Quinones et al v. United States of America

Filing 83

ORDER granting, in part 43 Plaintiffs' Motion for Partial Summary Judgment, and denying 23 the United States' Motion for Summary Judgment as to Applicability of 24 L.P.R.A. §§ 10031-43. The United States is not permitted to raise or rely upon the affirmative defense of a damages cap under 24 L.P.R.A. § 10035. Signed by Judge Charlene Edwards Honeywell on 6/29/2015. (AHH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOSEFA QUINONES, JESSICA
MARTINEZ, JUAN QUINONES and
ALEXA QUINONES,
Plaintiffs,
v.

Case No: 8:14-cv-164-T-36MAP

USA,
Defendant.
___________________________________/
ORDER
This cause comes before the Court upon the Defendant United States of America’s Motion
for Summary Judgment as to Applicability of 24 L.P.R.A. §§ 10031-43 (Doc. 23), and the
Plaintiffs Josefa Quinones, Jessica Martinez, Juan Quinones, and Alexa Quinones’ (collectively,
“Plaintiffs”) Cross-Motion for Partial Summary Judgment (Doc. 43). Each party responded in
opposition to the other’s motion (Docs. 47 and 48), and also replied in further support of their own
motion (Docs. 53 and 54). On May 14, 2015, the Court held oral argument on the Motions. Doc.
67. The Court, having considered the parties’ submissions and the oral argument, and being fully
advised in the premises, will now GRANT Plaintiffs’ Motion, in part, and DENY the United
States’ Motion.
I.

BACKGROUND 1
This action arises from the death of Julio Quinones following the allegedly negligent

treatment he received from his medical providers at the Veteran’s Affairs Medical Center in San

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The Court has determined the facts, which are undisputed unless otherwise noted, based on the
parties’ submissions, stipulated facts, affidavits, and deposition testimony.

Juan, Puerto Rico (“VAMC”). Plaintiffs filed a two count complaint on January 22, 2014 (Doc.
1). Plaintiffs assert that the United States is vicariously liable under the Federal Tort Claims Act,
28 U.S.C. §§ 2671-80 (“FTCA”), for the allegedly negligent conduct of Mr. Quinones-Martinez’s
medical providers, as well as for failing to adequately credential, train, and supervise those medical
providers. See generally Doc. 1 (“Compl.”). Defendant answered the complaint on April 4, 2014
and asserted eleven affirmative defenses (Doc. 8). Trial is scheduled for the term commencing
July 6, 2015.
Plaintiffs and the United States now both move for partial summary judgment.
Specifically, the United States argues that it is entitled to the statutory damages cap provided by
24 L.P.R.A. § 10035. Plaintiffs argue that, to the contrary, the United States is not entitled to such
a defense because it has waived any entitlement it might have to the damages cap. Additionally,
Plaintiffs argue that 24 L.P.R.A. § 10035 does not apply in this case.
II.

STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the
initial burden of stating the basis for its motion and identifying those portions of the record
demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at 323; Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). That burden can be
discharged if the moving party can show the court that there is “an absence of evidence to support
the nonmoving party’s case.” Celotex, 477 U.S. at 325.

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When the moving party has discharged its burden, the nonmoving party must then
designate specific facts showing that there is a genuine issue of material fact. Id. at 324. Issues
of fact are “genuine only if a reasonable jury, considering the evidence present, could find for the
nonmoving party,” and a fact is “material” if it may affect the outcome of the suit under governing
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). In determining whether a
genuine issue of material fact exists, the court must consider all the evidence in the light most
favorable to the nonmoving party. Celotex, 477 U.S. at 323.
III.

DISCUSSION
At issue in the parties’ motions is whether a statutory damages cap that directly applies to

a specific type of medical treatment facility defined under Puerto Rico law also applies here. This
issue arises because “[t]he FTCA is a limited waiver of sovereign immunity,” Auger v. United
States, 382 Fed. App’x 901, 902 (11th Cir. 2010), and exposes the United States to liability only
“in the same manner and to the same extent as a private individual under like circumstances,” 28
U.S.C. § 2674. Accordingly, for the purpose of measuring the United States’ liability under the
FTCA, a court looks to the extent liability would be imposed on the most analogous private
individual or entity. See Maradiaga v. United States, 679 F.3d 1286, 1293 (11th Cir. 2012)
(citation omitted).
The United States argues that the VAMC is most closely analogous to a Regional
Academic Medical Center (“RAMC”), which is defined under Puerto Rico law as “[a] group of
one (1) or more hospitals, health facilities, medical groups and health professionals education and
training programs related to an accredited School of Medicine whose mission is to educate,
conduct research and provide health services.” 24 L.P.R.A. § 10031(b). 24 L.P.R.A. § 10035
imposes a cap on medical malpractice liability for “[RAMCs], the students, physicians in

