Dickerson ex rel. Dickerson v. United StatesDickerson ex rel. Dickerson v. United States
Lawrence J. Madigan (argued), Law Office of Lawrence J. Madigan, Houston, TX, for Suzanne and Daniel Dickerson.
E. Roy Hawkens (argued), Robert S. Greenspan, U.S. Dept. of Justice, Civ. Div., App. Staff, Washington, DC, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas.
DeMOSS, Circuit Judge:
1 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 govеrnment.
BACKGROUND
2 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 cоndition 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 her child. After approximately 15 hours of labor, the obstetrician attempted to perfоrm 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.
3 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.
4 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 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.
6 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 rеcords 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 were not entitled to damages in excess of the $20 million requested in their administrative complaint.
7 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
9 The standard of review for factual determinations in a FTCA case is whether the district court‘s findings are clearly erroneous.
10 The government asserts that the Dickersons’ claims should have been limited by
11 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 clаim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.
12 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).
13 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).
14 Further, the Dickersons’ contention that the government should lose because it failed to include thе amount of the administrative claims is not supported. The district court‘s findings of fact 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 еxist in this case, an administrative claim had to be filed pursuant to
15 Now turning to the question of whether the amount in the claim limits the Dickersons’ recovery, in Low, this Court held that the question of whether damages could be increased under
16 In its findings of fact and conclusions of law, the district court articulates that it permitted the plaintiffs to exceed their 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.
17 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 ovеr 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.
19 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 оn 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 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, 279 F.3d 321 (5th Cir.2002) (stating, in a factuаlly 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.
20 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 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
[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 clаim made against it without the threat that, if it does not settle, its liability may increase substantially.
22 Low, 795 F.2d at 471; see also Lebron, 279 F.3d 321 (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 hаve failed to meet the second, objective prong 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
23 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 capаcities 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
The Awarding of Post-Judgment Interest
25 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
26 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. 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).
27 Under
CONCLUSION
28 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 seрarate 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 case so that the district court may enter a judgment consistent with this Court‘s decision.
29 VACATED and REMANDED.