Opposition Brief — MacLeod v. Georgetown University Medical Center, (1999) (No. 967)

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No. 99-967 CLERK

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IN THE

Supreme Court of the United States

ALBERT G. MAcLEop,

Petitioner,

V.

GEORGETOWN UNIVERSITY MEDICAL CENTER,

JAMES A. RICHARDSON, M.D. AND THomas O. Stair, M.D.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI

TO THE District OF COLUMBIA COURT OF APPEALS

RESPONDENTS’ BRIEF IN OPPOSITION

DONALD M. GILBERG

Counsel of Record

CHRISTOPHER E. HASSELL

GILBERG & KIERNAN

Attorneys for Respondents

1250 Eye Street, N.W.

Sixth Floor

Washington, DC 20005

(202) 712-7000

157508 @) Counse! Press LLC

(800) 274-3321 + (800) 359-6859

Rye <n me

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PARTIES TO THE PROCEEDING

The petition accurately lists the parties to the proceeding.

The proper legal name of Respondent, Georgetown

University Medical Center, is “The President and Directors

of Georgetown College.”

TABLE OF CONTENTS

Pasties to Gas PURGUIEIIG 6 ii ified fea eke

Table of Comtemi®® aid. o ce deceive

Table of Cited AMOR 6 ii ek tee

Seatement of he CONS 6s ie KR ee

A.

The petition misrepresents whether a federal

question is properly presented. ...........

The petition misrepresents this case as arising

under a split among the federal circuits. ...

Reasons for Denying the Writ .................

1.

Il.

Il.

The non-federal court below did not consider

the alleged federal question presented in the

petition and therefore certiorari should be

GemheG. 2. cciicandni eee ter eon

The decision below was based upon adequate

state QOOUMED. oo isciitass eee ea

Any “split in interpretation” among the

United States Circuit Courts of Appeal

regarding the need for notice to pro se

litigants under Federal Rule of Civil

Procedure 56 is irrelevant to this state court

decision based on state law. .............

Page

11

il

Contents

Page

IV. Non-incarcerated pro se litigants are not

denied access to the Courts by lack of a Rule

56 notice as Superior Court Civil Rule 56 is

werpstedboniicesis,,.. MCT ETO nee eae 12

V. The dismissal of petitioner’s complaint was

correct due to petitioner’s failure to present

a prima facie case of medical malpractice

under the case law of the District of

ME otc 16

Conclusion

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Abell v. Wang, 697 A.2d 796 (D.C. 1997) ........ 13

Adams v. Robertson, 520 U.S. 83 (1997) ........ 8,9

Allen v. Hill, 626 A.2d 875 (D.C. 1993) ......... 16

Berea College v. Kentucky, 211 U.S. 45 (1908) ... 9

Bowe v. Scott, 233 U.S. 658 (1914) ............. 7

Cardinale v. Louisiana, 394 U.S. 437 (1969) ..... 7

Douglas v. Alabama, 380 U.S. 415 (1965) ....... 10

Dozier v. Ford Motor Co., 227 U.S.App.D.C. 1, 702

Bide CEG OA CR: SO hc eis aiea esas bs 14

Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ... 9

Hardy v. Illinois, 196 U.S. 78 (1904) ........... 7

Henry v. Mississippi, 379 U.S. 443 (1965) ....... 10

Herndon v. Georgia, 295 U.S. 441 (1935) ....... 7

Hudson v. Hardy, 134 U.S. App. D.C. 44, 412 F.2d

DS REET eee ecru cet Vek ehrrclee us 12, 14

Cited Authorities

Page

Jacobsen v. Filler, 790 F.2d 1362 (9th Cir. 1986)

Lynch v. New York ex. Rel. Pierson, 293 U.S. 52

CERI esac R CET a ee 8

M.A.P. v. Ryan, 285 A.2d 310 (D.C. App. 1971) .. 4,14

McNeil v. United States, 508 U.S. 106 (1993) ... 12, 14, 15

Meek v. Shepard, 484 A.2d 579 (D.C. 1984) ..... 16

Mohasco Corp. v. Silver, 447 U.S. 807 (1980) .... 15

Monger v. Florida, 405 U.S. 958 (1972) ......... 10

Oxley Stave Co. v. Butler County, 166 U.S. 648

CRB TE i b:6.55 kh ba be cee sas tee 7

Phillips v. United Sates Board of Parole, 122 U.S.

