Jilly v. Hon. Rayes/Carter

Annotate this Case

Download PDF

IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE GABOR JILLY, M.D. and JANE DOE JILLY; FEDERICO T. FLORENDO, M.D. and JANE DOE FLORENDO; HITESH K. MOVALIA, M.D. and JANE DOE MOVALIA, ) ) ) ) ) ) Petitioners, ) ) v. ) ) THE HONORABLE DOUGLAS L. RAYES, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) ) ) Respondent Judge, ) ) JASON CARTER, surviving spouse ) of CORA L. CARTER, deceased; and ) JASON CARTER, JR., JASMINE ) CARTER and DAISHIA CARTER, minor ) children of the decedent, DONNIE ) DAVIS and JANICE DAVIS, ) surviving parents of the ) decedent, ) ) Real Parties in Interest. ) __________________________________) DIVISION ONE FILED: 04/30/09 PHILIP G. URRY,CLERK BY: DN 1 CA-SA 08-0269 DEPARTMENT B O P I N I O N Petition for Special Action from the Superior Court of Maricopa County Cause No. CV 2008-070031 The Honorable Douglas L. Rayes, Judge JURISDICTION ACCEPTED; RELIEF GRANTED Jennings, Strouss & Salmon, P.L.C. Phoenix By And Attorneys And Jay A. Fradkin John J. Egbert for Petitioners Gabor Jilly, M.D. Jane Doe Jilly The Cavanagh Law Firm By Mary G. Pryor Attorneys for Petitioners Hitesh K. Movalia, M.D. And Jane Doe Movalia Phoenix Holloway, By And Attorneys And Phoenix Odegard, Forrest & Kelly, P.C. Stephen Paul Forrest Heather L. Bohnke for Petitioners Federico T. Florendo, M.D. Jane Doe Florendo Law Offices of Paul J. Sacco, P.C. By Paul J. Sacco Attorneys for Respondent-Real Parties in Interest Tempe T H O M P S O N, Judge ¶1 We herein uphold Arizona Revised Statutes (A.R.S.) § 12-2603 (2008), which provides that a plaintiff suing a health care professional is to certify whether or not 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" extends We with the therefore time the for reverse initial disclosures, compliance under the court's trial unless certain 2 court circumstances. judgment further proceedings consistent with this decision. the and direct FACTUAL AND PROCEDURAL HISTORY ¶2 In February 2008, the plaintiffs filed a complaint in superior court alleging that the defendant doctors committed medical malpractice, causing the death of twenty-eight year old Cora Carter defendant following doctors cardiac filed a surgery. motion to In June the requesting enforce, 2008, the trial court to require the plaintiffs to comply with A.R.S. § 12-2603 by certifying whether expert testimony was necessary to prove the standard of care or liability issues in the case. plaintiffs opposed unconstitutional the motion, because it arguing that the infringes on the authority of the Arizona Supreme Court. the defendants' followed. motion to enforce, and statute The is rulemaking The trial court denied this special action We accepted special action jurisdiction because this case presents an issue of statewide importance. See State ex rel. Woods v. Block, 189 Ariz. 269, 272, 942 P.2d 428, 431 (1997) (citations omitted). DISCUSSION ¶3 Section 12-2603 provides, in relevant part: A. 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 or the designation of nonparty at fault whether or not expert opinion testimony is necessary to prove the 3 health care professional's standard of care or liability for the claim. B. If the claimant . . . certifies pursuant to subsection H of this section that expert opinion testimony is necessary, that party shall serve a preliminary expert opinion affidavit with the initial disclosures that are required by rule 26.1, Arizona rules of civil procedure.1 . . . The preliminary expert opinion affidavit shall contain at least the following information: 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 against a health care professional. claim 3. The health care professional's acts, errors or omissions that the expert considers to be a violation of the applicable standard of care resulting in liability. 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 the claimant. . . . . Rule 16(c), "Scheduling Arizona and Rules Subject of Matter Civil at Procedure, entitled Comprehensive Pretrial Conferences in Medical Malpractice Cases," provides that at the pretrial conference, the trial court will determine a schedule 1 Rule 26.1(b)(1), Arizona Rules of Civil Procedure, states that the parties shall make initial disclosures within forty days after the filing of a responsive pleading to the complaint unless the parties otherwise agree or the Court shortens or extends the time for good cause. 