Opinion
Nos. 1:00-cv-303, 1:02-cv-013, Consolidated.
August 1, 2002
MEMORANDUM AND ORDER
Plaintiffs Tracy Norrell and Kathy Norrel bring this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671-2680. On July 6, 1999, Tracy Norrell was operating his motor vehicle, an Oldsmobile Bravada, in an easterly direction on Access Road. At the same place and time, Thomas Napier ("Napier") was operating a Ford wrecker towing a United States Postal Service truck in an easterly direction on Access Road. Napier was acting in his capacity as an employee of the United States government. The wrecker operated by Napier was owned and registered to the United States Postal Service.
Access Road has four lanes of traffic. Two lanes move in an easterly direction and two lanes move in the opposite, or westerly, direction. Napier was driving the wrecker in front and ahead of Tracy Norrell's automobile. Napier's wrecker was in the right lane of traffic and Tracy Norrell's vehicle was behind in the left lane of traffic. Napier attempted to execute a U-turn. Napier drove the wrecker along with the towed vehicle from the right lane into the left lane. There was a collision between the wrecker and Tracy Norrell's automobile.
On or about October 21, 1999, Tracy Norrell filed an administrative claim with the United States Postal Service pursuant to 29 U.S.C. § 2675(a). [Court File No. 19, Exhibit 4]. He alleged injuries to his right shoulder, neck and left knee, including a fractured neck. He further alleged he had a whiplash-type injury with musculoligamentous strain. His wife, Kathy Norrell, made a claim for loss of consortium. The total amount of the personal injury claims combined was listed by Tracy and Kathy Norrell as $250,000. In addition, Tracy Norrell made a claim of $9,500 for property damage to his automobile. With regard to the extent of his personal injuries, Tracy Norrell made the following statement in his administrative claim:
[A]s a result of the collision, claimant, Tracy Norrell, sustained injury to his neck, right shoulder and left knee. The most serious injury is a broken neck, which was confirmed by an MRI examination, which broken neck is at the C6/T1 area, and the C5/C6 area. There is also a bulging disk at the C5/C7 area. Additionally, there was a degenerative arthritic condition which had been aggravated by the collision. The claimant was placed initially in a soft collar for approximately 2 to 3 weeks, and was thereafter placed in a hard collar for approximately 6 to 8 additional weeks for the broken neck.
When the Postal Service did not take final action on the administrative claim within six months, plaintiffs Tracy and Kathy Norrell filed this FTCA suit in federal district court pursuant to 28 U.S.C. § 2675(a). Plaintiffs claim that the defendant's employee, Napier, committed common law negligence and negligence per se by violating TENN. CODE ANN. §§ 55-8-123, 55-8-142 and 55-8-143. Tracy Norrell demands $239,500 in compensatory damages for his personal injuries and property damage to his automobile. Kathy Norrell demands $20,000 in compensatory damages for loss of consortium.
There are two motions before the Court.
I. Plaintiffs' Motion for Partial Summary Judgment
Tracy and Kathy Norrell move for partial summary judgment on the issue of liability. [Court File No. 11]. Defendant opposes the motion. [Court File No. 18]. After reviewing the record, the Court concludes the motion will be DENIED because there are genuine issues of material fact in dispute which preclude summary judgment under FED. R. CIV. P. 56.
Rule 56 provides that summary judgment will be rendered if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show there are no issues of material fact in dispute. The Court views the facts and all reasonable inferences to be drawn from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Morris v. Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1997). The Court is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper one for the jury at trial. The Court does not weigh the evidence, judge the credibility of witnesses, and determine the truth of the matter under Rule 56. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Defendant submits the sworn statement of Napier along with portions of his deposition. [Court File No. 18]. For purposes of ruling on the summary judgment motion, the Court is required to accept Napier's statement of the facts as being true and accurate. There are genuine issues of material fact in dispute concerning how the automobile collision occurred and who is at fault. It is necessary to hold a trial to decide whether Napier was negligent and proximately caused Tracy Norrell to suffer personal injury and property damage. Moreover, there is an issue of fact in dispute whether Tracy Norrell was negligent in the operation of his automobile and was at fault for causing the collision. The Supreme Court of Tennessee has adopted the doctrine of modified comparative negligence in Tennessee. McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992). A trial is required to decide who is at fault and, if necessary, apportion fault between Napier and Tracy Norrell.
