Boswell v. Fintelmann (CA1 3/9/17)

A brief opinion issued to discuss the nature of dismissal of a malpractice action for failure to file an expert affidavit.

Plaintiff sued his eye doctors without an affidavit. The trial court ordered him to file one; he didn’t. The court dismissed with prejudice. Plaintiff appealed.

The Court of Appeals first notes that it reviews the matter de novo. The court said the same thing earlier this year (Romero v. Hasan) but cited a 12(b)(6) case. Perhaps feeling the problem with that, the court adds that de novo review is appropriate because failure to file the affidavit “is a pleading failure.”

Plaintiff apparently wanted to make a number of arguments but was pro se and didn’t know how. Some of them the court says he waived, others it rejects summarily.

But, though its not clear that this is among the arguments Plaintiff tried to make, the court concludes that dismissal should have been without prejudice. Such a dismissal “is not tantamount to dismissal for failure to prosecute.”  The dismissal order cited Rule 37(b)(2) but the court says that it is not “a sanction for a discovery violation” and that in any event the rule doesn’t allow dismissals with prejudice for violation of 12-2603. The court apparently thinks these things self-evident as it does not explain them, which again makes us wonder — admittedly without knowing — whether the issue was argued on appeal.

In fairness, the court also mentions the right answer, which is that dismissal is without prejudice because the expert-affidavit statute, 12-2603(F), says so.

Judgment changed to without prejudice and affirmed as modified.

(Opinion: Boswell v. Fintelmann, et al.)