Clarence LEE, Sr., Individually and as Next Friend of C.L., a Minor; Angelia Lee, Individually and as Next Friend of C.L., a Minor, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
No. 13-50905.
United States Court of Appeals, Fifth Circuit.
Aug. 28, 2014.
521
James Francis Gilligan, Jr., Esq., Assistant U.S. Attorney, U.S. Attorney‘s Office, San Antonio, TX, Mark William Pennak (argued), Matthew Miles Collette, U.S. Department of Justice, Washington, DC, for Defendant-Appellant.
Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.
CARL E. STEWART, Chief Judge:
The government appeals the district court‘s award of damages in a medical malpractice suit under the Federal Tort Claims Act (FTCA). The government does not challenge the district court‘s finding that it was liable; rather, it contends that the district court should have applied the Texas periodic payment statutory scheme,
I.
A.
Angelia Lee took her son, C.L., to the pediatric clinic at Randolph Air Force Base (clinic) for his “well-baby” appointments. During these appointments, C.L. should have received his required immunizations and vaccinations. However, the clinic failed to give C.L. the required doses of the Prevnar vaccine, which is designed to prevent invasive pneumonia. C.L. only received two of the required four doses for the Prevnar vaccine.
On December 14, 2004, Angelia took C.L. to the Brooke Army Medical Center emergency clinic (emergency clinic); he had breathing problems, a fever, and other cold symptoms. The emergency clinic diagnosed C.L. with an upper respiratory infection but then proceeded to send him home. Two days later, Angelia took C.L.
B.
The Lees filed suit against the government under the FTCA, alleging medical malpractice. The Lees moved for partial summary judgment, which the district court granted. The district court found that the government breached the applicable standard of care in its treatment of C.L. A bench trial was held on the remaining issues, and the district court ruled in favor of the Lees. The district court awarded $4,863,523 for “future medical and healthcare needs” and $250,000 for “past and future physical pain and suffering, past and future mental anguish, past and future physical impairment, and past and future physical disfigurement.” The government timely appealed. Thereafter, the government filed a motion for an indicative ruling with the district court, raising the issues now presented on appeal. The district court denied the motion, reasoning that the issues raised by the government “are now before the Fifth Circuit for consideration.”
II.
A.
We will first address the government‘s contention that the district court erred by failing to apply the periodic payment scheme. Before we reach the merits of that issue, however, we must determine whether the government waived this argument. Lastly, we will examine the district court‘s post-judgment interest award.
B.
In FTCA suits, state substantive law applies; however, the Federal Rules of Civil Procedure (FRCP) govern “the manner and time in which defenses are raised and when waiver occurs.” Simon v. United States, 891 F.2d 1154, 1156 (5th Cir. 1990) (citation and internal quotation marks omitted). Whether the Texas periodic payment scheme constitutes an affirmative defense under FRCP 8(c) “is determined by looking to the substantive law of Texas.” Lucas v. United States, 807 F.2d 414, 417 (5th Cir. 1986).
Generally, failure to comply with
Vanhoy involved a situation similar to the case sub judice. In Vanhoy, the plaintiffs sued the government under the FTCA, alleging medical malpractice. Id. at 449. On appeal, the government argued that the district court erred by refusing to adjust the judgment so that it resembled § 40:1299.43 of the Louisiana Medical Malpractice Act (MMA). Id. at 449-50. The plaintiffs claimed that the government‘s argument was an affirmative defense that the government waived because it failed to produce supporting evidence at trial. Id. at 450. We assumed without deciding that the government‘s argument was an affirmative defense. Id. However, we concluded that the defense was not waived. Id. at 451. First, we reasoned that the defense raised a legal question that did not need any factual development. Id. at 450. Second, although the defense was not raised in the government‘s answer, the government argued the defense in multiple motions and its pretrial order. Id. at 450-51. Therefore, there was no waiver because it was “raised at a pragmatically sufficient time” and the plaintiffs “were not prejudiced in their ability to respond.” Id. at 451; see also Lucas, 807 F.2d at 418 (holding that the government did not waive a defense it did not plead under similar circumstances). Conversely, we have held that the government waived a defense it did not plead when the defense entailed more than a legal issue. Simon, 891 F.2d at 1159. For example, in Simon, the government failed to plead a defense which would have dictated the parties’ trial strategy. Id.
C.
The government argues that it did not waive the application of the Texas periodic payment statutory scheme because it is not an affirmative defense. However, even assuming that the statutory scheme is an affirmative defense, the government contends that the argument is not waived because it raised the issue at a pragmatically sufficient time and Appellees were not prejudiced in responding to the request. The government also claims that this request cannot be waived because it implicates sovereign immunity. We refrain from deciding whether a request to apply the periodic payment statutory scheme is an affirmative defense because, even assuming that it is, we hold that the government did not waive the argument.
