HIGHHOUSE v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Mark R. Hornak on 3/30/17. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THEDE MOHR HIGHHOUSE,
UNITED STATES OF AMERICA,
Civil Action No. 14-140 Erie
Mark R. Hornak, United States District Judge
This civil action involves a claim by Plaintiff, Thede Mohr Highhouse, for money
damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 - 2680. 1 Presently
pending before the Court is Plaintiffs Motion to Increase the Ad Damnum Damages Amount in
his Complaint (ECF No. 51). For the reasons set forth below, the motion will be granted.
FACTUAL AND PROCEDURAL BACKGROUND
Background Medical Facts
Plaintiff is a 61-year old male who resides in Erie County, Pennsylvania. In January
2011, Plaintiff suffered a wrist injury while skiing, for which he sought treatment at the Veterans
Administration Medical Center ("VAMC") in Erie, Pennsylvania. He presented to the VAMC
emergency room on January 22, 2011, at which time he underwent a closed reduction to restore a
fracture in his left wrist. Because Plaintiff had also hit his head at the time of his skiing accident,
medical staff ordered a CT scan of his head. The scan showed an apparent focal enlargement of
the top of the basilar artery that was worrisome for a basilar tip aneurysm. (Pl.'s Ex.Lat 4, ECF
No. 51-12; Pl.'s Ex. Q at 4, ECF No. 51-17.)
Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331and1346(b).
Plaintiffs primary health care provider at the VAMC, Lydia J. Maring, CRNP, ordered a
follow-up MRI and MRA for further characterization. These studies, performed on February 4,
2011, showed a rather large basilar tip aneurysm and possible communicating artery aneurysm.
(Pl. 's Ex. Lat 4; Pl. 's Ex. Q at 4.) Plaintiff alleges that he was never informed of these abnormal
findings, even during follow-up office visits on March 24 and October 20, 2011. (Compl.
19, ECF No. 1.)
On January 24, 2012, Plaintiff presented to the V AMC for epigastric pain, and the
attending physician ordered a CT scan of the head based on his clinical history of headaches.
The findings were again worrisome for an aneurysm at the tip of the basilar artery.
comparison of the CT imaging from January 22, 2011 and January 24, 2012 showed that, in fact,
the basilar tip aneurysm had grown in size and shape over the prior year. (Pl.' s Ex. L at 7.)
Plaintiff maintains that, once again, V AMC medical staff failed to inform him of the abnormal
test results and took no action to prevent hemorrhaging or further aneurysm growth. (Compl.
On January 30, 2012, Plaintiff presented to the VAMC emergency room after
experiencing headaches, photosensitivity, nausea and vomiting. A CT of his head revealed an
acute subarachnoid hemorrhage related to the basilar tip aneurysm. (Pl. 's Ex. Lat 7.. s; Pl. 's Ex.
Q at 4.) Plaintiff was transported to Saint Vincent Health Center in Erie, where Charles Romero,
M.D. performed a coil embolization of the ruptured aneurysm. (Pl. 's Ex. L at 9; Pl. 's Ex. Q at
4.) While hospitalized, Plaintiff experienced atrial flutter and fibrillation, cerebral salt wasting
syndrome, and acute urinary retention. Following treatment, he was discharged on February 9,
2012. (Compl. iJ27; Pl.'s Ex.Lat 10-13; Pl.'s Ex. Q at 4.)
Over the next two months, Plaintiff was seen at the V AMC by medical staff, along with
social work, speech therapy, and behavioral health professionals, to address a variety of healthrelated issues. (Pl.'s Ex. Q at 4-5.) On February 28, 2012 Plaintiff was seen at the VAMC
Urology Clinic for difficulty voiding and was instructed on an intermittent catheterization
program. (Pl.'s Ex L at 16.) He was examined on March 2, 2012 at the Neurology Clinic
regarding his headaches.
(Id. at 17.)
Five days later he saw an audiologist, who noted
moderately severe sensorineural hearing loss bilaterally, consistent with a longstanding high
frequency hearing loss. (Id.) Plaintiff was also examined by a speech pathologist for complaints
of slurred speech, inability to form sentences, and memory impairment. (Id.) The pathologist
administered the intermediate portion of the Ross Information Processing Assessment, which
indicated that Plaintiff had a mild-to-moderate impairment. (Id. at 18.) On March 16, 2012,
Plaintiff was seen in the Behavior Health Clinic and was diagnosed with Major Depressive
Episode and Anxiety Disorder, to be managed medically and with individual and group therapy.
(Id.) Plaintiff was then seen on March 22, 2012 by a psychiatrist, who assessed mood disorder,
anxiety disorder, and cognitive disorder. (Id. at 19.) Plaintiffs mental status examination at that
time revealed a mild cognitive impairment, including impaired short-term memory. His Global
Assessment of Functioning ("GAF") was 65. (Id.)
On April 17, 2012, Plaintiff was admitted to Saint Vincent Health Center for treatment of
his anterior communicating artery aneurysm. (Pl.'s Ex.Lat 20.) Dr. Romero perfonned a stentassisted coil embolization of the intracranial aneurysm and discharged Plaintiff two days later.
In August 2012, Plaintiff again saw Dr. Romero and reported worsening headaches
preceded by nausea and occasional vomiting. (Id. at 22.) Plaintiff was also experiencing left
lower quadrant visual obscuration and a kaleidoscope or prism pattern of visual disturbance with
associated photophobia and phonophobia and occasional lightheadedness. Dr. Romero noted
that Plaintiffs symptoms were consistent with migraines. He prescribed Fioricet and ordered a
brain MR angiographic study, which was performed on September 9, 2012. (Id.) The MRA
showed some irregularity of the basilar tip aneurysm, which could have been residual
There was no abnormality noted with respect to the coiled anterior
communicating artery aneurysm. (Id. at 22-23.)
On March 11, 2013, Plaintiff was seen by Michael Orinick, III, M.D., for a physical
medicine rehabilitation consultation. (Def.'s Ex. G, ECF No. 55-7 at 6.) At that time, Plaintiff
continued to report headaches and a "kaleidoscope" effect with his vision. Approximately one
week prior to the office visit, he had experienced his first syncopal episode. (Id. at 7.) Plaintiff
reported a number of "severe" symptoms to Dr. Omick, including severe dizziness, loss of
balance, vision and hearing problems, sensitivity to noise, anxiousness and distractibility. (Id. at
7-8.) Plaintiff also reported "very severe" forgetfulness, indecision, sleep problems, depression,
irritability, and frustration. (Id.) Dr. Omick diagnosed status post aneurysm bleed/subarachnoid
hemorrhage, with coiling procedure and residual neurological problems. He referred Plaintiff for
auditory and visual testing and speech therapy to evaluate for post-concussive residuals of
memory problems and various other cognitive issues. (Id. at 10.)
Due to his worsening headaches, Plaintiff underwent additional testing on March 19,
(Def.'s Ex. C, ECF No. 55-3 at 2.)
