Zurba, Ludmilla v. United States ( 2003 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 01-4089
    LUDMILLA ZURBA,
    Plaintiff-Appellee,
    v.
    UNITED STATES OF AMERICA,
    Defendant-Appellant.
    ____________
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 99 C 3586—Matthew J. Kennelly, Judge.
    ____________
    ARGUED MAY 24, 2002—DECIDED FEBRUARY 7, 2003
    ____________
    Before POSNER, MANION, and DIANE P. WOOD, Circuit
    Judges.
    MANION, Circuit Judge. Ludmilla Zurba sued the United
    States under the Federal Tort Claims Act after she was
    struck by an automobile driven by an FBI agent. The dis-
    trict court assessed damages at $519,666, but offset that
    amount by the $100,000 Zurba had recovered from an-
    other tortfeasor. The district court then entered judgment
    against the United States in the amount of $419,666. The
    United States appeals, arguing that Zurba’s damages
    should have been capped at $300,000—the amount she
    sought in her administrative claim. We disagree and there-
    fore AFFIRM.
    2                                                  No. 01-4089
    I.
    On the morning of January 11, 1995, Ludmilla Zurba was
    standing at the corner of Michigan Avenue and Ohio
    Street in downtown Chicago, waiting to cross the street to
    catch a bus. Before she had a chance to cross, however,
    she was struck by an automobile driven by a member of
    the FBI’s Violent Crimes Task Force; the car was propelled
    into her after colliding with two other automobiles. Zurba
    was taken to the hospital by an ambulance, where she
    underwent abdominal surgery to control internal bleed-
    ing and to repair a laceration to her kidney. Zurba re-
    mained in the hospital for eleven days. After her release
    from the hospital, Zurba was bedridden for six weeks,
    and did not return to work for approximately three more
    months.
    Nearly a year after the accident, Zurba was diagnosed
    with an obstructed bile duct, which required doctors to
    remove both the obstruction and her gall bladder. Follow-
    ing this operation, Zurba was again away from work for
    six weeks. After returning to work, she experienced upper
    abdominal pain and sudden bowel movements and, in
    April 1996, she was diagnosed with irritable bowel syn-
    drome. Throughout this time, Zurba also suffered from fear
    of being alone, fear of the dark, nightmares, and a variety
    of other anxiety-related problems.
    About 17 months after the accident, on August 6, 1996,
    Zurba filed an administrative claim with the FBI in the
    1
    amount of $300,000 under the Federal Tort Claims Act.
    The United States denied this claim. After retaining new
    counsel, in May 1999, Zurba filed suit against the United
    1
    Zurba also sued another driver, a private citizen, involved in
    the accident, and that suit was settled for $100,000.
    No. 01-4089                                                  3
    States, seeking damages in the amount of $1 million. The
    district court bifurcated the liability and damages phases
    of the trial. Following a bench trial on liability held during
    July 2000, the district court found the United States liable
    for Zurba’s injuries. The United States then filed a motion
    to limit Zurba’s damages to $300,000—the amount she
    had sought in her administrative claim. The district court
    denied the motion and ordered discovery on damages to
    close by March 30, 2001.
    A few days before discovery was set to close, Zurba
    sought psychotherapy for the first time. At the damages
    trial, Zurba then presented evidence of both her physical
    injuries and of emotional pain and suffering, including
    testimony that she suffered from an anxiety disorder and
    an adjustment disorder as the result of the January 1995
    collision. At this time, the United States renewed its mo-
    tion to limit Zurba’s recovery to the $300,000 she had
    sought in her administrative claim. The district court de-
    ferred ruling on the issue until the conclusion of trial. After
    a four-day trial on damages, the district court determined
    that Zurba suffered total damages of $519,666 and after
    reducing that amount by the $100,000 Zurba had recovered
    from the driver of one of the other cars involved in the
    accident, the district court entered judgment against the
    United States in the amount of $419,666. The district
    court also denied the government’s request to cap dam-
    ages at $300,000, reasoning that Zurba’s psychological dam-
    ages were newly discovered and/or based on intervening
    facts, and thus the Federal Tort Claims Act’s statutory cap
    did not apply. The United States appeals.
    II.
    The sole issue on appeal is whether Zurba’s damages
    are capped at the $300,000 she requested in her admin-
    4                                                No. 01-4089
    istrative claim under the Federal Tort Claims Act. Sec-
    tion 2675(a) of the Federal Tort Claims Act provides that
    before a plaintiff may file suit against the United States
    for personal injury or death, the plaintiff must have first
    presented the claim to the appropriate federal agency and
    have been denied compensation. Section 2675(b) further
    provides that:
    (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 reason-
    ably 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.
    
