In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4089
LUDMILLA ZURBA,
Plaintiff-Appellee,
v.
UNITED STATES OF AMERICA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 3586—Matthew J. Kennelly, Judge.
____________
ARGUED MAY 24, 2002—DECIDED FEBRUARY 7, 2003
____________
Before POSNER, MANION, and DIANE P. WOOD, Circuit
Judges.
MANION, Circuit Judge. Ludmilla Zurba sued the United
States under the Federal Tort Claims Act after she was
struck by an automobile driven by an FBI agent. The dis-
trict court assessed damages at $519,666, but offset that
amount by the $100,000 Zurba had recovered from an-
other tortfeasor. The district court then entered judgment
against the United States in the amount of $419,666. The
United States appeals, arguing that Zurba’s damages
should have been capped at $300,000—the amount she
sought in her administrative claim. We disagree and there-
fore AFFIRM.
2 No. 01-4089
I.
On the morning of January 11, 1995, Ludmilla Zurba was
standing at the corner of Michigan Avenue and Ohio
Street in downtown Chicago, waiting to cross the street to
catch a bus. Before she had a chance to cross, however,
she was struck by an automobile driven by a member of
the FBI’s Violent Crimes Task Force; the car was propelled
into her after colliding with two other automobiles. Zurba
was taken to the hospital by an ambulance, where she
underwent abdominal surgery to control internal bleed-
ing and to repair a laceration to her kidney. Zurba re-
mained in the hospital for eleven days. After her release
from the hospital, Zurba was bedridden for six weeks,
and did not return to work for approximately three more
months.
Nearly a year after the accident, Zurba was diagnosed
with an obstructed bile duct, which required doctors to
remove both the obstruction and her gall bladder. Follow-
ing this operation, Zurba was again away from work for
six weeks. After returning to work, she experienced upper
abdominal pain and sudden bowel movements and, in
April 1996, she was diagnosed with irritable bowel syn-
drome. Throughout this time, Zurba also suffered from fear
of being alone, fear of the dark, nightmares, and a variety
of other anxiety-related problems.
About 17 months after the accident, on August 6, 1996,
Zurba filed an administrative claim with the FBI in the
1
amount of $300,000 under the Federal Tort Claims Act.
The United States denied this claim. After retaining new
counsel, in May 1999, Zurba filed suit against the United
1
Zurba also sued another driver, a private citizen, involved in
the accident, and that suit was settled for $100,000.
No. 01-4089 3
States, seeking damages in the amount of $1 million. The
district court bifurcated the liability and damages phases
of the trial. Following a bench trial on liability held during
July 2000, the district court found the United States liable
for Zurba’s injuries. The United States then filed a motion
to limit Zurba’s damages to $300,000—the amount she
had sought in her administrative claim. The district court
denied the motion and ordered discovery on damages to
close by March 30, 2001.
A few days before discovery was set to close, Zurba
sought psychotherapy for the first time. At the damages
trial, Zurba then presented evidence of both her physical
injuries and of emotional pain and suffering, including
testimony that she suffered from an anxiety disorder and
an adjustment disorder as the result of the January 1995
collision. At this time, the United States renewed its mo-
tion to limit Zurba’s recovery to the $300,000 she had
sought in her administrative claim. The district court de-
ferred ruling on the issue until the conclusion of trial. After
a four-day trial on damages, the district court determined
that Zurba suffered total damages of $519,666 and after
reducing that amount by the $100,000 Zurba had recovered
from the driver of one of the other cars involved in the
accident, the district court entered judgment against the
United States in the amount of $419,666. The district
court also denied the government’s request to cap dam-
ages at $300,000, reasoning that Zurba’s psychological dam-
ages were newly discovered and/or based on intervening
facts, and thus the Federal Tort Claims Act’s statutory cap
did not apply. The United States appeals.
II.
The sole issue on appeal is whether Zurba’s damages
are capped at the $300,000 she requested in her admin-
4 No. 01-4089
istrative claim under the Federal Tort Claims Act. Sec-
tion 2675(a) of the Federal Tort Claims Act provides that
before a plaintiff may file suit against the United States
for personal injury or death, the plaintiff must have first
presented the claim to the appropriate federal agency and
have been denied compensation. Section 2675(b) further
provides that:
(b) 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 reason-
ably 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) (emphasis added).
