GERO v. UNITED STATES GOVERNMENT (2020)

MEMORANDUM ***

Bruce Gero appeals pro se from the district court’s summary judgment in his Federal Tort Claims Act (“FTCA”) action alleging medical malpractice. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1104 (9th Cir. 2016). We affirm.

The district court properly granted summary judgment because Gero failed to submit expert medical evidence to support his medical malpractice claim as required under California law. See Conrad v. United States, 447 F.3d 760, 767 (9th Cir. 2006) (FTCA actions are governed by the substantive law of the state in which the alleged tort occurred); Powell v. Kleinman, 151 Cal.App.4th 112, 59 Cal. Rptr. 3d 618, 626 (2007) (“Whenever the plaintiff claims negligence in the medical context, the plaintiff must present evidence from an expert that the defendant breached his or her duty to the plaintiff and that the breach caused the injury to the plaintiff.”); Johnson v. Superior Court, 143 Cal.App.4th 297, 49 Cal. Rptr. 3d 52, 58 (2006) (elements of medical malpractice claim under California law).

Contrary to Gero’s contention, the district court properly concluded that the “common knowledge” exception and the doctrine of res ipsa loquitur did not apply. See Ewing v. Northridge Hosp. Med. Ctr., 120 Cal.App.4th 1289, 16 Cal. Rptr. 3d 591, 600-01 (2004) (discussing the “common knowledge” exception to expert evidence in the context of medical malpractice); Elcome v. Chin, 110 Cal.App.4th 310, 1 Cal. Rptr. 3d 631, 636-7 (2003) (res ipsa loquitor in the medical malpractice context).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

We do not consider documents and facts not presented to the district court. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

We reject as meritless Gero’s contentions of fraud.

Gero’s request to participate in the Ninth Circuit mediation program is denied.

AFFIRMED.