United States District Court, S.D. Illinois
October 6, 2005.
CASEY RIEDEMANN, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
The opinion of the court was delivered by: DONALD WILKERSON, Magistrate Judge
This matter is before the Court on the Motion to Amend the
Complaint filed by the Plaintiff, Casey Riedemann, on June 28,
2005 (Doc. 21) and the Motion to Limit Plaintiff's Damages Claim
filed by the defendant, the United States of America, on July 18,
2005 (Doc. 26). For the reasons set forth below, the Motion to
Amend is DENIED and the Motion to Limit is GRANTED.
The Plaintiff alleges that she was involved in a traffic
accident with a United States Postal Office truck on May 11,
2002. She filed a "Claim for Damage, Injury, or Death"
(hereinafter "claim") with the United States Postal Office
pursuant to the Federal Tort Claims Act (FTCA) on August 21, 2003
claiming $250,000 in personal injuries and $200.00 in property
damage. After this claim was denied, the Plaintiff filed a
lawsuit with this Court on March 4, 2004. In the present motion
to amend, the Plaintiff seeks to amend her complaint to increase
her prayer for damages due to increased medical costs, and pain
and suffering, incurred after she filed her claim.
When the Plaintiff filed her motion to amend, this matter was
scheduled for the presumptive trial month of August, 2005. This matter now has been
reset and has a final pretrial conference scheduled on October
17, 2005 with a presumptive trial month of November, 2005.
On September 20, 2005, this Court conducted an evidentiary
hearing on the Plaintiff's motion to amend. Each party presented
arguments regarding whether the Plaintiff may amend her pleading
at this stage of the proceedings. The Plaintiff presented, as
evidence, documents that she had submitted to chambers and which
also are attached to the Plaintiff's motion to amend. Plaintiff's
Exhibit A is a letter dated May 30, 2002 to Attorney Rich
regarding the Plaintiff's claim. Plaintiff's Exhibit B is the
claims form itself. Plaintiff's Exhibit C is an Emergency Room
Report dated September 20, 2003 from the Edward A. Utlaut
Memorial Hospital. Plaintiff's Exhibit D is an Initial Spinal
Examination report (with attachments) dated November 6, 2003 from
The Orthopedic Center of St. Louis.*fn1 The Defendant
presented the entire transcript of Dr. Matthew Gornet's
deposition, which was taken on August 8, 2005. In addition to
these exhibits presented at the hearing, the Defendant attached
the deposition transcript of the Plaintiff, taken on January 20,
2005, to its motion to limit damages. The Defendant also has
attached, as Exhibit 1, the entire claims form which includes a
list of medical treatment dates and places. The Defendant's two
remaining exhibits are a Radiology Report dated December 16, 2002
(Exhibit 3) and an Initial Interview form dated May 11, 2002 from
the Edward A. Utlaut Hospital (Exhibit 4).
The evidence presented reveal a number of undisputed facts.
Prior to the accident, the Plaintiff was fully aware that she had an allergy to latex and
that it caused adverse physical reactions (Pl. Ex. D at p. 8). As
stated above, the accident occurred on May 11, 2002. The
Plaintiff sought medical care immediately thereafter (Casey
Riedemann Deposition, 1/20/05, pp. 18-19). The Plaintiff
testified that, after the accident, she was placed on bed rest
for "severe back pain" (Riedemann Dep. at p. 25). A week after
the accident, the Plaintiff, who was thought to have whiplash,
was prescribed physical therapy for her neck and low back by Dr.
Tricia Gifford. (Riedemann Dep. at p. 26, 28). She also began
seeing Dr. Matthew Chanault, a chiropractor, and had a number of
x-rays taken in the Fall of 2002*fn2 (Riedemann Dep. at p.
29-30). Her neck problems resolved by the end of 2002 with
chiropractic care and physical therapy (Riedemann Dep. at pp.
34-35). Her back problems, however, did not resolve. A December
16, 2002 x-ray revealed: "mild end-plate degenerative change at
L5-S1 with grade I anterior spodylolisthesis of L5 on S1 and
spondylolysis at this level. There is most likely neural
foraminal narrowing at this level" (Def. Ex. 3 (all caps
omitted)). The Plaintiff also saw Dr. Burger, a neurologist, in
the first half of 2003 for her back pain and continued to see Dr.
