Dickerson v. United States , 280 F.3d 470 ( 2002 )

Revised February 1, 2002
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-50505
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,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
January 16, 2002
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
1
The placenta is the organ of respiration for the unborn
child.
2
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
2
A normal human’s blood has a pH of 7.35-7.45 though it is
not uncommon for a newborn baby to have a pH of 7.2. Lower numbers
indicate that the blood is more acidic than normal.
3
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
4
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
5
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
6
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
3
The administrative claims amount is also stated in the
government’s proposed findings of fact.
7
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 been
discovered at the time the plaintiff filed its administrative
claim? Id. Second, do these facts represent newly discovered
evidence or intervening facts for the purposes of § 2675(b)? Id.
The second prong of the analysis has several requirements. “First,
the evidence must support the increase in the prayer over the
administrative claim.” Id. “Next, the allegedly newly discovered
evidence or intervening facts must not have been reasonably capable
of detection at the time the administrative claim was filed.”4 Id.
Therefore, it seems there is first a subjective test as to whether
the specific injuries were known at the time the administrative
complaint was made. Then there is an objective test as to whether
the plaintiff could have made out its worst-case scenario based on
the basic severity of the injuries that were known. Reilly v.
United States, 863 F.2d 149, 172-73 (1st Cir. 1988).
In its findings of fact and conclusions of law, the district
court articulates that it permitted the plaintiffs to exceed their
4
Though this language seems confusingly similar to the
first prong, the court in Reilly v. United States, 863 F.2d 149,
172-73 (1st Cir. 1988), has interpreted this to mean that the two
prongs establish a subjective and an objective test.
8
administrative claims because at the time that claim was filed,
“the full extent and ramifications of the minor’s brain damage were
not known. . . . Plaintiffs had not been able to obtain a complete
set of the medical records describing the minor’s birth at the time
the administrative claim was filed.” This finding really only
speaks to the first prong, however, and does not shed any light on
the question of whether the plaintiffs knew the basic severity of
their son’s injuries and if they could have made out a worst-case
scenario from this knowledge.
Though it seems that the district court was not clearly
erroneous in its finding that the Dickersons did not have knowledge
as to the specific injuries, it is clear that they could have
reasonably obtained this information based on the basic severity of
Ryan’s injuries, and so the second prong is not met. Many factors
work against the Dickersons and in favor of the government on this
point. One of the elements of the second prong is that “the
evidence must support the increase in the prayer over the
administrative claim.” Low, 795 F.2d at 470. A comparison of the
complaints compared to the administrative claims does not support
the increase in the present case.
The Dickersons’ administrative claims were for $20 million.
In their first complaint, the Dickersons requested damages in this
same amount to compensate for Ryan’s irreversible brain damage and
the neurologic sequlae of such brain damage. This was consistent
9
with their administrative claims which stated Ryan’s injuries as
being severe, permanent and irreversible neurologic sequelae and
permanent irreversible brain damage. The Dickersons then filed a
motion for leave to file an amended complaint stating that they
were entitled to ask for an amount over the administrative claims
because they now knew that Ryan’s injuries would make him severely
mentally retarded and cause him to suffer severe cerebral palsy and
cortical blindness. The Dickersons were granted leave, but, in
their amended complaint, the injuries and elements of damages
sections were virtually the same as in the first complaint that was
consistent with the administrative claims. The only difference was
that the Dickersons were now asking for a total of $55 million.
Yet nothing cited in their leave to amend or in their amended
complaint justifies a $35 million increase over the amount asked
for in the administrative claims that is for the same injuries.
The second prong also contains an element that the “allegedly
newly discovered evidence or intervening facts must not have been
reasonably capable of detection at the time the administrative
claim was filed.” Id. This element proves fatal to the
Dickersons’ attempt to increase their claims over their
administrative claims based on a combination of facts in the
record. First, based on the amount asked for in the administrative
claims ($20 million), it would appear that the Dickersons must have
10
had some inkling of the severity of Ryan’s injury.5 Second, on the
administrative claims made by the Dickersons, they indicated that
they were seeking relief due to Ryan’s severe, permanent and
irreversible neurologic sequelae and permanent irreversible brain
damage. See, e.g. Lebron v. United States, ___ F.3d ___ (5th Cir.
