Davis v. U.S., 01 C 6368.
Decision Date | 01 October 2002 |
Docket Number | No. 01 C 6368.,01 C 6368. |
Citation | 244 F.Supp.2d 878 |
Parties | Robert DAVIS, Plaintiff, v. UNITED STATES of America Defendant. |
Court | U.S. District Court — Northern District of Illinois |
Mark LeRoy LeFevour, Martin Casey Kelley, Kelley, Kelley & Kelley, Schaumburg, IL, for Plaintiff.
Jack Donatelli, United States Attorney's Office, Chicago, IL, for Defendant.
Plaintiff has moved to increase the ad damnum and the amount of damages requested in his administrative claim pursuant to 28 U.S.C. § 2675(b). (R. 6-1.) For the reasons set forth below, Plaintiffs Motion is denied.
Plaintiff Robert Davis a veteran who alleges that doctors and staff of the North Chicago Veterans Administration Medical Center in Cook County, Illinois (the "VA") were negligent when they performed a transuretheral incision of the prostate procedure ("TUIP") and a transurethral resection of the prostate procedure ("TURP") to address the Plaintiffs enlarged prostate. (R. 1-1, Compl.¶ 14-19.) Plaintiff alleges that he suffered various injuries as a result of the TUIP and TURP. (Id. 122.)
Without the advice or assistance of an attorney, Plaintiff filed an administrative claim with the VA seeking $1,000,000 in damages for the VA's alleged negligence. (R. 6-1, Mot. to Increase the Ad Damnum at 1-2.) After the government denied his administrative claim, the Plaintiff retained counsel and filed the instant action. Plaintiff subsequently learned that any settlement or damage award he may receive as a result of his claim would constitute "countable income" and would cause him to lose some benefits, including medical benefits for his various other medical problems as well as a disability pension. See 38 U.S.C. § 1522; 38 C.F.R. § 3.272. See also Cooper v. U.S., 313 F.Supp. 1207, 1211-1212 (D.Neb.1970). Accordingly, Plaintiff seeks leave to increase the ad damnum and the amount of damages requested in his administrative claim in order compensate for this potential loss of benefits.
Under the Federal Tort Claims Act ("FTCA"), a plaintiff suing the federal government is ordinarily limited to the damages asserted in the administrative claim presented to the federal agency. A plaintiff can increase this amount if he can demonstrate the existence of intervening facts or newly discovered evidence supporting greater damages. See 28 U.S.C. § 2675(b) ( ); see also Milano v. United States, 92 F.Supp.2d 769, 774 (2000).
As a statute waiving sovereign immunity, the FTCA is strictly construed. Franklin v. United States, 992 F.2d 1492, 1503 (10th Cir.1993); see also United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 1014-15, 117 L.E.2d 181 (1992) () (alterations in original; citations and quotations omitted). The Plaintiff bears the burden of demonstrating the existence of intervening facts or newly discovered evidence supporting potential damages in excess of his administrative claim. Milano, 92 F.Supp.2d at 774; Spivey v. United States, 912 F.2d 80, 85 (4th Cir.1990).
Plaintiff argues that he should be permitted to increase his ad damnum and the amount of damages requested in his administrative claim because, as a lay person, the effect of a potential settlement or damages award on his benefits was not reasonably discoverable to him at the time he prepared his administrative claim. (R. 6-1, Mot. to Increase the Ad Damnum, at 3-4.) Alternatively, Plaintiff suggests that the effect of a settlement or damages award on his benefits should be viewed as an intervening fact — and indeed, a fact that has not yet occurred — because any loss of benefits is contingent on the Court finding for him on his present damage claims. (R. 10-1, Reply to Defendant's Response to Plaintiffs Mot. to Increase the Ad Damnum, at 3.)
Plaintiff contends that although he was aware of the nature of his injuries at the time he filed his administrative claim, he was unaware of the legal implications of any recovery. Plaintiff suggests that because he prepared his administrative claim without the assistance of an attorney, it was impossible for him to know that a settlement or damages award might cause him to lose his benefits and pension. Plaintiff effectively concedes that if he had consulted with an attorney prior to filing his administrative claim, he would have been aware of the effect of a settlement or damages award on his benefits and pension. Thus, reduced to its essence, Plaintiffs claim is that the "reasonable diligence" mandated under Section 2675(b) did not require him to consult with an attorney.
The courts, however, have rejected the proposition that an FTCA plaintiff is excused from consulting with doctors or other experts as part of his or her "reasonable diligence." United States v. Kubrick, 444 U.S. Ill, 123, 100 S.Ct. 352, 360, 62 L.Ed.2d 259 (1979) () ; Fraysier v. United States, 766 F.2d 478, 481 (11th Cir.1985) ( )(emphasis added).
In Wollman v. Gross, for example, the Eighth Circuit affirmed the dismissal of a plaintiffs FTCA claim on statute of limitations grounds where the plaintiff had been ignorant of the legal implications of the defendant's status as a government employee. 637 F.2d 544, 549 (8th Cir.1980). The Wollman case arose from an automobile collision between the plaintiff and an employee of the Agriculture Stabilization and Conservation Service ("ASCS"). Although he had been aware that the defendant was a government employee, the plaintiff failed to timely file an administrative claim because he had been unaware that the defendant was acting within the scope of his employment at the time of the accident. Thus, the plaintiff argued that he should be excused from the statute of limitations because of "blameless ignorance." Id. at 547. The district court disagreed, holding that the plaintiffs claims were time-barred, and the plaintiff appealed.
On appeal, the Eighth Circuit rejected the plaintiffs "blameless ignorance" argument. Citing Kubrick, the Eighth Circuit reasoned that if the plaintiff had exercised reasonable diligence, he would have become aware of the legal implications of the defendant's status as a government employee:
[The plaintiff] was aware at the time of the accident that [the defendant] was employed by the ASCS. He was unaware only of the legal significance of this fact. The purpose of the statute of limitations is to require the reasonably diligent presentation of tort claims. This may require a plaintiff to obtain appropriate legal counsel and together with counsel discover the facts and their possible legal ramifications so as to enable plaintiff to bring the suit within a reasonable time. Id, at 549 (citing Kubrick, 444 U.S. at 123, 100 S.Ct. at 360). See also Steele v. United States, 599 F.2d 823, 828 (7th Cir.1979) ( ); Barry v. Stevenson, 965 F.Supp. 1220, 1224 (E.D.Wis.1997) (...
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