765 F.3d 521
5th Cir.2014Background
- Lees sued under the FTCA for medical malpractice arising from C.L.’s treatment at a military medical facility.
- District court found government liable and awarded future medical/healthcare damages and pain/mental anguish damages in lump sums.
- Government requested application of Texas Civil Practice & Remedies Code § 74.503 periodic payment scheme; district court did not apply it.
- Court considered whether the Texas scheme could be emulated via a reversionary trust to avoid continuing government obligation.
- Issue of post-judgment interest arose under 31 U.S.C. § 1304(b)(1)(A); District Court awarded interest from judgment date.
- Court vacated and remanded to reformat damages to mirror Texas periodic payments and correct interest accrual.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Texas periodic payment scheme should apply | Lees contends scheme applies once invoked, mandating periodic payments. | Government argues either no waiver or that FTCA permits such structuring; seeks reversionary mechanism. | District court erred by not applying the Texas scheme; damages should mirror periodic payments. |
| Whether the issue was waived or timely raised | Lees asserts timely invocation post-trial; adequate notice allowed response. | Government contends issue raised late to require trial-proof and consider sovereign immunity. | Government did not waive; issue properly raised and ripe for decision. |
| Whether post-judgment interest complied with 31 U.S.C. § 1304(b)(1)(A) | Lees argues interest should flow from filing with the Treasury as §1304 requires. | Government contends error; interest should accrue per §1304 timing and final judgment rules. | Incorrect; post-judgment interest must accrue from the transcript filing date to the mandate date. |
Key Cases Cited
- Simon v. United States, 891 F.2d 1154 (5th Cir. 1990) (FRCP 8(c) defenses and waiver analyzed)
- Vanhoy v. United States, 514 F.3d 447 (5th Cir. 2008) (timing of raising an affirmative defense; pragmatically sufficient time)
- Lucas v. United States, 807 F.2d 414 (5th Cir. 1986) (affirmative defenses; purely legal issue raised at trial; not waived)
- Ingraham v. United States, 808 F.2d 1075 (5th Cir. 1987) (waiver when defense not raised before trial ending; affects trial strategy)
- Dutra v. United States, 478 F.3d 1090 (9th Cir. 2007) (FTCA allows remedies approximating state periodic payment statutes)
- Hill v. United States, 81 F.3d 118 (10th Cir. 1996) (reversionary trust as a mechanism to approximate periodic payments)
- Cibula v. United States, 664 F.3d 428 (4th Cir. 2012) (FTCA permits crafting remedies that approximate state statutes)
- Owen v. United States, 935 F.2d 734 (5th Cir. 1991) (like circumstances; comparing private and public remedies; continuing obligations)
- Dickerson ex rel. Dickerson v. United States, 280 F.3d 470 (5th Cir. 2002) (jurisdictional nature of §1304 post-judgment interest)
- St. Joseph Regional Health Center v. Hopkins, 393 S.W.3d 885 (Tex. App.—Waco 2012) (Texas mandatory periodic payments once conditions met)
- Christus Health v. Dorriety, 345 S.W.3d 104 (Tex. App.—Houston [14th Dist.] 2011) (Texas periodic payments framework in health care liability claims)
- Prabhakar v. Fritzgerald, 2012 WL 3667400 (Tex. App.—Dallas 2012) (appellate treatment of periodic payment applicability)