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postgraduate training and the faculty members thereof, for the medical procedures practiced in said
Centers in the exercise of their teaching duties.” 2 Thus, according to the United States, it is entitled
to the statutory cap for damages provided by 24 L.P.R.A. § 10035.
In turn, Plaintiffs challenge the applicability of 24 L.P.R.A § 10035. First, Plaintiffs
contend that the United States failed to properly raise this issue, thus waiving it. Second, Plaintiffs
assert that the VAMC is not most reasonably analogous to a RAMC, but rather is most reasonably
analogous to a private hospital. Finally, Plaintiffs argue that there is a genuine dispute of material
fact whether Mr. Quinones’ medical providers were exercising their teaching duties during the
course of his treatment.
The Court here addresses only the issue of waiver. Specifically, Plaintiffs contend that the
United States waived any entitlement to the damages cap under 24 L.P.R.A. § 10035 because it
failed to timely raise this affirmative defense and permitting the United States to raise it at this
stage would greatly prejudice them. In response, the United States argues that a damages cap is
not an affirmative defense and that, in any case, there would be no prejudice to Plaintiffs because
the factual issues central to the applicability of 24 L.P.R.A. § 10035 were addressed extensively
in discovery.
After careful consideration, the Court agrees with Plaintiffs that the United States has
waived any right it may have had to raise this affirmative defense. First, the Court finds that the
damages cap of 24 L.P.R.A. § 10035 is an affirmative defense that must be raised by the party
asserting it. The United States notes that there is no binding case law that a damages cap is an
affirmative defense, and that a damages cap is not explicitly listed as an affirmative defense under

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That cap is “a maximum of $75,000 for damages suffered by a person and up to $150,000 when
the damages were suffered by more than one person or when there are several causes [of] action
to which a single injured party is entitled.” 24 L.P.R.A. § 10035.
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Federal Rule of Civil Procedure 8(c). As an initial matter, however, even assuming arguendo that
there is no Eleventh Circuit law holding that a damages cap is an affirmative defense, neither has
the United States referenced any Eleventh Circuit law to the contrary. 3
In the absence of binding case law, the Court finds the Fifth Circuit’s opinion and reasoning
in Ingraham v. United States, 808 F.2d 1075 (5th Cir. 1987), to be persuasive. In Ingraham, the
Fifth Circuit held that the statutory limitation on liability provided by Tex. Rev. Civ. Stat. Ann.
art. 4590i is an affirmative defense that is waived if not timely raised. See id. at 1078. In so
holding, the Fifth Circuit found that such a defense constituted an “avoidance” and thus fell within
the residuary clause of Rule 8(c), which stated (per the version of the rule in effect at the time) that
an affirmative defense includes “any other matter constituting any avoidance or affirmative
defense.” See id. at 1078-79. The Fifth Circuit further noted that, because this defense could not
be decided purely as a matter of law, requiring a defendant to timely raise it would prevent unfair
surprise to the plaintiff. See id. at 1079 (“A defendant should not be permitted to ‘lie behind a log’
and ambush a plaintiff with an unexpected defense . . . . The instant cases illustrate this
consideration.”); see also Jakobsen v. Mass. Port Auth., 520 F.2d 810, 813 (1st Cir. 1975).
The same reasoning applies here. To begin with, although the current version of Rule 8(c)
is drafted in a slightly different manner, it still covers essentially the same scope—that “a party
must affirmatively state any avoidance or affirmative defense,” including—but not limited to—a
list of 18 specific affirmative defenses. Fed. R. Civ. P. 8(c) (2010) (emphasis added). Further,
like the statutory provision at issue in Ingraham, the applicability of 24 L.P.R.A. § 10035 turns on
a number of important factual determinations. Finally, such a cap is not directly relevant to

