                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1340
                                   ___________

Eugene H. Mathison,                     *
                                        *
                   Appellant,           * Appeal from the United States
                                        * District Court for the District
      v.                                * of Minnesota.
                                        *
United States of America,               *      [UNPUBLISHED]
                                        *
                   Appellee.            *
                                   ___________

                             Submitted: July 11, 2002

                                  Filed: August 5, 2002
                                   ___________

Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.
                            ___________

PER CURIAM.

       Inmate Eugene H. Mathison broke a tooth on a bone fragment in a turkey leg
served at a federal prison cafeteria in Minnesota. Mathison’s dental treatment did not
go smoothly. After prison dentists crowned Mathison’s broken tooth, Mathison
developed an abscess. The tooth was extracted, but part of the tooth remained in the
socket. After the rest of the broken tooth was removed, Mathison required no further
related dental treatment.

     Mathison brought this action against the United States under the Federal Tort
Claims Act (FTCA) alleging (1) prison officials negligently failed to warn him there
could be bone fragments in the turkey, and (2) prison dentists provided negligent
dental care in treating him. Both sides filed motions for summary judgment. The
district court* granted the Government’s motion and denied Mathison’s motion.
Mathison appeals pro se, and we affirm.

       Because Mathison brought his action under the FTCA, his claims are subject
to the substantive law of Minnesota, the state in which his claims arose. 28 U.S.C.
§ 1346(b). The district court dismissed Mathison’s dental malpractice claim because
Mathison did not comply with Minn. Stat. § 145.682. The statute applies to actions
like Mathison’s “alleging malpractice, error, mistake, or failure to cure, whether
based on contract or tort, against a health care provider.” Id. subd. 2. Section
145.682 requires the plaintiff to serve the defendant with an affidavit identifying an
expert witness who will provide testimony supporting the plaintiff’s claim, and
explaining the “substance of the facts and opinions to which the expert is expected
to testify, and a summary of the grounds for each opinion.” Id. subd. 4(a). Under
Minnesota case law, the affidavit cannot be conclusory or abstract; it must set forth
“specific details concerning [the] experts’ expected testimony, including the
applicable standard of care, the acts or omissions that plaintiff[] allege[s] violated the
standard of care and an outline of the chain of causation that allegedly resulted in
damage to [the plaintiff].” Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188,
193 (Minn. 1990); see also Anderson v. Rengachary, 608 N.W.2d 843, 848 (Minn.
2000); Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 577-78 (Minn. 1999);
Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555-56 (Minn. 1996).

       Although Mathison provided an affidavit by his former dentist, the district
court held the dentist’s declaration does not meet the statutory requirements as


      *
       The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, adopting the Report & Recommendation of the Honorable
Arthur J. Boylan, United States Magistrate Judge for the District of Minnesota.

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interpreted by the Minnesota Supreme Court. The district court concluded that like
the deficient affidavit in Lindberg, 599 N.W.2d at 578, Mathison’s expert affidavit
is inadequate because it does not specifically discuss what the prison dentists did, or
failed to do, that allegedly constitutes malpractice, and does not adequately explain
how any allegedly negligent act or omission by either of those dentists was the direct
cause of any injury sustained by Mathison. Although Mathison did not seek an
extension of the deadline for complying with the expert affidavit requirement, the
district court concluded Mathison could not meet the excusable neglect standard
necessary for an extension. See Bellecourt v. United States, 784 F. Supp. 623, 636-37
(D. Minn. 1992), aff’d, 994 F.2d 427 (8th Cir. 1993), cert. denied, 510 U.S. 1109
(1994). The district court thus dismissed Mathison’s dental malpractice claims with
prejudice as required by Minn. Stat. § 145.682, subd. 6.

       On appeal, Mathison contends the affidavit requirement does not apply to him
because the facts as he describes them in his complaint sufficiently state a prima facie
case of malpractice. Failure to comply with the expert affidavit requirement can be
excused if the defendant’s liability can be established without expert testimony.
Bellecourt, 784 F. Supp. at 637. Expert testimony is usually needed to prove a prima
facie case of medical malpractice, but is not necessary when the assessment of
negligence does not require any specialized medial knowledge or evaluation of
medical judgment. Id. Minnesota courts have found expert testimony unnecessary
in cases where medical clips were left in a body after surgery, a surgeon failed to
remove a sponge after surgery, a dentist let a grinding disc slip and cut a patient’s
tongue, and a chemical burn resulted from improper application of a chemical. Id.
We agree with the district court that Mathison’s case “is not one in which a lay juror
could properly find [Mathison] was a victim of dental malpractice without the
introduction of expert dental testimony. The standard of care for treatment of a
fractured tooth and/or abscess, and whether the dental treatment [Mathison] received
was adequate or inadequate, are matters that could not properly be decided by a lay


                                          -3-
juror without the testimony of dental experts.” (Magistrate Judge’s Report &
Recommendation, at 10 n.4.)

       As for Mathison’s failure-to-warn claim, the district court concluded Mathison
could not show the lack of a warning caused his injury. Mathison did not allege he
would have acted differently when eating the turkey if he had received a clear
warning. Indeed, in his complaint Mathison admitted that he knew of the potential
danger of bone fragments in turkey based on past experience, and that he was injured
even though he was mindful of the potential danger and used appropriate care when
eating the turkey. Mathison questions the district court’s reasoning, but the reasoning
is correct. To prove a negligence claim against a doctor under Minnesota law, a
plaintiff must prove, among other things, that the defendant’s departure from the
applicable standard of care directly caused the plaintiff’s injury. Bellecourt, 784 F.
Supp. at 638. To prove causation in a failure-to-warn case, the plaintiff must show
he would have acted differently if he had been properly warned of the danger at issue.
Holowaty v. McDonald’s Corp., 10 F. Supp. 2d 1078, 1085 (D. Minn. 1998). Here,
Mathison’s own complaint shows the lack of warning did not cause his injury–the
injury was simply unavoidable.

       Last, Mathison asserts the district court should have appointed a lawyer to
represent him. The district court reviewed the relevant factors, and did not abuse its
discretion in refusing to appoint counsel. Swope v. Cameron, 73 F.3d 850, 851-52
(8th Cir. 1996).

      Having considered and rejected all of Mathison’s arguments, including those
not specifically addressed, we affirm the district court.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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