Perry v. Beltrami County et al
OPINION AND ORDER: Defendants Sanford, Sanford Health, Sanford Medical Center Fargo, and Dr. Dustin Leigh's Motion for Partial Judgment on the Pleadings 35 is GRANTED IN PART and DENIED IN PART. See Order for specifics. (Written Opinion). Signed by Judge Eric C. Tostrud on 2/16/2021. (RMM)
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Del Shea Perry, Trustee for the Heirs and
Next of Kin of Hardel Harrison Sherrell and
Personal Representative for the Estate of
Hardel Harrison Sherrell,
File No. 19-cv-2580 (ECT/LIB)
Beltrami County; MEnD Correctional Care,
PLLC; Sanford Health; Sanford; Sanford
Medical Center Fargo; Calandra Allen (Jail
Administrator), Andrew Richards (Assistant
Jail Administrator), Edward Busta (Program
Director), Corrections Sergeant Tyler
Carraway, Corrections Sergeant Anthony
Derby, Corrections Sergeant Mario
Scandinato, Corrections Officer Melissa
Bohlmann, Corrections Officer Jared Davis,
Corrections Officer Dana Demaris,
Corrections Officer Brandon Feldt,
Corrections Officer James Foss, Corrections
Officer Daniel Fredrickson, Corrections
Officer Chase Gallinger, Corrections Officer
Holly Hopple, Corrections Officer Nicholas
Lorsbach, Corrections Officer Erin Meyer,
Corrections Officer Mitchell Sella,
Corrections Officer Christopher Settle,
Corrections Officer Marlon Smith,
Corrections Officer Jacob Swiggum, and
Corrections Officer Joseph Williams,
Beltrami County employees, all in their
individual and official capacities and as
agents/employees of Beltrami County; Todd
Leonard, MD, Crystal Pedersen, RN,
Michelle Skroch, RN, and Madison
Brewster, Health Technician, MEnD
Correctional Care employees, all in their
individual and official capacities and as
OPINION AND ORDER
CASE 0:19-cv-02580-ECT-LIB Doc. 45 Filed 02/16/21 Page 2 of 19
agents/employees of MEnD Correctional
Care, PLLC; and Dustin G. Leigh, MD,
individually and as employee/agent of
Sanford Health and/or Sanford and/or
Sanford Medical Center Fargo,
Zorislav R. Leyderman, The Law Office of Zorislav R. Leyderman, Minneapolis, MN, for
Peter W. Zuger and Kasey D. McNary, Serkland Law Firm, Fargo, ND, for Defendants
Sanford Health, Sanford, Sanford Medical Center Fargo, and Dustin Leigh, MD.
Stephanie A. Angolkar, Aaron Mark Bostrom, and Jason M. Hiveley, Iverson Reuvers,
Bloomington, MN, for Defendants Beltrami County, Calandra Allen, Andrew Richards,
Edward Busta, Corrections Sergeant Tyler Carraway, Corrections Sergeant Anthony
Derby, Corrections Sergeant Mario Scandinato, Corrections Officer Melissa Bohlmann,
Corrections Officer Jared Davis, Corrections Officer Dana Demaris, Corrections Officer
Brandon Feldt, Corrections Officer James Foss, Corrections Officer Daniel Fredrickson,
Corrections Officer Chase Gallinger, Corrections Officer Holly Hopple, Corrections
Officer Nicholas Lorsbach, Corrections Officer Erin Meyer, Corrections Officer Mitchell
Sella, Corrections Officer Christopher Settle, Corrections Officer Marlon Smith,
Corrections Officer Jacob Swiggum, and Corrections Officer Joseph Williams.
Carolin J. Nearing, Anthony J. Novak, and Bradley R. Prowant, Larson King, LLP, St.
Paul, MN, for Defendants MEnD Correctional Care, PLLC, Todd Leonard, MD, Crystal
Pedersen, RN, Michelle Skroch, RN, and Madison Brewster, Health Technician.
