consulted with an attorney prior to
filing his administrative claim, he would have been aware of the effect
of a settlement or damages award on his benefits and pension. Thus,
reduced to its essence, Plaintiff's claim is that the "reasonable
diligence" mandated under Section 2675(b) did not require him to consult
with an attorney.
The courts, however, have rejected the proposition that an FTCA
plaintiff is excused from consulting with doctors or other experts as part
of his or her "reasonable diligence." United States v. Kubrick,
444 U.S. 111, 123, 100 S.Ct. 352, 360, 62 L.Ed.2d 259 (1979) ("A
plaintiff . . . armed with the facts about the harm done to him, can
protect himself by seeking advice in the medical and legal community. To
excuse him from promptly doing so by postponing the accrual of his claim
would undermine the purpose of the limitations statute, which is to
require the reasonably diligent presentation of tort claims against the
Government"); Fraysier v. United States, 766 F.2d 478, 481 (11th Cir.
1985) (in determining whether the exception under Section 2675(b) is
available, the plaintiff could not be held to a standard that charges him
with "knowing what the doctors could not tell him.") (emphasis added).
In Wollman v. Gross, for example, the Eighth Circuit affirmed the
dismissal of a plaintiff's FTCA claim on statute of limitations grounds
where the plaintiff had been ignorant of the legal implications of the
defendant's status as a government employee. 637 F.2d 544, 549 (8th Cir.
1980). The Wollman case arose from an automobile collision between the
plaintiff and an employee of the Agriculture Stabilization and
Conservation Service ("ASCS"). Although he had been aware that the
defendant was a government employee, the plaintiff failed to timely file
an administrative claim because he had been unaware that the defendant
was acting within the scope of his employment at the time of the
accident. Thus, the plaintiff argued that he should be excused from the
statute of limitations because of "blameless ignorance." Id. at 547. The
district court disagreed, holding that the plaintiff's claims were
time-barred, and the plaintiff appealed.
On appeal, the Eighth Circuit rejected the plaintiff's "blameless
ignorance" argument. Citing Kubrick, the Eighth Circuit reasoned that if
the plaintiff had exercised reasonable diligence, he would have become
aware of the legal implications of the defendant's status as a government
[The plaintiff] was aware at the time of the accident
that [the defendant] was employed by the ASCS. He was
unaware only of the legal significance of this fact.
The purpose of the statute of limitations is to
require the reasonably diligent presentation of tort
claims. This may require a plaintiff to obtain
appropriate legal counsel and together with counsel
discover the facts and their possible legal
ramifications so as to enable plaintiff to bring the
suit within a reasonable time.
Id. at 549 (citing Kubrick, 444 U.S. at 123, 100 S.Ct. at 360). See also
Steele v. United States,
the employee had been acting within the scope of his employment).
Although the present case does not involve statute of limitations
issues under the FTCA like Kurbick and Wollman, those cases are
nonetheless instructive. They stand for the proposition that "reasonable
diligence" under the FTCA requires that the plaintiff consult with
doctors, lawyers and other experts when investigating his or her claim.
In this case, if the Plaintiff had consulted with an attorney prior to
preparing his administrative claim, he would have been aware of the effect
of a settlement or damages award on his benefits and pension. Thus, it is
clear that the legal implications of a settlement or damages award cannot
be considered newly discovered evidence justifying an increase in the ad
damnum or the amount of his administrative claim.
II. The Exception B.R. Intervening Facts.
Plaintiff also attempts to shoehorn his request for leave to increase
the ad damnum and the amount of damages requested in his administrative
claim into the exception under Section 2675(b) for intervening facts. In
his reply brief, Plaintiff suggests that the effect of a damages award on
his other benefits should constitute an intervening fact because any loss
of benefits cannot occur unless and until the Court actually awards him
some damages in the first place. (R. 10-1, Reply to Def's Resp. to Pl.'s
Mot. to increase the Ad Damnum at 3.)*fn1
Plaintiff's argument proves too much. If the effect of an eventual
damages award on Plaintiff's benefits is truly an intervening fact, then
Plaintiff is essentially saying that he could not have considered it at
the time he prepared his administrative claim. But Plaintiff does not
make that argument. To the contrary, Plaintiff admits that it was
possible to consider the effect of a potential damages award on his
benefits. Plaintiff simply claims that he should be excused from any duty
or responsibility to consider that effect because he prepared his
administrative claim without the assistance of an attorney. (R. 6-1,
Mot. to Increase the Ad Damnum at 3-4.)
In fact, the potential loss of benefits would constitute an intervening
fact only if the rules for countable income had been changed after
Plaintiff prepared his administrative claim. Cf. O'Rourke v. Eastern Air
Lines, Inc., 730 F.2d 842, 856 (2d Cir. 1984) ("[C]ourts have ruled on
the scope of [Section 2675(b)] have granted motions to amend ad damnum
clauses only when an unexpected change occurred either in the law or in a
medical diagnosis."); see also McMichael v. United States, 856 F.2d 1026,
1035-1036 (8th Cir. 1988) (upholding recovery in excess of administrative
claim because unprecedented inflation qualified as an "intervening fact"
and because it was "unforseeable" that the case would remain in
litigation for ten years).
Thus, Plaintiff's belated understanding of the implications of a
settlement or damages award cannot be considered intervening facts
justifying an increase in the ad damnum or the amount of his
Plaintiff's Motion to Increase the Ad Damnum and the Amount of Damages
Requested in His Administrative Claim (R. 6-1) is denied.