IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 4, 2008
No. 06-11091 Charles R. Fulbruge III
Clerk
GERALD W. HANNAH,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA;
FEDERAL BUREAU OF PRISONS;
WARDEN LESTER FLEMING;
JOHN MILLS, D.O., Federal Medical Center Fort Worth;
DR. JOHN BARRY, Medical Officer;
GEORGE SALTZBERG,
Clinical Director, Federal Correctional Institute Sheridan,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
No. 06-11091
Before SMITH and PRADO, Circuit Judges, and LUDLUM, District Judge.*
JERRY E. SMITH, Circuit Judge:
Gerald Hannah, a federal pro se prisoner, appeals the summary-judgment
dismissal of his Federal Tort Claims Act (“FTCA”) suit. He alleges negligence
arising from the treatment he received while suffering from Methicillin-Resis-
tant Staphylococcus Aureas (“MRSA”), a sinus infection. We affirm.
I.
Hannah filed a civil rights suit, pursuant to 42 U.S.C. § 1983 and Bivens
v. Six Unknown Named Agents, 403 U.S. 388 (1971), against the United States
and a number of individuals involved in his medical treatment, alleging deliber-
ate indifference to his serious medical needs in violation of the Eighth Amend-
ment. The district court determined that he had failed to state a claim for delib-
erate indifference and dismissed his civil rights claim. To the extent he raised
an FTCA claim for medical malpractice, the court dismissed the claim without
prejudice for failure to exhaust administrative remedies.
Following exhaustion of administrative remedies, Hannah filed his current
pro se complaint under the FTCA, alleging medical malpractice and naming as
defendants the United States, the Federal Bureau of Prisons (“BOP”), his war-
den, and a number of doctors involved in treating his MRSA. The same district
court that dismissed his § 1983 claim entered an order dismissing the FTCA
claims against the warden and doctors pursuant to 28 U.S.C. §§ 1915A and
1915(e)(2)(B). The court also dismissed the claims against the BOP as an im-
proper party to an FTCA suit and allowed only the FTCA claims against the
United States to proceed. The court issued a scheduling order that set a dead-
line for Hannah to name his expert witnesses.
*
District Judge of the Western District of Texas, sitting by designation.
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No. 06-11091
After the deadline had passed, Hannah filed a motion for the appointment
of an expert, asserting that he was a pauper. The district court denied the re-
quest. The United States moved for summary judgment, asserting that it was
entitled to judgment as a matter of law because Hannah could not prove the nec-
essary elements of his claim without expert testimony.
The summary judgment evidence showed that Hannah was evaluated and
treated regularly by medical personnel, including specialists. The treatments
involved rounds of antibiotics and sinus surgeries. The court concluded that
Hannah was not entitled to a court-appointed expert merely to help him prove
his claim; that Texas state law provided the standard of care; and that under
Texas law, without proof from an expert, Hannah could not create a material
issue of fact as to whether his treatment fell below the necessary standard of
care. Hannah appeals the summary judgment and the refusal to appoint an
expert.1
II.
Hannah argues that the district court should have appointed an expert
witness for him under Federal Rule of Evidence 706. We review the denial of
such a motion for abuse of discretion. See Fugitt v. Jones, 549 F.2d 1001, 1006
1
Hannah has waived a number of arguments on appeal. He failed to brief
his argument, raised in the district court, that 18 U.S.C. § 4042 provides the
applicable standard of care. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993) (noting that even pro se appellants must brief arguments to avoid waiving
them). Hannah argues in his reply brief that the district court erred in failing
to appoint counsel. By failing to raise the argument in his initial brief, he has
waived it. Id. at 225. Also, he mentions the term “deliberate indifference” and
cites to deliberate indifference cases. To the extent he attempts to raise a
separate constitutional claim of deliberate indifference, we do not consider it,
because it was not raised in the district court with respect to the orders now
before the court. See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Discount
Ctrs., Inc. 200 F.3d 307, 316-17 (5th Cir. 2000) (noting that arguments raised for
the first time on appeal will not be considered).
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No. 06-11091
(5th Cir. 1977). Rule 706 contemplates the appointment of an expert to aid the
court. See CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, 3 FEDERAL EVI-
DENCE §§ 7:25, 7:26 (3d ed. 2007). Hannah seeks an expert for his own benefit.
