STEVE W. BOSWELL, Plaintiff/Appellant,
ROBERT FINTELMANN, et al., Defendants/Appellees.
from the Superior Court in Maricopa County No. CV2014-009402
The Honorable J. Richard Gama, Judge (Retired)
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
Jon W. Thompson delivered the opinion of the Court, in which
Presiding Judge Randall M. Howe and Judge Lawrence F.
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.
AND PROCEDURAL BACKGROUND
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) 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.
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.
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).
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. §
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 ...