MRI and MRA studies showed evidence of
recanalization of the previously treated basilar tip aneurysm, but no recanalization of the anterior
circulation aneurysm. (Id.) A cervical spine MRI showed degenerative cervical spondylosis
with moderate foraminal changes at C3-C4, C5-C6, and C6-C7. (Pl.'s Ex. L at 27-28.) The
spinal cord appc~ared normal. (Id. at 28.)
On April 2, 2013, Plaintiff met with Dr. Romero to discuss his most recent brain studies.
(Def.'s Ex. C, ECF No. 55-3 at 2.) At the time of his visit, Plaintiff reported that he was
experiencing anxiety, depression and headaches 2 to 3 times per week. (Id. at 3.) Treatment
notes reflect that Plaintiffs recanalized aneurysm measured approximately 13 x 12 x 11
(Id. at 4.) Dr. Romero observed that, according to a published report, "large
aneurysms between 11 and 25 mm have a 44% recurrence if incompletely coiled''' and a 30
percent recurrence when completely coiled, and basilar tip aneurysms "notoriously have the
highest likel[ihood] of recurrence as do aneurysms with increasing size." (Id.) Although Dr.
Romero did not feel Plaintiff was at immediate risk of a rupture, he nevertheless felt that
treatment was warranted, given the changes in Plaintiffs aneurysm that were compatible with
recanalization. (Id.) During his consultation, Dr. Romero spent more than 15 minutes with
Plaintiff discussing the findings, their implications, Plaintiffs options, and coordination of
Plaintiffs care.. (Id.)
On April 30, 2013, Plaintiff filed an application with the Social Security Administration
for disability insurance benefits. In his application form, Plaintiff claimed that he had become
disabled as of January 30, 2012 due to his brain aneurysm and a resulting loss of concentration
and memory (both short term and long term), ambulatory problems, "balance [and] vision
issues," migraine headaches, and depression. (Def.'s Ex. E, ECF No. 55-5 at 2.)
The following day, he filed his administrative claim under the FTCA, seeking damages
for injuries sustained as a result of the ruptured basilar tip aneurysm. (Pl.' s Ex. A, ECF No. 511.) Plaintiffs claim included a request for $2 million in damages.
Thereafter, on May 9, 2013, Plaintiff underwent treatment to address the recanalized
basilar tip aneurysm.
The retreatment was more extensive than anticipated, requiring Dr.
Romero to place 13 additional coils in Plaintiffs brain, in addition to a permanent endovascular
stenting device. (Pl.'s Ex. C, ECF No. 51-3.) In the course of the treatment, one of the coils
became displaced and was permanently lost in Plaintiffs brain. (Id.)
After initially being discharged for this procedure, Plaintiff was readmitted to the hospital
for complaints of abdominal pain and an elevated bilirubin level. (Pl. 's Ex. D, ECF No. 51-4.)
He was treated for a moderate-sized right retroperitoneal hemorrhage related to post-procedural
bleeding and was discharged on May 18, 2013. (Id.; Pl.'s Ex. D, ECF No. 51-5.)
On June 4, 2013, Plaintiff was seen again by Dr. Orinick at the VAMC's traumatic brain
injury clinic. (Def. 's Ex. G, ECF No. 55-7.) At that time, Plaintiff reported that his memory had
deteriorated since his recent surgery, and he was having more difficulty focusing his vision in the
mornings. (Id. at 2.) Many of his formerly severe symptoms were now moderate; however, he
reported severe changes in his sense of taste and smell, severe increase of appetite, severe
distractibility, very severe difficulty making decisions and a poor tolerance for frustration. (Id. at
In August 2013, Plaintiff underwent a disability examination by Glenn Bailey, Ph.D.
(Pl.'s Ex. G, ECF No. 51-7.) Dr. Bailey diagnosed adjustment disorder, cognitive disorder,
balance issues, difficulties with memory and concentration, vision and hearing problems, and
cluster headaches. He assigned a GAF of 55. (Id.) Plaintiff was ultimately awarded permanent
disability benefits, retroactive to the onset date of January 30, 2012, as the result of "intracranial
injury" and related "affective/mood disorders." (Pl.'s Ex. F, ECF No. 51-6.)
In the meantime, Plaintiff had made an attempt after his May 9, 2013 coil embolization
treatment to return to his volunteer duties as a "Structural Firefighter, Vehicle Rescue
Technician." On September 6, 2013, while firefighting, Plaintiff passed out and was treated at
the emergency room. (Pl.'s Ex. L, ECF No. 51-12; Pl.'s Ex. U, ECF No. 51-21.) Following this
episode, Plaintiffs firefighting duties were restricted based on the fire chief's conclusion that
Plaintiff would be unable to endure the physical stress that his former position had entailed.
(Pl.'s Ex. H, ECF No. 51-8.)
On October 31, 2013, Plaintiff was again seen by Dr. Romero. (Def.'s Ex C, ECF No.
55-3 at 5-7.)
At that time, Plaintiff was stable, with no new complaints.
He was not
experiencing headaches, unilateral numbness, weakness, coordination, or speech disturbance, but
he continued to evidence baseline memory problems dating from the previous rupture of his
basilar tip aneurysm. (Id. at 6.) Dr. Romero reviewed the results of Plaintiff's most recent
MRA, which showed a small compartment suggestive of a second recanalization of the
previously treated basilar tip aneurysm. (Id. at 5.) Dr. Romero spent more than 30 minutes
counseling Plaintiff about the implications of the study as well as the risks and benefits of
various treatment options. (Id. at 7.)
On Dr. Romero's recommendation, Plaintiff underwent a catheterization procedure on
December 16, 2013 to obtain a more current angiographic view of his aneurysm and compare it
to Plaintiff's postoperative images from May 2013. (Id.; Pl.'s Ex. I, ECF No. 51-9 at 5-6.) The
imaging confirmed evidence of recanalization relative to the basilar tip aneurysm, but there was
no evidence of growth or recanalization of the aneurysm at the anterior communicating artery
complex. (Pl.'s Ex. I, ECF No. 51-9 at 5-6.)
Consequently, Plaintiff underwent a third procedure on January 21, 2014 to address the
recanalization of his basilar artery tip aneurysm. (Pl.'s Ex. J, ECF No. 51-10.) This time, the
procedure was performed without incident, and Plaintiff was discharged two days later. (Id.)
Plaintiff continued to follow-up with Dr. Romero periodically throughout the rest of
On April 2, 2014, Dr. Romero ordered an occipital nerve block at the V AMC for
treatment of Plaintiffs headaches. (Pl.'s Ex.Lat 39.) In a September 4, 2014 visit, Dr. Romero
diagnosed attention and concentration deficits and noted Plaintiffs complaints of worsening
concentration. (Id.) Dr. Romero also documented Plaintiffs continued reports of headaches,
disorientation, and memory loss.
In October 2014, additional brain studies were
performed. An October 21, 2014 MRI showed no acute infarct or hemorrhage, but some cerebral
atrophy was present.
An October 29 MRA showed no evidence of aneurysm
recanalization. (Id. at 40.)
On January 26, 2015, Plaintiff underwent an interval surveillance catheter cerebral
angiographic study, which again showed no evidence of regrowth or recanalization of the basilar
tip aneurysm. (Pl.' s Ex. K, ECF No. 51-11.) Plaintiffs plan at that point was to continue visits
with his primary care physician at the VA Hospital every three to four months. In addition, Dr.
