Kestenbaum v. Ford

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENNETH KESTENBAUM, Plaintiff/Appellant,

v.

SARA LYNN FORD, et al., Defendants/Appellees.

No. 1 CA-CV 23-0071
FILED 10-17-2023

Appeal from the Superior Court in Maricopa County
No. CV2022-004137
The Honorable Connie Contes, Judge (Retired)

AFFIRMED

COUNSEL

Focused Appeals PLLC, Mesa
By Austin Martineau
Counsel for Plaintiff/Appellant

Beaugureau, Hancock, Stoll & Schwartz, P.C., Phoenix
By David L. Stoll, W. Reed Campbell
Counsel for Defendants/Appellees
 KESTENBAUM v. FORD, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Andrew M. Jacobs and Chief Judge David B. Gass joined.

B R O W N, Judge:

¶1 Kenneth Kestenbaum appeals the superior court’s judgment
dismissing his veterinary malpractice and negligence claims for failing to
submit a preliminary expert opinion affidavit under A.R.S. § 12-2602.
Kestenbaum argues his claims are not subject to the affidavit requirement,
and § 12-2602 is an unconstitutional restriction on his right to recover
damages as well as his rights under Arizona’s privileges and immunities
clause. He also argues the court erred in dismissing his claim for
declaratory relief on the applicability of related statutes. For the following
reasons, we affirm.

BACKGROUND

¶2 In April 2020, Kestenbaum’s golden retriever dog was taken
to a veterinary hospital because the dog’s arthritis-related condition was
causing pain in its lower back and legs. With Kestenbaum’s authorization,
Dr. Ford (a licensed veterinarian) conducted several tests to assess the dog’s
medical condition and recommend a treatment plan. According to
Kestenbaum, upon returning home the dog could not stand or walk,
required assistance moving, and was mostly unconscious for the next 24
hours. Kestenbaum asked Dr. Ford for an explanation, and she allegedly
said she and her staff had put the dog in various positions during the tests,
including on its back. Kestenbaum spent thousands of dollars on
treatments and corrective measures, but the injuries were deemed
irreversible, and the dog had to be euthanized.

¶3 Kestenbaum initially sued Dr. Ford and other veterinary
corporate entities (collectively “Defendants”) in June 2020 for veterinary
malpractice. Defendants moved to compel compliance with A.R.S.
§§ 12-2603 (requiring claimants to serve a preliminary expert opinion if
expert testimony is necessary in claims against healthcare professionals)
and 12-2604 (listing the expert witness’s required qualifications). Because
Kestenbaum did not file the requisite preliminary expert opinion by the
superior court’s deadline, the case was dismissed without prejudice.

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¶4 In April 2022, Kestenbaum re-filed his lawsuit, alleging claims
of veterinary malpractice and negligence. Kestenbaum also filed a
certification that expert testimony was not necessary to prove Dr. Ford’s
liability. Defendants filed a controverting certification, asserting expert
testimony would be necessary to support Kestenbaum’s claims.
Defendants then moved to compel compliance with A.R.S. § 12-2602 and
argued that for Kestenbaum to prove the prima facie elements of his
medical negligence claim, he would need an expert to establish that Dr.
Ford’s actions breached the applicable standard of care. See A.R.S.
§ 12-2602 (requiring a claimant to file a preliminary expert opinion when
suing a licensed professional if expert testimony is necessary).

¶5 Kestenbaum opposed the motion, asserting the statute
“places an unconstitutional burden on plaintiffs suing for veterinary
malpractice,” but regardless, he should not be required to provide the
affidavit before discovery. He also moved for partial summary judgment,
requesting that the superior court issue a declaratory judgment on the
applicability of §§ 12-2603 and 12-2604. Kestenbaum argued this issue was
justiciable based in part on the court’s prior dismissal of his lawsuit for
failure to comply with §§ 12-2603 and 12-2604. He contended that although
Defendants were currently relying on § 12-2602, they could still assert that
Kestenbaum must comply with §§ 12-2603 and 12-2604, and they should
not be “entitled to pick and choose which statute applies to which
professional.”

¶6 After hearing oral argument on Defendants’ motion to
compel compliance, the superior court granted the motion. The court
ordered Kestenbaum to file the necessary preliminary expert opinion
affidavit as required under § 12-2602 within 60 days and stayed further
proceedings until then.

