                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-3355
DAVITA CARTER,
                                              Plaintiff-Appellant,
                               v.

UNITED STATES OF AMERICA,
                                             Defendant-Appellee.
                        ____________
           Appeal from the United States District Court
                 for the Central District of Illinois.
           No. 00 C 4036—Joe Billy McDade, Chief Judge.
                        ____________
     ARGUED FEBRUARY 20, 2003—DECIDED JUNE 24, 2003
                        ____________


 Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
  POSNER, Circuit Judge. Surgery at Bethesda Naval Hos-
pital in Maryland to correct 11-year-old Davita Carter’s
severe scoliosis (curvature) of the spine left her a para-
plegic and precipitated this suit for medical malpractice.
Her father is a Marine veteran, and his veterans’ benefits
entitled his daughter to treatment at the government’s
expense. Bethesda Naval Hospital is of course a federal
hospital, and so the suit is under the Federal Tort Claims
Act.
  The Act authorizes suit in the judicial district where
the plaintiff lives or the alleged tort occurred. 28 U.S.C.
2                                                 No. 02-3355

§ 1402(b). The plaintiff lives in the Central District of Illi-
nois, and that is where the suit was filed, the alternative
venue being of course the District of Maryland. The dis-
trict judge granted summary judgment for the plaintiff
on liability and then conducted a bench trial on damages
that resulted in his finding that the plaintiff had sus-
tained $3.4 million in economic damages (past and future
medical expenses plus lost future earnings) and another
$15.5 million in noneconomic damages (permanent dis-
ability, disfigurement, physical and emotional pain and
suffering, and loss of enjoyment of life). But the judge
reduced the award for noneconomic damages to $530,000,
the maximum allowed under Maryland law. The plaintiff
appeals that ruling. Neither she nor the government chal-
lenges the award of $3.4 million in noneconomic damages
and upon the request of both parties we entered a partial
final judgment in the plaintiff’s favor for that amount.
Barnes v. United States, 678 F.2d 10, 11-13 (3d Cir. 1982);
Dempsey v. United States, 32 F.3d 1490, 1497-98 (11th Cir.
1994) (per curiam) (concurring opinion).
  It is curious, though, that a judgment by any court should
be thought necessary when the government not only
acknowledges that it owes the plaintiff the $3.4 million in
economic damages that the district court awarded but
wants to pay the money promptly. For mysterious bureau-
cratic reasons, however, the government would not pay this
amount that it acknowledges owing without our affirm-
ing the part of the district court’s judgment that covers
that amount. The reasons are especially mysterious be-
cause the filing of an appeal by the prevailing party does
not stay the judgment in his favor unless he is seeking
to change the form of the relief that he obtained in the
district court (for example, from damages to specific
performance) rather than, as in this case, merely seeking
more of the same. BASF Corp. v. Old World Trading Co., 979
No. 02-3355                                                    3

F.2d 615, 616-17 (7th Cir. 1992); Trustmark Ins. Co. v. Gallucci,
193 F.3d 558, 558-59 (1st Cir. 1999) (per curiam); Enserch
Corp. v. Shand Morahan & Co., 918 F.2d 462, 464 n. 3 (5th
Cir. 1990); contra, Tennessee Valley Authority v. Atlas Machine
& Iron Works, Inc., 803 F.2d 794, 797 (4th Cir. 1986). But
having entered the requested judgment we need not pur-
sue the issue of its necessity further.
   The Federal Tort Claims Act authorizes the imposition
of tort liability on the federal government “under circum-
stances where the United States, if a private person, would
be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” 28 U.S.C.
§ 1346(b). That place was Maryland, and a statute of Mary-
land imposes a cap on noneconomic damages of $530,000.
Md. Code, Cts. & Jud. Proc. § 11-108(b)(2). The Supreme
Court has held, however, that the reference in the Tort
Claims Act to “the law of the place where the act or omis-
sion occurred” is a reference to the entire law of the
place, including its conflict of laws principles, Richards
v. United States, 369 U.S. 1, 10-13 (1962), and the plain-
tiff in our case argues that Maryland conflict of laws prin-
ciples would look to Illinois law to supply the rule of
decision on damages-related issues—and Illinois does
not have a cap on noneconomic damages.
  If Maryland followed the maddeningly indefinite
“interest-balancing” approach to conflicts issues, it con-
ceivably might decide that Illinois, as the place of resi-
dence of the plaintiff (not as the forum state—for a reason
that will become apparent shortly), should furnish the
rule of decision with respect to issues of damages as dis-
tinct from issues of liability. See, e.g., Miller v. Miller, 237
N.E.2d 877, 878-80 (N.Y. 1968). But Maryland does not
follow such an approach; it adheres to the old-fashioned
conflicts principle of “lex loci delicti,” whereby the law of the
4                                                No. 02-3355

