In the
United States Court of Appeals For the Seventh Circuit
Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948
M ARLITA T HOMAS, Plaintiff-Appellee, v.
C OOK C OUNTY S HERIFF’S D EPARTMENT, A LEX S ANCHEZ, JESUS F ACUNDO, T ERRENCE T OOMEY, and C OOK C OUNTY,
Defendants-Appellants.
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 3563—Ruben Castillo, Judge.
A RGUED D ECEMBER 9, 2008—D ECIDED D ECEMBER 1, 2009
Before F LAUM, W OOD , and W ILLIAMS, Circuit Judges. W ILLIAMS, Circuit Judge. Norman Smith, a thirty-two year-old pretrial detainee, arrived at Cook County Jail on April 24, 2004, and died less than a week later from pneumococcal meningitis. His mother, Marlita Thomas, sued Cook County, the Cook County Sheriff, and a number of correctional employees, under 42 U.S.C. § 1983, 2 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
alleging that the defendants violated her son’s constitu- tional rights by failing to respond to his serious medical needs. At trial, a number of Smith’s fellow inmates testified that Smith’s condition rapidly deteriorated while prison officials turned a blind eye. The jury agreed with this assessment. It returned a verdict in Thomas’s favor and awarded damages in the amount of $4,450,000 against Cook County, the Sheriff, and three individual officers. The district court denied the defen- dants’ motion for judgment as a matter of law and the defendants now appeal. Specifically, they challenge the sufficiency of the evidence supporting each of the jury’s liability determinations, the trial court’s evidentiary rulings, and the jury’s compensatory damages calculation. We conclude that the jury had sufficient evidence to impose liability against the officers for their deliberate indifference to Smith’s medical needs. The same is true for Cook County, as the evidence against it was suf- ficient for a reasonable jury to conclude that the County had a widespread policy of disregarding detainees’ medical requests. We do not find sufficient evidence, however, to hold the Sheriff liable. The causal connection between the Sheriff’s policies and practices and Smith’s death is tenuous in light of the jury’s finding that individ- ual correctional officers deliberately disregarded Smith’s medical needs. Nonetheless, the Sheriff’s absence as a liable party does not affect the jury’s compensatory damage award. The parties are jointly and severally liable for the entire award, which measures the amount required to compensate the plaintiff for her indivisible harm, and the Sheriff only added an additional source Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 3
from whom the plaintiff could collect. That the Sheriff is no longer liable does not limit the amount of damages to which the plaintiff is entitled. Nor is the amount affected by the jury’s improper allocation among defendants. Because we presume that jurors follow the instructions given, we must interpret the jury verdict to be consistent whenever possible. As a result, we interpret the jury’s allocation in this case as an attempt to split the total damages among the defen- dants, rather than an effort to issue duplicate awards for the same injury. We also do not find a $4,000,000-plus damage award for constitutional violations that resulted in death to be excessive. Finally, none of the defendants’ evidentiary challenges warrant a reversal. Although we are somewhat troubled that the jury only heard the deposition testimony of a key witness and did not have the opportunity to assess his credibility on the witness stand, the district court’s decision to admit the testimony was not an abuse of dis- cretion. And even if it was, corroborating live testimony from other witnesses, along with the defendants’ opportu- nity to cross-examine during the deposition, render its admission harmless. Therefore, we affirm the district court’s order denying the officers and Cook County’s motions for judgment as a matter of law and for a new trial. But we reverse its judgment denying the Sheriff’s motion, and remand with instructions to enter judg- ment in the Sheriff’s favor. 4 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
