In accordance with the provisions of 18 U.S.C. § 636(c)(1), the parties have voluntarily 1

consented to have a United States Magistrate Judge conduct proceedings in this case, including

entry of a final judgment. See Documents # 6 (Plaintiff’s consent filed September 13, 2007);

Document # 16 (consent of Defendants “Medical Staff” and “Staff - FCI McKean” filed January

22, 2008); Document # 36 (consent of Defendant United States filed October 28, 2008).

 At the time of the filing of the complaint, Plaintiff was incarcerated, but has since been 2

released from custody.

 Plaintiff originally raised both a Bivens claim for violations of his constitutional rights 3

and a negligence claim under the FTCA. By Opinion and Order dated July 16, 2008, the Bivens

claim was dismissed due to Plaintiff’s failure to exhaust his administrative remedies in

accordance with the requirements of the Prison Litigation Reform Act. See Document # 28.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CHARLES NEIDIG, JR. )

Plaintiff )

)

vs. ) C.A.No. 07-229Erie

)

UNITED STATES OF AMERICA, ) Magistrate Judge Baxter

Defendant. )

MEMORANDUM OPINION 1

Mag. J. Susan Paradise Baxter

I. Procedural History

Plaintiff, formerly a prisoner incarcerated at FCI McKean, filed the instant action pro se.2

 Plaintiff alleges that unnamed staff at FCI McKean negligently delayed in diagnosing and

treating his appendicitis and that the United States of America should be held liable for the

medical negligence of its employees under the Federal Tort Claims Act. As relief, Plaintiff 3

seeks:

That due to the deliberate indifference buy [sic] the staff at McKean Federal

Case 1:07-cv-00229-SPB Document 67 Filed 03/17/10 Page 1 of 11
 Plaintiff seeks the appointment of an expert witness pursuant to the Federal Rules of 4

Evidence. That request must be denied. See Hakeem v. Salaam, 260 Fed.Appx. 432, 435 (3d

Cir. 2008); Ford v. Mercer County Correctional Center, 171 Fed.Appx. 416, 420 (3d Cir. 2006)

(“A trial judge does not abuse his discretion in declining to appoint an independent expert solely

to benefit a party who has otherwise failed to gather such evidence as would suffice to overcome

summary judgment.”); Hodge v. United States, 2009 WL 2843332, at *5 (M.D. Pa.) (“It is well

established that plaintiffs proceeding in forma pauperis – including pro se inmates such as

Plaintiff Hodge – are responsible for their expert witness fees in civil actions”). Since his release

from incarceration many months ago, Plaintiff was able to seek out his own expert witness.

2

Correctional Institution which resulted in excessive and unnecessary pain and

suffering as a result of negligent medical care, which almost resulted in “death.” 

A “sum certain” for compensatory damages is requested in the amount of 1.5

million dollars for negligent medical care resulting in excessive and unnecessary

pain and suffering nearly resulting in death.

Document # 5, page 5.

Defendant United States has filed a motion for summary judgment [Document #53] and

in support of that motion, Defendant has obtained the expert opinion of Jamie Stern, M.D.

[Document # 56-6, 56-7]. Plaintiff has filed a brief in opposition to the pending motion

[Document # 59]. 

Plaintiff has also requested that this Court appoint an expert witness on his behalf. By 4

Order dated October 20, 2009, this Court directed that the Clerk of Courts seek counsel on

behalf of Plaintiff. Four such requests were made and all four requests were declined. See

Documents ## 62, 63, 64, and 65. By Order dated December 18, 2009, I vacated the order

directing the appointment of counsel explaining:

This Court only has the power to request representation for civil plaintiffs,

unlike criminal cases where counsel may be appointed by the court. If no

counsel agrees to take a civil case when requested, an order appointing

counsel is appropriately vacated until and if an attorney is found for the

case. That is the case here. If Plaintiff finds counsel willing to represent

him on his own, he may renew his motion without prejudice. Nonetheless,

the case must proceed toward resolution. 

