Opinion
Case No. 3:16-cv-00654-YY
11-02-2018
KYLE THOMPSON, Personal Representative of the Estate of Michael Eugene McGinness, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
FINDINGS AND RECOMMENDATIONS :
Plaintiff Kyle Thompson, acting as personal representative of the Estate of Michael Eugene McGinness ("decedent"), has brought a claim against defendant United States of America, alleging wrongful death and seeking damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. Plaintiff seeks leave to amend the complaint to add allegations that Dr. Miranda Devine ("Dr. Devine") prescribed a nonsteroidal anti-inflammatory drug ("NSAID") to decedent on April 12, 2013, and to increase the prayer for relief from $2 million to $5 million in noneconomic damages.
For the reasons that follow, plaintiff's motion should be denied.
BACKGROUND
Decedent passed away on April 17, 2013, after being treated at the Portland Veterans Administration ("VA") Hospital. Compl. ¶ 6, ECF #1. On May 20, 2013, a member of decedent's family requested his VA Hospital records dating from January 2009 to May 5, 2013. Decl. of Brian Roth ("Roth Decl.") ¶ 2, ECF #56; id., Ex. 1, ECF #56-1. The hospital provided the records on June 27, 2013. Id. ¶ 3; id., Ex. 2, ECF #56-2. In April 2015, the VA received administrative claim forms seeking $2 million in damages for the wrongful death of decedent. Richards Decl. ¶ 4, ECF #9.
FINDINGS
I. FRCP 15(a)(2)
Rule 15(a)(2) provides that "[t]he court should freely give leave when justice so requires." However, leave to amend "is not to be granted automatically." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (emphasis added). The court "may exercise its discretion to deny leave to amend due to 'undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, . . . [and] futility of amendment.'" Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)) (alterations in original).
II. Increase in Prayer Amount from $2 Million to $5 Million
Plaintiff's request to amend the prayer from $2 million to $5 million should be denied as futile because he has not satisfied either of the exceptions to the sum certain requirement under the FTCA.
A. Relevant Law of FTCA Sum Certain Requirement
"The jurisdiction of federal courts to entertain actions for damages against the United States is limited by the Federal Tort Claims Act[]." Warren v. U.S. Dept. of Interior Bureau of Land Mgmt., 724 F.2d 776, 777 (9th Cir. 1984) (en banc) (citing 28 USC § 2675(a) (1982)). The FTCA waives the United States' sovereign immunity for actions in tort, permitting claimants to sue the federal government in district court. See 28 U.S.C. § 2675(a); Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir. 1995).
An action under the FTCA
shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.28 U.S.C. § 2675(b). "The manifest purpose of the sum certain requirements of § 2675 is to ensure that federal agencies charged with making an initial attempt to settle tort claims against the United States are given full notice of the government's potential liability." Martinez v. United States, 780 F.2d 525, 530 (5th Cir. 1986).
"While many courts recognize these two exceptions are distinct, with 'newly discovered evidence' referring to evidence existing, but not discoverable, at the time a claim is filed and 'intervening facts' relating to information or events arising after the filing of the claim, the key issue for both exceptions is foreseeability." Priest v. United States, 3:14-cv-500-AC, 2015 WL 6457997, at *5 (D. Or. 2015) (citations omitted). The burden is on a plaintiff to prove that an amendment to an FTCA damages claim is either supported by "newly discovered evidence" or an "intervening fact." Salcedo-Albanez v. United States, 149 F. Supp. 2d 1240, 1243 (S.D. Cal. 2001).
B. Analysis
Plaintiff originally presented this claim to the VA with a demand for $2 million. See SF 95 Forms, ECF ##9-1-9-3. Under § 2675(b), plaintiff may not increase the demand to $5 million unless he meets either the "newly discovered evidence" or "intervening facts" exceptions. Plaintiff contends that both exceptions are triggered by (1) the recent discovery of a prescription bottle for Naproxen, a NSAID, dispersed by the VA on April 12, 2013, and (2) the deposition testimony of Drs. Melchor and Hunsaker.
i. "Newly Discovered Evidence" Exception
The typical case involving the "newly discovered evidence" exception turns on whether the deterioration of a plaintiff's condition after the filing of an administrative claim was foreseeable knowing the plaintiff's prognosis at the time of the filing. See, e.g., Malmberg v. United States, No. 506-CV-1042-FJS-TWD, 2018 WL 1801958, at *3 (N.D.N.Y. Apr. 13, 2018) (citing Barrett v. United States, 622 F. Supp. 574, 594 (S.D.N.Y. 1985), aff'd 798 F.2d 565 (2d Cir. 1986)). Here, decedent passed away in April 2013, two years before plaintiff filed an administrative claim. Thus, decedent's condition could not have deteriorated after the filing of the claim.
