Natalia Lopatina v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:09-cv-02852-CBD Copies to all parties and the district court/agency. [999129969].. [12-1662]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1662

NATALIA LOPATINA,
Plaintiff - Appellee,
v.
UNITED STATES OF AMERICA,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Charles B. Day, Magistrate Judge.
(8:09-cv-02852-CBD)

Argued:

May 15, 2013

Decided:

June 14, 2013

Before KING and AGEE, Circuit Judges, and David C. NORTON,
United States District Judge for the District of South Carolina,
sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED:
Jeffrey Eric Sandberg, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant.
Ernest W. McIntosh,
Jr., NEWMAN & MCINTOSH, LLC, Washington, D.C., for Appellee. ON
BRIEF:
Rod J. Rosenstein, United States Attorney, Stuart F.
Delery, Acting Assistant Attorney General, Thomas M. Bondy,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellant.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Plaintiff-Appellee

Natalia

Lopatina

(“Lopatina”)

was

injured when she was struck by a United States Postal Service
(“USPS”)

truck

while

riding

her

bicycle.

Lopatina

filed

an

administrative claim with the USPS for $75,750 in damages under
the

Federal

Tort

Claims

Act

(“FTCA”).

When

that

claim

was

denied, she commenced this action in the United States District
Court for the District of Maryland.
the

district

court

awarded

Following a bench trial,

Lopatina

$176,132

in

damages,

concluding that 28 U.S.C. § 2675(b) permitted her to recover
damages

in

excess

presented

of

“newly

her

administrative

discovered

claim

evidence

because

not

discoverable” at the time she filed her claim.

she

reasonably

The Government

appeals, contending that the district court committed errors of
law in interpreting and applying 28 U.S.C. § 2675(b).
reasons

that

follow,

we

affirm

the

judgment

May

30,

of

the

For the
district

court.

I.
A.
The
Maryland.
to

cycle

Allen

accident

occurred

on

2007,

in

Rockville,

Lopatina, who had stopped at an intersection, began
through

Wang,

a

the

USPS

crosswalk

employee

when

acting
2

the

light

within

the

turned
scope

green.
of

his

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employment, was stopped at the traffic light in a USPS truck.
While looking to the left, he began to make a lawful right turn
on red.

As his truck moved forward at low speed, it collided

with Lopatina, causing her to fall from her bicycle.

After the

accident,

room

Lopatina

was

treated

at

the

emergency

for

abrasions and scratches.
Two days later, Lopatina went to an urgent-care facility
complaining of pain in her left shoulder.

The facility referred

her to an orthopedic surgeon, Dr. Richard Meyer (“Dr. Meyer”).
On June 5, 2007, Dr. Meyer diagnosed Lopatina with, among other
things,

cervical

spine

strain

and

Lopatina underwent physical therapy.

left

shoulder

sprain.

Dr. Meyer discharged her

after eight weeks, but advised that it might take a year for her
shoulder to fully heal.

Lopatina did not seek or receive any

medical treatment for her shoulder during the ten months that
followed—from August 2007 through June 2008.
In March 2008, Lopatina filed an administrative claim with
the

USPS

for

injuries

allegedly

including to her shoulder.
comprising

$75,000

property losses.

in

arising

from

the

accident,

The claim demanded a sum of $75,750,

personal

injury

damages

and

$750

in

Lopatina certified that she would “agree to

accept said amount in full satisfaction and final settlement of
this claim.”

(J.A. 503.)

3

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While

her

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administrative

claim

was

pending,

Lopatina

returned to Dr. Meyer complaining of continued pain in her left
shoulder, which had remained symptomatic since the accident.

An

MRI revealed “mild leading edge supraspinatus tendinosis” in her
shoulder—a

chronic

degenerative

condition

in

the

connective

tissue of a tendon in the rotator cuff of the shoulder.
252, 396, 451.)
another

(J.A.

In July 2008, Dr. Meyer referred Lopatina to

orthopedic

surgeon,

Dr.

Benjamin

Shaffer”), a “nationally known shoulder expert.”

Shaffer

(“Dr.

(J.A. 252.)

Lopatina first visited Dr. Shaffer in October 2008.

