United States Court of Appeals

For the Eighth Circuit 

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No. 23-2251

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Oral Moore

 Plaintiff - Appellant

v.

United States of America

 Defendant - Appellee

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Appeal from United States District Court 

for the Eastern District of Arkansas - Northern

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Submitted: January 11, 2024

Filed: March 11, 2024

[Unpublished]

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Before BENTON, ERICKSON, and KOBES, Circuit Judges. 

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PER CURIAM. 

Oral Moore sues 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
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a surgical implantation of an inflatable penile prosthesis. The district court1 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. Having 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) (this 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.
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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). 

See Brown v. La.-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. (internal 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. 
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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). 

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The judgment is affirmed.

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