Moreover, plaintiff's discovery of the Naproxen bottle does not trigger the "newly discovered evidence" exception because decedent's medical records already revealed this evidence. VA medical records clearly show that Dr. Devine prescribed Naproxen on April 12, 2013. Roth Decl. ¶ 6, ECF #56; id., Ex. 3, at 2, ECF #56-3. Dr. Devine's April 12, 2013 Progress Note includes Naproxen in a list of "medications prescribed today," and states that "[patient] will d/c home on PPI, Zofran and judicious naproxen for pain." Id., Ex. 3, at 2, 6. Subsequent discovery of the prescription bottle does not negate that plaintiff already had notice of the prescription from decedent's medical records, which the VA produced on June 27, 2013—more than a year before plaintiff filed the claim. "Information a plaintiff could have discovered with reasonable diligence does not qualify as newly discovered evidence or intervening facts." Priest, 2015 WL 6457997, at *5 (citing Richardson v. United States, 841 F.2d 993, 999 (9th Cir.1988), as amended, 860 F.2d 357 (9th Cir. 1988)).
Nonetheless, plaintiff argues that deposition testimony by Drs. Melchor and Hunsaker contradicts the medical records, somehow making what was clearly included in the medical records undiscoverable until plaintiff found the prescription bottle. Dr. Melchor testified that he prescribed the NSAID, Meloxicam, to decedent, and it was the only prescription for a NSAID that decedent received through the VA. Decl. of R. Grant Cook ("Cook Decl."), Ex. 1 (Melchor Dep.), 16:25-17:2, 17:11-13, ECF #62. Dr. Melchor testified that decedent did not have a prescription for Naproxen, which he described as an "over-the-counter medication that [decedent] took when he needed it." Id. 19:13-14, 21:1-3. Dr. Hunsaker testified that, when decedent was first hospitalized at the VA, the only prescription he had for NSAIDs was Meloxicam. Cook Decl., Ex. 2 (Hunsaker Dep.), 14:7-8, ECF #62. She believed Naproxen was listed on his chart as a "non VA med," i.e., an over-the-counter medication. Id. 15:19-23.
Thus, as plaintiff contends, the deposition testimony appears to contradict the medical records in terms of whether decedent had a VA prescription for Naproxen. However, what other VA doctors may or may not have known about decedent's NSAID prescriptions, medical condition and history, and the care they provided based on that information go to the merits of plaintiff's wrongful death claim. Their testimony does not reveal some new evidence that was previously undiscoverable; decedent's medical records, which were produced on June 27, 2013, already revealed Dr. Devine's April 12, 2013 prescription for Naproxen. Therefore, the "newly discovered evidence" exception is inapplicable.
ii. "Intervening Fact" Exception
Plaintiff also argues that discovery of the Naproxen bottle is an intervening fact that justifies amendment of the complaint. Reply 2, ECF #59. Again, he contends that discovery of the bottle contradicts testimony by Drs. Melchor and Hunsaker regarding what NSAIDs were prescribed to decedent before he passed away, and the fact is intervening because of this contradiction. Id.
An intervening fact relates to information or events arising after the filing of the claim. Richardson, 841 F.2d at 999, as amended, 860 F.2d 357 (9th Cir. 1988); see also S.H. by Holt v. U.S., 853 F.3d 1056, 1064 (9th Cir. 2017) (concurring), cert. denied sub nom. S.H. ex rel. Holt v. U.S., 138 S. Ct. 517 (2017); Priest, 2015 WL 6457997, at *5. Here, the claim was filed on April 20, 2015, but Dr. Devine prescribed NSAIDs on April 12, 2013. Thus, the fact that Dr. Devine prescribed NSAIDs on April 12, 2013, cannot be intervening because it occurred before the claim was filed. That plaintiff purportedly discovered the bottle after filing the claim is inapposite. The question under the "intervening fact" exception is when the event—in this case, the prescription—occurred. The prescription was made on April 12, 2013, as discussed above. Therefore, the "intervening fact" exception is also inapplicable.
In sum, plaintiff's proposed amendment to increase the prayer to $5 million is prohibited under either exception to the sum certain requirement of the FTCA. Because amendment would be futile, plaintiff's motion to amend should be denied.
III. New Allegations Regarding Dr. Devine
In addition to increasing the prayer amount, plaintiff also seeks leave to specifically name Dr. Devine in the complaint and allege that she "prescribed [decedent] additional NSAIDs." Proposed First Amended Complaint ¶¶ 5, 7, 10, ECF #51. This amendment is unnecessary and redundant. In his complaint, plaintiff generally alleges that "VA personnel provided medical treatment to [decedent], including the prescribing of NSAIDs" and "VA personnel breached" the duty of care in their prescription of NSAIDs. Complaint ¶¶ 6, 10, ECF #1. As the term "VA personnel" already includes Dr. Devine, the proposed amendments do not differ in any material respect from the original allegations. Moreover, this case has been pending since April 2016, fact discovery was completed in January 2018, and the medical records containing information regarding Dr. Devine's prescription were turned over in June 2013, over five years ago. Given the undue delay of this request, and the fact the proposed amendments are unnecessary and redundant, the motion should be denied.
IV. ORS 31.170
In its response, defendant argues that ORS 31.170 precludes plaintiff's motion to amend. At the hearing on the motion, defendant withdrew this argument. Therefore, this court need not consider it.
RECOMMENDATIONS
For the reasons set forth above, plaintiff's motion for leave to amend (ECF #48) should be DENIED.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, November 16, 2018. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
This Findings and Recommendations is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.
DATED November 2, 2018.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge