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Henriksen, et al. v. United States

March 9, 2011


Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Robert M. Dow, Jr. than Assigned Judge



Plaintiffs Kurt and Kathy Henriksen brought this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, after Kurt injured his back in a 2007 collision with a United States Postal Service vehicle. Kurt alleges that he is unable to return to work. On September 22, 2008, one of the attorneys for Plaintiffs submitted Standard Form 95 on behalf of Kurt, asserting a claim for $3,422,618.49 in property damage and personal injuries. Plaintiffs now move the Court for an order granting Plaintiffs leave to seek damages which are approximately double the sum requested in the Standard Form 95. For the following reasons, the Court denies Plaintiffs' motion [31].

O[ For further details see text below.] Docketing to mail notices.


I. Background

On August 10, 2007, Plaintiff Kurt Henriksen was involved in an automobile collision with a postal service vehicle. Kurt was transported from the scene of the collision to St. Mary's Hospital in Kankakee, Illinois, complaining of back pain. He followed up with Dr. Frederick Brown on August 20, 2007, complaining of increased back pain, increased pain in his left leg, and new pain running down his right leg. Dr. Brown performed a physical examination and ordered an MRI. He also instructed Kurt to see Dr. Friedl Pantle-Fisher, who Kurt saw on August 27, 2007. Kurt began regular monthly consultations with Dr. Pantle-Fisher, during which time his condition did not improve.

In September 2008, Kurt, through counsel, submitted an administrative claim to the postal service seeking $9,618.49 for property damage and $3,413,000.00 for injury to his back and for pain in his back and radiating into both legs. In the claim, he described his condition as causing "constant and chronic pain, discomfort, and disability." His wife, Kathy, filed a separate administrative claim seeking an additional $1.5 million for loss of consortium based upon Kurt's "permanent" injuries. Approximately seven months later, on April 22, 2009, Plaintiffs filed suit under the Federal Tort Claims Act. Plaintiffs now seek to double the sum originally demanded in Kurt's administrative claim.

II. Analysis

The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, "effects a limited waiver of sovereign immunity for the United States" that "renders the federal government liable in tort as a private individual would be under like circumstances." Midwest Knitting Mills, Inc. v. United States, 950 F.2d 1295, 1296-97 (7th Cir. 1991). Unlike plaintiffs seeking recovery from private entities, FTCA claimants must submit to the appropriate federal agency a claim for a "sum certain" before commencing a lawsuit, and the amount demanded in the administrative claim acts as a cap on damages recoverable in a suit commenced under the FTCA. See Kanar v. United States, 118 F.3d 527, 528-29 (7th Cir. 1997); 28 U.S.C. § 2675. Plaintiffs request relief from the damages cap under 28 U.S.C. § 2675(b), which allows an FTCA claimant to exceed the demand asserted in the administrative claim 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 on 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).

In Zurba, the plaintiff 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 claiming $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 held that the district court did not commit clear error, as "[a]n unforseen worsening of a known injury may constitute 'newly discovery evidence' or 'intervening facts." 318 F.3d at 739. In so holding, the Seventh Circuit cited to Michels v. United States, 31 F.3d 686 (8th Cir. 1994), in which the Eighth Circuit noted:

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" * * * * 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.

Id. at 688 (citations omitted). Thus, the question of whether Plaintiffs may increase their demand depends on the facts presented by Plaintiffs and specifically hinges on whether the "newly discovered evidence"-that Kurt is not a surgical candidate and now has permanent symptoms in his right foot that can be only partially managed with pain medication-was "not reasonably discoverable" when Kurt submitted his claim.

Plaintiffs maintain that the excess damages are warranted on the basis of "new facts" regarding the permanence of Kurt's injuries in the form of expert opinions from his treating physicians, Dr. Friedl Pantle-Fisher and Dr. Frederick Brown. Plaintiffs contend that at the time Kurt filed his administrative claim, it was neither known nor foreseeable that he would experience "significant permanent pain in his right leg and foot as a result of the collision." He contends that it was not "reasonably discoverable" that he would have permanent difficulty with walking, balance, going up and down stairs, lifting, and squatting, and that it was not reasonably discoverable that his pain would be aggravated by ...

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