Hardel Harrison Sherrell died of an untreated illness while he was an inmate in the
Beltrami County Jail. Sherrell’s mother, Del Shea Perry, brought this action in her capacity
as trustee for Sherrell’s next of kin and as personal representative of his estate. Relevant
here, Perry asserts two claims against Defendants Sanford Health, Sanford, Sanford
Medical Center Fargo, and an individual doctor that examined Sherrell (referred to
collectively as “Sanford”). The first is a wrongful-death claim under Minnesota law, which
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Perry asserts on behalf of Sherrell’s next of kin. The second is a survival claim under North
Dakota law, which Perry asserts on behalf of Sherrell’s estate. Sanford has moved for
partial judgment on the pleadings under Federal Rule of Civil Procedure 12(c), arguing that
North Dakota law should apply to Perry’s claims against Sanford and that the Minnesota
wrongful-death claim should accordingly be dismissed.
Sanford’s motion will be granted in part and denied in part. The motion will be
granted to the extent it seeks to apply North Dakota’s $500,000 cap on non-economic
damages to Perry’s wrongful-death claim.
Minnesota law has no such cap, and
Minnesota’s choice-of-law rules favor applying North Dakota law to resolve the conflict.
The motion will be denied to the extent it seeks dismissal of the wrongful-death claim. The
Parties’ agree that Minnesota law and North Dakota law conflict only with respect to the
damages available on that claim, which means that Minnesota law should govern the claim
in all other respects. The wrongful-death claim will therefore be allowed to proceed under
Minnesota law, subject to North Dakota’s damages cap.
In late August 2018, Sherrell was transferred from the Dakota County Jail to the
Beltrami County Jail. Am. Compl. ¶ 16 [ECF No. 30]. A couple of days after the transfer,
he began complaining of a headache and pain in his chest, low back, thigh, and feet, and
he sought medical treatment at the jail. Id. ¶¶ 17–19. An exam revealed that his blood
In accordance with the standards governing a motion under Rule 12(c), the facts are
drawn entirely from Perry’s Amended Complaint. See Gorog v. Best Buy Co., 760 F.3d
787, 792 (8th Cir. 2014); Ashley Cnty. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).
CASE 0:19-cv-02580-ECT-LIB Doc. 45 Filed 02/16/21 Page 4 of 19
pressure and pulse were both elevated, and “[a]n electrocardiogram showed heart muscle
abnormalities with probable damage to his lower heart muscle, a possible sign of a heart
attack[.]” Id. ¶ 19. Jail doctors prescribed pain medication, a sedative, a muscle relaxer,
and a medication to lower blood pressure, but did not initially recommend additional
treatment. Id. ¶¶ 19–21.
Sherrell’s condition worsened considerably over the next 72 hours. He began
experiencing “a lack of sensation and difficulty moving his legs” and a “generalized loss
of control of his arms.” Id. ¶¶ 22–23. When he could no longer support his own weight,
he was placed in a wheelchair and moved to an “administrative segregation cell” pending
a further evaluation. Id. ¶ 24. While there, he fell out of his wheelchair and bunk bed, was
unable to hold himself up in a sitting position, and reported having difficulty swallowing
food. Id. ¶¶ 25–32. His blood pressure continued to rise despite the antihypertensive
medication he was taking, and he eventually reported that he “could not feel anything from
the waist down.” Id. ¶ 33. This development prompted a jail doctor to order that Sherrell
be taken to an emergency room, but the jail administrator initially overrode that order.
Id. ¶¶ 33–35. When Sherrell’s blood pressure continued to be “uncontrolled” and his other
symptoms continued to worsen, a nurse practitioner at the jail again ordered that he be
taken to the emergency room. Id. ¶ 36.
Sherrell was initially taken to the emergency room at Sanford Bemidji Medical
Center in Bemidji, Minnesota, on August 31, 2018. Id. ¶ 37. To rule out certain disorders,
the examining physician ordered magnetic resonance imaging (MRI) studies, but because
“the hospital’s MRI machine was unavailable,” the doctor ordered Sherrell to be taken by
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ambulance to Sanford Medical Center Fargo in Fargo, North Dakota. Id. In Fargo, Dr.
Dustin Leigh examined Sherrell and noted the same weakness and loss of sensation that
Sherrell had reported at the jail. Id. ¶ 38. When the MRI was inconclusive, however, Dr.
Leigh declined to order additional testing. Id. Instead, relying on reports from a corrections
officer, Dr. Leigh concluded that Sherrell was malingering and discharged him with
instructions to return if he exhibited certain symptoms. Id. ¶ 38–39.
