     Case: 14-50122      Document: 00512974809         Page: 1    Date Filed: 03/19/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50122
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 19, 2015
GRAEME MATTHEW PIERSON,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

UNITED STATES OF AMERICA,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:12-CV-1143


Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Graeme Matthew Pierson, federal prisoner # 09073-030, filed a medical
malpractice and gross negligence claim against the Government under the
Federal Tort Claims Act (FTCA), alleging that the federal prison’s medical staff
failed to provide him adequate care, evaluation, and treatment in relation to
three strokes he allegedly suffered during his imprisonment. The Government
moved for summary judgment, which the district court granted. Pierson then


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50122

sought leave to file an amended medical expert opinion. The district court
construed the motion as seeking reconsideration and denied relief. Pierson
now appeals the grant of summary judgment and the denial of his motion for
reconsideration. We review de novo the district court’s grant of summary
judgment. Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir.
2011). We construe Pierson’s motion for reconsideration as a Federal Rule of
Civil Procedure 59(e) motion to alter or amend judgment and review the denial
of that motion for an abuse of discretion. Demahy v. Schwarz Pharma, Inc.,
702 F.3d 177, 181-82 (5th Cir. 2012).
      State law controls the liability for medical malpractice under the FTCA.
Ayers v. United States, 750 F.2d 449, 452 n.1 (5th Cir. 1985). Under Texas law,
in a medical malpractice action, the plaintiff must prove (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. Quijano v. United States, 325
F.3d 564, 567 (5th Cir. 2003). Expert testimony is generally required to prove
the applicable standard of care. Id. An expert is not necessary where “the
mode or form of treatment is a matter of common knowledge or is within the
experience of the layman.” Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex.
1977).
      The district court granted summary judgment against Pierson based on
his failure to produce admissible expert witness testimony, as neither letter of
his purported medical experts was in affidavit form or made under penalty of
perjury. Pierson, however, fails to address this determination and thus has
abandoned any challenge to that ruling. See Yohey v. Collins, 985 F.2d 222,
225 (5th Cir. 1993). Moreover, contrary to his argument that the diagnosis and
treatment for a possible stroke is common knowledge, Pierson was required to
present expert testimony to establish the applicable standard of care. See



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                                 No. 14-50122

Hood, 554 S.W.2d at 165-66. Additionally, to the extent Pierson contends the
Bureau of Prisons violated its own policy regarding observation rooms, expert
testimony was still required because a health care facility’s internal policies
and procedures do not alone determine the governing standard of care. See
Quijano, 325 F.3d at 568; Mills v. Angel, 995 S.W.2d 262, 268 (Tex. App. 1999).
As it is uncontested that Pierson did not produce admissible expert testimony,
summary judgment was appropriate. See Quijano, 325 F.3d at 567.
      Further, the district court did not abuse its discretion in denying
Pierson’s Rule 59(e) motion because Pierson relies on evidence plainly
available to him before summary judgment, see Templet v. HydroChem, Inc.,
367 F.3d 473, 477 (5th Cir. 2004), and his pro se status does not excuse his
purported lack of knowledge concerning the necessary steps in a summary
judgment proceeding, see Martin v. Harrison Cnty. Jail, 975 F.2d 192, 193 (5th
Cir. 1992). In addition, the letter attached to the Rule 59(e) motion failed to
explain with specificity the applicable standard of care, and it did not identify
how any specific injury sustained by Pierson would have been prevented or
lessened had he received appropriate care sooner.          Thus, the report was
insufficient to create a genuine issue of fact on matters for which expert
testimony was required in this case. See Ellis v. United States, 673 F.3d 367,
373 (5th Cir. 2012); Quijano, 325 F.3d at 567.
      The judgment of the district court is AFFIRMED.




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