Levi Wooderts, Jr. v. United States

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ion should not be published and is not precedent except under the limited circumstances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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Case: 19-10480 Document: 00515532459 Page: 3 Date Filed: 08/19/2020
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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