness disclosure signed by Linda Wick, R.N., C.N.P. On January 28, 2002, the last day of the 180-day time period, Broehm filed a motion to extend the 180-day deadline.

Mayo opposed the motion for extension and moved to dismiss Broehm’s claim. The extension and dismissal motions came on for hearing on March 20, 2002. On April 9, 2002, without the district court’s permission, Broehm submitted a “supplemental memorandum,” seeking to preserve the position that expert disclosure was not required because Broehm would be entitled to a res ipsa loquitur jury instruction. In an attachment to the memorandum, Broehm submitted an expert disclosure identifying a plastic surgeon and summarizing his opinion. The district court, without considering the newly filed submissions, denied Broehm’s motion for an extension and granted Mayo’s motion to dismiss. The court found that Broehm had failed to demonstrate good cause for an extension and had failed to comply with the requirements of Minn.Stat. § 145.682.

On appeal, the court of appeals affirmed by panel majority. The court of appeals initially considered and rejected Broehm’s claim that no expert testimony was required. The court then affirmed the procedural dismissal, concluding that Wick was not qualified to provide expert opinion as to the applicable standards of care as required by Minn.Stat. § 145.682. The court affirmed the denial of an extension, concluding that Broehm had adequate time to comply with the expert-disclosure deadline and failed to show good cause for the requested extension. The dissenting panel member believed that while expert testimony would likely be necessary at trial, it was not required at the preliminary stage to show a prima facie case of medical malpractice.

I.

In a medical malpractice action, Minn. Stat. § 145.682 requires that with service of the summons and complaint, plaintiffs attorney must also serve an affidavit stating that the case has been reviewed with an expert “whose qualifications provide a reasonable expectation that the expert’s opinions could be admissible at trial and that, in the opinion of this expert, one or more defendants deviated from the applicable standard of care and by that action caused injury to the plaintiff.” Id., subds. 2, 3. Within 180 days of commencement of suit, plaintiff must serve upon defendant affidavits signed by each expert that plaintiff expects to call at trial stating, with respect to issues of malpractice or causation, the substance of the facts and opinions to which the expert expects to testify and a summary of the grounds for each opinion. Id., subd. 4(a). Interrogatory answers may be used in lieu of affidavits so long as they are signed by the expert and plaintiffs attorney. Id. Noncompliance with the statutory requirements re-suits in dismissal with prejudice. Minn. Stat. § 145.682, subd. 6 (2004).

Here, in dismissing Broehm’s complaint for failure to comply with expert disclosure, the district court determined that a nurse practitioner was not qualified to provide expert opinion as to the standard of care of a thoracic surgeon. We will reverse a district court’s dismissal of a malpractice claim for noncompliance with expert disclosure only if the district court abused its discretion. Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 427 (Minn.2002).

In an effort to reduce the costs associat-. ed with malpractice litigation as a means to increase the availability of reasonably priced medical insurance, nearly every state has enacted some measure of medical malpractice litigation reform. Mitchell J. Nathanson, It’s the Economy (and Combined Ratio) Stupid: Examining the Medical Malpractice Litigation Myth and the Factors Critical to Reform, 108 Penn. St. L.Rev.. 1077, 1077 n. 1 (2004). The Minnesota legislature enacted expert-review and expert-disclosure requirements as a means of readily identifying meritless lawsuits at an early stage of the litigation. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190-91 (Minn.1990) (noting that “the legislature contemplated procedural reform directed at elimination of ‘frivolous cases’ ” in adopting the statute). “[N]otice of claim and certificate of merit provisions are not as intrusive as more elaborate malpractice [screening] panels seen in other states * * *.” Thomas J. Hurney, Jr., Medical Professional Liability in West Virginia, 105 W. Va. L.Rev. 369, 385 n. 115 (2003). Certificate of merit requirements have proven more effective than other malpractice reform mechanisms, such as arbitration panels and. capping of damages, in “reducing insurers’ litigation costs without significant social costs.” Nathanson, supra at 1079.

So as not to undermine the legislative aim of expert review and disclosure, we have stressed that plaintiffs must adhere to strict compliance with the requirements of Minn.Stat. § 145.682. See Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 577-78 (Minn.1999) (statutory requirements are “uncomplicated and unambiguous” and contemplate strict compliance). Plaintiffs are “expected to set forth, by affidavit or answers to interrogatories, specific details concerning their experts’ expected testimony, including the applicable standard of care, the acts or omissions that plaintiffs allege violated the standard of care and an outline of the chain of causation that allegedly resulted in damage to them.” Sorenson, 457 N.W.2d at 193. We have made plain that “broad and conclusory statements as to causation” and “empty conclusions” are insufficient. Anderson v. Rengachary, 608 N.W.2d 843, 847-48 (Minn.2000) (expert affidavit failed to set forth standard of care, did not identify acts or omissions that violated standard of care and made no attempt to outline chain of causation resulting in injury); Lindberg, 599 N.W.2d at 578 (expert affidavit failed to state how health care providers departed from standard of care, failed to recite facts upon which expert would rely as a basis for expert opinion and failed to outline a chain of causation); Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 556 (Minn.1996) (expert affidavit provided only broad, conclusory statements as to causation and did not provide outline of chain of causation between alleged violations of standard of care and claimed damages, merely opining that delay in diagnosis resulted in complicated hospital stay).

