CHO v. UNITED STATES OF AMERICA et al

Filing 40

ORDER DENYING as moot 29 Plaintiff's Motion to Compel and DENYING 30 Plaintiff's Motion to Amend/Correct. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 5/19/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DAE EEK CHO,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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CIVIL ACTION NO. 5:13-CV-153 (MTT)

ORDER
This matter is before the Court on the Plaintiff’s motion to compel the
Government to respond to interrogatories the Plaintiff alleges she submitted to the
Government on February 15, 2014. (Doc. 29). However, the envelope containing the
interrogatories was postmarked on March 24, 2014 and received by the Government
the following day. Although the Government believes this request is untimely because
the due date for responses falls outside of the close of discovery, the Government
nevertheless agreed to respond to the interrogatories within 30 days in light of the
Plaintiff’s pro se status. The Plaintiff has not subsequently informed the Court that she
did not receive those responses. Accordingly, the Plaintiff’s motion to compel is
DENIED as moot.
Also before the Court is the Plaintiff’s motion to amend her administrative claim
and Form 95. (Doc. 30). The Plaintiff seeks to amend her administrative claim because
she contends she has discovered through consultation and medical examination that
her long term health is more seriously jeopardized by the Government’s actions than
she initially believed. She now wants to amend her claim to assert an amount of

damages sufficient to cover the additional alleged harm to her health. The Government
argues that the Plaintiff has not satisfied the requirements of 28 U.S.C. § 2675(b) in
order to amend her claim.
A plaintiff may not bring a civil action
for any sum in excess of the amount of the claim presented to the federal
agency, except 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.
28 U.S.C. § 2675(b) (emphasis added). The Plaintiff appears to contend the
documentation she presents from her oncologist is newly discovered evidence.
However, it is not sufficient that the evidence is newly discovered. The evidence must
also have been not reasonably discoverable when the Plaintiff filed her administrative
claim. The Plaintiff’s administrative claim was filed in October 2012. The April 9, 2014
statement submitted by her oncologist states that Cho did not receive necessary
therapy from April 2011 through February 2012 for her cancer treatment. (Doc. 30 at 4).
Even if true, this is not newly discovered evidence. The Plaintiff has already alleged in
her complaint that she was denied this treatment as a result of her detention.
To the extent the Plaintiff is contending this letter shows the denial of treatment
led to a higher risk of cancer recurrence, the letter does not support her assertion
regarding causation. Rather, the letter states, “[The Plaintiff] has a higher risk of
recurrence than those diagnosed after menopause or with a less invasive cancer at
diagnosis.”1 (Doc. 30 at 4). The letter goes on to state regular examinations and
continuing therapy “are an integral part of the surveillance plan[.]” (Doc. 30 at 4).

1

The Plaintiff was diagnosed in 2007, prior to any of the events giving rise to her claims. (Doc. 30 at 4).

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Further, even if the letter provided support for the Plaintiff’s apparent argument
regarding causation, there is no indication that this evidence was not reasonably
discoverable prior to filing her administrative claim. The Plaintiff was released from
custody in February 2012 and had the opportunity to obtain this sort of evidence prior to
filing her administrative claim in October 2012. Thus, the Plaintiff has not satisfied the
requirements of 28 U.S.C. § 2675(b) to request an additional amount of damages.
Accordingly, the Plaintiff’s motion to amend her administrative complaint is DENIED.
SO ORDERED, this 19th day of May, 2014.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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