I. BACKGROUND The Cook County Department of Corrections (“CCDOC”) maintains a procedure for examining inmates’ health and a system designed to ensure that inmates receive appro- priate medical care while incarcerated. Upon arrival at Cook County Jail, each inmate must undergo a medical examination conducted by medical personnel from Cermak Health Services of Cook County (“Cermak”), which runs the health service for detainees at Cook County Jail. Beyond the initial intake procedure, Cermak provides additional medical services to inmates as needed. Each day, a Cermak medical technician is required to visit the tiers, where the inmates reside, and dispense med- ication, respond to inmate complaints, and collect medical request forms. The technicians then record, in daily contact sheets, the medications dispensed during their rounds, the medical request forms collected, and any other pertinent information, including reports of inmate sickness. In addition, Cermak maintains an infirmary, mental health facility, lab, pharmacy, and emergency room staffed by physicians, all onsite and within close proximity to the inmates. For a number of reasons, this system did not always function as it should. First, the Supervisor for Cermak’s medical technicians (“CMTs”) acknowledged that Cermak had experienced problems with CMTs not picking up medical request forms every day. Some CMTs did not have the keys to access the lockbox where inmates de- posited their completed medical request forms. Others simply failed to fill out or turn in their daily Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 5
contact sheets. Further, a number of correctional officers reported that Cook County Jail was severely under-staffed. The officers, who were employed by the Cook County Sheriff, kept daily logs in which they often made refer- ences to the dangers associated with cross-watching—a practice that required one officer to watch two tiers at the same time. One officer noted that cross-watching created a “major security risk.” Another complained that he “[could] not be on both tiers at [the] same time.” As a result of the under-staffing and cross-watching in Cook County Jail, officers could not perform physical security checks with the frequency required by Sheriff department policy. Also, with fewer officers on duty, CMTs were, at times, unable to gain access to the tiers to complete their rounds. The plaintiff alleged that her son, Norman Smith, fell through the cracks created by the systemic problems in CCDOC. Smith’s tragic story began on April 23, 2004 when Chicago police officers arrested him for possession of a controlled substance. The next day, he arrived at Cook County Jail, the facility where he was to remain until his trial date. Smith underwent the typical intake routine, which included a chest X-ray, blood pressure screening, psychological screening, and a review of his medical history. Those tests only revealed elevated blood pressure, for which Smith received a week’s supply of medication. However, according to Smith’s cell mate, Carlos Matias, Smith demonstrated symptoms of illness on the first day he arrived. Matias testified in his deposition that Smith appeared to be dizzy, began vomiting, and asked Matias to initiate a medical request for him. 6 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
Other detainees, along with Matias, testified to the rapid deterioration in Smith’s condition through the week. For instance, Smith’s other cell mate, Tyrrell Mitchell, testified that Smith was vomiting for three to four days before Mitchell was released Thursday, April 29, 2004, and that he wasn’t able to hold down any food or maintain conversations with his cell mates. Matias also testified that by Wednesday, April 28, 2009, Smith could no longer walk on his own. Instead, Matias would drag Smith outside of his cell where he remained on the floor. Several inmates claimed to have filled out medical request forms on Smith’s behalf. Others testified that they complained directly to correctional officers and medical technicians on duty at the time, and a few even witnessed or helped Smith fill out his own medical request forms. None of the inmates received a response to these requests. Early Friday morning, April 30, 2004, Matias awoke to find Smith convulsing on the floor in his cell. He alerted Alex Sanchez, who was the officer on duty at the time, and Sanchez contacted his supervisor, Sergeant James Monczynski. However, the plaintiff contended that sig- nificant delays prevented him from receiving immediate care. First, Sergeant Monczynski did not arrive at the cell until about a half hour after Officer Sanchez notified him of Smith’s condition. Next, Sergeant Monczynski contacted a Cermak paramedic, who was located in an adjacent building connected by a courtyard, and the plaintiff alleged that it took another half hour for the paramedic to arrive. The plaintiff also claimed that the paramedic spent a half hour in the tier office looking Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 7
