808 F.2d 1075 (5th Cir. 1987)
Plaintiff patients were severely injured by the negligence of defendant government's physicians. Plaintiffs filed suit and were awarded millions of dollars. Defendant filed a motion to amend the judgment under Fed. R. Civ. P. 59, which was denied. Three months later, defendant filed a pleading entitled motion for reconsideration and advanced Tex. Rev. Civ. Stat. Ann. art. 4590i, § 11.02(a), which set a cap on damages against a physician or health care provider, as grounds for a reduction in the amount of the awards. The motion was denied. Defendant appealed the judgment and the denial of the motion to amend, but did not appeal the denial of the motion for reconsideration.
The appellate court affirmed because § 11.02(a) was an affirmative defense that had been waived by defendant due to its failure to timely plead the defense, the issues raised in the motion for reconsideration were not before the appellate court, and the damage awards were not excessive.
The appellate court affirmed the judgment in favor of plaintiff patients and the denial of defendant government's motion to amend the judgment.
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