UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 (internal quotation marks
omitted).
2
“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 extent as a private individual under like
circumstances.” 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.” Id. at 430 (brackets and
internal quotation marks omitted). 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.” Id. at 605-06 (internal
quotation marks omitted). 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. Id. at 605; see W.
Va. Code § 55-7B-7 (2016).
3
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”). Accordingly, we vacate
and remand for further proceedings. * 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
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