Passmore v. McCarver, 762 Ariz. Adv. Rep. 10 (App. Div. I, April 6, 2017) (J. Swann)

FAILURE TO TIMELY FILE EXPERT AFFIDAVIT IN MED MAL CASE W/IN STIPULATED EXTENSION CONSTITUTES FAILURE TO PROSECUTE JUSTIFYING DISMISSAL AND RENDERING RELIEF UNDER SAVINGS STATUTE DISCRETIONARY

 Plaintiff brought a medical malpractice action in March 2013 but failed to timely file an expert affidavit supporting a breach of the standard of care as required by A.R.S. §12-2603. Defendants stipulated to an extension of time to comply until March 2014 with the acquiescence of the trial court. When plaintiff failed to comply with this deadline the defendants moved for a dismissal . Oral argument was held in September of 2014 and plaintiff was still in noncompliance. The court granted the motion without prejudice. Plaintiff then refiled the action and the defendants moved to dismiss based upon the running of the statute of limitations. Plaintiff sought relief under Arizona's Savings Statute A.R.S. §12-504 which was denied by the trial court. The Arizona Court of Appeals affirmed.

A.R.S. §12-504 (A) provides that if an action is timely filed within the statute of limitations,  later dismissed then refiled within six months of dismissal the court must allow the refiling without regard to the running of the statute of limitations unless the dismissal was “ by abatement, voluntary dismissal, dismissal for lack of prosecution or a final judgment on the merits.”  Failure to file an expert affidavit constitutes a failure to prosecute rendering the mandatory savings requirement of section A inapplicable.

A.R.S. §12-504 (B) gives the trial court discretion to extend the time for filing up to six months after a dismissal for abatement, a voluntary dismissal, a dismissal for lack of prosecution or a final judgment on the merits. In exercising this discretion, the court must consider "whether the plaintiff acted reasonably and in good faith, whether he prosecuted his case diligently and vigorously, whether a procedural impediment exists which affects his ability to file a second action, and whether either party will be substantially prejudiced."  Here the trial court's denial of relief under section B was not an abuse of discretion.  Plaintiff's claim of difficulty identifying an expert with the right specialty, a consulting expert's change of address and the plaintiff's attorney's office flooding did not require application of the Savings Statute in light of the very long extension of time within which plaintiff had to comply.