Landrum v. United States of America
ORDER granting 25 Motion to Amend Complaint. Signed by Chief Judge Jeffrey L. Viken on 2/9/18. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
UNITED STATES OF AMERICA,
Plaintiff Burns Landrum initiated this action against defendant United
States seeking recovery under the Federal Tort Claims Act (“FTCA”). (Docket
1). Plaintiff pursued administrative remedies under the FTCA. Id. at p. 2. Now
plaintiff requests leave to amend his complaint. (Docket 25). The government
opposes his motion. (Dockets 30 & 45).
On May 7, 2013, plaintiff was a passenger in a Disabled American
Veterans van that collided with another vehicle. (Docket 1 at p. 1). The
collision caused the van to roll. Id. Plaintiff suffered injuries. Id. at pp. 1-2.
The van was traveling from Fort Meade to Rapid City, South Dakota. Id. at
p. 1. Shawn H. Spiers, an agent of the government, drove the van. Id.
In his administrative tort claim, plaintiff sought $685,000 in damages.
Id. at p. 2. Plaintiff’s current complaint seeks that same amount. Id.
Plaintiff’s motion to amend his complaint aims to increase the amount of
claimed damages to $1,550,000. (Dockets 25 & 25-1 at p. 2).
To argue the increased damages figure is justified, plaintiff focuses on
three sources of information. (Docket 26 at pp. 1-2). The first is diagnoses of
plaintiff that psychologist Dewey J. Ertz, Ed.D., made after evaluating him in
March and June of 2016. Id.; (Docket 27-7). Dr. Ertz’s diagnoses were mild
neurocognitive disorder due to traumatic brain injury1 and posttraumatic
stress disorder (“PTSD”)2 which plaintiff’s previous medical evaluations did not
include. (Docket 26 at pp. 1-2). Plaintiff’s second focus is the fully favorable
decision the Social Security Administration (“SSA”) made in September 2015
regarding plaintiff’s disabled status and right to benefits. Id.; (Docket 27-5).
And third, plaintiff indicates that in June 2017 his counsel received a
neuropsychological evaluation Dr. James C. Gardiner conducted in April 2006
finding plaintiff had good cognitive functioning prior to the incident at issue in
this case. (Dockets 26 at pp. 1-2 & 27-1).
brain injury occurs when an external mechanical force
causes brain dysfunction. . . . Mild traumatic brain injury may cause
temporary dysfunction of brain cells. More serious traumatic brain injury can
result in bruising, torn tissues, bleeding and other physical damage to the
brain that can result in long-term complications or death.” Traumatic brain
injury, Mayo Clinic, available at https://www.mayoclinic.org/diseasesconditions/traumatic-brain-injury/symptoms-causes/syc-20378557.
“is a mental health condition that’s triggered by a terrifying event
— either experiencing it or witnessing it. Symptoms may include flashbacks,
nightmares and severe anxiety, as well as uncontrollable thoughts about the
event.” Post-traumatic stress disorder (PTSD), Mayo Clinic, available at
To amend his complaint, plaintiff must meet two standards. He must fit
his case within an exception in 28 U.S.C. § 2675(b). He also needs to satisfy
the Federal Rules of Civil Procedure. The statutory standard is more
demanding, so the court analyzes it first.
I. 28 U.S.C. § 2675(b)
Under 28 U.S.C. § 2675(b), the amount of damages pursued in an FTCA
action must match the amount presented in the administrative process, unless
an exception applies. See Michels v. United States, 31 F.3d 686, 687-88 (8th
Cir. 1994). The amount sought in an FTCA lawsuit can be larger when it “is
based upon newly discovered evidence not reasonably discoverable at the time
of presenting the claim to the federal agency, or upon allegation and proof of
intervening facts, relating to the amount of the claim.” 28 U.S.C. § 2675(b).3
“By its terms, the FTCA bars actions for damages in excess of the
administrative claim in all but two circumstances: (1) where the plaintiff proves
‘newly discovered evidence not reasonably discoverable at the time of
presenting the claim to the federal agency,’ or (2) where the plaintiff proves
‘intervening facts.’ ” Milano v. United States, 92 F. Supp. 2d 769, 774 (N.D. Ill.
