Natalia Lopatina v. United States of America

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1662
NATALIA LOPATINA,
Plaintiff - Appellee,
v.
UNITED STATES OF AMERICA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Charles B. Day, Magistrate Judge.
(8:09-cv-02852-CBD)
Argued: May 15, 2013 Decided: June 14, 2013
Before KING and AGEE, Circuit Judges, and David C. NORTON,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Jeffrey Eric Sandberg, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant. Ernest W. McIntosh,
Jr., NEWMAN & MCINTOSH, LLC, Washington, D.C., for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, Stuart F.
Delery, Acting Assistant Attorney General, Thomas M. Bondy,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellant.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Plaintiff-Appellee Natalia Lopatina (“Lopatina”) was
injured when she was struck by a United States Postal Service
(“USPS”) truck while riding her bicycle. Lopatina filed an
administrative claim with the USPS for $75,750 in damages under
the Federal Tort Claims Act (“FTCA”). When that claim was
denied, she commenced this action in the United States District
Court for the District of Maryland. Following a bench trial,
the district court awarded Lopatina $176,132 in damages,
concluding that 28 U.S.C. § 2675(b) permitted her to recover
damages in excess of her administrative claim because she
presented “newly discovered evidence not reasonably
discoverable” at the time she filed her claim. The Government
appeals, contending that the district court committed errors of
law in interpreting and applying 28 U.S.C. § 2675(b). For the
reasons that follow, we affirm the judgment of the district
court.
I.
A.
The accident occurred on May 30, 2007, in Rockville,
Maryland. Lopatina, who had stopped at an intersection, began
to cycle through the crosswalk when the light turned green.
Allen Wang, a USPS employee acting within the scope of his

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employment, was stopped at the traffic light in a USPS truck.
While looking to the left, he began to make a lawful right turn
on red. As his truck moved forward at low speed, it collided
with Lopatina, causing her to fall from her bicycle. After the
accident, Lopatina was treated at the emergency room for
abrasions and scratches.
Two days later, Lopatina went to an urgent-care facility
complaining of pain in her left shoulder. The facility referred
her to an orthopedic surgeon, Dr. Richard Meyer (“Dr. Meyer”).
On June 5, 2007, Dr. Meyer diagnosed Lopatina with, among other
things, cervical spine strain and left shoulder sprain.
Lopatina underwent physical therapy. Dr. Meyer discharged her
after eight weeks, but advised that it might take a year for her
shoulder to fully heal. Lopatina did not seek or receive any
medical treatment for her shoulder during the ten months that
followed—from August 2007 through June 2008.
In March 2008, Lopatina filed an administrative claim with
the USPS for injuries allegedly arising from the accident,
including to her shoulder. The claim demanded a sum of $75,750,
comprising $75,000 in personal injury damages and $750 in
property losses. Lopatina certified that she would “agree to
accept said amount in full satisfaction and final settlement of
this claim.” (J.A. 503.)

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While her administrative claim was pending, Lopatina
returned to Dr. Meyer complaining of continued pain in her left
shoulder, which had remained symptomatic since the accident. An
MRI revealed “mild leading edge supraspinatus tendinosis” in her
shoulder—a chronic degenerative condition in the connective
tissue of a tendon in the rotator cuff of the shoulder. (J.A.
252, 396, 451.) In July 2008, Dr. Meyer referred Lopatina to
another orthopedic surgeon, Dr. Benjamin Shaffer (“Dr.
Shaffer”), a “nationally known shoulder expert.” (J.A. 252.)
Lopatina first visited Dr. Shaffer in October 2008. At
that visit, Dr. Shaffer noted that Lopatina’s “left shoulder has
been symptomatic since” the accident. (J.A. 284, see also J.A.
421–22.) He speculated that instead of, or in addition to,
supraspinatus tendinosis, Lopatina might have sustained a tear
to the labrum in her shoulder. Dr. Shaffer “advocated that
[Lopatina] consider arthroscopic evaluation with definitive
treatment rendered at the time of surgery[,] which might include
repair of a labral injury.”1 (J.A. 285.) Lopatina decided not
to undergo surgery at that time.
1 The labrum is a cuff of cartilage that rings the interior
of the shoulder socket. (J.A. 401.) In contrast to tendinosis
or shoulder impingement, which may be caused by any number of
factors (including overuse or aging), labral tears are normally
caused by trauma. (J.A. 455; see generally J.A. 430–32, 446–56
(discussing possible causes of various shoulder conditions).)

