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Charles Malmberg v. United States of America

October 12, 2012


The opinion of the court was delivered by: Scullin, Senior Judge



In his administrative claim Form 95, dated January 17, 2006, Plaintiff alleged that, as a result of negligent medical care and treatment, he suffered "paralysis involving all extremities"; and, as a result, he requested damages of $6,000,000. See Dkt. No. 116 at 2 (citing Exh. A). Subsequently, in his complaint dated August 11, 2006, Plaintiff alleged serious and permanent injuries and requested $6,000,000 in damages. See id. (citing Exh. B).

The Court held a bench trial from April 12, 2010, through April 14, 2010, and again on April 26, 2010. On May 3, 2011, the Court issued a Memorandum-Decision and Order in which it found that a deviation from the accepted standards of medical care during his surgery on November 4, 2004 had caused Plaintiff's post-operative incomplete quadriplegia. See Dkt. No. 85.

Currently before the Court is Plaintiff's motion for leave to amend the ad damnum clause of his complaint from $6,000,000 to $25,000,000. See Dkt. Nos. 110, 113.*fn1 Defendant opposes this motion. See Dkt. No. 116.


Since the Federal Tort Claims Act ("FTCA") is a statute that waives sovereign immunity, the parties must strictly comply with its requirements. See O'Rourke v. E. 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 (1991) (citation omitted). Therefore, when a plaintiff seeks to amend his ad damnum clause to increase the amount he sought in his administrative complaint, a court may not substitute the liberal pleading requirements of Rule 15 of the Federal Rules of Civil Procedure for the narrower requirements of § 2675(b). See id.

For purposes of resolving this motion, the relevant provision of the FTCA is 28 U.S.C. § 2675(b), which provides that (b) Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based on newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.

28 U.S.C. § 2675(b).

It is well-established that "'[t]he burden of establishing . . . "newly discovered evidence" or "intervening facts" . . . rests on the claimant plaintiff.'" Lowry v. United States, 958 F. Supp. 704, 710 (D. Mass. 1997) (quotation and other citations omitted). In canvassing the case law to determine the meaning of "newly discovered evidence" and "intervening facts," the Lowry court noted that the general theme was foreseeability. See id. at 711. 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. Furthermore, courts will only allow an increase in the ad damnum clause if the plaintiff was reasonably diligent in attempting to discover those facts that were discoverable before filing his administrative claim. See id.

In O'Rourke, the Second Circuit addressed the issue of when a court should allow amendment of an ad damnum clause in a suit against the United States brought under the FTCA. In reviewing the decisions of other courts, the court noted that those courts had granted such motions "only when an unexpected change occurred either in the law or in a medical diagnosis." O'Rourke, 730 F.2d at 856. The court further noted that, "[i]n all of these cases, there was some indication that the amount of the original claim was calculated on the basis of known facts at the time of the filing and that, subsequently, some new and previously unforeseen information came to light." Id. In finding that in the case before it the district court should not have granted the motion to amend the ad damnum clause, the Second Circuit stated that [t]he FTCA, as a statute waiving sovereign immunity, must be complied with strictly. . . . If plaintiff were allowed to amend his ad damnum clause based upon the minimal showing he made in the district court, we would, in effect, be substituting the liberal pleading requirements of Federal Rule of Civil Procedure 15 for the narrower requirements of § 2675(b). This we may not do.

Id. (internal citation omitted).*fn2

In the present case, although Plaintiff bases his motion on newly discovered evidence, he has pointed to nothing in the record that supports this contention. Rather, he merely cites general propositions that are bereft of any factual underpinnings. For example, in his affidavit, Plaintiff's counsel states that "[i]t is now apparent with the passage of time that the plaintiff's damages are significantly greater than originally appreciated." See Affidavit of Robert B. Nichols sworn to June 29, 2012, at ¶ 4 (emphasis). Furthermore, Plaintiff's counsel states that, "[w]hen the lawsuit was first commenced, there was some hope that the plaintiff would some day regain his ability to walk . . . [and] it was assumed that the plaintiff's overall medical problems would improve or, at worse stabilize and his need for future care would stay the same or improve." See id. (emphasis added). Finally, Plaintiff's counsel asserts that, "with the passage of time it is now readily apparent the assumptions were not accurate since [Plaintiff's] condition has deteriorated and his future medical-related needs have significantly increased. As a result, the plaintiff's pain and suffering and loss of enjoyment of life have also been significantly impacted." See id.

Although it is clear that Plaintiff's condition has deteriorated, and arguably has deteriorated significantly, since the time he filed his administrative claim in January 2006, Plaintiff has failed to point to any evidence in the record to demonstrate that this deterioration is anything more than the worse case scenario for the injuries he suffered as a result of Defendant's negligence. Moreover, he has failed to demonstrate that this worse case scenario was not reasonably foreseeable at the time that he filed his administrative claim. In fact, in his administrative claim, he stated that "the care [he received] prior, during and after surgery was rendered negligently . . . [and ...

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