When Sherrell returned to the Beltrami County jail early on September 1, officials
once again placed him in a medical segregation cell overnight. Id. ¶ 40–41. Over the next
36 hours, his condition “drastically deteriorated.” Id. ¶ 43. He again fell out of his bed,
experienced multiple seizures, “was unable to sit up or support his own weight in any way,”
and began displaying several of the symptoms listed in his discharge instructions.
Id. ¶¶ 41–45.
Nonetheless, prison doctors “took no action to have [him] properly
diagnosed or transported to the emergency department,” and he was left unattended for
long periods of time. Id. ¶¶ 46–47. By the late afternoon of September 2, Sherrell became
unresponsive and was declared dead after attempts to revive him were unsuccessful.
Id. ¶¶ 53–54. An autopsy revealed that Sherrell died from “untreated Guillian-Barre
Syndrome”—a “form of progressive paralysis caused by an immune system attack on the
nervous system after a viral infection[.]” Id. ¶ 55.
Del Shea Perry, Sherrell’s mother, brought this action in her capacity as trustee for
Sherrell’s next of kin and as personal representative of his estate.2 In Counts 1 through 4
In two separate orders, a Minnesota state court formally appointed Perry to these
roles. Id. ¶ 2.
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of the operative Amended Complaint, Perry claims that Beltrami County and MEnD
Correctional Care (a private contractor providing medical services in the jail), as well as a
number of their individual employees, are liable under Minn. Stat. § 573.02 for wrongful
death and under 42 U.S.C. § 1983 for violating Sherrell’s constitutional rights. Am.
Compl. ¶¶ 60–81. In Counts 5 and 6, Perry asserts a wrongful-death claim under Minn.
Stat. § 573.02 and a survival claim under North Dakota Century Code § 28-01-26, both
against Sanford. Id. ¶¶ 82–91. In the present motion, Sanford argues that Count 5 must be
dismissed because North Dakota law applies to the wrongful-death claim.
A motion for judgment on the pleadings under Rule 12(c) is assessed under the same
standard as a motion to dismiss under Rule 12(b)(6). Ashley Cnty. v. Pfizer, Inc., 552 F.3d
659, 665 (8th Cir. 2009). In reviewing a motion to dismiss for failure to state a claim under
Rule 12(b)(6), a court must accept as true all of the factual allegations in the complaint and
draw all reasonable inferences in the plaintiff’s favor. Gorog v. Best Buy Co., 760 F.3d
787, 792 (8th Cir. 2014) (citation omitted). Although the factual allegations need not be
detailed, they must be sufficient to “raise a right to relief above the speculative level . . . .”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The complaint
must “state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
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Resolving Sanford’s motion requires a choice-of-law analysis. “In a diversity case,
a federal court applies the choice of law rules of the forum state.” Nw. Airlines, Inc. v.
Astraea Aviation Servs., Inc., 111 F.3d 1386, 1393 (8th Cir. 1997). Courts in Minnesota
follow a three-step process to answer choice-of-law questions. “[T]he first consideration
is whether the choice of one state’s law over another’s creates an actual conflict.” Jepson
v. Gen. Cas. Co. of Wisc., 513 N.W.2d 467, 469 (Minn. 1994). If a conflict exists, the next
question is “whether the law of both states can be constitutionally applied”—i.e., whether
each state has “a significant contact or significant aggregation of contacts, creating state
interests, such that choice of its law is neither arbitrary nor fundamentally unfair.” Id. at
469–70 (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 312–13 (1981)). If the answer
to both of these threshold questions is “yes,” then the court applies five “choice influencing
factors” to determine which state’s law should apply: “(1) predictability of result; (2)
maintenance of interstate and international order; (3) simplification of the judicial task;
(4) advancement of the forum's governmental interest; and (5) application of the better rule
of law.” Id. at 470 (citing Milkovich v. Saari, 203 N.W.2d 408, 412 (Minn. 1973)).
The Parties’ arguments surrounding this motion raise two overarching and related
issues. The first is the proper scope of the choice-of-law question in this case: if Sanford
is correct that North Dakota law applies, does that state’s law govern Perry’s entire dispute
with Sanford or only some subset of the issues involved? This question, which is
intertwined with the definition of the relevant conflict between Minnesota and North
Dakota law, will be addressed first. The second is the choice-of-law issue itself: do
Minnesota’s choice-of-law rules favor applying Minnesota or North Dakota law?
