Hunter Contracting Co., Inc. v. Superior Court In and For County of Maricopa
| Decision Date | 24 July 1997 |
| Docket Number | No. 1,CA-SA,1 |
| Parties | 248 Ariz. Adv. Rep. 40 HUNTER CONTRACTING CO., INC., an Arizona corporation, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Mark F. Aceto, a judge thereof, Respondent Judge, Joseph J. GRANDINETTI, Real Party in Interest. 96-0222. |
| Court | Arizona Court of Appeals |
In this special action, we consider the constitutionality of Arizona Revised Statutes Annotated ("A.R.S.") § 12-2602 (Supp.1996), which requires a party asserting a claim against a registered professional or contractor to submit an expert affidavit with the claim. We hold that the statute violates the Equal Protection Clause of the Arizona Constitution.
While driving near a construction zone at the intersection of 136th Street and Shea Boulevard in Scottsdale, Arizona, Real Party in Interest Joseph J. Grandinetti struck a barricade lying on its side in the traveled road. Grandinetti later filed the underlying negligence claim against Petitioner Hunter Contracting Co., Inc. ("Hunter"), the contractor in charge, and others for injuries that he attributed to Hunter's failure to maintain a safe construction site. Hunter moved to dismiss Grandinetti's complaint on the ground that it lacked an accompanying expert affidavit as required by A.R.S. § 12-2602. Finding the statute unconstitutional, the trial court denied Hunter's motion.
Hunter sought review of the trial court's ruling by special action in this court. We accept jurisdiction to resolve a question of first impression concerning the constitutionality of an Arizona statute. See Matera v. Superior Court, 170 Ariz. 446, 447, 825 P.2d 971, 972 (App.1992).
In Arizona, "The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation." ARIZ. CONST. art. XVIII, § 6. It is undisputed that article XVIII, § 6 creates a "fundamental right" to pursue a damage action for one's injuries. See Kenyon v. Hammer, 142 Ariz. 69, 83, 688 P.2d 961, 975 (1984). The parties dispute whether A.R.S. § 12-2602 infringes upon this right in violation of the Equal Protection Clause. 1
We must decide the disputed question of infringement in order to determine our equal protection standard of review. Kenyon, 142 Ariz. at 79, 688 P.2d at 971. If § 12-2602 indeed infringes upon a fundamental state constitutional right, we must review it with strict scrutiny, inquiring whether the statute furthers a compelling governmental interest by the least restrictive practical means; if it does not infringe upon a fundamental right, we need only inquire whether the statute is rationally based--whether it reasonably furthers a legitimate government objective. Id. at 78, 86-87, 688 P.2d at 970, 978-79.
Section 12-2602 provides in relevant part:
A. A party that asserts a claim against a registered professional or contractor shall file an affidavit with the claim. An expert who is competent to testify against the registered professional or contractor shall complete the affidavit. The affidavit shall state the following:
1. The acts or omissions on which the claim is based.
2. The factual basis for each claim.
3. How the acts or omissions directly caused or contributed to the damages that are alleged in the claim.
....
E. [I]f a party fails to file an affidavit with the claim the court shall dismiss the claim for failure to state a claim. The party may not cure the claim by amending the pleadings unless the court determines that the party possessed the affidavit before the claim was filed and failed to file the affidavit with the claim due to excusable neglect or mistake.
By using the term "registered professional," the statute refers to any registered "architect, assayer, engineer, geologist, landscape architect or land surveyor." See A.R.S. § 12-2601(3) (Supp.1996).
Hunter argues that § 12-2602 does not infringe upon the fundamental right to pursue a damage action because it merely requires claimants to produce expert testimony at an earlier stage of proceedings than normally required. Implicit in this argument is the assumption that expert testimony is an essential, indispensable component of any professional negligence claim.