Gifford for her back pain (Riedemann Dep. at p. 33). Dr. Burger
performed "epidural blocks" for her back pain that did not result
in "permanent relief" (Riedemann Dep. at p. 34). The Plaintiff
argued that, prior to the filing of her claim, she was being
treated conservatively, i.e. non-surgically, with minimal relief
of her back pain
On August 21, 2003, the Plaintiff filed her claim with the
United States Post Office (Pl. Ex. B, p. 1). In this claim, the
Plaintiff alleged $250,000 in personal injury damages and $200.00 in property damage (Pl. Ex. B, p. 1). The claim also
states: "See Medical Records regarding Casey Ann Riedemann, Date
of Accident, 5-11-02. Ms. Riedemann is still treating and has
been referred to an orthopedic surgeon for evaluation on
11-14-03" (Pl. Ex. B, p. 1). Attached to the claim is a listing
of the medical care that the Plaintiff had received and the
appointments that she will have in the future (Def. Ex. 2 at pp.
3-6). The Plaintiff's subsequent medical treatments began with a
trip to the emergency room on September 20, 2003 (Pl. Ex. C).
The report of the September 20, 2003 hospital visit states that
the Plaintiff appeared because of back pain (Pl. Ex. C). This
report further indicates:
Mrs. Riedemann, a 25 year old while female, complains
of low back pain. She states that her back pain is
particularly severe today with radiation down both
legs. She has had chronic back pain for about one
year since a motor vehicle accident. She denies any
recent fever, chills, dysuria or urinary frequency.
The report states a diagnosis of "Chronic back pain" and an
apparent prescription of Vicodin. Thereafter, the Plaintiff began
to see Dr. Matthew F. Gornet starting on November 6, 2003 (Pl.
Ex. D). Dr. Gornet's reports show that during the Plaintiff's
"first visit and spinal examination" related to back pain, "[s]he
states her problem began after a motor vehicle accident." This
report notes an allergy to latex and states that an MRI scan from
December, 2002 as well as undated radiographs reveal "isthmic
spondylolisthesis at L5-S1" and "disc hydration and central
annular lesion at L5-S1" (Pl. Ex. D at p. 2). Notes of follow-up
visits with Dr. Gornet state that a February 16, 2004 MRI scan
"clearly reveal[s] central disc herniation at L5-S1 with an
isthmic spondylolisthesis at L5-S1" and further indicates the
possible benefit of surgery. Subsequent notes regarding a phone
call on April 22, 2004 and a visit on August 19, 2004 reveal that
the Plaintiff's latex allergy would make surgery infeasible (Pl.
Ex. D at p. 5). The Plaintiff noted that this is the first medical record that indicates that the
Plaintiff's back condition cannot be resolved by surgery. At this
point, the Plaintiff argued, she first became aware that her
condition will become a chronic condition.
On August 8, 2005, Dr. Gornet's deposition was taken. He
indicated that after seeing the Plaintiff on August 19, 2004 he
did not next see her until August 7, 2005 (Matthew Gornet
Deposition, 8/8/05, at p. 24). Between that time period, Dr.
Gornet testified that he continued to research new treatment
options for the Plaintiff (Gronet Dep. at p. 25). Dr. Gornet
informed the Plaintiff that there are new treatment options that
will be "coming out" and that further diagnostic tests, i.e. MRI
and CT scans, will have to be taken to see if she can benefit
from these new treatments (Gornet Dep. at p. 28). However, the
Plaintiff is now pregnant and any new procedure would have to
wait until she delivers in March, 2006 (Gornet Dep. at p. 28).
Dr. Gornet further testified that the Plaintiff's "prognosis is
pretty poor" because she has a "significant structural problem"
(Gornet Dep. at p. 30). He stated that without surgery, her
condition may worsen with increased activity (Gornet Dep. at p.
30-31). However, with surgery her condition would be improved
(Gornet Dep. at p. 31-32).
In light of the prognosis after the Plaintiff filed her claim,
she seeks to amend her complaint to increase her damages request
to $975,000. At the hearing, the parties also proposed staying
this case pending the Plaintiff's pregnancy and the exploration
of further treatment options.
Federal Rule of Civil Procedure 15(a) provides that a party may
amend a pleading and that leave to amend "shall be freely given
when justice so requires." However, leave to amend may be denied if there is "undue delay, bad faith, dilatory
motive, prejudice, or futility." Guise v. BWM Mortgage, LLC.,
377 F.3d 795, 801 (7th Cir. 2004). The granting or denying of
a motion to amend is reviewed for an abuse of discretion. Butts
v. Aurora Health Care, Inc., 387 F.3d 921, 925 (7th Cir.
The Plaintiff has filed suit pursuant to the FTCA.
28 U.S.C. §§ 2671-2680. The Act first provides that a Plaintiff must present
her claim to the federal agency and be denied relief.
28 U.S.C. § 2675(a). Pursuant to 28 U.S.C. § 2675(b), she can only seek
damages, in addition to those sought before the federal agency,
if "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." The
burden is upon the Plaintiff to show that evidence was newly
discovered or that there are intervening facts. Zurba v. United
States, 318 F.3d 736, 739 (7th Cir. 2003).
