Robert Garber v. United States , 709 F. App'x 485 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT GARBER, No. 17-55296
Plaintiff-Appellant, D.C. No. 2:15-cv-05867-CAS-JPR
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted January 16, 2018**
Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.
Robert Garber appeals pro se from the district court’s summary judgment in
his Federal Tort Claims Act (“FTCA”) action alleging dental malpractice. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Landreth v. United
States, 850 F.2d 532, 534 (9th Cir. 1988), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court properly granted summary judgment on Garber’s FTCA
claim because Garber failed to adduce expert testimony and therefore failed to
establish a genuine dispute of material fact as to the elements of his medical
malpractice claim. See Johnson v. Superior Court, 49 Cal. Rptr. 3d 52, 58 (Ct.
App. 2006) (setting forth elements of medical malpractice claim under California
law); Bushling v. Fremont Med. Ctr., 11 Cal. Rptr. 3d 653, 664 (Ct. App. 2004)
(“[W]here the conduct required of a medical professional is not within the common
knowledge of laymen, a plaintiff must present expert witness testimony to prove a
breach of the standard of care. Plaintiff also must show that defendants’ breach of
the standard of care was the cause, within a reasonable medical probability, of his
injury.” (citations omitted)); see also Hutchinson v. United States, 838 F.2d 390,
393 (9th Cir. 1988) (when applying California medical malpractice law under the
FTCA, “when the defendant supports his motion for summary judgment with the
declarations of experts, a plaintiff who has presented no expert evidence
concerning the required standard of care has failed to make a sufficient showing
that there are genuine factual issues for trial”).
AFFIRMED.
2 17-55296