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The Parties agree that Minnesota and North Dakota law conflict in a relevant and
substantive way. Specifically, although both states authorize a decedent’s next of kin to
bring a wrongful-death action, see Minn. Stat. § 573.02; N.D. Cent. Code § 32-21-01,
North Dakota limits the amount of “non-economic damages” to $500,000 when such cases
arise out of “health care malpractice,” N.D. Cent. Code § 32-42-02; see id. § 32-42-01
(providing relevant definitions).3 The Parties also agree that the underlying principles of
negligence governing Sanford’s liability on the wrongful-death claim are the same under
Minnesota and North Dakota law. See Defs.’ Mem. at 9; Pl.’s Mem. at 12. What the
Parties dispute is the impact that the conflict concerning available damages should have on
their case. Sanford seems to argue that the law of only one state—North Dakota—should
govern its entire dispute with Perry and that Perry’s Minnesota wrongful-death claim must
therefore be dismissed. See Defs.’ Mem. at 5. Perry frames the conflict more narrowly.
She argues that the conflict between Minnesota and North Dakota law only concerns the
narrow issue of “medical malpractice damages.” Pl.’s Mem. at 13. Under her approach,
Sanford identifies a second conflict between Minnesota and North Dakota law:
Minnesota law does not allow survival actions like the one Perry asserts in Count 6, while
North Dakota law does. See Defs.’ Mem. at 5 [ECF No. 37]; see also Strohn v. Xcel Energy
Inc., 353 F. Supp. 3d 828, 834 (D. Minn. 2018). As discussed below, Minnesota courts
address choice-of-law questions on an issue-by-issue basis, so the same state’s law need
not necessarily govern all aspects of both claims. See Pl.’s Mem. at 21–25 [ECF No. 39]
(conducting a separate choice-of-law analysis for the survival claim); cf. Jaco v. Bloechle,
739 F.2d 239, 242 (6th Cir. 1984) (explaining that wrongful-death claims and survival
claims are “distinct causes of action”). Because Sanford does not argue that Minnesota
law applies to extinguish the survival claim or that the claim should be dismissed for any
other reason, it is not necessary to say any more about it.
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even if North Dakota law applies to limit the amount of damages, Minnesota law should
still govern the rest of her wrongful-death claim, making dismissal of Count 5
inappropriate. See id. at 20.
Although the Parties do not address the issue directly in their briefing, their
arguments evoke the concept of “dépeçage”—that is, the process of applying the law of
different states “to resolve different issues in the same case.” Ewing v. St. Louis-Clayton
Orthopedic Grp., Inc., 790 F.2d 682, 686 (8th Cir. 1986) (applying Missouri’s choice-oflaw rules); see generally Willis L. M. Reese, Dépeçage: A Common Phenomenon in Choice
of Law, 73 Colum. L. Rev. 58 (1973). Courts adopting this piecemeal approach to choice
of law have reasoned that different choice-of-law rules might govern different legal issues,
see Putnam Res. v. Pateman, 958 F.2d 448, 465 (1st Cir. 1992) (noting that Rhode Island
applied different rules to contract- and tort-related issues), or that a particular interest
driving a choice-of-law decision might carry more weight for some legal issues than for
others, see Simon v. Philip Morris Inc., 124 F. Supp. 2d 46, 76 (E.D.N.Y. 2000) (noting
that applying dépeçage can “result in the application to each issue of the rule of the state
with the greatest concern in the determination of that issue” (quoting Reese, supra, at 60)).
To these courts, dépeçage is “desirable in many instances,” Ewing, 790 F.2d at 686,
because it “permits a more nuanced handling of certain multistate situations and thus
forwards the policy of aptness,” In re Air Crash at Belle Harbor, N.Y. on Nov. 12, 2001,
No. MDL 1448(RWS), 2006 WL 1288298, at *23 (S.D.N.Y. May 9, 2006). By arguing
that her Minnesota wrongful-death claim should survive even if North Dakota’s cap on
non-economic damages applies, Perry seems to be advocating dépeçage here.
