Simon v. U.S.

• Decision Date: 16 January 1990
• Docket Number: No. 88-2141,88-2141
• Citation: 891 F.2d 1154
• Parties: Sherman SIMON, Jr., Individually and as next friend of his minor children, Peter Darnell Simon and Keenan Simon, etc., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1154

891 F.2d 1154

15 Fed.R.Serv.3d 867

Sherman SIMON, Jr., Individually and as next friend of his minor children, Peter Darnell Simon and Keenan Simon, etc., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 88-2141.

United States Court of Appeals Fifth Circuit.

Jan. 16, 1990.

Olen Kenneth Dodd, Asst. U.S. Atty., Bob Wortham, U.S. Atty., Beaumont, Tex., Anthony R. Sherr, Torts Branch, Civil Div., Dept. of Justice, Robert S. Greenspan, Civil Div., Appellate Staff, Dept. of Justice, Washington, D.C., for defendant-appellant.

Richard Clarkson, Gilbert T. Adams, Jr., Beaumont, Tex., for plaintiff-appellee.

W.V. Dunnam, Jr., Waco, Tex., for amicus curiae Eugene and Dora Owen.

Appeal from the United States District Court for the Eastern District of Texas.

Before CLARK, Chief Judge, BROWN and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

A judgment for $1,061,656.01 was entered against the United States under the Federal Tort Claims Act in a suit for medical malpractice brought by the family of a patient who died after surgery at an Army hospital in Louisiana. The United States filed a motion to alter or amend the judgment, claiming that the Louisiana Medical Malpractice Act, which limits to $500,000 the damages that can be recovered for medical malpractice, applies to suits against the United States under the Federal Tort Claims Act. The United States appeals from the judgment and the district court's denial of its motion to alter or amend.

After briefing and oral argument, we took no further action in this case pending the Louisiana Supreme Court's ruling on the constitutionality of the Louisiana Medical Malpractice Act under the Louisiana Constitution. When, however, the Louisiana Supreme Court ruled in that case, Williams v. Kushner, 549 So.2d 294 (La.1989), it held that the constitutionality of the $500,000 limitation on recovery was not properly before the court. ¹

Now our further research and closer review of the proceedings in this case has convinced us that a procedural bar precludes the application of the statutory limitation. We hold that, because the United States did not raise the issue in the trial court in a timely manner, the United States waived any defense that may have been available to it under the Louisiana Medical Malpractice Act. Our disposition of this case therefore makes it unnecessary for us to consider the issues of whether the Louisiana act applies to suits against the government under the Federal Tort Claims Act and whether the Louisiana act is constitutional.

I

On August 14, 1985, Rene B. Simon entered the Bayne-Jones Army Community Hospital at Fort Polk, Louisiana, for a right thyroid lobectomy. As a result of the operation, she sustained injuries resulting in brain death. Seven days later, she was removed from her respirator and allowed to die.

II

Mrs. Simon's husband, Sherman Simon, Jr., brought a suit for wrongful death against the United States under the Federal Tort Claims Act ("FTCA"), on behalf of Mrs. Simon's estate, himself, and their two children. Mrs. Simon's father, Jesse Boudreaux, Jr., was initially named as a plaintiff. Prior to trial, the United States successfully moved for summary judgment against Boudreaux on the grounds that Louisiana law applied and barred the claims of a father for the death of a child where the child was survived by a spouse or children.

The United States stipulated to its liability, and a bench trial was held, limited to the issue of damages. The district court awarded Simon $1,061,656.01, none of which was for medical expenses.

The United States then filed a motion to alter or amend the district court's judgment under Fed.R.Civ.P. 59(e) on the ground that the FTCA incorporates the provisions of the Louisiana Medical Malpractice Act, which limits to $500,000 the damages (exclusive of medical expenses) that can be recovered for medical malpractice. The district court denied the motion, and the United States appeals.

III

Although both parties argue the applicability and constitutionality of the Louisiana Medical Malpractice Act as well as the procedural issue, we address only the procedural issue. Simon argues that we need not consider the merits because, irrespective of the applicability of the limitation statute in this case, the United States waived such defense by failing to assert that defense in pleadings, in the pretrial order, at the pretrial conference, or at trial. The United States argues that it did not waive the defense because it described the Louisiana limitation in a motion for summary judgment, the issue was encompassed in the pretrial order, and the defense was raised in a timely motion to alter and amend the judgment.

