Case: 13-50905   Document: 00512749852    Page: 1   Date Filed: 08/28/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                  Fifth Circuit

                                                                     FILED
                                                                  August 28, 2014
                                No. 13-50905
                                                                  Lyle W. Cayce
                                                                       Clerk
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.




                Appeal from the United States District Court
                     for the Western District of Texas


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, Texas Civil Practice & Remedies Code §§
74.501–507, and that the district court erred in its order of post-judgment
interest. For the following reasons, we VACATE the district court’s judgment
insofar as it failed to fashion a damages award similar to that contemplated by
the Texas periodic payment statutory scheme and awarded post-judgment
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interest not in compliance with 31 U.S.C. § 1304(b)(1)(A). We REMAND to the
district court for further proceedings in accordance with this opinion.
                                       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. to the clinic because, in addition to his previous
symptoms, he was not eating or sleeping properly. An x-ray was done, which
showed that C.L. had pneumonia; nonetheless, the nurse practitioner treating
C.L. sent him home. On December 17, 2004, Angelia again took C.L. to the
clinic. C.L. now had an increased heart rate and had lost weight. The nurse
practitioner again sent C.L. home and instructed Angelia to bring him back in
three days. The next day Angelia called the clinic because C.L. had greenish
yellow eyes. The nurse practitioner assured Angelia that C.L.’s eye color was
merely a side effect of the medication and that there was no need to bring C.L.
to the clinic before his appointment. Angelia disregarded this advice and took
C.L. to the emergency room. After waiting three hours to be seen, C.L. was
given antibiotics. C.L. was transferred the next day to Christus Santa Rosa
Children’s Hospital and was diagnosed with bilateral pneumonia. C.L. was


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                                 No. 13-50905
placed into a coma and had to begin dialysis treatment. Ultimately, C.L. had
to receive a kidney transplant from his father.
                                        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, 

, 1156
(5th Cir. 1990) (citation and internal quotation marks omitted). Whether the
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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, 

, 417 (5th Cir. 1986). FRCP 8(c)(1) mandates
that parties “affirmatively state any avoidance or affirmative defense” in their
responsive pleadings. An avoidance “is an allegation or statement of new
matter, in opposition to a former pleading, which, admitting the facts alleged
in such former pleading, shows cause why they should not have their ordinary
legal effect.” 

(citation and internal quotation marks
omitted).
      Generally, failure to comply with FRCP 8(c) results in waiver of the
avoidance or affirmative defense. 

. However, if “a
defendant raises the issue at a pragmatically sufficient time, and if the plaintiff
is not prejudiced in its ability to respond, there is no waiver of the defense.”
Vanhoy v. United States, 

, 450 (5th Cir. 2008) (citation and
internal quotation marks omitted).
      Vanhoy involved a situation similar to the case sub judice. In Vanhoy,
the plaintiffs sued the government under the FTCA, alleging medical
malpractice. 

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). 

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.    

   We assumed without deciding that the
government’s argument was an affirmative defense.             

concluded that the defense was not waived. 

First, we reasoned that
the defense raised a legal question that did not need any factual development.

Second, although the defense was not raised in the government’s
answer, the government argued the defense in multiple motions and its
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pretrial order. 

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.” 

see also 

(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.

. For example, in Simon, the government failed to
plead a defense which would have dictated the parties’ trial strategy. 

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 Texas Civil Practice & Remedies Code
§ 74.503(a), “[a]t the request of a defendant physician or health care provider
or claimant, the court shall order that” medical damages “be paid in whole or
in part in periodic payments rather than by a lump-sum payment.” For future
non-medical damages, however, the district court “may order” periodic
payments. 

The district court is required to “make a specific
finding” of the amount necessary to “compensate the claimant for the future
damages” and specify the payment recipient, payment amount, payment
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intervals, and the “number of payments or the period of time over which
payments must be made.” 