On appeal, the United States contends that because in
her administrative claim to the FBI Zurba only sought
damages of $300,000, under § 2675(b) her recovery must
be limited to that amount. Conversely, Zurba contends that
her recovery is not limited to the amount set forth in her
administrative claim because § 2675(b) established two
exceptions to the statutory cap, both of which apply to her
case.
Although this court has yet to consider the scope of
§ 2675(b), Zurba is correct that the statute creates two
exceptions to the general rule that a plaintiff’s recovery is
limited to the amount requested in an administrative
claim. Specifically, § 2675(b) provides that the cap does
not apply “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
where the plaintiff presents “proof of intervening facts,
relating to the amount of the claim.” 28 U.S.C. § 2675(b). The
No. 01-4089 5
plaintiff has the burden of showing that her case fits with-
in one of these exceptions. Spivey v. United States, 912 F.2d
80, 85 (4th Cir. 1990). In this case, the district court con-
cluded that Zurba satisfied that burden by showing that her
“psychiatric disorders and her emotional distress consti-
tuted ‘newly discovered evidence’ and/or ‘intervening
facts’ following the presentation of her administration
claim . . . [and] therefore [her damages for those claims]
are not subject to the $300,000 cap established by the
claim.” This court reviews the district court’s finding of
“newly discovered evidence” and “intervening facts” under
§ 2675(b) for clear error. Allgeier v. United States, 909 F.2d
869, 877 (6th Cir. 1990); Michels v. United States, 31 F.3d 686,
689 (8th Cir. 1994).
On appeal, the government contends that the district
court committed clear error in finding that newly discov-
ered evidence or intervening facts justified a damage
award in excess of Zurba’s administrative claim because
Zurba knew of her emotional injuries, or, at a minimum,
her condition was reasonably discoverable at the time
she filed her administrative claim. In support of its posi-
tion, the government cites to trial testimony that estab-
lished that four months before she filed her administrative
claim, her doctor told her that stress management and
psychotherapy would help her recover from her physical
injuries. The government also relies on Zurba’s own testi-
mony that immediately after the accident and while she
was still in the hospital, she suffered from fear of the dark,
fear of being left alone and nightmares, and that following
her return to work, she remained afraid to walk alone on
Chicago streets and had a need for constant companion-
ship. The government then points to the district court’s
finding that “Zurba has experienced these emotional and
psychological symptoms in greater or lesser degree since
6 No. 01-4089
January 1995,” which was 17 months before she filed her
administrative claim. Thus, the government maintains,
under the district court’s own findings, Zurba knew of
her emotional injury prior to filing her claim and there-
fore she cannot satisfy the “newly discovered evidence”
or “intervening facts” exceptions to § 2675(b)’s damage cap.
While it is true that Zurba knew that she suffered from
some emotional injury prior to the filing of her claim, the
district court did not commit clear error in concluding
that newly discovered evidence and/or intervening facts
existed. Several reasons underlie our conclusion. First,
Zurba presented substantial evidence that her fears and
anxieties had all become significantly worse only after she
had filed her claim with the FBI. An unforeseen worsening
of a known injury may constitute “newly discovered
evidence” or “intervening facts” under § 2675(b), as the
Eighth Circuit held in Michels, 31 F.3d at 688. In Michels, the
plaintiff, who had suffered various injuries to his hip and
leg after his motorcycle was struck by a federal employee’s
vehicle, sued for damages in excess of the amount that
he had previously presented in his agency claim because
he had since developed arthritis and necrosis. Even though
the plaintiff had known that his injuries carried with them
the possibility of arthritis and necrosis, he did not factor
those possibilities into his administrative claim because
at the time of the filing he had not shown signs of either.
The Eighth Circuit held that the plaintiff was entitled to
recover damages in excess of the original claimed amount
because “a known injury can worsen in ways not reason-
ably discoverable by the claimant or his or her treating
physician, and . . . such ‘newly discovered evidence’ or
‘intervening facts,’ if convincingly proved, can warrant
§ 2675(b) relief.” Id. at 688. Similarly, in this case, the dis-
trict court could reasonably conclude that Zurba’s emo-
No. 01-4089 7
tional injuries worsened in a way that was not reasonably
discoverable and thus constituted “newly discovered evi-
dence” or “intervening facts” for purposes of the excep-
tions to the statutory cap.
