United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-2734

___________

Manley Stowell; Enid Stowell, *

*

Appellants, *

*

v. * Appeal from the United States

* District Court for the 

Paul Huddleston, M.D.; Mayo * District of Minnesota.

Clinic-Rochester, a non-profit *

corporation, *

*

Appellees. *

___________

Submitted: March 16, 2011

Filed: July 7, 2011

___________

Before SMITH, ARNOLD, and SHEPHERD, Circuit Judges.

___________

ARNOLD, Circuit Judge.

After Dr. Paul Huddleston, an orthopedic surgeon, performed spine surgery on

Manley Stowell for his back pain, Mr. Stowell awoke completely blind in both eyes;

the apparent cause of this loss of vision was posterior ischemic optic neuropathy

(PION), a rare medical condition that results from a stroke to the optic nerves.

Mr. Stowell and his wife, Enid Stowell, then brought an action under Minnesota law

against Dr. Huddleston and Mayo Clinic, claiming that Dr. Huddleston, though not

negligent in performing the surgery itself, had negligently failed to inform Mr. Stowell

that a risk of permanent blindness accompanied the procedure. The plaintiffs sought
1

The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota.

-2-

damages from Dr. Huddleston and Mayo for Mr. Stowell's blindness and the resulting

loss of their "freedom and emotional stability."

To satisfy Minnesota's expert certification requirement for medical malpractice

cases, the plaintiffs served an affidavit of Dr. Steven Robin on the defendants.

See Minn. Stat. § 145.682, subds. 2, 4. In that affidavit, Dr. Robin averred that based

on his review of Mr. Stowell's medical records, his "training and experience as an

ophthalmologist," and his familiarity with the applicable standard of care, he had

reached certain opinions with respect to Mr. Stowell's case to a reasonable degree of

medical probability. The defendants moved for summary judgment, challenging

Dr. Robin's qualifications to offer those opinions. They argued, among other things,

that Dr. Robin was not qualified to testify about the appropriate standard of care

because he was not an orthopedic surgeon and the plaintiffs had not shown that he had

any training or experience in that medical speciality. The plaintiffs responded to the

defendant's motion, in part, with an amended affidavit of Dr. Robin. In that affidavit,

Dr. Robin explained that he based some of his opinions on his experience performing

ophthalmologic surgeries that carried a risk of blindness that was statistically similar

to the risk of PION-induced blindness in orthopedic spine surgeries. The remainder

of his opinions were based on statements of Mr. Stowell's treating physicians at Mayo

and some "authoritative peer reviewed" medical literature.

The district court1

 considered Dr. Robin's amended affidavit but granted

summary judgment for the defendants. In coming to that decision, the court found

that Dr. Robin was not qualified to offer expert opinion on the applicable standard of

care and that his reliance on sources of information outside his own training and

experience did not cure this lack of qualification. The court then found that without

this expert testimony the plaintiffs had failed to satisfy the requirements of Minn. Stat.
-3-

§ 145.682, and it entered judgment on that basis. We review the district court's

interpretation of state law, including § 145.682, de novo. Reimer v. City of Crookston,

326 F.3d 957, 961 (8th Cir. 2003); see also Bellecourt v. United States, 994 F.2d 427,

431 (8th Cir. 1993). We review the district court's determination of an expert

witness's competency for an abuse of discretion. See General Electric v. Joiner, 522

U.S. 136, 141-43 (1997); see also Williams v. Wadsworth, 503 N.W.2d 120, 123-25;

Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).

I.

The plaintiffs argue first that the district court abused its discretion when it

determined that Dr. Robin was not qualified to provide expert testimony for the

purpose of satisfying § 145.682. That statute requires a plaintiff to file two affidavits

in any action against a medical care provider in which "expert testimony is necessary

to establish a prima facie case": In the first affidavit, which is filed with the complaint,

the plaintiff's attorney must attest to having had the case reviewed by a medical expert

who concluded that the defendant breached the standard of care. Minn. Stat.

§ 145.682, subds. 2, 3(a). Within 180 days thereafter, the plaintiff must file a second

affidavit identifying all experts who will testify on the plaintiff's behalf at trial and

outlining the substance of their testimony. Minn. Stat. § 145.682, subds. 2, 4.

