Kennedy v. United States of America

Filing 82

ORDER - The plaintiff's Motion to Amend the Damages Alleged in the Original Claim (Filing No. 56 ) is denied as moot. The plaintiff's Motion to Further Amend Amount of the Claim (Filing No. 73 ) is granted. The plaintiff shall have u ntil February 5, 2016, to file an Amended Complaint reflecting the increased amount of the claim. The court will hold a telephone conference on February 26, 2016, at 10:00 a.m. for the purpose of reviewing the preparation of the case to date and scheduling the case to trial. The plaintiff's counsel shall initiate the conference with the undersigned magistrate judge and participating counsel. ADMONITION - Pursuant to NECivR 72.2 any objection to this Order shall be filed with the C lerk of the Court within fourteen (14) days after being served with a copy of this Order. Failure to timely object may constitute a waiver of any objection. The brief in support of any objection shall be filed at the time of filing such objection. Failure to file a brief in support of any objection may be deemed an abandonment of the objection. Ordered by Magistrate Judge Thomas D. Thalken. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

LAURIE KENNEDY,
Plaintiff,

7:13CV5011

vs.
ORDER
UNITED STATES OF AMERICA,
Defendant.
This matter is before the court on the plaintiff’s Motion to Amend the Damages
Alleged in the Original Claim (Filing No. 56) and Motion to Further Amend Amount of the
Claim (Filing No. 73). The plaintiff filed a brief (Filing No. 58) and an index of evidence
(Filing No. 57), with a corrected affidavit (Filing No. 64 p. 3), in support of the original
motion. The defendant filed a brief (Filing No. 71) and an index of evidence (Filing No.
70) opposing the motion. The plaintiff filed a brief (Filing No. 75) and an index of
evidence (Filing No. 74) in support of the further amendment. The defendant filed a
brief (Filing No. 81) opposing further amendment.

BACKGROUND
This case arises from the injuries sustained by the plaintiff on August 20, 2010,
when she fell entering the Scottsbluff, Nebraska, Post Office.

See Filing No. 1 -

Complaint ¶ 4. Specifically, she alleges the surface of the north entrance was uneven
with broken tiles in the path of travel causing her to fall. Id. Based on the floor’s
surface, the plaintiff alleges the defendant negligently caused her injuries. Id. ¶ 5. On
October 17, 2013, the plaintiff filed her Complaint under the Federal Tort Claims Act
(FTCA), 28 U.S.C. § 2671, et seq. Id. ¶ 2. The plaintiff initially alleged she incurred
medical expenses, which “exceed $98,000.00 and continue to increase,” and other
damages due to the injuries sustained on August 20, 2010. Id. ¶ 7. The defendant
generally denies liability for the plaintiff’s damages. See Filing No. 6 - Answer.
In support of her Complaint, the plaintiff alleges she timely filed her Claim for
Damage, Injury, or Death in compliance with the FTCA’s administrative requirements on
August 10, 2012, which claim the defendant denied on May 20, 2013. See Filing No. 1 -

Complaint ¶ 8; Filing No. 57 - Index of Evidence p. 109 (Ex. E Claim).

In the

administrative claim, the plaintiff states her personal injury damages and the total
amount of the claim is $200,000. See Filing No. 57 - Index of Evidence p. 109 (Ex. E
Claim p. 1). Also in the claim, the plaintiff explains she suffered injuries to her left knee
and the left side of her neck. Id. Ex. E Claim p. 3. The plaintiff further explained the fall
aggravated preexisting injuries of her left hip resulting in surgery and low back pain. Id.
The claim describes the plaintiff’s treatment through August 10, 2012, and ongoing pain
and suffering. Id. at 3-8. The plaintiff stated she treated on August 9, 2012, with her
physician who was considering the necessity of surgery but who recommended
continued physical therapy. Id. at 5-6. The plaintiff’s physician Henry F. Fabian, Jr.,
M.D., M.B.A., (Dr. Fabian), an orthopedic surgeon, performed neck surgery on the
plaintiff on October 25, 2013. See Filing No. 57 - Index of Evidence p. 73 Ex. C Expert
Witness Disclosure. On July 6, 2015, as part of her discovery disclosures the plaintiff
served an undated letter wherein Dr. Fabian gives the opinion the plaintiff’s neck
problems and the October 25, 2013, neck surgery were proximately caused by the
plaintiff’s August 10, 2010, fall. See Filing No. 57 - Index of Evidence p. 83 Ex. C
Expert Witness Disclosure’s attached Ex. B (undated letter).
The parties have engaged in extensive discovery related to the plaintiff’s medical
history and injuries.