Romero agreed to see Plaintiff every 3 to 6 months and as needed, with yearly angiographic
assessments being performed to monitor Plaintiffs cerebral circulation. (Pl.' s Ex. K; Pl.' s Ex. L
at 58.) 2
Plaintiff represents that he received another favorable assessment in February 2016. (See Pl.'s Mot. to Increase the
Ad Damnum Damages Amount at ,67, ECF No. 51.)
Procedural Background and Additional Medical Evidence
1. Plaintiff's Administrative Claim
As noted, Plaintiff filed an administrative claim on May 1, 2013, asserting numerous
injuries as a result of his ruptured basilar tip aneurysm. (Pl.'s Ex. A, ECF No. 51-1.) In "Block
1O" of his claim form, Plaintiff alleged that:
Injuries include, but are not limited to, growth in size of basilar tip aneurysm,
ruptured basilar tip aneurysm, extensive subarachnoid hemorrhage as a result
of the ruptured basilar tip aneurysm, nausea, vomiting, GI upset, weakness,
fever, cerebral salt-wasting syndrome, hyponatremia requiring salt
supplementation, atrial fibrillation, atrial flutter, heart injury and problems,
massive thunderclap quality headaches, numbness in both legs, burning eyes,
dizziness, vertigo, short term memory loss, hearing loss, ringing and noise in
ears, vision loss, double vision, lower quadrant visual obscuration, blurriness
with kaleidoscope or prism patterns of disturbance, ocular migraines with
temporal swelling, loss of coordination, weakness in hands, knees and legs,
loss of bladder control, acute urinary retention, back pain, back spasms, neck
pain, anxiety, depression, trouble walking, necessity to use a cane as an
assistive device, inability to work due to memory loss and dizziness after the
rupture of his aneurysm, untreated aneurysm at the anterior communicating
artery complex level, which required separate treatment with separate surgery
and convalescence in the face of a previous coil embolization, residual
aneurysm lumen, recurrence and recanalization of basilar tip aneurysm,
increased risk for recanalization of the basilar tip aneurysm due to its rupture,
increased risk for recanalization of the anterior communicating artery, arm
numbness and discomfort, severe insomnia, severe emotional distress, and all
symptoms and sequelae associated with all of the above diagnoses, severe
pain and suffering, avoidable medical treatment and enormous medical
expenses, including several hospitalizations, procedures and future treatment
continuing into the indefinite future from permanent damages caused by the
negligence of the VA Medical Ctr - Erie employees/agents. The damages are
(Pl.' s Ex. A, ECF No. 51-1.) Elsewhere, Plaintiff alleged that:
On March 19, 2013, on an MRI/MRA of the brain, there was evidence of
recurrence and recanalization of the previously treated basilar tip aneurysm.
Claimant needs surgical retreatment of his recanalized ruptured basilar tip
aneurysm. He is at increased risk for future harm and damages ..... [T]he
claimant suffered injuries to his brain, a major brain bleed, injury to his heart
and kidneys, and several life threatening conditions and symptoms, several
surgeries and unnecessary hospital admissions and several unnecessary
procedures and pain and suffering that otherwise would have been avoided.
Claimant was totally disabled and has been unable to work since his aneurysm
ruptured. He was and is still at least partially disabled and will remain so for
the remainder of his life. He uses a cane and has lost short term memory and
his ability to concentrate.
(Id. at Block 8.)
Based on these alleged injuries, Plaintiff asserted a sum certain claim of $2 million. (Id.
at Block 12b.) His claim was administratively denied on November 22, 2013. (Pl.'s Ex. B, ECF
2. The Present Lawsuit
a. The Complaint
On May 12, 2014, Plaintiff commenced this civil action for damages under the FTCA. in
general, Plaintiff alleges that various health care providers at the V AMC were negligent in
failing to properly address his basilar tip aneurysm, which proximately led to his subarachnoid
hemorrhage on January 30, 2012 and resulting injuries. As originally pled, Plaintiff's Complaint
sought damages in the amount of $2 million. (Compl. at 15, ECF No. 1.)
In the course of pretrial proceedings, both parties retained expert witnesses who rendered
opinions bearing on issues of liability and damages. For present purposes, the following expert
opinions are relevant.
b. Charles Romero, M.D.
Dr. Romero was deposed on May 22, 2015 concerning his knowledge of Plaintiff's
medical history and present condition. (See Pl. 's Ex. M, Deposition of Charles E. Romero,
M.D., ECF No. 51-13.)
In relevant part, Dr. Romero testified that: (i) Plaintiff suffered a
permanent thalamic brain injury as a result of his ruptured aneurysm (Romero Dep. at 112:21114: 1); (ii) this rupture proximately caused the recanalizations and recurrences of the basilar tip
aneurysm that necessitated the subsequent coil embolization procedures (id. at 102:14-103:20);
and (iii) Plaintiff's memory loss, visual obscurations, dizziness, vertigo, anxiety, depression, and
headaches were proximately related to the rupture of the basilar tip aneurysm (id. at 114:23118:23).
Dr. Romero subsequently issued a supplemental letter report in which he expounded on
parts of his deposition testimony and rendered certain additional expert opinions. (Pl. 's Ex. U,
ECF No. 51-21.) Relevantly, Dr. Romero opined that Plaintiff has sustained a permanent brain
injury, memory loss, and cognitive disorder as a direct result of his subarachnoid hemorrhage.
(Id.) He predicted that Plaintiff will likely develop early onset dementia due to the rupture of his
basilar tip aneurysm and will need to be placed on Cholinesterase inhibitor at the appropriate
time, which might positively impact his neuropsychological recovery. (Id.)
estimated that,. because of his ruptured aneurysm, Plaintiff would likely experience a
recanalization requiring additional treatment about once every five years over the remainder of
"When this happens," Dr. Romero opined, "[Plaintiff] will be expected to
experience worsening of his brain injury symptoms such as worsening headaches, pain,
confusion, memory loss and cognitive issues." (Id.)
c. Richard Paul Bonfiglio, M.D.
On February 18, 2015, Plaintiff was evaluated by Richard Paul Bonfiglio, M.D., a
physical medicine and rehabilitation specialist, for the purposes of ascertaining his future care
needs. (Pl.'s Ex. L, ECF No. 51-12.) Dr. Bonfiglio opined that Plaintiffs ruptured basilar tip
aneurysm and resulting subarachnoid hemorrhage had caused traumatic and permanent thalamic
brain injury. (Pl.'s Ex.Lat p. 53.) Further,
[t]he brain injury has caused Mr. Highhouse to have altered memory and
sensation, decreased attention, concentration, and ability to perform mental math.
The brain injury also caused word finding difficulties, intermittent dizziness,
lightheadedness, vertigo, impaired balance, altered coordination, bilateral
intermittent needle-like hand pain and paresthesias, diffuse weakness, chronic
fatigue, urinary symptoms, reduced hearing, impaired sense of taste, an anxiety
disorder, cognitive disorder, depression, and headaches. The headaches often
have associated syncope, gastrointestinal upset, nausea, vomiting, and visual
disturbances. His sleep is also affected and he seems to have hypersomnia,
nightmares, and emotional distress.