(d). Upon the death of the payment
recipient, periodic payments terminate for all damages “other than future loss
of earnings” and “any security given reverts to the defendant.” 

(d).
        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 

. As we stated in Rogers v. McDorman,
“the prejudice inquiry considers whether the plaintiff had sufficient notice to
prepare for and contest the defense.” 

, 387 (5th Cir. 2008). 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 

. 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.” 

in Ingraham v. United States,
the government’s affirmative defense was waived when it failed to raise the
affirmative defense before the conclusion of the trial. 

, 1079–80
(5th Cir. 1987). We noted that the plaintiffs would have altered their trial
strategy had they known of the government’s intent to raise the defense. 

        It was not until after the conclusion of the trial that the government
specifically mentioned the periodic payment scheme in its trial brief and



        1In its answer, the government merely referenced “Texas Civil Practice & Remedies
Code, Chapter 74.” We need not decide, however, whether the government adequately raised
the Texas periodic payment scheme in its answer because we hold that the government
sufficiently raised the issue after the trial.
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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.” 

. 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., Tex. Civ. Prac. & Rem. Code
§ 74.503(c),(d) (stating that courts must “make a specific finding of the dollar
amount of periodic payments that will compensate the claimant for the future
damages”).      The government therefore did not have to present evidence
regarding the applicability of the periodic payment scheme.                  Additionally,
Appellees were not prejudiced by the government’s failure to raise this issue.
To the contrary, Appellees will have the opportunity to present evidence on
many of the issues they raise in later proceedings. 3 In fact, Appellees had the
right to request the application of the periodic payment scheme after trial as
the government did.
       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 fully
appreciate the sovereign immunity waiver in the FTCA. The waiver is effective
only to the same extent as a private individual in a similar circumstance. See
28 U.S.C. § 2674 (“The United States shall be liable . . . in the same manner



       2 In Vanhoy, the statute at issue provided “that private malpractice awards for future
medical care expenses” would be paid from a fund set up by state health care providers and
would be paid as the “charges accrue[d], with payment ceasing on the death of the victim.

.
       3 As for Appellees’ argument that ordering periodic payments will permit the

government “to double dip in reductions” to the award, Appellees misunderstand the periodic
payment scheme. The district court must “make a specific finding of the dollar amount of
periodic payments that will compensate the claimant for the future damages.” Tex. Civ. Prac.
& Rem. Code § 74.503(c). So, when applied properly, claimants are adequately compensated.
The statutory scheme does not ensure that the government will pay fewer damages to
Appellees.
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and to the same extent as a private individual under like circumstances . . . .”).
Thus, even if the government is not subjected to additional liability, the
government is entitled to request the application of the same statutory
mechanisms available to private individuals.
       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. 4 See
Tex. Civ. Prac. & Rem. Code § 74.503(a) (stating that once requested, a “court
shall order that medical [damages] . . . be paid in whole or in part in periodic
payments” (emphasis added)). Because we hold that the government did not
waive this argument, we proceed to consider whether the district court erred
by not applying the Texas periodic payment statutory scheme.
                                           III.
                                            A.
       The district court’s decision not to apply the Texas periodic payment
statutory scheme is reviewed de novo. 

. “The question
. . . is a legal one requiring interpretation of both [Texas] and federal statutes.”

Texas periodic payment scheme has not been applied by many
courts; however, the courts to apply the statute have treated § 74.503(a) as
mandatory when the enumerated conditions are satisfied. For instance, in St.
Joseph Regional Health Center v. Hopkins, the Texas court of appeals stated


       4Appellees also argue that the government waived its argument that the district court
should have ordered periodic payments for the future pain and suffering damages. However,
this appeal only concerns the future medical care damages.
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                                   No. 13-50905
that once requested, “the trial court shall order periodic payments, rather than
a lump sum, for future damages . . . awarded in a health care liability claim.”