From the records provided by the Plaintiff, the fact that the
Plaintiff had back pain was not "newly discovered" she had
asserted that she experienced back pain since the accident and
the December, 2002 x-ray revealed physical problems with her
back. Also, the fact that the Plaintiff was allergic to latex
also was known to her prior to the filing of the claim.
Therefore, damages based on back pain were not apparent because
of "newly discovered evidence" but rather were known to the
Plaintiff shortly after the 2002 accident and certainly prior to
the filing of her claim in 2003. The evidence also reveals,
however, that a diagnosis of a back condition with a
recommendation of surgery was not given until after the filing of
the claim. With respect to the surgery, notwithstanding the
Plaintiff's knowledge of her latex allergy, her actual inability
to undergo surgery because of this allergy was not finalized
until after the filing of the claim. And, finally, it was not until August 19, 2004 that she was told
that her back pain would continue indefinitely because surgery
In Zurba, cited above, the Plaintiff, Ludmilla Zurba, was
struck by a car being driven by an FBI agent. Prior to filing an
administrative claim for damages, in which she claimed $300,000
in damages, Zurba suffered from anxiety related problems. After
her claim was denied, she filed suit and claimed $1 million in
damages. In affirming the District Court's denial of the
government's motion to limit the Plaintiff's damages, the Seventh
Circuit Court of Appeals held that the District Court did not
commit clear error. 318 F.3d at 739. The Court held that "[a]n
unforeseen worsening of a known injury may constitute `newly
discovery evidence' or `intervening facts.'" Id. In so holding,
the Seventh Circuit cited to an Eighth Circuit Court of Appeals
case, Michels v. United States, 31 F.3d 686 (8th Cir.
1994). In Michels, the Eighth Circuit stated that:
The government relies upon cases from other circuits
holding that, when existing medical evidence and
advice put the claimant "on fair notice to guard
against the worst-case scenario" in preparing the
administrative claim, a § 2675(b) motion to increase
that claim in litigation will be denied. In our view,
that is a proper interpretation of the phrase "not
reasonably discoverable," and we agree with cases
such as Reilly [v. United States, 863 F.2d 149
(1st Cir. 1988)]. But we also agree with the many
decisions acknowledging that a known injury can
worsen in ways not reasonably discoverable by the
claimant and his or her treating physician, and
holding that such "newly discovered evidence" or
"intervening facts," if convincingly proved, can
warrant § 2675(b) relief.
Michels, 31 F.3d at 688 (citations omitted).
The First Circuit's own lively rendition of the requirements of
section 2675(b) is as follows:
Because the statute itself renders the state of a
claimant's knowledge (actual or constructive) at the
time of presentment of the claim of decretory significance, the mechanics of
a § 2675(b) inquiry must be double-barrelled: What
should the party have known? When should she have
known it? To be binding in this context, knowledge
need not be certain. In the same vein, intelligence
which serves only to bear out earlier suspicions
cannot unlock the FTCA's narrow escape hatch.
Diagnoses which are no more than cumulative and
confirmatory of earlier diagnoses are neither "newly
discovered evidence" nor "intervening facts" for the
purposes of § 2675(b). We agree with the Second
Circuit that the statute demands a showing that "some
new and previously unforeseen information came to
light" between the time of filing the administrative
claim and the trial on damages. And, the
newly-emergent datum must be material.
Reilly, 863 F.2d at 171.
The question of whether the Plaintiff may increase her damages
demand, therefore, is dependent on the facts presented by the
Plaintiff and is contingent on her meeting her burden.
The answer to this question hinges on whether the "newly
discovered evidence," the diagnosis in August, 19, 2004 that the
Plaintiff cannot have surgery and that her condition is chronic,
was "not reasonably discoverable" when the Plaintiff submitted
her claim. It is clear from the evidence that Plaintiff knew that
she had back pain and a back condition from the accident. The
December, 2002 x-ray (taken prior to the filing of the claim)
revealed "degenerative change at L5-S1 with grade I
spondylolisthesis of L5 on S1 and spondylolysis at this level."
At the hearing, the Plaintiff's attorney argued that this
diagnosis represented degenerative changes as opposed to
structural injuries to the Plaintiff's back that may require
surgery. Of course, no actual evidence was introduced to support
this contention and it is not immediately apparent from the
x-ray's conclusion section. It is also clear that the Plaintiff
received no relief from conservative treatment of her back from
the time of the accident to the filing of the claim. And, the
claim itself, while not specifically mentioning a back condition, notes that the Plaintiff is still being treated and has been
referred to an "orthopedic surgeon."