App. D.C. 235, 325 F.2d 711 (1965) .......... 12

_ Psychiatric Institute of Washington v. Allen,

ae? B20 GIS G.. IGS) ©... Scie iis 16

Simpson v. Chesapeake & Potomac Telephone Co.,

Sa Pusdle Bee GO, FORT) os onc cs svekdcaeses 10

Tacon v. Arizona, 410 U.S. 351 (1973) .......... 4,7

vi

Cited Authorities

Page

Wainwright v. Sykes, 433 U.S. 72 (1977) ........ 10

Wallace v. Warehouse Employees Union No. 730,

482 A.20 SGl CURES aha eee 10

Washington v. Washington Hospital Center,

$79 A.26:177- (6. SR eA 16

Webb v. Webb, 451 U.S. 493 (1981) ............ 9

Woldeamanuel v. Georgetown University Hospital,

703 A.2d 1243 (D.C. App. 1997) ........... 2, 16, 17

Statutes:

26 UBM. 8-1297 ines ixeseteeeecsee eee 7, 8, 10

26 US.C..8 LIPO . iviiisieceetetaaeeen 6

United States Constitution:

Fitts AS iin is 6k Hae EG oc ee 4,8

Vii

Cited Authorities

Page

Rules:

District of Columbia Superior Court Civil Rule 16

District of Columbia Superior Court Civil Rule 26(b)(4)

‘vase ee SENS SERA ee ee 4; 356, 13,16

District of Columbia Superior Court Civil Rule 56

fie n ta wee en eh Gh eeu we 2, 4, 6, 10, 11, 12, 13, 17

District of Columbia Superior Court Civil Rule 56(e)

se ee ee

1

STATEMENT OF THE CASE

Petitioner seeks this Court’s review of the District of

Columbia Court of Appeals’ unanimous opinion affirming

summary judgment against Petitioner in a medical

malpractice suit. Petitioner had filed a common law tort

action alleging Respondents, Georgetown University

Medical Center, James A. Richardson, M.D., and Thomas

O. Stair, M.D. (hereinafter collectively “Respondents”), had

been negligent in their care and treatment of him and seeking

money damages. Set forth below is a summary of the facts

and a history of the proceeding.

Petitioner presented to the emergency room at the

Georgetown University Medical Center complaining of left

ear pain and decreased hearing since the previous day.

See C.A. App. at 21. Upon examination of Petitioner, it was

determined that his ears were compacted with cerumen

(ear wax). An irrigation of the ears was attempted to remove

the cerumen. /d. Petitioner could not tolerate this procedure,

and it was stopped at his request. Jd. Petitioner was

discharged from the emergency room with a diagnosis of

ear pain and possible otitis media, an infection of the middle

ear. Id.

Petitioner had a follow-up visit with an otolaryngologist

at Georgetown, Dr. Michael Morris, who was later identified

by Petitioner as an expert witness. See C.A. App. at 38.

A CT scan was obtained, which revealed an inflammatory

process in the inner and middle left ear. Jd. at 46. According

to Dr. Morris, this inflammatory process was unrelated to

the irrigation of Petitioner’s ears undertaken in the emergency

room and was consistent with the complaints made by

Petitioner in the emergency room. /d. at 46-47. Contrary to

2

Petitioner’s assertion in his Petition for a Writ of Certiorari

(hereinafter “Pet.”), at 2, Dr. Morris did not indicate

Respondents had committed malpractice. See C.A. App. at

47. Indeed, no physician has ever so stated.

Petitioner filed a pro se medical malpractice claim

against Respondents alleging negligence in the treatment he

received in the emergency room and claiming permanent ear

damage as aresult. Pet. App. at 15a-16a. District of Columbia

case law requires that, in the vast majority of medical

malpractice cases, a plaintiff must provide expert testimony

of malpractice in order to make out a prima facie case.