As this case is fully briefed, an Opinion on the motion for summary

judgment will be issued in due course. 

Document # 66. 

Since December of 2009, neither party has filed any additional papers in this case. The

Case 1:07-cv-00229-SPB Document 67 Filed 03/17/10 Page 2 of 11
3

dispositive motion is fully briefed and is ripe for disposition by this Court.

II. Standards of Review 

A. Pro Se Litigants

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521(1972). If

the court can reasonably read pleadings to state a valid claim on which the litigant could prevail,

it should do so despite failure to cite proper legal authority, confusion of legal theories, poor

syntax and sentence construction, or litigant’s unfamiliarity with pleading requirements. Boag v.

MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552,

555 (3d Cir. 1969)(petition prepared by a prisoner may be inartfully drawn and should be read

“with a measure of tolerance”); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992);

Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal

pleading rules, during the initial stages of litigation, a district court should construe all

allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir.

1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P.

12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir.

1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make

inferences where it is appropriate. 

B. Motion for summary judgment 

Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be

granted if the “pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is entitled to judgment

as a matter of law.” Rule 56(e) further provides that when a motion for summary judgment is

made and supported, “an opposing party may not rely merely on allegations or denials in its own

pleading; rather, its response must – by affidavits or as otherwise provided in this rule – set out

Case 1:07-cv-00229-SPB Document 67 Filed 03/17/10 Page 3 of 11
4

specific facts showing a genuine issue for trial. If the opposing party does not so respond,

summary judgment should, if appropriate, be entered against that party.”

A district court may grant summary judgment for the defendant when the plaintiff has

failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v.

American Sterilizer Company, 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the

initial burden of proving to the district court the absence of evidence supporting the non-moving

party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v.

Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further,

“[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential

fact <to demand at least one sworn averment of that fact before the lengthy process of litigation

continues.’” Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting

Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). 

The burden then shifts to the non-movant to come forward with specific facts showing a

genuine issue for trial. Matsushita Elec. Indus. Company v. Zenith Radio Corp., 475 U.S. 574

(1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the

non-movant must present affirmative evidence - more than a scintilla but less than a

preponderance - which supports each element of his claim to defeat a properly presented motion

for summary judgment). The non-moving party must go beyond the pleadings and show specific

facts by affidavit or by information contained in the filed documents (i.e., depositions, answers

to interrogatories and admissions) to meet his burden of proving elements essential to his claim. 

Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case under

applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court

must resolve any doubts as to the existence of genuine issues of fact against the party moving for

summary judgment, Rule 56 “does not allow a party resisting the motion to rely merely upon

bare assertions, conclusory allegation or suspicions.” Firemen’s Ins. Company of Newark, N.J.

v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the

dispute about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury

Case 1:07-cv-00229-SPB Document 67 Filed 03/17/10 Page 4 of 11
5

could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249. 

III. Plaintiff’s Relevant Medical History

Plaintiff claims that prison medical staff negligently delayed diagnosis and rendered

negligent medical treatment for his appendicitis. At this point in the analysis, a review of

Plaintiff’s medical records is appropriate. Plaintiff has a history of hypertension and gout, for

which he routinely visited the Chronic Care Clinic of FCI McKean. Document 20-6, page 2, et

seq. On August 9, 2006, Plaintiff was prescribed the steroid Decadron and Ibuprofen to control

his gout. Id. at pages 2-3. 

Plaintiff alleges that he began complaining of abdominal pain on August 28, 2006, a

week earlier than reflected in the medical records. Document # 5. Defendant has assumed for

purposes of this motion that Plaintiff complained of abdominal pain as early as August 28, 2006

and again on September 2, 2006. See Document # 54, page 14 n.7. 

The prison medical records reflect that on September 4, 2006, McKean medical staff

examined Plaintiff for complaints of abdominal pain and were unable to make a firm diagnosis. 

It was noted that his symptoms indicated either a urinary tract infection (“UTI”) or appendicitis. 