2002) (stating, in a factually similar case, that the worst-case
scenario could have been made based on the severity known and
described in the administrative claims). Also, on June 1, 1998,
Dr. Eltman 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 stating 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.
The Dickersons indicate that they never saw this letter, but
it is clear from the record that they maintained continuous contact
with Dr. Eltman from the time of Ryan’s birth and throughout the
trial. It certainly was possible for them to ask Dr. Eltman to
give them his prognosis of Ryan so that they could make out the
“worst-case scenario” for their administrative claims. The
Dickersons defend that when dealing with these type of injuries to
5
Though this fact by itself is not and should not be
determinative, combined with the other facts in the record it
displays that the Dickersons knew the basic severity of Ryan’s
injury and should have thus made out their worst-case scenario when
filing the administrative claims.
11
an infant, it is impossible to give a reasonable prediction of the
severity of the injuries sustained.6 This argument fails, however,
because it relies on the very reasoning that § 2675(b) is intended
to avoid. In Low, this Court enunciated the policy behind the
administrative cap, stating:
[I]f the exact nature, extent and duration of each
recognized disability must be known before
§ 2675(b) will be given effect, that section will
be rendered useless; and the government will be
unable to evaluate any claim made against it
without the threat that, if it does not settle, its
liability may increase substantially.
Low, 795 F.2d at 471; see also Lebron, ___ F.3d ___ (noting that
the provision encourages settlements). It is apparent from the
record that the Dickersons were at all times since his birth aware
of the basic severity of their son’s injuries. There is no reason
why they could not have taken this into account when making their
administrative claim so as to envision their “worst-case scenario.”
As the Dickersons have failed to meet the second, objective prong
6
The Dickersons also contend that there were delays in
getting the medical record that prevented them from knowing the
extent of Ryan’s injuries. The timing of when Ryan’s medical
records were requested or received is unclear. It appears that a
formal written request for medical records concerning Ryan was not
made by the Dickersons’ attorney until June 24, 1998 (the same day
the administrative claims were filed). The receipt of such records
is irrelevant, however, in light of the above facts supporting a
finding that the Dickersons could have objectively made out their
“worst-case scenario” in their initial administrative claims. Even
if the Dickersons did not request the medical records until filing
the claims, they still could have amended their administrative
claims after filing at any time before bringing suit pursuant to 28
C.F.R. § 14.2(c) (1998).
12
of Low, they are precluded from enhancing their claims for damages
beyond the amount asked for in their administrative claims.
The Guardian Ad Litem Fees as Costs
The government contends that it was error for the district
court to assess all of the guardian ad litem’s fees as costs to the
government because the guardian ad litem was acting as an attorney
when he rendered some services. The district court has broad
discretion in determining the appropriateness of an award of
attorneys’ fees and costs. Gibbs v. Gibbs, 210 F.3d 491, 500 (5th
Cir. 2000). Therefore, the court should review a district court’s
award or denial thereof for an abuse of discretion. Id.; duPont v.
Southern Nat’l Bank of Houston, Tex., 771 F.2d 874, 882 (5th Cir.
1985). Under Gibbs, the only part of a guardian ad litem’s
expenses that are taxable as costs are those expenses related to
his role as the guardian ad litem. Gibbs, 210 F.3d at 507.
“[W]here the same person acts in the capacities as both a minor’s
guardian ad litem and as his attorney ad litem, only the person’s
expenses in the former role are taxable as costs under Fed.R.Civ.P.
54(d).” Id. at 506.