Due to his ongoing symptoms, Mr.
Highhouse becomes fatigued with performing basic activities of daily living. He
has not been able to return to work in any capacity.
Based on the complexity of Plaintiffs injuries and his numerous ongoing medical issues,
Dr. Bonfiglio made a number of detailed recommendations concerning Plaintiffs future care, to
Mr. Highhouse should be followed two to four times per year and as needed by a
primary care physician for evaluation and management of the sequelae of his
brain injury. This physician should obtain needed diagnostic testing as the
He would benefit presently from
patient's medical condition warrants.
neuropsychological testing and an evaluation by a speech pathologist to delineate
the full extent and nature of his ongoing cognitive and linguistic deficits and to
help direct an ongoing rehabilitation effort. Laboratory testing including a
complete blood cell count (CBC) and complete metabolic profile should be done
twice per year and as needed. A sleep study should be done to determine the
nature and extent of his sleep disorder. This physician should also make referrals
to other health care providers as the patient's condition warrants.
Due to his urological symptoms and likely neurogenic bladder, Mr. Highhouse
should be followed once to twice per year by a urologist. He will need associated
diagnostic testing including twice yearly BUN, creatinine, creatinine clearance,
urinalysis, and urine culture. Renal and bladder ultrasound should be done
annually and cystoscopy every two to three years. Mr. Highhouse should be
followed annually by a neuro-ophthalmologist to monitor and manage his visual
He should be seen annually be a neurosymptoms and impairments.
otolaryngologist regarding his hearing loss, dizziness, lightheadedness, and
vertigo. A neurologist should monitor annually and as needed Mr. Highhouse's
neurological functioning and check for potential complications including
aneurysmal re-canalization, subarachnoid hemorrhage, and hydrocephalus.
Associated diagnostic testing should include an annual and as needed brain CT
scan, MRI, and/or MRA.
Mr. Highhouse should be followed every three months by a psychiatrist for
prescription of psychotropic medications to treat his mood and anxiety disorder.
He should also be seen weekly by a psychologist for six months to help him deal
with his impairments and chronic pain. A physician pain management specialist
should direct a more comprehensive approach to his multiple chronic pain
problems. Treatment should include oral medications, injections, physical
modalities, and relaxation training. He should be followed by this pain
management specialist every three months and as needed for prescription of his
Mr. Highhouse should also be followed twice per year by a physician specializing
in Physical Medicine and Rehabilitation to direct and prescribe an ongoing
rehabilitation effort. Over his lifetime, he will need at least four to six additional
courses each of physical, occupational, and [speech] therapies to deal with his
pain, cognitive, and linguistic issues. Each of these courses of therapy is expected
to average two to three sessions per week for two to three months. He will
continue to need adaptive equipment including ambulatory aides like a cane and
shoes with cleats. He should also use a daily planner and a shower chair. He will
continm: to need medications to deal with his chronic pain issues and
Due to his chronic fatigue, pain issues, cognitive and linguistic impairments, Mr.
Highhouse should presently have the assistance of a certified nursing assistant or
attendant two to four hours per day. He also need assistance with basic home
maintenance including lawn care and snow removal. As he ages due to the
impact of the aging process on his symptoms and impairments, Mr. Highhouse
will likely need additional assistance with daily activities. By age 70, it is
anticipated that he will need the help of an attendant or certified nursing assistant
four to eight hours per day.
(Pl.'s Ex. Lat 54-58.) Despite Plaintiff's functional limitations and symptomology associated
with his brain injury, Dr. Bonfiglio expected that Plaintiff would have a normal life expectancy,
provided he received the care prescribed. (Id. at 58.)
d. Michael Schwabenbauer, Ph.D., ABPP
On June 16, 2015, Dr. Romero referred Plaintiff for a neuropsychological evaluation, in
accordance with Dr. Bonfiglio's recommendation. (Pl.'s Ex. N, ECF No. 51-14.) The requested
examination was performed on October 5, 2015 by Michael Schwabenbauer, Ph.D., ABPP.
(Pl.'s Ex. P, ECF No. 51-16.)
Dr. Schwabenbauer found that Plaintiff had significant cognitive impairment, including
measures of delayed verbal recall. (Id. at 6.) In particular, Plaintiffs scores reflected significant
compromise \Vith respect to a number of encoding and retrieval measures and a notable slowing
in Plaintiffs processing speed. (Id.) Dr. Schwabenbauer felt that Plaintiff endorsed "critical
items that reflect significant emotional overlay, including depression and anxiety."
Plaintiff also reported periods of persistent cognitive impairment, particularly in terms of
memory functioning, since the completion of surgery. (Id.) The findings reflected a significant
compromise on measures of more complex attention, including sustained attention, persistent
inattentiveness and impaired vigilance.
Dr. Schwabenbauer felt these significant
attentional deficits were likely to exacerbate Plaintiffs underlying memory deficits and have a
considerable impact on Plaintiffs day-to-day cognitive functioning, especially with respect to
more complex situations. (Id. at 5 and 6.) Dr. Schwabenbauer diagnosed "Cognitive Disorder
NOS secondary to the prior aneurysm bleed and subarachnoid hemorrhage" and recommended
initiation of a cholinesterase inhibitor.
(Id. at 6.)
He expressed concern about early onset
dementia symptoms and recommended a follow-up neuropsychological examination to be
completed in 12 to 24 months.
(Id. at 6-7.)
Dr. Schwabenbauer opined that Plaintiffs
subarachnoid hemorrhage was a likely a significant contributing factor to the test findings and
Plaintiffs level of cognitive, behavioral and emotional functioning. (Id. at 7.)
e. Heidi L. Fawber, M.Ed., LPC, CRC
On March 25, 2016, Heidi L. Fawber, M.Ed., LPC, CRC, completed a life care plan for
Plaintiff, which detailed the various medical interventions and treatments, therapies, and other
assistance Plaintiff would need during his lifetime. (PL.'s Ex. Q, ECF No. 51-17.) Ms. Fawber
based her plan on the reports and recommendations of Dr. Bonfiglio, Dr. Romero, Dr.
Schwabenbauer, and the Government's medical examiner, an independent review of Plaintiff's
extensive medical records, and Ms. Fawber's own meeting with Plaintiff. The life care plan
included an estimate of the base and life-time costs associated with Plaintiffs
evaluations, any required counseling and therapies, diagnostic tests, medications, routine medical
care, medical equipment, home nursing or health aid assistance, and property maintenance
assistance. (Pl.'s Ex. Q at 12-18, ECF No. 51-17.) In total, Ms. Fawber opined that the lifetime
costs of Plaintiff's life care plan would range between $1,094,980 and $1,991,869, depending on
frequencies of physical therapies, diagnostic studies, and home care. (Id. at 10.)3 Ms. Fawber's
figures did not include the cost of future recanalization treatments because she felt it could not be
known whether or not Plaintiff would experience recanalization or require additional treatments
in the future.
(Id. at 9.)
