author: DANIEL F. FOLEY, Acting Judge.

text:
    In re the June 9, 2000 Fence Viewing PETITION OF Gary BAILEY.
    No. C9-00-1703.
    Court of Appeals of Minnesota.
    May 15, 2001.

      Robert A- Woodke, Brouse, Woodke & Meyer, Bemidji, MN, (for relators Barbara and Gerald Feldman).
    Alan B. Fish, Alan B. Fish, P.A., Roseau, MN, (for respondent Gary Bailey).
    Philip K. Miller, Lake of the Woods County Attorney, Baudette, MN; and Jay T. Squires, Minneapolis, MN, (for respondent Lake of the Woods County as fence viewers).
    Considered and decided by RANDALL, Presiding Judge, FOLEY, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

DANIEL F. FOLEY, Acting Judge.

On appeal from a decision of the Lake of the Woods County Commission requiring contribution for installation of a statutory fence in a farmed cervidae operation, rela-tors allege that (1) the application of Minnesota Statutes chapter 344, the Minnesota fence viewer statute, violated the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 13, of the Minnesota Constitution by depriving them of due process of law and just compensation for taken property; (2) the contribution decision exceeded the statutory powers of the fence viewers under Minn.Stat. § 344.02 (2000); and (3) the fence viewers abused their discretion in approving a specific type of fence. We affirm.

FACTS

Respondent Gary Bailey owns approximately 500 acres of land for a farmed cervidae operation. On May 12, 2000, respondent petitioned the Lake of the Woods County Commission for a fence viewing. In this petition, respondent requested cost sharing for a fence surrounding the property he owns. Relator Barbara Feldman owns the property abutting respondent’s parcel. Respondent stated that although he planned to construct a 96 inch woven wire fence, he sought contribution only for the cost of a five-strand barbed wire fence.

The fence viewing was held in June 2000. Because Lake of the Woods County has no organized townships, the county board appointed Robert Sutherland and Vern James as fence viewers, pursuant to Minn.Stat. § 344.19 (2000).

Respondent Bailey submitted to the viewers that material and labor costs for installation of a five-strand barbed wire fence are $1.50 per linear foot. Relator Gerald Feldman informed the county board that he had installed this type of fence in the past, he estimated the cost of materials for the fence at about $.24 per linear foot, and he stated that he would be willing to install his portion of the fence, thus saving labor costs.

Respondent attempted to amend his petition to include three quarters of a mile of a boundary shared with the Feldmans. The viewers denied this amendment because insufficient notice was given.

Due to heavy rainfall, the parties and the viewers agreed to waive an actual viewing of the property. The parties stipulated that relators’ property was either under water or heavily brushed, making it difficult to view. There is no trail system on this portion of relator’s property. Respondent has an extensive trail system on his parcel.

In an August 4, 2000 order, the viewers found that the five-strand barbed wire fence Gerald Feldman offered to construct would not be legally sufficient to confine a cervidae herd, and therefore denied his offer. The viewers granted respondent’s request for contribution toward the cost of a five-strand barbed wire fence, and ordered relators to pay $2,970 for their share. The viewers ordered that payment need not occur until respondent completed construction of the planned 96 inch woven wire fence.

On June 12, 2000, while the first petition was still pending, respondent submitted another petition for a fence viewing. The petition stated the property to be viewed was located in an adjacent section of Pota-mo Township. A viewing date was set for August 4, 2000.

At the August 4 viewing, respondent requested contribution toward the cost of a 96 inch woven wire fence pursuant to Minn.Stat. § 17.452, subd. 10(a)(3) (2000), and submitted an estimate of material and labor costs at $4.50 per linear foot. Respondent requested that he first install the fence, and upon completion, submit a bill to relators for one-half the total cost. Re-lators objected to construction of this fence along their property line, stating that they preferred to install their portion of the fence, as opposed to reimbursing respondent after completion. The parties stipulated that there was no property line dispute involved in this viewing. On September 6, 2000, the viewers ordered rela-tors to install their portion of a 96 inch woven wire fence that comports with Minn.Stat. § 17.452, subd. 10(a)(3).

Relators now challenge both the August 4 and September 6, 2000 orders.

ISSUES

1. Is the application of Minnesota Statutes chapter 344, the Minnesota Partition Fence Statute, to relators’ land unconstitutional in violation of the Fifth and Fourteenth Amendments of the United States Constitution, or Article I, Section 13, of the Minnesota Constitution?

2. Did the fence viewers abuse their discretion in ordering relators, adjoining landowners, to contribute financially to a fence in a farmed cervidae operation, rather than allowing them to construct their portion of the fence?

3. Did the fence viewers abuse their discretion in requiring construction of a 96 inch woven wire fence?

ANALYSIS

This matter is before the court on a writ of certiorari for review of the Lake of the Woods County fence viewers’ decisions to require contribution and partial construction of two partition fences.