At

that visit, Dr. Shaffer noted that Lopatina’s “left shoulder has
been symptomatic since” the accident.
421–22.)

(J.A. 284, see also J.A.

He speculated that instead of, or in addition to,

supraspinatus tendinosis, Lopatina might have sustained a tear
to the labrum in her shoulder.

Dr. Shaffer “advocated that

[Lopatina]

evaluation

consider

arthroscopic

with

definitive

treatment rendered at the time of surgery[,] which might include
repair of a labral injury.” 1

(J.A. 285.)

Lopatina decided not

to undergo surgery at that time.

1

The labrum is a cuff of cartilage that rings the interior
of the shoulder socket. (J.A. 401.) In contrast to tendinosis
or shoulder impingement, which may be caused by any number of
factors (including overuse or aging), labral tears are normally
caused by trauma. (J.A. 455; see generally J.A. 430–32, 446–56
(discussing possible causes of various shoulder conditions).)

4

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In

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2008,

December

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sent

Lopatina

a

supplemented

list

of

damages to the USPS, including medical bills from Dr. Shaffer.
However,

Lopatina

did

not

amend

her

administrative

claim

or

otherwise state that she was increasing her sum-certain demand
for damages.
Lopatina

visited

Dr.

Shaffer

again

in

April

2009.

Dr.

Shaffer reiterated his opinion that Lopatina may have sustained
a

labral

tear,

and

again

advised

that

she

was

“the

perfect

candidate for a diagnostic and probable operative arthroscopic
evaluation with possible labral repair.”
In

May

2009,

the

USPS

denied

(J.A. 288.)

Lopatina’s

administrative

claim, explaining that it could not “keep th[e] claim open for
an indefinite amount of time” while she explored further medical
treatment.
entertain

(J.A.
a

28.)

request

for

The

USPS

indicated

reconsideration

of

that
the

it

would

claim

once

Lopatina had “conclude[d] [her] investigation into [her] medical
condition.”

(J.A. 28.)

In July 2009, Dr. Shaffer performed surgery on Lopatina’s
shoulder.

Although

he

had

suspected

a

labral

tear,

discovered during the surgery that the labrum was intact.
instead

observed

a

“partial

tearing

of

the

rotator

he
He

cuff,

specifically the supraspinatus [tendon] at the site which had
been identified in the MRI.”

(J.A. 403.)

He further identified

a shoulder impingement—a “relative narrowing of the space in
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supraspinatus

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tendon

during movement of the joint.

under[goes]

(J.A. 403–04.)

normal

excursion”

In light of these

findings, Dr. Shaffer changed his primary diagnosis from “labral
tear” to “subacromial impingement, left shoulder.”

(J.A. 453.)

Dr. Shaffer then proceeded to make several structural repairs to
the

shoulder

joint.

After

a

successful

operation,

Lopatina

obtained follow-up treatment from Dr. Shaffer and completed a
course of physical therapy.
A

year

later,

in

July

2010,

Shaffer with further complaints.

Lopatina

returned

to

Dr.

Dr. Shaffer opined that her

“symptoms [had] evolved in a way that clearly reflects a primary
cervical problem” and ordered a new MRI.

(J.A. 297.)

In August

2010, after reviewing the new MRI, Dr. Shaffer stated that his
“working

diagnosis”

strain/whiplash

was

syndrome.”

that

Lopatina

(J.A.

298.)

had
He

“cervical

then

referred

Lopatina to a spine expert.
Lopatina never provided the USPS with a new administrative
demand

for

damages,

including

expenses

incurred

after

her

surgery with Dr. Shaffer, nor did she seek reconsideration of
her prior claim.

B.
In October 2009, Lopatina filed suit under the FTCA in the
United States District Court for the District of Maryland.
6

The

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parties consented to proceed before a magistrate judge, and a
two-day bench trial was held in December 2011.

At trial, the

Government conceded that the postal driver had been negligent,
but contended that Lopatina had also been negligent and that her
contributory negligence barred her recovery under Maryland law.
The Government also averred that Lopatina had failed to show
that her shoulder injury was caused by the May 2007 accident, as
opposed to athletic activities or other motor vehicle accidents.
In an oral decision at the close of trial, the district
court determined that the postal driver was solely responsible
for the May 2007 accident, and that the collision had caused
Lopatina’s injuries.

