United States District Court, W.D. Texas, San Antonio Division
FRANKIE D. ALBERT, AS PARENTS AND NEXT FRIEND OF JANE DOE, A MINOR; AND PHYLIS ALBERT, AS PARENTS AND NEXT FRIEND OF JANE DOE, A MINOR; Plaintiffs,
UNITED STATES DEPARTMENT OF THE ARMY, WOUNDED WARRIOR PROJECT, INC., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES
Honorable United States District Judge Jason K. Pulliam:
Report and Recommendation concerns Plaintiffs' Reurged
Motion for Leave to File Third Amended Complaint with
Evidence in Support [#57] and Defendant Wounded Warrior
Project, Inc.'s Motion for Summary Judgment [#73]. Also
before the Court are the following responses and replies to
the motions: United States' Opposition to Motion for
Leave to File Third Amended Complaint [#67]; Plaintiffs'
Reply to Defendant United States' Opposition to
Plaintiffs' Reurged Motion for Leave to File Third
Amended Complaint [#69]; Plaintiffs' Response to
Defendant Wounded Warrior Project, Inc.'s Motion for
Summary Judgment [#74]; Defendant Wounded Warrior Project,
Inc.'s Reply to Plaintiffs' Response to
Defendant's Motion for Summary Judgment [#75]. Plaintiffs
have also moved to file a Sur-Reply to Defendant Wounded
Warrior Project, Inc.'s response [#76]. The undersigned
will grant the motion and has considered the sur-reply in
making its recommendation to the District Court.
dispositive pretrial matters in this case have been referred
to the undersigned for disposition pursuant to Western
District of Texas Local Rule CV-72 and Appendix C [#58]. The
undersigned has authority to enter this recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons
set forth below, it is recommended that Plaintiffs'
motion for leave to amend [#57] be dismissed without
prejudice to being renewed at trial on a full evidentiary
record and the motion for summary judgment [#73] filed by
Defendant Wounded Warrior, Inc. be denied.
case arises out of personal injuries sustained by Shyanna
Albert on November 9, 2013, when she was 13 years old.
According to the Second Amended Complaint before the Court,
Shyanna was injured while riding in a U.S. Army vehicle
during a Veteran's Day Parade sponsored by the Wounded
Warrior Project, Inc. (“WWP”) when a steel bar
fell on her head and knocked her unconscious. (Second Am.
Compl. [#54] at ¶¶ 5-7.) Shyanna's parents,
Frankie and Phylis, filed this action as parents and next
friends of Shyanna, then a minor, against Defendants United
States Department of the Army (“U.S. Army”) and
WWP, alleging that their negligence caused Shyanna's
injuries. (Id. at ¶¶ 8-12.)
allege that Defendants worked together in providing the truck
as a parade vehicle and were negligent in inviting Shyanna
and her family to ride in the parade in an Army truck with an
unsecured heavy bar above the heads of the passengers.
(Id. at ¶¶ 6-8.) According to Plaintiffs,
the steel bar at issue was a part of a frame intended to
support a canvas-type cover for the sides and top of the
truck bed. (Id. at ¶ 6.) The canvas cover had
been removed for the parade; the frame could have been
removed but was not. (Id.) The force of the impact
of the falling bar allegedly caused Shyanna to sustain severe
and permanent head injuries. (Id. at ¶ 5.)
claim against the U.S. Army arises under the Federal Tort
Claims Act, 28 U.S.C. § 2671, et seq. (Id. at
¶ 1.) On June 12, 2015, Plaintiffs filed an
administrative claim against the U.S. Army seeking $40, 000
in damages. (Second Am. Compl. [#54] at ¶ 13; Admin. Cl.
[#41-1].) Two years later, Plaintiffs filed their Original
Complaint, alleging that Shyanna's injuries were much
more severe than originally known. (Orig. Compl. [#1] at
¶ 13.) After Plaintiffs filed a First Amended Complaint
as a matter of right, Plaintiffs moved for leave to file a
Second Amended Complaint to increase Shaynna's damages as
to the FTCA claim from $40, 000 to $3.75 million, among other
amendments. (Mtn. for Leave [#39].) The District Court
granted the motion for leave as to various unopposed
amendments, which included the addition of Shyanna as a
Plaintiff because she had reached the age of majority. (Order
[#51].) The District Court denied the motion for leave as to
the increased damages, but the denial was without prejudice
to refiling the motion with evidence to support the
filed their Second Amended Complaint and renewed motion for
leave to amend their pleadings on the same day. WWP
subsequently moved for summary judgment on Plaintiffs'
claim of negligence. The motions are ripe for the Court's
Motion for Leave to Amend
Reurged Motion for Leave to File Third Amended Complaint
[#57] again asks the Court for leave to file an amended
pleading that increases the damages requested in this case
from the $40, 000 contained in the FTCA administrative claim
to $3.75 million.
FTCA prohibits the filing of any civil action “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.” 28 U.S.C. § 2675(b).
Accordingly, to obtain leave to amend their pleadings,
Plaintiffs must meet two standards. They must satisfy Rule 15
of the Federal Rule of Civil Procedure, which governs the
amendment of pleadings, and they must fit their case within
the exception to the FTCA's prohibition set forth in
Section 2675(b). Because the statutory standard is more
stringent than Rule 15, the Court first considers this
Fifth Circuit has adopted the worst-case prognosis test in
evaluating whether a plaintiff's claim of increased
damages falls within the statutory exception to the
FTCA's damages cap. See Low v. United States,
795 F.2d 466 (5th Cir. 1986) (reversing judgment in part and
reducing damage award from $3.5 million to the $1.275
requested in plaintiff's administrative claim).
“Requiring the plaintiff to guard against a worst-case
scenario in preparing his claim gives the Government full
notice of its maximum potential liability in the case.”
Lebron v. United States, 279 F.3d 321, 330 (5th Cir.
to Low, the question of whether damages can be increased
under Section 2675(b) presents a twofold issue. 795 F.2d at
470. A court must first subjectively evaluate “whether
the specific injuries were known at the time the
administrative complaint was made.” Dickerson ex
re. Dickerson v. United States,280 F.3d 470, 476 (5th
Cir. 2002). The court then must objectively evaluate
“whether the plaintiff could have made out its
worst-case scenario based on the basic severity of the
injuries that were known” at that time. Id.
“[N]ew 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 condition can be known.”
Lebron, 279 F.3d at 330. There is ...