Given Plaintiffs past medical history, however, Ms. Fawber
recommended that such costs be taken into account and, to that end, she noted that Plaintiffs
latest charges for retreatment approached $71,000. (Id. at 10.)
Based on Dr. Romero's expectation that Plaintiff would experience a recanalization every
five years for which he would require treatment -- and assuming a normal 21-year life
expectancy, Plaintiff contends that he will likely have to undergo four recanalization treatments
over the course of his natural life. Assuming a cost of approximately $71,000 for each surgery,
Plaintiff estimates that his future treatment costs - not accounting for inflation or present value
reduction - will total at least $284,000.
Matthew R. Marlin, Ph.D.
On April 19, 2016, Matthew R. Marlin, Ph.D. issued a report outlining the present value
of Plaintiffs life care plan, as outlined by Ms. Fawber. (Pl's Ex. R, ECF No. 51-18.) Dr. Marlin
adjusted Ms. Fawber's estimates for inflation and then reduced them to present-day value. After
doing so, Dr. Marlin projected that the costs of Plaintiffs life care plan, excluding any future
treatments for recanalizations, would range from $1,225,720 to $2,286,409. (Id.)
Ms. Fawber's life care plan was subsequently reviewed and approved by Dr. Bonfiglio on April 14, 2016. (Pl.'s
Ex. S, ECFNo. 51-19.)
Dr. Marlin projected Plaintiffs damages from lost income in a subsequent report issued
on April 24, 2016. (Pl.'s Ex. T, ECF No. 51-20.) Dr. Marlin estimated that Plaintiffs economic
losses, reduced to present-day value, would range from $118,887 to $137,135. (Id.)
g. The Pending Motion
On June 30, 2016, Plaintiff filed the pending motion to increase the amount sought in his
ad damnum clause to $3.95 million. (ECF No. 51.) Plaintiff contends that the amendment is
warranted because he has sustained additional damages since the filing of his administrative
claim that were not reasonably discoverable or foreseeable as of the May 1, 2013 administrative
Based on the expert reports discussed above, it appears that Plaintiffs' alleged
amended damages claim can be broken down as follows:
Life Care Plan Costs:
Amended Pleading Standard
Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend pleadings shall be
freely given "when justice so requires." A court should allow a party to amend its pleading,
provided there is no undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies, undue prejudice or futility of the amendment. See Foman v. Davis,
371U.S.178, 182 (1962); see also Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.2000); Long v.
Wilson, 393 F.3d 390, 400 (3d Cir.2004) ('"[A]bsent undue or substantial prejudice ... denial
[can] be grounded in bad faith or dilatory motive, truly undue or unexplained delay, repeated
failure to cure deficiency by amendments previously allowed or futility of amendment."')
(quoting Lundy v. Adamar of NJ, Inc., 34 F.3d 1173, 1196 (3d Cir.1994) (internal quotation
In this case, there is a question as to whether amendment of the ad damnum clause would
be futile. An amended complaint is futile if it fails to state a claim upon which relief could be
granted. Burtch v. Mi/berg Factors, Inc., 662 F.3d 212, 231 (3d Cir. 2011) (citation omitted). In
determining whether an amendment is futile, courts apply "the same standard of legal sufficiency
as applies under Rule 12(b)(6)." Id. (citation omitted). To that end, the Court must consider the
relevant provisions of the Federal Tort Claims Act.
The Federal Tort Claims Act
Under the FTCA, any party asserting a claim for money damages arising out of the
negligent or wrongful act of a government employee must first file a claim with the
administrative agency at issue. 28 U.S.C. § 2675(a). The agency then has six months within
which to consider the claim and respond. 28 C.F .R. § 14.2. The injured party may file suit after
the claim is denied or after the time for agency consideration has expired, if the agency has failed
to act. 28 U.S.C. § 2675(a). A party may amend his claim up until the time the agency issues a
final denial or upon the exercise of the claimant's option to sue after the expiration of the
agency's six months period for consideration. 28 C.F.R. § 14.2. If the party opts to file a
lawsuit, the party is limited to the amount of the administrative claim, 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
fact, relating to the amount of the claim." 28 U.S.C. §2675(b).
Plaintiff contends that "newly discovered evidence" and "intervening facts" relating to
his medical condition warrant an amendment to his prior monetary claim. 28 U.S.C. §2675(b).
The Government disputes the applicability of the statutory exception. The Court must therefore
determine whether Plaintiff has demonstrated the existence of "newly discovered evidence" or
"intervening facts" that would justify the requested amendment. 4
Complicating our inquiry is the fact that there is no uniform standard in this circuit for
implementing the exception set forth in §2675(b). Outside of the Third Circuit, federal courts
have articulated various different tests for determining whether an FTCA claimant has presented
"newly discovered evidence" or demonstrated the existence of "intervening facts" within the
meaning of §2675(b).
The U.S. District Court for the District of New Jersey recently discussed these various
tests in Bravo-Garcia v. United States, Civil No. 13-2185 (NLH/JS), 2015 WL 224625, at *4
(D.N.J. Jan. 15, 2015). In that case, an FTCA plaintiff initially filed a $250,000 administrative
claim for injuries sustained as the result of being negligently struck by a U.S. Mail truck. The
initial claim amount was based on the plaintiff's belief that his injuries were limited to
herniations in his cervical spine and a torn rotator cuff. After amending his claim once to assert
a monetary demand of $1 million, the plaintiff later sought to increase his judgment demand to
"not more than" $5 million. The plaintiff claimed that two worsening injuries - i.e., newly
discovered psychiatric/cognitive problems and left shoulder and upper extremity conditions -
Plaintiff has the: burden of demonstrating that that the exception applies. See Njos v. Kane, Civil No. 3:CV-121252, 2015 WL 999398, at *3 (M.D. Pa. Mar. 5, 2015) (noting that "courts have uniformly placed the burden of
proving ['newly discovered evidence' or 'intervening facts'] on the FTCA claimant")(citing authority); BravoGarcia v. United States, Civil No. 13-2185 (NLH/JS), 2015 WL 224625, at *4 (D.N.J. Jan. 15, 2015) ("The burden
is on the plaintiff to prove that he or she is entitled to seek damages in excess of the amount sought in the
administrative tort claim .... ") (citing Schwartz v. United States, 446 F.2d 1380, 1381 (3d Cir. 1971 )).
had required unforeseen ongoing treatment and rendered him permanently disabled. 2015 WL
224625, at *6.
In assessing the plaintiffs motion to amend his damages claim, the court in BravoGarcia first considered the various standards that other jurisdictions have developed in applying
§2675(b). The court broadly described these alternatives as the "worst-case prognosis" test, the
"reasonably discoverable/foreseeable" test, and the "change in expectations" test, and described
The worst-case prognosis test first appeared in Low v. United States, 795
F.2d 466 (5th Cir.1986). In Low, the plaintiff alleged that the defendant
committed medical malpractice during her son's birth at a Navy medical facility
which caused her son severe permanent injuries. Id. When the plaintiffs son was
two years-old, the plaintiff filed an administrative tort claim seeking $1,275,000
in damages. Id. at 468. The plaintiff later increased her claim to $12 million and
argued that at the time she filed the original administrative tort claim it was too
early to know "a final prediction" of the extent of her son's injuries. Id. at 470.