Before we delve into our analysis, we briefly detail the Texas periodic payment statutory scheme. Under
Unlike the situation in Vanhoy, the government failed to properly raise this issue until after the trial concluded.1 Nonetheless, the government requested that the periodic payment scheme be applied “at a pragmatically sufficient time and the [Appellees] were not prejudiced in their ability to respond.” See Vanhoy, 514 F.3d at 451. As we stated in Rogers v. McDorman, 521 F.3d 381, 387 (5th Cir. 2008), “the prejudice inquiry considers whether the plaintiff had sufficient notice to prepare for and contest the defense.” In Lucas, the government did not waive its affirmative defense, in spite of its failure to plead it, because it was a purely legal issue that was raised at trial. 807 F.2d at 418. The government‘s defense did “not affect the plaintiffs’ proof of damages, but simply limit[ed] the dollar amount of recovery on the damages the plaintiff is able to prove.” Id. By comparison, in Ingraham v. United States, 808 F.2d 1075, 1079-80 (5th Cir. 1987), the government‘s affirmative defense was waived when it failed to raise the affirmative defense before the conclusion of the trial. We noted that the plaintiffs would have altered their trial strategy had they known of the government‘s intent to raise the defense. Id. at 1079.
It was not until after the conclusion of the trial that the government specifically mentioned the periodic payment scheme in its trial brief and proposed findings of fact and conclusions of law. However, similar to the statute in Vanhoy,2 the applicability of the periodic payment scheme is a legal issue “without the need for factual proof.” Vanhoy, 514 F.3d at 450. It is not until the district court actually applies the statutory scheme that it would need to engage in any factual determination. See, e.g.,
Appellees argue that the application of the periodic payment scheme does not implicate sovereign immunity because the amount of the government‘s liability is unchanged. However, that argument fails to
In addition, Appellees claim that the government is precluded from requesting periodic payments because it presented evidence regarding lump sum awards and failed to produce evidence supporting the imposition of a reversionary trust. However, we fail to see how the evidence presented at trial has any impact on the district court‘s duty to apply a mandatory statute. See
III.
A.
The district court‘s decision not to apply the Texas periodic payment statutory scheme is reviewed de novo. Vanhoy, 514 F.3d at 451. “The question ... is a legal one requiring interpretation of both [Texas] and federal statutes.” Id.4
B.
The Texas periodic payment scheme has not been applied by many courts; however, the courts to apply the statute have treated
Conversely, in McLeod v. United States, No. 5:06-civ-00017-WRF, at *11 (W.D.Tex. April 8, 2010), the district court held that, even if the periodic payment scheme was not waived, it was not required to apply it. A portion of the damages awarded fell within the permissive section of the statutory scheme,
When presented with statutes similar to the Texas periodic payment scheme, other circuits have held that district courts erred when they failed to order periodic payments. For instance, in Dutra v. United States, 478 F.3d 1090, 1091 (9th Cir. 2007), the Ninth Circuit held that the district court erred by failing to apply the applicable periodic payment statute, § 4.56.260 of the Washington Revised Code. Under § 4.56.260, if requested by a party, courts are required to order that future economic damages be paid in periodic payments. Id. The Ninth Circuit reasoned that “[t]he FTCA authorizes courts to craft remedies that approximate the results contemplated by state statutes, and nothing in the FTCA prevents district courts from ordering the United States to provide periodic payments in the form of a reversionary trust.” Id. at 1092.
The Tenth Circuit reached a similar result in Hill v. United States, 81 F.3d 118 (10th Cir. 1996). In Hill, the government argued that the district court should have placed the plaintiff‘s future damages in a reversionary trust. Id. at 120. Under Colorado law, a health care provider could pay an adverse judgment periodically. Id. Moreover, payments ceased for all damages, except for future earnings, upon the recipient‘s death. Id. The Tenth Circuit held that the government “may not be ordered to make periodic payments in the manner in which the [statute] provides.” Id. However, the court held that the government was entitled to a reversionary trust for the future medical expenses similar to that envisioned under the statute. Id. at 121. As the Fourth Circuit described it, “the FTCA permits courts to craft remedies that approximate state periodic payment statutes, including reversionary trusts.” Cibula v. United States, 664 F.3d 428, 433 (4th Cir. 2012) (internal quotation marks omitted).
C.
Appellees urge us to follow our decision in Vanhoy and not impose a reversionary trust for the future damages. Appellees argue that a reversionary trust is not warranted because the statutory scheme does not provide for such a remedy. Rather, a reversionary trust is only permitted, Appellees contend, when it serves the best interest of the child. Moreover, Appellees state that an implicit understanding existed between the parties that the damages award would be a lump sum. Appellees also argue that imposing a reversionary trust would burden the district court with additional administrative obligations. Appellees’ arguments are unavailing. We hold that the district court erred by not applying the Texas statutory scheme. Although the district court could not impose a continuing obligation on the government, it should have structured the damage award in a manner resembling the periodic payment scheme.
