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Keene v. Brigham and Women's Hospital9/19/2002
e to the level of an avoidance or affirmative defense. See ibid. Because charitable immunity is correctly categorized as an affirmative defense, the judge had the power, under Mass.R.Civ.P. 37(b)(2)(C), to strike it. Once the defense of charitable immunity is stricken, the statutory cap becomes inapplicable.
While we have viewed this issue as a challenge to the judge's order striking the defense of charitable immunity rather than as an order striking the cap, we are aware that in essence the result is the same. We nevertheless recognize that none of the prior challenges mounted against the statutory cap on damages to be awarded against charitable corporations, which the Supreme Judicial Court and the Appeals Court have both been zealous in defending, were mounted in terms of an attack on the imposition of a discovery sanction under rule 37. See English v. New England Med. Center, Inc., 405 Mass. 423 (1989), cert. denied, 493 U.S. 1056 (1990) (challenge to the constitutionality of the $20,000 statutory cap); Morrison v. Lennett, 415 Mass. 857, 860-864 (1993) (applicability of the statutory cap to the trustees of a trust in their representative capacities and individually); St. Clair v. Trustees of Boston Univ., 25 Mass. App. Ct. 662, 665-669 (1988) (applicability of the statutory cap to an intentional tort).
Although there appears to be no Massachusetts appellate decision that has dealt with the precise issue whether the statutory limitation on damages to be awarded against certain defendants is an affirmative defense, we are aware that several Federal courts have considered the statutory limitation placed on liability to be an affirmative defense under the cognate Fed.R.Civ.P. 8(c). See Jakobsen v. Massachusetts Port Authy., 520 F.2d 810, 813 (1st Cir. 1975) (statutory limitation on damages to be awarded against a public or quasi-public entity is an affirmative defense); Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir. 1987) (Texas's statutory limit on medical malpractice damages is an affirmative defense which must be pleaded timely or is waived); Simon v. United States, 891 F.2d 1154, 1156-1157 (5th Cir. 1990) (failure to affirmatively plead the Louisiana Medical Malpractice Act limiting damages resulted in a waiver of that defense); Westfarm Assocs. Ltd. Partnership v. International Fabricare Inst., 846 F. Supp. 439, 440 (D. Md. 1993) (limitation on State governmental liability under the Maryland Local Government Tort Claims Act is an affirmative defense). Contrast Taylor v. United States, 821 F.2d 1428, 1433 (9th Cir. 1987), cert. denied, 485 U.S. 992 (1988) (California statute limiting recovery for non-economic injuries in actions based on professional negligence to $250,000 is not an affirmative defense but a limitation of liability); Snyder v. Minneapolis, 441 N.W.2d 781, 788 (Minn. 1989) (cap on municipal tort liability not an affirmative defense). We conclude that the limitation of liability flows from proof of the defense of charitable immunity and that, once that defense is stricken, the limitation on liability is nonexistent. The judge had the power to strike the defense.
2. Damages. The plaintiff argues that the Superior Court judge who presided at the hearing on the assessment of damages erred in failing to award the plaintiff compensatory damages for the loss of life experiences that he will not be able to enjoy because of his injury. The defendant had opposed the award on the ground that Massachusetts law allows damages for such losses only as a component of mental pain and suffering to the extent they actually give rise to such suffering by virtue of the plaintiff's conscious awareness of them. The parties did not dispute the judge's finding that the plaintiff d
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