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Andrich v. Arpaio

United States District Court, D. Arizona

August 2, 2017

Devin Andrich, Plaintiff,
v.
Joseph Arpaio, et al., Defendants.

          ORDER

          Honorable John Z. Boyle United States Magistrate Judge

         Pending before the Court are Plaintiffs Motion to Extend Time to Certify A.R.S. §§ 12-2603 and 12-2604 Compliance, pursuant to §12-2603(C) (Doc. 40), Plaintiffs Motion for Leave to Serve Additional Uniform Interrogatories Upon Defendants, pursuant to Rule 26(b)(2)(A) of the Federal Rules of Civil Procedure (Doc. 42), Plaintiffs Motion to Strike (Doc. 56), Plaintiffs Motion to Extend Time to File Motions to Join Parties or for Leave to Amend Pleadings (Doc. 60), Plaintiffs Motion to Modify Scheduling Order (Doc. 62), and Plaintiffs Motion to Compel Responses (Doc. 65). For the reasons below, the Court will deny Plaintiffs Motions.

         I. Background

         Plaintiff Devin Andrich, who is confined in the Arizona State Prison Complex -Safford, filed a Motion for Leave to File Excess Pages (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 3) on June 27, 2016. He also lodged a proposed/pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 2.) On July 19, 2016, the Court denied the Application to Proceed and the Motion for Leave to File Excess Pages, giving Plaintiff 30 days to file an amended complaint, and to either pay the filing and administrative fees or to file a complete in forma pauperis application. (Doc. 6.) After the Court granted Plaintiff several extensions of time, on October 11, 2016, the Clerk docketed Plaintiffs Motion for Leave to File Excess Pages (Doc. 17) and Lodged Proposed First Amended Complaint (Doc. 18). In a December 13, 2016 Order, the Court granted Plaintiffs Application to Proceed and the Motion for Leave to File Excess Pages. (Doc. 20.) The Court also directed the Clerk of Court to file the Lodged Proposed First Amended Complaint. (Docs. 20, 21.)

         After screening, the Court dismissed Counts One, Two, Three, Five, Six, Seven, and Eight of Plaintiffs First Amended Complaint without Prejudice. The Court also dismissed Defendants Arpaio, John Doe Jail Commander, John Doe Lower Buckeye Jail Dentist, John Doe Lower Buckeye Jail Doctor, John Doe Radiologist, John Does/Jane Does I-X, Jane Doe Doctor Phoenix, Jane Doe Doctor Tucson, and John Does/Jane Does XI-XX without prejudice, and dismissed Plaintiffs official capacity claims against Mullen, Coons, John Doe/Jane Doe Health Administrator, John Doe/Jane Doe Phoenix Facility Health Administrator, and John Doe/Jane Doe Tucson Facility Health Administrator. (Doc. 20.)

         The Court also ordered Defendants Correctional Health Services and John/Jane Doe Health Administrator to answer Plaintiffs Fourteenth Amendment claim in Count Four, Defendants Corizon Health, Mullen, John Doe/Jane Doe Phoenix Facility Health Administrator, and John Doe/Jane Doe Tucson Facility Health Administrator to answer Plaintiffs Eight Amendment claims in Counts Nine and Ten, and Defendants Corizon Health and Coons to answer the negligence and medical malpractice claims in Counts Eleven and Twelve. (Id.) On March 20, 2017, Defendants Corizon, Coons, and Mullen filed an Answer to Plaintiffs First Amended Complaint, denying Plaintiffs claims. (Doc. 29.) On April 3, 2017, Defendant Porter, named as John Doe/Jane Doe Tucson Facility Healthcare Administrator, filed an Answer denying Plaintiffs claims. (Doc. 38.)

         The Court issued a Scheduling Order on April 4, 2017, setting July 3, 2017 as the deadline for motions to join parties or for leave to amend pleadings, and September 1, 2017 as the deadline for serving written discovery. (Doc. 39.) The Court also reiterated the limits to 25 interrogatories stated in Rule 33 of the Federal Rules of Civil Procedure. (Id.) The Court also ordered the parties to first seek to resolve discovery disputes through personal or telephonic consultation and sincere effort prior to filing any discovery motions. (Id.) On April 17, 2017, Plaintiff filed his Motion to Extend Time to Certify A.R.S. §§ 12-2603 and 12-2604 for his state law negligence and medical malpractice claims against Defendants Corizon and Coons. (Doc. 40.) On May 15, 2017, Plaintiff filed his Motion for Leave to Serve Additional Uniform Interrogatories Upon Defendants. (Doc. 42.)

         II. Plaintiffs Motion to Extend Time To Certify A.R.S. § 12-2603 Compliance

         A. Legal Standards

         A.R.S. § 12-2603(A) provides the following:

If a claim against a health care professional is asserted in a civil action, the claimant or the party designating a nonparty at fault or its attorney shall certify in a written statement that is filed and served with the claim[1]or the designation of nonparty at fault whether or not expert opinion testimony is necessary to prove the health care professional's standard of care or liability for the claim.

A.RS. § 12-2603(A)(emphasis added).

         The claimant must certify whether or not expert testimony is necessary to prove the heath care professional's standard of care and liability at the time of filing his claims in order to prevent a meritless action from moving past the preliminary stage and to prevent any unnecessary costs that come with discovery and litigation. Moreland v. Barrette, CV No. 05-480-TUC-DCB, 2006 U.S. Dist. LEXIS 79928, at *12 (D. Ariz. Oct. 31, 2006).

