Oral Moore v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 23-2251
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Oral Moore
Plaintiff - Appellant
v.
United States of America
Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Northern
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Submitted: January 11, 2024
Filed: March 11, 2024
[Unpublished]
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Before BENTON, ERICKSON, and KOBES, Circuit Judges.
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PER CURIAM.
Oral Moore sues for damages under the Federal Tort Claims Act for
malpractice by physicians at the Memphis Healthcare Center of the Department of
Veterans Affairs. He sustained floppy glans and a shortening of penile length from

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a surgical implantation of an inflatable penile prosthesis. The district court1 granted
the government’s motion for summary judgment—and denied a motion to
reconsider—because his claim failed as a matter of law, due to the burden of proof
under the applicable state law. Moore appeals. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms. See Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011) (en banc) (this court reviews de novo a grant of summary judgment).
“When a plaintiff brings a claim against the United States under the Federal
Tort Claims Act, the controlling law is that of the state in which the act or omission
occurred.” Day v. United States, 865 F.3d 1082, 1086 (8th Cir. 2017), quoting
Chapa v. United States, 497 F.3d 883, 887 n.2 (8th Cir. 2007). The conduct here
occurred in Tennessee.
Under Tennessee law, in a healthcare liability action, a plaintiff must prove:
“(1) The recognized standard of acceptable professional practice in the profession;”
“(2) That the defendant acted with less than or failed to act with ordinary and
reasonable care in accordance with such standard;” and “(3) As a proximate result
of the defendant’s negligent act or omission, the plaintiff suffered injuries which
would not otherwise have occurred.” Tenn. Code Ann. § 29-26-115(a)(1)-(3). To
be “competent to testify in any court of law to establish the facts required to be
established by subsection (a),” an expert witness must be a licensed practitioner in
either the state of Tennessee or a bordering state. Tenn. Code Ann. § 29-26-115(b).
Moore’s expert witness was licensed to practice only in Pennsylvania, which
does not border Tennessee, and, thus, was not competent to testify in this case.
Without an expert that met the competency requirement, Moore failed to meet the
statutory burden of proof. See Legg v. Chopra, 286 F.3d 286, 291 (6th Cir. 2002)
(“The structure of the statute reflects the intimate relationship between the standard
of care and the qualification requirements of the medical expert who will establish
1 The Honorable Billy Roy Wilson, United States District Court Judge for the
Eastern District of Arkansas.

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that standard. Thus, there can be little doubt but that § 29-26-115(b) . . . applies in
this federal” action applying Tennessee law.). See also Davis v. Young, 946 F.2d
894, at *3 (6th Cir. 1991) (Table) (discussing § 29-26-115(b)’s waiver provision,
“The statute does not call for waiver when a party's preferred witnesses are not
geographically qualified, but rather when no appropriate witnesses are qualified”).
Moore claims the government waived the state-law deficiency by failing to
assert it as an affirmative defense in an answer. See Fed. R. Civ. P. 8(c)(1).
However, “the argument” that Moore did not meet his burden of proof “was not an
affirmative defense, but simply negated an element of [Moore’s] prima facie case.”
Davidson & Schaaff, Inc. v. Liberty Nat’l Fire Ins. Co., 69 F.3d 868, 871 (8th Cir.
1995). See In re Rawson Food Serv., Inc., 846 F.2d 1343, 1349 (11th Cir. 1988)
(“A defense which points out a defect in the plaintiff’s prima facie case is not an
affirmative defense.”); Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir.
2002) (“A defense which demonstrates that plaintiff has not met its burden of proof
is not an affirmative defense.”). The government did not waive the state-law
deficiency.
Moore raises many issues on appeal that he did not raise below. This court
“will not ordinarily ‘consider arguments raised for the first time on appeal.’” Hiland
Partners GP Holdings, LLC v. Nat’l Union Fire Ins. Co. of Pittsburgh, 847 F.3d
594, 598 (8th Cir. 2017), quoting Cole v. UAW, 533 F.3d 932, 936 (8th Cir. 2008).
See Brown v. La.-Pac. Corp., 820 F.3d 339, 348 (8th Cir. 2016), quoting U.S. Bank
Nat’l Ass’n v. Verizon Commc’ns, Inc., 761 F.3d 409, 425 (5th Cir. 2014) (this court
“will typically not consider an issue or a new argument raised for the first time in a
motion for reconsideration in the district court”). A party may not “assert arguments
that were not presented to the district court in opposing summary judgment in an
appeal contesting an adverse grant of summary judgment.” Id. “We may notice
plain error despite a failure to raise the issue below, but we generally do so only to
prevent a miscarriage of justice.” Id. (internal quotation marks omitted). Moore does
not assert a miscarriage of justice, and no miscarriage exists on the record. The
issues not presented to the district court are waived.

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Moore raises two issues on appeal that do not affect the grant of summary
judgment: compliance with a national standard of care, and the exclusion of the
government’s expert witness. This court affirms on both issues. See 8th Cir. R.
47(B). The district court also did not abuse its discretion in denying Moore’s motion
for Leave to File Sur Reply. See Sterkel v. Fruehauf Corp., 975 F.2d 528, 532 (8th
Cir. 1992).
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The judgment is affirmed.
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