As a prerequisite to filing a court action against the United States under the Federal Tort Claims Act (“FTCA”), a “claimant must have first presented the claim to the appropriate federal agency and the claim must have been denied.” Corte-Real v. United States, 949 F.2d 484, 485 (1st Cir. 1991); 28 U.S.C. § 2675(a). That claim must make a demand for money damages in a “sum certain.” Holloway v. United States, 845 F.3d 487, 489 (1st Cir. 2017).
While the damages a plaintiff may recover in such a judicial action are usually limited to those identified in the administrative claim, additional damages may be sought if the plaintiff shows that such damages are: (1) based on newly discovered evidence or (2) arise from intervening facts, occurring after the administrative claim was filed. The test is strictly applied and depends on whether the additional damages could reasonably have been foreseen by the plaintiff at the time the administrative claim was filed.
Section 2675(b) of the FTCA provides,
(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. (Emphasis added).
Accordingly, “a plaintiff has to meet only one of the two tests to increase the ad damnum; it is not required that the plaintiff meet both tests.” Lowry v. U.S., 958 F.Supp. 704, 710 (D. Mass. 1997).
Although the phrase “not reasonably discoverable at the time of presenting the claim” modifies only the “newly discovered evidence” exception, First Circuit courts appear to require that any “intervening facts” also be unforeseeable. In Reilly v. United States, 863 F2d 149 (1st Cir. 1988), the Court addressed both the newly discovered evidence and the intervening facts prongs of §2675(b). It held that the worsening of plaintiff’s medical condition did not constitute “newly discovered evidence” or “intervening facts” such as to justify an increase in damages above what was stated in the administrative claim, because the deterioration of plaintiff’s condition was a worst case scenario which plaintiff could reasonably have foreseen at the time the administrative claim was filed.
At trial, plaintiffs sought to recover more than the upper limit of the claim. The district court honored their entreaty, setting damages in the aggregate amount of $11,037,964. The court rested disregard of the Form 95 ceiling on its finding that:
Only after May 1985 did it become medically apparent that Heather would never be able to walk or talk, and that she would be able to see only enough to distinguish light from dark…. Given the undisputed medical impossibility of knowing the extent of Heather’s multiple disabilities at the time the administrative claim was filed, I find the experts’ subsequent confirmation that the worst possibilities had materialized to constitute “newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency …,” 28 U.S.C. subsection 2675(b).
Reilly I, 665 F.Supp. at 1011. Although we start with the premise that a determination of what constitutes “newly discovered evidence not reasonably discoverable” in any particular case is the sort of fact-specific conclusion which demands a substantial degree of deference to the trial court, we believe that the determination here was plainly erroneous.
Because the statute itself renders the state of a claimant’s knowledge (actual or constructive) at the time of presentment of the claim of decretory significance, the mechanics of a § 2675(b) inquiry must be double-barrelled: What should the party have known? When should she have known it? To be binding in this context, knowledge need not be certain. In the same vein, intelligence which serves only to bear out earlier suspicions cannot unlock the FTCA’s narrow escape hatch. Diagnoses which are no more than cumulative and confirmatory of earlier diagnoses are neither “newly discovered evidence” nor “intervening facts” for the purposes of § 2675(b). See Kielwien v. United States, 540 F.2d 676, 680–81 (4th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 491, 50 L.Ed.2d 588 (1976); Powers v. United States, 589 F.Supp. 1084, 1110 (D.Conn.1984). We agree with the Second Circuit that the statute demands a showing that “some new and previously unforeseen information came to light” between the time of filing the administrative claim and the trial on damages. O’Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 856 (2d Cir.1984). And, the newly-emergent datum must be material.
On this occasion, the information in question was neither sufficiently new, nor sufficiently unforeseen, nor sufficiently material. By the time the claim was filed, the Reillys were on notice of the global extent of Heather’s injuries and disabilities. The evidence upon which the district court relied to lift the cap was, at bottom, nothing more than “the experts’ subsequent confirmation that the worst possibilities had materialized.” Reilly I, 665 F.Supp. at 1011. Yet these very same “worst possibilities,” i.e., “that Heather would never be able to walk or talk, and that she would be able to see only enough to distinguish light from dark,” id., were present from the start. Indeed, they were at the core of appellees’ administrative claim, which alleged “seizures, blindness, profound neurological deficit” and the like as the sequelae of the harm. The mere fact that these dread consequences, feared from the beginning, had become more certain does not suffice to brand them “newly discovered.”
In this regard, the instant case bears an uncanny resemblance to Low v. United States, 795 F.2d 466 (5th Cir.1986)….
In its pertinent parameters, Low is on all fours with the case at bar. Here, as in Low, the basic severity of the child’s condition was known and recited in the claim form….
This, we think, was more than enough to put the parents on fair notice to guard against the worst-case scenario when preparing their claim. As in Low, the fact that the degree of disability was uncertain was, in and of itself, inadequate to trigger the exception to § 2675(b). To use the district court’s terminology, “[c]onfirmation that the worst possibilities had materialized,” Reilly I, 665 F.Supp. at 1011, came no closer to constituting “newly discovered evidence” than did realization of “the worst-case prognosis.” Low, 795 F.2d at 471. Like the Low court, we cannot subscribe to such a nanization of the administrative ad damnum. To so hold would be to eviscerate the statute and reduce the insertion of a monetary limit to an empty formality.