¶7 Kestenbaum did not file the affidavit, and the superior court
dismissed the case without prejudice in December 2022. Kestenbaum
timely appealed, and we have jurisdiction under § 12-2101(A)(3) because
the statute of limitations on Kestenbaum’s claim has run and relief under a
savings statute is not available. See Olewin v. Nobel Mfg. LLC, 254 Ariz. 346,
351, ¶ 17 (App. 2023).

DISCUSSION

A. Compliance with A.R.S. § 12-2602

¶8 Kestenbaum argues he should not have been required to
comply with § 12-2602’s requirement (and the superior court’s ruling) that

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he submit a preliminary expert opinion affidavit within 60 days. He
contends the affidavit is “impossible” for him to complete given his lack of
detailed evidence about the injury, such as when the dog’s paralysis
occurred and what caused it. He further asserts that requiring compliance
would defeat the purpose of § 12-2602, which he states is “to weed out
frivolous claims,” because in this case the court dismissed a meritorious
claim based on Kestenbaum’s lack of information.

¶9 To the extent Kestenbaum’s argument depends on the
interpretation and application of § 12-2602, we review the court’s
determination de novo. See Blankenbaker v. Marks, 231 Ariz. 575, 577, ¶ 6
(App. 2013). Our review of the applicable statutes “requires us to determine
the meaning of the words the legislature chose to use.” S. Ariz. Home
Builders Ass’n v. Town of Marana, 254 Ariz. 281, 286, ¶ 31 (2023). We make
that determination “according to the plain meaning of the words in their
broader statutory context.” Id.

¶10 A claim against a licensed professional means a legal cause of
action: (1) asserted against a licensed professional, (2) based on, among
other things, the licensed professional’s negligence in rendering
professional services, and (3) requiring expert testimony to prove the
licensed professional’s standard of care or liability for the claim. A.R.S.
§ 12-2601(1). A licensed professional includes a person licensed by this
State to practice “a profession or occupation under title 20 or 32.” A.R.S.
§ 12-2601(3).

¶11 In his complaint, Kestenbaum alleges Dr. Ford owed him a
duty of care to act with the skill, diligence, and competence of a licensed
veterinarian. He asserts the duty included diagnosing the dog’s medical
conditions, as well as recommending and providing only necessary
procedures to treat the dog’s medical condition. Kestenbaum alleges Dr.
Ford breached this duty by “recommending unnecessary and unwarranted
procedures unrelated to” the dog’s arthritis treatment and by failing to
provide medical treatment in a reasonable and prudent manner.

¶12 Given that Dr. Ford is a licensed veterinarian under A.R.S.
§ 32-2201(3), she is a licensed professional under § 12-2601(3). And because
Kestenbaum alleged claims against Dr. Ford for veterinary malpractice and
negligence, the superior court first had to decide whether expert testimony
was necessary to prove her standard of care or liability for the claim. See
A.R.S. § 12-2601(1). Although Kestenbaum suggests his dog may have been
injured by simple negligence, which would not require an expert opinion,
he does not argue the court abused its discretion in implicitly concluding

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that expert testimony will be required to prove the claims alleged against
Dr. Ford. See Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 128, ¶ 14 (App.
2008) (reviewing a superior court’s decision on whether expert testimony is
necessary for an abuse of discretion); Hunter Contracting Co., Inc. v. Superior
Ct. In & For Cnty. Of Maricopa, 190 Ariz. 318, 320–21 (App. 1997) (noting that
expert testimony is required to prove professional negligence when issues
are “strictly within the special and technical knowledge of the profession
and not within the knowledge of the average layman”).

¶13 Kestenbaum argues he should not have been required to
comply with § 12-2602 because it is impossible to comply with the statutory
requirement at this stage of the proceeding. That concern could have
formed the basis for a motion for a “good cause” extension of the time to
file the affidavit, but Kestenbaum elected not to bring such a motion.
Despite not raising that issue below, he contends the court should have
extended the compliance date until he could gather more information for
the affidavit. However, the court “has broad discretion in ruling on
disclosure and discovery matters, and we will not disturb its ruling absent
an abuse of discretion.” Link v. Pima Cnty., 193 Ariz. 336, 338, ¶ 3 (App.
1998) (citation omitted).

¶14 Under § 12-2602, if the claimant certifies that expert testimony
is necessary, “the claimant shall serve a preliminary expert opinion
affidavit with the initial disclosures that are required by [Arizona Rule of
Civil Procedure] 26.1.” A.R.S. § 12-2602(B). “The court may extend the time
for compliance with this section on application and good cause shown.”
A.R.S. § 12-2602(C). But if the claimant and the licensed professional
dispute whether expert testimony is necessary, the court then considers
their arguments and, if the court decides expert testimony is necessary, sets
a date for compliance with this section. A.R.S. § 12-2602(D), (E). If the
claimant fails to file and serve a preliminary expert opinion affidavit in
accordance with the court’s order, the court must dismiss the claim. A.R.S.
§ 12-2602(F).