The expert disclosure requirements cannot be met by a witness who is not qualified to give an expert opinion. Teffeteller, 645 N.W.2d at 427 (expert not specialized in field of pediatric oncology or experienced with bone marrow transplants not qualified to submit expert affidavit as to customary response for physicians treating pediatric bone marrow transplant patients); Wall v. Fairview Hosp. and Healthcare Servs., 584 N.W.2d 395, 405 (Minn.1998) (psychologist and psychotherapist not qualified to provide expert opinion about the appropriate standard of care for a psychiatric nurse); cf. Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn.1977) (expert medical witnesses must have both sufficient scientific knowledge and practical experience with respect to subject matter of the offered testimony).

We have been firm in holding that failure by the plaintiff to strictly satisfy the requirements under Minn.Stat. § 145.682, subd. 4(a) results in dismissal of the claim with prejudice. Teffeteller, 645 N.W.2d at 430-31 (dismissal of malpractice action mandated where expert disclosure contained only broad and conclusory statements); Anderson, 608 N.W.2d at 848 (dismissal mandated where expert disclosure clearly failed to fulfill the statutory requirements); Lindberg, 599 N.W.2d at 578 (dismissal mandated where expert disclosure falls short of the substantive disclosure requirements).

Here, the district court found that Broehm’s expert disclosure did not satisfy the requirements of Minn.Stat. § 145.682 because it failed to identify an expert qualified to testify to the applicable standards of care. The Wick disclosure set forth four duties that Mayo allegedly owed Broehm and that Wick claimed were breached:

1. Obtain her informed consent to the use of a head restraint device that had a foreseeable risk of causing a permanent wound and scarring to her forehead if, such was a known or foreseeable risk.
2. Construct a head restraint device that did not cause a wound injury or, alternatively, employ an alternative technique to immobilize the head.
3. Inspect skin integrity and the restraint device as though it were a dressing at regular intervals, no less often than once each 8 hour nursing shift or more often if medically indicated.
4. Seek appropriate specialty care to diagnose and treat the patient’s forehead wound immediately upon discovery of the wound.

Wick received her baccalaureate degree in nursing in 1984 and earned a master’s degree in 1995. She is a certified geriatric nurse practitioner and is currently employed at St. Mary’s Duluth Clinic, principally in the nephrology department. As the lower courts concluded, Wick has neither the training nor the practical experience necessary to offer opinions regarding postoperative care following tracheal resection surgery in support of claims based on the first two asserted duties; and the expert disclosure does not indicate that Wick has sufficient practical experience to qualify her as an expert in support of a claim based on the asserted duty to seek appropriate specialty care. The dismissal of those claims was not an abuse of discretion.

Wick does, however, appear to have sufficient training and practical experience with respect to general nursing care duties and duties of a nurse practitioner sufficient to qualify her as an expert in support of a claim based on a nursing standard of care. Thus, while the claims of failure to obtain informed consent, failure to construct an appropriate head restraint, and failure to seek appropriate specialty care upon discovery of the wound were properly dismissed by the district court, we reverse the dismissal of the remaining nursing malpractice claim and remand for further proceedings.

II.

Broehm also argues that the district court abused its discretion in denying her motion to extend the 180-day expert-disclosure deadline. We review the denial of an extension of the disclosure deadline for an abuse of discretion. See, e.g., Lindberg, 599 N.W.2d at 578-79. A plaintiff is allowed to extend the expert-disclosure deadline past the 180-day statutory time limit “by order of the court for good cause.” Minn.Stat. § 145.682, subd. 4(b) (2004). Broehm sought an extension to obtain opinions from physicians with expertise in plastic surgery and dermatology.

Broehm had copies of her medical records well in advance of commencing the medical malpractice action. She had taken depositions of both Dr. Pairolero and physician assistant Holland a full two months prior to the deadline. As grounds for an extension, Broehm asserted that she had expected Mayo to offer an opinion concerning the cause of the injury to her forehead and that she needed additional information related to the head restraint. In denying the extension, the district court noted that Mayo had no obligation to provide opinions on causation beyond those provided in discovery and that all obtainable information concerning the restraint had long since been available. In affirming, the court of appeals observed that as of the time of the hearing on the extension-request motion, Broehm “had been in possession of the relevant medical records for more than a year. The medical treatment that appellant alleges was negligently provided occurred two years before the date of the. hearing.” Broehm v. Mayo Clinic Rochester, No. C0-02-959, 2003 WL 951886, at *5 (Minn.App. Mar. 11, 2003). In that Broehm had sufficient information from which to obtain a qualified expert well before expiration of the 180-day deadline and otherwise failed to show good cause for an extension, the denial of an extension was not an abuse of discretion.

III.

Finally, Broehm asserts _ that expert disclosure was unnecessary because the determination of Mayo’s negligence was within the common knowledge of laypeople, citing Tousignant v. St. Louis County, 615 N.W.2d 53 (Minn.2000). Tousignant involved a claim that a nursing home breached a standard of care by failing to follow physician’s orders to restrain a resident. Id. at 58. The claim did not involve medical care that required professional judgment. Rather, it involved non-medical, administrative, custodial or routine nursing home care. Id. at 59-60. By contrast, as the court of appeals observed, Broehm’s claim alleged medical malpractice “arising from negligent postoperative care.” Broehm, 2003 WL 951886, at *3. The claim required a medical expert.

Broehm also asserts that the doctrine of res ipsa loquitur excuses her from expert-disclosure requirements. This issue was neither timely presented before the district court nor adequately briefed on appeal. Generally, we decline to review issues under these circumstances. See, e.g., Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.1997) (issue not adequately briefed on appeal); Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn.1988) (issue not raised in district court).

Affirmed in part, reversed in part, and remanded for further proceedings.