While the district court permitted a jury verdict in excess of the original
$1,275,000 claim, the Fifth Circuit reversed, finding that at the time the
administrative tort claim was filed the plaintiff knew the "worst-case prognosis"
for her son "was one of great severity." Id. at 471. In other words, according to
the Fifth Circuit, a plaintiff must predict not only what is within the reasonable
universe of injuries or damages, but must assume the worst-case could occur in
making a FTCA demand. See also Lebron v. United States, 279 F.3d 321, 330
(5th Cir.2002) (applying the worst-case prognosis test to a FTCA claim). On
similar facts to Low, the worst-case prognosis test was subsequently adopted by
the First Circuit in Reilly v. United States, 863 F .2d 149 (1st Cir.1988) ("[t]he
mere fact that these dread consequences, feared from the beginning, had become
more certain does not suffice to brand them 'newly discovered."').
In contrast, the Second, Fourth, Sixth and Eighth Circuits have adopted a
reasonably discoverable or reasonably foreseeable test to determine if "newly
discovered evidence" or "intervening facts" are present. See, e.g., O'Rourke v. E.
Air Lines, Inc., 730 F.2d 842 (2d Cir.1984); Spivey v. United States, 912 F.2d 80
(4th Cir.1990); Allgeier v. United States, 909 F.2d 869 (6th Cir.1990); Michels v.
United States, 31 F.3d 686 (8th Cir.1994). The leading case applying the
"reasonably discoverable" test is Michels v. United States. In Michels, the
plaintiff was injured when his motorcycle collided with a government vehicle. 31
F.3d 686, 687 (8th Cir.1994). The plaintiff originally filed an administrative claim
of $450,000, but following a bench trial, was awarded $710,000 in damages
because the district court found that the plaintiff had no signs of a laterdeveloping knee condition at the time the claim was filed and did not know that
he would be permanently unable to manage his family farm. Id. at 687. The
Eighth Circuit affirmed the district court, finding that 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." Id. at 688.
The third approach adopted by the Eleventh Circuit is the "change in
expectations" test. Fraysier v. United States, 766 F.2d 478 (1 lth Cir.1985). In
Fraysier, the plaintiff sued the United States following an extreme reaction to the
swine flu vaccine. Later, the plaintiff increased his claim when he was diagnosed
with Guillain-Barre Syndrome which caused permanent injury. Id. at 479. The
court stated that the "legal question becomes whether this change in expectation,
reasonably based, is newly discovered evidence within the meaning of the
statute." Id. at 480. In applying Section 2675(b), the Eleventh Circuit found that at
the time the original administrative claim was filed, plaintiff had "no reason to
believe that his condition would be permanent" and permitted damages above the
amount claimed. Id.
2015 WL 224625, at *5-6.
Ultimately, the Bravo-Garcia adopted the "reasonably foreseeable" approach. The court
considered the "worst-case prognosis" standard to be unsatisfactory in that it discouraged
claimants from submitting a reasonable settlement demand to the responsible federal agency.
The court was concerned that injured claimants would be "forced to inflate all damage
projections for fear of the inability to later amend the demand" -- a scenario that the court
believed was unconducive to both "efficient administrative processing" and settlement. 2015
WL 224625, at *6. The court also considered this standard too difficult to apply because "it
requires a probing analysis into whether a reasonable doctor or patient did, or should have,
projected the worst possible result for the plaintiff, even if that outcome is unforeseeable or even
outlandish." Id. As for the "change in expectations" test, the Bravo-Garcia court declined to
adopt this standard because it found the test "too subjective and difficult to apply." Id.
contrast, the Bravo-Garcia court found that the "reasonably foreseeable" approach best
accommodated the relevant competing interests:
i.e., while still "fact intensive," this test
"focuse[d] on whether it was foreseeable that the plaintiffs injuries would worsen beyond the
original claim." Id. The court found this approach to be "consistent with the language in Section
2675(b) which permits an amendment where the new evidence was not 'reasonably
discoverable."' Id. (quoting §2675(b)(emphasis in the original)).
Applying this standard, the Bravo-Garcia court granted the plaintiffs request to amend
his claim. The court noted that the plaintiffs post-accident medical history was extensive and
complicated, evidencing progress at times and set backs at other times. 2015 WL 224625, at *7.
Thus, it was "understandable" that "the eventual seriousness of plaintiffs injuries did not
become reasonably discoverable" until after the date of the operable administrative claim. Id.
Although there were "fleeting" references to cognitive problems in the medical records as of the
time that plaintiff had filed his amended FTCA claim, the court observed that plaintiffs treating
psychiatrist had only recently opined that plaintiffs neurocognitive impairment was the result of
a closed head injury directly attributable to the accident. Moreover, the psychiatrist had only
recently recommended that plaintiff undergo a course of psychiatric treatment. Id., at *8. With
regard to the plaintiffs shoulder and upper extremity issues, the record showed that the plaintiff
had been symptomatic at the time his amended claim notice was filed, having repeatedly
complained of neck and shoulder pain; however, it was only later that the plaintiff was diagnosed
with cervical radiculitis, radiculopathy, and brachial plexopathy. Id., at *9. Although there were
conflicting opinions at the time of the plaintiffs administrative claim as to whether the plaintiff
suffered from brachial plexopathy, the court determined that it "[would] not punish plaintiff
because two doctors believed plaintiff had brachia! plexopathy and one did not." Id., at * 10.
The court reasoned that it was "not the burden of the tort victim ... to predict with certainty his
or her final prognosis merely because he or she can point to persistent symptoms. Such a policy
would impose an undue burden on tort victims that is not supported in the case law." Id. Based
on these considerations, the court allowed the plaintiff to increase the amount of his damages
A somewhat different approach was taken in Chamberlain v. United States, Civil Action
No. 11-1808 (JAP), 2012 WL 136896 (D.N.J. Jan. 18, 2012). Like Bravo-Garcia, Chamberlain
involved a plaintiff who had been injured by a U.S. Postal Service truck. After originally filing
an administrative claim for $150,000, the plaintiff submitted an amended claim for $350,000,
and settlement negotiations ensued thereafter. In negotiating her claim, the plaintiff relied on her
insurer's expense log, which purported to list the plaintiffs past medical expenses, including
expenses relating to a prior surgery. Ultimately, settlement negotiations fell through, and the
plaintiff filed suit. Sometime thereafter, the plaintiff received an updated expense log which
included approximately $100,000 in new medical charges, including certain newly added backcharges relating to the prior surgery. Based on this change in information, the plaintiff filed a
motion to increase her damages claim from $350,000 to $460,332.66.