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While Minnesota courts have not used the term “dépeçage,” they have endorsed the
practice in substance by saying that “a choice of law determination is made on an issueby-issue, and not case-by-case, basis.”4 Zaretsky v. Molecular Biosystems, Inc., 464
N.W.2d 546, 548 (Minn. Ct. App. 1990); see also Brenner v. Nat’l Outdoor Leadership
Sch., 20 F. Supp. 3d 709, 714 (D. Minn. 2014); Lommen v. City of E. Grand Forks, 522
N.W.2d 148, 151 (Minn. Ct. App. 1994). In Zaretsky, for example, the Minnesota Court
of Appeals held that a trial court should have calculated the amount of prejudgment interest
to which a plaintiff was entitled under Minnesota law, even though New York law had
governed the “substantive right of recovery.” 464 N.W.2d at 548–49. Although Minnesota
courts have not explained the circumstances under which dépeçage should apply, one
widely accepted approach is to apply one state’s law to determine tort liability and another
state’s law to determine the extent of recovery—at least when doing so is otherwise
consistent with the applicable choice-of-law rules. See, e.g., Calhoun v. Yamaha Motor
Corp., U.S.A., 216 F.3d 338, 348–51 (3d Cir. 2000); Ellerton v. Ellerton, 745 F. Supp. 2d
458, 465–66 (D. Vt. 2010); Barrett v. Ambient Pressure Diving, Ltd., Civ. No.
06-cv-240-SM, 2008 WL 4934021, at *2 (D.N.H. Nov. 17, 2008); Gordon v. E. Air Lines,
Inc., 391 F. Supp. 31, 32–33 (S.D.N.Y. 1975); see also 1 Stuart M. Speiser et al., American
Law of Torts, § 2:19 (Mar. 2020 Update).
In view of these authorities and Minnesota’s “issue-by-issue” approach to choice of
law, it makes sense to adopt the more narrow framing of the choice-of-law question raised
At the hearing on Sanford’s motion, both Parties agreed that Minnesota takes an
issue-by-issue approach to choice of law.
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by Sanford’s motion. In other words, the appropriate question to ask is whether Minnesota
or North Dakota law should govern the extent of Perry’s recovery on the wrongful-death
claim, not her entire dispute with Sanford. What this means for practical purposes is that,
even if North Dakota law applies to the narrow damages issue, Perry could still bring a
wrongful-death claim under Minnesota law, and dismissing the wrongful-death claim
entirely would be inappropriate. Three considerations support this approach. First, the
Parties’ agree that the principles governing Sanford’s liability are materially the same
under both states’ laws, and courts generally do not engage in a choice-of-law analysis
absent a substantive conflict. See Nodak Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 604
N.W.2d 91, 93–94 (Minn. 2000). Second, applying North Dakota’s damages cap, if it is
appropriate to do so, would be uncomplicated and unlikely to disrupt the Parties’
expectations. See Ewing, 790 F.2d at 686. Third, this approach just makes practical sense.
If the damages cap applies, it would be more efficient for all Parties to simply proceed with
Perry’s wrongful-death claim rather than dismissing it without prejudice and requiring her
to replead it under North Dakota law.
With all that in mind, turn to the choice-of-law question itself. As already noted,
the Parties agree that there is a substantive conflict between North Dakota and Minnesota
law—specifically, the presence or absence of a cap on non-economic damages. The Parties
also agree that the factual record is sufficiently well-developed to decide the choice-of-law
question, and neither Party disputes that each state’s law could be constitutionally applied.
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The only remaining step is to apply Minnesota’s choice-influencing factors. See Jepson,
513 N.W.2d at 470.
As the Parties acknowledge in their briefing, the first, third, and fifth factors are
largely irrelevant in this case. The first factor, the “predictability of results,” applies
“primarily to consensual transactions, and not to torts.” Strohn v. Xcel Energy Inc., 353 F.
Supp. 3d 828, 833 (D. Minn. 2018) (citing Nesladek v. Ford Motor Co., 876 F. Supp. 1061,
1068 (D. Minn. 1994)). This is because “[t]he objective of the predictability factor is to
fulfill the parties’ justified expectations,” and tort actions, which generally “stem from
unplanned accidents,” do not implicate those expectations. Lommen, 522 N.W.2d at 150.