ANDERSON, G. Barry, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

SPECIAL CONCURRENCE

ANDERSON, Paul H., J.

(concurring specially).

I agree with the majority’s conclusion that this matter should be remanded to the district court for further proceedings, but I write separately because I believe that the majority fails to adequately address the district court’s actions, explain our precedent, and unnecessarily limits Amy Marie Broehm’s ability to present evidence on remand. Moreover, a full understanding of this case and our precedent requires a more complete development of the facts surrounding Broehm’s injury and the procedural history. Accordingly, I begin my special concurrence with a more detailed discussion of the relevant facts.

Following surgery and placement of the head restraint, Broehm was kept in a heavily sedated paralytic condition. Dr. Peter Pairolero testified that it is his policy for his “team” or “service” to manage the head control device during this time period and that if anything needs to be done, “[the] service is supposed to do that.” Although Paul Holland, Dr. Pair-olero’s physician assistant, could not recall any specific directions to the nursing staff, he stated that nursing personnel would have known from past experience that only Dr. Pairolero’s service was allowed to adjust or disturb Broehm’s head restraint.

On Sunday, December 19, approximately 48 hours after surgery, Broehm began to recover from the sedation. At that time, she complained of a headache and pain in her forehead. Apparently the nursing staff on duty did not act immediately upon Broehm’s complaint. Broehm’s mother, who was with her at the time, recalled that someone did eventually look beneath the restraint. Broehm’s mother stated that, after this inspection, other hospital staff came to the room and the restraint was adjusted. But it is not clear from the available records whether the initial inspection of Broehm’s skin was performed by a member of the nursing staff or by a member of Dr. Pairolero’s service. According to Broehm’s medical chart, at noon on December 19 the “primary s[ervice]” removed the restraint and discovered a “9xlcm reddish-purple area” across Broehm’s forehead. Triple antibiotic ointment and “Elastogel” were then applied to the area and the restraint was “redone to remove pressure from [the] site.”

In his deposition, Dr. Pairolero stated that he believed it was during his rounds on Monday, December 20, when he first became aware of Broehm’s injury and inspected the restraint and wound. He later stated that he was disappointed at the development of the wound because such a wound was unexpected and had never occurred in the dozens of times he had previously used that kind of restraint. He contacted Mayo’s plastic surgery department for further consultation and assistance in treating the wound. Dr. Phillip Arnold, a plastic surgeon, examined Broehm on Tuesday, December 21. Dr. Arnold observed what “look[ed] like a partial thickness defect.” Dr. Arnold prescribed additional ointments and gels to be applied to the wound and noted it “should heal without much difficulty.”

Other than the injury to her forehead, Broehm’s tracheal resection surgery was successful. Broehm reported being able to breathe better than she had ever remembered. However, as the majority notes, the skin on her forehead did not heal properly and a scar developed across her forehead above her brow line. The record shows that this scar is clearly visible in a March 2001 photograph of Broehm.

In September 2000, Broehm, acting through her attorney, requested a certified copy of her Mayo medical records. Broehm commenced this action in Saint Louis County District Court by mailing a summons and complaint to Mayo and Mayo acknowledged service of the complaint on July 31, 2001. Broehm’s mailing to Mayo included an affidavit from her attorney stating that he had reviewed Broehm’s claim with a qualified expert and, in the opinion of the expert, Mayo deviated from an applicable standard of care and such deviation resulted in Broehm’s injury. This affidavit is required by Minn.Stat.' § 145.682, subd. 3 (2004). On August 14, 2001, at Mayo’s request, the case was transferred to Olmsted County District Court.

In an interrogatory answer submitted on January 21, 2002, Broehm disclosed to Mayo the identity and opinion of an expert witness — registered nurse Linda Wick. See Minn.Stat. § 145.682, subd. 4(a) (2004) (permitting disclosure in the form of interrogatory answers in lieu of an affidavit). As required by section 145.682, subd. 4(a), Broehm’s disclosure of Wick as an expert witness was signed by both her attorney and Wick. Wick’s signature acknowledged that she certified the contents of the disclosure and adopted the testimony it summarized. See id.

Wick first summarized her credentials. She has baccalaureate and master’s degrees in nursing and is a certified geriatric nurse practitioner. She has worked as a nurse since 1984 and, at the time of the disclosure, she worked at St. Mary’s -Duluth Clinic, principally in - the nephrology department. Wick then summarized her opinion regarding Broehm’s wound. Wick agreed with the “description and diagnosis” in Mayo’s records that the probable cause of the wound “was a pressure necrosis.” Pressure necrosis describes a condition where pressure sores occur in immobilized patients due to chronic pressure on tissues overlying bony prominences. Josef Feit, et al., Atlas of Dermatology, 2.3.9 Pressure Necrosis, available at http://atlases.muni.cz/atl — en/main + nena-dory+scratch.html (October 2004). She noted that general hospital policy would require documentation of skin integrity at least once during each eight-hour nursing shift “whenever a dressing or equivalent foreign material has been applied to a patient’s skin.” She presumed this to also be the policy of Mayo. Wick stated that Broehm’s restraint “had the essential characteristics of a ‘dressing,’ so as to require adherence to the skin integrity and dressing inspection protocols.” She further noted that if Dr. Pairolero ordered that the restraint not be disturbed, such an instruction from a physician would require him to personally inspect the dressing or assign someone else to “fulfill the duty of inspection.” Wick also asserted that these orders should have been in-eluded in the medical records obtained from Mayo by Broehm, but were not. Finally, Wick stated that Mayo’s hospital records did not indicate that any inspections by Dr. Pairolero or others took place before Broehm complained of pain.

