UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-7245

CHRISTOPHER LANCASTER,

Plaintiff - Appellant,

v.

USP HAZELTON,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of West Virginia, at 

Martinsburg. Gina M. Groh, Chief District Judge. (3:16-cv-00030-GMG-RWT)

Submitted: April 30, 2018 Decided: July 26, 2018

Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Christopher Lancaster, Appellant Pro Se. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Christopher Lancaster, a federal inmate, appeals the district court’s order adopting 

the magistrate judge’s recommendation in part and denying relief on Lancaster’s complaint 

pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-2680 

(2012). Lancaster challenges the district court’s conclusions that his assault and battery 

claim is barred by the discretionary function exception to the FTCA and that he was 

required to file a screening certificate of merit, pursuant to W. Va. Code § 55-7B-6(b) 

(2016 & Supp. 2017), prior to filing his medical negligence claim. We affirm.*

I.

Under the FTCA, the Government has “waived sovereign immunity for claims 

brought against the United States based on the negligence or wrongful acts or omissions of 

its employees committed within the scope of employment, accepting liability in the same 

manner and to the same extent as a private individual would have under like 

circumstances.” Wood v. United States, 845 F.3d 123, 127 (4th Cir. 2017). Several 

exceptions apply to this waiver, including the discretionary function exception. Id. Under 

the discretionary function exception, the FTCA does not apply to claims “based upon the 

exercise or performance or the failure to exercise or perform a discretionary function or 

duty on the part of a federal agency or an employee of the Government, whether or not the 

 * We disagree with the district court’s finding that Lancaster failed to file timely 

objections to the magistrate judge’s report and recommendation. However, because the 

district court stated that it would reach the same disposition even if the objections were 

timely filed, we conclude that any error associated with the timeliness of Lancaster’s 

objections is harmless.
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discretion involved be abused.” 28 U.S.C. § 2680(a). We review a district court’s decision 

that the discretionary function exception applies de novo. Indem. Ins. Co. of N. Am. v. 

United States, 569 F.3d 175, 179 (4th Cir. 2009). 

After reviewing the evidence, including the video surveillance of the incident in 

question, we conclude that the district court correctly granted summary judgment in favor 

of the Government on Lancaster’s assault and battery claim on the ground that the 

correctional officers were performing a discretionary function when they used force against 

Lancaster. See Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 208-09 (4th Cir. 2017) 

(stating standard of review); Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009) 

(explaining that, “when the jurisdictional facts and the facts central to a tort claim are 

inextricably intertwined, the trial court should ordinarily assume jurisdiction and proceed 

to the intertwined merits issues”). 

II.

To determine liability under the FTCA, courts apply “the law of the place where the 

negligent act or omission occurred.” Cibula v. United States, 664 F.3d 428, 430 (4th Cir. 

2012) (brackets and internal quotation marks omitted). The district court properly used 

West Virginia law to assess Lancaster’s medical negligence claim.

Medical negligence claims in West Virginia are governed by the Medical 

Professional Liability Act. Banfi v. Am. Hosp. for Rehab., 529 S.E.2d 600, 605 (W. Va. 

2000); see W. Va. Code § 55-7B-3 (2016). Generally, “in medical malpractice cases[,] 

negligence or want of professional skill can be proved only by expert witnesses.” Banfi, 

529 S.E.2d at 605 (internal quotation marks omitted). However, failure to produce expert 
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testimony “is not fatal to a plaintiff’s prima facie showing of negligence” when “lack of 

care or want of skill is so gross, so as to be apparent, or the alleged breach relates to 

noncomplex matters of diagnosis and treatment within the understanding of lay jurors by 

resort to common knowledge and experience.” Id. at 605-06 (internal quotation marks 

omitted). Whether an expert is required is within the discretion of the court, and the court’s 

decision on the matter is therefore reviewed for abuse of discretion. Id. at 605.

In light of the importance of expert testimony, West Virginia requires plaintiffs to 

file a screening certificate of merit at least 30 days prior to the filing of a medical 

negligence claim. W. Va. Code § 55-7B-6(b). The certificate of merit must be executed 

under oath by a health care provider and state the expert’s familiarity with the standard of 

care, her qualifications, and her opinion about how the standard of care was breached and 

how the breach resulted in the injury or death. Id. However, recognizing that not all 

medical malpractice cases require expert testimony, West Virginia provides a plaintiff with 

an option if he believes that such testimony is not required in his case—he may “file a 

statement specifically setting forth the basis of the alleged liability of the health care 

provider in lieu of a screening certificate of merit.” W. Va. Code § 55-7B-6(c) (2016 & 

Supp. 2017). “[T]his exception is not easily invoked, as a plaintiff seeking to do so must 

overcome the general presumption in West Virginia medical malpractice law that 

negligence or want of professional skill can be proved only by expert witnesses.” Callahan 

v. Cho, 437 F. Supp. 2d 557, 562 (E.D. Va. 2006) (internal quotation marks omitted); see 

Totten v. Adongay, 337 S.E.2d 2, 7 (W. Va. 1985) (describing “common knowledge 

exception” as “rare”).
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The Supreme Court of Appeals of West Virginia has clarified that “[t]he 

requirement of a pre-suit notice of claim and screening certificate of merit is not intended 

to restrict or deny citizens’ access to the courts.” Hinchman v. Gillette, 618 S.E.2d 387, 

394 (W. Va. 2005). Rather, “in determining whether a notice of claim and certificate are 

legally sufficient, a reviewing court should apply [§ 55-7B-6] in light of the statutory 

purposes of preventing the making and filing of frivolous medical malpractice claims and 

lawsuits; and promoting the pre-suit resolution of non-frivolous medical malpractice 

claims.” Id. at 395. The appropriate inquiry is whether the plaintiff “has demonstrated a 

good faith and reasonable effort to further the statutory purposes.” Id. 

We conclude that the district court did not abuse its discretion in determining that a 

medical expert is required to prove Lancaster’s medical negligence claim. We agree that 

Lancaster did not allege that he was denied medical care altogether but complained that he 

did not receive proper medical care for his injuries. The proper course of treatment for 

injuries such as head trauma is not within the common knowledge of a lay person. We also 

agree with the court’s conclusion that the good faith exception does not apply. Here, 

Lancaster submitted a document labeled “Certificate of Merit” (in which he argued no such 

certificate was required) more than one year after this case was filed. See id. (“[T]here 

would seem to be no sense or utility in allowing amendment of a pre-suit notice and 

certificate after suit is filed.”). Notably, the court properly dismissed the medical 

negligence claim without prejudice. See Cline v. Kresa-Reahl, 728 S.E.2d 87, 98 (W. Va. 

2012) (explaining that, if court undertakes good faith analysis and finds plaintiff’s efforts 
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to promote the statutory purposes wanting, it may dismiss the complaint without prejudice 

to ensure that it does not restrict access to court).

III.

Accordingly, we affirm the district court’s judgment. We dispense with oral 

argument because the facts and legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional process.

AFFIRMED