See, e.g., Woldeamanuel v. Georgetown University Hospital,

703 A.2d 1243 (D.C. App. 1997). Further, pursuant to the

District of Columbia Superior Court Rule of Civil Procedure

26(b)(4), during discovery Petitioner was required to file a

statement detailing the opinions of his expert witnesses.

Petitioner filed a deficient Rule 26(b)(4) Statement, in

which Petitioner named four experts but, in violation of

Superior Court Civil Rule 26(b)(4), did not provide any

information regarding the subject matter on which each

expert witness was expected to testify, the substance of the

facts and opinions to which each expert was expected to

testify, and a summary of the grounds for each such opinion.

See C.A. App. at 38. Subsequently, Respondents filed a

motion for summary judgment under Superior Court Rule

56. In their motion, Respondents gave a clear explanation of

what the case lacked; specifically, that Petitioner had failed

to provide any expert testimony establishing a prima facie

case of malpractice. Pet. App. at 16a. In support of their

motion, Respondents provided affidavits from all four of

Petitioner’s experts. Each affidavit stated there was no

malpractice by any of the Respondents. C.A. App. at 40-50.

3

In Petitioner’s opposition to Respondents’ summary

judgment motion, Petitioner made a conclusory assertion that

two of his treating physicians, Dr. James and Dr. Morrison,

would opine that Respondents had breached the standard of

care. Pet. App. at 19a. Neither of these treating physicians

had been named as an expert witness in Petitioner’s Rule

26(b)(4) Statement, however. See C.A. App. at 38; Pet. App.

at 3a. Moreover, Petitioner provided no evidence, by affidavit

or otherwise, to support his assertion that the physicians

would indeed so testify. Thus, the only evidence before the

trial court was that the Respondents did not violate any

standard of care. Accordingly, Respondents’ motion for

summary judgment was granted.

Petitioner appealed the granting of summary judgment,

contending that the trial court erred in failing to advise him

of the need to file affidavits with his Opposition to the motion

for summary judgment. The District of Columbia Court of

Appeals affirmed the trial court’s decision, holding that under

the circumstances presented the trial court had no duty to

advise Petitioner of deficiencies in his Opposition to

Respondents’ motion, specifically including the importance

of filing controverting affidavits. Pet. App. at 2a.

A. The petition misrepresents whether a federal question

is properly presented.

The District of Columbia Court of Appeals made clear

in this case that, under the law of the District of Columbia,

pro se litigants should not ordinarily expect special treatment

simply because of their pro se status. Pet. App. at Sa.

In setting forth that principle of law, the D.C. Court of

Appeals included citations to decisions from other state

courts, as well as cases from the United States Court of

4

Appeals for the District of Columbia Circuit and other federal

circuits. Petitioner misconstrues the illustrative use of these

cases as presenting a “federal question.” See, e.g., Pet. at 4.

Petitioner is incorrect.

The law of the D.C. Circuit federal court, while helpful

in interpreting local rules patterned after the Federal Rules

of Civil Procedure, is not controlling authority for the District

of Columbia Court of Appeals. See M.A.P. v. Ryan, 285 A.2d

310(D.C. App. 1971). The mere citation of federal case law

in support of an opinion based solely on state law grounds

does not present a federal question.

Petitioner also presents several alleged “federal

questions,” such as his reference to the equal protection

clause of the United States Constitution. See, e.g., Pet. at 5.

Whether or not such claims would constitute “federal

questions” for review if properly raised, there is no federal

question to be reviewed by this Court because such claims

were never considered by the Court of Appeals. Despite

Petitioner’s assertions to the contrary, no federal question

was raised below.