In the disclosure, Wick observed that the “importance of frequent, periodic inspection of dressings, particularly where adhesive tape is stretched tightly against unprotected forehead skin, is well-known and universally accepted in basic nursing instruction and medical literature.” She then described how necrosis of the skin can result from restriction of the blood supply. The development of skin necrosis may take from several hours to several days depending on a number of variables, including the amount of pressure and the direction of the pressure. Wick explained that pain usually precedes death of the skin tissue, but an anesthetized or heavily sedated patient who cannot sense pain is “uniquely vulnerable to the skin necrosis process.” The necrosis process may also depend on the health of the patient. Wick stated that, because Broehm did not suffer from any health condition that would have contributed to the necrosis, “the amount of pressure on [Broehm’s] skin sufficient to cause necrosis must have been significant and excessive.”

Wick then asserted that Mayo’s staff “minimized and underestimated the severity of the wound” after it was discovered. She noted that a skin specialist or plastic surgeon did not examine Broehm until Tuesday, December 21 — two days after the wound was discovered. Wick claimed that more aggressive attention would have “produced less permanent scarring.”

Wick next stated that Mayo owed Broehm duties to:

1. Obtain her informed consent to the use of a head restraint device that had a foreseeable risk of causing a permanent wound and scarring to her forehead if[ ] such was a known or foreseeable risk.
2. Construct a head restraint device that did not cause a wound injury or, alternatively, employ an alternative technique to immobilize the head.
3. Inspect skin integrity and the restraint device as though it were a dressing at regular intervals, no less often than once each 8 hour nursing shift or more often if medically indicated.
4. Seek appropriate specialty care to diagnose and treat the patient’s forehead wound immediately upon discovery of the wound.

Wick then specified that these duties were breached when Mayo:

1. Fail[ed] to obtain [Broehm’s] informed consent.
2. Fail[ed] to construct a head restraint device that did not cause a wound injury.
3. Fail[ed] to inspect skin integrity and the restraint device as though it were a dressing at regular intervals no less often than once each 8 hour nursing shift or more often if medically indicated.
4. Fail[ed] to seek appropriate specialty care to diagnose and treat the patient’s forehead wound immediately upon discovery of the wound.

Wick was the only expert disclosed by Broehm before the January 28, 2002 expiration of Minn.Stat. § 145.682’s 180-day disclosure deadline. That day, Broehm filed a motion to extend the deadline. Mayo opposed the extension and on February 17, filed a motion to dismiss Broehm’s action. Both the extension and the dismissal motions were argued at a hearing before the district court on March 20. After the March 20 hearing, but before the issuance of the court’s decision, Broehm submitted a “Supplemental Memorandum.” This memorandum included the statement that Broehm wished to preserve the position that expert disclosure was not required because Broehm is entitled to a res ipsa loquitur jury instruction.

The district court denied Broehm’s request for an extension, concluding that she had failed to show good cause. The court then granted Mayo’s motion to dismiss on the ground that Wick’s qualifications failed to satisfy the requirements of section 145.682 (2004). Of particular importance to this concurrence is the fact that the court noted that Broehm had made no claim that Wick had training in the field of surgery or the sub-specialty of thoracic surgery. Nor was there a claim, the court observed, that Wick had assisted in tracheal resection surgery or the postoperative care for such surgery. The court then reviewed each of the four duties Mayo owed to Broehm that were identified in Wick’s disclosure. The court concluded that Broehm “failed to provide the required expert witness affidavit that is likely to be admissible at trial.” Broehm appealed the extension denial and. the dismissal. A divided panel of the court of appeals affirmed, but on slightly different grounds.

I.

In its opinion, the majority fails to adequately address or explain why and how the district court abused its discretion in dismissing Broehm’s malpractice action. The opinion summarily concludes that Wick is a nurse and therefore is qualified to provide an expert opinion in support of a nursing malpractice claim. Such a summary conclusion oversimplifies -this case. As I shall explain in detail, the district court abused -its discretion both by considering Mayo’s rebuttal argument — an argument that frames Broehm’s claim as one of malpractice for thoracic surgery — and by discounting Wick’s characterization of the restraint as a dressing requiring nurses to inspect for skin integrity. The majority opinion leaves us wondering why the district court took the action it did and why the court of appeals disagreed with the district court. It is my hope that I can shed some light on this issue and explain what happened and provide some context when this case is considered upon remand.

A. Requirements of Minn.Stat. § 145.682

I begin by addressing the district court’s determination that the expert disclosure submitted by Broehm did not satisfy the requirements of Minn.Stat. § 145.682. As previously noted, the court’s determination was based on its finding that Wick was not qualified to offer an expert opinion on the standard of care owed to a patient by a thoracic surgeon. We will reverse a district court’s dismissal of an action for procedural irregularities only if the court abused its discretion. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990) (citation omitted). .However, statutory construction is a matter of law, which we review de novo. Id. (citation omitted).

Minnesota Statutes § 145.682 applies to any medical malpractice action that includes a cause of action for which an expert opinion is necessary to establish a prima facie case. Minn.Stat. § 145.682, subd. 2 (2004). The statute requires the plaintiff to serve two affidavits upon the defendant. Id. The first affidavit is one of expert review and must be served with the summons and complaint. Id. This affidavit must be signed by the plaintiffs attorney and affirm that the attorney has consulted with an expert whose qualifications provide a reasonable expectation that the expert’s opinion would be admissible at trial. Minn.Stat. § 145.682, subd. 3. This expert review affidavit must state that, in the opinion of the expert, a breach of an applicable standard of care by the defendant resulted in the plaintiffs injury. Id. Section 145.682 does not require identification of the expert or a description of the expert’s qualifications in this first affidavit.