Utilizing the "worst case scenario" test articulated in Low v. United States, 795 F.2d 466
(5th Cir. 1986), the court in Chamberlain denied the plaintiffs motion to increase her damages
claim. The court started from the premise that the purposes of §2675's "sum certain" limitation
'"is to ensure that federal agencies charged with making an initial attempt to settle tort claims
against the United States are given full notice of the government's potential liability."' 2012 WL
136896, at *3 (quoting Low, 795 F.2d at 471). The court explained that,
"[r]equiring the plaintiff to guard against a worst-case scenario in preparing [her]
claim gives the Government full notice of its maximum potential liability in the
case. This encourages settlement of FTCA cases in accordance with the statute's
purposes." Accordingly, in making a claim under §2675, a claimant must set
forth a "worst-case scenario" even if it means estimating future expenses flowing
from a known injury.
Id. (quoting Lebron v. United States, 279 F.3d321, 330-31 (5th Cir. 2002) (first alteration in the
original)). The court went on to explain that '"[n]ewly discovered evidence' and 'intervening
facts' have been interpreted as relating to the knowledge of the extent of the injury, and more
particularly, whether the claimant knew or reasonably could have known the full potential of his
or her injury." id. (citing Dickerson v. United States, 280 F.3d 470, 476-76 (5th Cir. 2002)). This
requires the claimant to "present more than just new information that 'merely concerns the
precision with which the nature, extent, or duration of a claimant's condition can be known."'
Id. (citing Lebron, 279 F.3d at 330). Rather, the court explained, information is considered
newly discovered or intervening, if it sheds '"new light on the basic severity of the claimant's
condition - that is, if it materially differs from the worst-case prognosis of which the claimant
knew or could reasonably have known when the claim was filed."' Id. (quoting Lebron, 279 F.3d
at 330, and citing additional authority).
Applying this standard, the Chamberlain court disallowed the requested amendment.
Critically, the court observed that the plaintiff "did not claim that her condition deteriorated after
she amended her claim on September 1, 2010," nor did she claim "that there is any new evidence
relating to her condition, or that she was unable to evaluate the extent of her injuries." 2012 WL
136896, at *4. Although the plaintiff may have relied in good faith on her insurer's expense log
in underestimating the expenses associated with her surgery, the court concluded that this would
not justify allowing her to increase the amount of her damages claim because "actual expenses
are not the touchstone of the §2675(b) exception." Id., at *5. Instead, the court wrote, "it [was]
Plaintiffs burden to make her worst-case estimate of those expenses." Id. Because she failed to
do so, the comt denied her motion to amend. Id.
For purposes of resolving the pending motion, Plaintiff urges the Court to apply the
test utilized in Bravo-Garcia, while the Government urges the Court to
apply the "worse-case scenario" test used in Chamberlain. Having reviewed both decisions, this
Court is of the view that the "reasonably foreseeable" standard is more in keeping with the policy
goals underlying §2675(b). In this Court's estimation, strict adherence to a "worst case scenario"
standard is undesirable because it incentivizes claimants to overinflate their damages. This, in
tum, works to frustrate - not foster -- the ultimate policy goals of the FTCA, which include
encouraging settlements. Accordingly, in determining whether Plaintiffs motion to amend the
ad damnum clause should be granted, this Court will follow the "reasonably foreseeable/
reasonably discoverable" - standard outlined in Bravo-Garcia.
Having thus determined the governing legal standard, the Court concludes that Plaintiffs
motion to amend should be granted. Here, as in Bravo-Garcia, the Plaintiffs medical history is
extensive and complex.
As the Court's discussion of the background facts demonstrates,
Plaintiff has endured a multiplicity of serious, chronic injuries and related symptoms as a result
of his ruptured aneurysm, for which he has received continual treatment since January 2012. As
Ms. Fawber set forth in her March 25, 2016 report, Plaintiffs various physical, cognitive, and
emotional/behavioral symptoms have affected him on a daily basis, "limiting his ability to work
and socialize, reducing his level of independence, and significantly affecting his quality of life."
(Pl.' s Ex. Q at 2.) In general, the record supports the conclusion that Plaintiff did not know, and
reasonably foreseen, the full extent and severity of his injuries as of the time that
his administrative claim was pending.
First, the: Court is persuaded that Plaintiff could not have known the full extent to which
his ruptured aneurysm would necessitate future treatments. As of May 1, 2013, when Plaintiff
filed his administrative claim, he was preparing to undergo a second coil embolization for the
recanalization of his aneurysm. That retreatment occurred on May 9, 2013. Plaintiffs third
treatment did not occur until January 21, 2014. Moreover, it was not until October 2014 and
January 2015 that Plaintiffs angiographic studies were negative for regrowth and recanalization,
suggesting that his aneurysm had finally stabilized. Thereafter, Dr. Romero opined that Plaintiff
could expect to experience a recanalization, necessitating further treatment, approximately once
every five years for the rest of his life. (See Pl.'s Ex. U, ECF no. 51-21.) There is no indication
that this particular information was made known to Plaintiff, or was reasonably foreseeable to
him, prior to the time that Plaintiff filed his administrative claim. Moreover, the total number of
retreatments that Plaintiff will likely require over the course of his life depends, in part, on his
expected life span. As far as the Court can tell, there is no indication in the record of any health
care provider opinion on Plaintiffs life expectancy prior to February 2015, when Dr. Bonfiglio
opined that Plaintiffs brain injury would not reduce his life expectancy. Thus, to the extent
Plaintiffs damages claim is comprised of costs associated with retreatment of his basilar tip
aneurysm, Plaintiff has demonstrated the existence of newly discovered evidence and intervening
facts bearing on this issue that were not reasonably discoverable to Plaintiff when he filed his
administrative claim. 5
The Government makes much of the fact that, as of May I, 2013, Plaintiff knew there was evidence of
recanalization of the basilar tip aneurysm and that a second coil embolization procedure would be scheduled.
Indeed, Plaintiff's administrative claim form specifically alleged that he had shown "evidence of recurrence and
recanalization" and that he was at an "increased risk for recanalization of the basilar tip aneurysm due to its
rupture." (Pl. 's Ex. A, ECF No. 51-1 at Blocks 8 and l 0.) Furthermore, Plaintiff may have known about the general
risk of recanalization that was associated with aneurysms of his type and size. Dr. Romero's April 2, 2013 office
notes specifically reference a published report documenting that, in larger aneurysms, there was a 44% of recurrence
if the aneurysms were incompletely coiled, and a 30% recurrence rate even in those that were completely coiled.
(Def.'s Ex.Cat p.7, ECF No. 55-3.) These office notes further reflect that Dr. Romero spent time with Plaintiff
Second, the medical evidence suggests that some of Plaintiffs previously known
symptoms - such as memory loss and vision problems -- became more severe in the time period
after Plaintiffs administrative claim was filed. Although Plaintiff reported memory deficits and
vision problems prior to filing his administrative claim, Dr. Orinick's treatment notes from June
2013 reflect Plaintiffs complaints that his memory problems had worsened since the second coil
embolization treatment, and he was finding it more difficult to focus his vision in the mornings.