, 886 (Tex. App.—Waco 2012, pet. denied) (internal quotation
marks omitted). Likewise, in Prabhakar v. Fritzgerald, the Texas court of
appeals held that the trial court erred by failing to order periodic payments
once the defendant complied with the statutory requirements. No. 05-10-
00126-CV, 

, at *11 (Tex. App.—Dallas Aug. 24, 2012); see
also Christus Health v. Dorriety, 

, 117 (Tex. App.—Houston
[14th Dist.] 2011, pet. denied).
      Conversely, in McLeod v. United States, the district court held that, even
if the periodic payment scheme was not waived, it was not required to apply it.
No. 5:06-civ-00017-WRF, at *11 (W.D. Tex. April 8, 2010). A portion of the
damages awarded fell within the permissive section of the statutory scheme, §
74.503(b). 

The district court first noted that it would not order
periodic payments under § 74.503(b). 

those damages that fell under
the mandatory portion of § 74.503(a), the court relied on Vanhoy in holding
that the application of the statute would impose too onerous of a burden on the
court to determine, among other things, the terms of the trust, and to appoint
a trustee.   

  Moreover, the court declined to order periodic
payments on a record which it found to be “devoid of any factual evidence and
devoid of any argument or explanation for the grounds supporting periodic
payments and how to structure them.” 

Even assuming that §
74.503(a) is mandatory, the court stated that the defendant presented
insufficient evidence to permit the application of the statute. 

      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, the Ninth
Circuit held that the district court erred by failing to apply the applicable
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                                  No. 13-50905
periodic payment statute, § 4.56.260 of the Washington Revised Code. 

, 1091 (9th Cir. 2007). Under § 4.56.260, if requested by a party,
courts are required to order that future economic damages be paid in periodic
payments. 

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.” 

        The Tenth Circuit reached a similar result in Hill v. United States, 

(10th Cir. 1996). In Hill, the government argued that the district
court should have placed the plaintiff’s future damages in a reversionary trust.

Under Colorado law, a health care provider could pay an adverse
judgment periodically. 

ceased for all damages, except
for future earnings, upon the recipient’s death. 

Circuit held
that the government “may not be ordered to make periodic payments in the
manner in which the [statute] provides.” 

court held that the
government was entitled to a reversionary trust for the future medical
expenses similar to that envisioned under the statute. 

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, 

, 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
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                                  No. 13-50905
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.”         Tex. Civ. Prac. & Rem. Code
§ 74.503(b), § 74.505(a). 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 district court
was therefore obligated to apply the statute once the government submitted its
request. See St. Joseph Reg’l Health 

; Prabhakar, 

, at *11; see also Christus 

. Because a
private individual would be entitled to the application of the statutory scheme,
the government should also be permitted to have its damage award structured
in the manner envisioned by the statute. See 28 U.S.C. § 2674 (“The United
States shall be liable . . . in the same manner and to the same extent as a
private individual under like circumstances . . . .”); see also 

(reaching an identical conclusion with a similar statute); 

.


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                                    No. 13-50905
      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 

(emphasis added). Distinguishing Owen v. United States, 

(5th
Cir. 1991), we held that the reversionary trust implicated different concerns. 5

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. 

Whereas the statute in Owen
required only a single action, we reasoned that the MMA imposed an obligation
throughout the victim’s lifetime. 

      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.

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. 

Hill, Hull, and Dutra. 

Hill,
Hull, and Dutra involved “guardian ad litem situations.”                  

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. 

the statute at issue required courts to impose the
payment method that would best provide for the claimant’s future needs. 

statutes in Hill and Dutra were distinguishable from the



      5In Owen, we stated that the government was entitled to the state damages cap in a
FTCA 

–38.
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                                   No. 13-50905
Louisiana statutes. 

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.             

    We
expressed concern for the administrative burden the imposition of a
reversionary trust would require. 

