Dickerson ex rel. Dickerson v. U.S., 00-50505.

• Decision Date: 16 January 2002
• Docket Number: No. 00-50505.,00-50505.
• Citation: 280 F.3d 470
• Parties: Ryan DICKERSON, A Minor, by and through his Parents, Daniel DICKERSON and Suzanne Dickerson, and as Next Friends; Daniel Dickerson, as Next Friend of their Minor Son, Ryan Dickerson; Suzanne Dickerson, as Next Friend of their Minor Son, Ryan Dickerson; Daniel Dickerson, Individually; Suzanne Dickerson, Individually, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

280 F.3d 470

Ryan DICKERSON, A Minor, by and through his Parents, Daniel DICKERSON and Suzanne Dickerson, and as Next Friends; Daniel Dickerson, as Next Friend of their Minor Son, Ryan Dickerson; Suzanne Dickerson, as Next Friend of their Minor Son, Ryan Dickerson; Daniel Dickerson, Individually; Suzanne Dickerson, Individually, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 00-50505.

United States Court of Appeals, Fifth Circuit.

January 16, 2002.

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Michael Ernest John Archuleta, William O. Whitehurst, Whitehurst, Harkness, Ozmun & Archuleta, Austin, TX, Van Galen Hilley, Goldstein, Goldstein & Hilley, San Antonio, TX, for Plaintiffs-Appellees.

Lawrence J. Madigan (argued), Law Office of Lawrence J. Madigan, Houston, TX, for Suzanne and Daniel Dickerson.

E. Roy Hawkens (argued), Robert S. Greenspan, U.S. Dept. of Justice, Civ. Div., App. Staff, Washington, DC, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, SMITH and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Plaintiffs sued the United States under the Federal Tort Claims Act ("FTCA") for damages to Ryan Dickerson incurred during his childbirth. The government acknowledged liability and the sole issue at trial was damages. The United States Government now appeals a judgment against it for damages of $44,717,681 on the grounds that the damages are limited by the plaintiffs' prior administrative claims of $20 million. In the alternative, the government argues that the award should be reduced, in accordance with the "maximum recovery" rule, to $28.45 million. The government additionally asserts that the guardian ad litem fees should be taxed, in part, as attorney's fees rather than the whole amount being taxed to the government.

BACKGROUND

On March 19, 1998, a pregnant Suzanne Dickerson was diagnosed with a condition called pregnancy-induced hypertension ("PIH"). This condition can impair the placenta's ability to extract and exchange oxygen which in turn impairs the oxygen supply of the unborn child.¹ This causes the unborn child not only to receive insufficient oxygen, but also results in a build-up of carbon dioxide, which causes the blood's pH to decrease and results in a condition known as acidosis which can result in severe organ damage. Damage to the unborn child can be avoided by a timely caesarean section; however, no such operation was performed on Suzanne Dickerson. On March 20, 1998, Suzanne Dickerson was admitted to Sheppard Air Force Base Hospital for the delivery of her child. After approximately 15 hours of labor, the obstetrician attempted to perform an operative vaginal delivery of her baby, Ryan. After unsuccessfully trying to deliver Ryan with forceps and a vacuum extractor, the obstetrician resorted once again to using forceps and Ryan was delivered at about 11:00 p.m. on March 20, 1998. Unfortunately, the conditions surrounding Ryan's birth, including the failure to perform a caesarean section, caused Ryan to suffer catastrophic brain damage, destroying 65%-70% of his brain tissue.

Ryan demonstrated profound injuries at birth and had an extremely low pH level of 6.75 for his blood.² For the first ten days of his life, Ryan was in a coma. Ryan continued to demonstrate signs of severe damage throughout his time at the hospital until his release to his parents on April 10, 1998.

In May of 1998, Ryan's father filed a "Request For CHAMPUS Benefits" and, in that form, Dr. Charles Morton, Chief of Developmental Pediatrics at Wilford Hall Medical Center in San Antonio, indicated that Ryan was at a high risk for spastic quadriplegia cerebral palsy and severe developmental disorders. On June 1, 1998, Dr. Eltman, a neurologist who had been treating Ryan, wrote a letter in support of the Dickersons' request to the Air Force that Ryan's father be assigned to an installation that could support Ryan's needs. In that letter, Dr. Eltman gave a prognosis that Ryan would suffer from mental retardation, cerebral palsy and visual impairment as well as a high likelihood of seizures as a result of his neurological injury.

