David Russell v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:15-cv-00022-JPB-MJA. Copies to all parties and the district court/agency. [999960395]. Mailed to: David Russell. [16-6084]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6084

DAVID LEE RUSSELL,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.

Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.
John Preston Bailey,
District Judge. (2:15-cv-00022-JPB-MJA)

Submitted:

August 18, 2016

Decided:

November 2, 2016

Before AGEE, THACKER, and HARRIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

David Lee Russell, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
David Lee Russell, a federal inmate housed in West Virginia,
appeals the district court’s order dismissing without prejudice
his complaint brought pursuant to the Federal Tort Claims Act
(FTCA),

28

U.S.C.

§§ 1346(b)(1),

2671-2680

(2012).

Russell

alleged that two of the prison’s healthcare providers committed
malpractice in treating his elevated blood pressure.

The district

court concluded that Russell’s claim could not proceed because,
under West Virginia law, he required expert testimony to establish
the elements of the claim, W. Va. Code § 55-7B-3 (2016), and he
had not submitted a screening certificate of merit completed by an
appropriate expert, W. Va. Code § 55-7B-6 (2016).

We conclude

that the court’s failure to explain its decision regarding the
necessity of expert testimony in this case renders it difficult,
if not impossible, to engage in meaningful appellate review.

We

therefore vacate and remand for further proceedings.
We review a district court’s dismissal for failure to state
a claim de novo, “accept[ing] as true the factual allegations set
forth in the complaint.”

Kerr v. Marshall Univ. Bd. of Governors,

824 F.3d 62, 71 (4th Cir. 2016).

Although we are “obligat[ed] to

liberally construe a pro se complaint,” the factual allegations
must still “be enough to raise a right to relief above the
speculative

level.”

Id.

at

71-72

omitted).
2

(internal

quotation

marks

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“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

circumstances.”

extent

as

a

private

individual

under

like

Cibula v. United States, 664 F.3d 428, 429 (4th

Cir. 2012) (internal quotation marks omitted).

To determine

liability under the FTCA, courts apply “the law of the place where
the negligent act or omission occurred.”
internal quotation marks omitted).

Id. at 430 (brackets and

Here, the district court

appropriately applied West Virginia law.
Medical malpractice claims in West Virginia are governed by
the Medical Professional Liability Act.

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, failure to produce expert testimony “is not

fatal to a plaintiff’s prima facie showing of negligence” when
“lack of care or want 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.”

quotation marks omitted).

Id.

at

605-06

(internal

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.
Va. Code § 55-7B-7 (2016).
3

Id. at 605; see W.

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In concluding that Russell was required to proffer an expert
opinion before advancing his claim, the district court stated only
that, “[u]pon a review of the case file, this [c]ourt finds this
subject matter is such that requires expert testimony.”

Although

the standard of review is deferential, the court’s explanation
must still allow us to engage in meaningful appellate review.

We

are unable to discern which facts the court deemed significant in
concluding that Russell’s is not one of the rare cases that may be
submitted to a jury without the benefit of expert testimony.

See

Totten v. Adongay, 337 S.E.2d 2, 7 (W. Va. 1985) (describing
“common knowledge exception” as “rare”).
and remand for further proceedings. *

Accordingly, we vacate

The district court is free

to reconsider its decision or again conclude that expert testimony
is required.

But, in either scenario, the court must identify

specific reasons for its decision, drawing support from evidence
in the record.

*

Although the court may certainly reassess the propriety of
appointing counsel at a later time, we conclude that the court did
not abuse its discretion in denying Russell’s motions for
appointment of counsel. See Miller v. Simmons, 814 F.2d 962, 966
(4th Cir. 1987). Further, because we vacate and remand the court’s
order dismissing Russell’s FTCA claim, we decline to consider
Russell’s appeal of the order denying his Fed. R. Civ. P. 59(e)
motion for reconsideration.
4

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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.

VACATED AND REMANDED

5