Testimony of a witness who is not qualified to offer expert opinion cannot satisfy this

disclosure requirement, Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 726

(Minn. 2005), and failure to comply with the statute requires dismissal of the case

with prejudice, id.; see also Minn. Stat. § 145.682, subd. 6.

The competency of a witness to provide expert medical testimony on the

standard-of-care issue "depends upon both the degree of the witness' scientific

knowledge and the extent of the witness' practical experience with the matter which

is the subject of the offered testimony." Reinhardt, 337 N.W.2d at 93. Although

education and professional training are important considerations, it is the

"occupational experience" of a potential witness that is of "controlling importance"
-4-

when determining competency. Cornfeldt v. Tongen, 262 N.W.2d 684, 692 (Minn.

1977) (internal quotation marks and citations omitted). In particular, an expert

witness must possess a "practical knowledge of what is usually and customarily done

by physicians under circumstances similar to those which confronted the defendant."

Id. at 692-93 (internal quotation marks and citations omitted); see also Lundgren v.

Eustermann, 370 N.W.2d 877, 880 (Minn. 1985).

In his amended affidavit, Dr. Robin opined that "prolonged prone lumbar spine

surgery," the type of surgery that Dr. Huddleston performed on Mr. Stowell, is

"associated with a risk of permanent blindness." Dr. Robin also stated that prior to the

date of Mr. Stowell's surgery this association had been discussed in "authoritative peer

reviewed literature," which had found that between 0.2% and 0.028% of all spine

surgeries resulted in permanent blindness "depending on patient and procedure risk

factors." According to Dr. Robin, it was "accepted medical practice" at the time of

Mr. Stowell's surgery in March, 2006, to know of this association and thus the "risk

of permanent blindness from prolonged prone lumbar spine surgery." Dr. Robin also

attested that the "standard of care in Minnesota" required a "reasonable physician" to

inform patients of such a risk of blindness (no matter the cause) if it was associated

with an elective surgical procedure and had an incidence "in the range of 0.2% and

0.028%."

The district court found that Dr. Robin was not qualified to offer any of these

proposed opinions. The court stated that Dr. Robin lacked the necessary "training or

experience" to testify about "the likelihood that PION would result from a prolonged

prone spine surgery" or whether it was accepted medical practice for orthopedic

surgeons to know of that risk. The court found for similar reasons that Dr. Robin also

could not opine as to what warnings, if any, a "skilled orthopedic surgeon" would

have given to a patient like Mr. Stowell under similar circumstances. In support of

these findings, the court reasoned that "Dr. Robin is an eye surgeon, not a spine

surgeon" and noted that nothing in Dr. Robin's amended affidavit indicated that he had
-5-

"any experience performing surgeries similar to a prolonged prone spine surgery on

patients similar to Mr. Stowell under similar circumstances." The court therefore

concluded that Dr. Robin's medical practice was "insufficient to establish his

knowledge of or experience with what warnings are customarily given by orthopedic

surgeons prior to performing prolonged prone spine surgery on a patient similar to Mr.

Stowell."

After reviewing the record, we cannot say that the district court abused its

discretion in finding that Dr. Robin was not qualified to testify on these matters. Even

if Dr. Robin possessed a sufficient level of "scientific knowledge," see Reinhart, 337

N.W.2d at 93, the record is clear (and the plaintiffs admit) that Dr. Robin has

absolutely no practical training or experience performing any type of orthopedic

surgery. Dr. Robin similarly lacks any practical experience discussing with patients

the potential risks of prolonged prone spine surgery (or any other orthopedic surgery)

and obtaining their informed consent for the same. In that respect, his background is

starkly different from expert witnesses in the cases the plaintiffs rely on, see

Cornfeldt, 262 N.W.2d at 690-91; Fiedler v. Spoelhof, 483 N.W.2d 486, 489 (Minn.

Ct. App. 1992), and Broehm, 690 N.W.2d at 726-27, all of whom had both sufficient

knowledge and experience in the relevant subject matter to testify to the applicable

standard of care despite it being outside of their respective medical specialties.

Because Dr. Robin had no "practical knowledge of what is usually and customarily

done" by orthopedic surgeons under circumstances similar to those that confronted Dr.