place where the tort occurred (the English translation of
the Latin phrase), Maryland in this case, supplies the rule
of decision on all substantive issues. Philip Morris Inc.
v. Angeletti, 752 A.2d 200, 230-31 (Md. 2000); Hauch v.
Connor, 453 A.2d 1207, 1209 (Md. 1983). But is a damages
cap procedural or substantive for this purpose? It is the
latter, according to Maryland’s intermediate appellate
court. Black v. Leatherwood Motor Coach Corp., 606 A.2d 295,
300-01 (Md. App. 1992); Naughton v. Bankier, 691 A.2d 712,
716 (Md. App. 1997); see also Houben v. Telular Corp.,
309 F.3d 1028, 1035 (7th Cir. 2002); Bush v. O’Connor, 791
P.2d 915, 919 (Wash. App. 1990). This is sensible, because
a cap on damages reflects a judgment about the severity
of the sanction appropriate to regulate the activity of
potential injurers.
  But even if Maryland’s highest court, which has not
yet addressed the issue, would disagree and hold that a
damages cap was procedural, the plaintiff could not pre-
vail. Her argument is that since Illinois is the forum
state, Illinois’ procedural law should govern under Mary-
land conflicts principles, which make the law of the forum
controlling on procedural issues. E.g., Black v. Leather-
wood Motor Coach Corp., supra, 606 A.2d at 300; see also
Shaps v. Provident Life & Accident Ins. Co., 826 So. 2d 250,
254 n. 3 (Fla. 2002); Nebraska Nutrients, Inc. v. Shepherd,
626 N.W.2d 472, 517 (Neb. 2001). The argument founders
on the fact that Illinois, though it is the state in which
the federal district court in which the plaintiff sued is
located, is not a forum state for purposes of conflicts
analysis under the Tort Claims Act. And on the further
fact that the reference in 28 U.S.C. § 1346(b) to “the law
of the place where the act or omission occurred” is to the
substantive law (broadly understood to include remedial
law, such as the damages cap, as well as, of course, the
conflict of laws rules) of the state where the act or omission
No. 02-3355                                                 5

occurred, see Jackson v. United States, 881 F.2d 707, 711-12
(9th Cir. 1989), since the court one sues in will apply its
usual procedures even if it is required by conflicts prin-
ciples to apply the substantive law of a foreign state.
The court that the plaintiff sued in was a federal court,
not an Illinois state court, and the procedures it applies
are federal, not state, procedures, regardless of the source
of the substantive rules in the case. This has been the
law since 1938, when the Federal Rules of Civil Proce-
dure superseded the Conformity Act, under which fed-
eral courts had conformed their procedures to those of the
state in which the court was located. See, e.g., Houben
v. Telular Corp., supra, 309 F.3d at 1032; Odekirk v. Sears
Roebuck & Co., 274 F.2d 441, 445 (7th Cir. 1960).
   So even if Maryland would regard a damages cap as a
procedural rule (the federal courts certainly would not,
Houben v. Telular Corp., supra, 309 F.3d at 1035), it is not a
federal procedural rule and so it did not bind the fed-
eral district court in this case. E.g., Jastremski v. United
States, 737 F.2d 666, 672 (7th Cir. 1984); Jackson v. United
States, supra, 881 F.2d at 712. Maryland could not require
a federal district court to jettison federal in favor of state
procedural law if it wanted to, and there is no evidence
it wants to.
  But like most states Maryland has a “public policy”
exception to its usual conflicts rules, whereby a court in
the forum state will decline to enforce a foreign state’s
rule of law if that rule would offend the public policy
of the forum state. Black v. Leatherwood Motor Coach Corp.,
supra, 606 A.2d at 302-03; Hartford Mutual Ins. Co. v.
Bruchey, 238 A.2d 115, 117-18 (Md. 1968). The plaintiff
argues that Maryland would defer to Illinois law in regard
to damages caps, not because Illinois lacks such caps but
because the Illinois constitution has been interpreted by the
6                                              No. 02-3355