On certiorari review of a board decision, the court’s inquiry is limited to questioning whether the board had jurisdiction, whether the proceedings were fair and regular, and whether the board’s decision was unreasonable, oppressive, arbitrary, fraudulent, without evidentiary support, or based on an incorrect theory of law.

Radke v. St. Louis County Bd., 558 N.W.2d 282, 284 (Minn.App.1997) (citation omitted).

I.

Relators argue that the Minnesota partition fence statute is unconstitutional as applied to them. Evaluating a statute’s constitutionality is a question of law. In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993). “Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989) (citation omitted).

“[Pjrivate property [shall not] be taken for public use, without just compensation.” U.S. Const, amend. V. The Takings Clause has been applied to the states through the Fourteenth Amendment. Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 236, 17 S.Ct. 581, 584, 41 L.Ed. 979 (1897). Similarly, Minn. Const, art. I, § 13, provides that “[p]rivate property shall not be taken, destroyed or damaged for public use without just compensation.”

In determining whether a statute results in an unconstitutional taking when applied to a specific piece of property, the controlling test requires the landowner to “demonstrate that he had been deprived, through governmental action or inaction, of all the reasonable uses of his land.” County of Pine v. State, Dep’t of Natural Resources, 280 N.W.2d 625, 630 n. 4 (1979) (quoting Czech v. City of Blaine, 312 Minn. 535, 539, 253 N.W.2d 272, 274 (1977)). A showing that the property has merely diminished in market value is not sufficient. Id. The result would be similar under the federal constitution. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 105, 98 S.Ct. 2646, 2650, 57 L.Ed.2d 631 (1978).

Relators argue that their use and enjoyment of the land will be diminished by construction of the partition fence. However, they have only speculated as to how this fence will affect their property. There are no facts in the record compelling the conclusion that relators will be deprived of all reasonable uses of their land. Relators failed to establish that this application results in an unconstitutional taking.

Relators also allege that the partition fence statute is not a valid exercise of the police power as applied to their land. The Minnesota Supreme Court has recognized that

laws regulating the locating of the boundaries, and fixing permanent monuments to mark them, between landowners, and providing for some public officer or special tribunal to ascertain the cost of the work, and apportion the amount thereof to the respective owners benefited thereby, and for collecting the same, are in the nature of police regulations.

Davis v. Board of Comm’rs, 65 Minn. 310, 313, 67 N.W. 997, 998 (1896). The United States Supreme Court has set forth the test to determine whether a state has properly exercised its police powers.

[T]he state may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. To justify the state in thus interposing its authority in behalf of the public, it must appear first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.

Lawton v. Steele, 152 U.S. 133, 136-37, 14 S.Ct. 499, 501, 38 L.Ed. 385 (1894) (citations omitted).

We initially note that it is clear that Minnesota’s partition fence law is constitutional on its face and passes the first prong of the Lawton test. See Davis, 65 Minn, at 313, 67 N.W. at 998. We believe it is clear that the partition fence law serves the broad purposes of mediating boundary, fence, and trespass disputes by requiring adjoining landowners to share the cost of a partition fence. “Courts have generally upheld fencing laws against various constitutional objections as a valid exercise of police power.” See Gravert v. Nebergall, 539 N.W.2d 184, 187 (Iowa 1995); 35 Am. Jur.2d Fences § 10 (1967); 36A C.J.S. Fences § 8 (1961); Annotation, Constitutionality of Fencing and Stock Laws, 6 A.L.R. 212 (1920) (supplemental annotation at 18 A.L.R. 67 (1922)).

However, we cannot end our analysis here; we must also determine whether the statute is reasonably necessary to the accomplishment of that purpose and whether it is unduly oppressive to realtors. See Lawton, 152 U.S. at 137, 14 S.Ct. at 501. Relators argue that compliance with the fence viewers’ order in this instance is not reasonably necessary for the accomplishment of a public purpose, and is unduly oppressive, because they must expend substantial sums of money to erect a fence from which they allegedly derive no benefit. Courts widely defer to legislative judgment; the government need not employ the least restrictive means when exercising its police powers, but rather “a means narrowly tailored to achieve the desired objective.” Board of Trustees v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3035, 106 L.Ed.2d 388 (1989). The single fact that a party must make substantial expenditures to comply with a regulatory statute does not render the statute unconstitutional. Northwestern Laundry v. City of Des Moines, 239 U.S. 486, 492, 36 S.Ct. 206, 208, 60 L.Ed. 396 (1916).