for Smith’s I.D. before he called the other Cermak para- medics. The delays allegedly continued as the paramedics did not have the manpower to lift Smith up the stairs in a gurney. So they waited at the top of the stairs. Fortu- nately, a few inmates intervened, carried Smith to the gurney, and the paramedics wheeled him out. Smith died later that morning. The Cook County medical exam- iner determined that he suffered from pneumococcal meningitis, a particularly deadly form of the disease. Based on these events, Marlita Thomas, Smith’s mother, sued a number of individual correctional em- ployees, the Cook County Sheriff, and Cook County under 42 U.S.C. § 1983 for violating Smith’s constitutional rights by ignoring his serious medical needs, along with other state law claims. After a two-week trial, the jury returned a verdict against Cook County, the Sheriff, and Officers Facundo, Sanchez, and Toomey for a total of $4,450,000 in compensatory damages. On the verdict forms, the jury allocated $3,000,000 of the damage award against Cook County, $1,000,000 against the Sheriff, $150,000 against the individual defendants col- lectively for the § 1983 claim, and $300,000 against the individual defendants collectively for the wrongful death and survival claims. The district court ordered a remittitur of the award from $4,450,000 to $4,300,000, but denied the defendants’ motions for judgment as a matter of law or for a new trial. The defendants appeal these denials and also challenge the damage award. 8 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
II. ANALYSIS Following the jury verdict, the defendants filed a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), or, in the alternative, for a new trial under Rule 59. In that motion, the defendants argued that the evidence was insufficient to support both individual and municipal liability under Monell v. Department of Social Services of New York, 436 U.S. 658 (1978). We review de novo the district court’s denial of judgment as a matter of law, but we do not weigh evidence or assess the credibility of witnesses. Walker v. Bd. of Regents of Univ. of Wis. Sys., 410 F.3d 387, 393-94 (7th Cir. 2005). Instead, we draw all reasonable inferences in favor of the nonmoving party. Tart v. Ill. Power Co., 366 F.3d 461, 478 (7th Cir. 2004). “Our job is to assure that the jury had a legally sufficient evidentiary basis for its verdict,” Houskins v. Sheahan, 549 F.3d 480, 493 (7th Cir. 2008) (quoting Filipovich v. K & R Express Sys., Inc., 391 F.3d 859, 863 (7th Cir. 2004)), and the “verdict must stand unless the officers can show that no rational jury could have brought in a verdict against [them].” Von der Ruhr v. Immtech Intern., Inc., 570 F.3d 858, 866 (7th Cir. 2009) (internal quotation marks omitted).
A. Verdict Against Individual Officers The individual defendants, Officers Facundo, Toomey, and Sanchez, first challenge the jury verdict finding them liable under 42 U.S.C. § 1983 for violating Smith’s constitutional rights. The officers argue that the verdict Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 9
was not supported by evidence or law because the offi- cers’ actions represent “inadvertence” at the most. Relying on Palmer v. Marion County, 327 F.3d 588, 592 (7th Cir. 2003), the officers claim that the plaintiff must dem- onstrate both subjective knowledge and intentional disregard of the risk to the inmate’s safety. See also Collins v. Seeman, 462 F.3d 757, 761 (7th Cir. 2006). A prison official violates a prisoner’s Eighth Amend- ment rights, and, in this case, due process rights, when he displays deliberate indifference to a serious medical need.1 Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008) (citing Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005)). To establish such a violation, the plaintiff must first demon- strate that the condition was objectively serious. Hayes, 546 F.3d at 522. An objectively serious medical condition is one that “has been diagnosed by a physician as man- dating treatment or one that is so obvious that even a lay person would perceive the need for a doctor’s atten- tion.” Id. Next, the plaintiff must show that the official “acted with a sufficiently culpable state of mind.” Id. This inquiry has two components. The official must have
