Robert Garber v. United States

709 F. App'x 485

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 19, 2018
• Docket: 17-55296
• Status: Unpublished

Opinion

MEMORANDUM **

Robert Garber appeals pro se from the district court’s summary judgment in his Federal Tort Claims Act (“FTCA”) action alleging dental malpractice. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Landreth v. United States, 850 F.2d 532, 534 (9th Cir. 1988), and we affirm.

The district court properly granted summary judgment on Garber’s FTCA claim because Garber failed to adduce expert testimony and therefore failed to establish a genuine dispute of material fact as to the elements of his medical malpractice claim. See Johnson v. Superior Court, 143 Cal. App.4th 297, 49 Cal.Rptr.3d 52, 58 (2006) (setting forth elements of medical malpractice claim under California law); Bushling v. Fremont Med. Ctr., 117 Cal.App.4th 493, 11 Cal.Rptr.3d 653, 664 (2004) (“[Wjhere the conduct required of a medical professional is not within the common knowledge of laymen, a plaintiff must present expert witness testimony to prove a breach of the standard of care. Plaintiff also must show that defendants’ breach of the standard of care was the cause, within a reasonable medical probability, of his injury.” (citations omitted)); see also Hutchinson v. United States, 838 F.2d 390, 393 (9th Cir. 1988) (when applying California medical malpractice law under the FTCA, “when the defendant supports his motion for summary judgment with the declarations of experts, a plaintiff who has presented no expert evidence concerning the required standard of care has failed to make a sufficient showing that there are genuine factual issues for trial”).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.