Automatic Relief Under A.R.S. § 12-504 Denied After Dismissal for Failure to Serve Preliminary Expert Affidavits.

The Passmores filed a medical malpractice action against the defendants, but failed to serve preliminary expert affidavits within the time prescribed by A.R.S. § 12-2603(B). The parties agreed to a later date for serving the affidavits, which was approved by the court. However, the Passmores once again failed to serve the affidavits, and the defendants moved for dismissal.

The court dismissed the case without prejudice. The Passmores refiled their action, but the defendants moved for dismissal because the statute of limitations had run. The Passmores argued that A.R.S. § 12-504, the savings statute, should permit their case to be brought. The trial court dismissed the new action with prejudice, and the Arizona Court of Appeals affirmed.

A.R.S. § 12-504 provides two methods of saving a case that is otherwise beyond the applicable statute of limitation. The first method is a mandatory savings clause that applies to certain cases. The second method is discretionary, allowing the court to decide whether the action should be saved.

Mandatory relief is only provided when an action is dismissed in a manner other than by abatement, voluntary dismissal, dismissal for lack of prosecution or a final judgment on the merits. The court found that the failure to serve preliminary expert affidavits was a delay that is considered a lack of prosecution. The Passmores failed to diligently prosecute their case and use the applicable procedures to extend deadlines or cure deficiencies.

The discretionary relief provision is applied on a case-by-case basis, considering factors such as whether the plaintiff acted reasonably and in good faith, whether he prosecuted his case diligently and vigorously, whether a procedural impediment exists which affects his ability to file a second action, and whether either party will be substantially prejudiced. The excuses offered by the Passmores—that they had difficulty determining the proper specialist to provide testimony and that they had difficulty communicating with their chosen expert—were insufficient to justify their delay, which included a significant extension of time to file the affidavits.

The court determined that the prejudice to the Passmores was outweighed by the prejudice to defendants if the case was allowed to proceed after such an inexcusable delay. A failure to follow the rules of procedure and meet the necessary deadlines ended up costing the Passmores their right to seek a legal remedy.

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