UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ VERONICA GARCIA, on behalf of the minor children, PCG, PCG, VCG, and SCG; THE ESTATE OF JORGE ALBERTO CARRERA ALVAREZ, Plaintiffs - Appellants,

v. UNITED STATES OF AMERICA, Defendant - Appellee. No. 14-2226 (D.C. No. 2:13-CV -00827-WJ-LAM) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , PORFILIO , and PHILLIPS , Circuit Judges.

________________ _________________ Veronica Garcia appeals the district c ourt’s grant of summary judgment to the government on her malpractice claims br ought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-80 . Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, howev er, for its persuasive value. See Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 16, 2015
Elisabeth A. Shumaker Clerk of Court2 I Ms. Garcia filed this suit on behalf of her children and the estate of her deceased husband, Jorge Al berto Carrera Alvarez, 1 who died two days after he was diagnosed with acute myeloid leukemia. On July 5, 2011, Mr. Carrera and Ms. Garcia went to the Ben Archer H ealth Center (BAHC) in Las Cruces, New Mexico. 2 Mr. Carrera had headaches , fatigue, a fever, and a rash. He was examined by a certified nurse practitioner, Lauri Greis, who noted that Mr. Carrera’s rash was a condition known as “purpura” (purple blotches on the skin) of unknown etiology. Ms. Greis ordered multiple blood tests, a urinalysis, and a ch est x-ray. She instructed Mr. Carrera to have the tests done that day, refrain from work, re st, and return to the clinic in the morning. Ms. Garcia and Mr. Carrera returned to BAHC at 10:00 a.m. on July 6. They met with Ms. Greis, who tes tified that she told them he had leukemia and needed a “swift eval[uation]” by a hema tologist at the only facility in the state capable of providing the level of care he required—t he University of New Mexico Medical Center (UNM) in Albuquerque. Aplt. App. at 147. After Ms. Greis conferred with Dr. Robert Francis at UNM, she referred Mr . Carrera to Dr. Francis and Dr. William

1 We follow the parties’ lead and refer to Mr. Carrera Alvarez as “Mr. Carrera.”

2 Mr. Carrera had been treated at B AHC on June 22, 2011, for pain and bleeding from his gums, which was diagno sed as acute necrotizing ulcerative gingivitis. Ms. Garcia agr eed to dismiss her claims based on that treatment but maintained that Mr. Carrera’s dental record re mained relevant to BAHC’s evaluation of him at later appointments.3 Adler, and cautioned him that “delay c ould cause suffering, complications, [and] even death.” Id. Ms. Garcia and Mr. Carrera left the c linic, but by 2:00 p.m. they had not arrived at UNM. This prompted calls from Ms. Greis’s colleague, Gloria Marmolejo, who spoke to Ms. Garcia at 2:03 p.m. Ms. Marmolejo urged Ms. Garcia “to go to Albuquerque right away” for an “urgent tr ansfusion” or Mr. Ca rrera could die. Id. at 151-52. Ms. Garcia explained, however, that they could not go to Albuquerque because they were undocumented aliens a nd could not travel with their daughters through the border patrol checkpoint along the route to Albuquerque, in Truth or Consequences, New Mexico. This inform ation was relayed to Dr. Francis, who instructed that Mr. Carrera go to an oncologi st at the University Medical Center at Thomason Hospital in El Paso, Texas. Mr . Carrera was admitted to Thomason later that day, but he died on July 8. Ms. Garcia filed this suit under the FTCA, 3 alleging that BAHC negligently mishandled his treatment. 4 The district court grante d summary judgment to the government.

3 The FTCA authorizes persons to sue th e United States “for injury or loss of property, or personal injury or death caused by the neg ligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United Stat es, 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). It is undisputed that BAHC is a qualified entity s ubject to the FTCA. (continued)4 II “We review the district court’s grant of summary judgment de novo[,] . . . view[ing] the evidence and draw[ing] reasonable infere nces in the light most favorable to the nonmovant.” Seifert v. Unified Gov’t , 779 F.3d 1141, 1150 (10th Cir. 2015). Summary j udgment is appropriate “if th e movant shows that there is no genuine dispute as to any material fact and the m ovant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) . “To defeat a motion for summary judgment, the nonmoving party must show specific eviden ce that creates a genuine issue as to a material fact.” Rice v. Office of Servic emembers’ Grp. Life Ins. , 260 F.3d 1240, 1249 (10th Cir. 2001). One of the district court’s grounds fo r granting summary judgment was that causation had to be proved by expert te stimony but Ms. Garcia offered no such testimony. See Miller v. United States , 463 F.3d 1122, 1123 (10th Cir. 2006) (FTCA liability determined under law of st ate where act or omission occurred) ; Gerety v.
Demers , 589 P.2d 180, 191 (N.M. 1978) (“[I]n mo st medical malpractice suits expert medical testimony must be adduced to estab lish a standard of car e, to assess the doctor’s performance in light of the standa rd, and to prove causation.”). On appeal Ms. Garcia does not dispute the need for expert testimony on causation; and since Mr. Carrera’s condition is outside the co mmon experience of lay people, expert

4 Ms. Garcia asserted clai ms for loss of chance, neg ligence, loss of consortium, prima facie tort, vicarious li ability, medical malp ractice, wrongful death, intentional infliction of emotional distress, and neg ligent infliction of em otional distress.5 testimony was clearly necessary, see Alberts v. Schultz , 975 P.2d 1279, 1284 (N.M. 1999)

. Yet Ms. Garcia does not point to any expert testimony to support causation, and we have found none. Ms. Garcia offered a report from Dr. R obert Gale in which he opined that Mr. Carrera had acute myeloid leukemia, a condition that can probably be treated successfully. But the report did not addre ss whether his condition was still treatable at the time he was seen at BAHC; and at Dr . Gale’s deposition, he explicitly testified that he had no opinion on whether the car e provided by Ms. Greis and others at BAHC caused Mr. Carrera’s injuries and d eath. Ms. Garcia also offered a report from certified nurse practiti oner Christina Sanders. Bu t the report addresses only standard of care, not causation; and at he r deposition she declined to offer an opinion on causation, stating, “I don’t have a causa tion opinion. I think the earlier you have access to care, the higher the likelihood that you can have a positiv e result at the end, but it’s outside of my scope of practice to opine on cau sation in this matter,” Aplt. App. at 108. In the absence of any evidence of causation, we must affirm. Although Ms. Garcia argues that there are factual disputes, none are relevant to causation because she has not presented any expert testimony supporting causation under any version of the facts. The judgment of the distri ct court is affirmed. Entered for the Court

Harris L Hartz Circuit Judge