Circuit Court Says U.S. Tort Claims Must State Damages in 'Sum Certain'

In a case that did not involve a medical malpractice allegation but that could affect the prosecution of cases against the United States for botched medical care, the U.S. Court of Appeals for the Third Circuit recently held that a lawsuit could not go forward until a “sum certain” in damages was alleged. The case, White-Squire v. United States Postal Service, — F.3d —-, 2010 WL 293048 (C.A.3 (N.J.)), affirmed a district court's dismissal of a suit brought in accordance with the Federal Tort Claims Act (FTCA).

Private Citizen Alleges Injury

On July 17, 2006, a United States Postal Service (USPS) vehicle driven by a USPS employee acting within the scope of his employment allegedly collided with a car driven by Plaintiff Monica White-Squire. On Aug. 15, 2006, White-Squire's attorney sent a letter to the USPS purporting to provide formal notice that White-Squire was pursuing a personal injury claim against it. The letter did not include a sum certain claim for damages.

The USPS wrote back on Aug. 18, 2006, informing the plaintiff and her counsel of the requirements of the FTCA, which sets out the steps for suing the federal government for tort-caused injuries. The letter included the statement that, under the terms of the FTCA, a “claim must be for a specific amount.” The USPS sent a second letter four days later, informing counsel for the plaintiff that the Aug. 15 letter did not “constitute a valid claim.” It went on to point the plaintiff to the requirements of the FTCA and reiterated that a valid claim must be accompanied by “a 'sum certain' amount for injuries or losses alleged to have occurred by reason of the incident.”

Plaintiff's counsel wrote back on Oct. 6, 2006, telling the USPS that White-Squire was still receiving medical treatment for her injuries, so a sum certain could not yet be provided. He said that he would submit White-Squire's medical records and a “'sum certain' demand to resolve the claim” once she was discharged from her doctor's care. The plaintiff, however, never submitted a completed Standard Form 95 (used for making claims under the FTCA), supporting medical records, or a sum-certain demand for damages to the USPS.

On July 14, 2008, White-Squire filed her personal injury action against the USPS in the United States District Court for the District of New Jersey. The USPS moved to dismiss for lack of subject matter jurisdiction because White-Squire failed to provide the USPS with a sum certain request for damages as required by the FTCA. 28 U.S.C. ' 2675(a), (b); 28 C.F.R. ' 14.2(a). The court granted the motion and dismissed the case, concluding that the plaintiff's failure to submit a sum-certain claim deprived it of subject matter jurisdiction. White-Squire appealed.

The Appeal

The plaintiff argued on appeal that she was not required to submit a sum certain request because her medical treatment was ongoing, and therefore her damages could not yet be ascertained.

The Third Circuit, however, reiterated the oft-stated rule that the United States, as a sovereign state, is immune from suit unless it consents to be sued. U.S. v. Sherwood, 312 U.S. 584 (1941). Although the federal government has consented to be sued under certain circumstances, as a sovereign it has the right to lay down specific rules concerning when and how such lawsuits will be permitted to go forward. To that end, it promulgated the rules contained in the FTCA. The court here noted that “[b]ecause the Federal Tort Claims Act constitutes a waiver of sovereign immunity, the Act's established procedures have been strictly construed” (Livera v. First Nat'l State Bank of N.J., 879 F.2d 1186 1194 (3d Cir. 1989)).

In this case, the question was whether the sum certain requirement could be waived. (In fact, the sum certain prerequisite is not set forth in the text of ' 1346, but that section does grant U.S. District Courts jurisdiction over FTCA “[s]ubject to the provisions of chapter 171.” 28 U.S.C. ' 1346(b)(1). Chapter 171 of Title 28 contains ' 2645, which includes the sum certain requirement.) The Third Circuit quickly dispensed with that inquiry by stating, “[T]o remove any doubt on this point, we hold that the sum certain requirement contained in ' 2645(b) is jurisdictional. Thus, a claimant's failure to present her FTCA claim to the appropriate agency with a sum certain, as required by ' 2645(b), compels the conclusion that a district court lacks subject matter jurisdiction over the claim.”