    28 U.S.C. § 2675
    (b) (emphasis added).
    On appeal, the United States contends that because in
    her administrative claim to the FBI Zurba only sought
    damages of $300,000, under § 2675(b) her recovery must
    be limited to that amount. Conversely, Zurba contends that
    her recovery is not limited to the amount set forth in her
    administrative claim because § 2675(b) established two
    exceptions to the statutory cap, both of which apply to her
    case.
    Although this court has yet to consider the scope of
    § 2675(b), Zurba is correct that the statute creates two
    exceptions to the general rule that a plaintiff’s recovery is
    limited to the amount requested in an administrative
    claim. Specifically, § 2675(b) provides that the cap does
    not apply “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
    where the plaintiff presents “proof of intervening facts,
    relating to the amount of the claim.” 
    28 U.S.C. § 2675
    (b). The
    No. 01-4089                                                   5
    plaintiff has the burden of showing that her case fits with-
    in one of these exceptions. Spivey v. United States, 
    912 F.2d 80
    , 85 (4th Cir. 1990). In this case, the district court con-
    cluded that Zurba satisfied that burden by showing that her
    “psychiatric disorders and her emotional distress consti-
    tuted ‘newly discovered evidence’ and/or ‘intervening
    facts’ following the presentation of her administration
    claim . . . [and] therefore [her damages for those claims]
    are not subject to the $300,000 cap established by the
    claim.” This court reviews the district court’s finding of
    “newly discovered evidence” and “intervening facts” under
    § 2675(b) for clear error. Allgeier v. United States, 
    909 F.2d 869
    , 877 (6th Cir. 1990); Michels v. United States, 
    31 F.3d 686
    ,
    689 (8th Cir. 1994).
    On appeal, the government contends that the district
    court committed clear error in finding that newly discov-
    ered evidence or intervening facts justified a damage
    award in excess of Zurba’s administrative claim because
    Zurba knew of her emotional injuries, or, at a minimum,
    her condition was reasonably discoverable at the time
    she filed her administrative claim. In support of its posi-
    tion, the government cites to trial testimony that estab-
    lished that four months before she filed her administrative
    claim, her doctor told her that stress management and
    psychotherapy would help her recover from her physical
    injuries. The government also relies on Zurba’s own testi-
    mony that immediately after the accident and while she
    was still in the hospital, she suffered from fear of the dark,
    fear of being left alone and nightmares, and that following
    her return to work, she remained afraid to walk alone on
    Chicago streets and had a need for constant companion-
    ship. The government then points to the district court’s
    finding that “Zurba has experienced these emotional and
    psychological symptoms in greater or lesser degree since
    6                                                  No. 01-4089
    January 1995,” which was 17 months before she filed her
    administrative claim. Thus, the government maintains,
    under the district court’s own findings, Zurba knew of
    her emotional injury prior to filing her claim and there-
    fore she cannot satisfy the “newly discovered evidence”
    or “intervening facts” exceptions to § 2675(b)’s damage cap.
    While it is true that Zurba knew that she suffered from
    some emotional injury prior to the filing of her claim, the
    district court did not commit clear error in concluding
    that newly discovered evidence and/or intervening facts
    existed. Several reasons underlie our conclusion. First,
    Zurba presented substantial evidence that her fears and
    anxieties had all become significantly worse only after she
    had filed her claim with the FBI. An unforeseen worsening
    of a known injury may constitute “newly discovered
    evidence” or “intervening facts” under § 2675(b), as the
    Eighth Circuit held in Michels, 
    31 F.3d at 688
    . In Michels, the
    plaintiff, who had suffered various injuries to his hip and
    leg after his motorcycle was struck by a federal employee’s
    vehicle, sued for damages in excess of the amount that
    he had previously presented in his agency claim because
    he had since developed arthritis and necrosis. Even though
    the plaintiff had known that his injuries carried with them
    the possibility of arthritis and necrosis, he did not factor
    those possibilities into his administrative claim because
    at the time of the filing he had not shown signs of either.
    The Eighth Circuit held that the plaintiff was entitled to
    recover damages in excess of the original claimed amount
    because “a known injury can worsen in ways not reason-
    ably discoverable by the claimant or his or her treating
    physician, and . . . such ‘newly discovered evidence’ or
    ‘intervening facts,’ if convincingly proved, can warrant
    § 2675(b) relief.” Id. at 688. Similarly, in this case, the dis-
    trict court could reasonably conclude that Zurba’s emo-
    No. 01-4089                                                 7
    tional injuries worsened in a way that was not reasonably
    discoverable and thus constituted “newly discovered evi-
    dence” or “intervening facts” for purposes of the excep-
    tions to the statutory cap.
    The Fifth Circuit has also addressed this issue in Low
    v. United States, 
    795 F.2d 466
     (5th Cir. 1986), holding that
    evidence which merely bears on the precision of the vic-
    tim’s prognosis is not newly discovered evidence. In Low,
    the plaintiff knew that their child suffered from cerebral
    palsy, a seizure disorder, and was blind, deaf and men-
    tally retarded. The only unknown concerned the specific
    limitations these medical problems would place on the
    claimant, such as whether he would ever be able to go to
    school, walk, feed himself or make any developmental
    progress. The Fifth Circuit held that the fact that the
    Lows did not know “the exact nature, extent and duration
    of each recognized disability,” did not prevent § 2675(b)’s