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In December 2008, Lopatina sent a supplemented list of
damages to the USPS, including medical bills from Dr. Shaffer.
However, Lopatina did not amend her administrative claim or
otherwise state that she was increasing her sum-certain demand
for damages.
Lopatina visited Dr. Shaffer again in April 2009. Dr.
Shaffer reiterated his opinion that Lopatina may have sustained
a labral tear, and again advised that she was “the perfect
candidate for a diagnostic and probable operative arthroscopic
evaluation with possible labral repair.” (J.A. 288.)
In May 2009, the USPS denied Lopatina’s administrative
claim, explaining that it could not “keep th[e] claim open for
an indefinite amount of time” while she explored further medical
treatment. (J.A. 28.) The USPS indicated that it would
entertain a request for reconsideration of the claim once
Lopatina had “conclude[d] [her] investigation into [her] medical
condition.” (J.A. 28.)
In July 2009, Dr. Shaffer performed surgery on Lopatina’s
shoulder. Although he had suspected a labral tear, he
discovered during the surgery that the labrum was intact. He
instead observed a “partial tearing of the rotator cuff,
specifically the supraspinatus [tendon] at the site which had
been identified in the MRI.” (J.A. 403.) He further identified
a shoulder impingement—a “relative narrowing of the space in

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which the supraspinatus tendon under[goes] normal excursion”
during movement of the joint. (J.A. 403–04.) In light of these
findings, Dr. Shaffer changed his primary diagnosis from “labral
tear” to “subacromial impingement, left shoulder.” (J.A. 453.)
Dr. Shaffer then proceeded to make several structural repairs to
the shoulder joint. After a successful operation, Lopatina
obtained follow-up treatment from Dr. Shaffer and completed a
course of physical therapy.
A year later, in July 2010, Lopatina returned to Dr.
Shaffer with further complaints. Dr. Shaffer opined that her
“symptoms [had] evolved in a way that clearly reflects a primary
cervical problem” and ordered a new MRI. (J.A. 297.) In August
2010, after reviewing the new MRI, Dr. Shaffer stated that his
“working diagnosis” was that Lopatina had “cervical
strain/whiplash syndrome.” (J.A. 298.) He then referred
Lopatina to a spine expert.
Lopatina never provided the USPS with a new administrative
demand for damages, including expenses incurred after her
surgery with Dr. Shaffer, nor did she seek reconsideration of
her prior claim.
B.
In October 2009, Lopatina filed suit under the FTCA in the
United States District Court for the District of Maryland. The

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parties consented to proceed before a magistrate judge, and a
two-day bench trial was held in December 2011. At trial, the
Government conceded that the postal driver had been negligent,
but contended that Lopatina had also been negligent and that her
contributory negligence barred her recovery under Maryland law.
The Government also averred that Lopatina had failed to show
that her shoulder injury was caused by the May 2007 accident, as
opposed to athletic activities or other motor vehicle accidents.
In an oral decision at the close of trial, the district
court determined that the postal driver was solely responsible
for the May 2007 accident, and that the collision had caused
Lopatina’s injuries. The court then found that Lopatina had
incurred damages of $176,132—medical expenses of $35,164; pain-
and-suffering losses of $140,656 (calculated as a multiplier of
four times her medical expenses); and property loss of $312. In
assessing pain and suffering, the court determined that Lopatina
had sustained a “permanent injury” to her shoulder in the sense
that she “got scarring” from the surgical incisions. (J.A. 199;
see J.A. 403–05.) The court rejected Lopatina’s argument,
however, that she was entitled to recover any damages for
“future pain” or “future medical care and expenses,” finding her
evidence of such damages to be too speculative. (J.A. 197,
199.)

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The Government asserted that Lopatina’s aggregate recovery
was limited by law to the amount of her administrative claim—
$75,750—because under the FTCA, a plaintiff generally may not
recover “any sum in excess of the amount of the claim presented
to the federal agency.” 28 U.S.C. § 2675(b). In response,
Lopatina argued that she should be permitted to recover
additional damages under the “newly discovered evidence”
exception of 28 U.S.C. § 2675(b) because at the time she filed
her administrative claim, she was not yet fully aware of the
extent or nature of the existing injury to her shoulder.
The district court denied the Government’s motion to limit
Lopatina’s damages to the amount of her administrative claim,
ruling instead that Lopatina had satisfied the “newly discovered
evidence” exception under 28 U.S.C. § 2675(b). The court found
that Lopatina “was not aware of the final diagnoses of her
injuries from the accident until after Dr. Shaffer performed
surgery on her on July 1, 2009.” (J.A. 515.) Additionally, the
court found that Lopatina’s symptoms had “evolved” after
surgery, and that those evolving symptoms might reflect the
development of “a primary cervical problem or whiplash
syndrome.” (J.A. 515.) Based upon those findings, the court
concluded that “the diagnoses, treatments of her newly diagnosed
conditions, and damages related to these diagnoses are ‘newly
discovered evidence not reasonably discoverable at the time of

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presenting the [administrative] claim.’” (J.A. 516.) The court
then proceeded to enter judgment for the full amount of damages
it had assessed at trial: $176,132.
In January 2012, the Government filed a partial motion for
reconsideration directed principally to the calculation of
Lopatina’s medical expenses. In May 2012, the district court
granted the motion and reduced Lopatina’s total damages award to
$169,518.30.
The Government timely appealed, and the Court has
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
A.
The FTCA, 28 U.S.C. §§ 1346(b), 2671–2680, governs tort
claims for injuries arising from the negligent conduct of
federal employees acting within the scope of their employment.
A plaintiff proceeding against the United States under the FTCA
must first file an administrative claim with the relevant
federal agency within two years after the injury. 28 U.S.C.
§§ 2401(b), 2675(a). The administrative claim must contain,
among other things, a “sum certain” for damages. See 28 U.S.C.
§ 2675(b); see also 28 C.F.R. § 14.2(a); 39 C.F.R. § 912.5(a).
The presentation of an administrative claim containing a sum-
certain demand is a jurisdictional prerequisite to suit. See

