Summary
rejecting argument that expert report was newly discovered evidence where "nothing in the record suggests that [the expert]would not have come to the same conclusion had he examined plaintiff" at time he filed his administrative claim
Summary of this case from Ott v. United StatesOpinion
No. C00-4620 BZ
April 26, 2002
ORDER DENYING PLAINTIFF'S REQUEST TO AMEND HIS COMPLAINT
At the pretrial conference, plaintiff sought to amend his complaint to seek damages in excess of his $324,000 claim before the Coast Guard. The Federal Tort Claims Act ("FTCA") imposes a statutory cap on any damages sought "in excess of the amount of the claim presented to the federal agency . . ." 28 U.S.C. § 2675(b). In order to qualify for an exception to the statutory cap, plaintiff has the burden of establishing that "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." Id. See also Richardson v. U.S., 841 F.2d 993, 999 (9th Cir. 1988) (for plaintiff to prevail, "the district court should determine whether the full extent of [his] injuries was reasonably foreseeable" at the time of his administrative claim). In my April 17, 2002 Final Pretrial Order, I took plaintiff's request under submission subject to the evidence presented at trial.
After considering all the evidence, I find that plaintiff has not met his burden of showing that when he filed his administrative claim on June 7, 2000, it was not reasonably foreseeable for plaintiff to have claimed damages substantially in excess of his administrative claim along the lines of what he claimed at trial. At the time plaintiff filed his administrative claim, he had been experiencing persistent pain for almost a year and a half. It was clear to plaintiff that his injuries, which Dr. Andrews had suggested would "linger for as long as nine months" from the date of the accident, (Pl.'s Ex. F-7), were not going to heal in the foreseeable future. As early as March, 2000, plaintiff was aware that his symptoms were serious enough that Dr. Jones had suggested spinal surgery. (Id. at Ex. L-5.) According to the evidence, plaintiff's ability to work had also suffered significantly. Of the cases plaintiff testified he referred or declined as a result of the accident, he had referred a majority of them by the time he filed his administrative claim.
Plaintiff points to Dr. Mandell's expert report, dated July 1, 2001, which states that plaintiff's 25% work limitation was permanent, as proof of "newly discovered evidence" and "intervening facts" not reasonably foreseeable at the time of filing his administrative complaint. However, nothing in the record suggests that Dr. Mandell would not have come to the same conclusion had he examined plaintiff in June, 2000. In fact, plaintiff testified that he had heard from other doctors that his symptoms might be permanent prior to Dr. Mandell's July 1, 2001 report. Finally, even if the court were to accept that plaintiff first discovered the permanent degree of his disability on July 1, 2001, plaintiff has provided no explanation as to why he did not seek to amend his complaint at that time. Fraysier v. U.S., 766 F.2d 478 (11th Cir. 1985), upon which plaintiff relies, is readily distinguishable. In Fraysier, a case in which the facts are "not susceptible to a broad approach," id. at 479, the plaintiff was granted damages at trial in excess of those claimed before the administrative agency. When Fraysier filed his claim with the administrative agency, he was under the mistaken impression that he was suffering from a bacterial infection that was easily cured.
In reality, his doctors had failed to diagnose him with Guillain-Barre Syndrome, a subtle and complex injury with a high potential for permanent consequences. Id. at 480.
Fraysier's discovery of this condition after the filing of his administrative claim constituted "newly discovered evidence" because he was not even aware of the true nature of his symptoms. In contrast, not only was Mr. Hill aware of the true nature of his injury, he was aware of its severity as well.
Therefore, IT IS HEREBY ORDERED that plaintiff's request to amend his complaint to exceed damages in the amount of $324,000 is DENIED.