The court went on to say, “We are mindful of White-Squire's contention that her damages continued to accrue and precluded her from stating a sum certain. However, neither the FTCA nor the regulations promulgated thereunder contain an exception to this sum certain requirement when a claimant's damages continue to accrue through the two years following accrual of a claim.” As the court found itself unable to legislate from the bench by extending the conditions upon which the United States would waive its immunity, it confirmed the dismissal of White-Squire's suit for lack of subject matter jurisdiction.

The Import of the Case

As the Third Circuit pointed out in its opinion in White-Squires, the requirement that a plaintiff ask for sum certain is meant to encourage settlement of meritorious claims. However, in many medical malpractice situations plaintiffs are injured in ways that will necessitate their undergoing extended treatments or obtaining long-term care. They may not all be able to fix their costs within the two-year filing period set out in the FTCA. Nevertheless, the White-Squires case illustrates the pitfalls in not at least making an effort to come up with a sum certain when seeking damages from the United States.

White-Squire's lawyer, John Mennie of Schibell Mennie & Kentos in Ocean, NJ, said following the ruling that it will encourage lawyers to submit “unreasonably high demands.” He went on to note that “most personal injury attorneys would say they are not in a position to give a real certain demand until they know what the prognosis is.”

All is not lost, however. Although the amount of costs that may accrue in future is uncertain, courts have been willing to accept an educated guess when awarding damages. In fact, the Third Circuit, in White-Squires, pointed out that because her doctor had recommended further treatments for her, that doctor could also have provided White-Squires with an estimation of the costs she might incur. She could have incorporated this estimate into her calculation of a sum certain. And, if she had done so and the doctor's approximation had been too conservative, she might have been permitted to amend her claim to account for the increased costs by taking advantage of the means provided by federal law. See 28 C.F.R. ' 14.2(c); 28 U.S.C. ' 2675(b).

Conclusion

So, med-mal claimants take note: Whether you can confidently state what your damages are at the time of filing, make a concerted effort. Failure to do so could result in loss of the right to recover anything.

Janice G. Inman is Editor-in-Chief of this newsletter.

In a case that did not involve a medical malpractice allegation but that could affect the prosecution of cases against the United States for botched medical care, the U.S. Court of Appeals for the Third Circuit recently held that a lawsuit could not go forward until a “sum certain” in damages was alleged. The case, White-Squire v. United States Postal Service, — F.3d —-, 2010 WL 293048 (C.A.3 (N.J.)), affirmed a district court's dismissal of a suit brought in accordance with the Federal Tort Claims Act (FTCA).

Private Citizen Alleges Injury

On July 17, 2006, a United States Postal Service (USPS) vehicle driven by a USPS employee acting within the scope of his employment allegedly collided with a car driven by Plaintiff Monica White-Squire. On Aug. 15, 2006, White-Squire's attorney sent a letter to the USPS purporting to provide formal notice that White-Squire was pursuing a personal injury claim against it. The letter did not include a sum certain claim for damages.

The USPS wrote back on Aug. 18, 2006, informing the plaintiff and her counsel of the requirements of the FTCA, which sets out the steps for suing the federal government for tort-caused injuries. The letter included the statement that, under the terms of the FTCA, a “claim must be for a specific amount.” The USPS sent a second letter four days later, informing counsel for the plaintiff that the Aug. 15 letter did not “constitute a valid claim.” It went on to point the plaintiff to the requirements of the FTCA and reiterated that a valid claim must be accompanied by “a 'sum certain' amount for injuries or losses alleged to have occurred by reason of the incident.”

Plaintiff's counsel wrote back on Oct. 6, 2006, telling the USPS that White-Squire was still receiving medical treatment for her injuries, so a sum certain could not yet be provided. He said that he would submit White-Squire's medical records and a “'sum certain' demand to resolve the claim” once she was discharged from her doctor's care. The plaintiff, however, never submitted a completed Standard Form 95 (used for making claims under the FTCA), supporting medical records, or a sum-certain demand for damages to the USPS.