Section 74.503(a) states that, if requested, “the court shall order that medical, health care, or custodial services awarded in a health care liability claim be paid in whole or in part in periodic payments.” (emphasis added). A court has the discretion to decline ordering periodic payments only in regard to other future damages not encompassed in the subsection (a) or when the defendant “is not adequately insured.”
Although, at first glance, Vanhoy appears to foreclose the government‘s request, the Texas periodic payment scheme is distinguishable from the statute at issue in Vanhoy. In Vanhoy, the government sought to have the district court impose “a reversionary trust from which [the plaintiff‘s] future medical care damages may be distributed as needed.” 514 F.3d at 451 (emphasis added). Distinguishing Owen v. United States, 935 F.2d 734 (5th Cir. 1991), we held that the reversionary trust implicated different concerns. Id. at 452-53. Because the FTCA does not permit continuing obligations against the government, the government could not be required “to make periodic payments of future medical care damages ... on an as-incurred basis the way that” the statute envisions. Id. at 452. Whereas the statute in Owen required only a single action, we reasoned that the MMA imposed an obligation throughout the victim‘s lifetime. Id. at 452-53.
As for the government‘s request for a reversionary trust in Vanhoy, we held that Louisiana law did not permit private individuals to request reversionary trusts and, thus, the government was not entitled to request one. Id. at 453. Moreover, the plaintiffs objected to a reversionary trust and the government was unable to proffer how the trust would best serve the plaintiff‘s interests. Id. We distinguished Hill, Hull, and Dutra. Id. at 453-54. Hill, Hull, and Dutra involved “guardian ad litem situations.” Id. at 453. Furthermore, we observe that the Tenth Circuit stated in Hill and Hull that it could create the reversionary trust only when it would be in the child‘s best interest. Id. In Dutra, the statute at issue required courts to impose the payment method that would best provide for the claimant‘s future needs. Id. Additionally, the statutes in Hill and Dutra were distinguishable from the Louisiana statutes. Id. at 453-54. Because there was no authority mandating that the damages award be structured as the government requested, we held that, similar to Frankel and Reilly, the government‘s request for periodic payments and a reversionary trust must be denied. Id. at 454-55. We expressed concern for the administrative burden the imposition of a reversionary trust would require. Id. at 455. However, we stated that the case would be different had there been a statute mandating the damages award requested by the government. Id.
We have stated that awards constituting continuing obligations on the United States are not appropriate under the FTCA. Vanhoy, 514 F.3d at 452 (“[N]owhere does the FTCA authorize damage awards that require the United States to perform continuing obligations.“). However, unlike the situation in Vanhoy, the district court can craft the damages award to mirror that of the Texas periodic payment scheme. As we noted in Owen, “[t]he ‘like circumstances’ inquiry is not overly stringent.” 935 F.2d at 737. Here, the district court could order “periodic payments in the form of a reversionary trust” thereby avoiding any semblance of imposing an ongoing obligation on the government. See Dutra, 478 F.3d at 1092. Structuring the damages award in this manner would sufficiently mirror the Texas periodic payment scheme to comply with the FTCA. See Cibula, 664 F.3d at 433-34; Hill, 81 F.3d at 121; Dutra, 478 F.3d at 1092. Appellees are correct that the Texas scheme does not explicitly mention a reversionary trust. See
Appellees’ reliance on McLeod is not persuasive. In McLeod, the court declined to apply the Texas periodic payment scheme because the record was “devoid of any factual evidence and devoid of any argument or explanation for the grounds supporting periodic payments and how to structure them.” McLeod, No. 5:06-cv-00017-WRF, at *14-15. However, the court does not have discretion as to whether it must order periodic payments for at least a portion of the damages for medical care.
IV.
A.
The government also argues that the district court‘s post-judgment interest
B.
In Dickerson ex rel. Dickerson v. United States, 280 F.3d 470, 478 (5th Cir. 2002), the government did not challenge the district court‘s award of post-judgment interest until its reply brief. Id. at 478. Nonetheless, we addressed the government‘s argument because recovery under the FTCA is limited to the government‘s waiver of sovereign immunity and “the government‘s sovereign immunity, being a jurisdictional prerequisite, may be asserted at any stage of the proceedings.” Id.
C.
The United States is required to pay interest “only when specifically provided for by statute because only by statute can the United States waive its sovereign immunity.” Id. (citation and internal quotation marks omitted). Under
D.
Because this issue has jurisdictional implications, it is properly before us. Dickerson, 280 F.3d at 478. We hold that the district court erred when it ordered post-judgment interest to accrue from the date of judgment. As both parties acknowledge, the district court should have ordered post-judgment interest to begin accruing “from the date of filing of the transcript of the judgment with the Secretary of the Treasury through the day before the date of the mandate of affirmance.”
V.
For the foregoing reasons, we VACATE the district court‘s judgment insofar as it failed to fashion a damages award similar to the Texas Periodic Payment statutory scheme and awarded post-judgment interest not in compliance with