Smith et al v. United States of America et al

Filing 46

ORDER GRANTING PLAINTIFF'S MOTION TO INCREASE AMOUNT OF CLAIM by Judge William Alsup [granting 42 Motion to Amend/Correct]. (whasec, COURT STAFF) (Filed on 10/3/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ROBERT SMITH,

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For the Northern District of California

United States District Court

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No. C 10-00212 WHA

Plaintiff,
v.

ORDER GRANTING PLAINTIFF’S
MOTION TO INCREASE
AMOUNT OF CLAIM

UNITED STATES OF AMERICA,
Defendant.
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INTRODUCTION
In this personal injury action brought under the Federal Tort Claims Act, plaintiff moves

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to increase the amount of his initial claim. For the reasons stated below, the motion to increase

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the amount of the claim is GRANTED.

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STATEMENT

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In August 2005, plaintiff was allegedly injured in an accident at a USPS facility in

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San Ramon, California, and sustained injuries to his foot and leg. Plaintiff was treated at the

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emergency room for his injuries and continued to receive treatment at Kaiser Hospital in Hayward

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for the fourteen months following the accident. Plaintiff also attended physical therapy from

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October 2005 to March 2006 (Sladden Decl. Exh. B; Turnage Decl. Exh. F).

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After the accident, plaintiff was under the care of Dr. Cheng at Kaiser from September

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2005 through October 2006. In April 2006, Dr. Cheng recommended job retraining “to no more

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than 4 hours of standing, walking, no lifting beyond 50 pounds, no stair-climbing and no walking

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on uneven ground.” He also recommended that plaintiff see a psychiatrist for post-traumatic

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stress disorder (Sladden Decl. Exh. B at 7–8, 66). Dr. Cheng considered plaintiff’s condition

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to be “permanent and stationary” as of May 2006. He also noted plaintiff had a “scar along the

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medial quad” in May 2006, but he did not mention the possibility of surgery when discussing

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future medical care. In fact, Dr. Cheng stated in May 2006 that “[f]uture medical care should be

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allowed for 3–4 visits a year to the orthopaedic surgeon, [and] treatment using anti-inflammatory

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medications.” Dr. Troy, a qualified medical examiner, confirmed the permanent and stationary

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diagnosis in July 2006. Dr. Troy further stated, “it is conceivable that [plaintiff] might require

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some surgical intervention in the future but, if the fracture is not severe, this would be rather

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For the Northern District of California

United States District Court

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unlikely” (Sladden Decl. Exh. B at 14, 24–25, 61–62).
In August 2006, plaintiff filed an administrative claim with the USPS. That claim sought
$550,000 in damages and stated:

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Robert Smith’s prognosis remains very poor. He still suffers from
severe pain in his right leg and he experiences flare-ups of
stiffness, pain and tenderness in proportion to his activities.
Furthermore, Robert Smith cannot stand for more than 3 hours on
his feet as a result of the incident. Thus, the cumulative effect of
said accident has resulted in severe emotional distress and undue
hardship to Robert Smith.

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The claim also asserted that plaintiff could not begin employment in a position previously offered

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to him and that he was unable to work and suffered income loss (Turnage Decl. Exh. A).

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Allegedly unbeknownst to plaintiff, his attorney, Mr. Johnson, was facing possible

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discipline with the state bar. He was ineligible to practice law as of January 2007 and resigned

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with charges pending in March 2007. Also in March 2007, plaintiff underwent surgery on his

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foot for the first time (Smith Decl. ¶ 5; Turnage Decl. Exh. B).

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Plaintiff then retained Attorney Guy Odom. In March 2007, Attorney Odom sent a letter

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to the USPS stating his intent to amend plaintiff’s claim to reflect the costs of a surgery on the

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injured ankle. The letter did not provide a new claim amount, and Attorney Odom never actually

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amended the claim. Attorney Odom fell ill, and his illness forced him to quit practicing law.

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According to plaintiff, Attorney Odom did not work on plaintiff’s case during this time

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(Turnage Decl. ¶ 8, Exh. C). Attorney Odom did, however, file this action in district court in

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January 2010 (Dkt. No. 1).

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In April 2011, plaintiff’s current attorneys, Glen Moss and Patricia Turnage, substituted in

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as his counsel (Dkt. Nos. 23–24). Attorney Moss and Attorney Turnage referred plaintiff to

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Dr. Mann, who examined the extent of his injuries. Plaintiff asserts that two surgeries

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recommended by Dr. Mann were unforeseeable at the time the claim was filed and that the

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surgeries will result in unforeseen permanent scarring and permanent loss of mobility.