The third factor, “simplification of the judicial task,” is also rarely significant in tort cases,
at least when, as here, “the law of either state [can] be applied without difficulty.” Jepson,
513 N.W.2d at 472; see also Burks v. Abbott Labs., 639 F. Supp. 2d 1006, 1013 (D. Minn.
2009); Nodak Mut. Ins. Co., 604 N.W.2d at 95 (stating that this factor “has not been given
much weight in” Minnesota Supreme Court precedent).5 The fifth factor, the “better rule
of law,” does not apply at all when a court can resolve a choice-of-law question using the
other four factors, and in any event, it is less significant when the conflict at issue involves
state statutes, as opposed to common law. See Whitney v. Guys, Inc., 700 F.3d 1118, 1124
(8th Cir. 2012) (addressing competing statutes of limitations and noting that “[l]egislatures
As Perry points out, Minnesota courts have said that “the judicial task is obviously
simplified when a Minnesota court applies Minnesota law,” Jacobson v. Universal
Underwriters Ins. Grp., 645 N.W.2d 741, 746 (Minn. Ct. App. 2002) (citation omitted),
but because the conflict in this case is relatively straightforward, it is not clear that applying
Minnesota law would be any simpler. See Nesladek v. Ford Motor Co., 46 F.3d 734, 739
(8th Cir. 1995).
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rather than courts are best positioned to assess the comparative merits of the competing
policy concerns” involved). The Parties therefore focus their arguments on the second and
The second factor, “maintenance of interstate order,” concerns “whether the
application of Minnesota law would manifest disrespect for North Dakota’s sovereignty or
impede the interstate movement of people and goods.” Jepson, 513 N.W.2d at 471. The
primary focus is on the contacts that each competing state has with the dispute. “[W]here
a state ‘has little or no contact with a case and nearly all of the significant contacts are with
a sister state, the factor suggests that a state should not apply its own law to the dispute.’”
Burks, 639 F. Supp. 2d at 1013 (quoting Hughes v. Wal-Mart Stores, Inc., 250 F.3d 618,
620–21 (8th Cir. 2001)); accord Johnson v. Parrish Tire Co., No. 06-cv-2267 (MJD/SRN),
2009 WL 10677525, at *5 (D. Minn. Mar. 30, 2009) (“[M]aintenance of interstate order
weighs in favor of the state that has the most significant contacts with the facts relevant to
the litigation.”). In tort cases, the location of the accident may be an especially relevant
contact, see Strohn, 353 F. Supp. 3d at 833 (applying Minnesota law because the defendant
company provided a product in Minnesota and the product “caused significant personal
injury and property damage in Minnesota”), but the “mere fortuity of an accident’s location
is not necessarily dispositive,” Sportsman v. California Overland, Ltd., No. 17-cv-1064
(DWF/KMM), 2018 WL 1865930, at *4 (D. Minn. Apr. 18, 2018).6
Courts applying the interstate-order factor also consider whether there is evidence
of forum shopping. See Jepson, 513 N.W.2d at 471. There is no significant indication of
forum shopping in this case. Perry is a Minnesota resident—as was Sherrell—and all of
the facts relating to Perry’s claims against Beltrami County and its prison officials took
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Minnesota and North Dakota both have somewhat significant contacts with Perry’s
wrongful-death claim against Sanford. Sherrell was a Minnesota resident, as is Perry.
Sherrell first visited a Sanford facility in Minnesota (though no alleged wrongful conduct
occurred at that facility), and he suffered the injuries resulting from the alleged malpractice
in Minnesota. See Kenna v. So-Fro Fabrics, Inc., 18 F.3d 623, 627 (8th Cir. 1994)
(applying the same choice-of-law factors under North Dakota law and finding similar
contacts relevant). On the other hand, all of the Sanford Defendants are North Dakota
residents, and all of Sanford’s alleged wrongful conduct occurred in North Dakota. Under
the circumstances, this factor does not clearly favor either state’s law. See Blake Marine
Grp. v. CarVal Invs. LLC, 829 F.3d 592, 596 (8th Cir. 2016) (concluding that this factor
was neutral when the alleged tortious conduct occurred and a defendant was based in
Minnesota, but the plaintiff resided in, and the injury occurred in, Alabama).7
The fourth factor asks “which choice of law most advances a significant interest of
the forum.” Nodak Mut. Ins. Co., 604 N.W.2d at 95 (citation omitted). “It ‘requires
place in Minnesota, so Minnesota does not seem like an unnatural forum. Furthermore,
although Perry is seeking to apply the law in a way that maximizes her potential recovery,
that goal requires her to argue for the application of both Minnesota law (to her wrongfuldeath claim) and North Dakota law (to her survival claim). Cf. Murray v. Cirrus Design
Corp., No. 18-cv-2510 (NEB/LIB), 2019 WL 1086345, at *3 (D. Minn. Mar. 7, 2019)
(concluding that there was no evidence of forum shopping where the plaintiff was trying
to apply a non-forum-state’s law).