Accordingly, the motion by plaintiffs Tracy Norrell and Kathy Norrell for partial summary judgment [Court File No. 11] is DENIED.
II. Plaintiffs' Motion to Amend Complaint
Tracy and Kathy Norrell move pursuant to FED. R. CIV. P. 15(a) for leave to amend their complaint. [Court File No. 10]. Tracy Norrell seeks permission to increase his demand for compensatory damages from $259,500 to $650,000 because he has undergone spinal fusion surgery after filing his administrative claim. Tracy Norrell also wants to amend his complaint to allege mental anguish and emotional injury, more specifically, post-traumatic stress syndrome. Defendant opposes the Rule 15(a) motion to amend the complaint. [Court File No. 19].
A. Amount of Damages
28 U.S.C. § 2675(b) provides:
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.
The plaintiff in an FTCA case who seeks to exceed the limit of monetary damages demanded in his administrative claim has the burden under § 2675(b) of showing that the increase or addition is justified by newly discovered evidence or intervening facts. Lebron v. United States, 279 F.3d 321, 330 (5th Cir. 2002); Allgeier v. United States, 909 F.2d 869, 877 (6th Cir. 1990). To meet this burden, a plaintiff must show that the new evidence or intervening fact was not reasonably capable of detection at the time the administrative claim was filed. The plaintiff is required to demonstrate that the new information could not have been discovered through the exercise of reasonable diligence. Dickerson ex rel. Dickerson v. United States, 280 F.3d 470, 475-76 (5th Cir. 2002); Lebron, 279 F.3d at 330; Low v. United States, 795 F.2d 466, 470 (5th Cir. 1986).
Tracy Norrell's motion to amend the complaint to increase the amount of his claim for damages from $259,500 to $650,000 will be DENIED. He has not met his burden under 28 U.S.C. § 2675(b) of showing that an increase is justified based on newly discovered evidence or intervening facts.
The Sixth Circuit has adopted a strict interpretation of § 2675(b). Allgeier, 909 F.2d at 877-79. Allgeier is instructive here because it involved a plaintiff injured in an automobile accident who sought to exceed the amount of her FTCA administrative claim based in part on a subsequent surgery. The relevant facts in Allgeier are as follows. A truck driven by a United States Postal Service employee was involved in an accident with a truck being driven by Richard Allgeier. Mr. Allgeier contended that the inattentive mail carrier forced him off a narrow rural road causing Allgeier to crash his truck into a tree. A passenger in Allgeier's vehicle, Maria Boldrick, filed an FTCA administrative claim with the Postal Service seeking to recover $50,000 for her personal injuries. At trial, the federal district court allowed Boldrick to increase the amount of her claim and awarded her a judgment of $104,000.
The government made a post-trial motion pursuant to 28 U.S.C. § 2675(b) to reduce Boldrick's award from $104,000 down to $50,000, the sum sought in her administrative complaint. The district court denied the government's motion. The district court determined that when Boldrick filed her administrative claim, she reasonably believed her injuries were only temporary and further surgery was not necessary. After the administrative claim, Boldrick continued to receive medical treatment and she learned her injuries were permanent. Approximately 18 months after filing her administrative claim, Boldrick had surgery on her left knee. The district court found that intervening facts and newly discovered evidence warranted an increase in her recovery of compensatory damages over and above the $50,000 listed in her administrative complaint. The district court rested its decision on three main points: (1) Bolderick did not know fully the medical extent of her injuries and expenses at the time the administrative claim was filed; (2) permanent injuries warrant more damages than temporary ones; and (3) there was proof of additional medical treatment, risk, surgery, expense, and pain long after Boldrick's administrative claim was filed. Id. at 877. The Sixth Circuit interpreted the district court's opinion to mean that the district court found the knee surgery and additional medical treatment to be sufficient "intervening facts" under § 2675(b) and there was "newly discovered evidence" in that Boldrick learned her injuries were permanent. Id. at 877-78.