The court then found that Lopatina had

incurred damages of $176,132—medical expenses of $35,164; painand-suffering losses of $140,656 (calculated as a multiplier of
four times her medical expenses); and property loss of $312.

In

assessing pain and suffering, the court determined that Lopatina
had sustained a “permanent injury” to her shoulder in the sense
that she “got scarring” from the surgical incisions.
see

J.A.

however,

403–05.)
that

she

The
was

court
entitled

rejected
to

(J.A. 199;

Lopatina’s

recover

any

argument,

damages

for

“future pain” or “future medical care and expenses,” finding her
evidence of such damages to be too speculative.
199.)

7

(J.A. 197,

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The Government asserted that Lopatina’s aggregate recovery
was limited by law to the amount of her administrative claim—
$75,750—because under the FTCA, a plaintiff generally may not
recover “any sum in excess of the amount of the claim presented
to the federal agency.”
Lopatina

argued

additional

that

damages

28 U.S.C. § 2675(b).
she

under

should
the

be

In response,

permitted

“newly

to

discovered

recover
evidence”

exception of 28 U.S.C. § 2675(b) because at the time she filed
her administrative claim, she was not yet fully aware of the
extent or nature of the existing injury to her shoulder.
The district court denied the Government’s motion to limit
Lopatina’s damages to the amount of her administrative claim,
ruling instead that Lopatina had satisfied the “newly discovered
evidence” exception under 28 U.S.C. § 2675(b).
that

Lopatina

“was

not

aware

of

the

final

The court found
diagnoses

of

her

injuries from the accident until after Dr. Shaffer performed
surgery on her on July 1, 2009.”
court

found

surgery,

and

development
syndrome.”

that
that
of

“a

Lopatina’s
those

symptoms

evolving

primary

(J.A. 515.)

(J.A. 515.)
had

symptoms

cervical

Additionally, the
“evolved”
might

problem

after

reflect
or

the

whiplash

Based upon those findings, the court

concluded that “the diagnoses, treatments of her newly diagnosed
conditions, and damages related to these diagnoses are ‘newly
discovered evidence not reasonably discoverable at the time of
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presenting the [administrative] claim.’”

(J.A. 516.)

The court

then proceeded to enter judgment for the full amount of damages
it had assessed at trial: $176,132.
In January 2012, the Government filed a partial motion for
reconsideration

directed

principally

Lopatina’s medical expenses.

to

the

calculation

of

In May 2012, the district court

granted the motion and reduced Lopatina’s total damages award to
$169,518.30.
The

Government

timely

appealed,

and

the

Court

has

jurisdiction pursuant to 28 U.S.C. § 1291.

II.
A.
The FTCA, 28 U.S.C. §§ 1346(b), 2671–2680, governs tort
claims

for

injuries

arising

from

the

negligent

conduct

of

federal employees acting within the scope of their employment.
A plaintiff proceeding against the United States under the FTCA
must

first

file

an

administrative

claim

with

the

federal agency within two years after the injury.
§§ 2401(b),

2675(a).

The

administrative

claim

among other things, a “sum certain” for damages.

must

relevant
28 U.S.C.
contain,

See 28 U.S.C.

§ 2675(b); see also 28 C.F.R. § 14.2(a); 39 C.F.R. § 912.5(a).
The presentation of an administrative claim containing a sumcertain demand is a jurisdictional prerequisite to suit.
9

See

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Kokotis v. U.S. Postal Serv., 223 F.3d 275, 278–79 (4th Cir.
2000).

While

a

claim

remains

pending

with

the

agency,

a

claimant may file an amended claim at any time to increase the
amount of her sum-certain demand.

See 28 C.F.R. § 14.2(c); 39

C.F.R. § 912.5(b)-(c).
If the administrative claim is denied, or if six months
elapse without agency action on the claim, a claimant may bring
suit in federal court.

28 U.S.C. § 2675(a).

The amount of

damages that may be recovered is presumptively limited to the
“amount of the claim presented to the federal agency.”
§ 2675(b).

Id.

A plaintiff may, however, recover a “sum in excess”

of that claim “where 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.”