The second affidavit required by section 145.682 must disclose the identity of each person the plaintiff expects to call as an expert witness at trial regarding malpractice and causation. Minn.Stat. § 145.682, subd. 4(a). The second affidavit must also disclose “the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion.” Id. Section 145.682 allows interrogatory answers to be used as an alternative to disclosure by affidavit so long as the answers are signed by the expert witness and the plaintiffs attorney. Id. The plaintiff must serve the expert disclosure on the defendant within 180 days after commencing the action against the defendant, whether the disclosure is by affidavit or by interrogatory answers. Minn.Stat. § 145.682, subds. 2 and 4(a). Broehm’s disclosure of Wick’s identity and opinion was made by an interrogatory answer served upon Mayo before the 180-day deadline expired.

At the time Broehm commenced her action, section 145.682 provided that failure to serve the expert disclosure before the deadline expired resulted, upon motion, in the mandatory dismissal with prejudice of each cause of action for which expert testimony was necessary to establish a prima facie case. Minn.Stat. § 145.682, subd. 6 (2000). As noted by the majority, the legislature has since amended section 145.682 to require that a defendant specify in its motion to dismiss any deficiencies in the disclosure and now allows dismissal only if the plaintiff has not corrected those deficiencies before the hearing on the motion to dismiss. Minn. Stat. § 145.682, subd. 6(c) (2004). Under the amended statute, the date for the hearing on the motion to dismiss must be at least 45 days from the date of service of the motion. Id.

We have described the purpose of section 145.682 as being to eliminate “frivolous” medical malpractice claims. Sorenson, 457 N.W.2d at 191. We concluded in Sorenson that the section’s procedural dismissal mechanism “seems * * * to have been designed to deal only with cases completely unsupported by expert testimony.” Id. To that end, the most important disclosure required by section 145.682 “is the identity of an expert who is willing to testify as to the alleged negligence.” Id. (emphasis in original). We have, however, provided some guidance on the content requirements of the disclosure. Section 145.682 does not require a disclosure’s contents to be highly detailed, but we held in Sorenson it was not enough for the expert disclosure to simply repeat the facts found in a medical record. Id. at 192. Rather, the disclosure “should set out how the expert will use those facts to arrive at opinions of malpractice and causation.” Id. at 192-93. Our decisions following Sorenson have elaborated on the content requirements of an expert disclosure. See, e.g., Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 578 (Minn.1999) (holding an expert’s affidavit was insufficient where it failed to provide a detailed statement of a standard of care and failed to outline a chain of causation connecting an alleged breach to an injury). See also Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn.1996); Anderson v. Rengachary, 608 N.W.2d 843, 847-48 (Minn.2000). But here, Mayo does not challenge the sufficiency of the content of Wick’s disclosure, but only Wick’s qualification to give an expert opinion.

The foregoing discussion of Sorenson and Lindberg and the following discussion of Comfeldt, in addition to our holdings in Stroud and Anderson, clearly delineate our precedent and undermine the majority’s undue reliance on Teffeteller, a 3-2 decision of our court. The majority overstates the requirements of Minn.Stat. § 145.682, subd. 4(a), when it states that a plaintiff must “strictly satisfy” the requirements of the statute or face dismissal of her claim. Such a “strict” interpretation undermines the purpose of section 145.682 which is to establish an initial threshold of credibility for medical malpractice cases in order to eliminate frivolous claims and appears to conflict with Comfeldt’s standard for the qualification of expert opinion evidence; i.e., we do not limit expert opinion evidence to the one or few persons who are most qualified to give an expert opinion. Teffeteller cannot and should not be construed to impose such a requirement.

I am concerned that as a possible result of the majority’s language, district courts may be tempted to be unduly vigilant in screening out cases at too early a stage as happened in the case before us. The following quotation articulates the problems with having a court determine the admissibility of expert opinions at too early a stage in the litigation:

Another problem with the expert opinion occurs when the testimony of the expert preparing the opinion must be admissible. It is difficult for trial courts very early in civil litigation to make such a determination. Regarding the trial court’s “gatekeeping” responsibility in deciding upon the admissibility of expert scientific testimony, the U.S. Supreme Court has said: “[T]he trial court judge must determine at the outset * * * whether the reasoning or methodology underlying the testimony is scientifically valid * * * [and] whether that reasoning or methodology properly can be applied to the facts in issue.” Such determinations at the outset of civil litigation are problematic because they may lead to excessive satellite litigation, as was often the case under the 1983 version of Federal Civil Procedure Rule 11. Additionally, the relevant factual issues may not have surfaced at such a preliminary stage.

Jefferey A. Parness & Amy Leonetti, Expert Opinion Pleading: Any Merit to Special Certificates of Merit? 1997 B.Y.U. L.Rev. 537, 586 (1997).