On appeal, the Sixth Circuit in Allgeier, 909 F.2d at 878, recognized there was some legal precedent to support of the position that an additional operation or surgery, performed after the FTCA administrative claim has been filed, may be considered an intervening fact within the meaning of 28 U.S.C. § 2675(b). See Molinar v. United States, 515 F.2d 246 (5th Cir. 1975) (three knee operations and ensuing medical treatment occurring after administrative claim filed are intervening facts). However, the Sixth Circuit in Allgeier goes on to hold that the term "intervening fact" should be construed more strictly to require that it be unexpected or unforeseen. The Sixth Circuit in Allgeier, 909 F.2d at 878, expressed a preference for and relied on the Fifth Circuit's analysis in Low v. United States, 795 F.2d 466, 470 (5th Cir. 1986) (for 28 U.S.C. § 2675(b) to be applicable, the change in plaintiff's prognosis must not have been reasonably capable of detection at time when FTCA administrative was filed).
The Sixth Circuit says a strict interpretation of the statutory language requiring an intervening fact to be unexpected or unforeseen is more consistent with the purpose behind § 2675(b) which is to ensure that federal agencies charged with the responsibility of making initial decisions whether to settle tort claims against the United States government are given notice of the maximum potential liability. Section 2675(b) must be interpreted and applied so that the federal government will, at all relevant times, be aware of its maximum possible exposure to liability and federal agencies will be in a position to make intelligent decisions regarding settlement. Allgeier, 909 F.2d at 878; see also Lebron, 279 F.3d at 330-31; Low, 795 F.2d at 470-71. Furthermore, a restrictive, narrow interpretation of § 2675(b) is consistent with the principle that the FTCA, as a waiver of sovereign immunity, must be complied with strictly. Allgeier, 909 F.2d at 878.
In applying the unexpected or unforeseen standard to Boldrick's claim in Allgeier, the Sixth Circuit said some evidence made it difficult to find that the knee operation was entirely unexpected or unforeseen. On the other hand, there was some evidence that the knee operation was unforeseeable. In the end, the Sixth Circuit decided that the district court's findings and award to Boldrick exceeding her administrative claim were not clearly erroneous and did not offend 28 U.S.C. § 2675(b). The judgment of the district court was affirmed. The key factor emphasized by the Sixth Circuit was that Boldrick's condition improved immediately before the administrative claim was filed. The information that Boldrick received from her physician prior to the FTCA administrative claim led Boldrick to believe that her injuries were only temporary and were largely cured such that no additional surgery would be necessary. Over one year after Boldrick made her administrative claim, her injuries and condition became significantly worse contrary to her physician's prognosis. Boldrick learned that her injuries were permanent and she would require a second knee surgery and extensive additional medical treatment. The Sixth Circuit concluded that the need for a second knee operation and extensive additional treatment was not reasonably foreseeable to Boldrick at the time she filed the administrative claim. Allgeier, 909 F.2d at 878-79. The rationale in Allgeier is consistent with the worst-case prognosis standard discussed infra.
The thrust of Tracy Norrell's argument is that he should be permitted to amend his complaint to increase the amount of damages pursuant to § 2675(b) because the conservative course of medical treatment failed and he has undergone spinal fusion surgery. He asserts that the spinal fusion surgery falls within the 28 U.S.C. § 2675(b) exception for newly discovered evidence or intervening fact. This argument fails for the following reasons.
Tracy Norrell's case is readily distinguishable from Allgeier. Tracy Norrell is not in a similar or comparable fact situation to Maria Boldrick in Allgeir. There is no probative evidence presented by Tracy Norrell that, prior to the filing of his FTCA administrative claim with the Postal Service on October 21, 1999, his condition and injury had improved to the extent that his physician expressed an opinion that he was largely cured and the medical prognosis was for a full recovery without surgery.
The Court finds that Tracy Norrell has not established that surgery on his cervical spine was unexpected or unforeseen when he filed his administrative claim based on the basic severity of his known injury and condition. Prior to filing his FTCA administrative claim, Tracy Norrell knew he had a significant injury to his cervical spine and he either knew or reasonably could have foreseen and expected that he might have surgery. Tracy Norrell was uncertain as to the precise severity of his injury and condition. In the exercise of caution and to be prepared for the worse-case medical prognosis, Tracy Norrell and his attorney deliberately set the amount of the administrative claim for personal injury at the relatively high amount of $250,000. Tracy Norrell's treating physician initially followed a conservative course of treatment using physical therapy and medication. The conservative medical treatment did not achieve the desired result. Tracy Norrell continued to experience pain and his condition deteriorated. Tracy Norrell, in consultation with his physician, made the decision to have spinal fusion surgery. Based on these facts and circumstances, Tracy Norrell cannot now amend his complaint under 28 U.S.C. § 2675(b) to exceed the maximum amount of damages set forth in his administrative claim. The surgery is not newly discovered evidence or an intervening fact within the meaning of § 2675(b). There is no proof that Tracy Norrell required spinal fusion surgery to resolve a previously undiscoverable condition. Cf. Sullivan v. United States, 173 F. Supp.2d 691, 694-95 (E.D. Mich. 2001).
