JENNIFER L. THURSTON, Magistrate Judge.
Raymond and Rita Ramone assert the Government is liable for personal injuries they suffered during a car accident with a mail carrier employed by the United States Postal Service. They filed administrative tort claims with the USPS related to their injuries. The Government now seeks to limit the damages to the amount identified in the administrative claims. (Doc. 26) For the reasons set forth below, the Government's motion is
Plaintiffs allege that on April 24, 2016, they were traveling on State Route 46, "an east-west highway with two lanes in the east direction and one lane in the west direction in the unincorporated area of ... Paso Robles, County of San Luis Obispo, State of California." (Doc. 1 at 3-4, ¶¶ 10, 11) Plaintiffs assert their vehicle, a 2013 Buick Encore, was struck on the right side by a Grumman LLV Truck, operated by Andres Recinos. (Id., ¶¶ 11, 15) Plaintiffs assert that Mr. Recinos "was acting in the course and scope of his employment with the USPS at the time[]." (Id., ¶ 7)
Plaintiffs reported Mr. Ramone was driving, and Mrs. Ramone was the passenger in the vehicle at the time of the accident. (Doc. 26-3 at 4) Plaintiffs assert that due to "the negligent and careless actions" of the USPS driver, they were "injured in their health, strength and activity, sustaining major injuries causing and continuing to cause plaintiffs great mental and physical and nervous pain and suffering which may result in permanent disability." (Doc. 1 at 4, ¶ 12) Plaintiffs allege they "were required to and did employ physicians for medical examination, treatment and care for their injuries and did incur medical and incidental expenses in that regard ..." (Id., ¶ 13) Further, Plaintiffs contend they "will incur future medical and incidental expenses for the care and treatment of said injuries." (Id., ¶ 14)
On October 3, 2016, Plaintiffs submitted tort claims using the Standard Form-95, both of which were signed by their attorney, Greg Muir. (Doc. 26-3 at 4-7) Mrs. Ramone indicated that "[s]he suffered cuts and abrasions to her right elbow, swollen knee, and neck pain." (Id. at 4) Under the section for identifying property damage, Mrs. Ramone claimed the amount of $18,067.25. (Id.) In the section for the amount claimed for personal injury, she indicated "claimant still treating[;] unknown at this time." (Id.) Where asked to specify the total of all claims—and informed "[f]ailure to specify may cause forfeiture of your rights"—Mrs. Ramone indicated the total was "well in excess of $25,000 according to proof." (Id.)
On his tort claim, Mr. Ramone reported he suffered a "[n]eck injury; left shoulder injury; and both left and right hand injuries." (Doc. 26-3 at 6) He reported the vehicle was owned by his wife, and he did not claim any property damage. (Id.) In the section for identifying the amount sought for his personal injuries, Mr. Ramone indicated "unknown at this time[;] claimant still treating." (Id.) He also indicated the total claimed was "well in excess of $25,000 according to proof." (Id.) Each form also stated: "I certify the amount of claim covers only damages and injuries caused by the incident above and agree to accept said amount in full satisfaction and final settlement of this claim. (Id. at 4, 6) The forms also read, "failure to specify a sum certain will render your claim invalid and may result in forfeiture of your rights." Id. at 5, 7.