The Fifth Circuit has also addressed this issue in Low
v. United States, 795 F.2d 466 (5th Cir. 1986), holding that
evidence which merely bears on the precision of the vic-
tim’s prognosis is not newly discovered evidence. In Low,
the plaintiff knew that their child suffered from cerebral
palsy, a seizure disorder, and was blind, deaf and men-
tally retarded. The only unknown concerned the specific
limitations these medical problems would place on the
claimant, such as whether he would ever be able to go to
school, walk, feed himself or make any developmental
progress. The Fifth Circuit held that the fact that the
Lows did not know “the exact nature, extent and duration
of each recognized disability,” did not prevent § 2675(b)’s
damage cap from applying. Id. at 471. Significantly, in
rejecting the plaintiffs’ reliance on the “newly discovered
evidence” and “intervening facts” exceptions to § 2675(b)’s
cap, the Fifth Circuit noted that “[t]here is no evidence
that these conditions became worse or that other condi-
tions developed after the claim was filed.” Id.
The Fifth Circuit has reiterated this reasoning more
recently in Dickerson v. United States, 280 F.3d 470, 476 (5th
Cir. 2002) (holding that a plaintiff could not increase the
damages sought in an administrative claim because the
plaintiff could have reasonably obtained the information
on the specific injuries that would be needed to make out
the worst-case scenario when the original claim was made),
and Lebron v. United States, 279 F.3d 321, 331 (5th Cir 2002)
(holding that plaintiffs could not recover damages in ex-
cess of $20 million sought in their administrative claim,
where the basic severity of a child’s condition was known
8 No. 01-4089
and recited in the administrative claim). In Lebron, the
court specifically noted that “Low makes clear that new
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 con-
dition can be known.” Id. at 330.
Similarly, the First Circuit in Reilly v. United States, 863
F.2d 149 (1st Cir. 1988), explained that “[i]ntelligence which
serves only to bear out earlier suspicions cannot unlock
FTCA’s narrow escape hatch.” Id. at 171. Rather, “[d]iag-
noses which are no more than cumulative and confirma-
tory of earlier diagnoses are neither ‘newly discovered evi-
dence’ nor ‘intervening facts’ for the purposes of § 2675(b).”
Id. Thus, in Reilly the court held that the plaintiff was
barred by § 2675(b) from recovering damages in excess
of the amount sought in the administrative claim because
the “evidence upon which the district court relied to lift
the cap was, at bottom, nothing more than ‘the experts’
subsequent confirmation that the worst possibilities had
materialized.” Id. at 172. Specifically, in that case the plain-
tiff’s administrative claim alleged “seizures, blindness,
profound neurological deficit,” and at trial the plain-
tiff attempted to recover damages in excess of the admin-
istrative claim because she “would never be able to walk
or talk, and [that] she would be able to see only enough
to distinguish light from dark.” However, as the court
noted, those possibilities were known from the start, and
therefore could not constitute newly discovered evi-
dence. Id.
In contrast to these cases, in which the plaintiffs’ original
administrative complaint acknowledged the injury at
issue, Zurba’s case is distinguishable in that her severe
emotional injuries which surfaced in the years following
the accident were not included in the original claim.
No. 01-4089 9
Zurba’s claim described the accident and stated that as a
result, Zurba had “suffered severe internal injuries” con-
sisting of a kidney laceration and an injury to her gall
bladder. It made no mention of any emotional or psychi-
atric effects of the accident. Additionally, in this case the
district court described the increase in the severity of her
emotional distress as a psychiatric disorder that was
caused by the accident but which is separate and distinct
from her physical injuries. Moreover, as noted above, the
district court heard evidence that Zurba’s condition be-
came worse in the years after she filed her claim with the
FBI. And as the Fifth Circuit recognized in Lebron, “infor-
mation can be newly discovered evidence or an interven-
ing fact, however, if it sheds new light on the basic sever-
ity of the claimant’s condition—that is, if it materially
differs from the worst-case prognosis of which the claimant
knew or could reasonably have known when the claim
was filed.” Lebron, 279 F.3d at 330 (emphasis added). That
is what we have here.