The record shows that Tracy Norrell filed his administrative claim with the United States Postal Service on or about October 21, 1999. He alleged that he had suffered a broken neck. The neck was fractured at the C6/T1 area and the C5/C6 area. He further alleged he had a bulging disc at the C6/C7 area. It was obvious that he had a significant injury to his cervical spine.
Attorney Dave Prickett, who was representing Tracy Norrell, wrote a letter on October 4, 1999, to Kent Woods, Tort Claims Specialist, United States Postal Service, Nashville, Tennessee. In this letter [Court File No. 19, Exhibit 3], Mr. Prickett stated: "With respect to the personal injury portion of the claim, we do not know the extent of the disability, if any, of Mr. Norrell secondary to the broken neck, and that is why the claim is relatively high valued at this time."
On December 9, 1999, attorney Prickett wrote another letter to Kent Woods at the Postal Service concerning the administrative claim. In the letter [Court File No. 19, Exhibit 2], Mr. Prickett stated:
He [Tracy Norrell] was referred to his family physician, Dr. Don Cannon, who examined him initially on July 13th. Dr. Cannon noted that although the X-rays were negative originally at the hospital, that based upon Dr. Cannon's physical examination of Tracy, he suggested an MRI occur. The MRI was performed on July 16th, which MRI was of the cervical spine and which MRI indicated a semi-acute compression fracture at the superior end plate of the C5/C6 area.
Tracy was referred by Dr. Cannon thereafter to Chattanooga Orthopaedic Group, where there was some `mix up' with respect to whom he was supposed to see. He originally says Dr. John Chrostowski on July 21st, who is actually a foot and ankle specialist. As noted in Dr. Chrostowski's report, there was some question in Dr. Chrostowski's mind as to how Mr. Norrell got referred to him. In any event, Dr. Chrostowski indicated that his review of the X-rays and MRIs indicated that there was a fracture at C6. He placed Tracy in a soft collar, and referred him to Dr. Humphreys, who is with the same group.
Dr. Humphreys examined him initially on July 28th, and diagnosed him as having a compression fracture at the C6 area, with possible inflammation.
He was placed in a hard collar for approximately 6 to 8 weeks.
By August 27th, it was noted that Tracy was suffering in addition to the compression fracture, post traumatic stress disorder, secondary to the injury.
Tracy Norrell received treatment from Dr. Craig Humphreys who practices orthopaedic medicine. The Court has read Dr. Humphreys' deposition. [Court File No. 14]. Dr. Humphreys treated the injuries conservatively with physical therapy and medicine but Tracy Norrell continued to experience pain. On March 1, 2001, Dr. Humphreys conducted a physical examination of Tracy Norrell and reviewed new x-rays of his cervical spine. In his notes [Court File No. 21], Dr. Humphreys states that Tracy Norrell experienced "pain in the C5-6 distribution, especially in his left hand." The x-rays show where "C5-6 is collapsing."
On March 7, 2001, an MRI was performed. According to Tracy Norrell, the MRI shows there is "additional collapse" of the compressed vertabrae caused by his compressed fracture. Dr. Humphreys examined Tracy Norrell on September 20, 2001. In his notes [Court File No. 21], Dr. Humphreys states that Tracy Norrell has "severe degenerative changes with a fracture at the body of C6 with severe osteophytes and collapse of C5-C6 on MRI." Dr. Humphreys performed surgery on Tracy Norrell on November 29, 2001. It is the Court's understanding that Dr. Humphreys performed a spinal fusion of C5, C6 and C7.
