Arizona Court of Appeals Division One Holds That A.R.S. § 12-2603 Does Not Conflict With the Arizona Supreme Court’s Rulemaking Authority.

In February 2008, Plaintiffs filed an action for medical malpractice against Defendants.  Defendants filed a motion to enforce, asking the trial court to require Plaintiffs to comply with A.R.S. § 12-2603 and certify whether expert opinion testimony was necessary to prove the standard of care and/or liability in the case.  Plaintiffs opposed the motion, arguing that the statute is unconstitutional because it infringes on the Arizona Supreme Court’s rulemaking authority.  The trial court denied Defendants’ motion, ruling that A.R.S. § 12-2603 conflicts with Arizona Rule of Civil Procedure 16(c) and 26.2(b).  The trial court reasoned that because the statute required Plaintiffs to disclose their expert, their expert was known to the Defendants and could therefore be subject to deposition.   Defendants filed a special action petition.

The Arizona Appeals Court accepted jurisdiction and reversed the trial court’s decision.  The Court upheld the constitutionality of A.R.S. §12-2603, finding that it does not conflict with the Arizona Supreme Court’s rulemaking authority.   A.R.S. § 12-2603 provides that a plaintiff suing a health care professional must certify whether expert opinion testimony is necessary to prove the health care professional’s standard of care or liability, and, if expert opinion testimony is necessary, requires service of a “preliminary expert opinion affidavit” with the initial disclosures, unless the court extends the time for compliance under certain circumstances. Rule 16(c) of the Arizona Rules of Civil Procedure provides that the disclosure of standard of care and causation expert witnesses shall be made within 30-90 days after the pretrial scheduling conference. 

The Court reasoned that because A.R.S. § 12-2603 only requires a preliminary expert opinion affidavit, and does not require that the expert who provides that affidavit provide expert opinion testimony at trial, and because it grants the court discretion to extend the timeframe for compliance with the statutory requirements, the statute does not conflict with the rulemaking authority of the Arizona Supreme Court.      

Judge Thompson authored the opinion, Judges Portley and Swann concurred.