Petitioner asserts the D.C. Court of Appeals rejected his

equal protection argument. Pet. at 5. The record in this case,

however, establishes that Petitioner made no such argument

before the D.C. Court of Appeals. Petitioner also asserts he

contended that Rule 56 violated the due process clause of

the Fifth Amendment. /d. Again, the record shows that no

such argument was presented to the D.C. Court of Appeals.

It is settled law that a litigant may not raise for the first time

on appeal arguments not presented to the lower court for

consideration. See, e.g., Tacon v. Arizona, 410 U.S. 351, 352

(1973).

2

In short, there is no federal question properly before this

Court to review. Any “federal questions” proffered by

Petitioner were not presented to the lower court and did not

form the basis of the lower court’s decision. Moreover,

contrary to Petitioner’s claims, e.g., Pet. at 5, the Court of

Appeals did not hold that prisoner pro se litigants were

entitled to notice of the need for controverting affidavits,

but non-prisoner pro se litigants were not. Rather, the Court

of Appeals held that, for reasons going far beyond

Petitioner’s status as a non-incarcerated pro se litigant, the

trial court had no affirmative duty to assist Petitioner in

presenting his case by instructing Petitioner on the need for

controverting affidavits. The lower court’s holding turned

on the circumstances presented by this individual case,

not the mere status of the pro se litigant. Pet. App. at 7a

(noting Petitioner’s proposed requirement “goes too far in

the circumstances here”).

Petitioner misreads the D.C. Court of Appeals’ rejection

of Petitioner’s argument regarding procedures used in cases

involving prisoner pro se litigants as setting forth a ruling

of law that prisoner pro se litigants constitute a “special

class,” to which Petitioner does not belong, which is afforded

special treatment. Pet. at 21. The D.C. Court of Appeals made

no such holding. Rather the D.C. Court of Appeals simply

held that Respondents are entitled to judgment as a matter

of law given Petitioner’s failure to offer any evidence

establishing a genuine of material fact supporting Petitioner’s

claims of medical malpractice.

6

B. The petition misrepresents this case as arising under

a split among the federal circuits.

The Petition misrepresents this case as arising under a

split among the federal circuits. Pet. at 21. Similarly to

Petitioner’s misunderstanding whether this case presents a

“federal question,” see supra at 4, Petitioner’s claims on this

issue misconstrue the significance of the District of Columbia

Court of Appeals’ illustrative citation of federal court

decisions in affirming the Superior Court of the District of

Columbia. This case arises under the state law of the District

of Columbia and was decided by a state court.'

It is clear that the D.C. Court of Appeals decided this

matter on state law grounds. The D.C. Court of Appeals

affirmed the trial court’s ruling that Petitioner failed to satisfy

the requirements of Rule 26(b)(4) of the Superior Court Rules

of Civil Procedure regarding disclosure of Petitioner’s

proffered expert testimony. The D.C. Court of Appeals also

affirmed the trial court’s ruling that, in responding to

Respondents’ motion for summary judgment under D.C.

Superior Court Rule 56, Petitioner’s reliance on mere

conclusory statements that he would elicit expert testimony

at trial from his treating physicians that the Respondents had

violated the standard of care is insufficient to establish a

genuine issue of material fact regarding an alleged violation

of the standard of care and avoid summary judgment under

District of Columbia case law and D.C. Superior Ct. Civ.

Rule 56.

1. The District of Columbia Court of Appeals and the Superior

Court of the District of Columbia are Article I courts. They are

considered state courts for purposes of Supreme Court review.

28 U.S.C. § 1257(b).

7

As detailed below, there is no cause for this Court’s

review as the decision below did not consider any federal

question and was based upon adequate state grounds.

Moreover, this decision does not confront the Court with a

split in the circuits since it arises out of a final judgment of

a state court decided under substantive state law. Finally,

Petitioner’s complaint was properly dismissed as it failed to

State a prima facie case of medical malpractice.

REASONS FOR DENYING THE WRIT

I. The non-federal court below did not consider the

alleged federal question presented in the petition and

therefore certiorari should be denied.

It is essential to Supreme Court jurisdiction under

28 U.S.C. § 1257 that a substantial federal question was

raised below. As stated by this Court in Oxley Stave Co. v.