The possibility that the conservative course of medical treatment might be unsuccessful and that Tracy Norrell might have to undergo spinal fusion surgery as a result of the compression fracture was not unexpected or unforeseen. An objectively reasonable person, standing in Tracy Norrell's shoes in October 1999 when he filed the administrative claim, could have expected and foreseen that it might very well become necessary in the future to have surgery. Tracy Norrell's attorney, Dave Prickett, implicitly recognized this in the October 4, 1999 letter to the Postal Service stating that the administrative claim for personal injury was being set at a relatively high amount ($250,000) because the full extent of injury was not yet known. A fair reading of the record leads this Court to find that by demanding $250,000 in his administrative claim, Tracy Norrell sought to cover the contingency that his injuries might be serious enough to require a greater level of medical care, including surgery. In light of the Sixth Circuit's admonition in Allgeier, 909 F.2d at 878, that 28 U.S.C. § 2675(b) must be narrowly construed and complied with strictly, Tracy Norrell's motion to amend his complaint to increase the amount of damages claimed must be DENIED.
This decision is consistent with the worst-case prognosis standard developed by the First and Fifth Circuits. Dickerson, 280 F.3d at 475-77; Lebron, 279 F.3d at 330-31; Reilly v. United States, 863 F.2d 149, 172-73 (1st Cir. 1988); Low, 795 F.2d at 470-71. Although the Sixth Circuit has not yet explicitly adopted the worst-case prognosis test, the Sixth Circuit in Allgeier closely followed the Fifth Circuit's decision in Low. After reviewing Allgeier, this Court is of the opinion that the Sixth Circuit would follow and apply the worst-case prognosis test enunciated by the Fifth Circuit. In Allgeier, the Sixth Circuit, for all practical purposes, essentially applied what has come to be known today as the worst-case prognosis test.
When a plaintiff files an FTCA administrative claim, he must take care to cover the worst-case scenario by setting a maximum limit on the dollar amount of his claim that takes into account the worst-case medical prognosis of his known injury or condition. Post-administrative claim information can be newly discovered evidence or an intervening fact under 28 U.S.C. § 2675(b) if it sheds significant new light on the basic severity of the claimant's injury or condition, i.e. if it materially differs from the worst-case prognosis of which the claimant either knew or reasonably could have known when the administrative claim was filed. Dickerson, 280 F.3d at 475-77; Lebron, 279 F.3d at 330-31; Reilly, 863 F.2d at 172-73; Low, 795 F.2d at 470-71; Salcedo-Albanez v. United States, 149 F. Supp.2d 1240, 1244-45 (S.D.Cal. 2001); Benjamin v. United States, 85 F. Supp.2d 1034, 1035-37 (D. Colo. 2000).
This is not a case where Tracy Norrell did not know or reasonably could not have known and discovered the basic severity of his condition. Tracy Norrell's new information about spinal fusion surgery only goes to the precision with which the severity of his injury or condition could have been known. See Dickerson, 280 F.3d at 477; Lebron, 279 F.3d at 330. As the Fifth Circuit explains in Low, 795 F.2d at 471, if the precise nature, extent and duration of each recognized injury must be known before § 2675(b) will be given effect, then the statute would be rendered useless; and the government would be unable to evaluate any claim made against it under the FTCA without the threat that, if the government does not agree to a settlement, its liability may increase substantially. See also Dickerson, 280 F.3d at 477; Lebron, 279 F.3d at 330 (quoting Low); Salcedo-Albanez, 149 F. Supp.2d at 1245. Consequently, whether the precise degree of the basic severity of Tracy Norrell's injury and condition was uncertain at the time he filed his administrative claim, in and of itself, is inadequate to trigger the exception to § 2675(b). Reilly, 863 F.2d at 173; Benjamin, 85 F. Supp.2d at 1036.
