Lowry v. U.S., Civil Action No. 91-11233-MLW.

• Decision Date: 12 February 1997
• Docket Number: Civil Action No. 91-11233-MLW.
• Citation: 958 F.Supp. 704
• Parties: Noreen A. LOWRY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Massachusetts

958 F.Supp. 704

Noreen A. LOWRY, Plaintiff, v. UNITED STATES of America, Defendant.

Civil Action No. 91-11233-MLW.

United States District Court, D. Massachusetts.

February 12, 1997.

COPYRIGHT MATERIAL OMITTED

Lewis C. Eisenberg, Quincy, MA, for Noreen Lowry.

Countess C. Williams, U.S. Attorney's Office, Boston, MA, Annette Forde, Paul G. Levenson, U.S. Attorney's Office, Boston, MA, for U.S.

MEMORANDUM AND ORDER ON PLAINTIFFS MOTION TO RECONSIDER MOTION TO AMEND AD DAMNUM CLAUSE (# 36)

COLLINGS, United States Magistrate Judge.

I. INTRODUCTION

In this Federal Tort Claims Act¹ case, the Court is faced with the question of whether the provisions of 28 U.S.C. § 2675(b) bar the plaintiff from increasing the amount of damages stated in her administrative claims, i.e., from $600,000.00 to $1,500,000.00. In a Memorandum and Order (# 22), the Court answered the question in the affirmative. On the first day of the non-jury trial, the plaintiff filed a motion requesting the Court to reconsider its ruling. The issue is whether the plaintiff has shown that "... the increased amount is based on newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or [has alleged and proven] intervening facts, relating to the amount of the claim." 28 U.S.C. § 2675(b) (emphasis added).

II THE FACTS

The plaintiff was injured when her car was rear ended by an F.B.I. employee on Interstate 93 in Boston on November 23, 1988. An administrative claim with the F.B.I. was filed on March 23, 1989. In that claim, the plaintiff in the box denoted "personal injury" under the general category "amount of claim" wrote "Extent of damages ongoing; projection is in excess of $100,000."² On September 24, 1990, the plaintiff submitted a "supplemental form"³ on which she entered the sum of $600,000.00 in the box denoted "personal injury."⁴ No action having been taken by the F.B.I. within six months, the plaintiff filed the instant civil action on May 1, 1991. There is no question that the case was filed within the applicable statute of limitations. The motion to increase the ad damnum to $1,500,000.00 was filed on April 23, 1992. The basis for the motion was as follows:

The plaintiff has had ongoing medical treatment since the time of her original accident. Even after her filing of the Supplemental Form 95 (Exh. B) in September, 1990, the plaintiff has been undergoing a significant amount of physical therapy. Most recent medical testing was concluded in February, 1992. A comprehensive report was received shortly thereafter, see infra. It was based upon this most recent information that a further rehabilitation analysis by a specialist along with an economic analysis of the impairment to earning capacity has been finalized. These additional matters give rise to "intervening facts" which relate to the amount of her claim.

* * * * * *

The plaintiff relocated to California in late 1990.

* * * * * *

[A] physician in California, John Fagan, M.D. (an internist), requested that an MRI be performed of the low back. The scanning was done on July 9, 1991 at San Antonio Community Hospital with a diagnosis of a small disc herniation at the LA-L5 (Exh. H). This is the first diagnosis of a low back herniation ...

* * * * * *

As of October 7, 1991 the plaintiff came under the care of Inland Neurological Associates, Dr. Jan David Rosenthal. His comprehensive report of March, 1992 ... As his report notes, the most recent diagnostic testing that the plaintiff has completed was in February, 1992. The doctor is of the opinion that the plaintiff has sustained, inter alia, a "disc bulge at LA-5" and is satisfied that there is causation. The doctor notes the work restrictions for the plaintiff, her disability status, and her future medical needs. He notes that her condition is permanent and she is precluded from doing any "heavy lifting, repetitive bending and stooping, as well as repetitive reaching or lifting overhead." (footnote omitted).

It is based on this most recent report of Dr. Rosenthal (Exh. I) that the plaintiff has formalized the assessment for rehabilitation and employability prospects along with her economic loss.

Memorandum, Etc. (# 14) at pp. 2, 4-5.

In sum, therefore, plaintiff's claim of "newly discovered evidence" and "intervening facts" rests on the discovery of the "disc bulge" in 1991 and the fact that experts viewed her disability as being permanent.