A

Although state substantive law applies in suits brought under the FTCA, "the Federal Rules of Civil Procedure provide the manner and time in which defenses are raised and when waiver occurs." Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 345 (5th Cir.1981). This court has not previously considered whether the Louisiana limitation on malpractice damages is an affirmative defense within the meaning of Fed.R.Civ.P. 8(c), but our court has previously held that a Texas statute limiting recovery in malpractice actions is an affirmative defense. Lucas v. United States, 807 F.2d 414 (5th Cir.1986); Ingraham v. United States, 808 F.2d 1075 (5th Cir.1987). See also Jakobsen v. Massachusetts Port Authority, 520 F.2d 810 (1st Cir.1975) (statutory limitation on liability is an affirmative defense under Rule 8(c)). But cf. Taylor v. United States, 821 F.2d 1428, 1433 (9th Cir.1987), cert. denied, 485 U.S. 992, 108 S.Ct. 1300, 99 L.Ed.2d 510 (1988) (California statutory limitation on noneconomic damages in actions based on professional negligence "is a limitation of damages rather than an affirmative defense"). ²

Our precedent in Ingraham regarding the Texas statute compels the conclusion that the Louisiana limitation is also an affirmative defense because it is an "avoidance" within the meaning of Rule 8(c). An avoidance in pleadings is an "allegation or statement of new matter, in opposition to a former pleading, which, admitting the facts alleged in such former pleading, shows cause why they should not have their ordinary legal effect." Ingraham, 808 F.2d at 1079 (quoting Black's Law Dictionary, 5th ed. 1979). As our court noted in Ingraham, "[a]pplied to the present discussion, a plaintiff pleads the traditional tort theory of malpractice and seeks full damages. The defendant responds that assuming recovery is in order under the ordinary tort principles, because of the new statutory limitation, the traditional precedents 'should not have their ordinary legal effect.' " 808 F.2d at 1079. We therefore conclude that the Louisiana limitation on malpractice damages is an affirmative defense.

Fed.R.Civ.P. 8(c) requires affirmative defenses to be set forth in a defendant's responsive pleading. Failure to comply with Rule 8(c) usually results in a waiver. Starcraft Co. v. C.J. Heck Co., 748 F.2d 982, 990 n. 11 (5th Cir.1984). If, however, a defendant raises the issue at a "pragmatically sufficient time," and if the plaintiff is not prejudiced in its ability to respond, there is no waiver of the defense. Lucas v. United States, 807 F.2d 414, 418 (5th Cir.1986). See Bull's Corner Restaurant v. Director, Federal Emergency Management Agency, 759 F.2d 500, 502 (5th Cir.1985) (citation omitted) (where an affirmative defense "is raised in the trial court in a manner that does not result in unfair suprise ... technical failure to comply precisely with Rule 8(c) is not fatal").

B

(1)

Admitting that it did not plead the Louisiana malpractice limitation as an affirmative defense in its answer, the United States contends that, nevertheless, the defense was not waived because the limitation was described in a pretrial motion for summary judgment. On May 20, 1987, four months before trial, the United States filed a motion for summary judgment against Jesse Boudreaux, Jr., Rene Simon's father, on the ground that, under La.Civ.Code art. 2315, he could not recover damages for the death of his daughter because she was survived by her spouse and children. Pursuant to art. 2315, a parent of a decedent has no cause of action for wrongful death if the decedent leaves a surviving spouse or child. In arguing successfully that Louisiana law applied, the United States relied on Louisiana's "strong interest in regulating the liability of medical health care providers within its state to insure the continued availability of medical care." In order to illustrate that state interest, the United States went on to describe the Louisiana malpractice statute in detail:

Louisiana has a comprehensive medical malpractice statutory scheme, which among other things, limits the amounts recoverable, exclusive of future medical expenses, in a medical malpractice action to a total of $500,000. Louisiana Revised Statutes 40 § 129.41. The purpose of the statutes which regulate medical malpractice actions was explained by the Louisiana Supreme Court: "We find this enactment rationally related to an appropriate governmental interest, the guarantee of continued health care services for our citizens at reasonable cost." [ ] Everett v. Goldman, 359 So.2d 1256, 1266 (La.1978). Surely, this demonstrates the important interests Louisiana has in medical malpractice cases which occur within its borders. The Louisiana legislature found that health care services for all people were in jeopardy. In response, they adopted their medical malpractice statutory scheme. Therefore, Louisiana's compelling interest must prevail over any interest that Texas may have in the present case.

Although the description of the Louisiana malpractice statute, including the $500,000 limitation, was perhaps central to the government's argument that Louisiana law should apply, the malpractice act's limitation on recovery had no bearing on the...