4 for the disclosure of standard of care and causation expert witnesses. The rule provides that "[e]xcept upon good cause shown, such disclosure shall be simultaneous and within 30 to 90 days after the conference, depending upon the number and complexity of the issues." ¶4 We review constitutionality de and novo challenges "will not to a declare statute's a statute unconstitutional unless we are 'satisfied beyond a reasonable doubt' that it constitutions." conflicts with the federal or state Bertleson v. Sacks Tierney, P.A., 204 Ariz. 124, 126, ¶ 6, 60 P.3d 703, 705 (App. 2002) (quoting Chevron Chem. Co. v. Superior Ct., 131 Ariz. 431, 438, 641 P.2d 1275, 1282 (1982)). This court will give a statute a constitutional construction when it is possible to do so. Readenour v. Marion Power Shovel, 149 Ariz. 442, 445, 719 P.2d 1058, 1061 (1986) (citing Ariz. Downs v. Ariz. Horsemen's Found., 130 Ariz. 550, 554, 637 P.2d 1053, 1057 (1981)). ¶5 In Bertleson, we held that a similar statute, A.R.S. § 12-2602 (2000), which required plaintiffs to disclose preliminary expert opinion evidence in cases against licensed professionals, was constitutional. P.3d at 708. 204 Ariz. at 129, ¶ 23, 60 In Bertleson, the plaintiffs similarly argued that the statute at issue was unconstitutional because it infringed 5 on the Arizona Supreme Court's rulemaking authority. 129, ¶ 20, 60 P.3d at 708. Id. at This court held that A.R.S. § 12- 2602 did not conflict with our supreme court's rulemaking power: Nothing in A.R.S. § 12-2602 is in conflict with or engulfs our supreme court's rulemaking power. Contrary to the Bertlesons' allegations, neither Rule 26.1 nor Rule 16(c) require disclosures at a time different than what is provided for in A.R.S. § 12-2602. The statute provides for disclosure of preliminary expert opinions consistent with Rule 26.1(a) at the time for serving disclosure statements in accordance with Rule 26.1(b)(1). The Rule 16(c) pretrial conference procedures for medical malpractice cases also pose no conflict. The current version of A.R.S. § 12-2602 supplements the procedural rules and does not violate the separation of powers clause. Id. at ¶ 22 (citation omitted). ¶6 In this case, the trial court found that A.R.S. § 12- 2603 directly conflicts with Arizona Rules of Civil Procedure 16(c) and 26.2(b). The court focused on Rule 16(c)'s provision for the simultaneous disclosure of expert witnesses thirty to ninety days after the pretrial conference. However, although the trial court found that A.R.S. § 12-2603 and Rule 16(c) could not be harmonized, we note that the statute's requirement is "preliminary." The statute requires a "preliminary expert opinion affidavit," but does not require that the expert giving the preliminary Instead, the affidavit preliminary serve expert 6 as the opinion expert is at trial. provisional, and meant to certify that the professional is not meritless. state has a professionals compelling from action the medical See Bertleson at ¶ 19 ("[T]he interest frivolous against in lawsuits.") protecting licensed (citation omitted). The trial court's concern that "because Plaintiffs are forced to disclose their expert pursuant to A.R.S. § 12-2603, their expert is now 'known' and subject to deposition by the Defendants" is ameliorated by the preliminary status of the affidavit. ¶7 Finally, we note that A.R.S. § 12-2603(C) gives the trial court the discretion to extend the statute's timeframe: The court may extend the time for compliance with this section on application and good cause shown or by stipulation of the parties to the claim. If the court extends the time for compliance, the court may also adjust the timing and sequence of disclosures that are required from the health care professional against whom the claim is asserted or the designated nonparty at fault. Because A.R.S. § 12-2603 does not conflict with our supreme court's rulemaking authority2, we find that the statute is constitutional. 2 We note that the Arizona Supreme Court has recently issued Seisinger v. Siebel, M.D., __ Ariz.__, __, ¶ 19, 203 P.3d 483, 488 (2009), which holds that while A.R.S. § 12-2604(A) directly conflicts with Arizona Rule of Evidence 702, it is substantive in nature and therefore not violative of separation of powers, because it is within legislative competency. That case does not affect our analysis. 7 CONCLUSION ¶8 For the foregoing reasons, we reverse the decision of the trial court and direct further proceedings consistent with this opinion. ________________________________ JON W. THOMPSON, Judge CONCURRING: _____________________________________ MAURICE PORTLEY, Presiding Judge _____________________________________ PETER B. SWANN, Judge 8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.