Salas v. United States of America et al, No. 3:2012cv00337 - Document 39 (S.D. Cal. 2013)
Court Description: ORDER Granting Plaintiff's 18 Motion to Amend and Augment Plaintiff's Complaint. Plaintiff shall file and serve his amended complaint no later than December 27, 2013. Signed by Judge John A. Houston on 12/2/2013. (knb)(jrd)
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Salas v. United States of America et al Doc. 39 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 JORGE SALAS, Plaintiff, v. UNITED STATES OF AMERICA, and DOES 1 through 20, Defendants. 14 15 ) ) ) ) ) ) ) ) ) ) Civil No. 12cv0337 JAH(BLM) ORDER GRANTING PLAINTIFF’S MOTION TO AMEND AND AUGMENT PLAINTIFF’S COMPLAINT [DOC. # 18] INTRODUCTION 16 17 Currently pending before this Court is the motion to amend and augment the 18 instant complaint filed by plaintiff Jorge Salas (“plaintiff”). The motion has been fully 19 briefed by the parties. After a careful consideration of the pleadings and relevant exhibits 20 submitted, and for the reasons set forth below, this Court GRANTS plaintiff’s motion. 21 BACKGROUND 22 The instant complaint stems from a traffic accident that occurred on May 18, 2011, 23 in which plaintiff’s vehicle collided with Border Patrol Agent Filadelfo Santos’ on duty 24 vehicle. Plaintiff sustained multiple injuries to his lower right extremity, requiring surgery. 25 Plaintiff filed a Federal Tort Claims Act (“FTCA”) Form 95 on July 13, 2011,1 three 26 months after the incident, claiming $2,500,000.00 in personal injury damages based on 27 1 28 Defendants claim the operative date for a Form 95 claim is the date the federal agency receives the form, which in this case was July 15, 2011. See Doc. # 23 at 3 n. 1. There is no issue regarding timeliness of the filing or presentation of the claim form so this issue will not be addressed. 12cv0337 Dockets.Justia.com 1 plaintiff’s anticipated full recovery and ability to ambulate on the leg, and on his being 2 able to return to full time work within six months. 3 Plaintiff did attempt to return to work on a limited basis in 2012 but his recovery 4 did not proceed as well as expected. Plaintiff developed severe chronic pain in the lower 5 leg and complex neuropathy in the foot and ankle along with post-traumatic arthritis and 6 sublar joint and right tibular neuropathy. Further surgery was required. Although the 7 prognosis after this surgery was that plaintiff would be able to ambulate after several 8 months and return to work in early 2013, this did not happen. In Spring 2013, plaintiff 9 was diagnosed with Complex Regional Pain Syndrome and his treating physicians, as well 10 as retained experts from both parties, opined plaintiff needed an amputation of the right 11 lower leg below the knee, which has since taken place. 12 Plaintiff filed the instant complaint on February 8, 2012. Defendant filed an 13 answer to the complaint on April 17, 2012. On May 31, 2012, plaintiff filed his motion 14 seeking leave to amend his complaint. Opposition to the motion was filed on July 12, 15 2013 and plaintiff’s reply brief was filed on July 22, 2013. The motion was subsequently 16 taken under submission without oral argument. See CivLR 7.1(d.1). DISCUSSION 17 18 1. Legal Standard 19 a. 20 The filing of an amended complaint after a responsive pleading has been filed may 21 be allowed by leave of court. Fed.R.Civ.P. 15(a). Rule 15(a) provides in pertinent part: 22 25 A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend within 20 days after it is served. Otherwise, a party may amend the party's pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. 26 The Supreme Court has instructed lower courts to heed the language of Rule 15(a) 27 to grant leave freely when justice requires. Howey v. United States, 481 F.2d 1187, 1190 28 (9th Cir. 1973). Because Rule 15(a) mandates that leave to amend should be freely given 23 24 Leave to Amend 2 12cv0337 1 when justice so requires, the rule is to be interpreted with “extreme liberality.” United 2 States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). 3 Granting leave to amend rests in the sound discretion of the trial court. 4 International Ass’n of Machinists & Aerospace Workers v. Republic Airlines, 761 F.2d 5 1386, 1390 (9th Cir. 1985). This discretion must be guided by the strong federal policy 6 favoring the disposition of cases on the merits. DCD Programs Ltd. v. Leighton, 833 F.2d 7 183, 186 (9th Cir. 1987). Because Rule 15(a) favors a liberal policy, the nonmoving party 8 bears the burden of demonstrating why leave to amend should not be granted. Genetech, 9 Inc. v. Abbott Laboratories, 127 F.R.D. 529 (N.D. Cal. 1989). 10 However, even though leave to amend is generally granted freely, it is not granted 11 automatically. See Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 12 2002). Four factors are considered when a court determines whether to allow amendment 13 of a pleading. These are prejudice to the opposing party, undue delay, bad faith, and 14 futility. See Forsyth v. Humana, 114 F.3d 1467, 1482 (9th Cir. 1997); DCD Programs, 15 833 F.2d at 186; see also Foman v. Davis, 371 U.S. 178, 182 (1962). 