To be qualified to give an expert opinion in a medical malpractice case, a witness must have both sufficient scientific knowledge of and practical experience with the subject matter of the offered testimony. Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn.1977). Those qualified to give expert opinion evidence are not limited to the one or the few persons who are most qualified to give an expert opinion. Christy v. Saliterman, 288 Minn. 144, 167, 179 N.W.2d 288, 303 (1970). Instead, a witness who has training or skills concerning a particular subject may be heard as an expert on that subject; the value of the testimony is tested by cross-examination and ultimately determined by the jury. Id. In Cornfeldt, we held it was error to exclude the testimony of a chief nurse anesthetist in a medical malpractice claim against doctors “solely because he was not a licensed physician or because he did not graduate from medical school and had received only the training of a registered nurse anesthetist.” 262 N.W.2d at 697. We reasoned that if the nurse had otherwise sufficient scientific and practical experience about the subject of his testimony, he would have been competent to give an expert opinion. Id. Consequently, an expert’s academic or experiential qualifications usually go to the weight given to an opinion rather than to its admissibility. Ruether v. State, 455 N.W.2d 475, 477 (Minn.1990).

B. Characterizing Broehm’s claim

As I proceed with this analysis, it is important to first identify the subject or claim that Wick’s opinion was intended to support because a witness’s qualification to give an expert opinion is inextricably linked to the witness’s knowledge of or experience with a particular subject. See Cornfeldt, 262 N.W.2d at 692. Mayo has characterized Broehm’s claim as being one for thoracic surgeon malpractice and argues that Wick is not qualified to give an expert opinion on a thoracic surgeon’s duty of care to a tracheal resection patient. In its argument, Mayo emphasizes the danger of suffocation and death against which the head restraint is designed to safeguard. Mayo contends that the restraint, as an essential element of postoperative care, is an extension of the thoracic surgery and thus represents specialized care that only Dr. Pairolero could provide or supervise. Therefore, Mayo asserts, a nurse with Wtek’s training and experience is not qualified to give an expert opinion supporting a claim of thoracic surgeon malpractice.

In contrast, as developed in Wick’s disclosure, Broehm’s theory of the case focuses on the care and attention to the head restraint from the time it was constructed to the time Mayo staff discovered Broehm’s injury two days later. Broehm characterizes her case as one of nursing or continuum of care malpractice. The testimony offered by Wick in the disclosure focuses on the claim that Broehm’s injury was the result of skin necrosis from the restraint’s pressure. One theory articulated by Wick is that the necrosis was caused by the application of adhesive tape to Broehm’s forehead during the restraint’s construction. Wick also articulates a second theory, in greater detail than the first, premised on an alleged duty of nursing staff to periodically inspect Broehm’s skin under the restraint. According to this second theory, had Mayo’s nursing staff properly inspected for skin integrity, Broehm’s injury could have been prevented or could have been less severe. The district court apparently relied on Mayo’s characterization of the case in assessing Wick’s qualification to give an opinion on each of the four duties identified in the disclosure.

C.Thoracic surgeon malpractice

Such reliance may have been proper in evaluating Wick’s qualification to give an opinion on the asserted duties of a failure to obtain Broehm’s informed consent to the use of the restraint and a failure to construct a head restraint device that did not cause an injury. Based upon the record before us, I conclude these first two duties were within the province of the surgeon performing the procedure and the personnel supervising and constructing the specialized restraint. Therefore, I agree with the majority’s holding that the district court did not abuse its discretion when it found Wick not qualified to give expert testimony in support of a claim based on the two foregoing duties of a thoracic surgeon.

D. Duty to seek specialty care

The two other duties identified in the Wick disclosure — to inspect the restraint as if it were a dressing and to seek immediate specialty care once Broehm’s injury was discovered — are not susceptible to a categorical pronouncement that Wick does not qualify as an expert. A duty to immediately seek specialty care may depend on the specific facts of a case. The duty may involve a nursing duty to properly respond to an injury as distinct from a physician’s treatment decision. A duty to seek specialty care is a matter possibly within a nurse’s practical training and experience such that a nurse should not be presumptively disqualified from giving an expert opinion. See Cornfeldt, 262 N.W.2d at 697 (holding that it was erroneous to exclude the expert testimony of a nurse in a malpractice action against doctors solely because the nurse did not have the similar credentials and education as the doctors). Nevertheless, Broehm’s abbreviated disclosure of Wick’s nursing experience does not demonstrate that Wick has sufficient practical experience to make her competent to give an expert opinion on an asserted duty to immediately seek specialty care. Cf. id. at 693, 697. Therefore, I would also conclude that the district court did not abuse its discretion when it found Wick not qualified to give an expert opinion to support a claim based on a duty to seek specialty care.

E. Duty to inspect — nursing standard of care

I next consider the duty to inspect for skin integrity. Given that patients recovering from surgery are entrusted to the care of nurses who have the responsibilities of attending to the immediate needs of patients and of monitoring their recovery, the duty to inspect for skin integrity would arise from a nursing standard of care.

At this point, I must note my concern about the district court’s reasoning with respect to the duty to inspect for skin integrity. The court stated that it would have been against Dr. Pairolero’s instructions for nurses to disturb the restraint. The court then asserted that the head restraint was “not a dressing or bandage” which would have made a nursing standard of care applicable, but rather a “device designed to prevent possible death.” The court concluded that Wick, as a nurse practitioner, was not qualified “to recommend post-operative care for this type of surgery.” In reaching this conclusion, the court disregarded Wick’s opinion that the restraint “had the essential characteristics of a ‘dressing,’ so as to require adherence to the skin integrity and dressing inspection protocols.”

Again, the district court’s reasoning appears to flow from Mayo’s theory of the case. By using this approach, the court erred in how it evaluated Wick’s qualification to give an expert opinion on a duty to inspect for skin integrity. More particularly, this error resulted in the court’s adopting Mayo’s theory that this case is strictly one of thoracic surgeon malpractice as opposed to Broehm’s nursing malpractice theory. The burden on Broehm was simply to make out a prima facie case of medical malpractice. In particular, Broehm had the burden to produce an expert whose opinion supported her claim. See Sorenson, 457 N.W.2d at 191 (stating the purpose of section 145.682’s dismissal provision was to deal with cases “completely unsupported by expert testimony,”).