Illinois courts to forbid such caps, Best v. Taylor Machine
Works, 689 N.E.2d 1057, 1069-81 (Ill. 1997), thus indicating
that they are indeed offensive to the public policy of
Illinois—that their omission from Illinois law is not
merely an accident. This argument does not depend on
the implausible classification of a damages cap as a proce-
dural rule, and so is less vulnerable to the counterargu-
ment that Illinois is not the forum state in a federal suit.
Illinois is the place where the suit was brought, and if
Maryland thinks that the public policy of the place where
a suit is brought is a trump, we would be bound because
Maryland conflicts principles are controlling in this case.
   But Maryland does not think this. The plaintiff has
got Maryland law backwards. When a suit brought in
Maryland arises out of a tort in another state, the court
will decline to enforce a provision of the law of that other
state that offends Maryland public policy. In this way
Maryland protects its own policies. If the suit is brought
in another state but the substantive law applicable is that
of Maryland, Maryland would subvert rather than protect
its own policies by a rule that directed the forum court to
disregard a provision of Maryland law. It has no such rule.
  The plaintiff argues that since she is a nonresident of
Maryland and Bethesda Naval Hospital is a federal institu-
tion rather than a private or Maryland state hospital,
Maryland has no interest in enforcing its damages cap. The
fact that the plaintiff is not a Maryland resident does
not bear on the issue because the damages cap is for the
protection of defendants rather than plaintiffs. And the
fact that the defendant is a federal institution is inadmis-
sible because the federal government has consented to
having tort liability imposed on it only “to the same ex-
tent as a private individual under like circumstances.” 28
U.S.C § 2674. This requires us to treat Bethesda Naval
No. 02-3355                                                7

Hospital like any nonfederal hospital in Maryland. Carter
v. United States, 982 F.2d 1141, 1143-44 (7th Cir. 1992);
Knowles v. United States, 91 F.3d 1147, 1150 (8th Cir. 1996);
Owen v. United States, 935 F.2d 734, 737-38 (5th Cir. 1991);
Starns v. United States, 923 F.2d 34, 37 (4th Cir. 1991).
  The plaintiff has a further argument—that even if the
damages cap applies to her case the government has
forfeited its application, either by failing to plead the cap
as an affirmative defense in a timely manner (that is to
say, in the answer to the complaint) or by operation of the
doctrine of equitable estoppel. Regarding the second
ground, equitable estoppel, it has been reasonably clear
ever since Office of Personnel Management v. Richmond, 496
U.S. 414 (1990), and Irwin v. Department of Veterans Affairs,
498 U.S. 89, 95-96 (1990), discussed in Goodhand v. United
States, 40 F.3d 209, 213-14 (7th Cir. 1994), that while
the federal government cannot be estopped by the rep-
resentations of a federal employee to refuse to make a
disbursement that violates a federal statute—otherwise
employees of the executive branch could usurp Con-
gress’s authority over government expenditures—it can
be estopped to plead defenses in lawsuits, such as the
statute of limitations in Irwin and Goodhand, or, we add
today, a partial defense limiting damages; otherwise it
would be impossible to litigate against the government
because none of its tactical decisions in litigation would
be binding on it.
  The plaintiff filed her complaint in March of 2000 and
the government’s answer, which did not mention the
damages cap, was filed in May. Eventually the plaintiff
learned that the government planned to invoke the cap,
and in November of 2001, about six weeks before the trial
on damages, she asked the judge to rule that the cap was
inapplicable, and he declined. The government argues
8                                              No. 02-3355

that a limitation on damages is not an affirmative defense
and therefore need not, as required by Fed. R. Civ. P. 8(c)
in the case of such defenses, be pleaded in the answer.
The cases are divided on the question. Compare Taylor
v. United States, 821 F.2d 1428, 1433 (9th Cir. 1987) (no),
with Simon v. United States, 891 F.2d 1154, 1157 (5th Cir.
1990) (yes), and Jakobsen v. Massachusetts Port Authority,
520 F.2d 810, 813 (1st Cir. 1975) (also yes). A cap on dam-
ages is only a partial defense, but that is true of any de-
fense that is limited to the amount of damages, and in
that respect it is no different from comparative negli-
gence, which clearly is an affirmative defense. A.D.E. Inc.
v. Louis Joliet Bank & Trust Co., 742 F.2d 395, 397 (7th
Cir. 1984); Marino v. Otis Engineering Corp., 839 F.2d 1404,
1406 n. 3 (10th Cir. 1988). The argument against treating
a cap on damages as an affirmative defense is that it
is contingent on the amount of damages sought, which
the plaintiff is not required to set forth in his complaint.
   We need not resolve the conflict. The failure to plead
an affirmative defense in the answer works a forfeiture
only if the plaintiff is harmed by the defendant’s delay in
asserting it, Bayou Fleet, Inc. v. Alexander, 234 F.3d 852,
860 (5th Cir. 2000); see also Dresser Industries, Inc. v.
Pyrrhus AG, 936 F.2d 921, 928 (7th Cir. 1991); DeValk
Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 334
(7th Cir. 1987), and there was no harm here. There might
be harm in a case such as this if for example a plain-
tiff had some leeway in classifying damages as eco-
nomic rather than noneconomic, or if knowledge that
noneconomic damages were unavailable would have
induced her to devote less effort to proving up such dam-
ages and more to proving her economic damages. Simon
v. United States, supra, 891 F.2d at 1157; Ingraham v.
United States, 808 F.2d 1075, 1079 (5th Cir. 1987). This by
No. 02-3355                                                9

