O'Connor v. United States ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jamie Maxine O’Connor, No. CV-22-00257-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 United States of America, 13 Defendant. 14 15 Pending before the Court is the United States of America’s (“Defendant”) motion 16 to dismiss Jamie Maxine O’Connor’s (“Plaintiff”) claim against it for failure to comply 17 with A.R.S. § 12-2603(B). (Doc. 24). Plaintiff has not responded to the motion within the 18 time allotted. Compare LRCiv 7.2(c), with LRCiv 12.1. Also pending is Defendant’s 19 motion to stay or extend case management deadlines. (Doc. 25). The Court now rules. 20 I. BACKGROUND 21 Plaintiff brought this medical negligence claim against Defendant under the Federal 22 Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671–2680, seeking recovery for her father’s 23 death from epithelioid sarcoma following medical treatment at a hospital run by the United 24 States Department of Veterans Affairs. (Doc. 1 at 1–2). Section 12-2603 of the Arizona 25 Revised Statutes requires “plaintiffs alleging medical malpractice to certify whether expert 26 testimony will be needed to prove their claims.” Gorney v. Meaney, 150 P.3d 799, 801 ¶ 5 27 (Ariz. App. 2007) (citing A.R.S. §§ 12-2603(A)–(B)); Cornerstone Hosp. of Southeast 28 Ariz. v. Marner, 290 P.3d 460, 466 ¶ 17 (Ariz. App. 2012) (“[Section] 2603 . . . applies to 1 claims asserted . . . against a health care professional, that is, claims that are medical-based 2 or medical-related.”). If the claimant certifies that “expert opinion testimony is necessary,” 3 the claimant is required to “serve a preliminary expert opinion affidavit.” A.R.S. § 12- 4 2603(B). This affidavit, fundamentally, must be from an expert. Id. Further, it must 5 describe the expert’s qualifications to give an opinion, explain the factual basis for the 6 medical malpractice claim, and set forth the expert’s opinion regarding both violation of 7 the standard of care and causation. See id. If the claimant fails to file and serve this affidavit 8 after being ordered to do so or after certifying that expert opinion testimony is necessary, 9 the Court “shall dismiss the claim . . . without prejudice.” Id. § 12-2603(F). The statute 10 requires that this affidavit be served with a claimant’s initial disclosures. See A.R.S. § 12- 11 2603(B). 12 Plaintiff’s initial disclosures were due on August 29, 2022. (See Doc. 17 at 1). 13 During a scheduling conference in late August which Plaintiff did not attend, Defendant’s 14 counsel notified the Court that Plaintiff had not filed the certification with her claim and 15 had not yet served a preliminary expert opinion affidavit. The Court initially gave Plaintiff 16 until September 2, 2022, to comply with sections 12-2603(A) and (B). (See id. at 8). After 17 the deadline had passed, Plaintiff moved for an extension of time, (Doc. 20), which the 18 Court granted, setting a firm deadline of October 31, 2022, (Doc. 22 at 3). In extending the 19 initial deadline the Court noted that the relatively generous length of the extension was to 20 allow Plaintiff time to “retain an expert who could comply with A.R.S. § 12-2603(B)” 21 before the deadline expired. (Id. at 2–3). 22 II. ANALYSIS 23 Defendant argues that § 12-2603 applies to claims in federal court under the FTCA 24 and mandates dismissal in this case. (Doc. 24 at 3–7). Federal district courts addressing the 25 issue have uniformly held that § 12-2603 is applicable to FTCA claims. Kusch v. United 26 States, No. CV-17-01008-PHX-DJH, 2017 WL 11478816, at *2 (D. Ariz. Dec. 19, 2017) 27 (citing Mann v. United States, No. CV-13-1224-TUC-CKJ, 2014 WL 4230810, at *6 (D. 28 Ariz. Aug. 27, 2014). Because Plaintiff’s claim is an FTCA claim premised on Arizona 1 medical negligence law, the Court finds that the requirements of § 12-2603 apply to her 2 claim. Plaintiff has timely certified (within the extended deadline set by the Court) that 3 expert testimony is required. (Doc. 23). Thus, Plaintiff has complied with the requirement 4 of § 12-2603(A) to certify whether expert testimony is needed. 5 She has not, however, complied with the requirement of § 12-2603(B) to timely 6 provide a preliminary expert opinion affidavit. Attached to Plaintiff’s certification that 7 expert testimony is needed are several pages primarily consisting of what appears be 8 copied-and-pasted text from internet sources. (See Doc. 23). But this text is not an affidavit, 9 is not from an expert, and does not describe any expert’s qualifications to give an opinion. 10 Because it was not prepared by an expert, it does not set forth an expert’s opinion regarding 11 violation of the standard of care or causation. It is therefore not the preliminary expert 12 opinion affidavit required under § 12-2603(B). Rather, it strongly suggests that Plaintiff 13 has not secured an expert to provide the expert testimony which she has certified is 14 required. 15 The Court finds that Plaintiff has not filed or served the required affidavit after 16 certifying one was necessary and after having been ordered to do so. Dismissal without 17 prejudice is therefore required under A.R.S. § 12-2603(F). See Sanchez v. Old Pueblo 18 Anesthesia, P.C., 183 P.3d 1285, 1291 ¶ 22 n.8 (Ariz. App. 2008) (indicating that dismissal 19 without prejudice is proper under § 12-2603 where a plaintiff certifies that an affidavit is 20 necessary but fails to file it). The Court will dismiss the case on this basis, and therefore 21 will not reach Defendant’s alternative basis for dismissal under Fed. R. Civ. P. 41(b). 22 III. CONCLUSION 23 Based on the foregoing, 24 IT IS ORDERED that Defendant’s motion to dismiss (Doc. 24) is granted. This 25 case is dismissed without prejudice pursuant to A.R.S. § 12-2603(F). The Clerk of the 26 Court shall enter judgment accordingly. 27 / / / 28 / / / 1 IT IS FURTHER ORDERED that Defendant’s motion to stay or extend case || management deadlines (Doc. 25) is denied as moot. 3 Dated this 24th day of April, 2023. 4 5 ' ° James A. CO 7 Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-