Boswell v. Fintelmann (3/9/2017)
Arizona Court of Appeals Division One holds that a court may not dismiss a malpractice claim with prejudice for failure to serve a preliminary expert opinion affidavit under A.R.S. § 12-2603(B).
A plaintiff filed a malpractice claim against several defendants and certified that expert testimony was necessary to prove his claims. The court ordered the plaintiff to serve a preliminary expert opinion affidavit at the same time as initial disclosures under A.R.S. § 12-2603(B). The plaintiff failed to do so, and the court dismissed the claim with prejudice.
The Court of Appeals observed that A.R.S. § 12-2603(F) requires the court to dismiss a case for failure to serve a preliminary expert opinion affidavit without prejudice and does not permit dismissal with prejudice. The Court therefore modified the dismissal to be without prejudice and affirmed the dismissal as modified.
Judge Jon W. Thompson delivered the opinion of the Court, in which Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.