United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 23, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-60303
Summary Calendar
RICHARD K. ROTH,
Plaintiff-Appellant,
versus
MALLAN G. MORGAN, MD;
KEITH P. SMITH, MD,
Defendants-Appellees.
Appeal from the United States District Court for
the Southern District of Mississippi, Jackson
(USDC No. 5:01-cv-196)
_________________________________________________________
Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*1
*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not be published and is not precedent except under the limited circumstances set forth in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.
We affirm the judgment of the district court for the following reasons:
1. The district court made clear that a response to Defendants’ motion in limine to
exclude Dr. Byrd’s deposition was due by June 9, 2004. Plaintiff failed to file a
response to Defendants’ Motion in limine with the clerk of court. Counsel’s letter
requesting a conference was not sufficient. “No abuse of discretion is
demonstrated when the district court is shown no valid reason for [the plaintiff’s] failure
to respond to the subject motion.” Edward H. Bohlin Co, Inc. v. Banning Co., Inc., 6
F.3d 350, 356 (5th Cir. 1993).
2. “To present a prima facie case of medical malpractice, a plaintiff, (1) after
establishing the doctor-patient relationship and its attendant duty, is generally
required to present expert testimony (2) identifying and articulating the requisite
standard of care and (3) establishing that the defendant physician failed to
conform to the standard of care. McCaffrey v. Puckett, 784 So. 2d 197, 206
(Miss. 2001). The two letters written by Dr. Alan Brown were unsworn and
unaccompanied by affidavits. Because of these critical defects, Plaintiff did not
present credible summary judgment evidence to raise an issue of fact by way of
rebutting the medical expert witness affidavits presented by Defendant Smith.
Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988) (“It is
a settled rule in this circuit that an unsworn affidavit is incompetent to raise a fact
issue precluding summary judgment.); Martin v. John W. Stone Oil Distributor,
Inc., 819 F.2d 547, 549 (5th Cir. 1987) (“Unsworn documents are also not
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appropriate for consideration.”).
3. When Dr. Brown withdrew as a witness before trial, Plaintiff was left without a
medical expert witness to testify against Defendant Morgan. Without a medical
expert witness, Plaintiff’s medical malpractice claim fails. Shirley v. McCraney,
241 F. Supp. 2d 677, 682 (S.D. Miss. 2001) (“Mississippi case law demands
that in a medical malpractice action, negligence cannot be established without
medical testimony that the defendant failed to use ordinary skill and care.”).
Affirmed.
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