This section contains the nature of the case and procedural background.

Several parties sued the Government (D) for negligent treatment by military physicians. Ingraham (P) sued for severe and permanent damage to his spinal cord from an operation by an Air Force Surgeon. Bondses (P1) sued for a botched Caesarian section and the resulting damages to their daughter. P got an award in excess of $1.25 million, and P1 got a judgment in excess of $4 million. D appealed and raised a new issue; a state limitation in general damages in malpractice awards applied. Both judgments were in excess of the $500,000 ex delicto statutory cap for Texas. P contend that the statutory limitation is an affirmative defense under Rule 8(c) which D had not raised at any time during the trial. The failure to raise a defense constitutes a waiver.

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