On October 6, 2016, Cary Pons, with USPS Accident Investigations, contacted Plaintiffs' counsel regarding the documentation provided. (Doc. 28 at 8) Mr. Pons indicated:
(Doc. 28 at 8)
On November 16, 2016, Plaintiffs responded to the letter by submitting "a copy of all billings and medical records for both clients to date, advising that the clients had not completed treatment and could not include any final report from their physicians as to their injuries." (Doc. 28 at 3; see also Doc. 26-3 at 9-18) The submitted medical records for Mr. Ramone included a report dated September 9, 2016 from Dr. Mark Schamblin, which indicated Raymond had been diagnosed with a cervical spine injury and "full thickness rotator cuff tear," for which "a left should arthroscopy with rotator cuff repair, decompression and distal clavicle excision ... [was] recommended." (Doc. 28 at 2, 11-13)
The records submitted for Mrs. Ramone included a report dated September 29, 2016 from Southern California Orthopedic Institute, which indicated she "had a long-standing history of neck complaints over the past several years," which increased after the accident. (Doc. 26-3 at 15) She reported,
Id. Imagining showed Rita Ramone had "endstage degenerative disc disease with complete collapse and loos of disc height at C5-6 and C6-7 with diffuse spondylotic changes," and "moderate to severe central and lateral recess spinal canal stenosis ..." (Id. at 17) The physician assistant with Dr. Schopler reported,
(Id. at 18) She elected to proceed with epidural steroid injections but also discussed "elective definitive surgical intervention ... for an anterior cervical discectomy and fusion" with Emily Fish, PA-C. (Id. at 18) In concluding the contact, PA Fish reported, "All of [Mrs. Ramone's questions and concerns were addressed and answered." (Id.)
Along with the supplemental medical records
Without submitting any further information related to their claims, Plaintiffs initiated this action on June 20, 2017
(Doc. 28 at 15)
In a Joint Mid-Discovery Status Report filed in March 2018, Plaintiffs reported they were "still treating for their injuries they sustained in this accident" and anticipated that their "medical treatment and vocational status shall be ascertainable by early summer of 2018." (Doc. 20 at 2) A year later, on March 26, 2019, Plaintiffs "submitted [to the defense] documentation of the respective claims of Plaintiffs in terms of medical expenses and loss of earnings." (Doc. 28-1 at 2, Muir Decl. ¶ 6) Mr. Muir contends the records show "the severity of actual damages for both Plaintiffs began to take flight over the ... two years." (Id., ¶ 4)
The documents submitted to the Government indicated that as of March 2019, Mr. Ramone's medical care totaled $86,516.63, of which he was responsible for $13,257.90. (Doc. 28-1 at 41) In addition, Mr. Ramone reported "a total loss of earnings in the amount of $42,896.80." (Id.) Mrs. Ramone reported her medical care costs at that point totaled $168,476.05, of which she was responsible for $93,434.21 after adjustments. (Id. at 42-43) These amounts "were not inclusive of general damages, nor future medical expenses for the future planned cervical surgery of Mrs. Ramone." (Id. at 2, ¶ 7)
The Government filed the motion now pending before the Court to limit damages to the administrative claim amount on June 7, 2019. (Doc. 26) Plaintiffs filed their opposition to the motion on June 25, 2019 (Doc. 28), to which the Government filed a reply on July 2, 2019 (Doc. 29). Plaintiffs also filed a sur-reply, without leave of the Court (Doc. 33).
Under the Federal Tort Claims Act, 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. A party may amend the claim up until 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-month consideration period. Id. The injured party may file suit after the claim is denied or after the time has expired without any action taken by the agency. 28 U.S.C. § 2675(a).
For any lawsuit filed, a claimant is limited to the amount of the administrative claim and may not seek recovery "in excess of the amount of the claim presented to the federal agency." 28 U.S.C. § 2675(b). The amount presented to the federal agency must be in the form of a "sum certain." 28 C.F.R. § 14.2(a). The purpose of the "sum certain" limitation in Section 2675 "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." Low v. United States, 795 F.2d 466, 471 (5th Cir. 1986); see also Caidin v. United States, 564 F.2d 284, 287 (9th Cir. 1977) ("[s]ince the purpose of the administrative claim is to facilitate settlement of these disputes, a specific dollar amount is necessary to allow realistic assessment of the settlement value of a case").
There are exceptions to the sum certain requirement: "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." 28 U.S.C. § 2675(b). The two exceptions are distinct: "newly discovered evidence" addresses evidence that existed when the claim was filed but was "not discoverable" at that time; "intervening facts," concern information or events "occurring after the filing of the claim." See Lowry v. United States, 958 F.Supp. 704, 710 (D. Mass. 1997). "While a plaintiff may seek a larger amount if he meets either of these tests, the burden of proof under both falls on the plaintiff." Salcedo-Albanez v. United States, 149 F.Supp.2d 1240, 1243 (S.D. Cal. 2001) (citing Spivey v. United States, 912 F.2d 80, 85 (4th Cir. 1990)); see also Hogan v. United States, 1996 U.S. App. LEXIS 13549 at *4 (9th Cir. May 24, 1996) ("The burden of establishing newly discovered evidence or intervening facts rests on the claimant).
