Voccia v. United States of America et al

Filing 51

ORDER denying 37 Motion to Amend/Correct/Supplement. For the reasons stated in the attached memorandum, the court denies plaintiffs motion to increase the ad damnum from $500,000 to $5,000,000. Ordered by Judge Kiyo A. Matsumoto on 5/6/2016. (Fletcher, Camille)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------- X
MARIO VOCCIA,
Plaintiff,
MEMORANDUM AND ORDER
12-CV-05909(KAM)

-againstUNITED STATES OF AMERICA,
Defendant.
--------------------------------------X
MATSUMOTO, United States District Judge:

Plaintiff Mario Voccia commenced this action against
defendant, the United States of America, pursuant to the Federal
Tort Claims Act (“FTCA”) 28 U.S.C §§ 2671 et seq.

Presently

before the court is plaintiff’s motion to increase the ad damnum
amount from $500,000 to $5,000,000.
For the reasons stated herein, plaintiff’s motion to
increase the ad damnum is denied.
BACKGROUND
Plaintiff contends that he suffered a head injury in
July 2008 when he hit his head on a protruding metal object in a
shuttle van owned and operated by the United States Department
of Veterans’ Affairs (the “VA”).

As a result of the injury

plaintiff claims he suffers from headaches, dizziness, vertigo,
memory and concentration difficulties.

See ECF Nos. 37 and 37-

3.

When filing his Administrative Claim with the Department of

Veteran Affairs pursuant to 28 U.S.C. § 2675 in response to the
request that the claimant “state the nature and extent of each
injury” plaintiff wrote “Head Injury - Multiple Ailments. Being
seen by the Brooklyn, NY VA & a private neurologist for the past
2 years.

Injuries and symptoms are getting worse which requires

multiple tests and frequent therapies.”

Plaintiff also stated

that the total amount of his claim was $500,000.
37-1, (the “Administrative Claim”).

See ECF No.

In October 2012, plaintiff

received a Magnetic Resonance Imagining examination with
Diffusion Tensor Imaging (“MRI with DTI”) which resulted in a
diagnosis of Traumatic Brain Injury (“TBI”).

See ECF No. 37-2.

Plaintiff contends he did not list TBI on his Administrative
Claim because he had not yet received the diagnosis.

Plaintiff

further contends that the newly discovered evidence in the MRI
with DTI and recently conducted neuropsychological studies
support plaintiff’s request to increase the ad damnum amount
because plaintiff did not appreciate the severity of his injury
and he did not foresee the extent of his damages.
DISCUSSION
An action may not be filed against the United States
under the FTCA unless a prospective plaintiff first files an
administrative claim with the appropriate federal agency.

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See

28 U.S.C. § 2675(a).

To recover damages in excess of the amount

set forth in the administrative claim, then, one of the two
exceptions set forth in the statute must apply: “the increased
amount is based upon newly discovered evidence not reasonably
discoverable at the time of presenting the claim to the federal
agency,” or there is “proof of intervening facts, relating to
the amount of the claim.”

28 U.S.C. § 2675(b).

The FTCA, as a

statute that waives sovereign immunity of the United States,
requires strict compliance.

Malmberg v. United States, 816 F.3d

185, 196 (2d Cir. 2016) (citing O'Rourke v. Eastern Air Lines,
Inc., 730 F.2d 842, 856 (2d Cir. 1984), abrogated on other
grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111
S.Ct. 1217, 113 L.Ed.2d 190 (1991)).

In seeking damages in

excess of the claim amount, “[t]he plaintiff bears the burden of
demonstrating that one of the exceptions applies.”

Malmberg v.

United States, 816 F.3d at 196.
The “newly discovered evidence” exception will
generally apply when a plaintiff later discovers that the
“medical extent of his injuries and expenses” is greater than he
could have foreseen at the time that his administrative claim
was filed.

Barrett v. United States, 622 F. Supp. 574, 594

(S.D.N.Y. 1985), aff’d, 798 F.2d 565 (2d Cir. 1986); see also
O’Rourke, 730 F.2d at 856 (noting that motions to amend the ad

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damnum are typically granted “only when an unexpected change
occurred either in the law or in a medical diagnosis”).