(Def. 's Ex. C, ECF No. 55-7 at 2.) Plaintiffs headaches also seemed to worsen over time; in
April 2013, Plaintiff reported experiencing weekly headaches that responded to over-the-counter
medication (Defs Ex. C, ECF No. 55-3), but by April 2014, he required an occipital nerve block
to address his headaches (Pl.'s Ex. L, ECF No. 51-12 at 39.) In March 2016, Plaintiff informed
Ms. Fawber that his headaches had been occurring "almost daily over the past 2 months (which
is more frequent than it had been in the past year). He believes that his stress level has been
greater and that may be affecting the headache increase." (Pl.' s Ex. Q at 8.) Similarly, the
record suggests that Plaintiffs problems with concentration worsened over time.
alleged deficits in concentration as of April 30, 2013 when he filed his disability application, and
in January 2014, Plaintiffs primary care physician documented chronic mild memory and
concentration loss; however, in September 2014, Plaintiff reportedly complained to Dr. Romero
that his concentration was getting worse. (Pl.' s Ex. L at 39.) In March 2016, Ms. Fawber
observed that Plaintiffs cognitive problems had "greatly affected his daily life, so much that he
discussing the implications of his recanalized aneurysm and Plaintiffs options. (Id.) According to the Government,
"[i]t defies logic that Plaintiff can now claim that an injury he specifically noted in his administrative claim as
having occurred and likely to recur in the future was unknown to him then and is now 'newly discovered."' (Gov't
Br. Opp. at 8, ECF No. 55.) But even if Plaintiff knew the general statistics associated with recanalization of larger,
basilar tip aneurysms, there is nothing in the record to suggest that Plaintiff could have predicted, with any degree of
reliability, the number of future treatments he would likely require over the course of his lifetime. Dr. Romero did
not specifically opine on this matter until he issued his supplemental report on April 25, 2016 (see Pl.'s Ex. U, ECF
No. 51-21) -- we:ll after the point where Plaintiffs condition had stabilized. There is nothing in the record that
suggests Dr. Romero ever related this information to Plaintiff prior to May 1, 2013, nor is it clear that he was in a
position to do so.
now has his cousin assist him." (Pl. 's Ex. Q at 8.) And, as previously discussed, Dr. Romero
opined in April 2016 that Plaintiff would likely experience a worsening of his brain injury
symptoms with every future recanalization treatment, including worsening headaches, confusion,
memory loss, and cognitive limitations. (See Pl.'s Ex. U, ECF no. 51-21.) Collectively, these
developments constitute intervening facts that support an amendment of Plaintiffs damages
claim. See Michels v. United States, 31 F. 3d 686, 688 (8th Cir. 1994) (expressing agreement
with "the many decisions acknowledging 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)
Third, the medical evidence indicates that some of Plaintiffs injuries, and certain
elements of his damages, were not reasonably discoverable as of the date that Plaintiff filed his
FTCA claim. Prior to May 1, 2013, Plaintiff had not been diagnosed with a permanent thalamic
brain injury, probable neurogenic bladder, basilar artery segmental stenosis, or cerebral atrophy all of which were diagnosed by Dr. Bonfiglio in February 2015. While there may have been
references concerning some of these problems in Plaintiffs medical records, "they only became
reasonably foreseeable after the physicians' diagnoses." See Bravo-Garcia, 2015 WL 224625, at
In addition, Plaintiff could not have foreseen as of May 1, 2013 that there would be
complications associated with his May 9, 2013 coil embolization procedure, including the loss of
coil in his brain and his subsequent re-hospitalization to address a retroperitoneal hemorrhage.
Nor could Plaintiff have known that he as at risk for early onset dementia, as Dr. Schwabenbauer
and Dr. Romero did render opinions on this matter until 2015.
To a large degree, Plaintiffs amended damages figure is based upon the anticipated costs
of his future life care plan - information that was not fully known nor fully knowable to Plaintiff
when he filed his administrative claim. In outlining Plaintiffs needs, Dr. Bonfiglio considered
Plaintiffs present limitations as informed by his entire longitudinal medical history.
Fawber, in tum, relied on Dr. Bonfiglio's recommendations, among others, in calculating the
costs of Plaintiff's future care. The Government suggests that Plaintiff should have sought these
reports at an earlier point in time, prior to the denial of his administrative claim. Given the
extensive and active nature of Plaintiffs treatment history, however, the Court cannot fault him
for failing to procure these reports sooner. As discussed, it was not until late 2014 or early 2015
that his basilar tip aneurysm finally stabilized.
Until that point, Plaintiff was engaged in
ongoing, active treatment by a panoply of health care providers, and it made little sense for
Plaintiff to seek a definitive life care plan.
As far as this Court can tell, no provider had
determined in 2013 whether, and to what extent, Plaintiffs injuries would impact his life
expectancy. And even if Plaintiff had sought a comprehensive life care plan in a more timely
fashion, the Court cannot assume that it would have mirrored the plan that Dr. Bonfiglio outlined
in February 2015.
In sum, then, given the severity and complexity of Plaintiffs medical
problems and the considerable degree of care he received between January 2012 and October
2015, it was "understandable" in this case, as it was in Bravo-Garcia, that "the eventual
seriousness of plaintiffs injuries did not become reasonably discoverable until after" the filing of
his administrative claim. 2015 WL 224625, at *7.
For all of the reasons stated above, the Court concludes that Plaintiff has met his burden
of demonstrating the existence of intervening facts and newly discovered evidence concerning
his injuries that were not reasonably discoverable at the time he presented his administrative
claim. Moreover, if the newly developed evidence outlined above is accepted by the factfinder,
it could reasonably support a finding that Plaintiffs injuries and resulting damages are
substantially greater than reasonably could have been originally anticipated. Because Plaintiff
has not provided any breakdown of his original damages claim, the Court is unable to deduce the
precise amounts by which each constituent component of his damages has allegedly increased.
Nevertheless, the Court cannot say that the alleged increase in Plaintiffs overall damages figure
from $2 million to $3.95 million is either unsubstantiated or is legally and factually unreasonable
such that it must be disallowed. Accordingly, Plaintiffs motion to amend his ad damnum clause
will be granted.
It, of course, goes without saying that Plaintiff will still have to prove the value of his
damages in any amount, original or as amended, at trial. As other federal courts have observed,
even if recovery in excess of the original claim amount could be justified, the plaintiff
nevertheless "'may only recover to the extent that the increased amount is attributable to the
newly discovered evidence or intervening facts."' Resnansky v. United States, Case No. 13-cv5133-DMR, 2015 WL 1968606, at *10 (N.D. Cal. May 1, 2015) (quoting Craig v. United States,
No. 00 C 958, 2002 WL 31115604, at *5 (N.D. Ill. Sept. 23, 2002) and citing Michels, 31 F.3d at
687 (permitting damages award in excess of claim amount only to the extent that the excess
amount was "directly attributable to damages arising from newly discovered evidence or
intervening facts")). While Plaintiff has demonstrated sufficient grounds for seeking damages
beyond the amount set forth in his administrative claim, it remains his ultimate burden to
"establish at trial that [his] injuries actually support an award in excess of the value[ ] stated in
[his] FTCA claim." Resnansky, 2015 WL 1968606, at *10.
Based on the foregoing reasons, the Plaintiffs Motion to Increase the Ad Damnum
Damages Amount (ECF No. 51) will be granted.
An appropriate Order will issue.
Mark R. Hornak
United States District Judge
Dated: March 30, 2017
All counsel of record
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