¶15 The court properly followed § 12-2602(E) and set a 60-day
deadline for Kestenbaum’s compliance. Because Kestenbaum did not
request a “good cause” extension, he has waived any argument that he
needed additional time to comply with § 12-2602. See BMO Harris Bank N.A.
v. Espiau, 251 Ariz. 588, 594, ¶ 26 (App. 2021) (holding that when an
argument is not raised below to allow the superior court to address the
issue on its merits, “it is waived on appeal”); see also Bertleson v. Sacks
Tierney, P.A., 204 Ariz. 124, 128, ¶ 14 (App. 2002) (reasoning that because
the claimants “never moved for an extension of time to complete discovery

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under A.R.S. § 12-2602(C)[,]” they “failed to avail themselves of the statute’s
flexibility” and were “in no position to complain now about their need for
additional information”).

¶16 Waiver aside, it was within the superior court’s discretion to
set the deadline for compliance. See Link, 193 Ariz. at 338, ¶ 3. Although
Kestenbaum argues it is unfair to require a preliminary affidavit at this
stage of the litigation, he could have requested more time but did not do so.
In addition, because expert testimony was necessary to prove his claims,
Kestenbaum would have had to disclose any such witness and his or her
opinion when initial disclosures are due. Ariz. R. Civ. P. 26.1(d), (f). Given
that this information must be provided and supplemented under Arizona’s
disclosure rules, we are not persuaded by Kestenbaum’s assertion that
§ 12-2602’s affidavit requirement is unduly onerous simply because limited
information may be available at this stage of the proceeding and significant
hurdles might exist in hiring an expert to prepare the affidavit. Potential
difficulties aside, we cannot deviate from the legislature’s plain language
in mandating the filing of preliminary expert opinion affidavits in these
types of cases.

¶17 The purpose of § 12-2602 is to protect licensed professionals
from frivolous lawsuits and to ensure claimants “make individualized and
informed determinations when naming defendants.” Bertleson, 204 Ariz. at
128–29, ¶ 19. Thus, the legislature has mandated that the preliminary
expert opinion affidavit be filed in the early stages of litigation. See A.R.S.
§ 12-2602(B). And given that disclosures are typically required no later than
30 days after the filing of the first responsive pleading, Ariz. R. Civ. P.
26.1(f)(1), the superior court furthered the statute’s purpose by requiring
compliance within 60 days of its order staying the proceedings.

¶18 Additionally, because Kestenbaum has the dog’s medical
records and has asserted that Dr. Ford’s negligence was “so grossly
apparent that a layman would have no difficulty recognizing it[,]”
Kestenbaum has effectively admitted there was enough information to
obtain a preliminary expert opinion affidavit. Both Arizona Rule of Civil
Procedure 26.1(f)(2) and § 12-2602(G) would have allowed (and required)
him to supplement the affidavit with evidence he later obtained through
discovery. Kestenbaum has not shown the superior court erred in
dismissing his claim given his failure to file the required affidavit. See
Boswell v. Fintelmann, 242 Ariz. 52, 54, ¶ 5 (App. 2017) (reviewing de novo
the superior court’s dismissal for failure to serve a preliminary expert
opinion affidavit as a pleading failure).

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B. Constitutionality of A.R.S. § 12-2602

¶19 Kestenbaum argues § 12-2602 is unconstitutional as applied
because it impinges on his fundamental right of action to recover damages
for injuries, and it does not survive a strict scrutiny analysis. “We review
the constitutionality of statutes de novo.” State v. Arevalo, 249 Ariz. 370, 373,
¶ 9 (2020). “Because there is a strong presumption in favor of a statute’s
constitutionality, the challenging party bears the burden of proving its
unconstitutionality.” Id.; see State ex rel. Napolitano v. Gravano, 204 Ariz. 106,
110, ¶ 11 (App. 2002) (noting that the presumption of constitutionality and
the plaintiff’s burden are present in an “as applied” constitutional
challenge).