The major issue, therefore, is whether the guardian ad litem
went beyond his court appointed role and acted as an attorney. The
government cites to the record on appeal numerous times in support
of this contention. However, even if the guardian did participate
13
in the case, this could be to adequately protect the minor’s
interests as is consistent with his role as guardian ad litem.
Under Gibbs, the activities that can be attributed to being the
attorney ad litem should not be taxed as costs so it becomes
necessary to determine what activities should be attributed to what
role. It does not appear that this point was adequately developed
at the trial court and therefore, on remand an evidentiary hearing
should be held to determine what, if any, activities were
attributable to the guardian ad litem acting as an attorney ad
litem. Lebron, ___ F.3d at ___.
The Awarding of Post-Judgment Interest
The government never addressed this issue in its original
appellate brief and only raises the issue in its response brief.
The government claims this is permissible because the issue is
jurisdictional in nature and, as such, can be raised at any time.
The government contends that interest should only accrue from the
date of filing of the transcript of the judgment with the Secretary
of the Treasury in accordance with 31 U.S.C. § 1304(b)(1)(A).
Though the government is raising this for the first time in
its response brief, they are correct in asserting that this is
permissible. “Interest is recoverable against the United States
only when specifically provided for by statute because only by
statute can the United States waive its sovereign immunity.”
14
Transco Leasing Corp. v. United States, 992 F.2d 552, 554 (5th Cir.
1993) (quoting Reminga v. United States, 695 F.2d 1000, 1001-02
(6th Cir. 1982)). In a suit under the FTCA, recovery can only be
had to the extent that Congress has waived its sovereign immunity.
Lucas v. United States, 807 F.2d 414, 417 (5th Cir. 1986). Waiver
of sovereign immunity, therefore, is a jurisdictional prerequisite
to being sued. This court has stated that the government’s
sovereign immunity, being a jurisdictional prerequisite, may be
asserted at any stage of the proceedings. Bank One, Tex., N.A. v.
Taylor, 970 F.2d 16, 34 (5th Cir. 1992).
Under 28 U.S.C. § 1961(b), interest shall be compounded daily
to the date of payment except as provided in § 1304(b) of Title 31.
Section 1304(b) authorizes interest to accrue when the judgment of
the district court is filed with the Secretary of the Treasury, and
it ceases to accrue on the day before the day the mandate of
affirmance is issued by a court of appeal. Section 1304 applies to
post-judgment interest in FTCA cases because § 1304 lists 28 U.S.C.
§ 2414 as one of the statutes covered thereby and § 2414 is the
statutory authority for payment of judgments against the United
States. Lucas, 807 F.2d at 423. Therefore, the government is
correct in its assertion that the interest should not accrue until
such time as the judgment was filed.
CONCLUSION
15
Having carefully reviewed the record of this case and the
parties’ respective briefing and for the reasons set forth above,
we conclude that the district court clearly erred in allowing the
Dickersons to recover more than the amount asked for in their
administrative claims. The district court’s judgment must
therefore be vacated and the case remanded to the district court
for entry of a new judgment which does not exceed the $20 million
asked for by the Dickersons in their administrative claims under
the Federal Tort Claims Act. Upon remand, the district court shall
reapportion this sum in a manner so as to indicate the separate
amounts to be recovered by the mother and father individually, the
separate amounts to be awarded to the mother and father in trust
for future medical care for Ryan, and the separate amounts to be
awarded in trust for the benefit of Ryan. This judgment should
likewise be revised to provide for the accrual of interest from the
date the final judgment is filed with the Secretary of the
Treasury. Finally, in regard to the issue of whether the fees and
expenses of the guardian ad litem are taxable as costs, we hold
that, under Gibbs, only those activities that were performed in the
attorney’s role as guardian ad litem can be taxed as costs. As
this issue was not developed in the district court, we remand it so
that the district court may hold an evidentiary hearing to
determine what portion, if any, may be recovered as costs of court.
We therefore VACATE the district court’s judgment and REMAND the
16
case so that the district court may enter a judgment consistent
with this Court’s decision.
VACATED and REMANDED.
17