Courts

have noted that foreseeability is the key inquiry when
determining what constitutes “newly discovered evidence” and/or
“intervening facts.”

See Malmberg v. United States, No. 5:06-

CV-1042 FJS/TWD, 2012 WL 4953091, at *1 (N.D.N.Y. Oct. 15, 2012)
(citing and discussing Lowry v. United States, 958 F. Supp. 704,
710 (D. Mass. 1997)).

“Thus, if the condition was reasonably

foreseeable at the time the plaintiff filed his administrative
claim, the court will not allow him to increase the ad damnum
clause.”

See id.
Plaintiff has failed to carry his burden of

establishing that his TBI diagnosis was not reasonably
foreseeable.

In Pulawski v. United States, No. 3:00CV2068

(AHN), 2002 WL 32124966, at *2 (D. Conn. Apr. 24, 2002), an
analogous case, plaintiff claimed that prior to, and at the time
he filed his administrative claim, he suffered from cervical
sprain, lumbar sprain, tendonitis of the left shoulder,
dizziness and headaches.

These conditions were the same

conditions reported by plaintiff after the administrative claim
was filed and the grounds on which plaintiff sought to increase
the ad damnum.

The court found that the symptoms could not be

construed as intervening facts or conditions not reasonably

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discoverable when the administrative claim was filed because
plaintiff had experienced these symptoms prior to the filing of
his administrative claim.

Id.

The court found that plaintiff’s

ultimate diagnosis failed to meet the heightened standard of §
2675(b) because the “ultimate diagnosis was, at most,
‘cumulative and confirmatory of [his] earlier diagnoses.’”

Id.

(citing MacDaniel v. U.S. Postal Serv., No. CIV. 3:97-CV-667,
1999 WL 33921854, at *1 (D. Conn. Aug. 20, 1999)).
Here too, it was reasonably foreseeable that
plaintiff’s claimed head injury could include a traumatic brain
injury.

In fact traumatic brain injury is a genus of a head

injury.

According to the National Institute of Health’s Library

of Medicine, “[a] head injury is any trauma to the scalp, skull,
or brain.

The injury may be only a minor bump on the skull or a

serious brain injury.” 1

Plaintiff’s purported new diagnosis and

intervening facts were nothing more than “cumulative and
confirmatory of his earlier diagnoses.”
32124966, at *2.

Pulawski, 2002 WL

The symptoms that plaintiff complained of

before filing the Administrative Claim are the same symptoms
that he complained of after receiving the MRI with DTI.

See ECF

Nos. 37, 37-3 and 37-6.

1

See Medline Plus, Head injury – first aid, U.S. NATIONAL LIBRARY OF MEDICINE,
https://www.nlm.nih.gov/medlineplus/ency/article/000028.htm (Update Date
1/13/2014)(last visited on May 6, 2016).

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Some courts have interpreted the § 2675(b) phrase “not
reasonably discoverable” to mean that existing medical evidence
and advice, that was available when the administrative claim was
being prepared, did not put the claimant “‘on fair notice to
guard against the worst-case scenario.’”

See Malmberg, 2012 WL

4953091, at *4-*5 (discussing and citing Michels v. United
States, 31 F.3d 686 (8th Cir. 1994) and Reilly v. United States,
863 F.2d 149 (1st Cir. 1988)).

The plaintiff here was on

notice, from the day the incident occurred, that he suffered
some sort of head injury.

According to his Administrative

Claim, plaintiff was treated for his head injury by VA
physicians and a private neurologist for two years.

Plaintiff

offers no explanation why his symptoms, treatment and initial
diagnosis could not have reasonably led to the discovery that he
could be suffering from a more serious type of head injury, a
traumatic brain injury.

Thus, plaintiff should have “guard[ed]

against the worst-case scenario” when filing his Administrative
Claim and accounted for the possibility that his symptoms would
continue, or worsen, in the future.

See Malmberg, 2012 WL

4953091, at *5 (denying motion to increase ad damnum because at
the time the administrative claim was filed plaintiff was aware
of the “global extent of his injuries . . . as well as the worse
possibilities attendant to such a diagnosis”).

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The changed circumstances “must be truly unexpected
and unforeseen and thus not reasonably capable of detection at
the time the administrative claim was filed.”

Mallard v.

