Boswell v. Fintelmann, 760 Ariz. Adv. Rep 19 (App. Div. I, March 9, 2019) (J. Thompson)

FAILURE TO FILE PRELIMINARY EXPERT AFFIDAVIT ESTABLISHING MEDICAL NEGLIGENCE SUIT HAS MERIT REQUIRES DISMISSAL WITHOUT PREJUDICE

Pro per plaintiff filed a medical malpractice claim certifying pursuant to A.R.S. section 12-2603 that medical expert testimony was necessary to prove his claim but failed to file an initial disclosure statement and preliminary expert opinion affidavit as required by A.R.S. §12-2603(B). Defendants moved for an order compelling the filing of both and the trial court gave plaintiff 20 days to file the initial disclosure statement and 30 days to file the affidavit. Plaintiff failed to do either and the defense moved for dismissal. Plaintiff cross moved for a ruling that A.R.S. §12-2603 is unconstitutional. The trial court granted the defense motion dismissing the case with prejudice and denied plaintiff's cross motion. The Arizona Court of Appeals affirmed and modified finding dismissal was proper but without prejudice.

The court of appeals found that the failure to file the expert affidavit is a pleadings failure and not the same as dismissal for failure to prosecute or for discovery violations, either of which would justify a dismissal with prejudice. Instead the affidavit requirement is “meant to certify that the action is not meritless, and it is not required that the expert giving the affidavit testify at trial.” Thus while the statute requires dismissal here the dismissal must be without prejudice

Plaintiff's constitutional argument was dismissed out of hand in a footnote due to plaintiff's failure to provide any support for this conclusory argument. See ARCAP 13(a)(7). Also by footnote the court rejected the plaintiff's argument that he could not afford to hire an expert because he provided no evidence any qualified expert would have provided such an affidavit if paid.