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 district court assessed damages at $519,666, but offset that

amount by the $100,000 Zurba had recovered from another 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 therefore AFFIRM.
2 No. 01-4089

1 Zurba also sued another driver, a private citizen, involved in

the accident, and that suit was settled for $100,000.

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 bleeding and to repair a laceration to her kidney. Zurba remained 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. Following 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 syndrome. 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

amount of $300,000 under the Federal Tort Claims Act.1

The United States denied this claim. After retaining new

counsel, in May 1999, Zurba filed suit against the United
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 motion to limit Zurba’s recovery to the $300,000 she had

sought in her administrative claim. The district court deferred 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 damages at $300,000, reasoning that Zurba’s psychological damages 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. Section 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 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) (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 within one of these exceptions. Spivey v. United States, 912 F.2d

80, 85 (4th Cir. 1990). In this case, the district court concluded that Zurba satisfied that burden by showing that her

“psychiatric disorders and her emotional distress constituted ‘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 discovered 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 position, the government cites to trial testimony that established 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 testimony 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 companionship. 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 therefore 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 reasonably 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 district 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 evidence” or “intervening facts” for purposes of the exceptions 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 victim’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 mentally 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 conditions 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 excess 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 condition 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]iagnoses which are no more than cumulative and confirmatory of earlier diagnoses are neither ‘newly discovered evidence’ 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 plaintiff’s administrative claim alleged “seizures, blindness,

profound neurological deficit,” and at trial the plaintiff attempted to recover damages in excess of the administrative 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 evidence. 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” consisting of a kidney laceration and an injury to her gall

bladder. It made no mention of any emotional or psychiatric 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 became worse in the years after she filed her claim with the

FBI. And as the Fifth Circuit recognized in Lebron, “information can be newly discovered evidence or an intervening fact, however, if it sheds new light on the basic severity 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 plaintiff 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 plaintiff did not know when his administrative claim was presented 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 symptoms 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 established that Zurba did not know that she suffered from two

psychiatric conditions (an anxiety disorder and an adjustment 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 constituted “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 warranted awarding a judgment in excess of the administrative 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 individuals 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 condition 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 reasonably 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, although the government’s view is not untenable, neither

is the district court’s, and where two views of the evidence are equally permissible, a fact-finder’s choice between 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 whether worsening of medical condition constituted an “intervening fact” under § 2675(b), and concluding that district

court did not commit clear error in finding that the statutory 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

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 psychiatric conditions are considered “newly discovered evidence” or “intervening facts.”

her anxiety and adjustment disorders by the time she

filed her administrative claim.2

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 emotional 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.
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 government 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 ultimate claim against the government and not the entirety

of the damage award. Specifically, in Dickens, the plaintiff 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 judgment 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 concluded 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 “comparative fault principles are applicable under the relevant 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 nongovernment source to reduce the $300,000 cap.

As to the $119,666 excess, the district court did not commit clear error in concluding that those damages were

unforeseeable. While the district court did not spell out

the dollar amounts directly attributable to new, unforeseen 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 suffered 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 unforeseeable, and, as the dissent notes, that totaled $80,000 (the

$20,000 increase x 4 years). These unforeseeable damages 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 prolonged duration, even to the extent those damages exceeded 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 unforeseeable 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 administrative 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 commit clear error in concluding that newly discovered evidence and/or intervening facts justified a damage award

in excess of the $300,000 sought in her administrative complaint. 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 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). 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 government of its maximum exposure, to enable the government 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 government 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 nothing 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 government’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 entire period continuous, undiminished, and severe emotional 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 [psychiatric] 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 conceded 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 emotionaldistress 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 ceiling. 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 administrative complaint. He said “the question is whether Zurba

reasonably realized or should have realized that [her

symptoms were the result of psychiatric conditions diagnosed 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 administrative claim was filed] that she was suffering from a

psychiatric condition or from emotional distress resulting from the accident.” It cannot be correct to say that she

did not know then that “she was suffering from . . . emotional 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 compensable; the more normal it was, the more compensable it

was. A whiplash injury is a normal consequence of a rearend collision; and of course it is a compensable consequence. She had no excuse for not claiming damages that

she had already suffered.

An even deeper problem with the district court’s analysis 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 psychiatric 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 unreasonable 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 permanent 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, Comment, “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 temporary 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 compensability. 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 emotional 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 unreimbursed medical expense of $10,000 and an excruciating pain in his neck that he attributed to whiplash and

that lasted a week. Suppose his lawyer filed an administrative 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 further deterioration. The plaintiff could seek additional damages 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