                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
        UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
           PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                   IN THE
             ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                 SYLVIA CARAVETTA, Plaintiff/Appellant,

                                        v.

              DANIEL S. DUICK, et al., Defendants/Appellees.

                             No. 1 CA-CV 16-0105
                               FILED 3-7-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2015-050029
               The Honorable John R. Hannah, Jr., Judge

                                  AFFIRMED


                                   COUNSEL

Sylvia Caravetta, Delray Beach, FL
Plaintiff/Appellant

Jones, Skelton & Hochuli PLC, Phoenix
By J. Russell Skelton, Eileen Dennis GilBride
Counsel for Defendants/Appellees
                       CARAVETTA v. DUICK, et al.
                          Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul McMurdie joined.


JONES, Judge:

¶1           Sylvia Caravetta appeals from an order dismissing her case
against Daniel S. Duick and Endocrinology Associates, P.A. (collectively,
Appellees) for failure to serve a preliminary expert opinion affidavit
required by Arizona Revised Statutes (A.R.S.) section 12-2603.1 For the
following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             In January 2015, Caravetta filed a complaint against
Appellees, alleging a medical malpractice claim against Duick, a physician
board-certified in internal medicine and endocrinology, arising out of
actions occurring in August 2012. Caravetta did not certify whether
medical expert testimony was necessary to prove her claim. See A.R.S. § 12-
2603(A) (“If a claim against a health care professional is asserted in a civil
action, the claimant . . . shall certify in a written statement that is filed and
served with the claim . . . whether or not expert opinion testimony is
necessary to prove the health care professional’s standard of care or liability
for the claim.”).

¶3             Appellees moved for an order requiring Caravetta to serve a
preliminary expert opinion affidavit. See A.R.S. § 12-2603(D) (permitting
the health care professional to “apply by motion to the court for an order
requiring the claimant . . . to obtain and serve a preliminary expert opinion
affidavit”). The superior court granted the motion and ordered Caravetta
to serve the requisite affidavit within thirty days.

¶4          Caravetta requested and received additional time to serve the
affidavit. Shortly before the extended deadline, Caravetta filed a
preliminary expert opinion affidavit from an emergency medicine


1     Absent material changes from the relevant date, we cite a statute’s
current version.



                                       2
                        CARAVETTA v. DUICK, et al.
                           Decision of the Court

physician. However, Caravetta simultaneously advised the superior court
she found the affidavit she filed to be “unacceptable” and wanted to modify
it.

¶5            Appellees moved for dismissal. The superior court found the
affidavit did not satisfy A.R.S. § 12-2603 because the expert was not
qualified to opine on the standard of care of a board-certified internal
medicine or endocrinology physician. The court then extended the
compliance deadline to provide Caravetta a reasonable time to cure the
affidavit. The court warned it would dismiss the case if Caravetta failed to
timely comply.

¶6             Caravetta failed to comply with the order and Appellees
moved for summary disposition of their motion to dismiss. The superior
court dismissed the case without prejudice in January 2016. Caravetta
timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1) and -2101(A)(3). See Garza v. Swift Transp. Co., 222 Ariz. 281,
284, ¶ 15 (2009) (holding a dismissal without prejudice entered after the
statute of limitations has run is a final, appealable order), superseded by
statute on other grounds as stated in Brumett v. MGA Home Healthcare, L.L.C.,
240 Ariz. 420, 431, ¶ 22 (App. 2016); see also Romero v. Hasan, ___ Ariz. ___,
___, 338 P.3d 22, 23, ¶¶ 4–5 (App. 2017).

                                 DISCUSSION

¶7             We review de novo a dismissal for failure to serve a
preliminary expert opinion affidavit required by A.R.S. § 12-2603. Romero,
338 P.3d at 23, ¶ 6 (citing Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶ 7
(2012)). We review the court’s determination that a litigant’s expert is not
qualified for an abuse of discretion. Baker v. Univ. Physicians Healthcare, 231
Ariz. 379, 387, ¶ 30 (2013) (citing State v. Keener, 110 Ariz. 462, 465-66 (1974)).

¶8         To the extent Caravetta argues the affidavit from the
emergency medicine physician was sufficient, we reject her argument.2


2      Within her opening brief, Caravetta has failed to set forth the
operative facts, list discernible issues, develop arguments, or cite to
authorities or relevant parts of the record. See ARCAP 13(a)(5)–(7). We
discern Caravetta’s arguments as best we can and consider only adequately
supported arguments. See In re Aubuchon, 233 Ariz. 62, 64–65, ¶ 6 (2013).
Arguments unsupported by law and fact are waived. Id.; see also Ritchie v.
Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) (holding that failure to support



                                        3
                        CARAVETTA v. DUICK, et al.
                           Decision of the Court

Pursuant to A.R.S. § 12-2603(B)(1), the preliminary expert opinion affidavit
must set forth “[t]he expert’s qualifications to express an opinion on the
health care professional’s standard of care or liability.” Regarding
qualifications, A.R.S. § 12-2604(A)(1) provides, in relevant part:

       If the party against whom or on whose behalf the testimony
       is offered is or claims to be a specialist, [the expert must]
       specialize[] at the time of the occurrence that is the basis for
       the action in the same specialty or claimed specialty as the
       party against whom or on whose behalf the testimony is
       offered. If the party against whom or on whose behalf the
       testimony is offered is or claims to be a specialist who is board
       certified, the expert witness shall be a specialist who is board
       certified in that specialty or claimed specialty.

See Cornerstone Hosp. of Se. Ariz., L.L.C. v. Marner ex rel. Cty. of Pima, 231 Ariz.
67, 73, ¶ 18 (App. 2012) (“[T]he expert’s qualifications for purposes of
[A.R.S.] § 12-2603(B)(1) are governed by [A.R.S.] § 12-2604.”) (citation
omitted). Here, Caravetta offered expert opinion testimony from a board-
certified, emergency medicine physician against a physician board-certified
in internal medicine and endocrinology. Caravetta’s expert was not
qualified under A.R.S. § 12-2604(A)(1), and the superior court did not abuse
its discretion in finding the affidavit insufficient.

¶9            Caravetta also argues she could not comply with the superior
court’s order to serve the expert affidavit because expert witnesses refused
to work with her, suggesting instead that her medical records could have
been used in lieu of an expert affidavit. However, she does not cite any
authority to support this substitution, and A.R.S. § 12-2603 does not provide
for it. See Romero, 388 P.3d at 23, ¶ 9 (rejecting request for physician
testimony at a hearing in lieu of serving a preliminary affidavit where the
procedure was not provided for in A.R.S. § 12-2603). Moreover, regardless
of the reason for noncompliance, A.R.S. § 12-2603(F) “clearly and
unambiguously mandates the superior court dismiss without prejudice a
claim when the claimant fails to comply with the court’s order to file and
serve a preliminary expert opinion affidavit.” Id. Because Caravetta failed




arguments with legal authority may constitute waiver and abandonment of
that claim) (citing State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101 (2004)).




                                         4
                    CARAVETTA v. DUICK, et al.
                       Decision of the Court

to comply with the court’s order to serve the affidavit, the court was
required to dismiss Caravetta’s claim. We find no error.

                            CONCLUSION

¶10         For the foregoing reasons, we affirm.




                       AMY M. WOOD • Clerk of the Court
                       FILED: AA




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