2000) (quoting Lowry v. United States, 958 F. Supp. 704, 711 (D. Mass. 1997)).
subsection states in full: “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 upon newly
discovered evidence not reasonably discoverable at the time of presenting the
claim to the federal agency, or upon allegation and proof of intervening facts,
relating to the amount of the claim.”
“The FTCA, as a statute waiving sovereign immunity, must be complied
with strictly.” Malmberg v. United States, 816 F.3d 185, 196 (2d Cir. 2016).
“[C]ourts have uniformly placed the burden of proving either intervening facts
or newly discovered evidence on the FTCA claimant.” Michels v. United States,
815 F. Supp. 1244, 1260 (S.D. Iowa 1993), aff’d, 31 F.3d 686 (8th Cir. 1994);
see Kennedy v. United States, 7:13CV5011, 2016 WL 3014657, at *2 (D. Neb.
May 24, 2016). In discussing the three sources of information justifying his
amended complaint, plaintiff generally refers to them as “new evidence and
intervening facts[.]” (Docket 26 at pp. 1, 10).
“[W]hether the plaintiff is seeking an increase under the rubric of ‘newly
discovered evidence’ or ‘intervening facts,’ one of the key issues is
foreseeability. If the condition was reasonably foreseeable at the time the claim
was filed, an increase will not be allowed. On the other hand, if it was not, . . .
an increase may be allowed.” Lowry, 958 F. Supp. at 711. “[W]hile courts do
not charge a claimant with knowing [what] the physicians could not tell him,
the information must not have been discoverable through the exercise of
reasonable diligence.” Low v. United States, 795 F.2d 466, 470 (5th Cir. 1986)
(internal citation omitted). “[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,” no § 2675(b) exception applies. Michels,
31 F.3d at 688 (quoting Reilly v. United States, 863 F2d 149, 172 (1st Cir.
1988)). However, “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. (quoting § 2675(b)). In Michels, The United States
Court of Appeals for the Eighth Circuit held “that § 2675(b) contains an
objective standard—‘newly discovered evidence not reasonably discoverable.’ ”
Id. at 689 (emphasis in original) (quoting § 2675(b)).
a. Dr. Ertz
Plaintiff asserts Dr. Ertz’s diagnoses meet both exceptions under
§ 2675(b). (Docket 26). He claims “it was not reasonably foreseeable when
notice was filed that [he] would be suffering from the injuries he now is.” Id. at
pp. 9-10. In opposition, the government argues plaintiff’s “medical records
make repeated reference to the possibility that Plaintiff may suffer from
PTSD[.]” (Docket 30 at p. 7) (citing Dockets 31-4, 31-5 & 31-6). The
government also contends plaintiff’s argument fails because his “administrative
claim and subsequent complaint both reference the existence of a [‘]traumatic
brain injury’ resulting in ‘permanent injury.’ ” Id. (citing Dockets 31-1 at p. 22
& 1 at p. 19).
With respect to plaintiff’s PTSD diagnosis, he meets his burden. As the
government points out, Terry R. Hicks, M.D., evaluated plaintiff for PTSD in
October 2010, prior to the van collision. (Docket 31-6). Dr. Hicks concluded
plaintiff did not have PTSD. Id. at pp. 5-6. Then in June 2016, after plaintiff
filed this lawsuit, Dr. Ertz diagnosed him with PTSD, opining “his post-trauma
symptoms were delayed for at least two months and likely longer based on the
information contained in the reports reviewed from his past neuropsychological
evaluations[.]” (Docket 37-7 at p. 10). Dr. Hicks directly found no PTSD, the
van collision occurred, and Dr. Ertz subsequently diagnosed PTSD as a
condition with symptoms delayed no less than two months. On that record,
the court finds plaintiff’s PTSD would “not have been discoverable through the
exercise of reasonable diligence.” Low, 795 F.2d at 470; see also Reilly, 863
F.2d at 173 (charging plaintiffs with “matters known or easily deducible” when
the claim is filed). Dr. Ertz’s opinions regarding comprehensive treatment
options for plaintiff’s PTSD further support plaintiff’s position on this issue
because they provide context to his new alleged damages. (Dockets 37-7 at
pp. 10-11 & 39-1).