However, we stated that the case
would be different had there been a statute mandating the damages award
requested by the government. 

periodic payment scheme differs greatly from the statute
presented in Vanhoy. See Wood v. United States, No. SA-1-CV-941, 

, at *2 (W.D. Tex. May 10, 2011) (noting differences between the two
statutes); McLeod, No. 5:06-cv-00017-WRF, at *13 (same). The Texas scheme
does not mandate that the government make payments on an as-incurred basis
for the lifetime of the plaintiff; to the contrary, § 74.503(c) requires the district
court to “make a specific finding of the dollar amount of periodic payments” to
satisfy the judgment and subsection (d) mandates that courts note in their
judgment the “number of payments or the period of time over which payments
must be made.” The onerous administrative burden that we feared in Vanhoy
is therefore not present with the application of the Texas scheme.
Furthermore, there is statutory authority for the damages award requested by
the government in the case sub judice. See Tex. Civ. Prac. & Rem. Code §
74.503.
      We have stated that awards constituting continuing obligations on the
United States are not appropriate under the FTCA. 

(“[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
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                                No. 13-50905
circumstances’ inquiry is not overly 

. 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 

. Structuring the damages award
in this manner would sufficiently mirror the Texas periodic payment scheme
to comply with the FTCA. See 

–34; 

;

. Appellees are correct that the Texas scheme does not
explicitly mention a reversionary trust. See Tex. Civ. Prac. & Rem. Code §§
74.505–506.    However, the statutory scheme does state that upon the
termination of the payments under the statute, “any security given reverts to
the defendant.” 

Moreover, “the FTCA permits courts to craft
remedies that ‘approximate’ state periodic payment statutes.” 

. Appellees’ argument that Congress must expressly provide for
this payment structure is unavailing. Private individuals are entitled to have
the Texas scheme applied and the FTCA mandates treatment of the
government in the same manner as a private individual in similar
circumstances. See 28 U.S.C. § 2674.
      Appellees’ reliance on McLeod is not persuasive. In McLeod, the court
declined to apply the Texas periodic payme§nt 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.     Tex. Civ. Prac. & Rem. Code § 74.503.
Moreover, a lack of evidence is not a reason to decline to award periodic
payments; rather, as we noted previously, a court has discretion to decline to
impose periodic payments for “future damages other than medical, health care,


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                                  No. 13-50905
or custodial services” and if the defendant “is not adequately insured.” 

§ 74.505(a).
                                       IV.
                                       A.
      The government also argues that the district court’s post-judgment
interest award does not comply with 31 U.S.C. § 1304, an error that Appellees
do not contest. The government acknowledges that it failed to raise this issue
until its motion for an indicative ruling but contends that this argument is not
waived because it is jurisdictional. Appellees urge us to simply modify the
district court’s judgment to comply with §1304.
                                       B.
      In Dickerson ex rel. Dickerson v. United States, the government did not
challenge the district court’s award of post-judgment interest until its reply
brief. 

, 478 (5th Cir. 2002). 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.” 

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.” 

internal quotation marks omitted).
Under 28 U.S.C. § 1961(a), “[i]nterest shall be allowed on any money judgment
in a civil case recovered in a district court.” 31 U.S.C. § 1304(b)(1)(A) provides
that “[i]nterest may be paid . . . on a judgment of a district court, only when
the judgment becomes final after review on appeal . . . and then only 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.”
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                                      D.
      Because this issue has jurisdictional implications, it is properly before
us. 

. 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.” 31 U.S.C. § 1304(b)(1)(A); 

–79 (“Section 1304 applies to post-judgment interest in FTCA cases
because § 1304 lists 28 U.S.C. § 2414 as one of the statutes covered thereby
and [28 U.S.C.] § 2414 is the statutory authority for payment of judgments
against the United States.”).
                                      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 31 U.S.C. § 1304(b)(1)(A). We therefore REMAND to the
district court for further proceedings in accordance with this opinion.




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