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Plaintiff further alleges that he will suffer from greater emotional distress than originally

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contemplated as well as a diminished employment outlook (Smith Decl. ¶¶ 5–6, 13, 16;

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For the Northern District of California

United States District Court

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Turnage Decl. ¶¶ 9–11, 13).
Plaintiff now moves under Section 2675 of Title 28 or, in the alternative, FRCP 6(b)

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to increase the value of his original claim from $550,000 to $1,500,000. He alleges that a

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combination of: (1) surgery and permanent scarring from the first surgery, (2) the cost of a

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second surgery plus additional scarring, (3) greater emotional distress in connection with the

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second surgery, (4) loss of motion due to the fusion of the right foot, and (5) extensive wage loss

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“greatly increase the damages value of the claim” (Turnage Decl. ¶¶ 15–16). This order follows

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full briefing and a hearing.

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ANALYSIS

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1.

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A claim brought under the FTCA must first be submitted to the appropriate federal agency

LEGAL STANDARD.

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and denied by that agency before an action can commence against the United States in federal

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district court. 28 U.S.C. 2675(a). The FTCA imposes a statutory cap on damages “in excess of

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the amount of the claim presented to the federal agency” with only two limited exceptions. 28

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U.S.C. 2675(b). First, increased damages are allowed “based upon newly discovered

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evidence not reasonably discoverable at the time of presenting the claim to the federal agency.”

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Second, increased damages are allowed “upon allegation and proof of intervening facts, relating

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to the amount of the claim.” Ibid.

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The burden is on plaintiff to show that any amendment to his claim is based on one or

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both of the exceptions to the statutory cap. See Spivey v. United States, 912 F.2d 80, 85 (4th Cir.

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1990). In determining whether a claimant meets one or both of the exceptions in Section 2675(b),

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an objective standard is applied and the court determines whether a claimant’s injuries were

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“reasonably foreseeable at the time the original claim was filed.” See Richardson v. United

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States, 841 F.2d 993, 999 (9th Cir. 1988). The FTCA, however, does not hold claimants to a

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standard that charges them with “knowing what the doctors could not tell [them].” Fraysier v.

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United States, 766 F.2d 478, 481 (11th Cir. 1985). Even so, due diligence on the part of the

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plaintiff is expected:
[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 . . . [then] an increase
may be allowed.

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For the Northern District of California

United States District Court

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Von Bargen v. United States, No. C 06-04744 MEJ, 2009 WL 1765767, at *2 (N.D. Cal. June 22,
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2009).
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2.

PLAINTIFF’S BURDEN TO MEET EXCEPTIONS TO THE STATUTORY CAP.

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A.

Plaintiff’s Contentions.

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Plaintiff contends that he did not know he would need to have surgery at the time his
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claim was filed, and his claim did not take into account the costs of the first surgery or the second
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surgery (Smith Decl. ¶ 3). He has since had one surgery and received a recommendation for a
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second surgery. The first surgery resulted in permanent scarring on his foot. Plaintiff anticipates
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that he will have additional scarring as a result of the second surgery (Turnage Decl. ¶ 13).
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The first surgery caused plaintiff emotional distress and the second surgery is anticipated to cause
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more emotional distress, which the initial claim failed to take into account. Moreover, he asserts
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that his future employment prospects have also diminished as a result of the first surgery and
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anticipated second surgery (Smith Decl. ¶¶ 14–16).
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Plaintiff filed his administrative claim in August 2006. It included no mention of any
surgery or permanent scarring. His claim stated (Turnage Decl. Exh. A):
Robert Smith's prognosis remains very poor. He still suffers from
severe pain in his right leg and he experiences flare-ups of
stiffness, pain and tenderness in proportion to his activities.
Furthermore, Robert Smith cannot stand for more than 3 hours on
his feet as a result of the incident. Thus, the cumulative effect of
said accident has resulted in severe emotional distress and undue
hardship to Robert Smith.

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As a result of the incident, Robert Smith was unable to begin an
employment [sic], which was offered to him on August 19, 2005 at
an annual salary rate of $41,600.00 and a start date of August 29,
2005 . . . As a result of the incident Robert Smith has been unable
to work and he has suffered a substantial loss of income.

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The initial claim did not indicate plaintiff would have to undergo any surgery to his foot in order

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for it to heal. The claim was made in 2006.

For the Northern District of California

United States District Court

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Plaintiff asserts that he first learned he would need surgery in 2007. After the first surgery

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in March 2007, he learned he would have permanent scarring on his foot. Moreover, plaintiff is

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currently awaiting a second surgery. Plaintiff asserts that this evidence constitutes “newly

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discovered medical evidence” because he had no personal knowledge of it before his claim was

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filed (Smith Decl. ¶¶ 3, 5–6).

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B.

Section 2675(b) Standard.

Evidence is considered “newly discovered” under Section 2675(b) if it was not reasonably

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foreseeable at the time the claim was filed. Plaintiff’s administrative claim was filed in August

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2006, so the question is whether his asserted “newly discovered evidence” was reasonably

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foreseeable by that date.