To determine whether a claimant meets either exception under Section 2675(b), the court applies an objective standard and must consider whether a claimant's injuries were "reasonably foreseeable at the time the original claim was filed." See Richardson v. United States, 841 F.2d 993, 999 (9th Cir. 1988). Diligence by the plaintiff is expected, and "[i]nformation which could have been discovered through the exercise of reasonable diligence does not qualify as newly discovered evidence or intervening facts for purposes of the exception contained in section 2675(b)." Hogan, 1996 U.S. App. LEXIS 13549 at *4 (citing Low, 795 F.2d at 470); see also Lowry, 958 F. Supp. at 711 ("If the condition was reasonably foreseeable at the time the claim was filed, an increase will not be allowed.").
The Government argues the "sum certain" for the administrative claim of each plaintiff is $25,000. (Doc. 26-1 at 3) The Government argues also that Plaintiffs cannot meet the burden to demonstrate an exception under Section 2675(b) should be applied because the "alleged injuries were known to Plaintiffs before they filed their administrative claims." (Id. at 4)
The Government asserts, "The only sum-certain amount arguably associated with Plaintiffs' personal injuries is the $25,000 asserted in each claim." (Doc. 26-1 at 3) The Government notes Plaintiffs indicated the total sought for each of their claims was "well in excess of $25,000," and each indicated medical treatment was ongoing. (Id.; see also Doc. 26-3 at 4, 6) The Government contends that, because of the "sum certain" requirement, "language such as `in excess of,' `at least,' or `damages are continuing' is considered mere surplusage." (Id., citing e.g., Blair v. I.R.S., 304 F.3d 861, 869 (9th Cir. 2002); Jacobson v. United States, 276 F.Supp.2d 1106, 1110 (D. Nev. 2003). The Government notes the Ninth Circuit determined an indication that "[m]edical bills are still being incurred" was surplus language on a tort claim. (Id., citing Blair, 304 F.3d at 869)
Notably, Plaintiffs do not oppose the Government's argument that the "sum certain" for each of their tort claims is $25,000. (See generally Doc. 28 at 3-6) Indeed, as the Government argues, courts have repeatedly determined language such as "in excess of"—or similar qualifying language— should be ignored to determine the "sum certain" presented in a tort claim. See, e.g., Corte-Real v. United States, 949 F.2d 484, 486-87 (1st Cir. 1991) (claim for "$100,000 plus" treated as claim for $100,000); Martinez v. United States, 728 F.2d 694, 697 (5th Cir. 1984) (claim for "in excess of $100,000" stated sum certain for $100,000 because "surplus verbiage" could be ignored); Adams v. U.S. Dep't of Housing and Urban Dev., 807 F.2d 318, 321 (2nd Cir. 1986) (finding a claim for "in excess of $100,000.00" was not fatally uncertain, and ignoring the phrase "in excess of" and "leaving the specific amount stated as the claim"); Erxleben v. United States, 668 F.2d 268, 272-73 (7th Cir. 1981) (finding where the plaintiff "included the term `presently' after his dollar figure under the personal injury heading," he stated a sum certain for the amount claimed).
Though Plaintiffs contend "future medical expenses (although completely unknown), past and future pain and suffering, are also `unknowns' frequently in personal injury cases and are directly contrary to the mandate of inclusion in a `sums uncertain' (sic), (Doc. 28 at 6), Plaintiffs fail to identify any case law supporting this position. To the contrary, this Court previously determined that under the FTCA, "[a]ll litigants are required to place a dollar value on their injuries (including prospective expenses and suffering) . . ." Industrial Indemnity Co. v. United States, 504 F.Supp. 394, 399 (E.D. Cal. 1980).