In fact, Zurba’s case is more analogous to the several
cases in which the courts have concluded that the plain-
tiff was exempt from the statutory damages cap because
of intervening facts or newly discovered evidence. For
instance, in United States v. Alexander, 238 F.2d 314 (5th
Cir. 1956), the Fifth Circuit held that because “the plain-
tiff did not know when his administrative claim was pre-
sented that his shoulder would not heal without surgery,”
the plaintiff was entitled to recover damages in excess of
the amount sought in the administrative complaint. Id. at
318. Similarly, in Spivey v. United States, 912 F.2d 80, 86 (4th
Cir. 1990), the Fourth Circuit held that because medical
records showed that the plaintiff had not developed symp-
toms of tardive dyskinesia until after the administrative
claim was filed, damages were not capped by the amount
10 No. 01-4089
sought in that claim. See also, Cole v. United States, 861 F.2d
1261, 1263 (11th Cir. 1988) (plaintiff allowed recovery in
excess of administrative claim where he only learned
after filing his administrative complaint that his condition
was permanent); Fraysier v. United States, 766 F.2d 478, 481
(11th Cir. 1985) (plaintiff allowed to recover damages in
excess of administrative claim because plaintiff believed
his condition would improve, but later determined his
injuries were permanent).
Moreover, in this case, in addition to the increased
severity of her emotional symptoms, the evidence estab-
lished that Zurba did not know that she suffered from two
psychiatric conditions (an anxiety disorder and an ad-
justment disorder) until nearly five years after she had
filed her claim with the FBI. The district court could have
reasonably concluded that these new diagnoses consti-
tuted “newly discovered evidence” or “intervening facts”
under § 2675(b). See Michels, 31 F.3d at 688-89. See also,
Spivey, 912 F.2d at 86 (holding that development of tardive
dyskinesia after the filing of the administrative claim
constituted “newly discovered” evidence, thus exempting
the plaintiff from the cap of § 2675(b)); Allgeier, 909 F.2d
at 878-79 (holding that, because evidence demonstrated
that plaintiff’s condition worsened significantly after the
filing of the administrative claim, intervening fact war-
ranted awarding a judgment in excess of the administra-
tive claim).
Furthermore, Zurba’s diagnosis of anxiety disorder and
adjustment disorder followed two incidents that occurred
in March 2001. In both of those incidents, while waiting
for a train, Zurba had what a layman might call a panic
attack, triggered by her belief that a male passenger waiting
for the train was going to kill her. At trial, Zurba’s doctor,
Dr. Hartman, explained that what Zurba suffered in these
No. 01-4089 11
incidents are called “precipitant events” and that indi-
viduals like Zurba who are suffering from psychiatric
disorders may not know they have any problems until
such a precipitant event occurs. Based on this testimony,
the district court could have reasonably concluded that
these incidents in March 2001 constituted intervening
facts and thus justified exempting Zurba from § 2675(b)’s
cap.
The government argues in response that because Zurba
was offered psychological help while in the hospital and
urged by her sister and boyfriend to seek counseling,
she could have reasonably discovered her psychiatric con-
dition prior to filing her complaint. While that may be a
legitimate view of the evidence, the district court could
(and did) reasonably conclude that Zurba could not rea-
sonably discover her psychiatric illness until she had
suffered the precipitant events, described above, in March
2001.
This view was further confirmed in the district court’s
opinion because in the claim Zurba filed with the FBI,
she did not mention any emotional injury, but only stated
that she “suffered severe internal injuries.” Thus, al-
though the government’s view is not untenable, neither
is the district court’s, and where two views of the evi-
dence are equally permissible, a fact-finder’s choice be-
tween them cannot constitute clear error. Anderson v.
Bessemer City, 470 U.S. 564, 575 (1985). See Allgeier, 909
F.2d at 878-79 (discussing conflicting evidence as to wheth-
er worsening of medical condition constituted an “inter-
vening fact” under § 2675(b), and concluding that district
court did not commit clear error in finding that the stat-
utory cap did not apply). Accordingly, the district court
was not clearly erroneous in concluding that Zurba did
not know of and could not have reasonably discovered
12 No. 01-4089
her anxiety and adjustment disorders by the time she
2
filed her administrative claim.
In reaching this conclusion, we are not saying, as the
dissent suggests, that Zurba is entitled to avoid the $300,000
cap merely because her doctor gave a name to the emo-
tional distress Zurba was already suffering. We also agree
with the dissent that Zurba is not entitled to exceed the
$300,000 cap to the extent the damages were attributable
to the emotional distress from which Zurba was suffering
at the time she filed her administrative claim. Rather,
Zurba is entitled to exceed the $300,000 cap because the
district court found that Zurba “had no reasonable basis
to believe that her symptoms would persist, let alone
worsen significantly as the Court has found they have
done since the time of her administrative claim.” Based on
the record, these findings were not clearly erroneous.