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Our circuit has not yet decided what constitutes “newly discovered evidence” under

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Section 2675(b), but the Fifth Circuit has considered this question. In Low v. United States,

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795 F.2d 466, 471 (5th Cir. 1986), the court of appeals reversed an award of damages exceeding

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the plaintiff’s initial claim. The evidence showed that the plaintiff knew her son would suffer

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from “cerebral palsy, seizure disorder, blindness, deafness and mental retardation” at the time

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the claim was filed, no new conditions had developed, and his condition had not worsened.

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The plaintiff knew “that the worst-case prognosis for [her son] was one of great severity.” Ibid.
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The district court allowed an increase in her claim because the full extent of the baby’s condition

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could not have been known at the time the claim was filed — he was not even one year old at the

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time. The appellate court disagreed. It concluded that this had not been newly discovered

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evidence. It was merely evidence that bore “on the precision of [the] prognosis.” Id. at 470;

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see also Kielwien v. United States, 540 F.2d 676, 680 (4th Cir. 1976) (finding that the plaintiff

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could not increase her claim where later “diagnoses and advice were . . . cumulative and

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confirmatory of what plaintiff had largely already been told”).

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In contrast to Low, however, the Fifth Circuit earlier affirmed a damages award beyond
the statutory cap to a plaintiff who sustained a broken arm and a dislocated shoulder. United
States v. Alexander, 238 F.2d 314, 315 (5th Cir. 1956). After the plaintiff had filed his claim, “it

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For the Northern District of California

United States District Court

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was discovered that his shoulder was not responding to treatment, had become aggravated, and an

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operation would be required.” Id at 316. The court found that the evidence supported the finding

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that the plaintiff and his doctor did not know about the need for surgery, and it could not have

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been ascertained that his shoulder would not heal without surgery at the time his claim was filed.

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The plaintiff did not have subjective knowledge of the injury and it was not reasonably

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foreseeable. Id. at 318; see also Michels v. United States, 31 F.3d 686, 688 (8th Cir. 1994)

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(holding that “a known injury can worsen in ways not reasonably discoverable by the claimant

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and his or her treating physician” and could constitute “newly discovered evidence”).

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C.

Plaintiff’s Pre-Administrative Claim Knowledge.

Here, plaintiff was under the care of Dr. Cheng for about a year after the accident. He

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also attended approximately six months of physical therapy. During that time, there was no

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mention in plaintiff’s medical records from Dr. Cheng of any need for surgery on plaintiff’s foot.

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In fact, plaintiff’s condition was considered to be “permanent and stationary” as of May 2006.

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Dr. Cheng also stated in May 2006 that “[f]uture medical care should be allowed for 3–4 visits a

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year to the orthopaedic surgeon, [and] treatment using anti-inflammatory medications.”

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Plaintiff was also examined by a qualified medical examiner, Dr. Troy. He was the only

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doctor to mention surgery in the medical reports provided by the parties. An orthopaedic

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surgeon, he stated in a report dated July 2006 that “it is conceivable that [plaintiff] might require
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some surgical intervention in the future but, if the fracture is not severe, this would be rather

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unlikely.” Dr. Troy spent 35 minutes with plaintiff and generated a twelve-page report that was

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sent to the Disability Evaluation Unit. Even if Dr. Troy discussed his findings with plaintiff, the

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report said surgery was unlikely and further declared (on page one): “No treatment relationship is

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established or implied. This medical-legal evaluation is based only on the current information

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and records submitted. It is solely the treating physician’s responsibility to determine the

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patient’s differential diagnoses and subsequent needs for medical treatment” (Sladden Decl. Exh.

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B). Thus, Dr. Troy’s report is not enough to overcome plaintiff’s evidence and declaration stating

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that surgery was never discussed, and he had no knowledge of its need before his claim was filed
(Smith Decl. ¶ 3).

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For the Northern District of California

United States District Court

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D.

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Surgeries.

Plaintiff’s knowledge and ability to ascertain a prognosis regarding surgery are more akin

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to the facts of the Alexander decision than the Low decision. The plaintiff in Alexander had no

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reason to believe surgery on a known shoulder injury would be required when even his doctors

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did not think it would be necessary. The plaintiff could not be held responsible for “knowing

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what the doctors could not tell him.” Fraysier, 766 F.2d at 481. So too here. This order finds

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that plaintiff had no subjective knowledge of a need for surgery on his foot, and in light of his

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medical records and doctor’s opinion, his lack of knowledge is objectively reasonable.

