United States District Court, D. Arizona
Honorable John Z. Boyle United States Magistrate
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.
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.)
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.)
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.
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.)
Plaintiffs Motion to Extend Time To Certify 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
claimor 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).
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).
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.
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.
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).
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.
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.
Plaintiff has not shown good cause to extend time for
compliance with A.R.S. § 12-2603(A).
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."
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
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.
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 ...