The dissent also takes issue with the district court’s
calculation of damages, concluding that the bulk of the
$219,666 in damages in excess of the $300,000 cap must
be lopped off. Initially, we disagree with the dissent’s view
that $219,666 is at issue. In this case, the district court
determined that Zurba’s total damages were $519,666,
but only entered judgment against the government in the
amount of $419,666 because Zurba had recovered $100,000
from another tortfeasor. Thus, the government is only being
held liable for $119,666 in excess of the $300,000 Zurba
requested in her federal tort claim.
2
Throughout we have treated the “newly discovered evidence”
and “intervening facts” exceptions in tandem. While these are
two distinct exceptions, we discuss them together in this case
because it is irrelevant whether Zurba’s later-diagnosed psy-
chiatric conditions are considered “newly discovered evi-
dence” or “intervening facts.”
No. 01-4089 13
Admittedly, the government could have argued that
Zurba’s $100,000 recovery from the other tortfeasor should
reduce the $300,000 claim cap. But significantly, the gov-
ernment did not make this argument. In fact, in its
reply brief, the government states “Section 2675(b) means
what it says, and the district court was wrong to award
$119,000 in excess of the administrative claim.”
Moreover, the Fifth Circuit in Dickens v. United States, 545
F.2d 886, 893 (5th Cir. 1977), concluded that the award
cap of § 2675(b) only acts to limit the amount of the ulti-
mate claim against the government and not the entirety
of the damage award. Specifically, in Dickens, the plain-
tiff had filed an administrative claim in the amount of
$2,300,000. However, at trial, the district court assessed
total damages at $2,500,000, but then reduced that amount
by half, since the plaintiff had already recovered $1,250,000
from a joint tortfeasor. The district court then entered judg-
ment against the government in the amount of $1,250,000.
While acknowledging that § 2675(b) caps the amount of
recovery from the government, the court in Dickens con-
cluded that that cap applied to the amount of judgment
against the government—not the total amount of damages
the plaintiff could prove. See also, Martinez v. United States,
780 F.2d 525, 530-31 (5th Cir. 1986) (holding that the cap
of § 2675(b) applies to “the amount that a plaintiff seeks
to recover from the government,” and thus where “com-
parative fault principles are applicable under the rele-
vant substantive law, the plaintiff should recover either
his pro rata share of his proven damages or the amount
of his administrative claim, whichever is less”). Given
that the underlying purpose of § 2675(b) is to put the
government on notice of its maximum potential exposure
to liability, we find Dickens and Martinez persuasive and
accordingly conclude that § 2675(b)’s cap on foreseeable
damages applies only to the amount Zurba is seeking
14 No. 01-4089
to recover from the government, namely $419,666, and not
the total proven damages of $519,666. In other words, the
government may not use the $100,000 set-off from a non-
government source to reduce the $300,000 cap.
As to the $119,666 excess, the district court did not com-
mit clear error in concluding that those damages were
unforeseeable. While the district court did not spell out
the dollar amounts directly attributable to new, unfore-
seen injuries, the government did not challenge the
court’s calculation on appeal. In any event, the district
court specifically assessed $19,000 in damages for future
psychiatric care, and given the district court’s finding that
Zurba could not have reasonably known that she suf-
fered from two psychiatric disorders at the time she filed
her complaint, that $19,000 is not subject to the $300,000
cap. Likewise the damages the district court assessed for
the increase in severity of Zurba’s condition were unfore-
seeable, and, as the dissent notes, that totaled $80,000 (the
$20,000 increase x 4 years). These unforeseeable dam-
ages total $99,000, which leaves an additional $20,666
in damages above the $300,000 cap. As noted earlier, the
district court also found that Zurba reasonably believed
her emotional problems would end after she recovered
from her physical injuries, but that instead they lasted
longer than reasonably anticipated. Because her emotional
injuries lasted longer than reasonably foreseeable, Zurba
was entitled to recover damages attributable to the pro-
longed duration, even to the extent those damages ex-
ceeded the statutory cap. While the district court did not
identify when Zurba would have reasonably believed her
emotional injuries would cease, the district court’s award
maintained her damage level at $20,000 per year for 2.67
years, increased the award to $40,000 per year for the next
four years, and then awarded her a total of $25,000 for the
last two years. However, according to the district court’s
No. 01-4089 15
reasoning, over that eight-year-plus time frame, Zurba
thought she would get better. But she did not. Therefore,
to the extent her damage award remained constant over
the years, a portion of those damages were unforeseeable.