Document # 20-6, at page 21. Staff prescribed Bactrim and Motrin, and instructed Plaintiff to

return the next morning for a follow-up. Id. Early the following morning, Plaintiff returned to

the medical department complaining of increased pain. Id. at pages 19-20. Staff referred him to

the hospital for treatment and a possible appendectomy. Id. 

Plaintiff was admitted to the hospital the same day to the care of physician Nathaniel

Graham, M.D. Id. at page 51. Dr. Graham opined that Plaintiff’s condition was caused by a

“[d]elayed diagnosis of appendicitis in a 64-year-old who has been on Decadron. There is no

specific abscess to drain and I suspect he has had this for nearly a week with symptoms masked

by his various anti-inflammatories taken for his gout, which was appropriate.” Id. at page 51. 

Dr. Graham concluded:

At this point, I think the best course would be to admit him, put him on IVs and

Case 1:07-cv-00229-SPB Document 67 Filed 03/17/10 Page 5 of 11
 All actions brought pursuant to the FTCA must be brought against the United 5 

States of America and not in the name of the allegedly negligent agency, entity or employee. 

28 U.S.C. §§ 2671-2680; 28 U.S.C. § 1346(b). 

6

multiple antibiotics, give vitamin C to help correct the healing defect associated

with steroid use and see if this cools down sufficiently to send him back to FCI

on oral medication, then do an elective interval appendectomy or whether he will

need more urgent surgical procedure.

Id.

Two days later, on September 7th, Plaintiff underwent an appendectomy. Id. at page 52. 

Plaintiff’s post-operative diagnosis was gangrenous ruptured appendicitis with small bowel

obstruction. Id. 

In his opposition to the motion for summary judgment, Plaintiff argues that if prison staff

had not been negligent in their diagnosis and treatment of his appendicitis,

Plaintiff would not have suffered the mental stress of not knowing if he were

going to die or not, would not have had to suffer thru the pain of the infection, the

pain of the operation, nor the physical injury caused by the surgery (the

approximately 2 foot scar) and recovery period. That Plaintiff has the clearly

obvious scar from the operation, the near death trama [sic] from the initial and

improper diagnosis, the prior to pain and suffering, and the post pain and

suffering which are actual injury or damage suffered by Plaintiff.

Document # 59, “Brief in Support of Plaintiff’s Objections to Summary judgment - Renewed

Motion for Jury Trial and Request of Expert Witness,” page 5.

IV. Analysis of the FTCA Claim

Under the principle of sovereign immunity, the United States cannot be sued for

damages unless it consents to being sued. United States v. Mitchell, 445 U.S. 535, 538 (1980). 

However, the Federal Tort Claims Act grants jurisdiction to the federal courts to hear suits

against the United States Government for torts committed by its employees while in the scope 5

of their employment. See 28 U.S.C. § 2675(a). "A waiver of the Federal Government's

sovereign immunity must be unequivocally expressed in statutory text and will not be implied." 

Lane v. Pena, 518 U.S. 187, 192 (1996). The FTCA sets forth the government's consent to be

Case 1:07-cv-00229-SPB Document 67 Filed 03/17/10 Page 6 of 11
6 The consent contained in the FTCA is limited and Congress has expressly provided for

exceptions to the FTCA's waiver of sovereign immunity. 28 U.S.C. § 2680(a)-(n); United States

v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984).

These exceptions are to be construed in favor of the sovereign. United States v. Nordic Village,

Inc., 503 U.S. 30, 32-36 (1992). 

 “Whether a defendant owes a duty of care to a plaintiff is a question of law”

7

(Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1366 (3d Cir.1993)) and revolves around the

relationship between the two parties. In this case, Congress has established a statutory duty of

care to be applied when federal prisoners sue the United States for negligence. Title 18 U.S.C. §

4042 requires “the exercise of ordinary diligence” to keep inmates safe from harm. Id. The

federal courts have construed this statute to include the duty to provide adequate medical care to

all federal inmates. See Cashwell v. United States, 2009 WL 2929444, at *5 (M.D. Pa. Sept. 8,

2009) (“In a case brought by a federal prisoner, federal law preempts any standard of care under

state law and provides that the Bureau of Prisons owes the prisoner ordinary diligence. 18

U.S.C. § 4042.”).