    damage cap from applying. Id. at 471. Significantly, in
    rejecting the plaintiffs’ reliance on the “newly discovered
    evidence” and “intervening facts” exceptions to § 2675(b)’s
    cap, the Fifth Circuit noted that “[t]here is no evidence
    that these conditions became worse or that other condi-
    tions developed after the claim was filed.” Id.
    The Fifth Circuit has reiterated this reasoning more
    recently in Dickerson v. United States, 
    280 F.3d 470
    , 476 (5th
    Cir. 2002) (holding that a plaintiff could not increase the
    damages sought in an administrative claim because the
    plaintiff could have reasonably obtained the information
    on the specific injuries that would be needed to make out
    the worst-case scenario when the original claim was made),
    and Lebron v. United States, 
    279 F.3d 321
    , 331 (5th Cir 2002)
    (holding that plaintiffs could not recover damages in ex-
    cess of $20 million sought in their administrative claim,
    where the basic severity of a child’s condition was known
    8                                                  No. 01-4089
    and recited in the administrative claim). In Lebron, the
    court specifically noted that “Low makes clear that new
    information cannot surmount the bar created by §2675(b)
    if the information merely concerns the precision with
    which the nature, extent, or duration of a claimant’s con-
    dition can be known.” Id. at 330.
    Similarly, the First Circuit in Reilly v. United States, 
    863 F.2d 149
     (1st Cir. 1988), explained that “[i]ntelligence which
    serves only to bear out earlier suspicions cannot unlock
    FTCA’s narrow escape hatch.” 
    Id. at 171
    . Rather, “[d]iag-
    noses which are no more than cumulative and confirma-
    tory of earlier diagnoses are neither ‘newly discovered evi-
    dence’ nor ‘intervening facts’ for the purposes of § 2675(b).”
    Id. Thus, in Reilly the court held that the plaintiff was
    barred by § 2675(b) from recovering damages in excess
    of the amount sought in the administrative claim because
    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.” Id. at 172. Specifically, in that case the plain-
    tiff’s administrative claim alleged “seizures, blindness,
    profound neurological deficit,” and at trial the plain-
    tiff attempted to recover damages in excess of the admin-
    istrative claim because she “would never be able to walk
    or talk, and [that] she would be able to see only enough
    to distinguish light from dark.” However, as the court
    noted, those possibilities were known from the start, and
    therefore could not constitute newly discovered evi-
    dence. Id.
    In contrast to these cases, in which the plaintiffs’ original
    administrative complaint acknowledged the injury at
    issue, Zurba’s case is distinguishable in that her severe
    emotional injuries which surfaced in the years following
    the accident were not included in the original claim.
    No. 01-4089                                                   9
    Zurba’s claim described the accident and stated that as a
    result, Zurba had “suffered severe internal injuries” con-
    sisting of a kidney laceration and an injury to her gall
    bladder. It made no mention of any emotional or psychi-
    atric effects of the accident. Additionally, in this case the
    district court described the increase in the severity of her
    emotional distress as a psychiatric disorder that was
    caused by the accident but which is separate and distinct
    from her physical injuries. Moreover, as noted above, the
    district court heard evidence that Zurba’s condition be-
    came worse in the years after she filed her claim with the
    FBI. And as the Fifth Circuit recognized in Lebron, “infor-
    mation can be newly discovered evidence or an interven-
    ing fact, however, if it sheds new light on the basic sever-
    ity of the claimant’s condition—that is, if it materially
    differs from the worst-case prognosis of which the claimant
    knew or could reasonably have known when the claim
    was filed.” Lebron, 
    279 F.3d at 330
     (emphasis added). That
    is what we have here.
    In fact, Zurba’s case is more analogous to the several
    cases in which the courts have concluded that the plain-
    tiff was exempt from the statutory damages cap because
    of intervening facts or newly discovered evidence. For
    instance, in United States v. Alexander, 
    238 F.2d 314
     (5th
    Cir. 1956), the Fifth Circuit held that because “the plain-
    tiff did not know when his administrative claim was pre-
    sented that his shoulder would not heal without surgery,”
    the plaintiff was entitled to recover damages in excess of
    the amount sought in the administrative complaint. 
    Id. at 318
    . Similarly, in Spivey v. United States, 
    912 F.2d 80
    , 86 (4th
    Cir. 1990), the Fourth Circuit held that because medical
    records showed that the plaintiff had not developed symp-
    toms of tardive dyskinesia until after the administrative
    claim was filed, damages were not capped by the amount
    10                                                No. 01-4089
    sought in that claim. See also, Cole v. United States, 
    861 F.2d 1261
    , 1263 (11th Cir. 1988) (plaintiff allowed recovery in
    excess of administrative claim where he only learned
    after filing his administrative complaint that his condition
    was permanent); Fraysier v. United States, 
    766 F.2d 478
    , 481
    (11th Cir. 1985) (plaintiff allowed to recover damages in
    excess of administrative claim because plaintiff believed
    his condition would improve, but later determined his
    injuries were permanent).
    Moreover, in this case, in addition to the increased
    severity of her emotional symptoms, the evidence estab-
    lished that Zurba did not know that she suffered from two
    psychiatric conditions (an anxiety disorder and an ad-
    justment disorder) until nearly five years after she had
    filed her claim with the FBI. The district court could have
    reasonably concluded that these new diagnoses consti-
    tuted “newly discovered evidence” or “intervening facts”
    under § 2675(b). See Michels, 
    31 F.3d at 688-89
    . See also,
    Spivey, 
    912 F.2d at 86
     (holding that development of tardive
