Keene v. Brigham & Women’s Hospital, 439 Mass. 223, 786 N.E.2d 824 (2003). 

This case raised the issue whether the judiciary has the power to abrogate the statutory cap on tort liability for a charitable organization as a discovery sanction against that organization. Plaintiff Dylan Keene was born at BWH in 1986. Just hours after his birth, while he was under the care of BWH, Dylan developed neonatal sepsis and meningitis, resulting in profound brain damage. In 1995, the plaintiff filed a complaint of medical malpractice against BWH and sought the production of documents and information pertaining to his neonatal treatment and care. BWH was unable to produce a portion of the requested information, despite a court order to do so. BWH had apparently lost certain records years before the plaintiff filed suit. The Superior Court then defaulted BWH, struck the charitable cap as a discovery sanction, and awarded the plaintiff approximately $4.1 million in damages. BWH appealed from the judgment. The Appeals Court affirmed the judgment, concluding that the charitable cap was an affirmative defense, and therefore that the trial judge had the discretion to strike this defense under his broad discovery powers. The SJC granted further appellate review. NELF filed an amicus brief on BWH’s behalf, arguing that the trial court had no authority to abrogate the charitable cap, because the cap is not a waivable affirmative defense but is instead a mandatory statutory limitation on liability that courts must apply to any judgment against a charitable organization acting in furtherance of its charitable purpose.  On April 22, 2003 the SJC affirmed the judgment only insofar as it imposed liability, concluding that the hospital had spoliated the lost evidence and was deserving of a default judgment.  However, the SJC vacated the damages award and instead awarded Dylan only $20,000, the maximum amount allowed under the charitable cap.  The SJC adopted NELF’s position that a court should have no discretion to abrogate a statutory cap on charitable liability and held that the charitable cap is a “legislatively mandated limit on the amount of civil damages that can be recovered from a charitable corporation that causes harm by committing a tort in the performance of its charitable purpose . . . .”