Butler County, 166 U.S. 648, 655 (1897), “the jurisdiction

of this court to re-examine the final judgment of a state court

cannot arise from mere inference, but only from averments

so distinct and positive as to place it beyond question that

the party bringing a case here from such court intended to

assert a Federal right.” This Court has previously held that

mere reference to “due process of law” or “the Constitution

of the United States” is insufficient. See, e.g., Bowe v. Scott,

233 U.S. 658, 664-665 (1914); Herndon v. Georgia, 295 U.S.

441 (1935); Hardy v. Illinois, 196 U.S. 78 (1904). This Court

is not vested with jurisdiction unless a federal question was

raised and decided below, Cardinale v. Louisiana, 394 U.S.

437 (1969), and this Court “cannot decide issues raised for

the first time here.” Tacon v. Arizona, 410 U.S. 351, 352

(1973).

8

As this Court stated in Lynch v. New York ex. Rel.

Pierson, 293 U.S. 52, 54 (1934), in discussing a Fourteenth

Amendment argument not raised properly in the lower courts,

Jurisdiction cannot be founded upon surmise. Nor

can claim of jurisdiction be sustained by reference

to briefs and statements which are not part of the

record. It is essential to the jurisdiction of this

Court in reviewing a decision of a court of a State

that it must appear affirmatively from the record,

not only that a federal question was presented for

decision to the highest court of the State having

jurisdiction but that its decision of the federal

question was necessary to the determination of

the cause, and that the judgment as rendered could

not have been given without deciding it.

Id. at 54.

In the case at bar, Petitioner never raised the issues of

any alleged violation of due process or equal protection under

the Fifth Amendment in the trial court or in the D.C. Court

of Appeals. (Pet. App. |Sa-19a). Therefore, a federal question

was not properly raised below. Moreover, since such issues

were not raised, the alleged Constitutional issues were never

addressed at the appellate level below. For both of these

reasons, this Court has no jurisdiction over this matter under

28 U.S.C. § 1257.

In the recent case of Adams v. Robertson, 520 U.S. 83

(1997), this Court reiterated its long held position that, “with

‘very rare exceptions’ we have adhered to the rule in

reviewing state court judgments under 28 U.S.C. § 1257...

we will not consider a petitioner’s federal claim unless it

9

was either addressed by or properly presented to the state

court that rendered the decision we have been asked to

review.” /d. at 208 (citations omitted). The burden of showing

that a federal question was presented below is upon

Petitioner. /d. In the Adams case, the petitioner was unable

to demonstrate that an alleged violation of the Due Process

Clause of the Fourteenth Amendment was raised below and

the writ of certiorari was dismissed as improvidently granted.

Id. at 210-11. As stated by the Adams court, “ ‘it would be

unseemly in our dual system of government’ to disturb the

finality of state judgments on a federal ground that the state

court did not have occasion to consider.” /d. at 210 (citing

Webb v. Webb, 451 U.S. 493, 500 (1981)).

Likewise, in the case at bar, there has been no showing

by Petitioner that the court below addressed or based its

decision on a federal question. Accordingly, the petition for

writ of certiorari should be denied.

II. The decision below was based upon adequate state

grounds.

This Court has consistently declined to review a state

court judgment which was based on independent state

grounds, even if (unlike the case at bar) a federal question

was involved and decided below. See, e.g., Fox Film Corp.

v. Muller, 296 U.S. 207 (1935); Berea College v. Kentucky,

211 U.S. 45, 53 (1908).

In the case at bar, the D.C. Court of Appeals held that

Petitioner failed to meet the requirements of District of

Columbia Superior Court Civil Rule 56(e) in opposing

Respondents’ motion for summary judgment. Pet. App. at

19a. That reason alone was the basis for affirming the

10

dismissal of Petitioner’s lawsuit. While Superior Court Civil

Rule 56 is similar to Federal Rule of Civil Procedure 56,

any federal case law interpreting the federal rule counterpart

to Superior Court Rule 56 is merely instructive as to the

interpretation of Superior Court Civil Rule 56. It is not

binding. See Simpson v. Chesapeake & Potomac Telephone

Co., 522 A.2d 880, 884 n.4 (D.C. 1987); Wallace v.