    dyskinesia after the filing of the administrative claim
    constituted “newly discovered” evidence, thus exempting
    the plaintiff from the cap of § 2675(b)); Allgeier, 
    909 F.2d at 878-79
     (holding that, because evidence demonstrated
    that plaintiff’s condition worsened significantly after the
    filing of the administrative claim, intervening fact war-
    ranted awarding a judgment in excess of the administra-
    tive claim).
    Furthermore, Zurba’s diagnosis of anxiety disorder and
    adjustment disorder followed two incidents that occurred
    in March 2001. In both of those incidents, while waiting
    for a train, Zurba had what a layman might call a panic
    attack, triggered by her belief that a male passenger waiting
    for the train was going to kill her. At trial, Zurba’s doctor,
    Dr. Hartman, explained that what Zurba suffered in these
    No. 01-4089                                              11
    incidents are called “precipitant events” and that indi-
    viduals like Zurba who are suffering from psychiatric
    disorders may not know they have any problems until
    such a precipitant event occurs. Based on this testimony,
    the district court could have reasonably concluded that
    these incidents in March 2001 constituted intervening
    facts and thus justified exempting Zurba from § 2675(b)’s
    cap.
    The government argues in response that because Zurba
    was offered psychological help while in the hospital and
    urged by her sister and boyfriend to seek counseling,
    she could have reasonably discovered her psychiatric con-
    dition prior to filing her complaint. While that may be a
    legitimate view of the evidence, the district court could
    (and did) reasonably conclude that Zurba could not rea-
    sonably discover her psychiatric illness until she had
    suffered the precipitant events, described above, in March
    2001.
    This view was further confirmed in the district court’s
    opinion because in the claim Zurba filed with the FBI,
    she did not mention any emotional injury, but only stated
    that she “suffered severe internal injuries.” Thus, al-
    though the government’s view is not untenable, neither
    is the district court’s, and where two views of the evi-
    dence are equally permissible, a fact-finder’s choice be-
    tween them cannot constitute clear error. Anderson v.
    Bessemer City, 
    470 U.S. 564
    , 575 (1985). See Allgeier, 
    909 F.2d at 878-79
     (discussing conflicting evidence as to wheth-
    er worsening of medical condition constituted an “inter-
    vening fact” under § 2675(b), and concluding that district
    court did not commit clear error in finding that the stat-
    utory cap did not apply). Accordingly, the district court
    was not clearly erroneous in concluding that Zurba did
    not know of and could not have reasonably discovered
    12                                               No. 01-4089
    her anxiety and adjustment disorders by the time she
    2
    filed her administrative claim.
    In reaching this conclusion, we are not saying, as the
    dissent suggests, that Zurba is entitled to avoid the $300,000
    cap merely because her doctor gave a name to the emo-
    tional distress Zurba was already suffering. We also agree
    with the dissent that Zurba is not entitled to exceed the
    $300,000 cap to the extent the damages were attributable
    to the emotional distress from which Zurba was suffering
    at the time she filed her administrative claim. Rather,
    Zurba is entitled to exceed the $300,000 cap because the
    district court found that Zurba “had no reasonable basis
    to believe that her symptoms would persist, let alone
    worsen significantly as the Court has found they have
    done since the time of her administrative claim.” Based on
    the record, these findings were not clearly erroneous.
    The dissent also takes issue with the district court’s
    calculation of damages, concluding that the bulk of the
    $219,666 in damages in excess of the $300,000 cap must
    be lopped off. Initially, we disagree with the dissent’s view
    that $219,666 is at issue. In this case, the district court
    determined that Zurba’s total damages were $519,666,
    but only entered judgment against the government in the
    amount of $419,666 because Zurba had recovered $100,000
    from another tortfeasor. Thus, the government is only being
    held liable for $119,666 in excess of the $300,000 Zurba
    requested in her federal tort claim.
    2
    Throughout we have treated the “newly discovered evidence”
    and “intervening facts” exceptions in tandem. While these are
    two distinct exceptions, we discuss them together in this case
    because it is irrelevant whether Zurba’s later-diagnosed psy-
    chiatric conditions are considered “newly discovered evi-
    dence” or “intervening facts.”
    No. 01-4089                                                 13
    Admittedly, the government could have argued that
    Zurba’s $100,000 recovery from the other tortfeasor should
    reduce the $300,000 claim cap. But significantly, the gov-
    ernment did not make this argument. In fact, in its
    reply brief, the government states “Section 2675(b) means
    what it says, and the district court was wrong to award
    $119,000 in excess of the administrative claim.”
    Moreover, the Fifth Circuit in Dickens v. United States, 
    545 F.2d 886
    , 893 (5th Cir. 1977), concluded that the award
    cap of § 2675(b) only acts to limit the amount of the ulti-
    mate claim against the government and not the entirety
    of the damage award. Specifically, in Dickens, the plain-
    tiff had filed an administrative claim in the amount of
    $2,300,000. However, at trial, the district court assessed
    total damages at $2,500,000, but then reduced that amount
    by half, since the plaintiff had already recovered $1,250,000
    from a joint tortfeasor. The district court then entered judg-
    ment against the government in the amount of $1,250,000.
    While acknowledging that § 2675(b) caps the amount of
    recovery from the government, the court in Dickens con-
    cluded that that cap applied to the amount of judgment
    against the government—not the total amount of damages
    the plaintiff could prove. See also, Martinez v. United States,
    
