## Facts

- Two consolidated Federal Tort Claims Act medical-malpractice suits in Texas were brought against the United States based on alleged negligence by Air Force medical personnel.
- Texas law limited certain non-economic damages in medical-malpractice actions to $500,000, while not capping past and future medical expenses.
- In one case, a civilian patient underwent back surgery in which a negligently used drill damaged his spinal cord, causing severe permanent injury; the district court awarded $1,264,000, including $900,000 for pain, suffering, and disability.
- In the other case, a cesarean section was mismanaged, causing in utero asphyxiation and severe brain damage to the child; the district court awarded approximately $3.49 million to the child and $750,000 to the mother for loss of society and other damages.
- The United States did not plead the Texas damages cap in its answers and did not mention the statute during trial in either case.
- Only after adverse judgments did the United States move to reduce the awards to comply with the Texas cap; the district courts denied the motions as waived.

## Issues

1. Whether Texas’s statutory cap on medical-malpractice damages is an “avoidance or affirmative defense” that must be pleaded under Federal Rule of Civil Procedure 8(c).
2. Whether the United States waived reliance on the damages cap by raising it only after judgment in post-trial motions.
3. In the Bonds action, whether the awards should be reduced as excessive apart from any statutory cap.

## Decision

- The Fifth Circuit affirmed the judgments.
- The Texas damages cap functioned as an avoidance or affirmative defense under Rule 8(c) and therefore had to be timely raised in the pleadings or otherwise before trial.
- Because the United States did not raise the cap until after judgment, it waived the defense and could not obtain post-judgment reduction of damages on that basis.
- In the Bonds action, the court also rejected the claim that the awards were excessive on independent grounds.

## Legal Principles

- Under Rule 8(c), affirmative defenses and “any other matter constituting an avoidance or affirmative defense” are waived if not raised in the answer (or otherwise timely presented).
- A statutory damages cap that limits the legal effect of otherwise recoverable tort damages is an “avoidance” because it does not negate liability but restricts the remedy.
- Rule 8(c) is designed to prevent unfair surprise by requiring defendants to provide notice of defenses that materially affect the scope and proof of damages.
- A defendant may not reserve an unpleaded affirmative defense for post-judgment motions to alter or reduce an adverse award.

## Conclusion

The Fifth Circuit treated Texas’s medical-malpractice damages cap as a waivable affirmative defense and held that the United States forfeited the cap by failing to plead or raise it before or during trial, leaving the plaintiffs’ judgments intact.


Ingraham v. United States, 808 F.2d 1075 (5th Cir. 1987)