Warehouse Employees Union No. 730, 482 A.2d 801, 807

(1984).

State procedural rules, which serve as the basis for an

appellate decision, are honored as long as they “serve a

legitimate state interest.” Henry v. Mississippi, 379 U.S. 443

(1965); see also Wainwright v. Sykes, 433 U.S. 72 (1977);

Monger v. Florida, 405 U.S. 958 at 961-963 (1972); Douglas

v. Alabama, 380 U.S. 415 (1965). Moreover, a local rule of

procedure that does not discriminate against the raising of a

federal claim, and is of a substantive nature, will not be

disturbed. Wainwright, supra, 433 U.S. at 81.

The District of Columbia Superior Court and the District

of Columbia Court of Appeals are distinct, non-federal courts

for purposes of 28 U.S.C. § 1257. Their procedural rules are

given deference and effect, as is case law applying those

rules. In its decision in this matter, the District of Columbia

Court of Appeals held that D.C. Superior Court Civil Rule

56 does not mandate the trial court to provide pro se litigants

in civil cases with specific notice of the need to file

countervailing affidavits to avoid summary judgment. This

state court interpretation of a state court rule of procedure is

clearly an adequate state ground for the decision.

1]

III. Any “split in interpretation” among the United

States Circuit Courts of Appeal regarding the need

for notice to pro se litigants under Federal Rule of

Civil Procedure 56 is irrelevant to this state court

decision based on state law.

Petitioner has suggested to this Court that a split of

authority exists among various United States Circuit Courts

of Appeal as to the need to provide notice to a pro se litigant

of what must be submitted in opposition to a motion for

summary judgment under Federal Rule of Civil Procedure

56. See Pet. at 13-18. While such a split of authority may

exist in the federal court system with respect to the Federal

Rules of Civil Procedure, this Petition arises from the

decision of a state court. Furthermore, this case arises under

the state law of the District of Columbia. The decision of

the Superior Court of the District of Columbia was based

upon its interpretation of Superior Court Civil Rule 56. While

federal law interpreting the Federal Rule counterpart is

instructive, it is not controlling. The trial court decision in

this case was affirmed by the District of Columbia Court of

Appeals, on the basis of its interpretation of the District of

Columbia Rules of Civil Procedure.

This is not a case where a state court and a Federal Circuit

Court of Appeal disagree on the interpretation of a federal

statute or a question of federal law. As noted above, this

case involves application of a state court rule of procedure

by a state court. Any disagreement that may exist among

certain United States Circuit Courts of Appeal as to Federal

Rule of Civil Procedure 56 is irrelevant to the decision of a

State court based upon state law grounds.

12

IV. Non-incarcerated pro se litigants are not denied

access to the Courts by lack of a Rule 56 notice as

Superior Court Civil Rule 56 is clear on its face.

Petitioner argues that pro se litigants are denied access

to the courts due to the lack of a separate Rule 56 notice

regarding countervailing affidavits. This statement pre-

supposes that non-incarcerated pro se litigants should not

be bound by the same procedural rules as all others. It also

pre-supposes that Superior Court Civil Rule 56 is unclear or

that the properly given notice in a adversary’s motion that it

is made under Superior Court Civil Rule 56 is unclear. This

Court in McNeil v. United States, 508 U.S. 106 (1993), held

that civil litigants seeking money damages are not to be

treated differently. The exceptions to this general rule are

limited to narrow circumstances including pleading matters,

including timely service of process; remedial statutes

involving civil rights; and incarcerated litigants. Pet. App.

at 7a. The Petition does not involve any of those exceptions,

although Petitioner would like the Court to treat him as an

incarcerated pro se litigant.

The reasoning behind the differing treatment of

incarcerated pro se litigants was clearly set forth by the D.C.