Requiring Tracy Norrell to guard against a worst-case prognosis in preparing his administrative claim serves the policy of giving the federal government full notice of its maximum potential liability and encourages settlement of the FTCA case in accordance with the purpose of 28 U.S.C. § 2675. Lebron, 279 F.3d at 330-31. Moreover, it is fair and equitable to place the burden on Tracy Norrell to take precautions in his administrative claim to guard against the worst-case prognosis. As between Tracy Norrell and the federal government, he is in by far the better position to determine the worst-case prognosis for his known injury, or, if uncertain, "to paint the picture as bleakly as reason permits and conscience allows." Reilly, 863 F.3d at 173; see also Salcedo-Albanez, 149 F. Supp.2d at 1244; Benjamin, 85 F. Supp.2d at 1036. If Tracy Norrell misjudges as to matters that are known to him or capable of being deduced by him through the exercise of reasonable diligence when his administrative claim is filed, then it is more equitable, given the narrow purpose and strict construction of the FTCA's waiver of sovereign immunity, for Tracy Norrell to bear the burden of his miscalculation rather than to impose it on the federal government. Reilly, 863 F.2d at 173; Salcedo-Albanez, 149 F. Supp.2d at 1244-45; Benjamin, 85 F. Supp.2d at 1036. A reasonable worst-case prognosis at the time Tracy Norrell filed the administrative claim would have predicted that he might need surgery.
B. Post-Traumatic Stress Syndrome
The Court will GRANT Tracy Norrell's motion under FED. R. CIV. P. 15(a) to amend his complaint to plead a claim for post-traumatic stress syndrome. Tracy Norrell seeks to recover compensatory damages for mental anguish and emotional injury. As a practical matter, these elements of damage are already covered under pain and suffering. TENNESSEE PATTERN JURY INSTRUCTIONS CIVIL § 14.10, Personal Injury — Pain and Suffering.
Defendant argues that the administrative claim filed with the United States Postal Service does not explicitly assert that Tracy Norrell has an injury under the theory of post-traumatic stress syndrome. This argument is not persuasive. With regard to filing an administrative claim under the FTCA, 28 U.S.C. § 2675(a) requires only "minimal notice" consisting of two basic elements: (1) a sufficient description of the injury to enable the federal agency to conduct an investigation, and (2) a statement of the value of the claim, i.e., a sum certain. Conn v. United States, 867 F.2d 916, 918-19 (6th Cir. 1989); Knapp v. United States, 844 F.2d 376, 379 (6th Cir. 1988); Emery v. United States, 920 F. Supp. 788, 790 (W.D.Mich. 1996); Lafferty v. United States, 880 F. Supp. 1121, 1126-27 (E.D.Ky. 1995). The courts have taken a flexible approach and liberally construe 28 U.S.C. § 2675(a). As the Fifth Circuit explained in Adams v. United States, 615 F.2d 284, 289 (5th Cir. 1980), the FTCA administrative claims procedure is intended to provide for more fair and equitable treatment of persons when they deal with or are involved in litigation with their federal government. See also, Emery, 920 F. Supp. at 792. As a general matter, no particular form or manner of giving such notice is required as long as the agency is somehow informed of the fact of the alleged injury and the specific value of the FTCA claim. Williams v. United States, 693 F.2d 555, 557 (5th Cir. 1982); Emery, 920 F. Supp. at 790.
Although it is true that Tracy Norrell did not use the term "post-traumatic stress syndrome" in the administrative claim he filed on or about October 21, 1999, it is patently clear from the personal injuries described in the administrative claim that he was seeking compensation for pain and suffering which includes mental anguish and emotional harm. Moreover, on December 9, 1999, Tracy Norrell's attorney, Mr. Prickett, wrote a letter to Kent Woods with the Postal Service, putting the agency on notice that Dr. Humphreys had observed that Tracy Norrell was suffering from post-traumatic stress syndrome. [Court File No. 19, Exhibit 2]. The letter was sufficient to put the Postal Service on fair notice that Tracy Norrell is claiming post-traumatic stress syndrome and to cause the agency to investigate the matter.
III. Conclusion
The motion by plaintiffs Tracy Norrell and Kathy Norrell for partial summary judgment on the issue of liability [Court File No. 11] is DENIED under FED. R. CIV. P. 56. The Norrells' motion for leave to amend their complaint pursuant to FED. R. CIV. P. 15(a) and 28 U.S.C. § 2675(b) to increase the claim for compensatory damages from $259,500 to $650,000 [Court File No. 10] is DENIED. The motion by plaintiff Tracy Norrell to amend his complaint to assert a claim for post-traumatic stress syndrome [Court File No. 10] is GRANTED pursuant to FED. R. CIV. P. 15(a). Defendant shall have the right to take discovery on the issue of post-traumatic stress syndrome.