    780 F.2d 525
    , 530-31 (5th Cir. 1986) (holding that the cap
    of § 2675(b) applies to “the amount that a plaintiff seeks
    to recover from the government,” and thus where “com-
    parative fault principles are applicable under the rele-
    vant substantive law, the plaintiff should recover either
    his pro rata share of his proven damages or the amount
    of his administrative claim, whichever is less”). Given
    that the underlying purpose of § 2675(b) is to put the
    government on notice of its maximum potential exposure
    to liability, we find Dickens and Martinez persuasive and
    accordingly conclude that § 2675(b)’s cap on foreseeable
    damages applies only to the amount Zurba is seeking
    14                                              No. 01-4089
    to recover from the government, namely $419,666, and not
    the total proven damages of $519,666. In other words, the
    government may not use the $100,000 set-off from a non-
    government source to reduce the $300,000 cap.
    As to the $119,666 excess, the district court did not com-
    mit clear error in concluding that those damages were
    unforeseeable. While the district court did not spell out
    the dollar amounts directly attributable to new, unfore-
    seen injuries, the government did not challenge the
    court’s calculation on appeal. In any event, the district
    court specifically assessed $19,000 in damages for future
    psychiatric care, and given the district court’s finding that
    Zurba could not have reasonably known that she suf-
    fered from two psychiatric disorders at the time she filed
    her complaint, that $19,000 is not subject to the $300,000
    cap. Likewise the damages the district court assessed for
    the increase in severity of Zurba’s condition were unfore-
    seeable, and, as the dissent notes, that totaled $80,000 (the
    $20,000 increase x 4 years). These unforeseeable dam-
    ages total $99,000, which leaves an additional $20,666
    in damages above the $300,000 cap. As noted earlier, the
    district court also found that Zurba reasonably believed
    her emotional problems would end after she recovered
    from her physical injuries, but that instead they lasted
    longer than reasonably anticipated. Because her emotional
    injuries lasted longer than reasonably foreseeable, Zurba
    was entitled to recover damages attributable to the pro-
    longed duration, even to the extent those damages ex-
    ceeded the statutory cap. While the district court did not
    identify when Zurba would have reasonably believed her
    emotional injuries would cease, the district court’s award
    maintained her damage level at $20,000 per year for 2.67
    years, increased the award to $40,000 per year for the next
    four years, and then awarded her a total of $25,000 for the
    last two years. However, according to the district court’s
    No. 01-4089                                             15
    reasoning, over that eight-year-plus time frame, Zurba
    thought she would get better. But she did not. Therefore,
    to the extent her damage award remained constant over
    the years, a portion of those damages were unforeseeable.
    What portion is not exactly clear from the district court’s
    opinion. Nonetheless, given that the government did not
    challenge the specifics of the calculation, and given that
    the district court could have reasonably concluded that
    Zurba suffered $20,666 in damages based on the unfore-
    seeable duration of her condition, we conclude that the
    district court did not commit clear error in exceeding the
    $300,000 statutory cap by $119,666.
    III.
    In sum, in August 1996 when Zurba filed her administra-
    tive claim with the FBI, she sought damages only for her
    physical injury, and any emotional distress she suffered
    at that time increased dramatically after the complaint
    was filed. Moreover, Zurba was not diagnosed with an
    anxiety and adjustment disorder until nearly five years
    after the filing of the complaint, and then only after two
    incidents brought to a head her psychological injuries.
    Under these circumstances, the district court did not com-
    mit clear error in concluding that newly discovered evi-
    dence and/or intervening facts justified a damage award
    in excess of the $300,000 sought in her administrative com-
    plaint. Accordingly, we AFFIRM.
    16                                                 No. 01-4089
    POSNER, Circuit Judge, dissenting. Before one may bring
    a suit against the government under the Federal Tort
    Claims Act, one must file an administrative claim with the
    agency alleged to have committed the tort, 
    28 U.S.C. § 2675
    (a), and a suit under the Act “shall not be instituted
    for any sum in excess of the amount of the claim pre-
    sented 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.” 
    28 U.S.C. § 2675
    (b). It is hard to see the point of this rule, since
    there is no limit on what the plaintiff may ask for in the
    administrative claim. The cases (echoing the legislative
    history) say that the purpose is, by informing the govern-
    ment of its maximum exposure, to enable the govern-
    ment to make intelligent settlement proposals. Allgeier v.
    United States, 
    909 F.2d 869
    , 878 (6th Cir. 1990); Reilly v.
    United States, 
    863 F.2d 149
    , 173 (1st Cir. 1988). In less
    Aesopian terms, the purpose is to truncate the settlement
    range in the government’s favor. However, for the rule’s
    purpose, however it is stated, actually to be accomplished,
    a cost of some sort would have to be imposed on the
    plaintiff who asked for the sky. None is, unless the gov-
    ernment is less likely, out of a kind of spite, to negotiate
    a reasonable settlement with a hog, which has not been
    suggested. So probably the only or at least the main effect
    of the rule is to create a trap for the unwary. Into that
    trap the plaintiff’s original lawyer fell when he had her
    ask in the administrative claim for only $300,000. At trial
    he asked the judge to award her $2 million. The judge
    awarded $519,666, then subtracted $100,000 which had
    been paid by a joint tortfeasor. (This adjustment had noth-
    ing to do with the ceiling; the purpose was to prevent the