This referral is telling. Attached to the claim is a list of
medical expenses and an indication of future appointments with
Drs. Gornet (the orthopedic surgeon) and Burger (the
neurologist). Clearly, the Plaintiff anticipated continued
medical care related to her back and actively sought additional
care because conservative treatment was not working. This would
account for a damages claim well in excess of actual medical
expenses. What is particularly telling is that the Plaintiff had
an appointment to visit an orthopedic surgeon. Any reasonable
person would have anticipated that a surgeon would recommend
surgery as a possible, even probable, resolution to her back
problems, especially as conservative treatments had not worked.
And, given the Plaintiff's knowledge of her latex allergy, she
should at least have been aware that surgery may be problematic
or would be unsuccessful. Even if the Plaintiff may not have been
aware of the reason why surgery would not be successful (i.e. her
latex allergy), any reasonable person would at least know that
surgery, for any number of reasons, may not resolve their back
problems. While the Plaintiff's attorney argued that this was
beyond the Plaintiff's realm of knowledge, he presented no
evidence that the Plaintiff was not aware of these possibilities.
Unfortunately, what has occurred in this case is that the worst
possible prognosis of a known back condition has been realized:
the Plaintiff may have to live with a chronic back condition and
pain due to the accident.
This case is distinguishable from Zurba, where the Court of
Appeals affirmed an increase the Plaintiff's damages claim, in a
number of respects. First, Zurba's psychological condition was
not mentioned in her claim. Here, the Plaintiff's claim, while
not specifically listing "back pain," clearly relates to back
pain based on the type of medical care she was receiving (chiropractic, neurological, orthopedic). Second, Zurba's
condition worsened in the years following her accident. Here,
there is no evidence that the Plaintiff's condition has worsened.
Rather, the evidence reveals a chronic condition that has not
been resolved by conservative treatment and that cannot be
resolved through surgery. In diagnosing the Plaintiff and
recommending surgery, Dr. Gornet relied on the December 2002
scans which revealed spondylosisthesis. The Plaintiff also made
no argument, nor pointed to any particular evidence, that would
indicate that the Plaintiff's back condition worsened. The
Plaintiff's condition is not newly discovered because it does not
"materially differ[ ] from the worst-case prognosis of which the
claimant knew or could reasonably have known when the claim was
filed." Zurba, 318 F.3d at 741 (emphasis in original, citation
and quotation marks omitted). This Court can only find that it
was reasonable for the Plaintiff to anticipate surgery and to
further anticipate the consequences of surgery, limited or no
relief. Such information was reasonably discoverable prior to
filing the claim and certainly was anticipated in the claim by
the Plaintiff's continued medical treatment and referral to a
This conclusion also is mandated by policy considerations that
underlie § 2675. The object of the statute is to give the
government an accurate picture of its exposure in such tort
cases. Reilly, 863 F.2d at 173; Low, 795 F.2d at 470-471. The
Plaintiff's claim limited damages to $250,200. At the hearing,
the Plaintiff anticipated quadruple the amount of damages. The
Plaintiff was represented by counsel when she filed her claim and
the claims form itself does not limit the amount of damages that
she could have claimed. Just as the First Circuit observed, "[i]f
a Plaintiff misjudges, as to matters known or easily deducible
when her claim is filed, it seems more equitable for her to bear
the burden of miscalculation than to impose it on the sovereign." Reilly, 863 F.3d at 173 (citation omitted). In this case, the
Plaintiff did not meet her burden of showing, through evidence,
that her increased claim is due to newly discovered evidence or
intervening facts. The Plaintiff reasonably could have
anticipated the chronic nature of her condition and should have
accounted for it in her original claim.
One final note, the Court is troubled by the delay in bringing
this motion to amend. By the Plaintiff's own admission, she
finally knew of the infeasibility of surgery and the chronic
nature of her condition on August 19, 2004. It was not until June
28, 2005 that she sought to amend her complaint to include the
additional damages. Her motion was filed more than two months
after the discovery deadline, two months after the dispositive
motion filing deadline, and only three weeks prior to the final
pretrial conference and a month prior to trial.*fn3 This is
a clear example of undue delay. The Plaintiff offered no excuse
as to why she waited almost a year to amend her complaint. The
only thing that would make this delay tenable is that the
Defendant has represented to the Court that no additional
discovery will be necessary. However, the finding of prejudice is
not necessary for this Court to deny a motion to amend undue
delay can suffice. Given the failure of the Plaintiff to offer
any excuse as to why she waited a year to file this motion to
amend, either in her brief or during the hearing, this Court
finds, in addition to the reasons stated above, that the motion
also must be denied because of undue delay.
For the foregoing reasons, the Motion to Amend the Complaint
filed by the Plaintiff, Casey Riedemann, on June 28, 2005 is
DENIED (Doc. 21) and the Motion to Limit Plaintiff's Damages
Claim filed by the defendant, the United States of America, on
July 18, 2005 is GRANTED (Doc. 26).
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