Huddleston, see Lundgren, 370 N.W.2d at 880, he had no basis in his own experience

for offering any expert opinion concerning what Dr. Huddleston should have known

or done.

The district court similarly did not abuse its discretion by concluding that

Dr. Robin's attempted reliance on sources of information outside his own knowledge

and experience failed to cure this lack of expert witness competency. The first of

these outside sources were two medical journal articles that Dr. Robin cited to in his
-6-

amended affidavit: William R. Stevens et al., Ophthalmic Complications After Spinal

Surgery, 22 Spine 12, 1319-24 (June 15, 1997) and Shu-Hong Chang & Neil R.

Miller, The Incidence of Vision Loss due to Perioperative Ischemic Optic Neuropathy

Associated With Spine Surgery, The John Hopkins Hospital Experience, 30 Spine 11,

1299-1302 (June, 21, 2005). Dr. Robin referred to these "authoritative peer reviewed"

articles for their findings that between 0.028% and 0.2% of all spine surgeries result

in permanent blindness; he then used them to support his opinions that prolonged

prone spine surgery is associated with permanent blindness and it was accepted

medical practice to know of that risk. The district court, however, found that Dr.

Robin's reliance on these articles did not alter his lack of qualifications. Central to this

determination was the court's related finding that Dr. Robin had misstated the articles'

respective conclusions. In particular, the court found that neither of the statistics had

to do with what Dr. Robin claimed, that is, patients who had become permanently

blind as a result of spinal surgery, because the statistics included patients who had

become partially or only temporarily blind. And the court also noted that the statistics

did not purport to state the risk of harm that Mr. Stowell had suffered, that is, PIONinduced blindness in both eyes (as opposed to blindness from other causes or

occurring only in one eye). Accordingly, because Dr. Robin failed to explain how the

statistics were relevant to the harm that Mr. Stowell suffered, the court determined that

they were insufficient to serve as the basis for his opinions.

The district court came to a similar conclusion with respect to Dr. Robin's

reliance on the clinical notes of Dr. Jacqueline Leavitt, the ophthalmologist at Mayo

who diagnosed Mr. Stowell with PION-induced blindness shortly after his surgery.

According to her clinical notes, she explained that diagnosis to Mr. Stowell, in part,

by telling him that PION was an "unfortunate event that is rarely seen" and that

"anesthesiologists, orthopedists, surgeons and ophthalmologists around the country

were very aware of [PION] and [had] been trying to determine risk factors to no

avail." Dr. Robin incorporated these statements into his amended affidavit, noting

his agreement with them. He thus apparently intended to make those opinions his
-7-

own, as well as to offer them as additional expert testimony that Dr. Huddleston

should have known that prolonged prone spine surgery carried a risk of blindness, the

same opinion that he sought to support with the journal articles. To the district court,

however, the fact that Dr. Robin took these statements directly from another

physician's clinical notes did nothing to qualify him to offer those proposed opinions.

In fact, the court questioned the basis for the incorporated statements themselves since

there was nothing in the record to indicate that Dr. Leavitt, also an ophthalmologist,

was qualified to opine as to the standard of care for orthopedic surgeons. The court

further observed that Dr. Leavitt's statements offered little support for Dr. Robin's

opinions, particularly as to the likelihood that PION would result from prolonged

prone spine surgery and as to whether it was accepted medical practice for orthopedic

surgeons to know of and disclose that risk. 

The district court did not abuse its discretion. The plaintiffs argue that

Dr. Robin, as a trained physician who has himself published numerous articles and

book chapters, was qualified "to locate and rely upon information published in peer

reviewed medical journals." The plaintiffs also maintain that Dr. Robin was equally

qualified to locate and rely upon "information contained in [Mr. Stowell's] medical

records, and upon information recorded there by other physicians." We do not dispute

either of these contentions. But it does not follow that Dr. Robin's ability to locate this

sort of information and then use it to form opinions about this case made him

competent to offer those opinions as an expert witness. That information did nothing

to provide him with the sort of "practical experience" that the Minnesota Supreme

Court also requires, see Reinhardt, 337 N.W.2d at 93, and gives "controlling

importance," Cornfeldt, 262 N.W.2d at 692-93, when determining whether an expert

witness may testify as to a standard of care. We think it plain, moreover, that even if

outside information could serve as the sole basis for an expert witness's opinions, that

information would have to support those opinions. As the district court noted in its

decision, it is questionable whether the journal articles and clinical notes do that here.
-8-