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Indeed, neither party cites the Court to any Eleventh Circuit law that is on point and the Court
is not independently aware of any.
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Plaintiffs’ prima facie case, and Plaintiffs would very likely be unfairly surprised if the defense
did not appear in the pleadings. See Hassan v. United States Postal Serv., 842 F.2d 260, 263 (11th
Cir. 1988). The Court therefore concludes that, to invoke the damages cap of 24 L.P.R.A. § 10035,
it must be properly raised as an affirmative defense. Accord Camacho v. San Juan Bautista Med.
Center, Inc., Case No. 10-cv-1857, 2013 WL 653946, at *3 (D.P.R. Feb. 21, 2013).
Second, the Court finds that the United States failed to properly raise this defense in its
pleadings. The United States baldly asserts, in one sentence, that it did in fact adequately assert
this affirmative defense. See Doc. 48 at 14 (stating simply that “[t]he United States amply
complied with Rule 8(c) by asserting an affirmative defense of entitlement to limitations on
liability under Puerto Rico law,” and referencing only its Answer and Affirmative Defenses). As
Plaintiffs note, however, the only indications in the United States’ Answer and Affirmative
Defenses that would even suggest that the United States ever intended to assert this defense are its
Fifth and Eleventh Affirmative Defenses, which allege in a vague and unspecified manner that
“Plaintiffs’ recovery, if any, is subject to and limited to the applicable provisions of Puerto Rico
law to the extent that these provisions are not inconsistent with federal law or the [FTCA]”; and
“Defendant is protected by . . . affirmative defenses[] as would be available to a private person
under like circumstances under applicable state law.” See Doc. 8 at 9-10, 11.
Critically, not only did the United States fail to specifically invoke 24 L.P.R.A. § 10035, it
also failed to allege any other facts that would suggest that it intended to invoke 24 L.P.R.A. §
10035, such as whether the VAMC had any affiliations with any accredited medical schools. See
Doc. 8 (Answer and Affirmative Defenses). Under these circumstances, it is clear that the United
States has failed to adequately plead this affirmative defense. See Microsoft Corp. v. Jesse’s
Computers & Repair, Inc., 211 F.R.D. 681, 684 (M.D. Fla. 2002) (a party raising an affirmative

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defense “must do more than make conclusory allegations”); Voter Verified, Inc. v. Premier
Election Solutions, Inc., Case No. 09-cv-1968, 2010 WL 2243727, at *1 (M.D. Fla. June 4, 2010)
(“An affirmative defense may [] be insufficient as a matter of law if it fails to meet the general
pleading requirements of Federal Rule of Civil Procedure 8.”) (quotation marks and citation
omitted); accord Morrison v. Executive Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314, 1318-19
(S.D. Fla. 2005) (finding an affirmative defense of exemption under the Fair Labor Standards Act
(“FLSA”) insufficiently pleaded where the defendants failed to identify the specific FLSA
exemptions that they claim applied); Premium Leisure, LLC v. Gulf Coast Spa Manuf., Inc., Case
No. 08-cv-1048, 2008 WL 3927265, at *4 (M.D. Fla. Aug. 21, 2008) (finding four affirmative
defenses insufficiently pleaded because they “consist[ed] merely of one sentence assertions with
no factual support”).
Finally, the Court finds that the United States’ failure to plead this defense, coupled with
its conduct during discovery, resulted in severe, unfair prejudice to Plaintiffs that cannot be cured
without causing additional unfair prejudice. To begin with, the Court questions whether the United
States’ discovery tactics were designed to thwart Plaintiffs’ efforts to flesh out the nature of its
affirmative defenses, including the now-asserted damages cap under 24 L.P.R.A. § 10035. As
Plaintiffs note, the United States’ Rule 26(a) disclosures 4 fail to identify any witnesses who would
have information critical to establishing the applicability of 24 L.P.R.A. § 10035, such as witnesses
who would have information regarding the VAMC’s affiliations, if any, with accredited medical

4

Federal Rule of Civil Procedure 26(a) requires a party to disclose “the name and, if known, the
address and telephone number of each individual likely to have discoverable information—along
with the subjects of that information—that the disclosing party may use to support its claims or
defenses,” as well as “a copy—or a description by category and location—of all documents,
electronically stored information, and tangible things that the disclosing party has in its
possession, custody, or control and may use to support its claims or defenses . . . .”
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schools. See Doc. 43-4. Similarly, none of the documents identified by the United States in its
Rule 26(a) disclosures as those it may use “in support of its defenses” would establish the
applicability of 24 L.P.R.A. § 10035. See id. Further, like its responsive pleading, the United
States’ response to Plaintiffs’ interrogatory seeking “the facts upon which [the United States]
rel[ies] for each affirmative defense” consists only of vague and conclusory statements of law that
fail to put Plaintiffs on fair notice of any specific affirmative defense. See Doc. 43-5 at 6 (stating
only that “Defendant’s . . . Fifth Affirmative Defense[] [is] based on the fact that Puerto Rico
medical malpractice law applies to Plaintiffs’ claims in this case, and therefore Defendant is
entitled to rely on any provisions of Puerto Rico law that govern damages in medical malpractice
cases,” and “Defendant’s . . . Eleventh Affirmative Defense[] [is] based on provisions in the
Federal Tort Claims Act.”).

