Do judges ever remind you of your kids fighting in the back seat?
In December, Division One issued Passmore v. McCarver – a memorandum decision so we did not review it – holding that dismissal under 12-2603 (failure to file an expert opinion in a med mal case) can be with prejudice. In March, a different panel of Division One used a pro se case (which would normally result in a memorandum) and perhaps an expansive view of what was at issue there to produce Boswell v. Fintelmann, holding that a 12-2603 dismissal must be without prejudice.
It would be interesting to know whether the Boswell panel knew that in January McCarver had asked that his opinion be published; in any event, that request was granted and Passmore was published in April. And so now, in May, we get Williamson, which is effectively Boswell – same panel, same holding, also a pro se case – with the addition of a paragraph criticizing Passmore.
Apparently there is some serious arguing going on over there since the only conceivable reason to issue an opinion in this case is to take a publicized shot at Passmore; for all we know that’s what they had in mind with Boswell, too.
Williamson teaches that failure to file the affidavit is a “substantive pleading failure” and not a failure to prosecute. Passmore said the opposite but is wrong, according to Williamson, because Passmore cited a case that said in passing that the statute applies to an “expert witness.” Jilly (2009), however, later held that the statute doesn’t necessarily apply to an expert trial witness – the affidavit can come from someone else – and that’s why it doesn’t violate the Supreme Court’s rulemaking authority. Whether that begs the question we leave as an exercise for the reader.
(Opinion: Williamson v O’Brien)