## United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 23

- 2251

___________________________ Oral Moore Plaintiff - Appellant

v.
United States of America Defendant - Appellee

____________ Appeal from United States District Court for the Eastern District of Arkansas - Northern

____________ Submitted: January 11, 2024 Filed: March 11, 2024 [Unpublished]

____________ Before BENTON, ERICKSON, and KOBES, Circuit Judges.

____________
PER CURIAM

.

Oral Moore sue s 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-2- a surgical implantation of an inflatable penile prosthesis

. The d istrict c ourt 1 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 . H aving 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) (t his 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.-3- 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)

. S ee Brown v. L a.
- 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. (inte rnal 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

.-4- 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)

.
* * * * * * *
The judgment is affirmed.

______________________________