Ingraham v. U.S.

• Decision Date: 16 January 1987
• Docket Number: 83-1160,Nos. 83-1154,s. 83-1154
• Parties: Dwight L. INGRAHAM, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. Jocelyn BONDS, etc., et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1075

808 F.2d 1075

6 Fed.R.Serv.3d 1329

Dwight L. INGRAHAM, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

Jocelyn BONDS, etc., et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

Nos. 83-1154, 83-1160.

United States Court of Appeals Fifth Circuit.

Jan. 16, 1987.

Helen M. Eversberg, U.S. Atty., Harold O. Atkinson, Asst. U.S. Atty., San Antonio, Tex., Sandra Wien Simon, Robert S. Greenspan Civil Div., Dept. of Justice, Washington, D.C., for defendant-appellant in No. 83-1154.

Russell H. McMains, Corpus Christi, Tex., Guy H. Allison, Richard S. Johnson, San Antonio, Tex., for plaintiff-appellee in No. 83-1154.

Donald P. Wilcox, Austin, Tex., for amicus curiae Texas Med. Ass'n.

Bruce G. Forrest, Atty., Civil Div., U.S. Dept. Of Justice, Washington, D.C., for defendant-appellant in No. 83-1160.

Susan German, Asst. Atty. Gen., Austin, Tex., for amicus curiae State of Tex.

Lawrence J. Madigan, Moriarty & Madigan, Houston, Tex., Harry Adams, Universal City, Tex., for plaintiffs-appellees in No. 83-1160.

Aubrey Flowers, San Antonio, Tex., Guardian Ad Litem for minor plaintiff.

Appeals from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, RUBIN and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

The appellees in these consolidated cases sued the United States, under the Federal Tort Claims Act, for severe injuries caused by the negligence of government physicians. In each case, after entry of adverse judgment the government moved for relief from the judgment to the extent that the damages exceeded the limit imposed on medical malpractice awards by the Medical Liability and Insurance Improvement Act of Texas, Tex.Rev.Civ.Stat.Ann. art. 4590i. The respective district courts denied these posttrial motions. Concluding that the government did not raise the issue timely before the trial courts, that the issues were not preserved for appeal, and, in the Bonds case, that the challenged awards were not otherwise excessive, we affirm both judgments.

Background

In 1977, in response to what was perceived to be a medical malpractice crisis, the Legislature of Texas, like several other state legislatures, adopted certain limitations on damages to be awarded in actions against health care providers, for injuries caused by negligence in the rendering of medical care and treatment. Of particular significance to these appeals is the $500,000 cap placed on the ex delicto recovery, ¹ not applicable to past and future medical expenses. ²

On February 12, 1979, Dwight L. Ingraham was operated on by an Air Force surgeon. During the back surgery a drill was negligently used and Ingraham's spinal cord was damaged, causing severe and permanent injuries. The court awarded Ingraham judgment for $1,264,000. This total included $364,000 for lost wages and $900,000 for pain, suffering, and disability. There is no reference to the Medical Liability and Insurance Improvement Act of Texas in the pleadings, nor was any reference made to the Act during the trial. After entry of judgment the United States filed a notice of appeal. Thereafter, urging the Act's limitations, the government sought relief from judgment under Fed.R.Civ.P. 60(b). The district court denied that motion. No appeal was taken from that ruling.

Similarly, in March of 1979, Jocelyn and David Bonds, and their infant daughter Stephanie, were victims of the negligent performance by an Air Force physician. Because of the mismanagement of the 43rd week of Jocelyn Bonds's first pregnancy and the negligent failure to perform timely a caesarian section delivery, Stephanie suffered asphyxiation in utero. The loss of oxygen caused extensive brain damage, resulting in spastic quadriparesis, cortical blindness, seizures, and mental retardation. In their FTCA action the court awarded Stephanie $1,814,959.70 for medical expenses and $1,675,595.90 for the other losses. Jocelyn Bonds was awarded $750,000 for her losses, including loss of the society of her daughter. As in the Ingraham case, the government did not invoke the Texas malpractice limitation in pleading or at trial. Postjudgment the government filed a motion to amend the judgment under Fed.R.Civ.P. 59, but, again, there was no mention of the limitations Act. Subsequently, three months after entry of the judgment, the government filed a pleading entitled "Motion for Reconsideration," in which it advanced the malpractice Act. That motion was denied. The government appealed the judgment and motion to amend, but did not appeal the denial of the "motion for reconsideration."