Finally, the United States’ response to Plaintiffs’ request for

documents “that relate to [the United States’] affirmative defenses” states only that the United
States would produce “a complete set of Mr. Quinones’ Medical Records from the San Juan
VAMC”—thus implying that documents, such as affiliation agreements, that would establish the
applicability of 24 L.P.R.A. § 10035 would not be responsive and that the United States did not in
fact intend to rely on such a defense. See Doc. 43-6 at 2. No affiliation agreement between the
VAMC and a University was ever produced in discovery.
The United States argues that Plaintiffs nevertheless were not prejudiced by its deficient
discovery responses because it notified them prior to filing its summary judgment motion that it
intended to assert this defense and because the factual issues central to resolving the legal question
of whether 24 L.P.R.A. § 10035 applies were addressed extensively in discovery. Neither
argument is persuasive.

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As to the United States’ first point, it is immaterial that the United States notified Plaintiffs
at some time prior to the filing of its summary judgment motion that it planned to raise this
affirmative defense. Rather, what is relevant is that the United States notified Plaintiffs of its
intentions only after the discovery deadline had already passed. See Doc. 43-7. Indeed, at no time
prior to the close of discovery did the United States ever indicate that it intended to rely on this
defense, such as by seeking to amend its pleadings. To date, the United States has not moved to
amend its answer and affirmative defenses. Further, even after belatedly notifying Plaintiffs of its
intent to rely on this defense, the United States did not supplement its discovery responses. The
United States’ purported notice regarding its intent to rely on 24 L.P.R.A. § 10035 therefore fails
to mitigate any prejudice Plaintiffs may have suffered, because by the time the United States gave
such notice, Plaintiffs were barred by the Scheduling Order from conducting discovery regarding
the defense.
As to the United States’ second point, it is clear that, contrary to the United States’
assertions, Plaintiffs have been prejudiced by the United States’ failure to timely inform them of
its intent to rely on 24 L.P.R.A. § 10035. The United States notes that each of the physicians who
treated Mr. Quinones provided extensive testimony about the VAMC’s training activities,
including his or her educational and teaching activities, see Doc. 48 at 16; see also Doc. 23 at 5-8,
and that it produced certain documents that describe the VAMC’s resident training program and
that characterize the VAMC as an academic/teaching institution, see Doc. 48 at 17-18. However,
even accepting the United States’ assertions to be true, there still remain glaring evidentiary gaps
that significantly impede Plaintiffs’ ability to contest the applicability of the damages cap, such as
deposition testimony from a knowledgeable witness regarding the predicate question of whether
the VAMC, as a whole, is “most closely analogous” to a RAMC.

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Most egregiously, the United States is now apparently attempting to rely upon affiliation
agreements between the VAMC and Puerto Rico medical schools that were never produced in
discovery, but that undisputedly would have been responsive to Plaintiffs’ request for production
had the applicability of 24 L.P.R.A. § 10035 been at issue. See Doc. 23-2. Not only were Plaintiffs
denied the opportunity to question any witnesses regarding these (and potentially other relevant
but unproduced) documents, the United States never specified that any of the witnesses it disclosed
would have knowledge regarding affiliation agreements or that it even intended to rely upon such
documents “in support of its defenses.” The United States’ attempt to downplay its failure to
produce these documents by claiming that the affiliation agreements “simply confirm information
readily available from [publicly available] sources,” Doc. 48 at 18 n.21, is not well taken. Rather,
if, as it contends, the United States has asserted the cap on liability, it is clear that the United States
has improperly withheld documents and failed to make adequate disclosures, preventing Plaintiffs
from fully and fairly litigating its now-asserted affirmative defense.
The United States does not suggest any way to cure this unfair prejudice without causing
additional unfair prejudice. It would be manifestly unfair to remedy the prejudice created by the
United States’ own doing, for example, by delaying trial, reopening discovery to give the United
States another opportunity to produce documents that it should have already produced, and
requiring Plaintiffs to incur additional (and very likely, significant) costs to depose (or re-depose)
any number of witnesses who the United States previously failed to identify as having knowledge
relevant to its belatedly-asserted affirmative defense. The Court notes that Plaintiffs deposed every
witness (27) listed in the United States’ Rule 26(a) disclosures. Plaintiffs contend that if the United
States had properly asserted the affirmative defense in 24 L.P.R.A. §10035 they would have
developed facts during discovery to avoid the statutory protection of this section.