Relators rely on decisions from other state courts in support of their argument that Minnesota’s partition fence law is not reasonably necessary to further a legitimate public purpose when applied to their land, and therefore is unduly oppressive. See Choquette v. Perrault, 153 Vt. 45, 569 A.2d 455, 460 (1989); Sweeney v. Murphy, 39 A.D.2d 306, 306, 334 N.Y.S.2d 239 (N.Y.App.Div.1972) (holding that requiring a landowner who does not own livestock to share the cost of a fence was not reasonably necessary to further any legitimate public purpose). Two Ohio courts reached a contrary conclusion, noting that a landowner without livestock derived benefit in the form of protection from encroaching livestock. Glass v. Dryden, 18 Ohio St.2d 149, 248 N.E.2d 54, 56-57 (1969); Kloeppel v. Putnam, 76 Ohio App. 130, 63 N.E.2d 237, 239 (1945); see generally Gravert, 539 N.W.2d at 188 (reaching same conclusion).

The Glass court noted that partition fence laws are similar to special assessments imposed by the government. Glass, 248 N.E.2d at 56. The court conceded that “a partition fence is not a public improvement in the sense that the public uses it directly,” but the court reasoned that to the extent the statute prevents the “inevitable trespassing upon adjoining-fields” that would result from the absence of a fence, the fence furthers “the ulterior public advantage.” Id. (quotation omitted). The court presumed that private property immediately adjacent to the fence is benefited unless evidence to the contrary is presented. Id.

We find the reasoning in Glass persuasive. Relators have asserted that the partition fence between their property and Bailey’s property will not benefit their property. In fact, relators argue that their property will be adversely affected, because the fence will restrict wildlife movement in the area. Relators have not presented any evidence in support of these assertions. We find that relators will be benefited in several ways by the application of Minnesota’s partition fence statute, including freedom from intrusion by neighboring livestock and increased privacy. Given these benefits, we find that Minnesota’s partition fence law is not unduly oppressive and that it passes the second prong of the Lawton test.

II.

Relators also argue that the fence viewers abused their discretion in requiring contribution for the partition fence, when they offered to construct their own portion of the fence. The September 6, 2000 order did direct relators to construct a 96 inch fence, rather than contributing to the cost of construction. Thus, this argument relates only to the August 4, 2000 order requiring relators to contribute to construction costs based on the estimated cost of a five-strand barbed wire fence.

An agency’s decision is arbitrary and capricious when it is “based on whim or is devoid of articulated reasons.” In re Proposal by Lakedale Tele. Co., 561 N.W.2d 550, 553 (Minn.App.1997) (citation omitted). While a reviewing court will intervene if the absence in the record of findings or reasoning indicates the agency failed to address the salient problem, a court will affirm if the record shows the agency engaged in reasoned decision-making. See Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 669 (Minn.1984).

The record reveals that relators offered to construct their portion of a five-strand barbed wire fence, but relators did not offer to construct a portion of the 96 inch woven wire fence, which is what respondent intended to erect, although he sought contribution only for the cost of a less expensive barbed wire fence. The fence viewers found that a five-wire barbed fence would not be sufficient to contain a cervidae herd and would not accomplish the intent of the petition. Because rela-tors did not offer to build their portion of a fence that would actually contain the herd, the fence viewers reasonably required re-lators to contribute to construction costs. This was not an abuse of discretion.

III.

Because a 96-inch woven wire fence is not included in the statutory list of “legal and sufficient fences,” relators argue' that the fence viewers exceeded their statutory authority in requiring them to construct such a fence. In interpreting and construing statutory language, our goal is to “ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2000). If the words of the statute are “clear and free from all ambiguity,” further construction is neither necessary nor permitted. Id. It is a fundamental rule of statutory construction that words and phrases are to be construed according to their plain meaning. Minn.Stat. § 645.08(1) (2000). A reviewing court may not read ambiguity into an otherwise clear statute under the guise of statutory interpretation. Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986).

Minn.Stat. § 344.02, subd. 1 (2000) lists several types of “legal and sufficient fences,” but it does not include a 96 inch woven wire fence in the list. But determination of the type of fence to be constructed is left to the discretion of the fence viewers. See Minn.Stat. § 344.02, subd. 2 (2000) (“If adjoining land owners disagree as to the kind of fence to be built on any division line, the matter must be referred to the fence viewers, who shall determine what kind of fence should be built on the line and order it built.”). Minn.Stat. § 17.452, subd. 10(a)(3) (2000) mandates that farmed cervidae must be confined by a fence of at least 96 inches. These statutory provisions, when read together, clearly give the fence viewers the authority to determine the type of fence to be built, including a 96-inch woven wire fence for the purpose of containing farmed cervidae.

DECISION

Minnesota Statutes chapter 344 is constitutional as applied in this case. The fence viewers properly required contribution in respondent’s first petition, and properly required construction of a 96 inch woven wire fence in respondent’s second petition.

Affirmed.

