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01-4089 Zurba v. U.S.

By: dmc-admin//February 10, 2003//

01-4089 Zurba v. U.S.

By: dmc-admin//February 10, 2003//

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“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).

“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.

“[I[n 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.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Kennelly, J., Manion, J.

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