Zurba v. U.S.

• Citation: 318 F.3d 736
• Decision Date: 07 February 2003
• Docket Number: No. 01-4089.,01-4089.
• Parties: Ludmilla ZURBA, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

318 F.3d 736

Ludmilla ZURBA, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 01-4089.

United States Court of Appeals, Seventh Circuit.

Argued May 24, 2002.

Decided February 7, 2003.

Michael T. Mullen (argued), Paul B. Episcope, Chicago, IL, for Plaintiff-Appellee.

Lisa M. Noller (argued), Office of the U.S. Atty., Civ. Div., Chicago, IL, for Defendant-Appellant.

Before POSNER, MANION, and DIANE P. WOOD, Circuit Judges.

MANION, Circuit Judge.

Ludmilla Zurba sued the United States under the Federal Tort Claims Act after she was struck by an automobile driven by an FBI agent. The district court assessed damages at $519,666, but offset that amount by the $100,000 Zurba had recovered from another tortfeasor. The district court then entered judgment against the United States in the amount of $419,666. The United States appeals, arguing that Zurba's damages should have been capped at $300,000 — the amount she sought in her administrative claim. We disagree and therefore AFFIRM.

I.

On the morning of January 11, 1995, Ludmilla Zurba was standing at the corner of Michigan Avenue and Ohio Street in downtown Chicago, waiting to cross the street to catch a bus. Before she had a chance to cross, however, she was struck by an automobile driven by a member of the FBI's Violent Crimes Task Force; the car was propelled into her after colliding with two other automobiles. Zurba was taken to the hospital by an ambulance, where she underwent abdominal surgery to control internal bleeding and to repair a laceration to her kidney. Zurba remained in the hospital for eleven days. After her release from the hospital, Zurba was bedridden for six weeks, and did not return to work for approximately three more months.

Nearly a year after the accident, Zurba was diagnosed with an obstructed bile duct, which required doctors to remove both the obstruction and her gall bladder. Following this operation, Zurba was again away from work for six weeks. After returning to work, she experienced upper abdominal pain and sudden bowel movements and, in April 1996, she was diagnosed with irritable bowel syndrome. Throughout this time, Zurba also suffered from fear of being alone, fear of the dark nightmares, and a variety of other anxiety-related problems.

About 17 months after the accident, on August 6, 1996, Zurba filed an administrative claim with the FBI in the amount of $300,000 under the Federal Tort Claims Act.¹ The United States denied this claim. After retaining new counsel, in May 1999, Zurba filed suit against the United States, seeking damages in the amount of $1 million. The district court bifurcated the liability and damages phases of the trial. Following a bench trial on liability held during July 2000, the district court found the United States liable for Zurba's injuries. The United States then filed a motion to limit Zurba's damages to $300,000 — the amount she had sought in her administrative claim. The district court denied the motion and ordered discovery on damages to close by March 30, 2001.

A few days before discovery was set to close, Zurba sought psychotherapy for the first time. At the damages trial, Zurba then presented evidence of both her physical injuries and of emotional pain and suffering, including testimony that she suffered from an anxiety disorder and an adjustment disorder as the result of the January 1995 collision. At this time, the United States renewed its motion to limit Zurba's recovery to the $300,000 she had sought in her administrative claim. The district court deferred ruling on the issue until the conclusion of trial. After a four-day trial on damages, the district court determined that Zurba suffered total damages of $519,666 and after reducing that amount by the $100,000 Zurba had recovered from the driver of one of the other cars involved in the accident, the district court entered judgment against the United States in the amount of $419,666. The district court also denied the government's request to cap damages at $300,000, reasoning that Zurba's psychological damages were newly discovered and/or based on intervening facts, and thus the Federal Tort Claims Act's statutory cap did not apply. The United States appeals.

II.

