                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS                        December 23, 2005

                              FOR THE FIFTH CIRCUIT                        Charles R. Fulbruge III
                                                                                   Clerk



                                     No. 05-60303
                                   Summary Calendar


      RICHARD K. ROTH,

                                                  Plaintiff-Appellant,

                                         versus

      MALLAN G. MORGAN, MD;
      KEITH P. SMITH, MD,

                                                  Defendants-Appellees.


               Appeal from the United States District Court for
                 the Southern District of Mississippi, Jackson
                          (USDC No. 5:01-cv-196)
      _________________________________________________________




Before REAVLEY, JOLLY, and OWEN, Circuit Judges.

PER CURIAM:*1




      *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not be published and is not precedent except under the limited circumstances set forth in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.
       We affirm the judgment of the district court for the following reasons:

1.     The district court made clear that a response to Defendants’ motion in limine to

       exclude Dr. Byrd’s deposition was due by June 9, 2004. Plaintiff failed to file a

       response to Defendants’ Motion in limine with the clerk of court. Counsel’s letter

       requesting a conference was not sufficient. “No abuse of discretion is

demonstrated when the district court is shown no valid reason for [the plaintiff’s] failure

to respond to the subject motion.” Edward H. Bohlin Co, Inc. v. Banning         Co., Inc., 6

F.3d 350, 356 (5th Cir. 1993).

2.     “To present a prima facie case of medical malpractice, a plaintiff, (1) after

       establishing the doctor-patient relationship and its attendant duty, is generally

       required to present expert testimony (2) identifying and articulating the requisite

       standard of care and (3) establishing that the defendant physician failed to

       conform to the standard of care. McCaffrey v. Puckett, 784 So. 2d 197, 206

       (Miss. 2001). The two letters written by Dr. Alan Brown were unsworn and

       unaccompanied by affidavits. Because of these critical defects, Plaintiff did not

       present credible summary judgment evidence to raise an issue of fact by way of

       rebutting the medical expert witness affidavits presented by Defendant Smith.

       Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988) (“It is

       a settled rule in this circuit that an unsworn affidavit is incompetent to raise a fact

       issue precluding summary judgment.); Martin v. John W. Stone Oil Distributor,

       Inc., 819 F.2d 547, 549 (5th Cir. 1987) (“Unsworn documents are also not

                                           Page 2
      appropriate for consideration.”).

3.    When Dr. Brown withdrew as a witness before trial, Plaintiff was left without a

      medical expert witness to testify against Defendant Morgan. Without a medical

      expert witness, Plaintiff’s medical malpractice claim fails. Shirley v. McCraney,

      241 F. Supp. 2d 677, 682 (S.D. Miss. 2001) (“Mississippi case law demands

      that in a medical malpractice action, negligence cannot be established without

      medical testimony that the defendant failed to use ordinary skill and care.”).

Affirmed.




                                          Page 3
