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Albert v. United States Department of Army

United States District Court, W.D. Texas, San Antonio Division

September 10, 2019

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,
v.
UNITED STATES DEPARTMENT OF THE ARMY, WOUNDED WARRIOR PROJECT, INC., Defendants.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE.

         To the Honorable United States District Judge Jason K. Pulliam:

         This 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.

         All 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.

         I. Background

         This 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.)

         Plaintiffs 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.)

         Plaintiffs' 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 amendment. (Id.)

         Plaintiffs 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 review.

         II. Motion for Leave to Amend

         Plaintiffs' 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.

         The 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 standard.

         The 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. 2002).

         According 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 ...


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