the way is a powerful argument for regarding a damages
cap as an affirmative defense.
  Neither form of harm is argued here, but what is ar-
gued is that had the plaintiff known earlier what was
coming she would have devoted additional efforts to
developing her alternative ground for beating the cap,
namely equitable estoppel. If no federal hospital in her
area had the expertise necessary to treat her condition—and
none did—she would have been entitled to obtain that
treatment at a nonfederal hospital at the government’s
expense. See 32 C.F.R. §§ 199.4(a)(1), (9), (10); Dempsey
v. United States, supra, 32 F.3d at 1493-94. She contends
that the government failed to advise her parents of this
option, instead steering her to Bethesda though her par-
ents would have much preferred a local private hospital
and there was one with the necessary expertise. Had she
been operated on locally with the same unfortunate
result and had sued, she would not have encountered
Maryland’s damages cap. Even so, she has no defense, and
not for a reason that a further factual inquiry might dispel.
   If the government violated a legal duty to her by failing
to advise her parents of the local-treatment option, she
conceivably may have a remedy of some sort; but the
violation, if it occurred (which we do not decide), cannot
operate to defeat the damages cap. No facts that might
have emerged had the government flagged its reliance on
the cap earlier would affect this conclusion—even the
plaintiff’s lurid and highly improbable speculation that
the government steered her to Bethesda in order to limit
its potential liability for noneconomic damages should
the operation be conducted negligently and thus give rise
to this suit. An injury resulting from the violation of a
statute (or other source of a legal duty, such as the reg-
ulation concerning treatment options on which the plain-
10                                                   No. 02-3355

tiff relies) is actionable under tort law only if the statute
was intended to avert the kind of injury that occurred. In
the leading case of Gorris v. Scott, 9 L.R.-Ex. 125 (1874), a
hardy antique, the plaintiff’s animals, while being trans-
ported on the defendant’s ship, were washed overboard
and drowned when a storm struck it. The ship was not
equipped with pens that were required by a statute in
order to prevent the spread of disease among the animals.
Had there been pens, the animals would have been
saved from a watery death. The suit for their loss was
based on the statutory violation and failed because
the statute was not aimed at preventing animals from be-
ing washed overboard. (To similar effect see Atlantic
Mutual Ins. Co. v. Kenney, 591 A.2d 507, 510-11 (Md. 1991);
Pahanish v. Western Trails, Inc., 517 A.2d 1122, 1132 (Md.
App. 1986); Israel Travel Advisory Service, Inc. v. Israel Identity
Tours, Inc., 61 F.3d 1250, 1258 (7th Cir. 1995); Jack Walters
& Sons Corp. v. Morton Building, Inc., 737 F.2d 698, 708-09
(7th Cir. 1984); Abrahams v. Young & Rubicam Inc., 79 F.3d
234, 237 (2d Cir. 1996); W. Page Keeton et al., Prosser &
Keeton on the Law of Torts, § 36, pp. 222-25 (5th ed. 1984)).
It is the same here. The regulation concerning notice of
treatment options that the government is alleged to have
violated has nothing to do with a loss of damages result-
ing from the existence of a statutory cap. Had the regulat-
ion been complied with, it would, we may assume, have
prevented the cap from attaching, just as the statute in
Gorris if complied with would have saved the animals.
But in neither case was (is) this enough, because of the mis-
match between the purpose of the statute or regulation
and the nature of the injury that compliance might have
prevented.
                                                      AFFIRMED.
No. 02-3355                                            11

A true Copy:
       Teste:

                       _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—6-24-03
