     Case: 10-10599 Document: 00511408095 Page: 1 Date Filed: 03/11/2011




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                           March 11, 2011
                                     No. 10-10599                           Lyle W. Cayce
                                   Summary Calendar                              Clerk


KEITH A. WOODS,

                                                   Plaintiff-Appellant,
v.

UNITED STATES GOVERNMENT,

                                                   Defendant-Appellee.




                    Appeal from the United States District Court
                         for the Northern District of Texas
                                USDC 3:08-CV-1670


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Keith A. Woods (“Woods”) appeals the district court’s grant of summary
judgment in favor of the United States of America (“Government”) in his lawsuit
filed under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq.
Woods argues that the district court erred by deciding that Woods had to provide
expert testimony to properly demonstrate the existence of a genuine issue of




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                     No. 10-10599

material fact.1    We AFFIRM the district court because that court correctly
determined that expert testimony was necessary to establish Woods’s medical
malpractice claim.
       Woods sued the Government, alleging he received negligent care when a
doctor treated him at the Veteran Affairs Hospital (“VA”) in Dallas, Texas.
Before the district court, Woods established that a VA doctor had prescribed him
Zocor for high cholesterol.       Woods asserted that his doctor had access to
information showing that Woods suffered from type two diabetes and porphyria
cutanea, a liver disease. Woods alleged that Zocor had interacted with his pre-
existing conditions to cause hepatitis C, joint deterioration, and bleeding. Woods
also alleged that the doctor had failed to inform him about Zocor’s side effects
and had failed to monitor Woods after prescribing the drug.
       Woods moved for summary judgment. The Government responded and
moved for summary judgment in its favor, arguing that Woods’s claim failed as
a matter of law because Woods had not produced expert testimony and thus, he
could not establish the elements of a medical malpractice claim. The district
court agreed and granted summary judgment in favor of the Government.
       We review a summary judgment order de novo, applying the same
standard as the district court. United States v. Lawrence, 276 F.3d 193, 195
(5th Cir. 2001). “Summary judgment is proper when no issue of material fact
exists and the moving party is entitled to judgment as a matter of law. Questions
of fact are viewed in the light most favorable to the nonmovant and questions of
law are reviewed de novo.” Deas v. River West, L.P., 152 F.3d 471, 475 (5th Cir.
1998).


      1
         Woods attempts to raise fifteen separate issues on appeal. None, however, are
supported by the record or applicable authority. FED . R. APP . P. 28(a)(9)(A) (Appellant’s
arguments must contain “appellant's contentions and the reasons for them, with citations to
the authorities and parts of the record on which the appellant relies”); see also Dardar v.
Lafourche Realty Co., 985 F.2d 824, 831 (5th Cir. 1993).

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                                  No. 10-10599

      Under the FTCA, the Government is liable for the negligence of its
employees “in the same manner and to the same extent as a private individual
under like circumstances.” 28 U.S.C. § 2674. When determining negligence, a
federal court must look to the law of the state “where the act or omission
occurred.” 28 U.S.C. § 1346(b)(1). “Under Texas law, in a medical malpractice
action, the plaintiff bears the burden of proving (1) the physician’s duty to act
according to an applicable standard of care; (2) a breach of that standard of care;
(3) injury; and (4) causation.” Hannah v. United States, 523 F.3d 597, 601 (5th
Cir. 2008). “‘Unless the mode or form of treatment is a matter of common
knowledge or is within the experience of the layman, expert testimony will be
required to meet this burden of proof.’” Id. (quoting Hood v. Phillips, 554 S.W.2d
160, 165–66 (Tex. 1977)). An exception to the requirement for expert testimony
is where the “alleged malpractice is within the common knowledge of laymen.”
Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990). “Examples of this
exception include negligence in the use of mechanical instruments, operating on
the wrong portion of the body, or leaving surgical instruments or sponges within
the body.” Id.
      Woods argues that expert testimony is unnecessary because the evidence
an expert would provide is “common knowledge.” This court has likened the
“common knowledge” standard to “the experiences of a layman.” Hannah, 523
F.3d at 601. Woods, on the other hand, defines common knowledge as “widely
established as being true” or an “obvious fact.” Relying on this definition, Woods
concludes that Zocor’s possible side effects are common knowledge because Zocor
is advertized on television and in magazines. The medical reasoning behind
prescribing Zocor to patients with multiple underlying conditions requires
expertise.   Contrary to Woods’s assertion, it is not “a matter of common
knowledge or within the general experience of a layman.” Id. at 602. Also, mis-
prescribing Zocor is not similar to “operating on the wrong portion of the body,

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or leaving surgical instruments or sponges within the body.” Haddock, 793
S.W.2d at 951. Thus, the district court did not err by concluding that Woods had
to present expert testimony to establish a standard of care. Hannah, 523 F.3d
at 601. Woods’s failure to present testimony from an expert witness prevents
him from establishing a standard of care, a necessary element for his medical
malpractice claim. Therefore, Woods’s claim fails as a matter of law.
      Accordingly, the district court did not err by granting the Government’s
motion for summary judgment and we AFFIRM that court’s order.




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