                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 27 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

STEVE TRUJILLO, Jr.,                            No.    18-15680

                Plaintiff-Appellant,            D.C. No. 3:16-cv-08205-DLR

 v.
                                                MEMORANDUM*
UNITED STATES OF AMERICA,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Douglas L. Rayes, District Judge, Presiding

                     Argued and Submitted November 6, 2019
                              Pasadena, California

Before: MURGUIA and HURWITZ, Circuit Judges, and GUIROLA,** District
Judge.

      Steve R. Trujillo, a member of the Navajo Nation, appeals the district court’s

grant of summary judgment in favor of the United States in his medical

malpractice claim under the Federal Tort Claims Act (“FTCA”). Trujillo alleges



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Louis Guirola, Jr., United States District Judge for the
Southern District of Mississippi, sitting by designation.
that a physician’s assistant (“PA”) at the Chinle Comprehensive HealthCare

Facility (“CCHCF”) in Chinle, Arizona, breached the applicable standard of care

when he removed Trujillo’s entire toenail, causing an infection that led to the

amputation of more than half of Trujillo’s right foot. The district court excluded

Trujillo’s only medical experts—an infectious diseases specialist and a podiatrist—

because they are not qualified to testify as to the standard of care applicable to a

PA under Arizona Revised Statutes (“A.R.S.”) Section 12-2604. The district court

also granted the United States summary judgment because Trujillo did not present

medical expert testimony from a licensed PA (or a PA instructor) qualified to opine

on the applicable standard. We have jurisdiction over Trujillo’s appeal under 28

U.S.C. § 1291. We affirm.

   1. The district court did not err in identifying Section 12-2604, nor did it abuse

its discretion in applying this statute to exclude Trujillo’s standard-of-care expert

reports. See City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1065 (9th Cir.

2017) (“[T]he first step of our abuse of discretion test is to determine de novo

whether the trial court identified the correct legal rule to apply to the relief

requested. [T]he second step of our abuse of discretion test is to determine

whether the trial court’s application of the correct legal standard was (1) illogical,

(2) implausible, or (3) without support in inferences that may be drawn from the

facts in the record.” (citations omitted)). Under Arizona law, medical-malpractice


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experts testifying as to the standard of care must devote a majority of their

professional time to either “[t]he active clinical practice of the same health

profession as the defendant,” or “[t]he instruction of students . . . in the same

health profession as the defendant,” or both. ARIZ. REV. STAT. ANN. § 12–

2604(A)(2) (2019) (emphases added). This clinical practice or instruction must

take place “[d]uring the year immediately preceding the occurrence giving rise to

the lawsuit.” Id. Physicians, podiatrists, and PAs are members of different health

professions in Arizona. See id. §§ 32-1401 to 32-1407 (medical physicians), 32-

801 to 32-871 (podiatrists), 32-2501 to 32-2558 (PAs). Accordingly, Trujillo’s

experts were not qualified to testify as to the standard of care applicable to PAs.

See St. George v. Plimpton, 384 P.3d 1243, 1248 (Ariz. Ct. App. 2016) (holding

that a board-certified obstetrician/gynecologist is not qualified to opine on the

standard of care applicable to a licensed registered nurse); see also Rasor v. Nw.

Hosp., LLC, 403 P.3d 572, 578 (Ariz. 2017) (holding that a nurse specializing in

wound care is not qualified to opine on the standard of care applicable to intensive

care unit nurses); Baker v. Univ. Physicians Healthcare, 296 P.3d 42, 50 (Ariz.

2013) (holding that a medical doctor who specialized in internal medicine,

hematology, and oncology is not qualified to opine on the standard of care

applicable to a medical doctor specializing in pediatric hematology); Kuckuck v.

Burchfield, No. 1 CA-CV 07-0107, 2007 WL 5471707, at *3 (Ariz. Ct. App. Dec.


                                           3
24, 2007) (unpublished) (holding that an infectious disease specialist is not

qualified to opine on the standard of care applicable to an orthopedic surgeon).

   2. The district court did not err in granting the United States summary

judgment because, under Arizona law, Trujillo cannot establish his medical

malpractice claim without an expert witness qualified under Section 12-2604 to

opine on a PA’s standard of care. Rasor, 403 P.3d at 575 (“Unless malpractice is

grossly apparent, the standard of care must be established by expert medical

testimony.” (citing Siesinger v. Siebel, 203 P.3d 483, 492 (Ariz. 2009))).

   AFFIRMED.




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