    plaintiff from being overcompensated.) Thus, the judge
    No. 01-4089                                                  17
    allowed the ceiling to be pierced, precipitating the gov-
    ernment’s appeal to us. His action violated the statute; we
    should reverse, not affirm. No case cited by the majority
    suggests otherwise.
    When the administrative claim was filed, 17 months
    after the very serious automobile accident that gave rise
    to it, the plaintiff had been suffering throughout that en-
    tire period continuous, undiminished, and severe emo-
    tional distress that the accident caused or triggered (it
    doesn’t matter which, given the “eggshell skull” rule of
    tort damages, Stoleson v. United States, 
    708 F.2d 1217
    , 1220-
    21 (7th Cir. 1983)). By the time the case was tried, five years
    later, her symptoms had worsened. In a part of the district
    court’s decision that is not challenged by the government,
    the judge valued the plaintiff’s emotional distress at $20,000
    per year for the first two years and eight months after the
    accident and $40,000 per year for the next four years, which
    were the four years leading up to the trial, plus $25,000 “for
    the next two years, the period in which it is reasonable to
    expect that Zurba’s conditions will be resolved by [psychiat-
    ric] treatment.” The total of the emotional-distress items
    is thus $238,333. The difference between this figure and the
    total damages award of $519,666 ($281,333 = $519,666!
    $238,333) is composed of other items of damages, all con-
    ceded to have been foreseeable at the time she filed her
    administrative claim but within the $300,000 ceiling that
    the claim established. If the $300,000 constraint is fully
    binding, $219,666 in damages, the bulk of the emotional-
    distress items, must be lopped off.
    As a detail, the plaintiff is certainly not entitled to pierce
    the ceiling to recover damages for the emotional distress
    that she suffered before her symptoms worsened. I noted
    in the preceding paragraph that the judge’s damages
    award for emotional distress jumped from $20,000 to
    18                                                No. 01-4089
    $40,000 per annum two years and eight months after the
    accident. That is the date on which the judge estimated
    that the plaintiff’s symptoms worsened. There is no basis
    for supposing that the symptoms that she experienced
    before then—before the unexpected worsening—were
    unforeseeable. That amount is $53,333 ($20,000 × 2.67),
    which when added to the damages that the judge assessed
    for items other than emotional distress (the $281,333)
    yields a total of $334,666, which exceeds the $300,000 ceil-
    ing. The majority avoids this conclusion by adding the
    $100,000 paid by the joint tortfeasor to the $300,000 ceiling.
    This procedure is contrary to the language of the statute,
    which provides that a suit “shall not be instituted for any
    sum in excess of the amount of the claim presented to the
    federal agency.” The plaintiff asked for more than $300,000,
    which she could do only if she fell within the statutory
    exception, which she clearly did not with respect to $34,666
    of the amount that she sought and was awarded above
    $300,000. I am not a literal interpreter of statutes, but there
    should be a reason—in fact a good, a compelling reason—
    to ignore statutory language. The majority has offered no
    reason.
    The district judge made no adjustment of the sort just
    suggested not because he was cavalier about statutory
    language (leaving that to the court of appeals), but because
    he attached no significance to the fact that the plaintiff’s
    symptoms had worsened since her filing of the administra-
    tive complaint. He said “the question is whether Zurba
    reasonably realized or should have realized that [her
    symptoms were the result of psychiatric conditions diag-
    nosed after the administrative claim was filed, namely an
    anxiety disorder and an adjustment disorder] at the time
    of her claim . . . . Zurba reasonably believed these to be the
    normal effects of having gone through what she had gone
    through, and not signs or symptoms of emotional distress
    No. 01-4089                                               19
    or a psychiatric disorder. The Court finds that Zurba has
    demonstrated that she neither knew nor should have
    known as of August 1996 [the month in which her admin-
    istrative claim was filed] that she was suffering from a
    psychiatric condition or from emotional distress result-
    ing from the accident.” It cannot be correct to say that she
    did not know then that “she was suffering from . . . emo-
    tional distress resulting from the accident.” No one suffers
    “emotional distress” without knowing it; it is a form of
    pain and to say “I was in pain but didn’t know it” is
    nonsense. Zurba knew when she filed the administrative
    claim that she was in (emotional) pain and that it was the
    result of the accident; and whether it was a “normal” or
    an abnormal consequence of the accident, it was compen-
    sable; the more normal it was, the more compensable it
    was. A whiplash injury is a normal consequence of a rear-
    end collision; and of course it is a compensable conse-
    quence. She had no excuse for not claiming damages that
    she had already suffered.
    An even deeper problem with the district court’s anal-
    ysis is its unexamined assumption that a diagnosis is an
    intervening fact or a form of newly discovered evidence,
    within the meaning of section 2675(b), even if it does not
    affect the estimation of damages. Until she was diagnosed
    with an anxiety and adjustment disorder, the plaintiff did
    not know she had a psychiatric disorder but knew she
    was experiencing emotional distress (it is, to repeat, not
    an unconscious state), for which, as her lawyer must have
    known, damages can be awarded with or without a psychi-
    atric label. The significance of the diagnosis was that it
    indicated that her symptoms were likely to persist for a
    longer time, and perhaps be more severe, than she and her
    lawyer had thought. I am not disposed to quarrel with the
    district judge’s finding that the plaintiff was not unreason-