In a final attempt to salvage Dr. Robin's proposed testimony, the plaintiffs

contend that the district court erred by misconstruing the risk that, according to their

complaint, needed to be disclosed in this case. The plaintiffs then argue that this error

led the court to narrow the applicable standard of care improperly so that Dr. Robin,

who they contend would have been qualified to offer expert opinion under a correct

characterization of that risk and standard of care, was no longer able to do so. In its

opinion, the district court defined the risk at issue here to be the "risk of PION"

resulting from prolonged prone spine surgery; the court therefore stated that the

applicable standard of care was "whether orthopedic surgeons knew of [PION] and its

likelihood" and "what warnings a skilled orthopedic surgeon would have given"

before performing a prolonged prone spine surgery on a patient like Mr. Stowell. The

plaintiffs contend that this was error because PION is never mentioned in their

complaint. They maintain that the risk that had to be disclosed in this case was the

risk of permanent blindness, no matter the cause, if known by a physician to be

associated with any proposed medical treatment; and the applicable standard of care,

then, is whether "any physician, knowing that there is a risk of blindness associated

with any proposed treatment, has a duty to disclose that risk." The plaintiffs thus

maintain that Dr. Robin, as a physician who performs ophthalmologic surgeries that

carry a known risk of permanent blindness, is qualified to provide expert opinion as

to the standard of care in this case.

After reviewing Minnesota case law, however, we can find no other negligent

nondisclosure case (or medical malpractice case, for that matter) in which the risk to

be disclosed or the standard of care were defined using such generalities. The

plaintiffs fail to identify such an instance in their briefs as well. Rather, they merely

argue that when a court decides a medical malpractice case under Minnesota law, it

must analyze it "in terms of the plaintiff's theory of the case," and they cite in support

Tousignant v. St. Louis County, 615 N.W.2d 53, 59-60 (Minn. 2000) and Broehm, 690

N.W.2d at 735-36 (Anderson, J., concurring specially). But we believe that there is

a fundamental difference between what these cases stand for, that is, accepting a
-9-

plaintiff's theory as to what type of medical malpractice or negligence might have

occurred in a case, and what the plaintiffs seek to do here, that is, to generalize the

applicable standard of care to an extent that it enables an otherwise unqualified

witness to offer expert opinion. None of the cases that the plaintiffs bring to our

attention supports that position, and so we reject their argument and conclude that the

district court did not err by defining the risk to be disclosed and the standard of care

in this case in the way that it did.

II.

The plaintiffs argue next that, even if the district court did not err when it found

that Dr. Robin was not qualified to provide expert testimony, it nevertheless did so

when it granted summary judgment under §145.682, because, in the particular

circumstances presented here, they did not need expert testimony "to establish a prima

facie case," Minn Stat. § 145.682 subd. 2. 

A cause of action for negligent nondisclosure "focuses on a doctor's duty to

inform patients of the risks attendant upon certain medical procedures." K.A.C. v.

Benson, 527 N.W.2d 553, 561 (Minn. 1995). To make out a prima facie case, then,

a plaintiff must demonstrate, among other things, that the physician had a duty to

disclose a particular risk of treatment. Id.; see also Reinhardt, 337 N.W.2d at 93. In

establishing that a physician had a duty to disclose a risk, a plaintiff must offer

evidence that the doctor "knows or should know" that the risk exists. Kinikin v.

Heupel, 305 N.W.2d 589, 594 (Minn. 1981); see also Cornfeldt, 262 N.W.2d at 699.

Even then, a duty to disclose arises for only certain types of risks, which the

Minnesota Supreme Court has described as falling into three distinct categories: those

that are of a type "which a skilled practitioner of good standing in the community

would reveal"; those that present a "significant probability" of "death or serious bodily

harm"; and "to the extent that a doctor is aware that a patient attaches a particular

significance to risks not generally considered serious enough to require discussion,"

those risks as well. Benson, 527 N.W.2d at 561; see also Kinikin, 305 N.W.2d at 595.
-10-

The plaintiffs contend that even without expert testimony there was sufficient

evidence in the record to establish the existence of that duty. To establish that