1 The inmate in this case was a pretrial detainee. The Eighth Amendment, which prohibits cruel and unusual punishment, only applies to convicted prisoners, but we have held that pretrial detainees are entitled, under the Fourteenth Amend- ment’s due process clause, to the same basic protection. Williams v. Rodriguez, 509 F.3d 392, 401 (7th Cir. 2007). As a result, we apply the same legal standard to a claim alleging deliberate indifference to an inmate’s medical needs, whether filed under the Eighth or Fourteenth Amendment. Id. 10 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
subjective knowledge of the risk to the inmate’s health and also must disregard that risk. Collins, 462 F.3d at 761. The officers do not contest that Smith suffered from a serious medical condition. Instead, they argue that the evidence was insufficient to establish that they both knew of and disregarded the risk of harm. A brief overview of the record reveals testimony describ- ing in detail Smith’s condition on the days leading up to his death. A number of witnesses reported that Smith was vomiting, coughing and exhibiting other signs of serious illness including nausea and lethargy. A fellow inmate reported that on April 29, 2004, the day when all three officer defendants were working, Smith was “coughing a lot, running back and forth to the bathroom, throwing up, just laying on the floor, not moving, not eating . . . .” . Another inmate reported that Smith was lying on the floor in front of the cell—which would have placed him in the direct path of the officials when performing their rounds. Inmates testified that they complained or heard others complain to officers about Smith’s condition during all three shifts: 7a.m.-3p.m., 3p.m-11p.m., and 11p.m.-7a.m., that were covered by Officers Facundo, Toomey, and Sanchez respectively. Finally, Officer Toomey testified that he saw Smith that day, and, at one point, saw him lying in front of his cell. Circumstantial evidence can be used to establish sub- jective awareness and deliberate indifference, Hayes, 546 F.3d at 524, and the examples above are just a few excerpts of testimony that placed a visibly ill Smith Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 11
within plain view of the officers on duty the day before he died. The evidence suggests that the officers were aware of the risk to Smith’s health, either from the in- mates’ complaints, or from his visible symptoms, Farmer v. Brennan, 511 U.S. 825, 522 (1970) (“[A] factfinder may conclude that a prison official knew of a sub- stantial risk from the very fact that the risk was obvi- ous.”), and their failure to act could have led a jury to find that they ignored this risk. As we stated earlier, we do not reweigh the evidence nor do we substitute our own credibility determinations, so we cannot accept the officers’ invitation to ignore the inmates’ testimony. The officers do not explain why the evidence, which clearly supports a finding of sub- jective knowledge, is legally insufficient. They only argue that it is “conflicting and specious.” This is an argument better suited for cross-examination and closing statements than appellate review. When faced with conflicting, or even inconsistent testimony, the jury is free to believe one side over another. See Taylor v. Bradley, 448 F.3d 942, 951 (7th Cir. 2006); Allen v. Chi. Transit Auth., 317 F.3d 696, 703 (7th Cir. 2003). And when the plaintiff’s witnesses here provided conflicting testi- mony, the officers had the opportunity to, and did, bring it to the jury’s attention. Ultimately, the inconsistencies the officers press seem slightly exaggerated as most of the inmates presented the same basic story: Smith was very ill, the three guards on duty on April 29 knew about it, 12 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
and they did nothing.2 As such, we find no error in the district court’s decision to deny the officers’ motion for judgment as a matter of law.