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Defendant argues that plaintiff’s knowledge up until the day USPS issued a written denial

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of his claim should be considered for purposes of this motion. Not so. Although defendant is

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correct that plaintiff could have amended his claim until the day it was denied on July 15, 2009,

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Section 2675(b) states that new evidence “not reasonably discoverable at the time of presenting

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the claim to the federal agency” is a valid basis for increasing the claim. 39 C.F.R 912.5(b);

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(Sladden Decl. Exh. C). Moreover, “a claim shall be deemed to have been presented when the

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U.S. Postal Service receives from a claimant . . . an executed Standard Form 95.” 39 C.F.R

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912.5(a). Plaintiff executed Form 95 and presented it to the USPS on August 22, 2006 (Turnage

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Decl. Exh. A). His claim was therefore “deemed to have been presented” on August 22, 2006,

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and any knowledge plaintiff had of his injuries after that date is not relevant to deciding this

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motion.

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E.

Permanent Scarring.

The United States contends that plaintiff had previous knowledge of permanent scarring.

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It points to a letter dated May 2006 wherein Dr. Cheng noted a scar along plaintiff’s “medial

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quad” (Sladden Decl. Exh. B). Even assuming that plaintiff knew this, there are still two

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problems. First, the letter did not say anything regarding the permanency or size of the scar.

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Second, the scar was in a wholly different area — the upper leg — from the one constituting the

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“newly discovered evidence” — the current scarring on his foot from the first surgery and the
additional future scarring from a second surgery. The notation of plaintiff’s upper thigh scarring

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For the Northern District of California

United States District Court

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is not enough evidence to say plaintiff knew or should have known that he would have permanent

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scarring on his foot, the result of multiple foot surgeries.

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F.

Employment Outlook.

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Plaintiff, however, also bases a portion of his increased claim on the fact that he learned

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that he “was never going to be able to return to the same type of employment that [he] had been

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able to perform in the fifteen years prior to the subject accident. [His] employment before the

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accident always involved lifting heavy objects, loading and unloading trucks, driving forklifts and

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driving trucks” (Smith Decl. ¶ 6). This is information plaintiff knew or should have known prior

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to having his surgery in 2007 and prior to filing his claim in August 2006.

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Dr. Cheng stated as early as January 2006 that he had discussed work modifications with

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plaintiff. Dr. Cheng stated in a letter to insurance, “I think that the only thing he can consider

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right now is a sit-down job, or sedentary job.” In an April 2006 letter to insurance, Dr. Cheng

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recommended plaintiff get job retraining “to no more than 4 hours of standing, walking, no lifting

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beyond 50 pounds, no stair-climbing and no walking on uneven ground.” Dr. Cheng then found

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plaintiff’s restrictions to be permanent, declaring in a May 2006 insurance letter that plaintiff

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“went back to his warehouse job and was unable to do so and he is now deemed permanent and

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stationary with permanent restrictions.” The only change in his restrictions from April to May

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was plaintiff was limited to lifting no more than 40–50 pounds versus no lifting beyond 50
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pounds (Sladden Decl. Exh. B). Finally, plaintiff’s initial claim even stated that “[a]s a result of

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the incident Robert Smith has been unable to work and he has suffered a substantial loss of

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income.” Plaintiff was aware that he would have permanent work restrictions and would be

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unable to return to his line of work before his claim was filed. Plaintiff’s permanent work

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restrictions are neither “newly discovered evidence” nor “intervening facts.”

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Emotional Distress.

undue hardship.” In a letter to insurance dated April 2006, Dr. Cheng wrote that plaintiff “is

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developing flash-backs and stress and having difficulty sleeping and he states that he is afraid of

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going back to work due to flash-backs from post-traumatic stress when the leg was caught in the

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For the Northern District of California

Moreover, plaintiff’s initial claim was partly based on “severe emotional distress and

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United States District Court

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hydraulic lift.” Dr. Cheng also recommended in that same letter that plaintiff see a psychiatrist

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(Sladden Decl. Exh. B). The evidence shows that plaintiff knew that he suffered from severe

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emotional distress after the accident, but he bases his new claim partly on more emotional distress

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related to the new surgeries. This is not the “newly discovered evidence” contemplated by

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Section 2675(b). This is evidence that merely “bears on the precision of [the] prognosis.”

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Low, post-traumatic stress disorder after the accident. Emotional distress is not “newly

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discovered evidence” or an “intervening fact.”

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Defendant also requests that a decision on this motion be delayed until the close of

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discovery. Defendant does not cite to any authority requiring a delay or even suggesting a delay

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at this time would be proper. On the present record, the amendment will be allowed. If discovery

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reveals facts warranting a rejection of the enlarged claim, then perhaps a motion to bar the

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enhanced claim will be granted.

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CONCLUSION
For the foregoing reasons, plaintiff’s motion to increase the amount of his claim under the
FTCA is GRANTED.

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IT IS SO ORDERED.

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Dated: October 3, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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