      . The term "cervidae” refers to a family of mammals. "The cervids include deer and their allies, including familiar moose, elk, and caribou.” UNIVERSITY OF MICHIGAN MUSEUM OF ZOOLOGY, ANIMAL DIVERSITY WEB, available to http://animaldiversity.ummz. umic.edu/chordata/mammalia/artio-dactyla/cervidae.html. Minn.Stat. § 17.451, subd. 2 (2000) defines "farmed cervidae” as "members of the cervidae family that are * * ⅜ raised for the purpose of producing fiber, meat, or animal by-products, as pets, or as breeding stock[.]”


source: Caselaw Access Project

author: BERTRAND PORITSKY, Judge

license: Public Domain

text:
    Kari LOVEN, et al., Appellants, v. CITY OF MINNEAPOLIS, et al., Respondents, Federal Signal Corporation, et al., Defendants, and Kelsey Loven, a minor, by her father and natural guardian, Kyle A. Loven, and Kyle A. Loven, individually, Appellants, v. City of Minneapolis, et al., Respondents, and Jean M. Lanz, Appellant, v. State Farm Mutual Automobile Insurance Company, Defendant, City of Minneapolis, et al., Respondents.
    No. C5-00-1925.
    Court of Appeals of Minnesota.
    May 15, 2001.
    James S. Ballentine, James R. Schwebel, Schwebel, Goetz Sieben, Minneapolis, MN, for appellants.

      Jay M. Heffern, Minneapolis City Attorney, James A. Moore, Assistant City Attorney, Minneapolis, MN, for respondents.
    Considered and decided by TOUSSAINT, Chief Judge, G. BARRY ANDERSON and PORITSKY, Judges.
   OPINION

BERTRAND PORITSKY, Judge

Appellants brought an action in district court seeking basic economic loss benefits from the respondent city of Minneapolis pursuant to the no-fault insurance act. Minn.Stat. § 65B.44 (1998). The district court ruled that the limits in the municipal tort liability law, Minn.Stat. § 466.04 (1998), applied to recovery of no-fault benefits from the city. Because we conclude as a matter of law that these limits do not apply, we reverse.

FACTS

At the Holidazzle parade in downtown Minneapolis on December 4, 1998, a city-owned police van driven by a police officer went out of control. It crashed into a crowd of parade goers, killing two people and seriously injuring several others, including appellants.

Appellants brought actions for no-fault benefits against the city, and the district court determined that the city was their primary no-fault insurer. Both sides moved for summary judgment on the issue of whether basic economic loss benefits payable under the no-fault act were subject to the municipal tort liability cap. It is undisputed that the cap of $750,000 is inadequate to cover all of the damages from the deaths and injuries that resulted from the accident. The district court, ruling in favor of respondent city, held that

the cap applies to no-fault benefits, and this appeal followed.

ISSUE

Are the city’s obligations for basic economic loss benefits under the no-fault insurance act, Minn.Stat. § 65B.44 (1998), limited by the municipal tort liability cap set forth in Minn.Stat. § 466.04 (1998)?

ANALYSIS

Interpretations of statutes raise questions of law that are reviewed de novo. McClain v. Begley, 465 N.W.2d 680, 682 (Minn.1991). The Minnesota No-Fault Automobile Insurance Act, Minn.Stat. §§ 65B.41-.71 (1998), has many purposes, including “[t]o relieve the severe economic distress of uncompensated victims of automobile accidents,” to prevent overcompensation, to encourage medical treatment, to ease the burden of litigation, and to provide offsets to avoid duplicate recovery. Minn.Stat. § 65B.42 (1998). Under this act, every owner of a motor vehicle in Minnesota, including a political subdivision, must maintain a “plan of reparation security” to provide basic economic loss benefits and residual liability coverage. Minn.Stat. § 65B.48, subds. 1, 4 (1998).

The respondent city of Minneapolis chose to self-insure. See Minn.Stat. § 65B.48, subd. 4 (1998) (providing that political subdivision may provide a plan of reparation security through self-insurance or through purchase of insurance). “Self-insurance is the functional equivalent of a commercial insurance policy.” McClain, 465 N.W.2d at 682. A decision to self-insure does not exempt a municipality from the requirements of the no-fault act. Rasmussen v. Sauer, 597 N.W.2d 328, 330 (Minn.App.1999), review denied (Minn. Sept. 14,1999).

The city does not dispute that it is appellants’ primary no-fault insurer. However, citing the municipal tort liability act, Minn.Stat. ch. 466 (1998), it contends that both the tort and no-fault claims arising out of the accident are subject to the limits contained in that law.

Municipalities are liable for them own torts, subject to certain limitations and exceptions. Minn.Stat. § 466.02 (1998). The monetary limitation applicable to tort claims arising out of this accident is $750,000. Minn.Stat. § 466.04, subds. 1(a)(2), lb (1998).

The city contends that the basic economic loss benefits — which include medical expenses, disability and income loss payments, funeral and burial expenses, and replacement service payments — are part of any potential tort recovery by appellants. See Minn.Stat. § 65B.44 (1998) (providing for basic economic loss benefits). Further, the law provides that such benefits are “subject to any applicable deductibles, exclusions, disqualifications, and other conditions.” Id., subd. 1 (1998). The city argues that neither the no-fault act nor the municipal tort liability act specifically exempts basic economic loss benefits from the municipal liability cap. Reading the statutes together, the city asserts that the limit must apply.

