excess of the amount of the administrative claim that had previously been presented to the federal agency there is one exception to that rule and to satisfy that exception a plaintiff bears the burden of making two showings first that there is some new evidence or facts that are now available and that were not reasonably discoverable at the time of presenting the administrative claim to the agency second the plaintiff must also show that she incurred an increased amount of damages based upon that new evidence or in other words the plaintiff must demonstrate that the new circumstance being invoked actually made her worse off than she was before the district court committed legal error in this case by failing to apply the latter of those two requirements here's what happened with respect to the first of the two well the shoulder problem was there from just a few days after the accident the plaintiff went to a nighttime care clinic at clinic i think two days after the accident complaining of pain in her shoulder she was referred to an orthopedic surgeon general in treatment and in the summer of two thousand and seven it discontinued treatment for a year then went back to a surgeon so it was a chronic condition and until they had done the diagnostics surgery and actually gone in they didn't know with precision which particular part of the rotator cuff it was that was giving her problem understand from your brief and what you've said here today you're you're tracking the language of the statute in terms of requiring that there be the new evidence and you haven't it's even causal connection to any additional damages that's right your honor but as i've looked at the record and review may be faulty in plea it appears to me that the government's position to the district court was that the plaintiff doesn't get any amount over and above what was in the administrative claim because they never amended the administrative way so what my question is is this where did you argue when the district court to the district court judge that the plaintiff did not fulfill the requirements of the statute which you've gone over this morning as opposed to simply not amending the administrative claim sure well to clarify there is no requirement that a plaintiff amended administrative claim she is entitled to do so and it became clear during the course of the administrative pretty strongly that he was going to have this district court sorry you take a position there was some confusion in the district court about what the supplemented the supplemental letter that was sent to the postal service actually represented but we didn't need to take any position on that question the district court was our position was plaintiff's cannot show any evidence that would entitle her to new damages and the dispute crystallized in the district court on whether or not the shoulder diagnosis was forseeable or not we lost on that issue we accept that factual finding but the fact remains the district court in concluding that in finding that the diagnosis was new information that could not be reasonably foreseen th would probably not if she had she would of course need a reasonable and good faith basis since since it is a statement under penalty of perjury when you declare your damages but there is room for a plaintiff to you know try to set it damages award that she thinks i shoulder condition since the accident and we don't think you can cover anything over the cap and the plaintiff said well you know ok maybe the surgery was forseeable but i didn't know my exact diagnosis and the district court credited that argument the district court relied on the decision of this court called  district court what do what the district courts and the district court said that the diagnosis was not reasonably foreseeable not reasonably foreseeable right is not equivalent to a duly discovered evidence not reasonably discoverable exactly which is the language of the recovering any warden excess seventy five thousand seven hundred fifty dollars that to me doesn't say what you're saying on appeal well this is an alternative ground now having lost on the fact finding the statute still has to be applied in accordance with its terms and the statu district court well well the point is you want to reverse the district court to vacate the judgment ok and so it appears to me that you're asking us to reverse the district court on the grounds that you never gave the district court i don't think that's correct at all your honor i think it's actually an opportune golden opportunity to tell us well that's ok sure but all we're asking is for the statute to be applied in accordance with its plain terms we alerted the district judge to the statute we were relying on and the language of the statute plaintiffs did not dispute the language of that statute what we were fighting about was a factual matter the government is not required to predict every possible misinterpretation of a statute that a district court might commit and say you could you you might possibly go off the rails by committing this legal error but don't do it you might do this but don't do it once the district court ruled it became entirely proper for the government to come to this court with its claim of legal error and there was no requirement to further present arguments  well look well arguments of course have to be fairly presented to the arguments of course have to be fairly presented to the district court our argument here is the statute applies and caps damages at seventy five thousand seven hundred fifty and you know we want  well i don't think that there's evidence in the record to stat would support any such findings but if you were remanded then you can find it is there is there is not there is not if the in court were inclined to go that route then that would be appropriate what's what's most concerning to the government here and which comes up rarely but from time to time is this legal error where a court thinks that all that is necessary is something new we didn't know before along or it seems like that's what you would have told