Boswell v. Fintelmann
242 Ariz. 52
| Ariz. Ct. App. | 2017Background
- In July 2014 Boswell sued several medical providers alleging malpractice and certified under A.R.S. § 12-2603 that expert testimony was necessary.
- Arizona law (A.R.S. § 12-2603(B)) requires claimants who so certify to serve a preliminary expert opinion affidavit with initial disclosures.
- Boswell failed to serve the preliminary expert affidavit (and initially failed to serve initial disclosures); the court ordered him to provide disclosures within 20 days and the affidavit within 30 days.
- Boswell did not comply with the court’s order; defendants moved to dismiss and Boswell challenged the constitutionality of § 12-2603.
- The superior court dismissed Boswell’s claim with prejudice for failure to serve the affidavit; Boswell appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal was proper for failure to serve the § 12-2603 preliminary expert affidavit | Boswell argued the court erred (and also raised constitutional challenges) | Defendants argued dismissal was proper because Boswell failed to comply with the court order to serve the affidavit | Dismissal was proper because Boswell failed to serve the required affidavit after being ordered to do so (affirmed on that basis) |
| Whether dismissal may be with prejudice for failure to comply with § 12-2603 | Boswell contended dismissal with prejudice was improper | Defendants relied on the court’s authority under rules cited in its order | Dismissal with prejudice was error; statute requires dismissal without prejudice (judgment affirmed as modified to be without prejudice) |
| Whether failure to serve an affidavit is equivalent to dismissal for failure to prosecute or as a discovery sanction | Boswell argued the dismissal was erroneous on procedural grounds | Defendants treated the failure as noncompliance warranting dismissal | Court held dismissal for failure to serve the preliminary affidavit is a pleading failure reviewed de novo and is not the same as dismissal for failure to prosecute or a discovery sanction |
| Whether plaintiff’s constitutional and other collateral arguments were preserved or supported | Boswell raised constitutional objections and affordability of expert | Defendants contended those arguments were undeveloped and unsupported | Court found Boswell waived undeveloped constitutional claims and provided no evidence to support inability-to-pay argument |
Key Cases Cited
- Romero v. Hasan, 388 P.3d 22 (Ariz. Ct. App. 2017) (reviewing de novo dismissal for failure to serve a § 12-2603 affidavit)
- Coleman v. City of Mesa, 284 P.3d 863 (Ariz. 2012) (discussing standard for de novo review of pleading failures)
- Jilly v. Rayes, 209 P.3d 176 (Ariz. Ct. App. 2009) (explaining § 12-2603 affidavit requirement certifies nonfrivolous nature and is not limited to the trial expert)
- Gorney v. Meaney, 150 P.3d 799 (Ariz. Ct. App. 2007) (review of conformity of expert affidavit with § 12-2603)
- Sanchez v. Old Pueblo Anesthesia, P.C., 183 P.3d 1285 (Ariz. Ct. App. 2008) (holding § 12-2603 requires dismissal without prejudice)
- Polanco v. Indus. Comm'n of Ariz., 154 P.3d 391 (Ariz. Ct. App. 2007) (procedural waiver for undeveloped appellate arguments)