The disc bulge at L4-L5 is in the lower back; it must be distinguished from the "herniation of C-5 and C-6 Discs" in the neck area which plaintiff referenced in her original claim.⁵ In her original claim, plaintiff noted that she suffered from "Lumbar strain, Lower Back strain".⁶ In her supplemental administrative claim, she wrote that she suffered from "Herniation of C5-6 disc, lumbar strain, lower back strain, chronic pain; involved in extensive physical therapy."⁷

A review of plaintiff's medical records and history from the date of the accident on November 23, 1988 to the date of her supplemental administrative claim on September 24, 1990, as admitted at the trial, is in order. From a time shortly after the automobile accident in late November, 1988, up to the date in September, 1990 when her supplemental administrative claim was filed, Ms. Lowry was treated by Gregory W. Brick, M.D., an orthopedic specialist with Brigham Orthopedic Associates, Inc. in Boston, Massachusetts.⁸ Her first visit was on November 5, 1988; the doctor's notes indicate that as a result of the accident, "[s]he developed severe neck pain and low back discomfort and has continued to experience this since."⁹ She continued to see Dr. Brick every month or two; the complaints of low back pain continued. On August 14, 1989, Dr. Brick wrote:

She is to have a CAT scan of the lumbar spine to be sure there is no evidence of disc herniation ...¹⁰

The CAT scan of the lumbar spine was taken on August 28, 1989. The results, in pertinent part, were as follows:

At the level of L4-5, there is a diffuse disc bulge with impingement on the thecal sac anteriorly.

IMPRESSION:

1. Diffuse bulge at L4-5 resulting in mild canal stenosis. No evidence of HNP.¹¹

Dr. Brick testified that "no evidence of HNP" meant that there was no evidence of a herniated disc.¹²

In a report dated January 30, 1990, Dr. Brick confirmed that Lowry had a C5/C6 disc herniation but made no mention of the L4-5 bulge.¹³ He described Lowry as experiencing chronic neck pain and back pain.¹⁴ Dr. Brick opined that Lowry was unable to return to work as an orthopedic nurse, but that return to a clinical situation with more administrative duties may be possible.¹⁵ Lowry was deemed "likely" to be able to return to work within 3-6 months.

Eight months later, on August 21, 1990, Dr. Brick authored a second report.¹⁶ Lowry's C5/C6 disc protrusion was confirmed, as was the fact that she suffered chronic neck pain and low back pain.¹⁷ At this juncture, Dr. Brick opined "[i]t is possible in the future that Noreen (sic) symptoms will improve and she will be able to return to some occupation which would not involve heavy lifting."¹⁸ The possibility of surgery for the disc herniation was also noted.¹⁹ Finally, Dr. Brick stated that Lowry "may require long-term physical therapy for her symptoms." Indeed, from December, 1988 through July 1990 Lowry had 105 office visits at Needham Physical Therapy Associates for physical therapy treatment.²⁰

Lowry has also produced evidence that the Department of Health and Human Services determined her to be totally disabled as of March 1, 1989 and therefore entitled to Social Security disability benefits.²¹

On the basis of these facts, on September 16, 1990, Lowry filed her supplemental administrative claim seeking $600,000.00 in damages for personal injuries listed as "[h]erniation of C5-6 disc, lumbar strain, lower back strain; chronic pain; involved in extensive physical therapy."²²

In late 1990, Lowry relocated to California. Upon the order of Douglas Beseth, M.D., in March of 1991 Lowry began a physical therapy treatment program at Mountain View Physical Therapy, Inc. which continued.²³ At the request of John Fagan, M.D., an MRI was performed on Lowry's lower back in early July, 1991, revealing the following:

At L4-L5, there is a slight narrowing of the disc. There is suspicious small right anterolateral disc protrusion that appears to be in very close proximity to the existing L4 nerve root ...

IMPRESSION:

Mild narrowing of the disc at L4-L5.

Suspicious small disc herniation along the right anterolateral aspect of the thecal sac with suspicious impingement on the existing right L4 nerve root.²⁴

This was the first time that a diagnosis of a disc herniation at L4-L5 was rendered. What counsel failed to mention in his original motion and memorandum was the fact a bulge at L4-L5 had been found over a year before the supplemental administrative claim for $600,000.00 was filed. Indeed, a good deal of the United States' brief in opposition to the motion to increase the ad damnum was devoted to the fact that the L4-L5 disc bulge could have been discovered before September 24, 1990. See # 16. As the evidence at trial plainly revealed, it was. Whether the distinction between a bulge and a herniation is sufficiently material will be further discussed, infra.

In March of 1992, Dr. Jon David Rosenthal of Inland Neurological Associates performed a neurological examination of Lowry. In his report, Dr. Rosenthal notes that Lowry was seen "complaining of neck and low back discomfort, as well as headaches and dizziness."²⁵ Among Dr. Rosenthal's impressions he listed "post traumatic 15/6 radiculopathy" and "post traumatic C4/5 radiculopathy 3 mm. disc bulge."²⁶ Dr. Rosenthal concluded that as of March 13, 1992, Lowry had a permanent "disability based on her injuries to her neck and low back precluding heavy lifting, repetitive bending and stooping, as well as repetitive reaching or lifting...