There are major differences between tort law and no-fault law. Tort law has its origins in the common law. Anker v. Little, 541 N.W.2d 333, 337 (Minn.App.1995), review denied (Minn. Feb. 9, 1996). It is based on the concept of fault. See Tester v. American Standard, Inc., 590 N.W.2d 679, 680-81 (Minn.App.1999) (discussing effect of allocation of fault between parties), review denied (Minn. June 16, 1999). In contrast, the no-fault act is solely a creature of statute. Minn.Stat. §§ 65B.41-.71 (1998). It is based on the concept of compensation, regardless of fault. See Minn.Stat. §§ 65B.42 (1998). Given these differences, it would be expected that if the legislature had intended the municipal tort liability cap to apply to basic economic loss benefits, it would have done so expressly.

There are areas in which the legislature has expressly addressed the effect tort law and no-fault have on each other. Thus, basic economic loss benefits recovered under no-fault are to be deducted from any tort recovery. Minn.Stat. § 65B.51, subd. 1 (1998). In addition, tort recovery is not available unless certain thresholds provided for in the no-fault act are met. Minn. Stat. § 65B.51, subd. 3 (1998).

We have said that when a statute speaks with clarity in limiting its application to specifically enumerated subjects, its application shall not be extended to other subjects by process of construction.

Marlinco v. Hastings, 265 Minn. 490, 495, 122 N.W.2d 631, 637 (1963) (citations omitted). The fact the legislature has expressly provided that in certain instances tort law and no-fault law are each to be modified by the other, yet did not apply the municipal liability cap to no-fault, supports the conclusion that the legislature did not intend the cap to apply to no-fault law.

Moreover, in a suit against a city, the supreme court has stated statutes concerning sovereign immunity “should be read restrictively,” because “one should be liable for the harm one causes.” Wilson v. City of Eagan, 297 N.W.2d 146, 149-50 (Minn.1980). By the same reasoning, the municipal liability cap should also be treated restrictively, so that municipalities are liable for the harm they cause. See Ronning v. Citizens Sec. Mut. Ins. Co., 557 N.W.2d 363, 366 (Minn.App.1996) (stating that no-fault act does not indicate that legislature intended that the municipal liability cap apply to an insurer’s underin-sured motorist coverage). A restrictive reading of the municipal liability cap would yield the conclusion that it should not apply to no-fault without an express legislative command to do so.

Finally, the city points to the legislative purpose behind the municipal tort liability cap — to protect taxpayers from a catastrophic liability arising out of a single incident — and argues that this can only be achieved by applying the tort limit to no-fault basic economic loss benefits claims. We disagree. Under no-fault, when an insured obtains a policy, the no-fault coverage is limited by the terms of the policy, which must comply with the requirements of the no-fault act. See Minn.Stat. § 6£B.44, subd. 1 (1998) (mandating maximum coverage of $40,000 for loss arising out of injury to any one person). We recognize that the city in this case is self-insured, but the city’s obligations under no-fault are identical whether it is self-insured or whether it purchases a policy from a third-party insurer. Minn.Stat. § 65B.48, subd. 4 (1998) (providing that “any political subdivision of the state * * * shall provide security by lawfully obligating itself to pay benefits in accordance with [the no-fault act], either as a self-insurer * * * or through purchase of a plan of reparation security”). There is nothing in the record of this case to suggest that the city has taken any affirmative act to increase its no-fault obligation above the statutory maximum. We conclude that on the record presented, the city’s no-fault exposure is not unlimited, but is determined by section 65B.44, subdivision 1 (1998).

DECISION

We conclude that the municipal tort liability cap does not apply to basic economic loss benefits. Any duplicate recovery may be offset as provided in Minn.Stat. § 65B.51 (1998).

Reversed.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.


author: TOUSSAINT, Chief Judge

text:
    Jean TEFFETELLER; as trustee for the heirs of Thad Roddy, Appellant, v. UNIVERSITY OF MINNESOTA, d/b/a University of Minnesota Hospital and Clinics, Pediatric Research And Education Foundation, Respondents.
    No. C8-00-1935.
    Court of Appeals of Minnesota.
    May 15, 2001.

      Roger J. Aronson, Rischmiller, Knippel & Aronson, Minneapolis, MN (for appellant).
    David G. Hutchinson, Jean Bernadette Hoppe, Geraghty, O’Loughlin & Kenney, P.A., St. Paul, MN (for respondent University of Minnesota).
    David D. Alsop, Elliot Lawrence Olsen, Gislason & Hunter, LLP, Minnetonka, MN (for respondent Pediatric Research and Education Foundation).
    Considered and decided by TOUSSAINT, Chief Judge, G. BARRY ANDERSON, and PORITSKY, Judges.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

TOUSSAINT, Chief Judge

In this medical negligence wrongful death action, the district court granted respondents’ motion for dismissal, finding that appellant’s expert was not qualified to testify and that the required affidavit of expert review was insufficient under Minn. Stat. § 145.682 (2000). Because appellant’s expert has qualifications that permit the reasonable expectation that he could testify at trial; and his medical opinion covering the areas of the applicable standard of care, negligence, and causation establishes a chain of causation, we reverse and remand.

