Kennedy v. United States of America

Filing 92

MEMORANDUM AND ORDER - The government's objection to the magistrate judge's order (Filing No. 85 ) is sustained. The magistrate judge's January 22, 2016, order (Filing No. 82 ) is set aside, and the plaintiff's motion to further amend the amount of the claim (Filing No. 73 ) is denied. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
LAURIE KENNEDY,

)
)
Plaintiff,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
______________________________)

7:13CV5011

MEMORANDUM AND ORDER

This matter is before the Court on the government’s
objection to the magistrate judge’s order (Filing No. 85).

The

order at issue is Magistrate Judge Thalken’s January 22, 2016,
order granting the plaintiff’s motion to further amend the amount
of the claim (Filing No. 82).

The government argues that

Magistrate Judge Thalken did not apply to proper legal standard
in granting the plaintiff’s motion to amend the amount of the
claim (See Filing No. 86).

The plaintiff filed a brief in

opposition to the objection (Filing No. 91).

After reviewing

Magistrate Judge Thalken’s order, the briefs, and applicable law,
the Court finds as follows.
Background
The plaintiff, Laurie Kennedy (“Kennedy”), filed this
action against the United States of America on October 17, 2013
(See Filing No. 1).

The case arises from the injuries sustained

by the plaintiff when she fell entering the Post Office in

Scottsbluff, Nebraska, on August 20, 2010 (Id. at ¶ 4).

The

plaintiff alleges that the defendant negligently caused her
injuries due to an uneven surface with broken tiles at the Post
Office’s north entrance (Id. at ¶¶ 4-5).

Kennedy filed an

administrative claim pursuant to the Federal Tort Claims Act,
(“FTCA”).

28 U.S.C. § 2671, et seq.

The United States Postal

Service received the administrative claim on August 16, 2012,
which was signed by the plaintiff on August 10, 2012 (Filing No.
57-1, Exhibit E, Admin. Claim, pp. 109-161; Filing No. 70-1,
Attachment B).

The administrative claim was denied on May 20,

2013 (Filing No. 1 at ¶ 8).

In the administrative claim, the

plaintiff stated that her personal injury damages and the total
amount of the claim was $200,000 (See Filing No. 57-1, Exhibit E,
Admin. Claim).
On September 11, 2015, the plaintiff filed a motion to
amend the damages alleged in the original claim (Filing No. 56).
She sought to increase the damages from $200,000 to $900,000
(Id.).

The plaintiff filed another motion to further amend the

amount of the claim to $400,000 (Filing No. 73).

On January 22,

2016, Magistrate Judge Thalken entered an order granting the
plaintiff’s motion to further amend the amount of the claim to
$400,000 (Filing No. 82).

The government objected to Magistrate

Judge Thalken’s order (Filing No. 85).
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Standard of Review
Under Rule 72 of the Federal Rules of Civil Procedure,
a district judge must set aside the magistrate judge’s order if
it was “clearly erroneous or is contrary to law.”
72(a).

Fed.R.Civ.P.

“Under a clearly erroneous standard, a district court can

reverse a magistrate judge’s order only if the court ‘is left
with the definite and firm conviction that a mistake has been
committed.’”

Brooks v. Lincoln National Life Ins. Co., No.

8:05CV118, 2006 WL 2487937, at *3(D. Neb. Aug. 25, 2006)(citing
Chakales v. Comm’r of Internal Revenue, 79 F.3d 726, 728 (8th
Cir. 1996)).

“Under a contrary to law standard, a district court

can reverse a magistrate judge’s order only if the order fails to
apply the relevant law.”

Id. (citing Olais-Castro v. United

States, 416 F.2d 1155, 1158 n. 8 (9th Cir. 1969)).
Law
Prior to filing suit against the Federal Government
under the FTCA, a plaintiff must exhaust all administrative
remedies.

28 U.S.C. § 2675.

Under section 2675(b),

the amount of a claim presented to
a federal agency limits the
claimant’s recovery in a subsequent
FTCA lawsuit, “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
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and proof of intervening facts,
relating to the amount of the
claim.”
Michels v. United States, 31 F.3d 686, 687-88 (8th Cir. 1994)
(citing 28 U.S.C. § 2675(b))).

“[W]hen existing medical evidence

and advice put the claimant ‘on fair notice to guard against the
worst-case scenario’ in preparing the administrative claim, a
§ 2675(b) motion to increase the claim in litigation will be
denied.”

Id. at 688 (citing Reilly v. United States, 863 F.2d

149, 172 (1st Cir. 1988)).