As to Dr. Ertz’s diagnosis related to plaintiff’s traumatic brain injury,
plaintiff fails to carry his burden. It is inconsistent for plaintiff to state during
the administrative process and in his complaint that he “sustained a traumatic
brain injury, which is a permanent injury[,]” and then argue down the road
that Dr. Ertz’s diagnosis of mild neurocognitive disorder due to traumatic brain
injury was not foreseeable. (Dockets 31-1 at p. 22 & 1 at p. 19). Based on
plaintiff’s representations, he believed at those earlier times the medical
evidence supported finding he suffered a traumatic brain injury. “[T]he
condition was reasonably foreseeable at the time the claim was filed,” because
plaintiff alleged its existence, so “an increase [on that basis] will not be
allowed.” Lowry, 958 F. Supp. at 711.
Plaintiff is correct that change in the severity of a condition is relevant.
See Michels, 31 F.3d at 688 (“[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.”) (quoting § 2675(b)); see also Kenney v.
U.S. Postal Service, 298 F. Supp. 2d 139, 145 (D. Me. 2003) (“An injury that
worsens after the administrative notice is filed in a manner that was not
reasonably foreseeable when the notice was filed does come within the
statutory exception.”). But plaintiff does not demonstrate how—considering he
claimed traumatic brain injury earlier—Dr. Ertz’s subsequent diagnosis of the
condition “was not reasonably foreseeable[.]” See Kenney, 298 F. Supp. 2d at
145. Although “a known injury can worsen in ways[,]” plaintiff fails to
“convincingly prove[ ]” how any change in severity was “not reasonably
discoverable by [him] or his . . . treating physician[.]” Michels, 31 F.3d at 688.
The court finds the evidence related to plaintiff’s PTSD diagnosis meets
§ 2675(b) and the evidence of his traumatic brain injury diagnosis does not
meet the statute.
b. SSA determination
Plaintiff argues the SSA’s determination he is disabled and entitled to
benefits fulfils the exceptions in § 2675(b). (Docket 26). The record includes
minimal information regarding the SSA’s determination. Plaintiff filed the
notice of the SSA’s determination. (Docket 27-5). He refers to the notice in his
briefs, and he provides some explanation on how the determination factors into
his claim for loss of income and future loss of income. (Dockets 26 & 38 at
pp. 4-5). Almost completely absent from the record is any fact describing or
giving context to plaintiff’s SSA claim. Within plaintiff’s discussion of his loss
of income in his reply brief, he states his date of injury in the SSA case was
May 7, 2013. (Docket 38 at p. 5). Because that is the same date as the van
collision in this case, it appears the van accident was also at the center of
plaintiff’s SSA case. Otherwise, the court has no information on what medical
history plaintiff presented to the Administrative Law Judge (“ALJ”) or the basis
for the ALJ’s decision. The current state of the record prevents the court from
analyzing the “key issue[ of] foreseeability.” See Lowry, 958 F. Supp. at 711.
Without the necessary information, the court cannot conclude the SSA’s
determination meets § 2675(b). Plaintiff fails to carry his burden of providing
c. Dr. Gardiner
Plaintiff contends Dr. Gardiner’s 2006 neuropsychological evaluation fits
under the exceptions in § 2675(b). (Docket 26). Plaintiff indicates Dr. Gardiner
concluded he “was superior in full scale intelligence; verbal intelligence; visual
reasoning, as measured by the ability to understand visual patterns; abstract
reasoning, as shown by the ability to classify objects; and vocabulary, as
demonstrated by the ability to define words orally.” (Docket 38 at pp. 7-8)
(citing Docket 37-1 at p. 3). According to plaintiff, Dr. Gardiner’s evaluation is
“a prior benchmark [that] is crucial in determining the severity of the
[traumatic brain] injury.” Id. at p. 7. The government argues this evaluation
was “discoverable through the exercise of reasonable diligence[.]” (Docket 30 at
Plaintiff fails to carry his burden on this issue. It is plaintiff’s
responsibility to demonstrate that Dr. Gardiner’s evaluation is “newly
discovered evidence not reasonably discoverable at the time of presenting the
claim to the federal agency[.]” 28 U.S.C. § 2675(b). Plaintiff and his counsel
arranged a significant volume of medical documents prior to pursuing his
administrative remedies. See generally Docket 1. Under the statute’s objective
standard, see Michels, 31 F.3d at 689, the Gardiner evaluation was
“discoverable through the exercise of reasonable diligence.” Low, 795 F.2d at
II. Federal Rules of Civil Procedure 15 and 16
Under Rule 15(a), a plaintiff may amend a complaint as a matter of right
if the amendment occurs within a specified time period after service of the
complaint. Fed. R. Civ. P. 15(a)(1)(A)-(B). Beyond that time period the plaintiff
must obtain the defendant’s consent or the court’s leave. Fed. R. Civ. P.
