IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STEVE W. BOSWELL, Plaintiff/Appellant,

v.

ROBERT FINTELMANN, et al., Defendants/Appellees.

No. 1 CA-CV 15-0859

Appeal from the Superior Court in Maricopa County

No. CV2014-009402

The Honorable J. Richard Gama, Judge (Retired)

AFFIRMED AS MODIFIED

COUNSEL

Steve W. Boswell, Phoenix, In propria persona

Plaintiff/Appellant

Broening Oberg Woods & Wilson, PC, Phoenix

By James R. Broening, Megan E. Gailey, Kevin R. Myer 

Counsel for Defendants/Appellees

OPINION

Judge Jon W. Thompson delivered the opinion of the Court, in which 

Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.
BOSWELL v. FINTELMANN

Opinion of the Court

2

T H O M P S O N, Judge:

¶1 Steve W. Boswell (Boswell) appeals from the dismissal with 

prejudice of his medical malpractice action based on his failure to serve a 

preliminary expert opinion affidavit. For the following reasons, we affirm 

the judgment as modified to reflect that the dismissal is without prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In July 2014, Boswell filed a complaint in superior court 

alleging medical malpractice against Robert Fintelmann, M.D., Robert 

Pinkert, O.D., Thomas R. Wolf, Barnet Dulaney Surgery Center, LLC, 

Barnet Dulaney Perkins Eye Center, PLLC and others (appellees). Boswell

certified pursuant to Arizona Revised Statutes (A.R.S.) section 12-2603

(2016)1 that medical expert testimony was necessary to prove his claims. If 

a claimant certifies that expert opinion is necessary, A.R.S. § 12-2603(B)

(2016) requires a claimant to serve a preliminary expert opinion affidavit at 

the same time as initial disclosures.

¶3 Boswell did not provide an initial disclosure statement and a 

preliminary expert opinion affidavit, and appellees moved for an order 

compelling him to do so. The superior court granted appellees’ motion and 

ordered Boswell to serve his initial disclosure statement within twenty days 

and his preliminary expert opinion affidavit within thirty days. 

¶4 Boswell did not comply with the court order, and appellees 

moved for dismissal. Boswell cross-moved for a ruling that A.R.S. § 12-2603 

is unconstitutional. The superior court granted appellees’ motion to 

dismiss, denied Boswell’s cross-motion, and dismissed Boswell’s claim

with prejudice. We have jurisdiction over Boswell’s timely appeal pursuant 

to A.R.S. § 12-2101(A)(1) (2016).

DISCUSSION

¶5 We review de novo a dismissal for failure to serve a 

preliminary expert opinion affidavit required by A.R.S. § 12-2603, Romero v. 

Hasan, __ Ariz. __, __, ¶ 6, 388 P.3d 22, 23 (App. 2017) (citing Coleman v. City 

of Mesa, 230 Ariz. 352, 355-56, ¶ 7, 284 P.3d 863, 866-67 (2012)), because a 

claimant’s failure to properly certify the non-frivolous nature of the 

complaint pursuant to A.R.S. § 12-2603 is a pleading failure. Dismissal for 

 

1 We cite the current versions of the applicable statutes and rules unless 

revisions material to this opinion have occurred since the events in 

question. 
BOSWELL v. FINTELMANN

Opinion of the Court

3

failure to serve the expert affidavit is not tantamount to dismissal for failure 

to prosecute, which operates as an adjudication on the merits. See Ariz. R. 

Civ. P. 41(b). Nor is it a dismissal as a sanction for a discovery violation, 

because the affidavit requirement is “meant to certify that the action . . . is 

not meritless,” and it is not required “that the expert giving the preliminary 

affidavit serve as the expert at trial.” Jilly v. Rayes, 221 Ariz. 40, 42-43, ¶ 6, 

209 P.3d 176, 178-79 (App. 2009) (citation omitted). See also Gorney v. 

Meaney, 214 Ariz. 226, 228, ¶ 4, 150 P.3d 799, 801 (App. 2007) (court of 

appeals reviewed de novo trial court’s grant of summary judgment to 

defendant on the basis that plaintiff’s expert opinion affidavit did not 

conform with A.R.S. § 12-2603(B)).

¶6 Although Boswell argues the superior court erred by 

dismissing his complaint because the court erroneously concluded that he 

failed to serve his initial disclosure statement, we reject this argument 

because the court properly dismissed based on Boswell’s failure to serve 

the preliminary expert affidavit required by A.R.S. § 12-2603.

2

¶7 Section 12-2603(F) requires the superior court to dismiss

without prejudice a claim when the claimant fails to file and serve a 

preliminary expert opinion affidavit after certifying an affidavit is 

necessary or the court has ordered compliance.

3 Because Boswell failed to 

comply with the order to serve the affidavit, the court appropriately 

dismissed his claim.

¶8 However, the statute does not authorize dismissals with 

prejudice. Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 323–24, ¶¶ 

20, 22, 25, 183 P.3d 1285, 1291–92 (App. 2008). Although appellees correctly 

 

2 Appellees acknowledged in their motion to dismiss that Boswell had 

provided his initial disclosure statement prior to the deadline ordered by 

the court.

3 Because Boswell fails to develop and support his conclusory arguments 

that A.R.S. § 12-2603 and related statutes are unconstitutional and that the 

superior court improperly sealed an “investigative report,” he waives them. 

See ARCAP 13(a)(7); Polanco v. Indus. Comm'n of Ariz., 214 Ariz. 489, 491 n.2, 

¶ 6, 154 P.3d 391, 393 n.2 (App. 2007). Additionally, to the extent Boswell 

argues he cannot afford to hire an expert to make an affidavit, he offers no 

evidence that any qualified expert would have provided the information 

required by A.R.S. § 12-2603. See Romero, __ Ariz. at __ n.4, ¶ 9, 388 P.3d at 

23 n.4.
BOSWELL v. FINTELMANN

Opinion of the Court

4

assert that the superior court referred to Arizona Rule of Civil Procedure 

37(b)(2)4 in its ruling dismissing Boswell’s claim, that rule also does not 

authorize dismissals with prejudice for the failure to comply with A.R.S. § 

12-2603. Thus, the court erred by dismissing Boswell’s claim with 

prejudice. 

CONCLUSION

¶9 For the foregoing reasons, we affirm the judgment as 

modified to reflect that dismissal is without prejudice.

 

4 Rule 37(b)(2)(A)(v) provides that if a party fails to obey an order to 

provide or permit discovery, the court may dismiss the action.