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DAVIS v. U.S.

October 1, 2002

ROBERT DAVIS, PLAINTIFF,
V.
UNITED STATES OF AMERICA DEFENDANT.



The opinion of the court was delivered by: St. Eve, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff has moved to increase the ad damnum and the amount of damages requested in his administrative claim pursuant to 28 U.S.C. § 2675(b). (R. 6-1.) For the reasons set forth below, Plaintiff's Motion is denied.

BACKGROUND

Plaintiff Robert Davis a veteran who alleges that doctors and staff of the North Chicago Veterans Administration Medical Center in Cook County, Illinois (the "VA") were negligent when they performed a transuretheral incision of the prostate procedure ("TUIP") and a transurethral resection of the prostate procedure ("TURP") to address the Plaintiff's enlarged prostate. (R. 1-1, Compl. ¶ 14-19.) Plaintiff alleges that he suffered various injuries as a result of the TUIP and TURP. (Id. ¶ 22.)

ANALYSIS

Under the Federal Tort Claims Act ("FTCA"), a plaintiff suing the federal government is ordinarily limited to the damages asserted in the administrative claim presented to the federal agency. A plaintiff can increase this amount if he can demonstrate the existence of intervening facts or newly discovered evidence supporting greater damages. See 28 U.S.C. § 2675(b) (an FTCA action "shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased claim 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"); see also Milano v. United States, 92 F. Supp.2d 769, 774 (2000).

As a statute waiving sovereign immunity, the FTCA is strictly construed. Franklin v. Unded States, 992 F.2d 1492, 1503 (10th Cir. 1993); see also United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 1014-1015, 117 L.E.2d 181 (1992) ("the Government's consent to be sued must be construed strictly in favor of the sovereign and not enlarge[d] . . . beyond what the language requires.") (alterations in original; citations and quotations omitted). The Plaintiff bears the burden of demonstrating the existence of intervening facts or newly discovered evidence supporting potential damages in excess of his administrative claim. Milano, 92 F. Supp.2d at 774; Spivey v. United States, 912 F.2d 80, 85 (4th Cir. 1990).

Plaintiff argues that he should be permitted to increase his ad damnum and the amount of damages requested in his administrative claim because, as a lay person, the effect of a potential settlement or damages award on his benefits was not reasonably discoverable to him at the time he prepared his administrative claim. (R. 6-1, Mot. to Increase the Ad Damnum at 3-4.) Alternatively, Plaintiff suggests that the effect of a settlement or damages award on his benefits should be viewed as an intervening fact — and indeed, a fact that has not yet occurred — because any loss of benefits is contingent on the Court finding for him on his present damage claims. (R. 10-1, Reply to Defendant's Response to Plaintiff's Mot. to Increase the Ad Damnum, at 3.)

I. The Exception for Newly Discovered Evidence.

Plaintiff contends that although he was aware of the nature of his injuries at the time he filed his administrative claim, he was unaware of the legal implications of any recovery. Plaintiff suggests that because he prepared his administrative claim without the assistance of an attorney, it was impossible for him to know that a settlement or damages award might cause him to lose his benefits and pension. Plaintiff effectively concedes that if he had 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 ...


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