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The United States cites a number of cases in which courts have permitted a defendant to
proceed upon an untimely-raised affirmative defense. Those cases, however, dealt with situations
where the plaintiff was not prejudiced by the untimely assertion of the defense. See, e.g., Hassan,
842 F.2d at 263-64 (holding that the district court did not improperly consider evidence regarding
collateral source payments even though the defendant failed to include that affirmative defense in
its pleadings, because “it is clear that there was no prejudice to [the plaintiff]”); Grant v. Preferred
Research, Inc., 885 F.2d 795, 797-98 (11th Cir. 1989) (rejecting the plaintiff’s argument that the
defendant waived a statute of limitations defense by failing to plead it, on the ground that the
plaintiff “was fully aware that [the defendant] intended to rely on a statute of limitations defense”
and “[did] not assert any prejudice from the lateness of the pleading”).
Such a situation is not presently before the Court.

Rather, Plaintiffs have suffered

significant and incurable unfair prejudice as a result of the United States’ belated assertion of this
affirmative defense. The Court, therefore, declines to disturb the default rule that “[f]ailure to
plead an affirmative defense generally results in a waiver of that defense,” Latimer v. Roaring
Toyz, Inc., 601 F.3d 1224, 1239 (11th Cir. 2010), and, accordingly, holds that the United States
has waived this affirmative defense. Accord, e.g., Keybank Nat’l Ass’n v. Hamrick, 576 Fed.
App’x . 884, 888 (11th Cir. 2014) (holding that the defendants waived the affirmative defense of
notice by “failing to assert their notice argument in any of their three answers”); Diaz v. Jaguar
Restaurant Grp., LLC, 627 F.3d 1212, 1214-15 (11th Cir. 2010) (holding that the defendant waived
the affirmative defense of an administrative exemption under the FLSA by “failing to plead the
defense in its Answer and by failing to move to amend its Answer before trial”); United States ex
rel. Ragghianti Foundations III, LLC v. Peter R. Brown Constr., Inc., 49 F. Supp. 3d 1031, 104243 (M.D. Fla. 2014) (holding that the defendant waived the affirmative defense of release because

11

it was not raised in the responsive pleadings and the plaintiff “demonstrated sufficient prejudice
in its ability to adequately defend against [the defendant’s] affirmative defense of release, due to
[the defendant’s] failure to raise the affirmative defense in a timely manner”); Britt Green
Trucking, Inc. v. FedEx Nat’l, LTL, Inc., Case No. 09-cv-445, 2014 WL 3417569, at *12-13 (M.D.
Fla. July 14, 2014) (holding that the defendant waived the affirmative defense of preemption when
the defense was raised for the first time at summary judgment, because “[the defendant] could
have raised this affirmative defense at any time prior to summary judgment,” but instead “waited
until the eleventh hour to bring this issue to the attention of Plaintiffs and this Court.”).
IV.

CONCLUSION
The Federal Rules of Civil Procedure are designed to avoid the situation that arises here —

namely, litigation by ambush. See Diaz, 627 F.3d at 1214. Indeed, had the United States adhered
to the Rules’ requirements, this case may have been resolved long before reaching this stage. With
regard to its affirmative defense of a damages cap under 24 L.P.R.A. § 10035, however, the United
States failed to abide by those rules, causing Plaintiffs to suffer incurable, unfair prejudice.
Accordingly, the Court concludes that the United States has waived any right it may have had to
raise this defense. 5 The United States’ Motion for Summary Judgment, which is premised on the
application of 24 L.P.R.A. § 10035, must also be denied, as the United States did not assert this
affirmative defense in its answer and affirmative defenses.
It is hereby ORDERED AND ADJUDGED:
1.

Plaintiffs’ Cross-Motion for Partial Summary Judgment (Doc. 43) is GRANTED,
in part; and

5

Having concluded that the United States has waived any right it may have had to a damages cap
under 24 L.P.R.A. §10035, the Court need not address whether this section applies in this case.
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2.

The United States is not permitted to raise or rely upon the affirmative defense of a
damages cap under 24 L.P.R.A. § 10035.

3.

The United States’ Motion for Summary Judgment as to Applicability of 24
L.P.R.A. §§ 10031-43 (Doc. 23) is DENIED.

DONE AND ORDERED in Tampa, Florida on June 29, 2015.

Copies to:
Counsel of Record and Unrepresented Parties, if any

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