What portion is not exactly clear from the district court’s
opinion. Nonetheless, given that the government did not
challenge the specifics of the calculation, and given that
the district court could have reasonably concluded that
Zurba suffered $20,666 in damages based on the unfore-
seeable duration of her condition, we conclude that the
district court did not commit clear error in exceeding the
$300,000 statutory cap by $119,666.
III.
In sum, in August 1996 when Zurba filed her administra-
tive claim with the FBI, she sought damages only for her
physical injury, and any emotional distress she suffered
at that time increased dramatically after the complaint
was filed. Moreover, Zurba was not diagnosed with an
anxiety and adjustment disorder until nearly five years
after the filing of the complaint, and then only after two
incidents brought to a head her psychological injuries.
Under these circumstances, the district court did not com-
mit clear error in concluding that newly discovered evi-
dence and/or intervening facts justified a damage award
in excess of the $300,000 sought in her administrative com-
plaint. Accordingly, we AFFIRM.
16 No. 01-4089
POSNER, Circuit Judge, dissenting. Before one may bring
a suit against the government under the Federal Tort
Claims Act, one must file an administrative claim with the
agency alleged to have committed the tort, 28 U.S.C.
§ 2675(a), and a suit under the Act “shall not be instituted
for any sum in excess of the amount of the claim pre-
sented 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). It is hard to see the point of this rule, since
there is no limit on what the plaintiff may ask for in the
administrative claim. The cases (echoing the legislative
history) say that the purpose is, by informing the govern-
ment of its maximum exposure, to enable the govern-
ment to make intelligent settlement proposals. Allgeier v.
United States, 909 F.2d 869, 878 (6th Cir. 1990); Reilly v.
United States, 863 F.2d 149, 173 (1st Cir. 1988). In less
Aesopian terms, the purpose is to truncate the settlement
range in the government’s favor. However, for the rule’s
purpose, however it is stated, actually to be accomplished,
a cost of some sort would have to be imposed on the
plaintiff who asked for the sky. None is, unless the gov-
ernment is less likely, out of a kind of spite, to negotiate
a reasonable settlement with a hog, which has not been
suggested. So probably the only or at least the main effect
of the rule is to create a trap for the unwary. Into that
trap the plaintiff’s original lawyer fell when he had her
ask in the administrative claim for only $300,000. At trial
he asked the judge to award her $2 million. The judge
awarded $519,666, then subtracted $100,000 which had
been paid by a joint tortfeasor. (This adjustment had noth-
ing to do with the ceiling; the purpose was to prevent the
plaintiff from being overcompensated.) Thus, the judge
No. 01-4089 17
allowed the ceiling to be pierced, precipitating the gov-
ernment’s appeal to us. His action violated the statute; we
should reverse, not affirm. No case cited by the majority
suggests otherwise.
When the administrative claim was filed, 17 months
after the very serious automobile accident that gave rise
to it, the plaintiff had been suffering throughout that en-
tire period continuous, undiminished, and severe emo-
tional distress that the accident caused or triggered (it
doesn’t matter which, given the “eggshell skull” rule of
tort damages, Stoleson v. United States, 708 F.2d 1217, 1220-
21 (7th Cir. 1983)). By the time the case was tried, five years
later, her symptoms had worsened. In a part of the district
court’s decision that is not challenged by the government,
the judge valued the plaintiff’s emotional distress at $20,000
per year for the first two years and eight months after the
accident and $40,000 per year for the next four years, which
were the four years leading up to the trial, plus $25,000 “for
the next two years, the period in which it is reasonable to
expect that Zurba’s conditions will be resolved by [psychiat-
ric] treatment.” The total of the emotional-distress items
is thus $238,333. The difference between this figure and the
total damages award of $519,666 ($281,333 = $519,666!
$238,333) is composed of other items of damages, all con-
ceded to have been foreseeable at the time she filed her
administrative claim but within the $300,000 ceiling that
the claim established. If the $300,000 constraint is fully
binding, $219,666 in damages, the bulk of the emotional-
distress items, must be lopped off.
