Where a contractor that was sued by a project owner for failing to comply with contract specifications filed a claim to implead the project engineer into the suit, it failed to serve an expert identification affidavit within 180 days as required by state statute.  As a result, the court dismissed the contractor’s claim against the engineer.

In Middle River-Snake River Watershed District v. Dennis Drewes, Inc., 692 N.W.2d 87 (2005 Minn. ), a contractor, Dennis Drewes, Inc. was contracted by a watershed district to work on a flood impoundment project.  Before submitting its bid, the contractor reviewed soil reports that indicated that the soil would be ideal for construction.  The contract required the contractor to achieve an overall soil compaction of 95 percent and prohited lifts greater than twelve inches in height.   During construction, the contractor encountered wetter soil conditions than anticipated but instead of notifying the district of the changed conditions the contractor deviated from the specifications and used lifts greater than twelve inches in order to complete its work and failed to meet the compaction requirements.

Upon learning of the contractor’s non-compliance the district filed suit against it.  The contractor responded with counterclaims against the district and also filed a claim against the project engineer, J.O.R. Engineering, Inc., alleging negligence, estoppel, and tortuous interference with its contract.    Contractor failed to comply with the expert witness disclosure requirements of the Minnesota statute.  The statue require service of two affidavits on the adverse party.  The first is an affidavit of expert review to be filed with the pleadings.  The second is an expert-identification affidavit that must be served within 180 days after the first affidavit.  A party’s failure to provide the second affidavit “results, upon motion, in mandatory dismissal of each action with prejudice as to which expert testimony is necessary to establish a prima facie case.”

In this case, the contractor filed the expert-review affidavit but failed to serve the second affidavit within the required 180 days.  The engineer then filed a motion to dismiss the complaint for failure to file the affidavit.  In response to that motion, the contractor filed the missing affidavit three days later.

Under the state statute, there is a 60 day cure period for a defective affidavit.  It states that a motion to dismiss may not be granted “unless, after notice by the court, the nonmoving party is given 60 days to satisfy the disclosure requirements.”  The contractor argued that since it filed the affidavit within 60 days of the motion to dismiss, it is exempted from the mandatory dismissal provision.  In rejecting this argument, the court held that the 60 safe harbor period is only for “claimed deficiencies of the affidavit” and does not apply in the situation of a complete failure to file any affidavit (albeit defective) within the mandatory 180 day period.  The court said that this was self evident from the fact that the last sentence of this section of the statute requires the court to issue specific findings on “the deficiencies of the affidavit.”  As explained by the court, “When an initial expert-identification affidavit has not been filed, a court would be unable to make specific findings on the deficiencies.”    For these reasons, the court affirmed the summary judgment against the contractor.


Numerous states have statutes requiring some type of expert affidavits to be filed with pleadings and/or to be served on the other party within some period of time following the pleadings.  Failure to timely file these affidavits has been the basis for a number of judicial decisions dismissing actions against professionals.  This current decision is a reminder of the importance of knowing and following in careful detail the requirements of statutory requirements concerning what must be filed and when it must be filed.  Since dismissal with prejudice is mandatory under these statutes, the courts had little leeway (or even no leeway) to do anything but grant a motion to dismiss.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 7, No. 6 (Oct 2005).

Copyright 2005, ConstructionRIsk.com, LLC