On June 24, 1998, the Dickersons prepared administrative claims with the Department of the Air Force pursuant to 28 U.S.C. § 2675 seeking $20 million in damages. Specifically, they sought $15 million on behalf of Ryan and $5 million total on behalf of Ryan's parents in their individual capacities. In January of 1999, after they deemed their administrative claims denied, the Dickersons filed a FTCA action. The government did not contest liability, and the only issue at trial was damages.

In their original complaint, the Dickersons sought damages of $20 million, consistent with their administrative claims. In December of 1999, the Dickersons filed their first amended complaint asking for $55 million ($25 million for Ryan and $30 million for themselves). The Dickersons accompanied their motion for leave to amend with a declaration stating that, when they filed their administrative claims, they did not have a complete set of medical records or know the severity of Ryan's injuries. The district court granted their motion to file an amended complaint on December 9, 1999. The government filed a timely amended answer to the amended complaint preserving the defense that the Dickersons were not entitled to damages in excess of the $20 million requested in their administrative complaint.

The district court found damages for the plaintiffs in the total amount of $44,717,681. The government now appeals, claiming it was error to allow the damages in excess of the administrative claims.

DISCUSSION

The Administrative Damages Cap in FTCA Cases

The standard of review for factual determinations in a FTCA case is whether the district court's findings are clearly erroneous. Fed.R.Civ.P. 52(a); Low v. United States, 795 F.2d 466, 470 (5th Cir.1986); Ferrero v. United States, 603 F.2d 510, 512 (5th Cir.1979) ("In FTCA cases the clearly erroneous standard governs our review of factual determinations, including damages."). A trial court's findings are clearly erroneous when, after reviewing the entire evidence, the Court is left with the definite and firm conviction that a mistake has been committed. Ferrero, 603 F.2d at 512.

The government asserts that the Dickersons' claims should have been limited by 28 U.S.C. § 2675(b), which states:

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.

Under the above section, claimants under the FTCA cannot claim more than asked for in their administrative claims unless it is justified by newly discovered evidence. The government contends that the Dickersons failed to meet the standard for newly discovered evidence set out in Low v. United States, 795 F.2d 466 (5th Cir.1986).

At the outset, the Dickersons claim that the government's case should be dismissed because it failed to raise the administrative cap as an affirmative defense and also because it did not specify the amount of the administrative cap. Both of these contentions are without merit. It is clear from the record and the district court's findings of fact that the government at least included the affirmative defense of limiting the damages in its answer to the complaint. The cases cited by the Dickersons involved situations where the government did not include the affirmative defense in their pleadings. Pleading the administrative cap defense, however, is enough to preserve the defense for appeal. Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir.1987) (stating, in a FTCA case, that the affirmative defense of damage limitation by statute must be pleaded timely).

Further, the Dickersons' contention that the government should lose because it failed to include the amount of the administrative claims is not supported. The district court's findings of fact included a statement that "[t]he Defendant timely answered, raising the defense that the Plaintiffs are limited to the damages alleged in their administrative claims (Standard Form 95s) and original complaint...." Also, the reference to the original complaint's damage request could act as giving the trial court notice of the amount.³ Furthermore, in order for jurisdiction to exist in this case, an administrative claim had to be filed pursuant to 28 U.S.C. § 2675. The district court recognized this filing as an undisputed fact and therefore could examine the claim to determine the reach of its jurisdiction. Cf. Frantz v. United States, 29 F.3d 222, 224-25 (5th Cir.1994) (holding that, because an administrative claim was a jurisdictional prerequisite to suit under the FTCA, the claims made in the administrative claim put the government on notice of the possibility of such claims being made in the actual suit); Bush v. United States, 703 F.2d 491, 494 n. 1 (11th Cir.1983) (finding that, because an administrative claim was a prerequisite to jurisdiction, the district court was obliged to examine the claim). If nothing else, the amount, and the other information provided in the claim, was recognized by virtue of the fact that the administrative claims were taken on judicial notice.

Now turning to the question of whether the amount in the claim limits the Dickersons' recovery, in Low, this Court held that the question of whether damages could be increased under § 2675(b) presented a twofold issue. Low, 795 F.2d at 470. First, did the district court err in finding that the post-claim evidence as to the extent of the injuries, the prospects of recovery, the extent of recovery, and of the life expectancy could not have...