As a detail, the plaintiff is certainly not entitled to pierce
the ceiling to recover damages for the emotional distress
that she suffered before her symptoms worsened. I noted
in the preceding paragraph that the judge’s damages
award for emotional distress jumped from $20,000 to
18 No. 01-4089
$40,000 per annum two years and eight months after the
accident. That is the date on which the judge estimated
that the plaintiff’s symptoms worsened. There is no basis
for supposing that the symptoms that she experienced
before then—before the unexpected worsening—were
unforeseeable. That amount is $53,333 ($20,000 × 2.67),
which when added to the damages that the judge assessed
for items other than emotional distress (the $281,333)
yields a total of $334,666, which exceeds the $300,000 ceil-
ing. The majority avoids this conclusion by adding the
$100,000 paid by the joint tortfeasor to the $300,000 ceiling.
This procedure is contrary to the language of the statute,
which provides that a suit “shall not be instituted for any
sum in excess of the amount of the claim presented to the
federal agency.” The plaintiff asked for more than $300,000,
which she could do only if she fell within the statutory
exception, which she clearly did not with respect to $34,666
of the amount that she sought and was awarded above
$300,000. I am not a literal interpreter of statutes, but there
should be a reason—in fact a good, a compelling reason—
to ignore statutory language. The majority has offered no
reason.
The district judge made no adjustment of the sort just
suggested not because he was cavalier about statutory
language (leaving that to the court of appeals), but because
he attached no significance to the fact that the plaintiff’s
symptoms had worsened since her filing of the administra-
tive complaint. He said “the question is whether Zurba
reasonably realized or should have realized that [her
symptoms were the result of psychiatric conditions diag-
nosed after the administrative claim was filed, namely an
anxiety disorder and an adjustment disorder] at the time
of her claim . . . . Zurba reasonably believed these to be the
normal effects of having gone through what she had gone
through, and not signs or symptoms of emotional distress
No. 01-4089 19
or a psychiatric disorder. The Court finds that Zurba has
demonstrated that she neither knew nor should have
known as of August 1996 [the month in which her admin-
istrative claim was filed] that she was suffering from a
psychiatric condition or from emotional distress result-
ing from the accident.” It cannot be correct to say that she
did not know then that “she was suffering from . . . emo-
tional distress resulting from the accident.” No one suffers
“emotional distress” without knowing it; it is a form of
pain and to say “I was in pain but didn’t know it” is
nonsense. Zurba knew when she filed the administrative
claim that she was in (emotional) pain and that it was the
result of the accident; and whether it was a “normal” or
an abnormal consequence of the accident, it was compen-
sable; the more normal it was, the more compensable it
was. A whiplash injury is a normal consequence of a rear-
end collision; and of course it is a compensable conse-
quence. She had no excuse for not claiming damages that
she had already suffered.
An even deeper problem with the district court’s anal-
ysis is its unexamined assumption that a diagnosis is an
intervening fact or a form of newly discovered evidence,
within the meaning of section 2675(b), even if it does not
affect the estimation of damages. Until she was diagnosed
with an anxiety and adjustment disorder, the plaintiff did
not know she had a psychiatric disorder but knew she
was experiencing emotional distress (it is, to repeat, not
an unconscious state), for which, as her lawyer must have
known, damages can be awarded with or without a psychi-
atric label. The significance of the diagnosis was that it
indicated that her symptoms were likely to persist for a
longer time, and perhaps be more severe, than she and her
lawyer had thought. I am not disposed to quarrel with the
district judge’s finding that the plaintiff was not unreason-
able in failing to see a psychiatrist earlier. It is common,
20 No. 01-4089
indeed I should think typical and even normal, to incur
emotional distress in the wake of a severe personal injury,
and even if it persists for months the victim would be
unlikely to think the accident had triggered a psychiatric
condition that might take on a life of its own long after
the physical effects of the accident had dissipated. A
minor puzzle is why the district judge thought that the
plaintiff’s psychiatric disorder would be completely cured
within two years of the end of the trial, especially since
some of the physical effects of the accident, notably her
irritable bowel syndrome, are expected to persist for the
rest of her life.