Perry argues that applying North Dakota law would hamper interstate commerce
because Minnesota residents facing a cap on potential recovery would be less likely to
cross the border to seek medical care. Pl.’s Mem. at 16. Accepting this argument would
require speculation, and it seems just as possible to speculate in the opposite direction. For
example, if Minnesota law applied, the diminished certainty surrounding Sanford’s
potential liability could discourage it from soliciting Minnesota patients.
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analysis not only of Minnesota’s governmental interest, but also of [North Dakota’s] public
policy.’” Murray, 2019 WL 1086345, at *3 (quoting Blake Marine Grp., 829 F.3d at 596);
see also Lommen, 522 N.W.2d at 152 (considering “the relative policy interests of the two
states”). “When one of two states related to a case has a legitimate interest in the
application of its law and policy and the other has none, . . . clearly the law of the interested
state should be applied.” Nodak Mut. Ins. Co., 590 N.W.2d at 674 (citation omitted). But
in a tort case in which multiple states have a legitimate interest and there is no clear winner,
“the state where the accident occurred has the strongest governmental interest.” Burks,
639 F. Supp. 2d at 1013–14 (citation omitted).
Minnesota and North Dakota both have significant interests at play here.
“Minnesota courts have a recognized interest in seeing that all tort victims are fully
compensated.” Jacobson, 645 N.W.2d at 746; see also Jepson, 513 N.W.2d at 472;
Kolberg-Pioneer, Inc. v. Belgrade Steel Tank Co., 823 N.W.2d 669, 675 (Minn. Ct. App.
2012). At times, this interest has even led Minnesota courts to choose another state’s law
over their own. See, e.g., Bigelow v. Halloran, 313 N.W.2d 10, 12–13 (Minn. 1981). North
Dakota, in regulating its health care industry, has an interest in applying its non-economicdamages cap to alleged medical malpractice that occurs within its borders. See Condon v.
St. Alexius Med. Ctr., 926 N.W.2d 136, 142–43 (N.D. 2019) (upholding the
constitutionality of the cap on non-economic medical-malpractice damages and noting that
it was meant to “(1) increase [healthcare] access; (2) [to] control costs; and (3) to maintain
or increase quality of health care in the state”).
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For four reasons, this factor slightly favors applying North Dakota’s damages cap.
First, given the close ties between Sanford and North Dakota, the state’s interest in
enforcing its damages cap is at its peak. All of the Sanford Defendants reside in North
Dakota, and any damages award would primarily affect that state’s health care system.
Second, North Dakota’s interest in this case is the product of a deliberate legislative choice
to limit a specific category of damages. See id. (describing the legislative history leading
to the passage of the damages cap). Minnesota’s interest in fully compensating tort victims,
by contrast, is generalized and aspirational, and it is drawn primarily from judicial
decisions rather than a targeted legislative action. See, e.g., Bigelow, 313 N.W.2d at 12–
13. Indeed, concluding that Minnesota’s legislature has a specific interest in allowing
uncapped medical-malpractice damages would require an inference from its silence on the
issue, and legislative inaction typically says little about legislative intent.
Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1015 (noting in the statutoryinterpretation context that “[c]ongressional inaction lacks persuasive significance in most
circumstances” (internal quotation marks and citation omitted)).
Minnesota has a strong interest in seeing tort victims fully compensated, that interest is not
a bright-line rule that requires courts to simply pick the state whose law promises the
greatest potential recovery. Instead, it may deserve greater weight when a plaintiff faces
the prospect of no recovery at all than when, as here, the amount of potential recovery is
merely diminished. Compare Bigelow, 313 N.W.2d at 11–13 (applying Iowa law where
the injury occurred in Iowa, the victim was an Iowa resident, and Minnesota law would
have “extinguish[ed] plaintiff’s cause of action”), with Strohn, 353 F. Supp. 3d at 833–34
CASE 0:19-cv-02580-ECT-LIB Doc. 45 Filed 02/16/21 Page 17 of 19
(applying Minnesota law even though Nebraska law would have allowed greater recovery
and noting that this conclusion would not leave the plaintiff “without the possibility of
compensation”).8 Finally, the fact that the alleged medical malpractice occurred in North
Dakota slightly favors applying that state’s law, even if the fortuitous nature of the
conduct’s location would not independently require that result. See Burks, 639 F. Supp. 2d
Perry has two main counterarguments. First, relying primarily on Sportsman v.
