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Boswell v. Fintelmann

Court of Appeals of Arizona, First Division

March 9, 2017

STEVE W. BOSWELL, Plaintiff/Appellant,
v.
ROBERT FINTELMANN, et al., Defendants/Appellees.

         Appeal from the Superior Court in Maricopa County No. CV2014-009402 The Honorable J. Richard Gama, Judge (Retired)

         AFFIRMED AS MODIFIED

          Steve W. Boswell, Phoenix, In propria persona Plaintiff/Appellant

          Broening Oberg Woods & Wilson, PC, Phoenix By James R. Broening, Megan E. Gailey, Kevin R. Myer Counsel for Defendants/Appellees

          Judge Jon W. Thompson delivered the opinion of the Court, in which Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.

          OPINION

          THOMPSON, Judge:

         ¶1 Steve W. Boswell (Boswell) appeals from the dismissal with prejudice of his medical malpractice action based on his failure to serve a preliminary expert opinion affidavit. For the following reasons, we affirm the judgment as modified to reflect that the dismissal is without prejudice.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 In July 2014, Boswell filed a complaint in superior court alleging medical malpractice against Robert Fintelmann, M.D., Robert Pinkert, O.D., Thomas R. Wolf, Barnet Dulaney Surgery Center, LLC, Barnet Dulaney Perkins Eye Center, PLLC and others (appellees). Boswell certified pursuant to Arizona Revised Statutes (A.R.S.) section 12-2603 (2016)[1] that medical expert testimony was necessary to prove his claims. If a claimant certifies that expert opinion is necessary, A.R.S. § 12-2603(B) (2016) requires a claimant to serve a preliminary expert opinion affidavit at the same time as initial disclosures.

         ¶3 Boswell did not provide an initial disclosure statement and a preliminary expert opinion affidavit, and appellees moved for an order compelling him to do so. The superior court granted appellees' motion and ordered Boswell to serve his initial disclosure statement within twenty days and his preliminary expert opinion affidavit within thirty days.

         ¶4 Boswell did not comply with the court order, and appellees moved for dismissal. Boswell cross-moved for a ruling that A.R.S. § 12-2603 is unconstitutional. The superior court granted appellees' motion to dismiss, denied Boswell's cross-motion, and dismissed Boswell's claim with prejudice. We have jurisdiction over Boswell's timely appeal pursuant to A.R.S. § 12-2101(A)(1) (2016).

         DISCUSSION

         ¶5 We review de novo a dismissal for failure to serve a preliminary expert opinion affidavit required by A.R.S. § 12-2603, Romero v. Hasan, ___ Ariz.___ , ___, ¶ 6, 388 P.3d 22, 23 (App. 2017) (citing Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶ 7, 284 P.3d 863, 866-67 (2012)), because a claimant's failure to properly certify the non-frivolous nature of the complaint pursuant to A.R.S. § 12-2603 is a pleading failure. Dismissal for failure to serve the expert affidavit is not tantamount to dismissal for failure to prosecute, which operates as an adjudication on the merits. See Ariz. R. Civ. P. 41(b). Nor is it a dismissal as a sanction for a discovery violation, because the affidavit requirement is "meant to certify that the action . . . is not meritless, " and it is not required "that the expert giving the preliminary affidavit serve as the expert at trial." Jilly v. Rayes, 221 Ariz. 40, 42-43, ¶ 6, 209 P.3d 176, 178-79 (App. 2009) (citation omitted). See also Gorney v. Meaney, 214 Ariz. 226, 228, ¶ 4, 150 P.3d 799, 801 (App. 2007) (court of appeals reviewed de novo trial court's grant of summary judgment to defendant on the basis that plaintiff's expert opinion affidavit did not conform with A.R.S. § 12-2603(B)).

         ¶6 Although Boswell argues the superior court erred by dismissing his complaint because the court erroneously concluded that he failed to serve his initial disclosure statement, we reject this argument because the court properly dismissed based on Boswell's failure to ...


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