16 These factors are not equally weighted; the possibility of delay alone, for instance, 17 cannot justify denial of leave to amend. DCD Programs, 833 F.2d at 186; Morongo Band 18 of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). The single most 19 important factor is whether prejudice would result to the nonmovant as a consequence of 20 the amendment. William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 21 F.2d 1014, 1053 (9th Cir. 1981). A motion to amend may also be denied if the new cause 22 of action would be futile. See Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). 23 A proposed amendment is futile only if no set of facts can be proved under the 24 amendment that would constitute a valid claim. Miller v. Rykoff-Sexton, Inc., 845 F.2d 25 209, 214 (9th Cir. 1988). 26 // 27 // 28 // 3 12cv0337 1 b. Amendments under the FTCA 2 The United States, as a sovereign, is immune from suit except to the extent it 3 consents to be sued. See United States v. Mitchell, 445 U.S. 535, 538 (1980). The 4 court’s jurisdiction is defined by the terms of the sovereign’s consent. See United States 5 v. Sherwood, 312 U.S. 584, 586 (1941). A waiver of sovereign immunity must be 6 unequivocally expressed. See Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 7 1982). The party suing the “United States bears the burden of pointing to such an 8 unequivocal waiver of immunity.” Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 9 1983). The FTCA provides the exclusive remedy for torts committed by employees of the 10 United States acting within the scope of their employment. 28 U.S.C. §§ 1346, 11 2671-2680. Under the FTCA, a claim for damages filed in federal court may not exceed 12 the amount sought in the underlying adminstrative claim filed with the appropriate federal 13 agency. 28 U.S.C. § 2675(b). 14 Section 2675(b) states that: 15 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. 16 17 18 19 28 U.S.C. § 2675(b). Thus, under the FTCA, an amendment to the amount of damages 20 may only be granted if newly discovered evidence or intervening facts relating to the 21 amount of the claim is presented. 22 discovered evidence concerns evidence existing at the time the claim was filed but was not 23 discoverable then; intervening facts concerns evidence of facts arising after the filing the 24 claim. Lowry v. United States, 958 F.Supp. 704, 710 (D. Mass. 1997). The burden of 25 proof is on plaintiff to demonstrate he meets either of these exceptions. Salcedo-Albanez 26 v. United States, 149 F.Supp.2d 1240, 1243 (S.D.Cal. 2001). Id. These two exceptions are distinct. Newly 27 The FTCA does not require plaintiffs to “know[] what the doctors could not tell 28 [them].” Fraysier v. United States, 766 F.2d 478, 481 (11th Cir.1985). “[W]hether the 4 12cv0337 1 plaintiff is seeking an increase under the rubric of ‘newly discovered evidence’ or 2 ‘intervening facts,’ one of the key issues is foreseeability. If the condition was reasonably 3 foreseeable at the time the claim was filed, an increase will not be allowed. On the other 4 hand, if it was not ... [then] an increase may be allowed.” Lowry, 958 F.Supp. at 711. An 5 objective standard is applied in determining whether a plaintiff satisfies one of the two 6 exceptions to the FTCA.. See Michels v. United States, 31 F.3d 686, 689 (8th Cir.1994); 7 Richardson v. United States, 841 F.2d 993, 999 (9th Cir.1988) (remanding matter to 8 district court to determine whether injuries were “reasonably foreseeable” at the time 9 plaintiff filed his administrative claim). 10 2. Analysis 11 Plaintiff seeks to amend his complaint and augment his FTCA claim form to seek 12 damages in the amount of $10,000,000.00. Plaintiff points out that his condition has 13 significantly deteriorated since the time he filed his FTCA claim in 2011. Doc. # 18 14 at 11. In fact, plaintiff claims his condition and prognosis now is significantly different 15 than what was known to his healthcare providers and himself when the July 13, 2011 16 FTCA claim was filed. Id. at 13. Plaintiff further points out his injuries, including 17 amputation, are permanent and were not only unanticipated but were unthinkable at the 18 time he filed his FTCA claim. Id. Thus, plaintiff contends this newly discovered evidence 19 and intervening facts relating to his diagnosis and prognosis supports an increase in the 20 amount of damages sought in his original administrative claim. Id. 21 In opposition, defendants contend that plaintiff was aware he may ultimately 22 require an amputation at the time he filed his claim in 2011, pointing to the pre-surgery 23 waiver notations in the Sharp Memorial Hospital medical records where plaintiff 24 underwent surgery in May 2011. See Doc. # 23 at 8. Specifically, defendants point to 25 plaintiff’s consent to surgery following discussions with medical staff about the risks of 26 surgery, including neuropathic pain, chronic pain and nerve damage. Id. (citing Doc. 27 # 23, Exhs. 1, 3). Defendants explain that, because plaintiff was warned of worst case 28 scenarios such as amputation and chronic pain, it was his burden to account for them 5 12cv0337 1 when he filed his administrative claim. Id. (citing Low v. United States, 795 F.2d 466, 2 471 (5th Cir. 1986)). 