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Landrum v. United States

United States District Court, D. South Dakota, Western Division

February 9, 2018

BURNS LANDRUM, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE.

         BACKGROUND

         Plaintiff Burns Landrum initiated this action against defendant United States seeking recovery under the Federal Tort Claims Act (“FTCA”). (Docket 1). Plaintiff pursued administrative remedies under the FTCA. Id. at p. 2. Now plaintiff requests leave to amend his complaint. (Docket 25). The government opposes his motion. (Dockets 30 & 45).

         On May 7, 2013, plaintiff was a passenger in a Disabled American Veterans van that collided with another vehicle. (Docket 1 at p. 1). The collision caused the van to roll. Id. Plaintiff suffered injuries. Id. at pp. 1-2. The van was traveling from Fort Meade to Rapid City, South Dakota. Id. at p. 1. Shawn H. Spiers, an agent of the government, drove the van. Id.

         In his administrative tort claim, plaintiff sought $685, 000 in damages. Id. at p. 2. Plaintiff's current complaint seeks that same amount. Id. Plaintiff's motion to amend his complaint aims to increase the amount of claimed damages to $1, 550, 000. (Dockets 25 & 25-1 at p. 2).

         To argue the increased damages figure is justified, plaintiff focuses on three sources of information. (Docket 26 at pp. 1-2). The first is diagnoses of plaintiff that psychologist Dewey J. Ertz, Ed.D., made after evaluating him in March and June of 2016. Id.; (Docket 27-7). Dr. Ertz's diagnoses were mild neurocognitive disorder due to traumatic brain injury[1] and posttraumatic stress disorder (“PTSD”)[2] which plaintiff's previous medical evaluations did not include. (Docket 26 at pp. 1-2). Plaintiff's second focus is the fully favorable decision the Social Security Administration (“SSA”) made in September 2015 regarding plaintiff's disabled status and right to benefits. Id.; (Docket 27-5). And third, plaintiff indicates that in June 2017 his counsel received a neuropsychological evaluation Dr. James C. Gardiner conducted in April 2006 finding plaintiff had good cognitive functioning prior to the incident at issue in this case. (Dockets 26 at pp. 1-2 & 27-1).

         ANALYSIS

         To amend his complaint, plaintiff must meet two standards. He must fit his case within an exception in 28 U.S.C. § 2675(b). He also needs to satisfy the Federal Rules of Civil Procedure. The statutory standard is more demanding, so the court analyzes it first.

         I. 28 U.S.C. § 2675(b)

         Under 28 U.S.C. § 2675(b), the amount of damages pursued in an FTCA action must match the amount presented in the administrative process, unless an exception applies. See Michels v. United States, 31 F.3d 686, 687-88 (8th Cir. 1994). The amount sought in an FTCA lawsuit can be larger when it “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.” 28 U.S.C. § 2675(b).[3]“By its terms, the FTCA bars actions for damages in excess of the administrative claim in all but two circumstances: (1) where the plaintiff proves ‘newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, ' or (2) where the plaintiff proves ‘intervening facts.' ” Milano v. United States, 92 F.Supp.2d 769, 774 (N.D. Ill. 2000) (quoting Lowry v. United States, 958 F.Supp. 704, 711 (D. Mass. 1997)).

         “The FTCA, as a statute waiving sovereign immunity, must be complied with strictly.” Malmberg v. United States, 816 F.3d 185, 196 (2d Cir. 2016). “[C]ourts have uniformly placed the burden of proving either intervening facts or newly discovered evidence on the FTCA claimant.” Michels v. United States, 815 F.Supp. 1244, 1260 (S.D. Iowa 1993), aff'd, 31 F.3d 686 (8th Cir. 1994); see Kennedy v. United States, 7:13CV5011, 2016 WL 3014657, at *2 (D. Neb. May 24, 2016). In discussing the three sources of information justifying his amended complaint, plaintiff generally refers to them as “new evidence and intervening facts[.]” (Docket 26 at pp. 1, 10).

         “[W]hether the plaintiff is seeking an increase under the rubric of ‘newly discovered evidence' or ‘intervening facts, ' one of the key issues is foreseeability. If the condition was reasonably foreseeable at the time the claim was filed, an increase will not be allowed. On the other hand, if it was not, . . . an increase may be allowed.” Lowry, 958 F.Supp. at 711. “[W]hile courts do not charge a claimant with knowing [what] the physicians could not tell him, the information must not have been discoverable through the exercise of reasonable diligence.” Low v. United States, 795 F.2d 466, 470 (5th Cir. 1986) (internal citation omitted). “[W]hen existing medical evidence and advice put the claimant ‘on fair notice to guard against the worst-case scenario' in preparing the administrative claim, ” no § 2675(b) exception applies. Michels, 31 F.3d at 688 (quoting Reilly v. United States, 863 F.2d 149, 172 (1st Cir. 1988)). However, “a known injury can worsen in ways not reasonably discoverable by the claimant and his or her treating physician, and . . . such ‘newly discovered evidence' or ‘intervening facts, ' if convincingly proved, can warrant § 2675(b) relief.” Id. (quoting § 2675(b)). In Michels, The United States Court of Appeals for the Eighth Circuit held “that § 2675(b) contains an objective standard-‘newly discovered evidence not reasonably discoverable.' ” Id. at 689 (emphasis in original) (quoting § 2675(b)).

         a. Dr. Ertz

         Plaintiff asserts Dr. Ertz's diagnoses meet both exceptions under § 2675(b). (Docket 26). He claims “it was not reasonably foreseeable when notice was filed that [he] would be suffering from the injuries he now is.” Id. at pp. 9-10. In opposition, the government argues plaintiff's “medical records make repeated reference to the possibility that Plaintiff may suffer from PTSD[.]” (Docket 30 at p. 7) (citing Dockets 31-4, 31-5 & 31-6). The government also contends plaintiff's argument fails because his “administrative claim and subsequent complaint both reference ...


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