The sole issue on appeal is whether Zurba's damages are capped at the $300,000 she requested in her administrative claim under the Federal Tort Claims Act. Section 2675(a) of the Federal Tort Claims Act provides that before a plaintiff may file suit against the United States for personal injury or death, the plaintiff must have first presented the claim to the appropriate federal agency and have been denied compensation. Section 2675(b) further 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 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) (emphasis added).

On appeal, the United States contends that because in her administrative claim to the FBI Zurba only sought damages of $300,000, under § 2675(b) her recovery must be limited to that amount. Conversely, Zurba contends that her recovery is not limited to the amount set forth in her administrative claim because § 2675(b) established two exceptions to the statutory cap, both of which apply to her case.

Although this court has yet to consider the scope of § 2675(b), Zurba is correct that the statute creates two exceptions to the general rule that a plaintiff's recovery is limited to the amount requested in an administrative claim. Specifically, § 2675(b) provides that the cap does not apply "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 where the plaintiff presents "proof of intervening facts, relating to the amount of the claim." 28 U.S.C. § 2675(b). The plaintiff has the burden of showing that her case fits within one of these exceptions. Spivey v. United States, 912 F.2d 80, 85 (4th Cir.1990). In this case, the district court concluded that Zurba satisfied that burden by showing that her "psychiatric disorders and her emotional distress constituted `newly discovered evidence' and/or `intervening facts' following the presentation of her administration claim ... [and] therefore [her damages for those claims] are not subject to the $300,000 cap established by the claim." This court reviews the district court's finding of "newly discovered evidence" and "intervening facts" under § 2675(b) for clear error. Allgeier v. United States, 909 F.2d 869, 877 (6th Cir.1990); Michels v. United States, 31 F.3d 686, 689 (8th Cir.1994).

On appeal, the government contends that the district court committed clear error in finding that newly discovered evidence or intervening facts justified a damage award in excess of Zurba's administrative claim because Zurba knew of her emotional injuries, or, at a minimum, her condition was reasonably discoverable at the time she filed her administrative claim. In support of its position, the government cites to trial testimony that established that four months before she filed her administrative claim, her doctor told her that stress management and psychotherapy would help her recover from her physical injuries. The government also relies on Zurba's own testimony that immediately after the accident and while she was still in the hospital, she suffered from fear of the dark, fear of being left alone and nightmares, and that following her return to work, she remained afraid to walk alone on Chicago streets and had a need for constant companionship. The government then points to the district court's finding that "Zurba has experienced these emotional and psychological symptoms in greater or lesser degree since January 1995," which was 17 months before she filed her administrative claim. Thus, the government maintains, under the district court's own findings, Zurba knew of her emotional injury prior to filing her claim and therefore she cannot satisfy the "newly discovered evidence" or "intervening facts" exceptions to § 2675(b)'s damage cap.

While it is true that Zurba knew that she suffered from some emotional injury prior to the filing of her claim, the district court did not commit clear error in concluding that newly discovered evidence and/or intervening facts existed. Several reasons underlie our conclusion. First, Zurba presented substantial evidence that her fears and anxieties had all become significantly worse only after she had filed her claim with the FBI. An unforeseen worsening of a known injury may constitute "newly discovered evidence" or "intervening facts" under § 2675(b), as the Eighth Circuit held in Michels, 31 F.3d at 688. In Michels, the plaintiff, who had suffered various injuries to his hip and leg after his motorcycle was struck by a federal employee's vehicle, sued for damages in excess of the amount that he had previously presented in his agency claim because he had since developed arthritis and necrosis. Even though the plaintiff had known that his injuries carried with them the possibility of arthritis and necrosis, he did not factor those possibilities into his administrative claim because at the time of the filing he had not shown signs of either. The Eighth Circuit held that the plaintiff was entitled to recover damages in excess of the original claimed amount because "a known injury can worsen in ways not reasonably discoverable by the claimant or his or her treating physician, and ... such `newly discovered evidence' or `intervening facts,' if convincingly proved, can warrant § 2675(b) relief." Id. at 688. Similarly, in this case, the district court could reasonably conclude that Zurba's emotional injuries...