the district court that that this would need to be done the plaintiff has the burden of proof here of the elements didn't ask him to do first that's not right your honor what we asked the district or to do was to enter judgment in the amount of a well i guess at that point we actually didn't know that we were liable because there were some issues of whether it was  when they had this problem that's right so we said certainly any damages and then she ended up with this surgery after the fact that you got more trouble than you then you did well all right so to clarify thank you your honor our argument was any damage the lawyer no you didn't do it now oh to clarify our argument in the district court was certainly no damages could be awarded him of the amount of seventy five thousand dollars because there are no facts here that would support such an award we alerted the district court to the language of the statute both of us quoted in bold face all we're asking is for the language especially to be applied now what your honor is suggesting i think is that we should have said in the alternative you might actually misconstrue the statute in this way and i'm we just want you to know that we actually think the statute should be read according to its plain terms and i don't think you know with respect it's important to alert the district court that you think the judgment should be limited to a certain amount and why and to give them what legal tools they need but at some point you can't make every possible the government should be required to make every possible alternative argument and try to foresee what they just report might do if it rules against you on one of them and then and then commit a little legal error that neither of the two parties had disagreed on in their briefing damage that had accrued at the time of the administrative claim and then there are the damages there after at the time of the administrative claim the plaintiff had sought ten thousand and medical damages and later became clear that four thousand of those were for a root canal that was medically indicated before the accident so those are gone there are also a few other medical damages that the district found could not be awarded because they were not so important by sufficient evidence so you know once you take that out you have around fifty five hundred dollars in medical damages at the time of the claim at the time of the claim what were the what was the  out that's right so the whole right right the medicals dead oh and i would know that if or no word is entered in the amount of seventy five thousand seven hundred fifty she would get those medical damages from surgery because the way that the law works is you're allowed to take you can take your damages from whatever time period you want up to the amount of the claim but once you have to mount the administrative claim then your burden has to be to get past it to show an increased amount of damages based upon newly  after the time of the administrative claim some some facts have to be presented in the district court needs to make findings that there actually was a worsening in the pain and suffering but i would note we talked about fifty five hundred dollars as a medical damages at the time of the claim if you use a factor of four times that you end up around thirty thousand so we can see that the plaintiff is allowed to get up to seventy five thousand dollars the amount of the claim by importing the medical costs of surgery but she's not allowed to go still further to obtain pain and suffering awards when actually there's no diagnosis made no difference made no if it was offering those soldiers were really there was no additional pain and suffering in fact if anything the surgery made her better as the district found she the diagnostic arthroscopy determine what the source of her problem was the repairs made during that surgery the surgery was a success she had no complaints there after or no complaints about the  rehabilitation i should say it was a good outcome so you know the fact findings that we do have are inconsistent with any finding that she suffered more than might have been expected i realize i've gone over my time i would appreciate coming back up for a questions the court i ask the court to ask the government if they had brought this statutory statutory argument to the court's attention and the trial court and not say no if you look at the  memorandum about the application of twenty of the statute to this case and the court asked that that memorandum be provided by both parties at his word yes that's the document that my housing counsel related to if you look at page for his argument they clearly stated that's not in when she suffered when she supplemented her ministry of claim and december two thousand and eight that is the argument they made then also i think it's telling if you look at the court's opinion i have that  do that damages that she saw and heard minute straight if claim and so they say there's nothing in there about the statutory issue they as i said my brief they had an they did file and it was not raised so that issue that issue is moot i think so that i would we review it here then they raise it first time on appeal well it's clipper clearly erroneous your honor because they have conceded that the court the trial court may correct back to findings so it's clearly erroneous there is no statutory issue this in reviewing all of these cases i have found that the government just makes an automatic mechanical approach to interpret the question you play an error in this earlier clearly iranian and i'm going in a civil case it's plain air reviews if you've got a lot of they've got a lot of hoops to jump through to do for you so you don't or jani you could look at it as maybe a possibilty of all plane error but when you look at all of the test that go with that you're on to really it's not i mean it really is just an issue that was not raised and and when you look at the mosque case and the other cases a court does have discretion to evaluate that but you've got to you've got this show