The fact that a condition is not expected to be perman-
ent is no reason not to treat it. Increasingly Americans
do seek treatment for even transitory emotional problems,
and this has led some courts in tort cases to impose a
duty to mitigate emotional injuries by analogy to the
duty to mitigate physical injuries (the tort counterpart,
traditionally called “avoidable consequences,” Outboard
Marine Corp. v. Babcock Industries, Inc., 106 F.3d 182, 184
(7th Cir. 1997); Barron v. Ford Motor Co. of Canada Ltd., 965
F.2d 195, 199 (7th Cir. 1992), to the contract doctrine of
mitigation of damages). See Eugene Kontorovich, Com-
ment, “The Mitigation of Emotional Distress Damages,” 68
U. Chi. L. Rev. 491, 507-08, 512 (2001). But mitigation is
not in issue here; and there is still a sufficient stigma to
seeking psychiatric treatment, and sufficient uncertainty
about its efficacy, to make many, perhaps most, people
prefer to suffer what they reasonably believe to be a tempo-
rary condition of emotional distress (or to self-medicate)
than to see a psychiatrist about it. But whether a condition
is correctly diagnosed has nothing to do with its compen-
sability. United States v. Kubrick, 444 U.S. 111 (1979), holds
that a claim under the Federal Tort Claims Act accrues
when the victim knows of the existence and cause of his
No. 01-4089 21
injury, not when he learns whether it was committed in
circumstances that created liability. The plaintiff could
obtain damages for emotional suffering regardless of its
diagnostic label. The fact that she was suffering emo-
tional distress when she filed her administrative claim
meant that she could pierce the $300,000 ceiling only to the
extent that the emotional distress got unforeseeably worse
or that there was an unforeseeable increase in its likely
duration. See Richardson v. United States, 841 F.2d 993, 999,
amended on an unrelated point, 860 F.2d 357 (9th Cir. 1988);
O’Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 856 (2d Cir.
1984). This fundamental point the district judge missed; my
colleagues repeat his error.
To see the error more clearly, suppose that a person were
in an accident as a result of which he incurred an unre-
imbursed medical expense of $10,000 and an excruciat-
ing pain in his neck that he attributed to whiplash and
that lasted a week. Suppose his lawyer filed an administra-
tive claim under the Federal Tort Claims Act mistakenly
asking for only $10,000 because the lawyer had forgotten
about his client’s pain, for which he could reasonably have
asked an additional $2,000 in damages. Later the plaintiff
discovers that the pain had not been the result of a minor
(soft-tissue) whiplash injury, as he had first thought;
rather, the accident had seriously damaged one of the
vertebrae in his neck, and the damage had caused the pain;
and while the pain had now ceased, an operation would
be required to repair the vertebra in order to prevent fur-
ther deterioration. The plaintiff could seek additional dam-
ages measured by the cost of the operation, but he could not
seek them plus $2,000 (or any other amount) in damages for
the pain merely because he had a better sense of the precise
causal path connecting it to the accident. In effect, the
district court in our case said that such a plaintiff would be
able to add the cost of the earlier pain even though that
22 No. 01-4089
was a known quantity when she filed her administrative
claim. She knew she had emotional distress; she knew it
was caused by the accident; all she didn’t know was that
the accident had caused a psychiatric condition that had
caused her the distress that she felt.
The case should be remanded for a determination of
how much if any of Zurba’s damages for the emotional
distress that she suffered after the administrative claim
was filed were unforeseeable then. Those are the only
damages that can be used to pierce the $300,000 ceiling. The
additional damages that she suffered as a consequence
of the government’s tort she can recover, if at all, only
from her lawyer. This is one of the rare cases in which
a claim for litigation malpractice would not be bedeviled
by the difficulty of proving a causal relation between
the lawyer’s mistake and the outcome of the litigation. (I
call it the lawyer’s mistake, but I suppose it is possible
that Zurba did not reveal the full extent of her emotional
distress to her lawyer, and it is even conceivable that
underestimating damages might be a way of extracting a
quick settlement from the government, though in this
case the government made no settlement offer at all.)
Whatever part of the $419,666 damages award must be
subtracted by virtue of the $300,000 ceiling is the loss
inflicted on Zurba by her lawyer’s mistake in specifying
such a low amount of damages for an accident known
to have inflicted severe, permanent physical injuries
coupled with almost a year and a half of severe emotional
distress with no end in sight.
No. 01-4089 23
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-7-03