Bruce Gero v. United States Government

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 9, 2020
• Docket: 19-15751
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BRUCE GERO, No. 19-15751

Plaintiff-Appellant, D.C. No. 3:16-cv-04449-JSC

v. MEMORANDUM* UNITED STATES GOVERNMENT,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Jacqueline Scott Corley, Magistrate Judge, Presiding**

Submitted June 2, 2020***

Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 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, 59 Cal. Rptr. 3d 618, 626

(Ct. App. 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, 49 Cal. Rptr. 3d 52, 58 (Ct. App. 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., 16 Cal. Rptr. 3d 591, 600-01 (Ct. App.

2004) (discussing the “common knowledge” exception to expert evidence in the

context of medical malpractice); Elcome v. Chin, 1 Cal. Rptr. 3d 631, 636-7 (Ct.

App. 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).

2 19-15751 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.

3 19-15751