                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 16-7385


CHRISTIAN PEARSON,

                     Plaintiff - Appellant,

              v.

ELIZABETH PANAGUITON; WILLIAM GOODE; JANICE JEON;
DIANASSOCIATES; MS. KELLY LUCAS; HIPOLITO D. MATOS; DONNA
SMITH; BART MASTERS; EDDIE ANDERSON; REBECCA GROVE; MR. M.
WEAVER, sued in their individual capacities,

                     Defendants - Appellees.



Appeal from the United States District Court for the Southern District of West Virginia, at
Bluefield. David A. Faber, Senior District Judge. (1:15-cv-07411)


Submitted: August 31, 2017                                     Decided: October 18, 2017


Before TRAXLER, AGEE, and THACKER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.


Christian Pearson, Appellant Pro Se. Lara Dee Pyne Crane, BUREAU OF PRISONS,
Beaver, West Virginia; Stephen Michael Horn, Assistant United States Attorney,
Charleston, West Virginia; William Paul Blackford, BLACKFORD & FLOHR, LLC,
Severna Park, Maryland; Dorwin J. Wolfe, Elkins, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Christian Pearson, a federal inmate, appeals the magistrate judge’s order denying

his motion for appointment of counsel and the district court’s order accepting the

recommendation of the magistrate judge and denying relief on his complaint filed pursuant

to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),

and the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346 (2012). Pearson also appeals

the district court’s order denying his motion to appoint counsel. We affirm in part, vacate

as to the district court’s dismissal of Pearson’s FTCA claim, and remand for further

proceedings.

       “The FTCA waives the federal Government’s sovereign immunity in tort actions,

making the United States liable in the same manner and to the same extent as a private

individual under like circumstances.” Cibula v. United States, 664 F.3d 428, 429 (4th Cir.

2012) (internal quotation marks omitted). When determining liability pursuant to the

FTCA, courts apply “the law of the place where the negligent act or omission occurred.”

Id. at 430. (brackets and internal quotation marks omitted). Here, the district court

appropriately applied West Virginia law.

       The Medical Professional Liability Act (MPLA), W. Va. Code § 55-7B-6 (2016),

governs medical malpractice claims in West Virginia. Banfi v. Am. Hosp. for Rehab., 529

S.E.2d 600, 605 (W. Va. 2000). Generally, “in medical malpractice cases[,] negligence or

want of professional skill can be proved only by expert witnesses.” Id. (internal quotation

marks omitted). However, expert testimony is not necessary when “lack of care or want


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of skill is so gross, so as to be apparent, or the alleged breach relates to noncomplex matters

of diagnosis and treatment within the understanding of lay jurors by resort to common

knowledge and experience.” Id. at 605-06 (internal quotation marks omitted). Whether an

expert is required is within the discretion of the court, and the court’s decision on the matter

is therefore reviewed for abuse of discretion. Id. at 605.

       In this case, the magistrate judge found that expert testimony was required in

Pearson’s case and that Pearson’s failure to obtain a certificate of merit under the MPLA

was fatal to his claim. Pearson objected, noting that he was not given an opportunity to

address the deficiency, and pointing out the difficulty involved in requiring an indigent

inmate to obtain certification from a medical expert. * The district court did not address

Pearson’s objection to this finding. The record, therefore, does not allow us to engage in

meaningful appellate review. Accordingly, we vacate the portion of the district court’s

order dismissing Pearson’s FTCA claim against the government and remand so that the

district court may consider Pearson’s objections in this regard.

       We have reviewed the record with respect to Pearson’s remaining claims and find

no reversible error. Accordingly, we affirm the denial of relief on Pearson’s other claims

for reasons stated by the magistrate judge and the district court. Pearson v. Panaguiton,

1:15-cv-07411 (S.D.W. Va. Sept. 27, 2016). We deny Pearson’s motion for injunctive



       *
        A certificate of merit is not required if expert testimony would not be necessary to
prove liability, but a claimant proceeding under this theory must file a statement in
accordance with W. Va. Code § 55-7B-6(c) (2016).


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relief pending appeal. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument would

not aid the decisional process.


                                                                   AFFIRMED IN PART,
                                                                    VACATED IN PART,
                                                                     AND REMANDED




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