         If the claimant certifies that expert opinion testimony is necessary, the claimant must serve a preliminary expert opinion affidavit containing: (1) "the expert's qualifications to express an opinion on the health care professional's standard of care or liability for the claim"; (2) "the factual basis for each claim against a health care professional"; (3) "the health care professional's acts, errors or omissions that the expert considers to be a violation of the applicable standard of care"; and (4) "the manner in which the health care professional's acts, errors or omissions caused or contributed to the damages or other relief sought by claimant." A.R.S. § 12-2603(B). An expert is defined as "a person who is qualified by knowledge, skill, experience, training, or education to express an opinion regarding a licensed health care professional's standard of care or liability for the claim." A.R.S. § 12-2603(H)(2).

         If the claimant certifies that expert testimony is not required, the health care professional may move for a court order requiring service of a preliminary expert opinion affidavit. A.R.S. § 12-2603(D). In the motion, the health care professional must identify: (1) "the claim for which it believes expert testimony is needed"; (2) "the prima facie elements of the claim"; and (3) "the legal or factual basis for its contention that expert opinion testimony is required to establish the standard of care or liability for the claim." Id.

         "After considering any motion or response, the court shall determine whether the claimant ... shall comply with this section." A.R.S. § 12-2603(E). The court may extend the time for compliance with this statute by stipulation of the parties or if good cause is shown. A.R.S. § 12-2603(C). Additionally, the court shall dismiss the claims against the health care professional without prejudice if the claimant fails to file and serve a preliminary expert opinion affidavit after certifying an affidavit is necessary or the court has ordered the claimant to file and serve an affidavit. A.R.S. § 12-2603(F).

         In Arizona the "general rule in a medical malpractice case is that it is incumbent on the plaintiff to establish negligence on the part of a physician or surgeon by expert medical testimony." Tessitore v. McGilvra, 459 P.2d 716, 718 (Ariz. 1969). "Whether a physician breaches a duty by falling below the accepted standard of care is ordinarily shown by expert medical testimony." Barrett v. Harris, 86 P.3d 954, 960 (Ariz.Ct.App. 2004). An exception to this general rule occurs where "the negligence is so grossly apparent that a layman would have no difficulty in recognizing it." Riedisser v. Nelson, 534 P.2d 1052, 1054 (Ariz. 1975).

         In a federal action where the Court exercises supplemental jurisdiction over state law malpractice claims, the requirements of § 12-2603 apply to the plaintiffs state law claims. See Amor v. Arizona, CV No. 06-499-TUC-CKJ, 2010 U.S. Dist. LEXIS 23593, at *26 (D. Ariz. Mar. 12, 2010). However, there is no such federal procedural requirement, and so no such requirements apply to Plaintiffs Eighth Amendment claims.

         B. Plaintiff has not shown good cause to extend time for compliance with A.R.S. § 12-2603(A).

         Plaintiff failed to provide a written statement certifying whether or not expert testimony will be necessary to his medical malpractice and negligence claims against Defendants Corizon and Coons upon filing his First Amended Complaint. (Doc. 21.) Plaintiff now requests an extension of time pursuant to A.R.S. § 12-2603(C) to certify whether or not such expert testimony will be necessary, "in the amount of at least 60 days from when Defendants serve responses to Plaintiffs first set of Uniform Interrogatories." [2](Doc. 40.)

         Plaintiffs Motion and Reply appear to set forth two arguments for extending the certification filing deadline. First, Plaintiff argues that under A.R.S. § 12-2603, the certification "timeline is triggered by service of an initial disclosure statement, " and because no disclosure statements have been served, "clarity is needed on the issue as to whether any certification deadline exists." (Id. at 4.) As mentioned above, A.R.S. § 12-2603(A) states the certification is to be filed and served with the claims. The service of the initial disclosure statement triggers the deadline for the preliminary expert opinion affidavit under A.R.S. § 12-2603(B), but it is unrelated to the filing of the certification required under A.R.S. § 12-2603(A). Because no clarity is needed as to the existence of the certification deadline, Plaintiffs first argument does not provide good cause for his extension request.[3]

         Second, Plaintiff argues good cause exists for an extension because there are significant issues with the Scheduling Order, and his right to discovery should be resolved prior to filing the certification. Plaintiff argues that he needs a reasonable amount of time to "ascertain [Defendants'] position on this case, " (Doc. 40 at 6) and he claims to be unable to do so because the Scheduling Order "obstructs Plaintiffs ability to conduct reasonable discovery." (Id. at 4.) Plaintiff further claims that "under normal circumstances, Plaintiff would serve non-uniform interrogatories upon Defendants, await the answers, and determine whether Plaintiff requires expert witnesses and as to what opinions." (Id. at 7.) However, as noted above and pursuant to the statute, Plaintiff must make the determination as to whether he requires expert testimony pursuant to A.R.S § 12-2603(A) at the time he files his Complaint. Allowing Plaintiff to conduct discovery before he makes such a determination contradicts the very purpose of this statute: to curtail frivolous suits and unnecessary costs.

         Under A.R.S. § 12-2603(A), all Plaintiff must certify at the time of filing his claims is whether or not expert opinion testimony is necessary to prove Defendants' standard of care or liability for the claim. A.R.S. § 12-2603(A). Plaintiff does not need to determine whether expert testimony is necessary to determine "the measure of damages Defendants are found to be liable to Plaintiff." (Doc. 40 at 6.) Plaintiff has the ability to conduct discovery regarding his damages. However, at the time of his filing, Plaintiff was required to determine whether an expert opinion is needed to prove whether Defendants Corizon and Coons' conduct fell below the applicable standard of care in regards to only his state law claims of negligence. See Arenberg v. Adu-tutu, CV No. 14-01344-PHX-DLR, 2014 U.S. Dist. LEXIS 190546, at ...


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