that it's a miscarriage of justice it's it's it's as you say plain error that's kind of thing a play where without asking the court to do it the way you say as right right well well that that that's correct on that's correct but i would just kind of i add if you look at the court's decision the case is that if we get away from the waiver argument for second big but it interplays with this and we look at the court's decisions mostly it's in this circuit say it that a court is given some related to the entries and if you look at this court's opinion which is part of the record at the at the end it said thus the diagnosis treatments are for newly diagnose conditions and damages related to those are newly discovered evidence so the court did that the court did comply with the fourth circuit standard in doing that so i don't where in the record is a factual support that she suffered more damages because of the ultimate diagnosis of a rotator cuff as opposed to a lab was surprised at trial that counsel did not ask for and dependent medical examination a lawyer can't make that argument about what she suffered or what was worse or what was better than not medically  no doctor was there and what did the government and its mechanical automatic result they argue medical terminology that it could not have been different and that's the same thing appellate counsel is doing the court trial court listen to the listen to the plaintiff talk about her hay her situation how things happened the trial court looked at the medical rock records and the trial court heard the testimony of her medical expert and the government can see its that the trial court's findings were correct therefore when you look at all of that you know on it i see no basis that newly discovered evidence was the proximate cause of whatever damages exceed the administrative claim amount seventy five thousand dollars i'm not finding that in the the newly discovered evidence caused the damages or the seventy five wells well i'm going to do that two ways number three ways number one again the government is saying based upon in murphy and in this case the court said relate it to that's a distinction without a difference that the courts they are relating the damages to the newly discovered evidence my brief and the end of my brief we inferred from the numbers that we found that the opinion was and the award was based upon newly discovered evidence i have  on page thirty four thirty four i talk about the fact that the that the court found it articulated you know if you got to the oral opinion at thirty five thousand one hundred sixty four dollars  we found a total of that twelve two hundred twenty one dollars at the time her claim was denied and then we then we extrapolated from that the remainder so i'm saying that if you're asking me where is there a showing that the medical costs of newly discovered medical injuries were and that when a court made a war that that award was based upon that newly discovered everything that's what you're asking me where is that the met here's how the court articulated its verdict the medical bills were thirty five one six four so if you multiply four times a twelve you get forty eight six point eight if you multiply and that leaves you with about twenty two nine four two point thirty five of post claim bails you multiply four times that it gives you ninety one seven six nine forty then you add to three hundred twelve dollars in property damage and you come up with the exact verdict that the court came out with one hundred seventy six dollars one hundred thirty two and the court was rather precise because even when you look at it granting the motion for consideration it went through the same mathematical formula that is the best response that i can give you as to statute will certainly that explains the medical good there was the medical cause but you still haven't let us know what in the record supports the claim that she suffered additional pain and suffering because she had a labor of a didn't have a labor and a dr shafer never said that because she had a rotator cup as opposed to labor she suffered more more pain and suffering today while he ate i did ask him and it's in the deposition i mean how do you do this surgical procedure are you you are you are correct yana we proved to the district court's satisfaction through the testimony of the plaintiff through dr shafer testimony that she did hear exactly what what you're saying but one can reasonably infer from the fact that you have to go through a surgery you have to go through with his surgery with july first two was different i thought it was not the right that is well she was told in two thousand and seven that's her first range of medical treatment that joe problems will resolve with and he she weighed about a year and they did not resolve then  dr shafer to say it that he really didn't know what she had if you look at you look at that october sixteenth two thousand and eight no but he felt that she needed evaluate type of but it's important to know nobody knew what she had brightest or right so then we get to the surgery and if you're asking me the pain and suffering she went through the surgery and then she had to go through two courses  physical therapy after that and moving into two thousand and ten then he sees that now she's got a cervical problem that he didn't see before that's pain and suffering  it's not from his lips and maybe the best one one thing i think you have to understand one thing i just want to explain doctors are difficult to deal with because they they they  ask about permanency right act and a staff member told me no i only got to talk to dr shafer i got about ten minutes before the deposition i'm only saying that i mean that's not excuse force for him out specifically articulating pain is something i'm just giving you the background of that i think that the additional pain and suffering is clear on its face i mean you have one set of damages up to  and then you have after that horse of medical therapy in three different diagnosis one involving the neck thereafter