     Case: 19-30526      Document: 00515210315         Page: 1    Date Filed: 11/22/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals

                                    No. 19-30526
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                    November 22, 2019
                                                                         Lyle W. Cayce
JAY HOLT FULMER; CHRISTINA MACDONALD,                                         Clerk


                                                 Plaintiffs-Appellants
v.

UNITED STATES OF AMERICA,

                                                 Defendant-Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:17-CV-15943


Before WIENER, HAYNES, and COSTA, Circuit Judges.
WIENER, Circuit Judge. ∗
       Plaintiffs-Appellants Jay Holt Fulmer and Christina MacDonald
(“Plaintiffs”) are, respectively, the surviving spouse and daughter of the late
Catherine Fulmer (“Decedent”), who died at her home on March 19, 2015. Her
autopsy listed her cause of death as “invasive, poorly to moderately
differentiated ductal carcinoma of the right breast with metastases to right




       ∗
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-30526     Document: 00515210315      Page: 2    Date Filed: 11/22/2019



                                  No. 19-30526
axillary lymph nodes, left breast, periaortic lymph nodes, neck lymph nodes,
mesentery, liver and right lung.”

      Plaintiffs asserted federal jurisdiction under the Federal Tort Claims Act
(“FTCA”) to file their Louisiana tort suit in federal court.     In it they alleged
that they had suffered damages caused by the negligent acts and omissions of
a medical doctor and a nurse practitioner. They contended that those persons
had failed to prevent, diagnose, and treat Decedent’s breast cancer.

      Plaintiffs sought to introduce Maxwell L. Axler, M.D. as their expert
witness. The Government filed an opposition to Dr. Axler, questioning his
qualifications to testify as an expert under the particular circumstances of this
case. The Government also filed a Motion for Summary Judgment, seeking
dismissal of this action. As noted by the district court, “[t]he Government’s
sole ground for asserting summary judgment is that, without an expert,
Plaintiffs cannot sustain their burden of proof.” In its detailed and exhaustive,
16-page opinion (“ORDER & REASONS”) of May 6, 2019, the district court
patiently explained why it was (1) granting the Government’s motion to
exclude Dr. Axler and (2) dismissing all of Plaintiffs’ claims with prejudice.

      We have now reviewed the appellate record of this action, including the
briefs of the parties, the relevant evidence in the record, and the district court’s
comprehensive opinion. As a result, we are satisfied that the district court
properly excluded Dr. Axler as an expert witness and correctly granted the
Government’s Motion for Summary Judgment. We therefore affirm the district
court’s JUDGMENT of even date with its ORDER & REASONS.

AFFIRMED.




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