Dr. Huddleston knew or should have known of the risk to be disclosed in this case, the

plaintiffs rely upon a statement that Dr. Huddleston himself made during a deposition:

He acknowledged that before he performed Mr. Stowell's procedure he had "heard"

that an "association" between prolonged prone spine surgery and blindness had been

reported in some "literature." They point, as well, to Dr. Leavitt's statement in her

clinical notes that "anesthesiologists, orthopedists, surgeons and ophthalmologists

around the country [were] very aware" of PION at the time of Mr. Stowell's

diagnosis"; they argue that Dr. Leavitt's statement is an admission by Mayo

establishing the same, see Fed. R. Evid. 801(d)(2)(D).

We doubt that either of those statements establishes that Dr. Huddleston knew

or should have known of the risk in this case. But even if they did, the plaintiffs

cannot make out a prima facie case without establishing that the risk was one that

Dr. Huddleston had a duty to disclose, see Benson, 527 N.W.2d at 561, and they need

expert testimony to do that. 

In reaching a similar conclusion, the district court held that the plaintiffs had

failed to introduce any expert testimony to prove that "a skilled practitioner of good

standing would have revealed the risk" of PION-induced permanent blindness to a

patient like Mr. Stowell under similar circumstances, which, as we have said, is one

way in which a plaintiff may show a duty to disclose. See id. It also held that the

plaintiffs had failed to offer the expert testimony necessary to establish "the gravity

of [that] risk and the likelihood of its occurrence," in order to prove that Mr. Stowell's

spinal surgery involved "a risk of death or serious bodily harm which was a significant

probability"; such circumstances, too, require disclosure. See id.; see also Cornfeldt,

262 N.W.2d at 702. (Though we think that permanent blindness may well present an

exception to the statement in Cornfeldt that expert testimony is necessary to establish

a risk's "gravity," id., we agree with the district court that a layperson cannot
-11-

determine the likelihood of the risk in this case without the assistance of a qualified

expert.)

The plaintiffs argue that the court erred because it failed to consider what they

term the "third prong" of the duty-to-disclose standard. The part of the Minnesota

duty-to-disclose standard to which the plaintiffs refer here involves the category of

risks that, although "not generally considered serious enough to require discussion,"

must be disclosed because a patient "attaches a particular significance" to them.

Benson, 527 N.W.2d at 561; see Kinikin, 305 N.W.2d at 595. The Minnesota courts,

when determining whether a risk falls within that category, have looked, at least

sometimes, to objective considerations, by asking whether "a reasonable person in

what the physician knows or should have known to be the plaintiff's position would

consider significant when contemplating surgery." Id. But we don't discern anything

in the record indicating that Mr. Stowell's circumstances were such that a reasonable

person in his position would attach a "particular significance" to the risk of blindness

that prolonged prone spine surgery presented.

Furthermore, to the extent that the Minnesota Supreme Court has suggested in

its cases that a duty to disclose may also arise under this category based on the

idiosyncratic, subjective concerns of a patient, there is nothing in the record to indicate

that Mr. Stowell harbored any " 'peculiar or unfounded' " concerns about losing his

vision, see Benson, 527 N.W.2d at 561 (quoting Kinikin, 305 N.W.2d at 595), or that

Dr. Huddleston knew or should have known that he did. Mr. Stowell never

questioned Dr. Huddleston about whether his surgery might cause blindness, nor did

he express any anxiety or fear that such a result might occur. Even when

Dr. Huddleston warned Mr. Stowell that a risk of stroke accompanied his procedure

and that it could lead to a variety of problems with brain functioning, including

changes in vision, Mr. Stowell never expressed any anxiety about that risk or

indicated that he attached any "particular significance" to it. 
-12-

In sum, there was nothing that Dr. Huddleston knew or should have known

about Mr. Stowell to indicate that either a reasonable person in Mr. Stowell's position

or Mr. Stowell himself would have a greater concern about the risk that he faced than

an ordinary person would. We therefore conclude that the district court did not err

when it failed to conclude that Dr. Huddleston had a duty to disclose the risk of

PION-induced permanent blindness on that basis.

III.

Because the district court did not err in determining that the plaintiffs failed to

satisfy Minn. Stat. § 145.682, we affirm its order granting summary judgment to the

defendants.

______________________________