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.
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.)
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.
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 ...