However, courts have also found “that

a known injury can worsen in ways not reasonably discoverable by
the claimant and his or her treating physician, and holding that
such ‘newly discovered evidence’ or ‘intervening facts,’ if
convincingly proved, can warrant § 2675(b) relief.” Id.
Discussion
The primary basis for the government’s objection is
that Magistrate Judge Thalken analyzed the motion under the
liberal pleadings requirements of Federal Rule of Civil Procedure
15 and not pursuant to the narrower requirements of the FTCA.
The government contends that the analysis was in error and
contrary to law, and that if the court used the correct legal
standard under the FTCA, the plaintiff’s motion would have been
denied.

The plaintiff claims that granting the motion to amend

the amount of the claim was correct because the plaintiff
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presented the proper evidence required under the FTCA to
demonstrate “newly discovered evidence not reasonably
discoverable . . . .”

See 28 U.S.C. § 2675(b).

The Court agrees that Rule 15 was the improper standard
to analyze a motion to amend the amount of the FTCA claim.

A

plaintiff in a FTCA lawsuit is limited to the amount of the claim
presented to the federal agency except when the plaintiff can
present evidence that “the increased amount is based on newly
discovered evidence not reasonably discoverable at the time of
presenting the claim to the federal agency” or “proof of
intervening facts.”

Michels, 31 F.3d at 687-88 (quoting 28

U.S.C. § 2675(b))).

The Eighth Circuit has found that newly

discovered evidence under § 2675(b) can include a known injury
worsening in ways “not reasonably discoverable by the claimant
and his or her treating physician.”

Id. at 688.

It is the

plaintiff’s burden to show that an amended damages claim rests
newly discovered evidence.

See Chang-Williams v. United States,

No. CIV.A.DKC. 10-0783, 2011 WL 2680714, at *2 (D. Md. July 7,
2011)(citing Spivey v. United States, 912 F.2d 80, 85 (4th Cir.
1990)).
In the instant case, the plaintiff alleges that she has
submitted evidence to demonstrate that “newly discovered
evidence” warrants an amendment to the initial claim amount.
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When the plaintiff filed her administrative claim, she alleged
that she suffered injuries to her left knee and the left side of
her neck, and aggravated preexisting injuries of her left hip and
lower back (Filing No. 57, Ex. E, Admin. Claim, at pp. 1-3).
Plaintiff claims that the option of neck surgery was not
reasonably foreseeable when she filed the administrative claim.
The government argues that plaintiff’s neck surgery was
reasonably foreseeable and not newly discovered evidence.
Based on the evidence presented in this case, the Court
finds that the plaintiff has not met her burden of proof to amend
the amount of the claim under § 2675(b).

Various medical

records, and deposition testimony demonstrate that neck surgery
was reasonably foreseeable prior to filing her administrative
claim.

On October 12, 2010, a document from the Regional West

Physicians Clinic states that an MRI “shows a cervical
spondylitic change, most noted C4-C5" and that the plaintiff “is
encouraged to try physical therapy.

If things are not going

well, we will get her in with neurosurgery or interventional
radiology.”

(Filing No. 57-1, at 165).

On August 8, 2012, Dr.

R. Sanford Kiser, MD, noted that the plaintiff was experiencing
neck and low back pain and was referred to “Dr. Fabian who will
see her in Sidney, Nebraska, for treatment as a spinal surgeon.”
(Filing No. 70-3, at 39).

On August 14, 2012, a physical
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therapist noted in the assessment section that the plaintiff “may
end up needing some type of surgical intervention at the neck
given her current complaints.”

(Id. at 42).

In addition, during

the plaintiff’s deposition, she admitted that on August 9, 2012,
she knew that neck surgery was going to be a potential issue
(Filing No. 57-1, at 43).
Medical documents and advice put the plaintiff “on fair
notice to guard against the worst-case scenario” before preparing
her administrative claim.

See Reilly v. United States, 863 F.2d

149, 172 (1st Cir. 1988).

The possibility of neck surgery was

reasonably foreseeable.

Therefore, amending the administrative

claim under § 2675(b) should have been denied.

The Court finds

that the magistrate judge’s order (Filing No. 82) is clearly
erroneous and contrary to law.

As a result, the government’s

objection to the magistrate judge’s order (Filing No. 85) will be
sustained.

Accordingly,
IT IS ORDERED:
1) The government’s objection to the magistrate judge’s

order (Filing No. 85) is sustained.

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2) The magistrate judge’s January 22, 2016, order
(Filing No. 82) is set aside, and the plaintiff’s motion to
further amend the amount of the claim (Filing No. 73) is denied.
DATED this 24th day of May, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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