In Industrial Indemnity Co., the claimant indicated damages in the amount of $560.00 on her SF-95 but also indicated that "compensation benefits are continuing and will continue for an indefinite period of time." Id., 504 F. Supp. at 396. The Court held the claimant should have calculated "the present value of an on-going liability" and was bound to the amount identified on the S-95 form. Id. at 397, 399. Thus, the Court treated the language concerning continuing treatment as surplusage and found the sum certain was $560.00. See id.
Similarly, Plaintiffs were obligated to include calculations for ongoing treatment in the damages requested and failed reserve a right to seek additional damages by their use of the phrase "well in excess of" found on each of the Ramones' tort claims. See Industrial Indemnity Co., 504 F.Supp. at 399. This was surplus language, and Court finds the "sum certain" for each plaintiff was $25,000. See Corte-Real, 949 F.2d at 486-87; Martinez, 728 F.2d at 697.
Plaintiffs contend their "respective claims fall within the exception to the general rule limiting damages." (Id. at 3, emphasis omitted) According to Plaintiffs, "the instant case, the medical or damage claims constitute `intervening facts' and/or `newly discovered evidence.'" (Id.) The Government argues, "there is no newly discovered evidence or intervening facts that would support an argument by Plaintiffs that they should be permitted to exceed the damages they sought in their administrative tort claims." (Doc. 26-1 at 5)
Evidence is considered "newly discovered" under Section 2675(b) if it was not reasonably foreseeable at the time the administrative claim was filed. 28 U.S.C. § 2675(b); see also Hogan, 1996 U.S. App. LEXIS 13549 at *4; Low, 795 F.2d at 470. In cases involving personal injuries— such as the matter before the Court— the FTCA does not hold plaintiffs to a standard that charges them with "knowing what the doctors could not tell [them]." Fraysier v. United States, 766 F.2d 478, 481 (11th Cir. 1985). Nevertheless, "[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," an attempt to increase the amount of the claim during litigation should be rejected. Michels v. United States, 31 F.3d 686, 688 (8th Cir. 1994) (quoting Reilly v. United States, 863 F.2d 149, 172 (1st Cir. 1988)). Because Plaintiffs' administrative claims were submitted in October 2016, the relevant inquiry is whether any asserted "newly discovered evidence" was reasonably foreseeable by that date.
The Plaintiffs do not dispute that both Raymond and Rita Ramone's "injuries were known ... before they filed their administrative claims." (Doc. 26-1 at 4, citing Ramirez Decl., Exh. B [Doc. 26-3 at 8-21]) The Government observes:
(Doc. 29 at 2) Though Plaintiffs contend their "medical or damage claims" constitute newly discovered evidence, neither Mr. Ramone nor Mrs. Ramone identifies a new diagnosis that was unknown when they submitted the claim form.
Plaintiffs cite several cases to support of their assertion that "the medical or damage claims constitute ... `newly discovered evidence,'" including: Michels v. United States, 31 F.3d 686, 688 (8th Cir. 1994); Powers v. United States, 589 F.Supp. 1084, 1109-1110 (D. Conn. 1984); and Fulcher v. United States, 88 F.Supp.3d 763, 772-74 (W.D. Ky. 2015). (See Doc. 28 at 4-5) Though Plaintiffs offer brief summaries of the legal standards identified by the courts and their holdings in these cases— none of which arose within the Ninth Circuit—Plaintiffs do not offer any analysis how the decisions are relevant to the matter before the Court or identify any similarities in the facts presented to the courts in Allgeir, Milano, or Fulcher. Indeed, the Court finds these cases are not instructive or applicable to their claims.
Plaintiffs observe that in Powers, the District Court of Connecticut found "when a Plaintiff does not know fully the medical extent of his injuries and expenses at the time of his Administrative Claim, the exception to 2675 (b) is triggered." (Doc. 28 at 4, citing Powers, 589 F.Supp. at 1109-1110) However, the Government contends—and Plaintiffs do not squarely dispute—the treatment plans recommended for both Raymond and Rita Ramone in September 2016 were followed or will be (see Doc. 26-1 at 5; Doc. 29 at 2). This indicates the extent of their injuries were known before the claim forms were submitted and the expenses related thereto could have been projected. Thus, Plaintiffs fail to demonstrate that under Powers, the Section 2675(b) exception for "newly discovered evidence" should be applied.