On July 14, 2008, White-Squire filed her personal injury action against the USPS in the United States District Court for the District of New Jersey. The USPS moved to dismiss for lack of subject matter jurisdiction because White-Squire failed to provide the USPS with a sum certain request for damages as required by the FTCA. 28 U.S.C. ' 2675(a), (b); 28 C.F.R. ' 14.2(a). The court granted the motion and dismissed the case, concluding that the plaintiff's failure to submit a sum-certain claim deprived it of subject matter jurisdiction. White-Squire appealed.

The Appeal

The plaintiff argued on appeal that she was not required to submit a sum certain request because her medical treatment was ongoing, and therefore her damages could not yet be ascertained.

The Third Circuit, however, reiterated the oft-stated rule that the United States, as a sovereign state, is immune from suit unless it consents to be sued. U.S. v. Sherwood , 312 U.S. 584 (1941). Although the federal government has consented to be sued under certain circumstances, as a sovereign it has the right to lay down specific rules concerning when and how such lawsuits will be permitted to go forward. To that end, it promulgated the rules contained in the FTCA. The court here noted that “[b]ecause the Federal Tort Claims Act constitutes a waiver of sovereign immunity, the Act's established procedures have been strictly construed” ( Livera v. First Nat'l State Bank of N.J. , 879 F.2d 1186 1194 (3d Cir. 1989)).

In this case, the question was whether the sum certain requirement could be waived. (In fact, the sum certain prerequisite is not set forth in the text of ' 1346, but that section does grant U.S. District Courts jurisdiction over FTCA “[s]ubject to the provisions of chapter 171.” 28 U.S.C. ' 1346(b)(1). Chapter 171 of Title 28 contains ' 2645, which includes the sum certain requirement.) The Third Circuit quickly dispensed with that inquiry by stating, “[T]o remove any doubt on this point, we hold that the sum certain requirement contained in ' 2645(b) is jurisdictional. Thus, a claimant's failure to present her FTCA claim to the appropriate agency with a sum certain, as required by ' 2645(b), compels the conclusion that a district court lacks subject matter jurisdiction over the claim.”

The court went on to say, “We are mindful of White-Squire's contention that her damages continued to accrue and precluded her from stating a sum certain. However, neither the FTCA nor the regulations promulgated thereunder contain an exception to this sum certain requirement when a claimant's damages continue to accrue through the two years following accrual of a claim.” As the court found itself unable to legislate from the bench by extending the conditions upon which the United States would waive its immunity, it confirmed the dismissal of White-Squire's suit for lack of subject matter jurisdiction.

The Import of the Case

As the Third Circuit pointed out in its opinion in White-Squires, the requirement that a plaintiff ask for sum certain is meant to encourage settlement of meritorious claims. However, in many medical malpractice situations plaintiffs are injured in ways that will necessitate their undergoing extended treatments or obtaining long-term care. They may not all be able to fix their costs within the two-year filing period set out in the FTCA. Nevertheless, the White-Squires case illustrates the pitfalls in not at least making an effort to come up with a sum certain when seeking damages from the United States.

White-Squire's lawyer, John Mennie of Schibell Mennie & Kentos in Ocean, NJ, said following the ruling that it will encourage lawyers to submit “unreasonably high demands.” He went on to note that “most personal injury attorneys would say they are not in a position to give a real certain demand until they know what the prognosis is.”

All is not lost, however. Although the amount of costs that may accrue in future is uncertain, courts have been willing to accept an educated guess when awarding damages. In fact, the Third Circuit, in White-Squires, pointed out that because her doctor had recommended further treatments for her, that doctor could also have provided White-Squires with an estimation of the costs she might incur. She could have incorporated this estimate into her calculation of a sum certain. And, if she had done so and the doctor's approximation had been too conservative, she might have been permitted to amend her claim to account for the increased costs by taking advantage of the means provided by federal law. See 28 C.F.R. ' 14.2(c); 28 U.S.C. ' 2675(b).

Conclusion

So, med-mal claimants take note: Whether you can confidently state what your damages are at the time of filing, make a concerted effort. Failure to do so could result in loss of the right to recover anything.

Janice G. Inman is Editor-in-Chief of this newsletter.