B. Verdict Against Cook County At trial, the plaintiff alleged that the following unofficial customs or practices caused the constitutional harm and subsequent death of her son: the failure to have a system in place to allow for prompt review of inmates’ medical requests, the practice of severely under- staffing correctional officers, and the failure to fix the broken video monitors in Cook County Jail. The jury ruled in the plaintiff’s favor and entered a verdict against both Cook County and the Sheriff. Any one of the alleged policies or practices may support a judgment against a governing body. Cook County, however, con- tends that the verdict cannot stand as a matter of law. It argues that the district court should have directed a verdict in its favor after all of its employees were acquitted, and that it cannot be held liable for the actions of the Sheriff’s officers. The Sheriff and the County also dispute whether the evidence supports the grounds upon which the jury found them liable. So the questions we address are whether the plaintiff presented
2 For example, Smith’s cell mate, Tyrrell Mitchell, testified that Smith was vomiting for three to four days before his release and that he was not able to hold down any food or maintain conversations. Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 13
sufficient evidence of a widespread custom or practice, and, if so, whether the County can be held liable. A local governing body may be liable for monetary damages under § 1983 if the unconstitutional act com- plained of is caused by: (1) an official policy adopted and promulgated by its officers; (2) a governmental practice or custom that, although not officially authorized, is widespread and well settled; or (3) an official with final policy-making authority. Monell, 436 U.S. at 690; Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 674 (7th Cir. 2009). To demonstrate that the County is liable for a harmful custom or practice, the plaintiff must show that County policymakers were “deliberately indifferent as to [the] known or obvious consequences.” Gable v. City of Chi., 296 F.3d 531, 537 (7th Cir. 2002). In other words, they must have been aware of the risk created by the custom or practice and must have failed to take appro- priate steps to protect the plaintiff. Id. Therefore, in situa- tions where rules or regulations are required to remedy a potentially dangerous practice, the County’s failure to make a policy is also actionable. See Sims v. Mulcahy, 902 F.2d 524, 543 (7th Cir. 1990) (quoting Jones v. City of Chi., 787 F.2d 200, 204-05 (7th Cir. 1986)). We do not adopt any bright-line rules defining a “wide- spread custom or practice.” As we stated in Cosby v. Ward, there is no clear consensus as to how frequently such conduct must occur to impose Monell liability, “except that it must be more than one instance,” 843 F.2d 967, 983 (7th Cir. 1988), or even three, Gable, 296 F.3d at 538 (“[T]hree incidents where vehicle owners 14 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
were erroneously told that their vehicles were not at Lot 6 do not amount to a persistent and widespread practice.”) (internal quotation marks omitted). But the plaintiff must demonstrate that there is a policy at issue rather than a random event. This may take the form of an implicit policy or a gap in expressed policies, Phelan v. Cook County, 463 F.3d 773, 790 (7th Cir. 2006) (citing Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005)), or “a series of violations to lay the premise of deliberate indifference.” Palmer, 327 F.3d at 596 (citation omitted). Beyond these threshold requirements, the jury must make a factual determination: whether the evidence demon- strates that the County had a widespread practice that caused the alleged constitutional harm. See Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 928 (7th Cir. 2004). The plaintiff presented evidence to identify the wide- spread Cook County customs or practices that caused Smith’s death. Beginning with the widespread practice of failing to review inmates’ timely filed medical requests, the supervisor for Cermak’s CMTs, Woodroe Winfrey, testified that medical request forms were not collected every day. The request forms were placed in a locked box, to which, at the time of Smith’s death, many CMTs did not have keys. Further testimony sug- gested that many CMTs had not been told how to obtain keys to the lockboxes, that some CMTs were not turning in their daily encounter forms (which would disclose whether they collected medical request forms), and that Cermak did not have a reporting system for informing supervisors when CMTs failed to make their daily rounds. Jean Kiriazes, Cermak’s director of con- Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 15
tinuous quality improvement and risk management, testified that she was aware the medical request forms were not collected each day, partly because guards were not available to allow the CMTs on the tier. A number of Cermak employees testified to, and other evidence corroborated, the practice of not retrieving medical re- quests on a daily basis, including on April 29, 2004, the day before Smith died. We are not dealing with an isolated act of an individual employee, which would be insufficient to establish a widespread custom or prac- tice. Monell, 436 U.S. at 691-94. Instead, the jury heard a number of County employees, some of whom were policymakers, testify about a practice that went on for an extended period of time. The dangers of delayed responses to medical requests are readily ap- parent, and the former director of Cermak seemed to acknowledge as much in his testimony. The trial testimony also established a link between the failure to check medical requests and Smith’s death. Fellow inmate George Robotis testified that on April 28, 2004, he filed a medical request form on Smith’s behalf, which he submitted directly to an officer working the tier that morning. On the form, he wrote that because Smith could not move, he was writing on Smith’s behalf, and that Smith was not eating, could not get out of bed, was throwing up, and was very ill. Tyrrell Mitchell, who shared a cell with Smith for a short period, testified that he saw Smith fill out a medical request form (although he didn’t remember if Smith submitted it to the guard). Alan Robinson, another inmate, testified that he completed a medical request form for Smith “at 16 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