    able in failing to see a psychiatrist earlier. It is common,
    20                                               No. 01-4089
    indeed I should think typical and even normal, to incur
    emotional distress in the wake of a severe personal injury,
    and even if it persists for months the victim would be
    unlikely to think the accident had triggered a psychiatric
    condition that might take on a life of its own long after
    the physical effects of the accident had dissipated. A
    minor puzzle is why the district judge thought that the
    plaintiff’s psychiatric disorder would be completely cured
    within two years of the end of the trial, especially since
    some of the physical effects of the accident, notably her
    irritable bowel syndrome, are expected to persist for the
    rest of her life.
    The fact that a condition is not expected to be perman-
    ent is no reason not to treat it. Increasingly Americans
    do seek treatment for even transitory emotional problems,
    and this has led some courts in tort cases to impose a
    duty to mitigate emotional injuries by analogy to the
    duty to mitigate physical injuries (the tort counterpart,
    traditionally called “avoidable consequences,” Outboard
    Marine Corp. v. Babcock Industries, Inc., 
    106 F.3d 182
    , 184
    (7th Cir. 1997); Barron v. Ford Motor Co. of Canada Ltd., 
    965 F.2d 195
    , 199 (7th Cir. 1992), to the contract doctrine of
    mitigation of damages). See Eugene Kontorovich, Com-
    ment, “The Mitigation of Emotional Distress Damages,” 
    68 U. Chi. L. Rev. 491
    , 507-08, 512 (2001). But mitigation is
    not in issue here; and there is still a sufficient stigma to
    seeking psychiatric treatment, and sufficient uncertainty
    about its efficacy, to make many, perhaps most, people
    prefer to suffer what they reasonably believe to be a tempo-
    rary condition of emotional distress (or to self-medicate)
    than to see a psychiatrist about it. But whether a condition
    is correctly diagnosed has nothing to do with its compen-
    sability. United States v. Kubrick, 
    444 U.S. 111
     (1979), holds
    that a claim under the Federal Tort Claims Act accrues
    when the victim knows of the existence and cause of his
    No. 01-4089                                                 21
    injury, not when he learns whether it was committed in
    circumstances that created liability. The plaintiff could
    obtain damages for emotional suffering regardless of its
    diagnostic label. The fact that she was suffering emo-
    tional distress when she filed her administrative claim
    meant that she could pierce the $300,000 ceiling only to the
    extent that the emotional distress got unforeseeably worse
    or that there was an unforeseeable increase in its likely
    duration. See Richardson v. United States, 
    841 F.2d 993
    , 999,
    amended on an unrelated point, 
    860 F.2d 357
     (9th Cir. 1988);
    O’Rourke v. Eastern Air Lines, Inc., 
    730 F.2d 842
    , 856 (2d Cir.
    1984). This fundamental point the district judge missed; my
    colleagues repeat his error.
    To see the error more clearly, suppose that a person were
    in an accident as a result of which he incurred an unre-
    imbursed medical expense of $10,000 and an excruciat-
    ing pain in his neck that he attributed to whiplash and
    that lasted a week. Suppose his lawyer filed an administra-
    tive claim under the Federal Tort Claims Act mistakenly
    asking for only $10,000 because the lawyer had forgotten
    about his client’s pain, for which he could reasonably have
    asked an additional $2,000 in damages. Later the plaintiff
    discovers that the pain had not been the result of a minor
    (soft-tissue) whiplash injury, as he had first thought;
    rather, the accident had seriously damaged one of the
    vertebrae in his neck, and the damage had caused the pain;
    and while the pain had now ceased, an operation would
    be required to repair the vertebra in order to prevent fur-
    ther deterioration. The plaintiff could seek additional dam-
    ages measured by the cost of the operation, but he could not
    seek them plus $2,000 (or any other amount) in damages for
    the pain merely because he had a better sense of the precise
    causal path connecting it to the accident. In effect, the
    district court in our case said that such a plaintiff would be
    able to add the cost of the earlier pain even though that
    22                                             No. 01-4089
    was a known quantity when she filed her administrative
    claim. She knew she had emotional distress; she knew it
    was caused by the accident; all she didn’t know was that
    the accident had caused a psychiatric condition that had
    caused her the distress that she felt.
    The case should be remanded for a determination of
    how much if any of Zurba’s damages for the emotional
    distress that she suffered after the administrative claim
    was filed were unforeseeable then. Those are the only
    damages that can be used to pierce the $300,000 ceiling. The
    additional damages that she suffered as a consequence
    of the government’s tort she can recover, if at all, only
    from her lawyer. This is one of the rare cases in which
    a claim for litigation malpractice would not be bedeviled
    by the difficulty of proving a causal relation between
    the lawyer’s mistake and the outcome of the litigation. (I
    call it the lawyer’s mistake, but I suppose it is possible
    that Zurba did not reveal the full extent of her emotional
    distress to her lawyer, and it is even conceivable that
    underestimating damages might be a way of extracting a
    quick settlement from the government, though in this
    case the government made no settlement offer at all.)
    Whatever part of the $419,666 damages award must be
    subtracted by virtue of the $300,000 ceiling is the loss
    inflicted on Zurba by her lawyer’s mistake in specifying
    such a low amount of damages for an accident known
    to have inflicted severe, permanent physical injuries
    coupled with almost a year and a half of severe emotional
    distress with no end in sight.
    No. 01-4089                                           23
    A true Copy:
    Teste:
    _____________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—2-7-03
    