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Kokotis v. U.S. Postal Serv., 223 F.3d 275, 278–79 (4th Cir.
2000). While a claim remains pending with the agency, a
claimant may file an amended claim at any time to increase the
amount of her sum-certain demand. See 28 C.F.R. § 14.2(c); 39
C.F.R. § 912.5(b)-(c).
If the administrative claim is denied, or if six months
elapse without agency action on the claim, a claimant may bring
suit in federal court. 28 U.S.C. § 2675(a). The amount of
damages that may be recovered is presumptively limited to the
“amount of the claim presented to the federal agency.” Id.
§ 2675(b). A plaintiff may, however, recover a “sum in excess”
of that claim “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.” Id. A plaintiff “bear[s] the burden of proving that
they are entitled to damages in excess of [their] administrative
claim.” Spivey v. United States, 912 F.2d 80, 85 (4th Cir.
1990).
B.
The Government contends that the district court erred in
entering judgment for a sum in excess of Lopatina’s
administrative claim because it failed to find that the

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“increased amount” of damages sought by Lopatina was “based upon
newly discovered evidence.” 28 U.S.C. § 2675(b) (emphasis
added). Because the Government failed to raise this issue
before the district court, however, we affirm the court’s
judgment.
Notably, at oral argument, the Government conceded it had
failed to raise the issue below which it now asserts on appeal.
The Government’s memorandum of law before the district court
regarding the FTCA’s limitation on Lopatina’s potential recovery
markedly failed to include any mention of the argument it now
pursues. In the district court, the Government only contended
that Lopatina was precluded from receiving an award in excess of
the sum-certain amount in her administrative claim. The
entirety of the argument section of the Government’s trial
memorandum reads as follows:
The plaintiff cannot demonstrate any “newly discovered
evidence” or “intervening facts” that could not have
been discovered when she supplemented her
administrative claim in December 2008. She knew that
she had supraspinatus tendinosis and needed surgery
when she submitted her supplement. Nonetheless, she
declined to increase her sum certain. Accordingly,
she is precluded from receiving any award in excess of
the $75,750.
(Dist. Ct. Docket No. 45, at 4.)
On appeal in this Court, the Government now argues that the
district court committed errors of law in interpreting and
applying 28 U.S.C. § 2675(b). Specifically, the Government

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contends that although the district court found that Lopatina’s
changing diagnoses constituted “newly discovered evidence” that
were “not reasonably discoverable at the time” she presented her
administrative claim, the court failed to find that the
“increased amount” of damages sought in excess of Lopatina’s
administrative claim was “based upon” those changed diagnoses.
28 U.S.C. § 2675(b). This is a substantively different argument
than the Government’s trial position, which was simply that
Lopatina was barred from any damages over the administrative
claim amount because she failed to amend that claim prior to
filing suit.
The Government’s failure to raise its new argument in the
district court means that this Court will not consider it as a
basis to reverse the district court’s judgment. “We have
repeatedly held that issues raised for the first time on appeal
generally will not be considered.” Karpel v. Inova Health Sys.
Servs., 134 F.3d 1222, 1227 (4th Cir. 1998); see, e.g.,
Washington Metro. Area Transit Auth. v. Precision Small Engines,
227 F.3d 224, 227–28 (4th Cir. 2000); Muth v. United States, 1
F.3d 246, 250 (4th Cir. 1993). “Exceptions to this general rule
are made only in very limited circumstances, such as where

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refusal to consider the newly-raised issue would be plain error2
or would result in a fundamental miscarriage of justice.” Muth,
1 F.3d at 250 (citing Nat’l Wildlife Fed’n v. Hanson, 859 F.2d
313, 318 (4th Cir. 1988)). We can find no evidence in the
record that such circumstances exist here.
Accordingly, because the Government failed to preserve this
issue for appeal, we deem the Government’s argument waived and
thus decline to consider it. We therefore conclude that the
district court’s entry of judgment for a sum in excess of
Lopatina’s administrative claim does not constitute plain error
or a fundamental miscarriage of justice.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
2 Applying plain error review, we will not reverse unless
the Government can establish: “(1) there is an error; (2) the
error is plain; (3) the error affects substantial rights; and
(4) the court determines . . . that the error seriously affects
the fairness, integrity or public reputation of judicial
proceedings.” In re Celotex Corp., 124 F.3d 619, 630–31 (4th
Cir. 1997) (citing United States v. Olano, 507 U.S. 725, 730
(1993)). The Government is unable to show that the district
court committed plain error.

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