Though Plaintiffs refer to the Eighth Circuit's observation in Michels, 31 F.3d 686 (8th Cir. 1994) that "known injuries can worsen in ways not reasonably discovered by the claimant and/or his treating physician" (Doc. 28 at 4), Plaintiffs fail to identify any specific injury suffered by either Raymond or Rita that worsened in a manner that was not, or could not have been, predicted. To the contrary, surgical intervention was discussed for both Plaintiffs prior to the submission of the administrative claims. (See Doc. 26-3 at 12 [indicating surgery was recommended for Raymond Ramone] and Doc. 26-3 at 18 [noting "elective definitive surgical intervention [was] discussed for an anterior cervical discectomy and fusion" with Rita Ramone]). To the extent Raymond now suggests he was unaware that he have "a long road to recovery" and is entitled to his loss of earnings (see Doc. 28-1 at 41), the evidence submitted indicates he was informed in September 2016 that it would be a long process. (Doc. 26-3 at 12) Specifically, Dr. Schamblin noted:
(Doc. 26-3 at 12, emphasis added) Thus, Mr. Ramone knew of his physical limitations and the expectation that recovery would take a significant amount of time. Because Plaintiffs submit no evidence to show their injuries worsened in ways not predicted by their treating physicians, they fail to show how Michels is applicable to this action. Indeed, Mr. Ramone had undergone his surgery and returned to work by the time they abandoned the claim process and filed their lawsuit initiating this action. (Doc. 28-1 at 31-32, 34-35, 38)
Despite her claim that surgery of her cervical spine was not recommended until the summer of 2018 (Doc. 33 at 2), the record she provides demonstrate that doctors spoke to her about surgery well before this, on September 29, 2016 (Doc. 26-3 at 18), on November 6, 2017 (Doc. 28-1 at 15-17) and on January 25, 2018 (Doc. 28-1 at 13-14).
Because Plaintiffs have failed to identify any "newly discovered evidence not reasonably discoverable at the time of presenting the claim" related to their physical injuries, both Plaintiffs fail to meet their burden to show the exception under Section 2675(b) applies to their claims.
Plaintiffs fail to address the two exceptions to Section 2675(b) in a distinct manner, though "intervening facts" addresses information gained or events that occurred after the filing of the claim, while "newly discovered evidence" existed at the claim was filed but not then discoverable. See Lowry, 958 F. Supp. at 710. Nevertheless, the Court notes two cases cited by Plaintiffs address the "intervening facts" exception: Milano v. United States, 92 F.Supp.2d 769, 775-76 (N.D. Ill. 2000) and Allgeier v. United States, 909 F.2d 869, 877-78 (6th Cir. 1990).
Plaintiffs refer to Milano for the proposition that they were not required to calculate damages in their claims based on a "worst case scenario."
Plaintiffs also contend the decision by the Sixth Circuit in Allgeier is "particularly instructive," but fail to explain why they think so. (See Doc. 28 at 4-5) Plaintiffs note:
(Doc. 28 at 4-5, quoting Allgeier, 909 F. 2d at 877-878) The Ramones do not present evidence that their injuries were originally believed to be temporary and later were identified as permanent conditions. Further, as discussed above, the Ramones fail to demonstrate they were unaware of the medical extent of their injuries in a manner that the expenses could have been predicted. Consequently, Allgeier does not assist the Court in its analysis of Plaintiffs' claims.
Because Plaintiffs fail to identify "proof of intervening facts, relating to the amount of the claim," they fail to carry the burden to show the second exception to Section 2675(b) applies to their administrative claims. See 28 U.S.C. § 2675(b).
Based upon the evidence and arguments presented, the Court finds Plaintiffs fail to identify newly discovered evidence or intervening facts under Section 2675(b) of the FTCA, and Plaintiffs fail to meet their burden to establish that they are entitled to pursue damages in excess of the amount asserted in the administrative claims. Accordingly, the Court
