Filing 29

ORDER DENYING PLAINTIFF'S MOTION TO INCREASE THE AMOUNT OF AN ADMINISTRATIVE CLAIM by Judge Paul S. Grewal denying 22 Motion to increase the amount of an administrative claim (psglc1, COURT STAFF) (Filed on 8/20/2012)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN JOSE DIVISION 11 CELESTE ODA, 12 13 14 Plaintiff, v. UNITED STATES OF AMERICA, Defendant. 15 ) ) ) ) ) ) ) ) ) Case No.: C 11-04514 PSG ORDER DENYING PLAINTIFF’S MOTION TO INCREASE THE AMOUNT OF AN ADMINISTRATIVE CLAIM (Re: Docket No. 22) 16 Plaintiff Celeste Oda (“Oda”) moves to increase her administrative claim from $70,000 to 17 $1 million. Defendant United States of America (the “Government”) opposes the motion. On 18 August 7, 2012, the parties appeared for hearing. Having reviewed the papers and considered the 19 arguments of counsel, 20 IT IS HEREBY ORDERED that Oda’s motion to increase the amount of her administrative 21 claim is DENIED. 22 Oda was involved in a series of automobile accidents, the second of which was a collision 23 with Phuong Tuan Le, an employee of the United States Postal Service (“USPS”). This second 24 accident occurred on March 9, 2009 and forms the basis of her claim under the Federal Torts 25 Claims Act (“FTCA”). On May 27, 2010, Oda’s counsel made a settlement demand to the 26 Government for $70,000, including both medical costs and lost income. 27 28 1 Case No.: C 11-04514 PSG ORDER 1 Oda contends that since the date of the settlement demand, her injuries have worsened. 2 According to Oda, her physicians now believe that Oda suffers from cervical radiculopathy and 3 that she will require steroidal epidural injections and spinal surgery. These more recent opinions of 4 her condition were rendered on July 6, 2011 and August 22, 2011. When the original settlement 5 demand was made, she had no way of knowing that her injuries were as serious as they are, that 6 they would progressively worsen or that she would face the prospect of long-term disability. 7 Because Oda’s present medical condition was not known at the time the settlement demand was 8 made, it is newly discovered evidence and she should be permitted to increase the amount of her 9 administrative claim. United States District Court For the Northern District of California 10 The Government responds that Oda does not meet the standard for the extraordinary relief 11 that she now seeks. Oda’s counsel, both former and present, knew of her alleged radiculopathy 12 when the administrative claim was first made and while it has been pending. In support of the 13 original settlement demand, Oda’s counsel included medical records that reflect a visit by Oda to 14 Kaiser’s urgent care clinic on the day of her second accident. Oda was diagnosed with post-motor 15 vehicle accident cervical and trapezius strain superimposed on a pre-existing recent motor vehicle 16 accident that has caused chronic neck pain and, critically, cervical radiculopathy. Oda sought 17 medical attention at Kaiser’s urgent care clinic for increasing stiffness, aches and tightness in her 18 paracervical and trapezius muscle area. Oda also disclosed at the clinic visit that she had chronic 19 numbness, tingling, weakness or pain radiation into her upper or lower extremities from the first 20 accident that had been improving but were flaring again. Oda missed work for six months after the 21 second accident occurred and thus Oda’s counsel should have known that her condition might be 22 more serious. 23 The Government also responds that Oda would have been permitted to amend her 24 administrative claim at any time before the USPS denied her claim in writing. Here, the USPS 25 denied her claim on October 28, 2011, well after Oda had received the subsequent diagnoses from 26 her physicians on July 6 and August 22, 2011. At any time between August 22, 2011 and October 27 28, 2011, Oda’s counsel therefore could have amended the administrative claim. He did not do so. 28 2 Case No.: C 11-04514 PSG ORDER 1 Finally, the Government argues that the medical evidence does not support Oda’s claim that 2 she necessarily requires epidural steroidal injections or spinal surgery. Oda never obtained a repeat 3 MRI after the second accident to determine whether there was further damage to her spine. Two of 4 Oda’s treating physicians, Dr. Le (her primary care physician) and Dr. Wong (an orthopedic 5 surgeon), dispute whether she requires surgery. Dr. Hsieh (a hand surgeon) concludes that Oda’s 6 numbness and tingling in her hands and pain in her wrists are not related to either of the two 7 automobile accidents and instead, likely result from extensive prior computer usage at work and 8 from face-painting that she does. Moreover, both Drs. Burt and Lettice opine that Oda may need 9 surgery if her condition worsens or if further conservative treatments fail. Neither conclude that United States District Court For the Northern District of California 10 Oda requires surgery. 11 The court agrees with the Government, albeit on more limited grounds than the 12 Government urges. The FTCA imposes a statutory cap on any damages that exceed the amount of 13 the claim presented to the federal agency. 1 To qualify for an exception to the statutory cap, a 14 plaintiff bears the burden of establishing that the increased amount sought is based upon newly 15 discovered evidence not reasonably discoverable at the time the claim was presented to the federal 16 agency, or intervening facts relating to the amount of the claim. 2 Here, Oda moves to amend the 17 amount of her administrative claim on the grounds that there is newly discovered evidence that was 18 not reasonably discoverable regarding her medical condition. But Oda knew that radiculopathy was 19 part of her diagnosis at least from May 27, 2010, when she tendered her original settlement 20 demand. Oda also failed to amend her claim before it was denied on October 28, 2011, even though 21 she had obtained further diagnoses from two physicians suggesting epidural steroidal injections or 22 spinal surgery on July 9 and August 22, 2011 might be appropriate to treat her medical condition. 23 In addition, Oda was unable to work for at least six months. In sum, when the original settlement 24 demand was made, Oda’s medical condition was reasonably foreseeable and should have been 25 contemplated. 26 27 1 28 2 See 28 U.S.C. § 2675(b). See Richardson v. United States, 841 F.2d 993, 999 (9th Cir. 1988). 3 Case No.: C 11-04514 PSG ORDER 1 IT IS SO ORDERED. 2 Dated: _________________________________ PAUL S. GREWAL United States Magistrate Judge 8/20/2012 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case No.: C 11-04514 PSG ORDER

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