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Bertleson v. Tierney12/26/2002
AFFIRMED
In this appeal, we determine the constitutionality of Arizona Revised Statutes (A.R.S.) § 12-2602 (2000) under the equal protection and separation of powers clauses of the Arizona Constitution. Section 12-2602 outlines the circumstances that require plaintiffs to disclose preliminary expert opinion evidence for claims against licensed professionals. We hold that A.R.S. § 12-2602 does not violate either equal protection or separation of powers. The trial court's rulings are affirmed in all respects.
BACKGROUND
Arlen M. Bertleson and Astrida S. Bertleson have lived near the TRW Vehicle Safety Systems, Inc. (TRW) plant in Mesa, Arizona since it opened in the early 1990s. By 1992, fires and explosions had begun to occur at that plant. According to the Bertlesons, contaminants released from these explosions and other emissions have harmed them.
In January 1998, the Bertlesons retained Sacks Tierney, P.A. (Sacks Tierney) to: (1) write a demand letter to TRW for compensation for damages to the Bertlesons, their real property, and their personal property, and (2) negotiate a possible settlement with TRW. Sacks Tierney attorney Andrew Lane de Mars (de Mars) delivered a demand letter to TRW in April 1998 and TRW's counsel responded. Sacks Tierney was involved in discussions with TRW about a possible resolution when the Bertlesons terminated the representation by Sacks Tierney. The Bertlesons later filed a complaint against Sacks Tierney, de Mars, and de Mars' wife (collectively, defendants) alleging negligence and breach of contract. The Bertlesons subsequently dismissed the contract claim.
The Bertlesons failed to serve an initial certificate, as required by A.R.S. § 12-2602(A), stating whether expert testimony was necessary to prove their negligence claim against Sacks Tierney. When the parties exchanged Rule 26.1 disclosure statements, the Bertlesons failed to disclose an expert opinion concerning the standard of care or liability. Accordingly, defendants moved to compel disclosure of the Bertlesons' preliminary expert opinion. After the deadline to respond had passed, the Bertlesons moved for a declaration that A.R.S. § 12-2602 was unconstitutional.
The trial court denied the Bertlesons' motion to find the statute unconstitutional and granted defendants' motion to compel the necessary expert opinions. No expert opinion was produced and the Bertlesons' complaint was dismissed. This appeal followed.
DISCUSSION
A. Equal Protection
This court reviews de novo challenges to a statute's constitutionality. 3613 Ltd. v. Dep't of Liquor Licenses & Control, 194 Ariz. 178, 182, 17, 978 P.2d 1282, 1286 (App. 1999). Our analysis begins with the presumption that A.R.S. § 12-2602 is constitutional. Chevron Chem. Co. v. Superior Ct., 131 Ariz. 431, 438, 641 P.2d 1275, 1282 (1982). We will not declare a statute unconstitutional unless we are "satisfied beyond a reasonable doubt" that it conflicts with the federal or state constitutions. Id. Moreover, we must consider "whether a limiting construction could be placed on the statute to cure constitutional infirmity." State v. Steiger, 162 Ariz. 138, 145, 781 P.2d 616, 623 (App. 1989).
The Equal Protection Clause of the Arizona Constitution provides:
No law shall be enacted 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.
Any statute that "is aimed at limiting a fundamental right" or "discriminates among individuals based
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