California Overland, Ltd., No. 17-cv-1064 (DWF/KMM), 2018 WL 1865930 (D. Minn.
Apr. 18, 2018), she argues that Minnesota’s interest in compensating tort victims should
triumph over North Dakota’s damages cap. In Sportsman, an Illinois resident sued a
Minnesota trucking company and one of its drivers (a South Dakota resident) based on a
traffic accident that occurred in Wisconsin. Id. at *1–2. Wisconsin law, unlike Minnesota
law, capped damages “for loss of society and companionship” in a wrongful-death case at
$350,000. Id. at *3 (quoting Wis. Stat. § 895.04(4)). The court concluded that the
governmental-interest factor favored Minnesota law because applying Wisconsin’s
damages cap “would unfairly prevent [the plaintiff’s] family . . . from being fully
compensated consistent with the laws of [the defendant company’s] home state.” Id. at *6.
Here, it is worth noting once more that Perry is also pursuing a survival claim under
North Dakota law—a claim that would not be available to her under Minnesota law. See
Minn. Stat. § 573.01. Although the survival claim is not at issue here, it is relevant in
evaluating the impact on Minnesota’s interest in ensuring that Perry receive full
compensation. Cf. Kenna, 18 F.3d at 627 (noting, albeit before the enactment of North
Dakota’s non-economic-damages cap, that North Dakota may show an even greater interest
than Minnesota in compensating tort victims because it allows survival actions).
CASE 0:19-cv-02580-ECT-LIB Doc. 45 Filed 02/16/21 Page 18 of 19
It specifically noted, however, that “no parties ha[d] meaningful Wisconsin contacts.” Id.
In this case, by contrast, the Sanford Defendants are all North Dakota residents and are
participants in the health care system that North Dakota is seeking to regulate with its
damages cap. Those distinctions make the difference.
Second, Perry argues that Sanford should not be allowed to benefit from North
Dakota’s non-economic-damages cap because it has strategically positioned its medical
center on the border with Minnesota and solicited Minnesota residents as patients. See
Pl.’s Mem. at 15–16. Perry draws a comparison to the law of personal jurisdiction, which
asks whether a defendant has purposely targeted the forum state. See, e.g., Pederson v.
Frost, 951 F.3d 977, 981 (8th Cir. 2020). But personal jurisdiction involves different
questions than choice of law. Personal jurisdiction is concerned primarily with the
individual rights of defendants and the constitutional limitations on a court’s power to bind
them. See J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884 (2011). In that context,
state interests are only “secondary.” Johnson v. Arden, 614 F.3d 785, 794 (8th Cir. 2010).
When a court is resolving a conflict of laws, however, state interests take on greater
importance. See, e.g., Nodak Mut. Ins. Co., 590 N.W.2d at 673–74. Perry cites no authority
for the proposition that a private actor’s conduct can diminish a state’s sovereign interest
in which law applies to a dispute. In this case, North Dakota’s interests—not the Parties’
contacts with either state—are decisive.
In sum, Minnesota’s choice-of-law factors slightly favor applying North Dakota’s
cap on non-economic damages to Perry’s wrongful-death claim. Because there are no other
CASE 0:19-cv-02580-ECT-LIB Doc. 45 Filed 02/16/21 Page 19 of 19
relevant conflicts between Minnesota and North Dakota law, however, Perry’s wrongfuldeath claim will not be dismissed. Instead, it will be allowed to proceed under Minnesota
law, subject to the $500,000 damages cap.
Based on the foregoing, and on all the files, records, and proceedings herein, IT IS
ORDERED THAT Defendants Sanford, Sanford Health, Sanford Medical Center Fargo,
and Dr. Dustin Leigh’s Motion for Partial Judgment on the Pleadings [ECF No. 35] is
GRANTED IN PART and DENIED IN PART as follows:
1. The motion is GRANTED to the extent it seeks to apply the cap on noneconomic damages in N.D. Cent. Code § 32-42-02 to Plaintiff’s wrongful-death
claim under Minn. Stat. § 573.02.
2. The motion is DENIED in all other respects, including to the extent it seeks
dismissal of Count 5 of the Amended Complaint.
Dated: February 16, 2021
s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court
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