The essence of a prima facie showing is that the plaintiff has presented facts and opinions that, if uncontested, would allow a decision in her favor. Tousignant v. St. Louis County, 615 N.W.2d 53, 59 (Minn.2000). In Tousignant, we concluded that it was inappropriate for a court to focus on the defendant’s rebuttal argument rather than on whether the plaintiff had established a prima facie case of medical malpractice. Id. at 60. Here, the court’s adoption of Mayo’s theory amounted to a consideration and weighing of the defendant’s rebuttal argument. Doing so is contrary to the nature of the burden required of the plaintiff in a section 145.682 dismissal motion and therefore I conclude that the court abused its discretion in dismissing Broehm’s claim on this basis. Cf. Northern States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963) (holding that “A claim is sufficient against a motion to dismiss * * * if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.” (emphasis added)).

I also conclude that the district court abused its discretion when it explicitly rejected Wick’s opinion that the restraint had the “essential characteristics of a ‘dressing.’” In Ruether, our court held that a finder of fact “is not free to disregard unopposed medical testimony because such testimony concerns issues not within the realm of knowledge of the fact finder.” 455 N.W.2d at 478 (citing Olson v. Midwest Printing Co., 347 N.W.2d 43, 46 (Minn.1984)). There was no medical opinion other than Wick’s concerning whether the restraint should have been construed to be a dressing. Whether the restraint had the characteristics of a dressing in terms of nursing or hospital protocol is outside of common knowledge and the court improperly discounted Wick’s opinion. The opinion that the restraint was essentially a dressing is an important premise of Wick’s overall opinion. Unless Wick’s opinion was contradicted by other evidence or was completely unreasonable, the court had to accept it and its implications for purposes of the motion to dismiss and, therefore, the court abused its discretion in summarily rejecting it.

Here, it is important to place in the correct context the district court’s statement that checking the restraint “would be in direct disobedience of Dr. Pairolero’s orders.” At this stage in the litigation, the issue of Dr. Pairolero’s instructing nursing staff not to disturb the restraint, in the context of Broehm’s theory, may not eliminate a duty to inspect for skin integrity. Rather, it might only shift that inspection duty from nurses to Dr. Pairolero and therefore is an insufficient reason for finding that Wick was not qualified to testify regarding the appropriate standard of care. Therefore, for the foregoing reasons, I conclude that the district court abused its discretion when it found Wick not qualified to give an expert opinion to support a claim based on a nursing standard of care.

F. Sufficiency of Wick’s disclosure

Having concluded that the district court erred in how it viewed Wick’s qualifications, the next step in the analysis is to consider Wick’s qualification to give an expert opinion in support of Broehm’s nursing malpractice theory. Although the Wick disclosure provides only a cursory recital of Wick’s credentials, I agree with the majority that Wick’s nursing experience and education provide a sufficient basis for her to be qualified to give an expert opinion about a nursing standard of care. Wick has worked as a nurse since 1984 and has attained a master’s degree in nursing. Also, Wick’s certification as a geriatric nurse and her current work in nephrology are not so narrow or nontransferable as to lead us to conclude that dressings, bandages, and skin integrity are treated dramatically different in those contexts. Nor does the record support such a conclusion.

Admittedly, a possible shortcoming of the Wick disclosure lies in its description of causation, which fails to explicitly articulate that the lack of inspections resulted in Broehm’s pressure necrosis. This shortcoming, however, is not fatal because there are other detailed statements related to causation that provide a sufficiently clear understanding of Wick’s proposed explanation of causation. Although it may be inartfully drafted, the Wick disclosure does not contain the kinds of “empty conclusions” that may be used to “mask a frivolous claim.” Teffeteller v. Univ. of Minnesota, 645 N.W.2d 420, 428 (Minn.2002).

My aforementioned conclusions reflect the general deference that should be given to plaintiffs on a motion to dismiss. Our court has stated as an “incontestable proposition ]” that in a motion to dismiss “the facts alleged by complaint and affidavit are to be taken as true, and that the motion should not be granted unless the plaintiff fails to make out a prima facie case.” Hardrives, Inc. v. City of LaCrosse, Wis., 307 Minn. 290, 296, 240 N.W.2d 814, 818 (1976) (citing Hunt v. Nev. State Bank, 285 Minn. 77, 172 N.W.2d 292 (1969)). We have also held that it is immaterial whether the plaintiff can prove the facts alleged in a complaint. Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739 (Minn.2000) (citing Royal Realty Co. v. Levin, 244 Minn. 288, 290, 69 N.W.2d 667, 670 (1955)). Even at a later stage in the proceeding, such as a motion for summary judgment, a court “must take the evidence in a light most favorable to the nonmoving party.” Fairview Hosp. v. St. Paul Fire & Marine, 535 N.W.2d 337, 341 (Minn.1995) (citing Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).