Circuit € .urt of Appeals in Hudson, supra. The Hudson

Court noved that incarcerated litigants are under “handicaps

... [which] detention necessarily imposes upon a litigant.”

Id. at 1094 (citing Phillips v. United Sates Board of Parole,

122 U.S. App. D.C. 235, 325 F.2d 711 (1965)). Petitioner

has demonstrated 0 basis for inclusion in one of these

categories or that a basis exists to modify these exceptions.

Petitioner’s Complaint was dismissed by the District of

Columbia Superior Court based on the Superior Court’s

13

application of Superior Court Civil Rule 56. C.A. App. at 15.

In affirming the dismissal, the District of Columbia Court of

Appeals noted that the “[Respondents’] motion gave a clear

explanation of what the case lacked [expert testimony as

required by [Rules 16 and 26(b)(4)]” Pet. App. at 3a. The D.C.

Court of Appeals quoted the trial court’s decision regarding

Superior Court Civil Rule 56(e)’s clear mandate that “ an adverse

party must not rest upon the mere allegations or denials of the

adverse party’s pleadings, but the adverse party’s response, by

affidavits or as otherwise provided for in this Rule, must set

forth specific facts showing there is a genuine issue for trial.”

Pet. App. at 3a. Petitioner did not comply with the plain and

unambiguous language of this state court Rule and Petitioner’s

claim was treated accordingly.

The District of Columbia Courts of Appeals correctly held

that, under Superior Court Rule 56, pro se non-prisoners are

not entitled to special notice of how to oppose a summary

judgment motion, Pet. App. at 11a. The D.C. Court of Appeals,

while recognizing that parties may represent themselves,

reiterated the “principle that ‘such a litigant can expect no special

treatment from the court.’” Pet. App. at 11a (citing Abell v.

Wang, 697 A.2d 796, 804 (D.C. 1997)). The D.C. Court of

Appeals went on to state,

Our own federal appellate circuit court, in an opinion

by then Judge Scalia, has explained that “{a]t least

where a litigant is seeking a monetary award, we do

not believe pro se status necessarily justifies special

consideration (citations omitted)”. While such a pro

se litigant must of course be given fair and equal

treatment, he cannot generally be permitted to shift

the burden of litigating his case io the courts. . . .

14

Pet. App. at lla (citing Dozier v. Ford Motor Co., 227

U.S.App.D.C. 1, 6, 702 F.2d 1189, 1194 (D.C. Cir. 1993)).

The D.C. Court of Appeals went on to delineate three

categories requiring special treatment of pro se litigants:

pleading matters, including timely service of process;

remedial statutes involving civil rights; and, lastly,

incarcerated litigants. Pet. App. at 7a.

The specialized situation of pro se incarcerated litigants,

which was at issue in many of the cases relied on by

Petitioner, is irrelevant to the case at bar. While the D.C.

Court of Appeals has recognized that special consideration

must be given to pro se incarcerated litigants under the

holding in Hudson v. Hardy, 134 U.S. App. D.C. 44, 412 F.2d

1091 (1968) (as binding on it under M.A.P. v. Ryan, 285

A.2d 310, 312 (D.C. 1971)), the D.C. Court of Appeals in

this case specifically considered the facts of this case in ruling

that Petitioner is not entitled to such special consideration.

In so holding, the D.C. Court of Appeals relied on this

Court’s statement, in McNeil v. United States, 508 U.S. 106,

113 (1993), that, “we have never suggested that procedural

_ rules in ordinary civil litigation should be interpreted so as

to excuse mistakes by those who proceed without counsel.”

Pet. App. at 8a.

The D.C. Court of Appeals also cited with approval the

reasoning of the United States Court of Appeals for the Ninth

Circuit analysis in Jacobsen v. Filler, 790 F.2d 1362, 1365

n.4 (9th Cir. 1986), for not imposing a burden on trial courts

to act as an advisor for non-incarcerated pro se litigants on

matters of litigation process. Pet. App. at 13a. The Jacobsen

court stated that imposing such a role on trial courts would

be improper for several reasons,

15

First and foremost is that pro se litigants in

the ordinary civil case should not be treated more

favorably than parties with attorneys of record.