FACTS

Thad Roddy, a fifteen-year-old male, was diagnosed with leukemia. On December 4, 1996, he was admitted to respondent University of Minnesota’s bone marrow transplant unit. A bone marrow transplant was completed on December 12th.

Prior to, and following the transplant, Roddy was given a morphine drip to help assuage high levels of pain. The morphine dosage was increased on December 18th. In the evening, Roddy began experiencing a fever. Staff began to closely monitor Roddy and, at each check, noted that Rod-dy was responsive and that his vital signs were stable until 7:30 a.m. on December 19th.

On the morning of December 19th at 8:30 a.m., nurse Sima Perry noticed that Roddy had become unresponsive, his respiratory levels had decreased, and his pupils had become pinpoint and sluggish. The nurse contacted Dr. Cynthia Wetmore, an employee of respondent University of Minnesota, who visited Roddy, checked his status, and discussed the possibility of morphine toxicity as being the cause of Roddy’s lack of responsiveness. Dr. Wet-more, however, believed that morphine toxicity was an unlikely cause of Roddy’s condition because he had been on the morphine drip for the preceding nine hours without incident.

After speaking with Perry, Dr. Wetmore then attempted to contact Dr. Michael Shannon, an employee of respondent Pediatric Research and Education Foundation (PRE). There is a factual dispute in the record as to whether Dr. Wetmore spoke with Dr. Shannon at this time regarding Roddy’s condition. Dr. Wetmore indicates that they spoke; Dr. Shannon indicates that they did not speak. Nevertheless, it is established that Dr. Wetmore consulted with Dr. Kenneth Tegtmeyer, another employee of PRE, at this time. The two doctors discussed Roddy’s condition and concluded that his condition could be the result of either an infection, a head bleed, or morphine toxicity. The doctors discussed the use of two drugs, Narcan versus Nubain, to remedy morphine toxicity, and also discussed discontinuance of the morphine drip. The conversation resulted in a decision to give a small dose of Nubain in order to determine whether there was a component of morphine toxicity present.

At 9:20 a.m., Roddy was given a small dose of Nubain and the morphine was discontinued. The staff continued to monitor Roddy’s condition. Roddy initially responded to the care with increased respiratory rates and more reactive pupils. At approximately 9:30 a .m., Dr. Bruce Bla-zar, a PRE employee, and Dr. Weigel, a University fellow, were called into Roddy’s room while on morning rounds. Neither Dr. Blazar nor Dr. Weigel had been consulted about Roddy’s condition prior to this time.

Between 9:30 a.m. and 10:23 a.m., Rod-dy’s status deteriorated again. At 10:00 a.m., Dr. Shannon and Dr. Tegtmeyer were asked to assist with Roddy. Narcan was ordered at approximately 10:23 a.m. During the administration of Narcan, Rod-dy went into respiratory arrest. Roddy lost consciousness, went into a coma, and never regained consciousness. He was placed on mechanical ventilation, but his overall condition declined and life support was terminated on January 3,1997.

Roddy’s autopsy report and death summary state that the exact cause of his arrest was not clear, but that the decreased respiratory state before his arrest was secondary to the administration of morphine. Respondents provided evidence that two-thirds of patients die from complications following a bone marrow transplant. The complications are numerous, including graft versus host disease, lung injury, failure of engraftment, and veno-occlusive disease. The death summary also reported that Roddy ultimately died of multi-organ failure caused by extensive lung damage that was possibly caused by infection, aspiration, drugs, and/or transfusions.

Following Roddy’s death, appellant Jean Teffeteller, as trustee for the heirs of Thad Roddy, filed suit alleging that respondents were negligent in failing to recognize the signs of morphine toxicity, and that such negligence directly resulted in Roddy’s death. Certain depositions were conducted, and appellant served upon respondents an expert affidavit stating that she expected Dr. William Perloff, a pediatrician, to testify regarding the applicable standards of care. The affidavit states, in summary, that (1) Narcan, not Nubain, is the drug given to reverse the effects of morphine toxicity; (2) the applicable standard of care required diagnosis of morphine toxicity and the administration of Narcan; and (3) the failure to administer Narcan to Roddy on December 19th between 8:30 a.m. and 9:25 a.m. was the proximate cause of Roddy’s death.

The district court dismissed the suit pursuant to Minn.Stat. § 145.682 (2000), holding that appellant’s expert (1) lacked the appropriate qualifications to render an opinion in this ease; and (2) even if he had the appropriate qualifications, he failed to sufficiently explain the causal link between the respondent’s actions and Roddy’s death. This appeal followed.

