Wilson v. United States of America, No. 1:2012cv00824 - Document 25 (D. Md. 2012)
Court Description: MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 12/28/2012. (aos, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SAVANNAH WILSON, : Plaintiff, : v. : UNITED STATES OF AMERICA, : Defendant. Civil Action No. GLR-12-824 : MEMORANDUM OPINION Now pending before the Court is a Motion filed by the Plaintiff, Savannah Wilson ( Wilson ), to amend the ad damnum clause in her Amended Complaint. The Defendant, United States of America, has filed an Opposition thereto. Motion is ripe for disposition. (ECF No. 24). The A hearing is unnecessary. See Local Rule 105.6 (D.Md. 2011). For the reasons outlined below, the Motion to Amend the Ad Damnum Clause Based on New Evidence (ECF No. 19) will be denied. I. PROCEDURAL HISTORY This matter arises out of an alleged instance of medical malpractice in the delivery of Wilson s son, L.W., on April 15, 2009,1 which led to permanent injury of his left arm. Wilson alleges States 1 that Dr. Ziad Emil Abou Haidar, a United Plaintiff s Motion states that the delivery date is April 13, 2009 (see Pl. s Mot. to Amend [ Pl. s Mot. ] at 1), but the reports attached to the Motion and Defendant s Opposition list the date as April 15, 2009 (see Pl. s Mot. Ex. Nos. 1-3; Def. s Opp n to Pl. s Mot. at 3, ECF No. 24). employee, caused the damage by failing to exercise the appropriate standard of care during delivery. On April 8, 2011, Wilson filed an administrative claim and supporting documents with the United States Department of Health and Human Services Claims Office ( HHS ), seeking compensation for the alleged medical malpractice by Dr. Haidar. administrative claim sought $2,080,355.00 in damages. The Wilson calculated this sum certain partially based upon life-care and vocational expert reports she received on April 7 and 8, 2011, respectively. HHS received Wilson s claim on April 11, 2011, and denied it on October 4, 2011. the instant action. 2012, alleges 2 As a result of the denial, Wilson filed The original Complaint, filed on March 16, one-count of medical negligence against the Defendant pursuant to the Federal Tort Claims Act ( FTCA ), 28 U.S.C. §§ 1346(b), 2401(b) & 2671-80 (2012). No. 1). Complaint count. On September adding lack of 25, 2012, Wilson informed consent (See Am. Compl., ECF No. 17). 2 (See Compl., ECF filed as an an Amended additional Both Complaints seek On April 23, 2010, Wilson first filed suit against Dr. Haidar and the Western Maryland Hospital System Corporation in the Circuit Court for Alleghany County, Maryland. The United States removed the action to this Court on September 20, 2010. On September 24, 2010, the United States filed a Motion to Dismiss for failure to exhaust administrative remedies. Wilson subsequently filed a Notice of Dismissal, which was approved by this Court on October 1, 2010. 2 money damages totaling the administrative $2,080,355.00, along with interest and costs. claim amount of Wilson now seeks to increase this amount to $3,497,545.07 based upon an economist report she obtained in the course of discovery. II. ANALYSIS Wilson argues that she should be entitled to increase the ad damnum clause in her Amended Complaint based upon her economic expert s evaluation of future economic losses as well as past medical bills and non-economic damages. The economic expert report, dated October 4, 2012, relies upon the life-care and vocational expert reports Wilson received prior to filing the administrative claim. Wilson contends that, based upon her receipt so of the administrative reports filing close deadline, she to the was April unable 13, to 2011, have an economist evaluate and/or discover her economic losses prior to submitting a claim. As a result, Wilson argues, the economic expert report constitutes newly-discovered evidence for the purpose of allowing her to seek damages in excess of the amount sought in her administrative claim, pursuant to 28 U.S.C. § 2675(b) (2012). Defendant counters that the expert report and/or opinion is not newly discovered evidence under § 2675(b). Specifically, the Defendant argues that the economic expert report, in and of itself, is not newly-discovered 3 evidence because the underlying facts forming the basis of the opinion were known to the Plaintiff prior administrative claim. to, and during the pendency of, the Further, Defendant argues that Wilson did exercise the opportunity to amend her administrative claim and seek a higher amount in damages through submission of the economist s report while the administrative claim was pending. This Court agrees. Prior to bringing suit against the United States in federal court, a claimant must first exhaust his or her administrative remedies agency. by presenting a claim to the See 28 U.S.C. § 2675(a) (2012). appropriate federal A critical element of an administrative claim is that the claim for money damages must be in a sum certain. Kokotis v. U.S. Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000). One of the goals of an administrative claim requirement is to provide the government with notice of its maximum possible exposure to liability and to allow the government to be in a position to make intelligent settlement decisions. Reilly v. United States, 863 F.2d 149, 173 (1st Cir. 1988) (quoting Martinez v. United States, 780 F.2d 525, 530 (5th Cir. 1986)). There are two exceptions to this sum certain requirement as correctly pointed out by the parties. The first is when the amount increased is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to 4 the federal agency, or when the plaintiff can allege and prove intervening facts related to the amount of a claim. § 2675(b) (2012). 28 U.S.C. The plaintiff bears the burden of showing that one or both of these exceptions apply. Kielwien v. United States, 540 F.2d 676, 680 (4th Cir. 1976). Applying the facts to the aforementioned law in this case, Wilson fails to meet her burden. First, the life-care plan and vocational report, as well as the economist report, fail to present any newly discovered evidence. Wilson possessed all of the information, including the raw data which supported the economist s report, prior to the submission of the administrative claim and certainly during its pendency. As a result, all of the alleged increased damages could reasonably have been ascertained before the administrative claim was filed. Furthermore, Wilson presents no evidence of any intervening fact which would justify allowing the amendment to be granted. The Court also agrees with the Defendant that equitable considerations favor denying the Motion. The regulations allow a claimant to amend his or her administrative claim at any time prior to final action by the individual agency. 35.2(b) (2012); 28 C.F.R. § 14.2(c) (2012). provide a satisfactory explanation or See 45 C.F.R. § Wilson fails to support for any intervening fact or any evidence that the information by the economist was not reasonably discoverable. 5 Wilson also fails to provide any explanation as to why she failed to amend her administrative claim while it was pending with the agency. Her failure to amend negated any notice of the increase in damages and knowledge of the potential economic exposure. is an essential purpose behind the administrative This notice exhaustion requirement of the FTCA. III. CONCLUSION For the aforementioned reasons, Plaintiff s Motion to Amend Ad Damnum Clause Based on New Evidence is hereby DENIED. No. 19). (ECF A separate Order follows. Entered this 28th day of December, 2012 /s/ ____________________________ George L. Russell, III United States District Judge 6
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