Document Info

Docket Number: 01-4089

Judges: Per Curiam

Filed Date: 2/7/2003

Precedential Status: Precedential

Modified Date: 9/24/2015

Authorities (19)

ryan-dickerson-a-minor-by-and-through-his-parents-daniel-dickerson-and , 280 F.3d 470 ( 2002 )

United States v. Grover Alexander , 238 F.2d 314 ( 1956 )

shelley-low-in-the-representative-capacity-as-guardian-of-the-estate-and , 795 F.2d 466 ( 1986 )

prod.liab.rep. (Cch) P 14,855 Outboard Marine Corporation v.... , 106 F.3d 182 ( 1997 )

Joseph E. Cole, Cross-Appellee v. United States of America, ... , 861 F.2d 1261 ( 1988 )

tierney-a-orourke-public-administrator-of-queens-county-new-york-as , 730 F.2d 842 ( 1984 )

Donna Reilly, Etc. v. United States , 863 F.2d 149 ( 1988 )

Vincent William Michels v. United States , 31 F.3d 686 ( 1994 )

Santiago Martinez, Et Ux v. United States , 780 F.2d 525 ( 1986 )

Antonio Lebron v. United States of America, United States ... , 279 F.3d 321 ( 2002 )

Treamenda Spivey Richard Spivey v. United States of America,... , 912 F.2d 80 ( 1990 )

kenneth-richardson-plaintiff-appelleecross-appellant-v-united-states-of , 860 F.2d 357 ( 1988 )

maryanna-dickens-individually-and-as-next-friend-of-anna-rachel-dickens , 545 F.2d 886 ( 1977 )

kenneth-richardson-plaintiff-appelleecross-appellant-v-united-states-of , 841 F.2d 993 ( 1988 )

Tina BARRON, Plaintiff-Appellant, v. FORD MOTOR COMPANY OF ... , 965 F.2d 195 ( 1992 )

Richard Allgeier, Maria D. Boldrick, Intervening v. United ... , 909 F.2d 869 ( 1990 )

Helen J. Stoleson v. United States , 708 F.2d 1217 ( 1983 )

United States v. Kubrick , 100 S. Ct. 352 ( 1979 )

Anderson v. City of Bessemer City , 105 S. Ct. 1504 ( 1985 )

View All Authorities »