Trial courts generally do not intervene to save

litigants from their counsel of choice, even when

the lawyer loses the case because he fails to file

opposing papers. A litigant who chooses himself

as legal representative should be treated no

differently. In both cases, the remedy to the party

injured by his representative’s error is to move to

reconsider or to set aside; it is not for the trial

court to interject itself into the adversary process

on behalf of one of a class of litigant.

Imposing an obligation to give notice of Rule

56’s evidentiary standards would also be to invite

an undesirable, open-ended participation by the

court in the summary judgment process. . . Unlike

the conversion of a 12(b)(6) motion into a motion

for summary judgmeiit, which only requires notice

of what the motion now is, Jacobsen’s proposal

requires advice as to what the motion must mean.

To give that advice would entail the district

court’s becoming a player in the adversary process

rather than remaining its referee.

Jacobsen, 790 F.2d at 1365-66 (emphasis in original)

(footnotes omitted).

As this Court stated in McNeil, supra, 508 U.S. at 113

(citing to Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)),

“in the long run, experience teaches that strict adherence to

the procedural requirements specified by the legislature is

the best guarantee of evenhanded administration of the law.”

16

V. The dismissal of petitioner’s complaint was correct

due to petitioner’s failure to present a prima facie

case of medical malpractice under the case law of the

District of Columbia.

Under governing District of Columbia law, to prevail in

a medical malpractice case, a plaintiff must establish:

(1) the applicable standard of care; (2) a deviation from that

standard of care; and (3) a causal relationship between that

deviation and the plaintiff’s injury. Woldeamanuel v.

Georgetown University Hospital, 703 A.2d 1243, 1244

(D.C. 1997) (quoting Meek v. Shepard, 484 A.2d 579, 581

(D.C. 1984)); accord Washington v. Washington Hospital

Center, 579 A.2d 177, 181 (D.C. 1990); Psychiatric Institute

of Washington v. Allen, 509 A.2d 619, 623-624 (D.C. 1986).

Because these issues are related to some distinct science,

profession, or occupation, expert testimony is usually

required to prove each of these elements. Washington, supra,

579 A.2d at 181; Psychiatric Institute, supra, 509 A.2d at

623-24; Woldeamanuel, supra, 703 A.2d at 1244; Allen v.

Hill, 626 A.2d 875, 877 (D.C. 1993). Thus, in order for a

prima facie case of medical malpractice to be established

expert testimony is needed. In the Woldeamanuel case, the

D.C. Court of Appeals held that a litigant’s allegations of

medical malpractice, unsupported by anything other than her

own conclusory allegations and unsworn testimony of a

physician, is insufficient to defeat a motion for summary

judgment. /d. at 1245.

In the case at bar, expert witness disclosure requirements

are governed by D.C. Superior Court Civil Rule 26(b)(4),

which requires the pretrial disclosure of all expert witness

testimony that the parties intend to present at trial. As the

17

trial court and the D.C. Court of Appeals recognized,

applying this Rule in the context of established District of

Columbia law, a statement from an expert supporting the

Petitioner’s claim of malpractice was required for the trial

court to find a genuine issue of material fact sufficient to

defeat the Respondents’ motion for summary judgment under

Superior Court Civil Rule 56. As in Woldeamanuel, summary

judgment in the case at bar was appropriate based on the

Petitioner’s complete failure to offer proof concerning the

standard of care and any alleged breach of the standard of

care, and the alleged causal nexus between the breach and

Petitioner’s injuries.

CONCLUSION

For the reasons set forth above, the Petition for a Writ

of Certiorari should be denied.

Respectfully submitted,

DONALD M. GILBERG

Counsel of Record

CHRISTOPHER E. HASSELL

GILBERG & KIERNAN

Attorneys for Respondents

1250 Eye Street, N.W.

Sixth Floor

Washington, DC 20005

(202) 712-7000