7

sued for the negligent conduct of its employees "in the same manner and to the same extent as a

private individual under like circumstances." Howell v. United States, 932 F.2d 915, 917 (11th

Cir.1991) (citations omitted). 

6

The FTCA does not create a substantive cause of action against the United States, but

provides a mechanism by which a plaintiff may bring a state law tort action against the federal

government in federal court. Hence, in a FTCA action, the district court applies the law of the

state in which the challenged act occurred. See 28 U.S.C. § 1346(b); Gannon v. United States,

292 Fed. Appx. 170, at *2 (3d Cir. 2008); DeJesus v. U.S. Department of Veteran’s

Administration, 479 F.3d 271, 279 (3d Cir. 2007).

In order to establish a cause of action in medical negligence under Pennsylvania law, a

plaintiff bears the burden of demonstrating that there was (1) a duty or obligation owed by the

physician , (2) breach of that duty by the defendants, (3) a causal connection between the 7

defendant’s breach of that duty and the resulting injury, and (4) actual loss or damage suffered

by the complainant. Wooding v. United States of America, 2007 WL 951494, at *3 (W.D. Pa.)

quoting Quinby v. Plumstead Family Practice, Inc., 907 A.2d 1061, 1070 (2006). All of the

elements must be met in order for a plaintiff to recover in tort.

Because the actions of a physician encompass matters not within the ordinary knowledge

Case 1:07-cv-00229-SPB Document 67 Filed 03/17/10 Page 7 of 11
8

and experience of a layperson, Pennsylvania law requires that “as a general rule, a plaintiff has

the burden of presenting expert opinions that the alleged act or omission of the defendant

physician or hospital personnel fell below the appropriate standard of care in the community,

and that the negligent conduct caused the injuries for which recovery is sought.” Wooding,

2007 WL 951494, at *3, quoting Simpson v. Federal Bureau of Prisons, 2005 WL 2387631, at

*5 (W.D. Pa.). The Supreme Court of Pennsylvania has explained this requirement:

Courts sitting in medical malpractice cases require detailed expert testimony

because a [trier of fact] generally lacks the knowledge to determine the factual

issues of medical causation; the degree of skill, knowledge, and experience

required of the physician; and the breach of the medical standard of care. [...]

Determining whether there was a breach of duty, however, involves a two-step

process; the court must first determine the standard of care; it then must examine

whether the defendant’s conduct measured up to that standard. Not only does

the plaintiff have the burden of proving that the defendant did not possess

and employ the required skill and knowledge, or did not exercise the care

and judgment of a reasonable professional, he or she must also provide that

the injury was caused by the failure to employ that requisite skill and

knowledge. We have previously concluded that this must be accomplished

with expert medical testimony presented at trial by doctors testifying as

expert witnesses. 

* * *

We affirm our earlier conclusion, set forth in numerous decisions of this Court

that, medicine being an applied science, the realm of reasonable choice is best

defined by those engaged in the practice, and expert medical testimony on this

issue is required.

Toogood v. Rogal, 573 A.2d 1140, 1149 (Pa. 2003) (emphasis added). However, “expert

testimony is not required when a matter ‘is so simple or the lack of skill or care is so obvious as

to be within the range of experience and comprehension of even non-professional persons.’” 

Wooding, at *3, quoting Simpson, at *5. 