ISSUES

I. Did the district court err in finding that appellant’s expert was not qualified to render expert testimony about the standard of care used to treat a post-operative pediatric bone marrow transplant patient suffering from morphine toxicity?

II. Did the district court err in finding that appellant’s expert’s affidavit was insufficient as to the alleged negligence of respondents and causation of Thad Roddy’s death?

ANALYSIS

Absent an abuse of discretion, this court will not reverse a district court’s dismissal of a suit pursuant to MinmStat. § 145.682 (2000). Anderson v. Rengachary, 608 N.W.2d 843, 846 (Minn.2000).

Under Minnesota law, a plaintiff who brings a medical malpractice claim must file an affidavit that identifies (1) qualified experts who intend to testify; (2) the substance of their testimony; and (3) a summary of the basis for the experts’ opinions. Minn.Stat. § 145 .682, subd. 4(a). Failure to comply with the affidavit requirements mandates that the district court dismiss the plaintiffs cause of action with prejudice. Id., subd. 6; Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 577 (Minn.1999).

In determining whether to dismiss a claim under Minn.Stat. § 145 .682 for the inadequacy of an expert affidavit, the district court must read the affidavit as a whole. Demgen v. Fairview Hosp. & Healthcare Servs., 621 N.W.2d 259, 262-63 (Minn.App.2001), review denied (Minn. Apr. 27, 2001). Review of the affidavit is not a trial on the merits, but merely a determination of whether the affidavit puts the defendants on notice of the proposed expert, his qualifications, and his medical opinions covering the areas of the applicable standard of care, negligence, and causation. Id. at 265.

I.

Appellant argues that the district court erred in determining that Dr. Perloff did not have the requisite qualifications to render an opinion as to whether respondents had acted negligently in the treatment of Thad Roddy, and that Roddy died as a result of their negligence. In a medical malpractice action, an expert affidavit must be submitted by “an expert whose qualifications provide a reasonable expectation that the expert’s opinions could be admissible at trial.” Minn.Stat. § 145.682, subd. 3.

An expert’s opinion is admissible at trial if the witness has both sufficient scientific knowledge and some practical experience with the subject matter of the proposed testimony. Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn.1977); see also Minn. R. Evid. 702 (requiring evidence of expertise before a witness may be qualified as an expert).

The expert

must have had basic education and professional training as a general foundation for his testimony, but it is a practical knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted the [treating doctors] charged with malpractice that is of controlling importance in determining competency.

Cornfeldt, 262 N.W.2d at 692-693 (citation and quotation omitted).

Here, appellant’s expert proposes to testify that respondents failed to recognize and treat Roddy for morphine toxicity. We conclude that appellant carried the burden of proving that Dr. Perloff had scientific knowledge and some practical experience in treating morphine toxicity in a pediatric patient. See Anderson, 608 N.W.2d at 846 n. 3 (plaintiff carries the burden of proof to establishing the sufficiency of the expert testimony).

Appellant provided an affidavit and curriculum vitae of Dr. Perloff that established that he has scientific knowledge and extensive practical experience in treating morphine toxicity in a pediatric patient. Perloff is board certified in pediatric critical care medicine. He has worked for the University of Madison’s hospital in the pediatrics division since 1986 and has acquired extensive experience in all aspects of the administration of morphine, its complications, the treatment of those complications, and the consequences of inappropriate treatment. Therefore, Dr. Perloff has extensive and appropriate knowledge of the standards of care related to morphine toxicity in pediatric patients.

Respondents, however, argue that at the time of Roddy’s arrest, the oncology was not limited to pediatric care and within Dr. Perloffs experience; but was within the oncology of a pediatric bone marrow transplant and beyond Dr. Perloffs training and experience. In order to support this argument, respondents submitted evidence to the district court that bone marrow transplants are a specialized area of medicine, that complications following a transplant are numerous, and that training or experience with this type of patient is, therefore, necessary to serve as an expert in this case.

Dr. Perloffs testimony is limited to establishing the signs of morphine toxicity, the remedy, and the harm that can result from a failure to remedy morphine toxicity. Dr. Perloff has extensive educational and practical experience in each of these areas. Therefore, it is not beyond Dr. Perloffs medical experience to testify for the limited purpose of establishing the standard of care in recognizing and treating a pediatric patient for morphine toxicity. Cf. Williams v. Wadsworth, 503 N.W.2d 120, 124-25 (Minn.1993) (finding expert incompetent where expert purposed to testify about lymphangiogram procedures in a child, where his experience was limited to ordering about 20 lymphangio-gram for adult patients years before expert acknowledged that testifying to the purpose of a lymphangiogram would be beyond his specialty). Impeachment evidence pointing out the deficiencies in Dr. Perloffs opinion, is better served at trial, where the fact-finder can fully consider, balance, and weigh the evidence developed from a full and complete discovery process. See Demgen, 621 N.W.2d at 265 (stating “there is no need to over-scrutinize the expert affidavit” because the discovery and trial process will flush out any inadequacies of expert’s opinion). Therefore, we conclude that the district court erred in concluding that appellant’s expert affidavit was insufficient to meet the requirements of Minn.Stat. § 145.682 because it was submitted by an expert whose qualifications did not provide a reasonable expectation that his testimony would be admissible at trial.