¶20 Under the Arizona Constitution, plaintiffs have a
fundamental right to recover damages for injuries. Ariz. Const. art. 18, § 6.
In Hunter, 190 Ariz. at 320, 324, we held that an earlier version of § 12-2602
infringed on this fundamental right and thus was subject to a strict scrutiny
analysis under Arizona’s equal protection clause. See Ariz. Const. art. 2,
§ 13. Relying on that case, Kestenbaum argues § 12-2602 infringes on his
fundamental right of action for two reasons: (1) it significantly increases his
burden “to require an expert opinion to be readied and presented by the
time of the complaint” when tort complaints generally only require a “short
and plain statement of the claim showing the pleader is entitled to relief[,]”;
and (2) it mandates the dismissal of colorable claims. See Hunter, 190 Ariz.
at 321–23.

¶21 However, as this court noted in Bertleson, § 12-2602 has since
been amended to resolve these issues. 204 Ariz. at 126, ¶ 8. First, under the
current version, filing of the affidavit is now required at the time of initial
disclosures rather than at the time of the complaint. A.R.S. § 12-2602(B).
Further, the court may extend a claimant’s time for compliance by
stipulation of the parties or on a showing of good cause, which Kestenbaum
declined to attempt. A.R.S. § 12-2602(C). Therefore, “the legislature has
cured the stated problem of requiring the service of an affidavit with the
complaint and has provided the [superior] court with ample flexibility to
modify the timing of its disclosure.” Bertleson, 204 Ariz. at 128, ¶ 13.
Second, the current version does not mandate dismissal. Id. at ¶ 15. It
“permits dismissal only (1) after the [superior] court determines that expert
testimony is required and the plaintiff failed to comply with an order to
provide such evidence, or (2) after the plaintiff has certified that expert
testimony is necessary and yet has failed to produce such evidence.” Id.;
A.R.S. § 12-2602(F).

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¶22 Dismissal under the current version of § 12-2602 “no more
violates the constitution than dismissal based upon a statute of limitations
or summary judgment[,]” and § 12-2602 does not infringe upon
Kestenbaum’s fundamental right to recover damages. See Bertleson, 204
Ariz. at 128, ¶ 16. Because § 12-2602 “does not implicate a fundamental
right or suspect class, we must uphold it if the Arizona Legislature had a
rational basis for enacting it.” Id. at ¶ 18. As we held in Bertleson, § 12-2602
is rationally related to a legitimate state interest because: (1) “the state has
a compelling interest in protecting licensed professionals from frivolous
lawsuits[,]” and (2) the statute requires claimants to make “individualized
and informed determinations when naming defendants.” 204 Ariz. at
128–29, ¶ 19 (citation omitted). Kestenbaum has not shown that § 12-2602
violates the equal protection clause.

¶23 Kestenbaum argues Bertleson is not controlling because it
“erroneously held that a rational basis test should apply.” We see no
indication that Bertleson was wrongly decided and therefore decline to
depart from its reasoning. See White v. Bateman, 89 Ariz. 110, 113 (1961)
(noting that appellate courts adhere to settled precedent “unless the reasons
of the prior decisions have ceased to exist or the prior decision was clearly
erroneous or manifestly wrong”). Kestenbaum further contends his case is
distinguishable from Bertleson on its facts; for example, the plaintiffs there
agreed that expert testimony was necessary and had received defendant’s
version of the facts. But Bertleson’s holding that a rational basis review
applies to § 12-2602 was not based on the unique facts of that case. See 204
Ariz. at 127–28, ¶¶ 8–18. Thus, Kestenbaum’s claim that § 12-2602 is
unconstitutional is also subject to rational basis review. We agree with
Bertleson that the statute has a rational basis and is constitutional as applied
to Kestenbaum’s claims against Dr. Ford. See 204 Ariz. at 129, ¶ 19.

¶24 Kestenbaum also argues Bertleson did not consider the burden
imposed on plaintiffs as noted by Hunter, and Eastin v. Broomfield, 116 Ariz.
576, 586 (1977). But in Hunter, the burden placed on plaintiffs came from
the prior version of § 12-2602, which has since been revised to resolve that
issue. 190 Ariz. at 321–22, 324. Kestenbaum also relies on Eastin, asserting
the cost of the preliminary expert opinion affidavit places a burden on his
and other plaintiffs’ access to the courts and therefore violates Arizona’s
privileges and immunities clause. See Eastin, 116 Ariz. at 586. That clause
prohibits laws “granting to any citizen, class of citizens, or corporation
other than municipal, privileges or immunities which, upon the same
terms, shall not equally belong to all citizens or corporations.” Ariz. Const.
art 2, § 13. If a statute does not violate a fundamental right or create an
invidious classification, “a statute impinging on the equal privileges and

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immunities of a class of Arizona residents will be upheld if it has a rational
basis.” Tahtinen v. Superior Ct., Pinal Cnty., 130 Ariz. 513, 515 (1981).