Defendant has come forward with the written opinion of expert witness Dr. Jamie Stern

who opines that Plaintiff’s medical treatment met the appropriate standard of care and that it is

unlikely that a diagnosis of appendicitis would have been made any earlier than September 5,

2006. Dr. Stern specifically notes that Plaintiff’s first complaints of abdominal pain were vague;

that a diagnosis of appendicitis can be difficult, especially in patients of Plaintiff’s age; and, that

even upon admission into the hospital, surgery was not performed for two days. Document #

Case 1:07-cv-00229-SPB Document 67 Filed 03/17/10 Page 8 of 11
9

56-6, page 3.

There is nothing in the record before this Court to support Plaintiff’s speculation that an

earlier diagnosis of his appendicitis would have changed the course of events in this case. Here,

in opposition to the motion for summary judgment, Plaintiff acknowledges that he has not

obtained an expert witness in support of his negligence claim but argues that he “in fact has

established medical malpractice without the testimony of an expert” (document # 59, page 6) 

and cites to the evidence of Dr. Graham’s report which indicates: 

IMPRESSION: Delayed diagnosis of appendicitis in a 64-year-old who has been

on Decadron. There is no specific abscess to drain and I suspect he has had this

for nearly a week with symptoms masked by his various anti-inflammatories

taken for his gout, which was appropriate. Unfortunately, it has let this progress

to a point where it is quite possible the appendix will be difficult to identify,

isolate, and remove in a mass of phlegmonous tissue. 

Document 20-6, pages 61-62. 

Plaintiff misunderstands Pennsylvania law requiring expert medical testimony. See

Toogood. That medical expert’s opinion must be rendered within “a reasonable degree of

medical certainty” as to the specific legal issues of breach of standard of care and the proximate

cause prongs of a negligence case. See Wooding; Montgomery v. South Philadelphia Medical

Group, 656 A.2d 1385, 1390 (Pa. Super. 1995); Mitzelfelt v. Kamrin, 584 A.2d 888, 892 (Pa.

1990). The opinion of the Dr. Graham is not sufficient in this regard on either point. Dr.

Graham does not opine on any issue “with a reasonable degree of medical certainty” - indeed,

Graham lists three differential diagnoses (“urinary tract infection; diverticulitis; or appendicitis,

possibly delayed”) and takes a conservative wait and see approach to Plaintiff’s complaints. 

Additionally, Dr. Graham does not opine as to the specific legal issues of breach of the standard

of care or proximate cause (the causal connection between the breach of duty and the resulting

injury.).

“Without evidence to contradict Defendant’s position on summary judgment, the court

will not make the inferential leap that the medical staff’s acts or omissions in its course of

treatment” are the cause of any resulting injuries. Cashwell, at *5; see also Hakeem, 260 Fed.

Appx. at 435 (“Absent expert opinion that the prison’s treatment deviated from acceptable

Case 1:07-cv-00229-SPB Document 67 Filed 03/17/10 Page 9 of 11
 In fact, Plaintiff has neither pled nor offered evidence sufficient to show that he 8

suffered any injury that could have been prevented or avoided by a different course of treatment

at the prison.

10

medical standards, a reasonable fact-finder could not conclude that the prison acted

negligently.”). 

8

Summary judgment will be granted in favor of the United States. An appropriate order

follows.

Case 1:07-cv-00229-SPB Document 67 Filed 03/17/10 Page 10 of 11
11

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CHARLES NEIDIG, JR. )

Plaintiff, )

)

v. ) C.A. No. 07-229 Erie

) Magistrate Judge Baxter

UNITED STATES OF AMERICA, )

Defendant. )

ORDER

AND NOW, this 17th day of March, 2010;

In light of the foregoing opinion,

IT IS HEREBY ORDERED that Defendant’s motion for summary judgment (Document

# 53) is GRANTED. Judgment is granted in favor of the United States and against Plaintiff.

IT IS FURTHER ORDERED that Plaintiff’s “motion for jury trial and request for expert

testimony” (Document # 58) is denied.

The Clerk of Courts is directed to close this case.

S/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

United States Magistrate Judge

Case 1:07-cv-00229-SPB Document 67 Filed 03/17/10 Page 11 of 11