Ingraham v. United States
Jurisdiction: United States Court of Appeals, Fifth Circuit.
FACTS
-Appellees in these cases sued the US under the Federal Torts Claims Act, for severe injuries caused by negligence of government (Air Force) physicians.
1. Ingraham, back surgery, spinal cord damaged, permanent disabilities, $1,264,000. After entry of judgement, US filed notice of appeal, urging acts limitations of $500,000.
2. Bonds, C-section not performed timely, brain damage of child, child and mother both awarded over $500,000.
ISSUE
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), and the failure to raise it timely constitutes a waiver.
RULES
-Just 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
-Defendant must allege disfavored defenses with greatest particularity.
-Central to requiring the pleading of affirmative defense is the prevention of unfair surprise.
Court also looked at: Lucas v. United States
Jurisdiction: United States Court of Appeals, Fifth Circuit.
FACTS
-Appellees in these cases sued the US under the Federal Torts Claims Act, for severe injuries caused by negligence of government (Air Force) physicians.
1. Ingraham, back surgery, spinal cord damaged, permanent disabilities, $1,264,000. After entry of judgement, US filed notice of appeal, urging acts limitations of $500,000.
2. Bonds, C-section not performed timely, brain damage of child, child and mother both awarded over $500,000.
ISSUE
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), and the failure to raise it timely constitutes a waiver.
RULES
-Just 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
-Defendant must allege disfavored defenses with greatest particularity.
-Central to requiring the pleading of affirmative defense is the prevention of unfair surprise.
Court also looked at: Lucas v. United States
“Where an affirmative defense is raised in the trail court in a manner that does not result in unfair surprise, technical failure to comply with Rule 8(c) is not fatal.”
HOLDING
The court concluded that the Texas statutory limit on medical malpractice damages is an affirmative defense that must be pleaded timely and that, in the cases at bar, the defenses have been waived.
Support us by:
Checking out our amazing store on Etsy: http://www.bohobuttons.com
While in law school I traveled the world. Puerto Rico. Egypt. Israel. The Netherlands. All over the United States. Costa Rica. Panama... How, you ask? I found ways to make money on the side. One of those ways was hosting my apartment on AirBnB. If you have an extra room, this is a perfect way to make some extra cash.
Since law school, I have traveled to dozens of countries for pleasure with my family. It's not rocket science. You just need to know how to start some side hustles. Another one of my favorite ways to make money is buying and selling stocks and cryptocurrency on Robinhood. Join now and get a free stock through this link: Join Robinhood and Get a Free Stock!
No comments:
Post a Comment