09-2756 Gipson v. U.S.

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Torts
FTCA

A state rule that expert testimony is required to establish medical malpractice applies to actions under the Federal Tort Claims Act.

“Concern with forum shopping—a concern that favors interpreting ‘substantive’ broadly in diversity cases—is absent from cases under the Federal Tort Claims Act. Such cases can be brought only in federal court—the plaintiff has no choice of forum. Still, it would make no sense to interpret ‘law of the place’ in which the alleged tort occurred to incorporate the state’s entire procedural code—a move that would involve a wholesale preemption of the Federal Rules of Civil Procedure, an aim not plausibly attributable to the Federal Tort Claims Act. But a state procedural rule that is in no wise inconsistent with any federal procedural rule, that is specific to a particular area of substantive law, and that is shaped by concerns with particular features of that area of law, should govern a tort case that is in federal court solely because of the defendant’s identity, and specifically because of concern that a state court, in a contest between a resident and the federal government, might be strongly inclined to favor the resident. Carter v. United States, 982 F.2d 1141, 1143-44 (7th Cir. 1992); see Lozada v. United States, 974 F.2d 986, 988 (8th Cir. 1992); Owen v. United States, 935 F.2d 734, 736-37 (5th Cir. 1991). It would be odd as well as arbitrary if in a malpractice case filed under the Federal Tort Claims Act but identical to a malpractice case filed in an Indiana state court and governed by Indiana law, the plaintiff could ask the jury to speculate on the medical standard of care without the aid of expert testimony even if the standard was highly technical, or, equally, if the plaintiff would lose for want of an expert witness even if the breach of the standard of care would be obvious to the most modest, untrained intelligence.”

Reversed and Remanded.

09-2756 Gipson v. U.S.

Appeal from the United States District Court for the Southern District of Indiana, McKinney, J., Posner, J.

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