These appeals do not challenge the courts' findings of liability, but object only to quantum, contending that damages are limited by the Medical Liability and Insurance Improvement Act and, in the case of Stephanie and Jocelyn Bonds, are otherwise excessive.

Analysis

Appellees maintain that we should not consider the statutory limitation of liability invoked on appeal because it is an affirmative defense under Rule 8(c) of the Federal Rules of Civil Procedure, ³ and the failure to raise it timely constitutes a waiver. We find this argument persuasive.

Rule 8(c) first lists 19 specific affirmative defenses, and concludes with the residuary clause "any other matter constituting an avoidance or affirmative defense." In the years since adoption of the rule, the residuary clause has provided the authority for a substantial number of additional defenses which must be timely and affirmatively pleaded. These include: exclusions from a policy of liability insurance; breach of warranty; concealment of an alleged prior undissolved marriage; voidable preference in bankruptcy; noncooperation of an insured; statutory limitation on liability; the claim that a written contract was incomplete; judgment against a defendant's joint tortfeasor; circuity of action; discharge of a contract obligation through novation or extension; recission or mutual abandonment of a contract; failure to mitigate damages; adhesion contract; statutory exemption; failure to exhaust state remedies; immunity from suit; good faith belief in lawfulness of action; the claim that a lender's sale of collateral was not commercially reasonable; a settlement agreement or release barring an action; and custom of trade or business. See 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil, Sec. 1271 (1969 & supp.), and 27 Fed.Proc., L.Ed. Sec. 62.63 (1984 & supp.), for discussion and citations.

Determining whether a given defense is "affirmative" within the ambit of Rule 8(c) is not without some difficulty. We find the salient comments of Judge Charles E. Clark, Dean of the Yale Law School, later Chief Judge of the United States Second Circuit Court of Appeals, and the principal author of the Federal Rules, to be instructive:

[J]ust as certain disfavored allegations made by the plaintiff ... must be set forth with the greatest particularity, so like disfavored defenses must be particularly alleged by the defendant. These may include such matters as fraud, statute of frauds ..., statute of limitations, truth in slander and libel ... and so on. In other cases the mere question of convenience may seem prominent, as in the case of payment, where the defendant can more easily show the affirmative payment at a certain time than the plaintiff can the negative of nonpayment over a period of time. Again it may be an issue which may be generally used for dilatory tactics, such as the question of the plaintiff's right to sue ... a vital question, but one usually raised by the defendant on technical grounds. These have been thought of as issues "likely to take the opposite party by surprise," which perhaps conveys the general idea of fairness or the lack thereof, though there is little real surprise where the case is well prepared in advance.

Clark, Code Pleading, 2d ed. 1947, Sec. 96 at 609-10, quoted in 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil, Sec. 1271, p. 313 (1969).

Also pertinent to the analysis is the logical relationship between the defense and the cause of action asserted by the plaintiff. This inquiry requires a determination (1) whether the matter at issue fairly may be said to constitute a necessary or extrinsic element in the plaintiff's cause of action; (2) which party, if either, has better access to relevant evidence; and (3) policy considerations: should the matter be indulged or disfavored? See 27 Fed.Proc., L.Ed. Sec. 62.63.

Central to requiring the pleading of affirmative defenses is the prevention of unfair surprise. A defendant should not be permitted to "lie behind a log" and ambush a plaintiff with an unexpected defense. Bettes v. Stonewall Insurance Co., 480 F.2d 92 (5th Cir.1973); see also Bull's Corner Restaurant, Inc. v. Director, Federal Emergency Management Agency, 759 F.2d 500 (5th Cir.1985). The instant cases illustrate this consideration. Plaintiffs submit that, had they known the statute would be applied, they would have made greater efforts to prove medical damages which were not subject to the statutory limit. In addition, plaintiffs maintain that they would have had an opportunity and the incentive to introduce evidence to support their constitutional attacks on the statute.

This distinction separates the present cases from our recent decision in Lucas v. United States, 807 F.2d 414 (5th Cir.1986). In Lucas, although the limitation of recovery issue was not pleaded, it was raised at trial. We held that the trial court was within its discretion to permit the defendant to effectively amend its pleadings and advance the defense. The treatment we accorded this issue in Lucas is consistent with long-standing precedent of this and other circuits that " 'where [an affirmative defense] is raised in the trial court in a manner that does not result in unfair surprise, ... technical failure to comply with Rule 8(c) is not fatal.' " Bull's Corner...