Minn.Stat. ยง 65B.51, subd. 3(b). In Marose v. Hennameyer, 347 N.W.2d 509 (Minn.Ct.App. 1984), the defendant had similarly moved for summary judgment on the ground that the plaintiff failed to meet the tort thresholds necessary to maintain a negligence suit under the No-Fault Act as set out in Minn.Stat. ยง 65B.51, subd. 3(b) (1982). In opposition to the motion for summary judgment, Marose submitted her medical records and her own affidavit stating that she would have future medical expenses and that she had been told by a doctor that her injury was permanent.
Feb. 12, 1988). Hewitt incorrectly relies on Marose v. Hennameyer, 347 N.W.2d 509 (Minn.App. 1984). There we held that the defendants were entitled to summary judgment on the plaintiff's claim for future medical expenses because the plaintiff relied on her own affidavit that she would have future medical costs and that her injuries could be permanent, while the defendants introduced evidence that the plaintiff would not exhaust her basic economic loss benefits.
A party opposing a motion for summary judgment must come forward with affirmative evidence sufficient to create a genuine issue of material fact and may not rely upon mere averments in the pleadings or unsupported allegations. Marose v. Hennameyer, 347 N.W.2d 509, 511 (Minn.App. 1984). The party cannot depend upon the possibility of developing evidence at trial.
Consequently, summary judgment is appropriate. See Marose v. Hennameyer, 347 N.W.2d 509 (Minn.App. 1984). The summary judgment and order denying Ellingson's post-summary-judgment motions are affirmed.
If medical-expert testimony is required to prove the permanency of appellants' personal injuries, that requirement must be satisfied if challenged at summary judgment, and disclosure may be required as provided in a stipulation or discovery order. See, e.g., Marose v. Hennameyer, 347 N.W.2d 509, 511 (Minn.App. 1984) (affirming summary judgment against plaintiff based on a claim for future medical expenses because defendant submitted contrary evidence, and plaintiff relied on her own affidavit even though she was "not qualified to give her opinion on need for medical care"); see generally Minn. R. Civ. P. 26.01(a) (allowing parties to control the timing of expert and other disclosures by stipulation), (b)(4)(A) (providing that expert disclosure is due 90 days before trial in the absence of a stipulation). Here, the parties' discovery plan did not require the disclosure of expert witnesses until September 1, 2021, months after appellants asked the district court to vacate the dismissal of their complaint.
The court's ruling that appellant could not relate his symptoms to a specific illness or diagnosis was not an abuse of discretion. See Marose v. Hennameyer, 347 N.W.2d 509, 511 (Minn.App. 1984) (concluding that lay person was not qualified to give opinion on her need for medical care). Appellant argues that the district court erred in prohibiting him from testifying that a doctor had written him a prescription for marijuana.
This court has recognized that future loss of earning capacity and future medical expenses are economic losses distinguishable from non-economic losses such as pain and suffering and disability. Johnson v. State Farm Mut. Auto. Ins. Co., 574 N.W.2d 468, 472 (Minn.App. 1998) (stating that jury award for past medical expenses, past wage loss, and future medical expenses included award "only for economic damages" (emphasis in original)); see Ward v. Ward, 453 N.W.2d 729, 732 (Minn.App. 1990) (stating that compensation for future medical expenses and loss of future earning capacity, through settlement of a personal injury suit, are economic damages, as opposed to non-economic damages for pain and suffering), review denied (Minn. June 6, 1990); see Marose v. Hennameyer, 347 N.W.2d 509, 511 (Minn.App. 1984) (recognizing the appellant's claim for future medical expenses as a claim for future economic loss). In light of the statutory definitions and precedent, we find it difficult to comprehend how past medical expense and income loss, long recognized as economic losses, could differ so much in character from future medical expense and income loss or earning capacity so as to render those future damages non-economic losses.
See Johnson, 574 N.W.2d at 472 (holding that jury award for past medical expenses, past wage loss, and future medical expenses included award "only for economic damages") (emphasis in original); Ward v. Ward, 453 N.W.2d 729, 732 (Minn.App. 1990) (stating that compensation for future medical expenses and loss of future earning capacity, through settlement of personal injury suit, are economic damages, as opposed to noneconomic damages for pain and suffering), review denied (Minn. June 6, 1990); see also Marose v. Hennameyer, 347 N.W.2d 509, 511 (1984) (noting that the plaintiff "claimed future economic loss in the form of future medical expenses"). Theis points out that this court in Marose affirmed summary judgment for the defendant on the issue of future medical expenses, discussing the issue of whether the plaintiff had sustained permanent injury.
1 (2000), the no-fault offsets reduced respondent's verdict to the $1,000 award for her "past pain, disability, embarrassment and emotional distress." Before an injured person covered under the No-Fault Act can recover noneconomic loss in a tort action, the tort thresholds of the Act must be met. The plaintiff must carry the burden of proving $4,000 of medical expenses or an injury producing a disability of sixty days or more, a permanent injury or disfigurement, or death before he can sue. Minn. Stat. ยง 65B.51, subd. 3 (1982); Marose v. Hennameyer, 347 N.W.2d 509 (Minn.App. 1984). If the threshold requirements are not met, no recovery may be had.
Accordingly, under the facts of this case, the trial court correctly granted Farris's motion for summary judgment and was not obliged to give him an opportunity at trial.Cf. Williams v. McGowan, 135 Mich. App. 457, 354 N.W.2d 382, 383, 385 (1984) (affirming grant of summary judgment for defendant where plaintiff's subjective testimony failed, as a matter of law, to meet threshold burden); Kissner v. Norton, 412 N.W.2d 354, 357 (Minn.Ct.App. 1987) (holding doctor's letter "fail[ed] to raise a genuine issue of fact as to the permanency of the injury" and "failed to raise any genuine issue to overcome the statutory tort threshold"); Marose v. Hennameyer, 347 N.W.2d 509, 511 (Minn.Ct.App. 1984) (holding plaintiff's subjective testimony insufficient to counter objective medical evidence). McNair's appellate brief all but concedes that he was unprepared for trial on December 8, 1995: "Had the date for trial remained set, it is likely that McNair and his treating physicians would have made extraordinary efforts and would have presented expert testimony at trial concerning the permanency and extent of McNair's injuries."