that's clearly and indicative of pain or suffering and if the government wanted to impeach that think that the government concedes and is correct the court in the trial court made the appropriate statutory findings that this was a newly new evidence of medical and that could not have been recently discovered before and so if the court is evaluating this the court just has to make a determination as you can see and spivey murphy and creech as to whether or not the court heard in the findings it may and i would want to put my mostly on top of that and i'm just trying to to speak to this question is that the trial courts are given some latitude birds and i went through the medical explanation with charge explanation for the purposes of just indicating the court that indicated to the court that in addition to the relate to language was the same as based upon that the court use following murphy that there is a clear way to see that the additional medical damages that thank you the united states did not waive any argument in this case i think that you sure the united states could have said more in its brief initially but you can always say more repro order which is about both your your your office and the point of there's not a word in there about it that's true it was the district judge was alerted to that it at opening argument the district court said let's rule on it i want briefing it and a brief was put in and preparing and filed that night but we gave the district judge all of the tools that the judge needed to rule on this issue or was the word yes yes and the plaintiff filed a document forty seven i think we all have to agree that if the parties agree on what the law says and the district judge thinks that the statute means something different or is unconstitutional and commits legal error that error can be corrected by discord and it's not subject to pla review just because of it's not they were made in subject to play fair review if it's not preserved below it's only subject to player review i think there are has to be has to be there or it has to be plain as to affect the substantial rights of the other side and there has to be some reason for us to correct it that's going to reflect like go to reflect on the integrity of the judicial proceedings that's the standard reply to a review the government comes up here and argues with all the time  judge he was looking at the statute before and asking my adversary you know doesn't the statute mean what it says and to be honest we can see this coming because we think the statute means what it says and it doesn't require very much an elaborate what we have here is a verdict right yes we have as a verdict that you look at a verdict at least what a jury returns with a light most favorable to the prevailing party sure but we don't dispute any of the factual findings so that makes that very very easy in any and if a jury verdict came in here in and gave this lady a quarter million dollars you couldn't come up here with a decent argument about they gave too much for poor up for pain and suffering when she only had thirty five thousand dollars in specials  looking out of everything in the light most favorable revealing bars are let me try to clear up some confusion here if the district if the plaintiffs had presented administrative claim in the amount of two hundred thousand dollars and the district judge had entered judgment in the amount it was million or judgment  hundred seventy thousand or so you're right that what we would not be here we would not have an argument it's the it ministry to claim and the statutory requirement section twenty six seventy five that is the reason we're here and it says if you want to recover damages over the amount of the claim reasonably discoverable if i could point you really to that yes but your honor if i could please point you to three instances in the district's opinion where it clearly evidence states misunderstanding first of all on the first page it says you know i'm ruling she's not  adversary make clear that that's simply a legal error i think it was telling when when judge norton asked mr macintosh you know what factual findings are there in support of any increased pain and suffering and mr mackintosh quite rightly couldn't identify any and also if you look at page doctors we can't say probably hurt more maybe it hurt more you know the plaintiff could have put in reliable evidence for the district court to rely upon that things were worse off i mean maybe maybe a civil criminal punishment is worse maybe it's not who knows maybe the cervical strain was one ninety nine to two hundred of the appendix then there were some further damages taken out on reconsideration at pages five one thousand to five twenty so you know as i told your honour's before the medical damages at the time the claim more like fifty five incorrect i would point your honour's to an example of the analysis that should have happened here and didn't happen in the eight circuit michael's case cited in our brief the district court had just simply added two paragraphs to the end of its order saying ok i found that there's a newly discovered evidence  i've calculated the plaintiff's trial damages and i'm going to do a quick analysis to see whether the increased damages award is actually based of that evidence and the court said yes in part but not all the way that's all we're asking for here we're not asking for magic words we're not asking for the district court to say it was based upon we're just looking for some indication by the district court that had conducted the proper analysis judge judge and you had suggested that perhaps remaining to the judge here to let it take let the judge take another crack at this would be appropriate and the government does think that was appropriate if you think in fairness the judge should be alerted to its error and given a chance to correct it but certainly there was a legal error in this case because although the government did not foresee it it gave the judge all the tools it needed to apply the law correctly and if there are good lights on