Further, Hannah did not move for appointment of an expert until after the
deadline for disclosure of experts, did not move to extend the deadline, and did
not invoke rule 706 in his motion. He did not mention rule 706 until his re-
sponse to the motion for summary judgment. Despite this, the district court con-
sidered the request and provided a reasoned denial. Under these circumstances,
the court did not abuse the discretion afforded under rule 706. See Pedraza v.
Jones, 71 F.3d 194, 197 n.5 (5th Cir. 1995); see also Gaviria v. Reynolds, 476 F.3d
940, 945-46 (D.C. Cir.), cert. denied, 128 S. Ct. 240 (2007).2
Construing Hannah’s brief liberally, we glean that he also urges that the
district court erred in denying him an appointed expert under 28 U.S.C. § 1915.
That argument is foreclosed by our precedent, which recognizes that “[t]he plain
language of section 1915 does not provide for the appointment of expert witness-
es to aid an indigent litigant.” Pedraza, 71 F.3d at 196.
III.
We turn now to the summary judgment, which we review de novo. Guil-
lory v. Domtar Indus. Inc., 95 F.3d 1320, 1326 (5th Cir. 1996). Summary judg-
2
Hannah points to cases from other circuits that have found that a district
court may exercise its discretion under rule 706 to appoint an expert to an
indigent party and to have the fees for that expert born entirely by one party.
See, e.g., Ledford v. Sullivan, 105 F.3d 354, 361 (7th Cir. 1997); McKinney v.
Anderson , 924 F.2d 1500, 1511 (9th Cir. 1991) vacated on other grounds sub
nom. Heiling v. McKinney, 502 U.S. 903 (1991); Webster v. Sowders, 846 F.2d
1032, 1038-39 (6th Cir. 1988); U.S. Marshals Serv. v. Means, 741 F.2d 1053,
1057-58 (8th Cir. 1984). These cases do not suggest that a district court can be
compelled to act under rule 706 or that the district court in this case abused its
discretion in denying an expert. Cf. Means, 741 F.2d at 1059 (noting that
district court should appoint an expert to aid an indigent party only in
“compelling circumstances”).
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No. 06-11091
ment is appropriate where, considering all the allegations in the pleadings, depo-
sitions, admissions, answers to interrogatories, and affidavits, and drawing in-
ferences in the light most favorable to the nonmoving party, there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter
of law. FED. R. CIV. P. 56.
The FTCA authorizes civil actions for damages against the United States
for personal injury or death caused by the negligence of a government employee
under circumstances in which a private person would be liable under the law of
the state in which the negligent act or omission occurred. 28 U.S.C. §§ 1346-
(b)(1), 2674. State law controls liability for medical malpractice under the
FTCA. Ayers v. United States, 750 F.2d 449, 452 n.1 (5th Cir. 1985).
Under Texas law, in a medical malpractice action, the plaintiff bears the
burden of proving (1) the physician’s duty to act according to an applicable stan-
dard of care; (2) a breach of that standard of care; (3) injury; and (4) causation.
Quijano v. United States, 325 F.3d 564, 567 (5th Cir. 2003). The plaintiff must
establish the standard of care as a threshold issue before the factfinder may con-
sider whether the defendant breached that standard of care to the extent it con-
stituted negligence. Id. “Unless the mode or form of treatment is a matter of
common knowledge or is within the experience of the layman, expert testimony
will be required” to meet the plaintiff’s burden of proof. Hood v. Phillips, 554
S.W.2d 160, 165-66 (Tex. 1977).
Hannah contends that any layperson could discern that the standard of
care was not met in his case, where, during the course of his year-long treat-
ment, the MRSA infection spread. That contention is belied by Hannah’s de-
scriptions of his treatment, which included antibiotics and surgeries. Because
the mode of treatment for MRSA is not a matter of common knowledge or within
the general experience of a layman, Hannah was required to present expert tes-
timony to establish the applicable standard of care and to show how the care he
received breached that standard. He neither designated nor hired an expert to
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No. 06-11091
testify on his behalf, so the district court properly granted summary judgment
on the FTCA claim.
AFFIRMED.
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