This assumption is mistaken. Expert testimony is necessary to prove professional negligence when "the question to be determined is strictly within the special and technical knowledge of the profession and not within the knowledge of the average layman." Revels v. Pohle, 101 Ariz. 208, 210, 418 P.2d 364, 366 (1966). But expert testimony is unnecessary to prove professional negligence "when the act or omission comes within the realm of common knowledge." Id.; accord Peacock v. Samaritan Health Servs., 159 Ariz. 123, 126, 765 P.2d 525, 528 (App.1988); see also Faris v. Doctors Hosp., 18 Ariz.App. 264, 267-68, 501 P.2d 440, 443-44 (1972) ().
Section 12-2602 makes no exception for cases that fall within the realm of common knowledge. Rather, as Hunter concedes, § 12-2602 requires plaintiffs to hire expert witnesses to advance any "claim against a registered professional or contractor," whether or not such an expenditure would otherwise be required. 2 As the supreme court said of a different statute in Kenyon, "The statute is quite clear; it is not the type of claim which determines special treatment, it is the identity of the person against whom it is asserted." 142 Ariz. at 77, 688 P.2d at 969.
The burden of hiring an unnecessary expert witness is no abstraction in this case. Grandinetti asserts that Hunter left an unlit barricade on its side in a traveled road. Although it is early to assess Grandinetti's ability to muster facts to support this assertion, it is not too early to recognize his theory of negligence as one likely to be accessible through common knowledge and understanding. Section 12-2602 requires Grandinetti to hire an expert at the outset of a case in which no expert might ever be required.
Section 12-2602 also specifies and restricts what type of expert a plaintiff must present. In cases not governed by this statute, plaintiffs seeking experts are not restricted to those who practice in the same discipline as the defendant. Rather, they may choose from a broader range of candidates, restricted only by the foundational requirement that the expert be qualified by "knowledge, skill, experience, training, or education" to provide the trier of fact with "specialized knowledge" relevant to the issues of the case. Ariz. R. Evid. 702; see also State v. Roberts, 139 Ariz. 117, 121-22, 677 P.2d 280, 284-85 (App.1983). Under § 12-2602(D), however, "[t]he expert who completes the affidavit shall be a registered professional or contractor who is licensed to practice [or who teaches] ... in the same discipline as the registered professional or contractor against whom the claim is made."
The impact of this restriction is twofold. First, § 12-2602 excludes from plaintiffs' range of choices potentially probative sources of expert testimony. Second, given professional reluctance to testify against a colleague, it confines plaintiffs to a group of experts least likely to accept a witness role.
We next focus on the requirement that the affidavit be filed at the outset of the case. Hunter asserts that this imposes only minimally on a plaintiff who would file such an affidavit later in the case. We disagree. Even where the plaintiff would eventually hire an expert witness, and even where the plaintiff would eventually choose an expert of the same discipline as defendant, it significantly increases the plaintiff's burden to require an expert opinion to be readied and presented by the time of the complaint.
Consider in comparison the procedural obligations ordinarily faced by plaintiffs who assert tort claims. The general rules of pleading are set forth in Rule 8 of the Arizona Rules of Civil Procedure ("ARCP"). Under Rule 8(a)(2), an ordinary tort complaint need contain only "[a] short and plain statement of the claim showing that the pleader is entitled to relief." A plaintiff need not "offer proof ... before discovery." Boone v. Superior Court, 145 Ariz. 235, 241, 700 P.2d 1335, 1341 (1985) (quoting Chipanno v. Champion Int'l Corp., 702 F.2d 827, 831 (9th Cir.1983)). And though Rule 11, ARCP, imposes burdens of reasonable inquiry and good faith upon a lawyer or party signing a complaint, 3 the burden of such inquiry is not to demonstrate a prima facie case without access to discovery, but only to determine "that a colorable claim exists." Id. It is not grounds for dismissal of a colorable claim that "at the time the pleading was filed the attorney had not yet assembled evidence sufficient to make a prima facie case." Id. at 242, 700 P.2d at 1342. Rather, Rule 11 deliberately leaves room for a lawyer pursuing a theory in good faith to develop the theory through discovery processes available after filing suit.
This is not to say that a defendant lacks means under normal rules of procedure to quickly test a plaintiff's prima facie case. Under Rule 56, ARCP, a defendant may...
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