James M. Hall v. United States of America

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2506
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JAMES M. HALL,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 06-cv-01627)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 1, 2009
Before: BARRY, SMITH and GARTH, Circuit Judges
(Opinion filed: September 4, 2009)
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OPINION
_________
PER CURIAM
Federal inmate James Hall appeals the order of the District Court granting the
United States’ motion for summary judgment. For the reasons that follow, we will affirm.

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Hall has since been transferred to USP-Beaumont in Texas.1
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I.
In August 2006 – and after exhausting his administrative remedies – Hall
commenced this action by filing a complaint under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, alleging that he received inadequate dental
care while housed at the United States Penitentiary (“USP”) at Canaan in Pennsylvania.1
In October 2006, Hall moved for appointment of counsel. The Magistrate Judge denied
this motion, and Hall did not contest this ruling. In September 2007, Hall file a second
motion for counsel. While this motion was pending, the United States moved for
summary judgment arguing, inter alia, that Hall could not prevail on his claims because
he did not have an expert witness. Shortly thereafter, Hall moved the court to appoint an
expert pursuant to Fed. R. Evid. 706.
In November 2007, the Magistrate Judge denied Hall’s second motion for
appointment of counsel and his motion for an expert witness. Again, Hall did not object
to the Magistrate Judge’s decision. A few months later, the Magistrate Judge issued a
report recommending that the District Court grant the United States’ motion for summary
judgment because Hall could not prevail on his claims without an expert witness. The
District Court adopted this report and granted the United States’ motion. Hall now
challenges the denial of his motions for appointment of counsel and appointment of an
expert witness, respectively, as well as the court’s grant of summary judgment.

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II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a
district court’s decision declining to appoint counsel, as well as its decision declining to
appoint an expert witness, for abuse of discretion. Montgomery v. Pinchak, 294 F.3d
492, 498 (3d Cir. 2002) (reciting standard of review for denial of appointment of
counsel); In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 299-300 (3d Cir. 2005) (reciting
standard of review for denial of appointment of expert witness). We exercise plenary
review over a district court’s grant of summary judgment. Atkinson v. Lafayette Coll.,
460 F.3d 447, 451 (3d Cir. 2006).
A. Hall’s motions seeking appointment of counsel and an expert witness
Fed. R. Civ. P. 72(a) provides that, after a magistrate judge enters an order on a
non-dispositive matter, the parties have ten days to file objections with the district court.
The Rule clearly states that “[a] party may not assign as error a defect in the order not
timely objected to.” Fed. R. Civ. P. 72(a). Although we have noted that this language
does not bar our review in all instances in which an appellant seeks to challenge a
magistrate judge’s order to which the appellant did not object in the district court, our
review is limited to cases with exceptional circumstances. See Cont’l Cas. Co. v.
Dominick D’Andrea, Inc., 150 F.3d 245, 251 n.9 (3d Cir. 1998). In this case, Hall never
presented the District Court with objections to the Magistrate Judge’s orders denying his
motions for appointment of counsel and his motion seeking an expert witness. Moreover,

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this case does not present any exceptional circumstances. Accordingly, Hall has waived
any challenge to the Magistrate Judge’s denial of these motions. See Gen. Motors Corp.
v. New A.C. Chevrolet, Inc., 263 F.3d 296, 336 n.25 (3d Cir. 2001).
B. Summary Judgment
The FTCA waives the United States’ sovereign immunity and bestows federal
courts with jurisdiction over tort actions against the United States “under circumstances
where the United States, if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1);
Gould Elecs. Inc. v. United States, 220 F.3d 169, 179 (3d Cir. 2000). Because the events
in this case took place in Pennsylvania, we apply Pennsylvania tort law.
To prevail in a medical malpractice action under Pennsylvania law, a plaintiff must
show that: (1) the physician owed a duty to the patient; (2) the physician breached that
duty; (3) the breach proximately caused the harm suffered by the patient; and (4) the
patient’s damages were a direct result of the harm. Toogood v. Owen J. Rogal, D.D.S.,
P.C., 824 A.2d 1140, 1145 (Pa. 2003). Additionally, the plaintiff generally must present
expert testimony “to establish that the care and treatment of the plaintiff by the defendant
fell short of the required standard of care and that the breach proximately caused the
plaintiff’s injury.” Id. “A very narrow exception to the [expert testimony requirement] . .
. applies ‘where the matter is so simple or the lack of skill or care so obvious as to be
within the range of experience and comprehension of even non-professional persons . . .

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.’” Id. (quoting Hightower-Warren v. Silk, 698 A.2d 52, 54 n.1 (Pa. 1997)).
Hall did not obtain a medical expert in this case. Although he asserts that his case
falls within the narrow exception to the expert testimony requirement, this argument is
unpersuasive. His complaint alleges, inter alia, that (1) he received delayed care for his
gum infection and periodontal disease, (2) prison officials did not follow the treatment
plans recommended by the two dentists that examined him, and (3) despite his multiple
requests, prison officials did not provide him with information on treating his periodontal
disease. Whether these acts and omissions, if true, are the proximate cause of the future
pain and disfigurement he alleges requires an understanding of the progression and
treatment of gum infections and periodontal disease. Such issues are not so simple as to
fall “within the range of experience and comprehension of even non-professional
persons.” Accordingly, the District Court did not err in granting the United States’
motion for summary judgment.
In light of the above, we will affirm the District Court’s judgment.
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