II.

Appellant further argues that the district court erred when it concluded that even if Dr. Perloff was qualified, his affidavit failed to detail a chain of negligence between respondents’ negligence and Rod-dy’s death.

The affidavit must contain more than just the facts found in the hospital or clinic record; conclusory statements are insufficient. Rather, the [plaintiff] must set forth, by affidavit or answers to interrogatories, specific details concerning the expert[’s] expected testimony, including the applicable standard of care, the acts or omissions that [plaintiff] alleged] violated the standard of care and an outline of the chain of causation that allegedly resulted in damage to [her].

Demgen, 621 N.W.2d at 262 (citations and quotations omitted).

Dr. Perloff provided two affidavits in order to explain the chain of causation in this matter. Respondent University of Minnesota argues that it is not subject to the supplemental affidavit. Because we conclude that the initial affidavit is sufficient to establish a standard of conduct, alleged negligence, and causation by all the defendants named and made party to this suit, our decision does not rely on those statements made by Dr. Perloff in the supplemental affidavit.

In the initial affidavit, Dr. Perloff s stated:

It was below the accepted standards of care for the defendants to fail to timely recognize that Thad Roddy was experiencing Morphine toxicity on the morning of December 19, 1996. At 8:30 a.m., when the nurses noted that they were unable to rouse him with verbal, vigorous or tactile stimulation, or with sternal pressure, and Thad had pinpoint and sluggish pupils, the applicable standard of care would require recognition that Thad was in a state of Morphine toxicity.
An acceptable level of care between 8:30 and 9:25 would have required frequent boluses or a continuous infusion of [Narcan], under continuous medical supervision, until there was evidence of ongoing reversal of narcotic toxicity, i.e., improvement in breathing, responsiveness to stimuli, and pupil size enlargement. It was below accepted standards of care for the defendants to administer Nubain * * * which may well have exacerbated the effects of the Morphine.
Further, it is Dr. Perloff s opinion that had Thad Roddy’s clinical status at [sic] been appreciated as Morphine toxicity at about 8:30 a.m., and had appropriate treatment measures been utilized, i.e. frequent boluses or a continuous infusion of [Narcan] continuously monitored by a physician, Thad Roddy, to a reasonable degree of medical probability would have been revived successfully. Finally, it is Dr. Perloff s opinion that the departures from accepted levels of care, as above identified, were a direct cause of Thad Roddy’s death.

The district court found that the affidavit specified acts and omissions of the respondents that fell below the standard of care, but that it failed to establish how those acts and omissions led to Roddy’s death. Reading the affidavit as a whole, we conclude that the district court erred.

The affidavit: (1) identifies the parties charged with engaging in conduct that was below the standard of care in treating a pediatric patient for morphine toxicity; (2) establishes that it was below the standard of care to fail to administer Narcan when morphine toxicity is present; and (3) alleges that the failure of defendants to administer Narcan between the 8:30 a.m. and 9:25 a.m. was below the standard of care and the proximate cause of Roddy’s death.

These statements were sufficient to put the respondents on notice of appellant’s proposed expert testimony and there is no prejudice to respondents in allowing the matter to proceed to trial where Dr. Per-loffs opinion may be crystallized. See Demgen, 621 N.W.2d at 265-66 (finding expert affidavit sufficient where affidavit specified facts and circumstances that were allegedly negligent in such a manner as to give defendants a sneak preview of the expert’s testimony); cf. Lindberg, 599 N.W.2d at 578 (finding expert affidavit insufficient where the affidavit failed to cite any facts in order to establish specifically what the defendants had done wrong). Therefore, the district court erred when it determined that the expert affidavit failed to sufficiently establish a chain of causation.

DECISION

The district court erred: (1) in dismissing appellant’s medical malpractice claim for failure to comply with Minn.Stat. § 145.682 (2000); (2) in holding that Dr. Perloff did not have sufficient qualifications to testify as an expert; and (3) in holding that the affidavit failed to establish a chain of causation sufficient to put respondents on notice of the expert’s proposed testimony.

Reversed and remanded.

      . Further, respondents cited Bies v. Hennepin County Med. Ctr., No. CO-92-1591 (Minn.App. Mar. 16, 1993), an unpublished opinion by this court which held that an expert was incompetent regarding the causal link between prematurity and cerebral palsy where the expert had experience only with premature patients, and not cerebral palsy patients. However, unpublished opinions are of persuasive value "at best” and not precedential. Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn.App.1993).