3 Defendants assert that any claim for depression or post traumatic stress 4 psychological injuries were reasonably foreseeable given plaintiff’s medical records which 5 contain a history of recurrent major depression, dreams and fears regarding the accident, 6 and notations concerning depression, nervousness, anxiety and insomnia. Id. (citing Doc. 7 # 23, Exhs. 3, 5, 6). Defendants contend plaintiff’s psychological damages claim was 8 reasonably foreseeable given his past history of recurrent psychological issues. Id. In 9 addition, defendants contend they will be prejudiced if plaintiff is allowed leave to amend, 10 arguing that plaintiff’s motion undercuts the administrative claims procedures upon which 11 Congress authorized a very limited waiver of sovereign immunity. Id. at 10. 12 In reply, plaintiff points out that “[n]owhere, even in the pre-surgery consent 13 disclosure, did any medical provider disclose or state to [plaintiff] that he could possibly 14 have the lower right leg amputated.” Doc. # 27 at 4. Plaintiff contends defendants ignore 15 the standard adopted by the Ninth Circuit in determining if there are grounds to allow 16 amendment to FTCA claims which focuses primarily on what the plaintiff was aware of 17 at the time of the filing of the FTC claim. Id. (citing Richardson, 841 F.2d at 999). 18 Plaintiff argues that the diagnosis of changed or new medical conditions after the FTCA 19 claim was filed has been found to be “newly discovered evidence” sufficient to allow the 20 court to grant an increase in the amount stated on the Form 95 claim pursuant to 29 21 U.S.C. § 2675(b). Id. at 4-5. Plaintiff notes that courts consistently hold plaintiffs are 22 not charged with “‘knowing what the doctors could not tell [them].’” Id. at 5 (quoting 23 Fraysier, 766 F.2d at 481). Plaintiff further notes it has been held that injuries which 24 remain permanent “‘obviously warrant more damages than temporary ones,’ and [thus] 25 have allowed for an increase in the claim amounts” on that basis. Id. (quoting Fraysier, 26 766 F.2d at 481). 27 Plaintiff contends that, here, where plaintiff’s injuries resulted in a permanent 28 condition that is worse than what plaintiff was aware of at the time of the FTCA claim 6 12cv0337 1 filing and where plaintiff has developed a new condition that was not, and could not have 2 been, diagnosed at the time the FTCA claim was filed, meets the criteria for allowing an 3 increase in the amount of damages claimed. Id. at 5-6. Plaintiff also contends that 4 plaintiff’s history of medical complications is an intervening fact that fits the FTCA 5 exception allowing plaintiff to increase his claimed amount. See id. at 6-10. Lastly, 6 plaintiff points out defendants’ own experts have analyzed the claims of plaintiff and their 7 reports, valuation of damages and conclusions all anticipate plaintiff will require 8 amputation. Id. at 10. Thus, plaintiff argues defendants cannot claim they will suffer 9 prejudice if the claim amount is increased. Id. 10 This Court’s review of the record reflects that plaintiff has presented newly 11 discovered evidence and intervening facts sufficient to support his request for an increase 12 in the damages amount for his FTCA claim. This Court is unconvinced, based on the 13 medical record presented here, that a reasonable person would have foreseen the 14 possibility of amputation, given the fact that plaintiff’s prognosis after his first surgery was 15 that he was expected to fully recover, be able to ambulate and could return to full time 16 work. Even after he underwent further surgery in 2012, plaintiff’s prognosis was good, in 17 that it was anticipated he would be fully ambulatory and able to work after several 18 months. Then, when plaintiff was diagnosed with Complex Regional Pain Syndrome, 19 which culminated in the necessity that his leg be amputated, it was not, in this Court’s 20 view, reasonably foreseeable, thereby constituting intervening facts supporting an 21 amendment. This Court also agrees with plaintiff that no prejudice to defendants will 22 result by allowing plaintiff to increase his damages claim. Accordingly, this Court finds 23 plaintiff has met his burden of demonstrating there was newly discovered evidence and 24 intervening facts sufficient to allow an increase in the claimed amount of damages in this 25 case. 26 // 27 // 28 // 7 12cv0337 CONCLUSION AND ORDER 1 2 Based on the foregoing, IT IS HEREBY ORDERED that: 3 1. claim [doc. # 18] is GRANTED; and 4 5 2. Plaintiff shall file and serve his amended complaint no later than December 27, 2013. 6 7 Plaintiff’s motion to amend and augment his complaint and administrative Dated: December 2, 2013 8 JOHN A. HOUSTON United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 12cv0337
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