Id.

A plaintiff “bear[s] the burden of proving that

they are entitled to damages in excess of [their] administrative
claim.”

Spivey v. United States, 912 F.2d 80, 85 (4th Cir.

1990).

B.
The Government contends that the district court erred in
entering

judgment

administrative

claim

for

a

because

sum
it
10

in

excess

failed

to

of
find

Lopatina’s
that

the

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“increased amount” of damages sought by Lopatina was “based upon
newly

discovered

added).
before

Because
the

evidence.”
the

district

28

U.S.C.

§

Government

failed

to

court,

however,

we

2675(b)
raise

affirm

(emphasis
this

the

issue

court’s

judgment.
Notably, at oral argument, the Government conceded it had
failed to raise the issue below which it now asserts on appeal.
The Government’s memorandum of law before the district court
regarding the FTCA’s limitation on Lopatina’s potential recovery
markedly failed to include any mention of the argument it now
pursues.

In the district court, the Government only contended

that Lopatina was precluded from receiving an award in excess of
the

sum-certain

entirety

of

the

amount

in

argument

her
section

administrative
of

the

claim.

The

Government’s

trial

memorandum reads as follows:
The plaintiff cannot demonstrate any “newly discovered
evidence” or “intervening facts” that could not have
been
discovered
when
she
supplemented
her
administrative claim in December 2008.
She knew that
she had supraspinatus tendinosis and needed surgery
when she submitted her supplement.
Nonetheless, she
declined to increase her sum certain.
Accordingly,
she is precluded from receiving any award in excess of
the $75,750.
(Dist. Ct. Docket No. 45, at 4.)
On appeal in this Court, the Government now argues that the
district

court

applying

28

committed

U.S.C.

§

errors

2675(b).
11

of

law

in

interpreting

Specifically,

the

and

Government

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contends that although the district court found that Lopatina’s
changing diagnoses constituted “newly discovered evidence” that
were “not reasonably discoverable at the time” she presented her
administrative

claim,

the

court

failed

to

find

that

the

“increased amount” of damages sought in excess of Lopatina’s
administrative claim was “based upon” those changed diagnoses.
28 U.S.C. § 2675(b).
than

the

This is a substantively different argument

Government’s

trial

position,

which

was

simply

that

Lopatina was barred from any damages over the administrative
claim amount because she failed to amend that claim prior to
filing suit.
The Government’s failure to raise its new argument in the
district court means that this Court will not consider it as a
basis

to

reverse

the

district

court’s

judgment.

“We

have

repeatedly held that issues raised for the first time on appeal
generally will not be considered.”
Servs.,

134

F.3d

1222,

1227

Karpel v. Inova Health Sys.

(4th

Cir.

1998);

see,

e.g.,

Washington Metro. Area Transit Auth. v. Precision Small Engines,
227 F.3d 224, 227–28 (4th Cir. 2000); Muth v. United States, 1
F.3d 246, 250 (4th Cir. 1993).
are

made

only

in

very

“Exceptions to this general rule

limited

12

circumstances,

such

as

where

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refusal to consider the newly-raised issue would be plain error 2
or would result in a fundamental miscarriage of justice.”

Muth,

1 F.3d at 250 (citing Nat’l Wildlife Fed’n v. Hanson, 859 F.2d
313, 318 (4th Cir. 1988)).

We can find no evidence in the

record that such circumstances exist here.
Accordingly, because the Government failed to preserve this
issue for appeal, we deem the Government’s argument waived and
thus decline to consider it.
district

court’s

entry

of

We therefore conclude that the

judgment

for

a

sum

in

excess

of

Lopatina’s administrative claim does not constitute plain error
or a fundamental miscarriage of justice.

III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

2

Applying plain error review, we will not reverse unless
the Government can establish: “(1) there is an error; (2) the
error is plain; (3) the error affects substantial rights; and
(4) the court determines . . . that the error seriously affects
the fairness, integrity or public reputation of judicial
proceedings.”
In re Celotex Corp., 124 F.3d 619, 630–31 (4th
Cir. 1997) (citing United States v. Olano, 507 U.S. 725, 730
(1993)).
The Government is unable to show that the district
court committed plain error.

13