¶25 In Eastin, our supreme court held that requiring litigants to
post a $2,000 bond in medical malpractice cases violated the privileges and
immunities clause because of the increased burden it placed on claimants’
access to the courts. 116 Ariz. at 586. Likewise, Kestenbaum asserts the cost
of finding a preliminary expert opinion affidavit is prohibitively high. In
Tahtinen, however, the supreme court explained that the statute addressed
in Eastin lacked a rational basis because even though its purpose was to
deter frivolous litigation, the bond provision deterred litigation based on
the financial status of litigants. Tahtinen, 130 Ariz. at 515. This defect was
“so great” it could not be said that the statute “rationally furthered a
legitimate legislative purpose.” Id. As this court previously determined,
§ 12-2602 has “a legitimate state interest to which the statute is rationally
related.” See Bertleson, 204 Ariz. at 129, ¶ 19. We acknowledge Kestenbaum
had difficulty finding a suitable and affordable expert, particularly
considering his lack of knowledge regarding the circumstances causing his
dog’s injury, and that the expected damages for such a case may be limited.
See Kaufman v. Langhofer, 223 Ariz. 249, 256, ¶ 31 (App. 2009). But that
difficulty does not mean the statute lacks a rational basis for requiring a
preliminary expert opinion affidavit when expert testimony will ultimately
be required to prove the malpractice and negligence claims against a
licensed professional at trial.

C. Declaratory Judgment

¶26 Kestenbaum argues the superior court erred in denying his
request for declaratory judgment as to whether §§ 12-2603 and 12-2604
apply to veterinary malpractice claims. To grant a declaratory judgment,
there must be a justiciable issue between the parties. Thomas v. City of
Phoenix, 171 Ariz. 69, 74 (App. 1991). “Courts will not hear cases that seek
declaratory judgments that are advisory or answer moot or abstract
questions[,]” and declaratory relief should be based on existing facts rather
those that may arise later. Id. at 74.

¶27 According to Kestenbaum, to decide whether § 12-2602
applies, the superior court had to decide whether § 12-2603 applied, as the
statutes are mutually exclusive. See A.R.S. §§ 12-2602, -2603. Defendants,
however, moved to compel compliance with § 12-2602, which applies here
because Defendants include a licensed professional. The court resolved the
question before it, and properly avoided answering the ”abstract question”

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of whether § 12-2603 also applied, given that Defendants only requested
relief under § 12-2602.

¶28 We also reject Kestenbaum’s contention that Defendants
“cannot moot” the issue of whether §§ 12-2603 and 12-2604 apply by not
requesting his compliance with those statutes, as they could later choose to
seek compliance. But we decline to address Kestenbaum’s request for
declaratory relief, which itself is moot. His argument is premised on facts
that may or may not arise in the future—Defendants seeking compliance
with these statutes at a later date. See Thomas, 171 Ariz. at 74. That is not
true of the issue before us, as Defendants in fact sought compliance with
§ 12-2602. “A question is moot when any action the court may take will
have no effect on the parties to the action.” Lord v. City of Tucson, 10 Ariz.
App. 54, 55 (App. 1969). Because § 12-2602 applies to this case and
Kestenbaum failed to produce a preliminary expert opinion affidavit as
required by the court, the answer to whether §§ 12-2603 and 12-2604 applies
will not change the order dismissing his claims.

¶29 We also disagree with Kestenbaum’s assertion that his issue
is capable of repetition yet evading review. See Thomas, 171 Ariz. at 74
(discussing this exception to the mootness doctrine). “Typically, that
exception is applicable when, because of time constraints, an issue that is
capable of recurring cannot be decided by the appellate court.” Cardoso v.
Soldo, 230 Ariz. 614, 617, ¶ 7 (App. 2012). If a veterinarian did seek to have
a plaintiff comply with §§ 12-2603 and 12-2604 in response to a malpractice
claim, no time constraints prevent an appellate court from reviewing a
superior court’s decision on the issue. The superior court did not err in
dismissing the action without granting Kestenbaum’s request for
declaratory relief.

CONCLUSION

¶30 We affirm the superior court’s order dismissing
Kestenbaum’s claim for failure to comply with § 12-2602.

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

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