least three times,” in which he reported that Smith was dizzy, nauseous, vomiting, and that he had seen others submitting written requests for Smith. And the list goes on. Two doctors further testified that pneumococcal meningitis is almost always fatal if not treated, but mortal- ity is no more than 30% if treated. And the plaintiff’s expert, Dr. Ben Katz, testified that Smith would have exhibited symptoms of meningitis (vomiting, nausea, fever) by the evening of April 27, 2004. The testimony at trial leads us to conclude that the jury had a sufficient basis to find a widespread practice of CMTs failing to collect medical request forms, and that this failure caused Smith’s death. Furthermore, we find unpersuasive the County’s argu- ment that it cannot be held liable under Monell because none of its employees were found to have violated Smith’s constitutional rights. In support of its argument, the County cites Los Angeles v. Heller, 475 U.S. 796 (1986). The Supreme Court in that case determined that a munici- pality could not be held liable for constitutional viola- tions based on the actions of one of its police officers after the jury found that the individual officer did not inflict any constitutional harm. Id. at 799. The Court reached this conclusion, however, under different factual circumstances and for different reasons which do not apply here. The plaintiff in Heller sued the City of Los Angeles and individual members of the police force for damages under § 1983, alleging that the officers arrested him without probable cause and used excessive force in Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 17
making the arrest. Id. at 797. On the constitutional claims, the jury returned a verdict for the individual officer, and the Supreme Court agreed that the district court properly dismissed the claim against the City. Id. at 798-99. The Court noted that the jurors were not instructed on any affirmative defenses that the individual officer may have asserted, nor were they presented with any qualified immunity issues. Id. at 798. The absence of these defenses is significant. If, for instance, the officer had pled an affirmative defense such as good faith, then the jury might have found that the plaintiff’s constitutional rights were indeed violated, but that the officer could not be held liable. In that case, one can still argue that the City’s policies caused the harm, even if the officer was not individually culpa- ble. Without any affirmative defenses, a verdict in favor of the officer necessarily meant that the jury did not believe the officer violated the plaintiff’s constitutional rights. And since the City’s liability was based on the officer’s actions, it too was entitled to a verdict in its favor. The County, in this case, appears to push for a rule that requires individual officer liability before a munic- ipality can ever be held liable for damages under Monell. This is an unreasonable extension of Heller. What if the plaintiff here had only sued the County, or didn’t know, because of some breakdown in recording shifts, who the CMTs on duty were? The actual rule, as we interpret it, is much narrower: a municipality can be held liable under Monell, even when its officers are not, unless such a finding would create an inconsistent verdict. See Heller, 475 U.S. at 798-99; see also id. at 801 (Stevens, J., dissenting). 18 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
So, to determine whether the County’s liability is depend- ent on its officers, we look to the nature of the constitu- tional violation, the theory of municipal liability, and the defenses set forth. See Speer v. City of Wynne, 276 F.3d 980, 986 (8th Cir. 2002). The plaintiff in this case alleged that the failure to respond to Smith’s medical requests caused his death and violated his right to due process. The jury instructions on the claim listed three elements, each of which the jury had to find by a preponderance of the evidence: “1. Norman Smith had a serious medical need; 2. [t]he [d]efendant was deliberately indif- ferent to Norman Smith’s serious medical need; and 3. [t]he [d]efendant’s conduct caused harm to Norman Smith.” (emphasis added). Based on these instructions, the jury could have found that the CMTs were not deliberately indifferent to Smith’s medical needs, but simply could not respond adequately because of the well-documented breakdowns in the County’s policies for retrieving medical request forms. It is not difficult to reconcile the verdicts in this instance, and we see nothing amiss in holding the County liable even though none of the CMTs were individually responsible.3
3 The County also makes a somewhat undeveloped argument that it cannot be held liable based on the actions of the Sheriff’s officers alone. That may be true because, in Illinois, the Sheriff is an independently elected officer who is accountable only to the people, rather than to the County board. Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir. 1989) (citing Ill. Const. Art. VII, § 4(c)); see also Franklin v. Zaruba, 150 F.3d 682, 686 (7th (continued...) Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 19
C. Insufficient Evidence to Impose Liability Against Sheriff The Sheriff also challenges whether he can be held liable for damages under Monell. The jury found the Sheriff liable based on the policy/practice of severely under- staffing correctional officers, and the Sheriff believes the evidence is legally insufficient to sustain this verdict. The Sheriff argues that under-staffing cannot be a basis for liability under § 1983, that there is no causal link between under-staffing and Smith’s death, and that the Sheriff has limited control of the budget so any fault lies with Cook County.