In Sorenson, we recognized that section 145.682’s sanction of abrupt termination with prejudice of potentially meritorious claims runs counter to our traditional preference for disposing of claims on their merits. 457 N.W.2d at 192. We have encouraged district courts to “carefully evaluate the degree of prejudice to the defendant caused by the inadequate disclosures” and suggested less drastic alternatives to procedural dismissal in. cases where a plaintiff identifies experts and gives some meaningful disclosure of what that testimony will be. Id. at 193 (citing Dennie v. Metropolitan Med. Ctr., 387 N.W.2d 401, 406 (Minn.1986)). For these reasons, dismissal of Broehm’s case on the grounds articulated by the district court does not further an interest in adjudicating claims on their merits. Therefore, for all of the reasons stated above, the .district court’s dismissal of Broehm’s action for nursing malpractice on the ground that the Wick disclosure failed to meet the requirements of section 145.682 was an abuse of discretion.

II.

Holding that the Wick disclosure meets the requirements of section 145.682 to the extent that Broehm may proceed with the nursing malpractice claim means that our affirmance of the district court’s denial of an extension will not result in the complete dismissal of Broehm’s action. Having met the section 145.682 deadline with one expert disclosure and thereby preserving the nursing malpractice cause of action, I note that a separate issue may arise. This issue is whether Broehm is permitted to later supplement or even replace the Wick disclosure with that of another expert— though still limited to the nursing duty to inspect the restraint as if it were a dressing.

'■ Section 145.682 contains several possibly contradictory provisions regarding whether additional or substitute experts may be identified following the deadline for expert disclosure. Subdivision 4(a) requires the plaintiff to “state the identity of each person whom plaintiff expects to call as an expert witness at trial to testify with respect to the issues of malpractice or causation.” Minn.Stat. § 145.682, subd. 4(a). However, subdivision 4(b) provides that “Nothing in this subdivision may be construed to prevent either party from calling additional expert witnesses or substituting other expert witnesses.” Minn.Stat. § 145.682, subd. 4(b) (2004) (emphasis added). Also, subdivision 4(c) states:

The court shall include in a scheduling order a deadline prior to the close of discovery for all parties to answer expert interrogatories for all experts to be called at trial. No additional experts may be called by any party without agreement of the parties or by leave of the court for good cause shown.

Minn.Stat. § 145.682, subd. 4(c) (2004) (emphasis added).

On January 11, 2002, Broehm and Mayo stipulated to the extension of a number of deadlines, including changing the deadline for designating expert witnesses from February 8 to April 8 on the condition “that Plaintiff must comply with the deadline in Minn.Stat. § 145.682, subd. 2(2) unless such deadline is extended by agreement of the parties or by leave of court as provided by Minn.Stat. § 145.682, subd. 4(b).”

Both the law and the facts of this case raise significant questions as to how the parties are to proceed upon remand. Nevertheless, I believe that it is imprudent for us to render any opinion, either explicit or implicit, on any other provisions of section 145.682 because no issue relating to the interplay of those provisions is properly before us. Accordingly, I would have the court’s opinion state explicitly that these other issues are not being addressed by the court.

CONCURRENCE

PAGE, Justice

(concurring).

I concur in the court’s analysis and the result reached with respect to a nurse’s qualifications to offer an expert opinion with respect to a duty to inspect for skin integrity and with respect to Broehm’s nursing malpractice theory. What is not clear to me is why the construction (in the sense of how it was put in place and not how it was designed) of the restraint here, which the court concedes has the “essential characteristics of a dressing,” does not fall within Broehm’s nursing malpractice theory given that a nurse is often the one applying or changing dressings. It is also not clear to me why Wick is not qualified to offer an expert opinion regarding necrosis of the skin resulting from the application of the restraint at issue here. It seems to me that nurses are uniquely qualified to offer expert testimony regarding necrosis resulting from the application of such a dressing. Finally, it is not clear to me why any expert opinion is necessary with respect to the doctor’s duty to construct a restraint that does not cause injury.

      . At the time Broehm commenced her action, section 145.682 provided that failure to timely serve the expert disclosure, upon motion, resulted in mandatory dismissal with prejudice of every cause of action as to which expert testimony was necessary to establish a prima facie case. Minn.Stat. § 145.682, subd. 6 (2000). The legislature has since amended that provision, requiring the defendant to specify in the dismissal motion the deficiencies in the affidavit or interrogatories and allowing a 45-day time period for the plaintiff to cure the deficiencies before dismissal with prejudice is mandatory. The amendment applies to causes of action commenced on or after May 23, 2002. Act of May 22, 2002, ch. 403, § 1, 2002 Minn. Laws 1706-07 (codified at Minn.Stat. § 145.682, subd. 6(c) (2004)).

      . It is not clear from the record if there is a formal name for the ''team” or "service” to which Dr. Pairolero refers. In his deposition, Holland mentions a "critical care service” and an entry to Broehm's chart refers to a "primaiy” service. We have no other information about this service.

      . Nephrology is "[t]he science that deals with the kidneys, especially their functions or diseases.” American Heritage Dictionary of the English Language (3rd ed.1992).

      . Mayo stated in an interrogatory answer that it "did not have a written policy for the inspection or examination of the head restraint device used on Ms. Broehm.”

      . In an attachment to this memorandum, Broehm disclosed another expert witness, Dr. William Portilla, in the form of an interrogatory answer. It appears the district court did not consider the memorandum or the disclosure. Broehm did not request permission at the motion hearing for supplemental briefing or submissions. The court of appeals granted Mayo's motion to strike Dr. Portilla’s disclosure from the appellate record due to its untimely submission to the district court. We granted Mayo’s motion to strike references to Dr. Portilla's disclosure from Broehm’s materials before us.

      . While this case has been characterized as a thoracic surgery malpractice claim, that characterization is misleading. The claimed malpractice only involves the taping of the restraint to Broehm's forehead and the failure to inspect that tape.