Menifee, No. 99 CIV. 0923 SAS, 2000 WL 557262, at *6 (S.D.N.Y.
May 8, 2000) (citing O’Rourke, 730 F.2d at 856).

Neither the

results of the MRI with DTI nor the neuropsychological
examination are unexpected; if anything, they confirm
plaintiff’s earlier diagnosis of a head injury and are
consistent with the symptoms that he was suffering prior to, and
after, filing the Administrative Claim.
and 37-6.

See ECF Nos. 37, 37-3

The MRI with DTI purportedly led to a diagnosis that

plaintiff suffered a specific type of head injury, a TBI.

The

more specific TBI diagnosis was not unforeseeable, incapable of
discovery, nor materially different from the head injury that
plaintiff stated on his Administrative Claim.

See e.g.

Malmberg, 2012 WL 4953091, at *5.
Further, the government has presented evidence
refuting plaintiff’s purported TBI: the government’s experts
concluded that plaintiff’s MRI and DTI results were normal and
did not indicate traumatic brain injury, and plaintiff’s
neuropsychological assessment did not indicate that plaintiff

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was cognitively impaired. 2

Plaintiff has failed to carry his

burden of establishing that his traumatic brain injury diagnosis
is newly discovered evidence that was not reasonably
discoverable when he filed his Administrative Claim.
Plaintiff’s circumstances are distinguishable from
cases in which a motion to increase the ad damnum was granted.
In G.C.W. v. United States, No. 15-CV-0294 (DF), 2015 WL
9592688, at 3*-*4 (S.D.N.Y. Dec. 28, 2015), the plaintiff
submitted an uncontroverted affidavit from the treating doctor
stating that it was “impossible to adequately assess”
plaintiff’s life expectancy when the administrative claim was
filed.

Plaintiff’s medical diagnosis later changed based upon

new, and previously unavailable, information so that “what was
once unknowable is now subject to reasonably accurate
estimation.”

Id. at *4.

Here, by contrast, plaintiff has not

established that the traumatic brain injury he now claims, was
unknowable at the time his Administrative Claim was filed.
In MacDaniel v. U.S. Postal Serv., No. CIV. 3:97-CV667, 1999 WL 33921854, at *2 (D. Conn. Aug. 20, 1999), the
plaintiff complained of back pain and was diagnosed with a

2 The court expresses no opinions as to the merits of this case.
Plaintiff
will have the opportunity to prove, by a preponderance, that his injuries,
whatever they may be, were proximately caused by defendant’s negligence
during the incident giving rise to this lawsuit. If liability is
established, by a preponderance of the evidence, the plaintiff will also have
the opportunity to present evidence proving the extent of his damages.

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lumbar strain.

After plaintiff filed her administrative claim,

her condition significantly and rapidly deteriorated and she was
later diagnosed with spinal degeneration and a herniated disc;
she had to undergo surgery.

The court found that her new

diagnosis was “not merely cumulative and confirmatory of her
earlier diagnoses, but was an unforeseen and unexpected
worsening of her condition.” Id.
Here, plaintiff does not explain how his condition has
worsened, nor has he undergone more intensive treatment like the
plaintiff in MacDaniel.

Plaintiff’s new diagnosis is not

materially different than what he listed on his Administrative
Claim; a traumatic brain injury is a type of head injury.
Compare to G.C.W., 2015 WL 9592688, at *4 where the doctor said
it was “impossible” to estimate life expectancy when the
administrative claim was filed but later said he could, based on
new information learned after the claim was filed, make a
“reasonably accurate estimation” of plaintiff’s life expectancy.
As discussed above, when the ultimate diagnosis is only
“cumulative and confirmatory” it cannot meet § 2675’s heightened
standard.

See Pulawski, 2002 WL 32124966, at *2.

Plaintiff’s

new diagnosis of traumatic brain injury is at best “cumulative
and confirmatory” of his initial diagnosis of a head injury and,
therefore, it does not meet § 2675’s heightened standard.

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CONCLUSION
For the foregoing reasons, the court denies
plaintiff’s motion to increase the ad damnum from $500,000 to
$5,000,000.

SO ORDERED.
Dated:

May 6, 2016
Brooklyn, New York

_____________/s/_____________
Kiyo A. Matsumoto
United States District Judge

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