We do not categorize such a construction of the law as unduly harsh. The goal of the administrative claim requirement is to let the government know what it is likely up against…. As between prospective defendant and prospective plaintiff, the latter is in by far the better position to determine the worst-case scenario or, if uncertain, to paint the picture as bleakly as reason permits and conscience allows. If a plaintiff misjudges, as to matters known or easily deducible when her claim is filed, it seems more equitable for her to bear the burden of miscalculation than to impose it on the sovereign.…
We conclude that the district court erred in allowing plaintiffs to recover damages in excess of the cap established in their administrative claim.
863 F.2d at 171-73. (Emphasis added, footnote references omitted).
Summarizing First Circuit law, a Magistrate Judge explained,
[T]he following principles are applicable:
1. The burden of proving “newly discovered evidence” and/or “intervening facts” rests with the plaintiff.
2. The claimant is not required to be clairvoyant and is not to be charged with knowledge which neither the claimant nor medical professionals are able to discover. [See Poirier v. U.S., 745 F. Supp.23, 32 (D. Me. 1990)]
3. However, the claimant is required to use due diligence to discover those facts which are capable of ascertainment prior to filing the claim.
4. Information which is confirmatory and/or cumulative of previous diagnoses is not a basis for an increase in damages.
5. Information going to the exact nature, extent and duration of a previous diagnosis is not a basis for an increase in damages.
6. Information which “… serves only to bear out earlier suspicions” does not entitle the plaintiff to an increase in damages. Neither does the doctors’ later “confirmation that the worst possibilities had materialized.” Reilly, 863 F.2d at 172….
7. If there is evidence “to put [the claimant] on fair notice to guard against the worst-case scenario,” the claimant has the obligation, before filing a claim, to “… determine the worst case scenario, or if uncertain, to paint the picture as bleakly as reason and conscience permits.” Id. at 173.
8. If the claimant misjudges, the claimant, not the United States, bears the consequences. Id.
Lowry, 958 F.Supp.at 719 (Collings, M.J.) (Emphasis in original).
Thus, in order to justify an increase in damages above the amount stated in the administrative claim, a plaintiff must show that the deterioration in his or her medical condition could not reasonably have been anticipated, even as part of a possible worst case scenario. In a number of cases, courts in the First Circuit have held that plaintiff’s met this burden.
The Court in Del Valle Cruz v. U.S., 2017 WL 1207512, * 5 (D.P.R. 3/31/17), held that the decedent’s death, after the administrative claim was filed, constituted an intervening fact satisfying §2675(b). According to the Court,
On January 12, 2012, … Otero-Ortíz was diagnosed with Non-Hodgkin Lymphoma. Otero-Ortíz received chemotherapy and radiotherapy, but died on October 25, 2012. The immediate cause of death was advanced-stage Non-Hodgkin Lymphoma and cardiac complications caused by the chemotherapy.
On June 29, 2012, Otero-Ortíz, his wife Doris Del Valle-Cruz, and his sons—Angel Otero-Del Valle and Randy Otero-Del Valle—filed administrative claims….
In this case, defendants argue that plaintiffs have not shown any newly discovered evidence or intervening fact to justify increasing the sums they claim. In other words, they argue that Otero-Ortíz’s death was foreseeable when plaintiffs filed their administrative claims, or, in the alternative, that his death is merely cumulative or confirmatory of their original claim, the alleged cancer misdiagnosis.
The Court rejects the government’s argument. In this case, Otero-Ortíz’s death is precisely the type of “new evidence” or “intervening circumstance” that justifies a suit for an amount in excess of the sum plaintiffs claimed before the VA.
Id. at *2, 5. (Emphasis added, citations omitted).
In Kenney v. U.S. Postal Service, 298 F.Supp.2d 139 (D. Me. 2003), the Court held that an increase in damages was justified where the plaintiff did not know or have reason to know when he submitted his administrative claim that he would need surgery and ongoing physical therapy. The Court stated,
Here, the information available to the plaintiff by June 21, 2002 was not enough to “put [the plaintiff] on fair notice to guard against the worst-case scenario when preparing [his] claim,”; less than a month after the accident, he had been told only that he had a contusion and had noticed pain and swelling. He stated that he could develop arthritis or tendonitis in the area; there has been no showing that either of these conditions necessarily requires surgery or extensive physical therapy or that the plaintiff should have known that such consequences might ensue. The remaining evidence on which the defendant relies arose after the notice of claim was filed: Dr. Crute’s order of an MRI on August 30, 2002, “which led inevitably to the ultimate later surgical decision.” The defendant contends that the plaintiff was required to “suggest[ ] he was surprised by his medical course of treatment” and to amend “has administrative claim of $12,500 to permit the Postal Service to consider the now certain greater resultant injury.” None of the case law cited by the government requires a claimant relying on the exceptions provided in section 2675(b) to demonstrate that he was “surprised” in order to be entitled to the exception, and there is no reason to require such a showing. The actual information available to the claimant at the relevant time and the possible inferences to be drawn from that information are the test, not how the claimant may have reacted to subsequently-provided information.
(Citations and footnote references omitted). And in Poirier v. U.S., the Court held that §2675(b) was satisfied where “[T]he plaintiffs would have been hard pressed unless they were clairvoyant to foresee the resulting mental anguish, economic loss, and the reasonable probability of future surgical procedures resulting from the foibles of the defendant.” 745 F. Supp. 23, 32 (D. Me. 1990).
In sum, although an FTCA plaintiff usually cannot recover damages in excess of the amount stated in the administrative claim, additional damages may be sought in those few uncommon cases where the plaintiff can show that the deterioration in his or her medical condition could not reasonably have been anticipated, even as part of a possible worst case scenario.