15(a)(2). Courts freely permit amended complaints as justice requires. See
Friedman v. Farmer, 788 F.3d 862, 869 (8th Cir. 2015) (“A district court
‘should freely give leave [to amend] when justice so requires.’ ”) (citing Fed. R.
Civ. P. 15(a)). But courts also ask whether denying leave to amend is proper
because of the plaintiff’s “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.” Hammer v. City of
Osage Beach, 318 F.3d 832, 844 (8th Cir. 2003) (internal quotation marks
“Rule 15(a) does not apply when, as here, the district court has
established a deadline for amended pleadings” under Rule 16(b) and the
motion to amend comes after that date. See Kozlov v. Associated Wholesale
Grocers, Inc., 818 F.3d 380, 395 (8th Cir. 2016) (internal quotation marks
omitted). Based on the parties’ discovery report, the court’s scheduling order
set September 11, 2015, as the deadline for motions to amend pleadings.
(Docket 9). Before this motion to amend was filed, the court granted the
parties several extensions of deadlines, but those did not include extending the
deadline for amending the pleadings. (Dockets 14, 16, 19 & 23). Plaintiff filed
his motion to amend on June 27, 2017, after the deadline expired. (Docket
25). “Thus, the liberal policy favoring amendments no longer applie[s,]” and
plaintiff “need[s] to make a showing of good cause.” Kozlov, 818 F.3d at 395
(internal quotation marks omitted) (citing Fed. R. Civ. P. 16(b)(4) (“A schedule
may be modified only for good cause and with the judge’s consent.”)).
“When considering good cause for an amended complaint, the diligence
of the party seeking the amendment is an important consideration.” Id.
Courts “focus in the first instance (and usually solely) on the diligence of the
party who sought modification of the order. Where there has been no change
in the law, no newly discovered facts, or any other changed circumstance . . .
after the scheduling deadline for amending pleadings, then [courts] may
conclude that the moving party has failed to show good cause.” Hartis v.
Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012) (internal citation and
quotation marks omitted).
The court finds Rule 16(b) is met. Focusing on Dr. Ertz’s opinions about
plaintiff’s PTSD, which satisfies § 2675(b), plaintiff was evaluated by Dr. Ertz in
March and June of 2016. (Docket 27-7). After Dr. Ertz’s evaluation, the
parties continued engaging in settlement negotiations, including a settlement
conference with a magistrate judge. (Dockets 30 at pp. 2-3 & 21). Soon after
the settlement conference did not resolve the case, plaintiff moved to amend his
complaint. (Dockets 21 & 25). Based on the court’s findings on Dr. Ertz’s
PTSD diagnosis, this is a case where plaintiff shows “newly discovered facts[ ]
or a[ ] . . . changed circumstance” which demonstrates diligence and good
cause. See Hartis, 694 F.3d at 948. This is not a case were the motion to
amend “would prejudice the nonmoving party by ‘requiring a re-opening of
discovery with additional costs, a significant postponement of the trial, and a
likely major alteration in trial tactics and strategy[.]’ ” Kozlov, 818 F.3d at 395
(quoting Steir v. Girl Scouts of the U.S.A., 383 F.3d 7, 12 (1st Cir. 2004)).
Based on the above analysis, it is
ORDERED that plaintiff’s motion to amend his complaint (Docket 25) is
IT IS FURTHER ORDERED that the amended complaint shall be filed by
February 16, 2018.
Dated February 9, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
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