The discovery requirements resulted in an eleven-month

continuance of the initial trial date. See Filing Nos. 25, 32, 39, and 49. Ultimately, the
parties sought a stay of proceedings which was granted pending resolution of the
plaintiff’s motion to amend. See Filing No. 78, 80.
On September 11, 2015, the plaintiff filed a motion to amend “the damages
alleged in the original claim.” See Filing No. 56. The plaintiff sought to increase the
amount of damages sought from $200,000 to $900,000 due to an escalation in the
plaintiff’s medical bills after two additional surgeries on her neck and back. Id. On
November 6, 2015, the plaintiff reformed the motion to amend to seek an increase in the
claim to only $400,000. See Filing No. 73. The plaintiff alleges her medical costs
reflect $175,000 based on neck treatment and surgery, hip treatment and surgery, and
knee treatment. Id. The plaintiff no longer seeks damages associated with her back
surgery. Id. Nevertheless, the plaintiff argues the increase in damages represents an
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unforeseen worsening of her neck condition after the initial claim submission.

See

Filing No. 56.
The defendant opposes amending the claim in any respect. See Filing Nos. 71,
81. The defendant contends the amount listed in the administrative claim constitutes
the upper boundary of any damages sought by the plaintiff under the stricture set by the
FTCA.

Id.

Specifically, the defendant argues the plaintiff and her physicians

reasonably anticipated the neck surgery. See Filing No. 71 - Response p. 1. Moreover,
the plaintiff had adequate time to amend her claim prior to the administrative denial or
after. Id. at 24-25; Filing No. 81 - Response p. 2-3.

ANALYSIS
Under Federal Rule of Civil Procedure 15, a court should grant leave to amend
freely “when justice so requires.” However, “[a] district court may deny leave to amend
if there are compelling reasons such as undue delay, bad faith, or dilatory motive,
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the non-moving party, or futility of the amendment.

Duplicative and

frivolous claims are futile.” Reuter v. Jax Ltd., Inc., 711 F.3d 918, 922 (8th Cir. 2013)
(internal quotation and citation omitted). The party opposing the amendment has the
burden of demonstrating the amendment would be unfairly prejudicial. Roberson v.
Hayti Police Dep’t, 241 F.3d 992, 995 (8th Cir. 2001); see Hanks v. Prachar, 457 F.3d
774, 775 (8th Cir. 2006). There is no absolute right to amend. Sorace v. United
States, 788 F.3d 758, 767 (8th Cir. 2015). Whether to grant a motion for leave to
amend is within the sound discretion of the district court.

Popoalii v. Corr. Med.

Servs., 512 F.3d 488, 497 (8th Cir. 2008). A court’s scheduling order governs the
timing for filing a motion to amend, although upon a showing of good cause the court
may modify the schedule. Id. (citing Fed. R. Civ. P. 16(b)); see Hartis v. Chicago
Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012). Nevertheless, “if the reason for
seeking the amendment is apparent before the deadline and no offsetting factors
appear, the Rule 16 deadline must govern.” Financial Holding Corp. v. Garnac Grain
Co., 127 F.R.D. 165, 166 (W.D. Mo. 1989). In addition to the good cause requirement,
“on motion made after the time has expired,” the court may extend time “if the party
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failed to act because of excusable neglect.” See Fed. R. Civ. P. 6(b)(1)(B). Whether
the plaintiff filed her motion as one to amend her Complaint or to augment her
administrative claim, she is bound by these procedural requirements. See Reynolds v.
United States, No. S-10-161, 2012 WL 947408, at *1 (E.D. Cal. Mar. 20, 2012).
Additionally, the court may consider whether the “late tendered amendments involve
new theories of recovery and impose additional discovery requirements.” Popoalii, 512
F.3d at 497.
The deadline for the plaintiff to move to amend the Complaint was April 2, 2014.
See Filing No. 12 - Order ¶ 7. Despite the deadline, on January 31, 2014, the plaintiff
stated she did not anticipate the need to amend her Complaint. See Filing No. 11 Rule 26(f) Report p. 8. Although the parties sought extensions of other deadlines,
neither of them sought to extend the deadline to amend pleadings. On May 18, 2015, in
the context of a motion to extend deadlines, the parties mentioned the plaintiff was
awaiting additional medical reports since obtaining maximum medical improvement
(MMI) in January 2015. See Filing No. 38. On August 17, 2015, in the context of a
motion to extend other deadlines, the defendant stated the plaintiff’s counsel had
advised he intended to file a motion to seek damages in excess of the amount claimed
in the administrative claim within two weeks. See Filing No. 48.
The plaintiff’s motion to amend, filed on September 11, 2015, was not timely
under the court’s progression order. See Filing No. 56. The plaintiff provides no explicit
explanation for the failure to timely file. Nevertheless, the plaintiff notes on July 6, 2015,
she obtained an expert disclosure statement from Henry F. Fabian, Jr., M.D., M.B.A.,
(Dr. Fabian), in which Dr. Fabian gives the opinion the plaintiff’s neck problems and the
October 25, 2013, neck surgery were proximately caused by the plaintiff’s August 10,
2010, fall.

