Case: 19-10480       Document: 00515532459             Page: 1      Date Filed: 08/19/2020




            United States Court of Appeals
                 for the Fifth Circuit                                       United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                                                              August 19, 2020
                                   No. 19-10480                                Lyle W. Cayce
                                 Summary Calendar                                   Clerk


 Levi Wooderts, Jr.,

                                                                 Plaintiff—Appellant,

                                         versus

 United States of America,

                                                               Defendant—Appellee.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 4:18-CV-773


 Before King, Smith, and Wilson, Circuit Judges.
 Per Curiam:*
        Levi Wooderts., Jr., federal prisoner #29639-077, proceeding pro se
 and in forma pauperis, filed a medical malpractice suit against the United
 States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671
 et seq. He alleged that the federal prison’s medical staff failed to provide


        *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
 ion should not be published and is not precedent except under the limited circumstances
 set forth in 5th Circuit Rule 47.5.4.
Case: 19-10480      Document: 00515532459        Page: 2     Date Filed: 08/19/2020




                                  No. 19-10480


 treatment for his diagnosed low testosterone, which had caused him weight
 gain, depression, lethargy, sleep problems, and pain.
          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, the plaintiff in a medical malpractice action must prove (1) the
 physician’s duty to act according to an applicable standard of care, (2) a
 breach of the governing standard, (3) injury, and (4) causation. Quijano v.
 United States, 325 F.3d 564, 567 (5th Cir. 2003). Expert testimony is gener-
 ally required to prove the applicable standard of care, breach, and causation.
 Guile v. United States, 422 F.3d 221, 225 (5th Cir.2005); Quijano, 325 F.3d
 at 567. 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 Wooderts based
 on failure to designate an expert witness. We review a summary judgment
 de novo. Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir.
 2011).
          Contrary to his argument that expert testimony was unnecessary in
 light of his diagnosed low testosterone and the refusal of the Bureau of Pris-
 ons to authorize the treatment recommended after that diagnosis, Wooderts
 was required to present expert testimony to establish the applicable standard
 of care. Hood, 554 S.W.2d at 165−66. Although the United States did not
 present an expert, Wooderts had the burden of establishing, through expert
 testimony, the appropriate standard of care and that a breach of that standard
 caused injury. See Guile, 422 F.3d at 225; Quijano, 325 F.3d at 567. Wood-
 erts’s pro se status does not excuse him from meeting his burden of presenting
 specific evidence to support his claims. Outlie v. Luke & Assocs., Inc.,
 840 F.3d 212, 217 (5th Cir. 2016); Duffie v. United States, 600 F.3d 362, 371




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                                  No. 19-10480


 (5th Cir. 2010). Despite Wooderts’s contention that the district court should
 not have considered his refusals of treatment for other ailments, the court
 could consider, as support for the conclusion that expert testimony was
 needed, the suggestions by medical professionals that there were other causes
 for the symptoms that Wooderts attributed to his low testosterone. See Guile,
 422 F.3d at 225.
        Wooderts has not established that the district court erred in granting
 summary judgment, given the absence of expert evidence supporting his
 claims for relief. See Nickell, 636 F.3d at 754; Quijano, 325 F.3d at 567. The
 summary judgment is AFFIRMED. Wooderts’s motion for appointment
 of counsel on appeal is DENIED.




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