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.
Patients were severely injured by the negligence of defendant government's physicians. Patients filed suit and the district court awarded millions of dollars. The physicians filed a motion to amend the judgment under Fed. R. Civ. P. 59, which was denied. Three months later, physicians 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. Physicians appealed the judgment and the denial of the motion to amend to the United States Court of Appeals for the Fifth Circuit, but did not appeal the denial of the motion for reconsideration.
Was the district court's decision proper?
The 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.