See Filing No. 57 - Index of Evidence p. 83 Ex. C Expert Witness

Disclosure’s attached Ex. B (undated letter). Additionally, on November 6, 2015, for the
first time, the plaintiff informed the court she “waited to reach maximum medical
improvement before requesting to amend her claim.” See Filing No. 75 - Reply p. 9.
Under these circumstances, Rule 16(b) requires the plaintiff to show good cause
and excusable neglect for the timing of filing the motion to amend. The plaintiff provides
some explanation for the delay, stating the plaintiff wanted to achieve MMI prior to the
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amendment. The plaintiff underwent neck surgery on October 25, 2013, approximately
one week after filing this lawsuit. The plaintiff’s expert’s opinion produced on July 6,
2015, supports the amendment’s necessity. The timing of the plaintiff’s motion reflects
the parties’ ongoing discovery about the plaintiff’s medical condition, rather than any
evidence of undue delay. The plaintiff’s oversight in seeking to extend the amendment
deadline caused no additional burden to the defendant who was aware of the plaintiff’s
intention. The plaintiff’s neck injury forming the basis for the increase in damages is
already central to the current claim.
The defendant also argues the plaintiff’s proposed amendment is futile because
the plaintiff’s complaint is limited to the amount in the administrative claim, which cannot
be increased under the present circumstances. A district court’s denial of leave to
amend a complaint may be justified if the amendment would be futile.

Geier v.

Missouri Ethics Com’n, 715 F.3d 674, 678 (8th Cir. 2013) (finding amendment futile
where court had already considered argument in dispositive motion).

However, a

motion to amend should be denied on the merits “only if it asserts clearly frivolous
claims or defenses.” Gamma-10 Plastics, Inc. v. Am. President Lines, 32 F.3d 1244,
1255 (8th Cir. 1994) (quotations and citations omitted). Further, “likelihood of success
on the new claim or defense is not a consideration for denying leave to amend unless
the claim is clearly frivolous” “or legally insufficient on its face.” Becker v. Univ. of
Neb., 191 F.3d 904, 908 (8th Cir. 1999); Sokolski v. Trans Union Corp., 178 F.R.D.
393, 396 (E.D.N.Y. 1998) (citation omitted). “[W]hen the court denies leave on the basis
of futility, it means the district court has reached the legal conclusion that the amended
complaint could not withstand a motion to dismiss under [Rule 12(b)(6)].” Hintz v.
JPMorgan Chase Bank, N.A., 686 F.3d 505, 511 (8th Cir. 2012). “The party opposing
such amendment ha[s] the burden of establishing that leave to amend would be . . .
futile.” Sokolski, 178 F.R.D. at 396 (citations omitted). The court is mindful of the
liberal policy toward amendments and “the underlying purpose of Rule 15–to facilitate
decision on the merits rather than on the pleadings or technicalities.” Sharper Image
Corp. v. Target Corp., 425 F. Supp. 2d 1056 (N.D. Cal. 2006) (internal citation
omitted); see Monahan v. New York City Dep’t of Corr., 214 F.3d 275, 283 (2d Cir.
2000).
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Although the court will not determine the merits of the plaintiff’s claims at this
time, the defendant fails to meet its burden of showing it would be legally futile to allow
the plaintiff to amend the complaint. After reviewing the plaintiff’s claims, the court
cannot find increasing the damages amount based on the neck surgery is “clearly
frivolous.” The plaintiff has alleged sufficient facts and a good faith basis to support the
amended damage amount. The applicable provision of the FTCA, provides as follows:
Action under this section shall not be instituted for any sum
in excess of the amount of the claim presented to the federal
agency, except where the increased amount is based on
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).
In the Eighth Circuit, even “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.” Michels v. United States, 31 F.3d 686, 688 (8th Cir. 1994); see Zurba v.
United States, 318 F.3d 736, 739-40 (7th Cir. 2003) (noting “[a]n unforeseen worsening
of a known injury may constitute ‘newly discovered evidence’ or ‘intervening facts’ under
§ 2675(b)”). Although evidence exists in the record suggesting the plaintiff consulted
with a surgeon about her neck problems prior to filing her administrative claim, the issue
of “when existing medical evidence and advice put the claimant ‘on fair notice to guard
against’” neck surgery is an issue of fact to be resolved by the trier of fact. See id.;
Stanek v. United States, 399 F. Supp. 2d 1025, 1027 (E.D. Mo. 2005).

Upon

consideration,

IT IS ORDERED:
1.

The plaintiff’s Motion to Amend the Damages Alleged in the Original Claim

(Filing No. 56) is denied as moot.
2.

The plaintiff’s Motion to Further Amend Amount of the Claim (Filing No.

73) is granted.

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3.

The plaintiff shall have until February 5, 2016, to file an Amended

Complaint reflecting the increased amount of the claim.
4.

The court will hold a telephone conference on February 26, 2016, at

10:00 a.m. for the purpose of reviewing the preparation of the case to date and
scheduling the case to trial. The plaintiff’s counsel shall initiate the conference with the
undersigned magistrate judge and participating counsel.

ADMONITION
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk
of the Court within fourteen (14) days after being served with a copy of this Order.
Failure to timely object may constitute a waiver of any objection. The brief in support of
any objection shall be filed at the time of filing such objection. Failure to file a brief in
support of any objection may be deemed an abandonment of the objection.

Dated this 22nd day of January, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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