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,
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,
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,
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, § 1271 (1969 & supp.), and 27 Fed.Proc., L.Ed. § 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:
Clark, Code Pleading, 2d ed. 1947, § 96 at 609-10, quoted in 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil, § 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. § 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 Restaurant v. Director, Federal Emergency Management Agency, 759 F.2d 500, 502 (5th Cir.1985), quoting Allied Chemical Corp. v. Mackay, 695 F.2d 854, 855 (5th Cir.1983); see also Dickinson v. Auto Center Mfg. Co., 733 F.2d 1092 (5th Cir.1983).
We view the limitation on damages as an "avoidance" within the intendment of the residuary clause of 8(c). Black's Law Dictionary, 5th ed. 1979, defines an avoidance in pleadings as "the 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." Applied 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."
Considering these factors, against the backdrop and with the illumination provided by other applications of Rule 8(c), we conclude that the Texas statutory limit on medical malpractice damages is an affirmative defense which must be pleaded timely and that in the cases at bar the defense has been waived.
Postjudgment Motions
Having failed to raise the issue timely at trial, the government sought to invoke the benefits of the Texas statute in motions seeking relief from judgment under Fed.R.Civ.P. 60(b).
Bonds Case
We subscribe to the view that the requirements of Rule 3 of the Federal Rules of Appellate Procedure
In Bonds, the government, with full knowledge that its motion raising the statutory limitation had been denied, appealed only the judgment on the merits and the denial of the motion to amend, neither of which raised the limitations issue. Accordingly, the issue raised only in the "motion for reconsideration" is not before this court.
Ingraham Case
The situation differs in Ingraham. There, the issue was first raised in a 60(b) motion filed after the appeal was taken. We are mindful that Rule 60(b) is "`a grand reservoir of equitable power to do justice in a particular case.'" Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir.1981) (quoting Menier v. United States, 405 F.2d 245, 248 (5th Cir.1968). As such, a Rule 60(b) motion may be entertained in the district court at any time within a year
Damages in Bonds Case
The government's appeal raises the issue of the excessiveness of two elements of the damages in the Bonds case. While the components and measure of damages in a FTCA case is taken from the law of the state where the tort occurred, Wakefield v. United States, 765 F.2d 55 (5th Cir.1985), an award of damages is a factual finding, protected by Rule 52(a). That finding may be rejected on appeal only if shown to be clearly erroneous.
The government first contends that the damages awarded for future care of Stephanie Bonds were excessive. At trial, Bonds contended that Stephanie would need permanent residential care. The government urged the award of damages for the less expensive alternative of institutional care. The court made comments during the trial which indicated that its award would be based on institutional care. In its findings of fact, however, the court found due, and awarded, damages based on residential care. The government argues that the court's failure to rule as indicated in comments from the bench warrants reversal. We are not persuaded. The award is amply supported by the record.
No court is irretrievably bound by comments made in open court. The court is not irretrievably bound even by a judgment or opinion. At the trial level, there are motions to modify and amend and motions for new trial. At the appellate level, there are petitions for rehearing. The ruling of consequence of the trial court is the judgment. Contrary statements made at an earlier, or later, date do not form the basis of the appeal. It is the judgment, the court's ultimate work-product, that we examine for rectitude. As our colleagues in the Ninth Circuit aptly observed a quarter century ago:
Rawson v. Calmar Steamship Corp., 304 F.2d 202, 206 (9th Cir.1962).
The government further contends that the award of $750,000 to Jocelyn Bonds is excessive. Although not dispositive, we seek guidance from the forum state. In a very recent case a Texas appellate court thoroughly reviewed their jurisprudence and the background of the relatively new allowance of damages to parents for the loss of society of their children. In Ford Motor Company v. Durrill, 714 S.W.2d 329 (Tex.App.1986), the court granted parents $600,000 for the loss of the child's society, observing that "[b]ecause the Supreme Court has only allowed recovery for mental anguish for the death of a child since 1983, there is a paucity of case law that we can examine to see how others
Considering the overwhelming scope of the injuries to little Stephanie, and the obvious continuing effect those injuries will have on Jocelyn Bonds, we are not convinced that the trial court's award is so excessive as to warrant appellate intervention.
The judgments in each of the consolidated cases is AFFIRMED.
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