(...continued) Cir. 1998) (“the lack of identity between the county sheriff’s department and the general county government indicates that § 1983 suits against sheriffs in their official capacities are in reality suits against the county sheriff’s department rather than the county board.”); Ryan v. County of DuPage, 45 F.3d 1090, 1092 (7th Cir. 1995) (“Illinois sheriffs are independently elected officials not subject to the control of the county.”). However, because the jury had sufficient basis to find that the failure to retrieve and act on the detainees’ medical requests (which implicates the County’s unofficial practice or custom) caused Smith’s death, we need not address the additional arguments. Nor must we decide whether the evidence sup- ported the other allegedly harmful policies or practices. The evidence supported the plaintiff’s first theory of liability, and we can uphold the jury’s verdict on that ground alone. Cf. Griffin v. United States, 502 U.S. 46, 60 (1991) (noting that a jury verdict should not be set aside merely on the chance that it was not supported by sufficient evidence “when there existed other grounds for which the evidence was sufficient”). 20 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
We begin with what appears to be the Sheriff’s strongest argument: the absence of any causal link between its policies and Smith’s death. Monell recognized that the premise behind a § 1983 action against a government body is “the allegation that official policy is responsible for the deprivation of rights.” Monell, 436 U.S. at 690 (emphasis added). In applying the different theories of liability recognized under Monell, we have always required plaintiffs to show that their injuries were caused by the policies or practices complained of. See Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th Cir. 2008). This is an explicit requirement of § 1983 and an uncontro- versial application of basic tort law. But in cases such as this, where individual defendants are commingled with governmental bodies, and the plaintiff alleges a litany of policy failures that interact to create some consti- tutional harm, it is sometimes easier to obscure the causal links between different actors. The individual officers in this case (the Sheriff’s deputies) were found liable because they displayed deliberate indifference to Smith’s medical needs, yet the Sheriff was also found liable for its policy of severely under- staffing the prison. The only way to reconcile these two verdicts is to find that both the officers’ deliberate indif- ference and the policy of under-staffing caused Smith’s death. We find the latter unsupported by the evidence presented at trial. A number of inmates testified that they either complained or witnessed others complain to the officers about Smith’s condition. At that point, the officers should have taken the steps necessary to investi- gate and ensure that Smith received medical attention. Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 21
The theory that under-staffing may have also caused Smith’s death, on the other hand, is too remote to support a verdict against the Sheriff. A governmental body’s policies must be the moving force behind the constitu- tional violation before we can impose liability under Monell. Woodward, 368 F.3d at 927. In § 1983 actions, the Supreme Court has been especially concerned with the broad application of causation principles in a way that would render municipalities vicariously liable for their officers’ actions. Bd. of County Com'rs of Bryan County v. Brown, 520 U.S. 397, 405 (1997) (“Where a plain- tiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an em- ployee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.”); see also City of Springfield v. Kibbe, 480 U.S. 257, 267-68 (1987) (O’Connor, J., dissenting). That is why some courts distinguish between the acts that caused the injury and those that were merely contributing factors. See Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 625 (11th Cir. 2007). We need not make such a distinction here because the evidence presented at trial does not even establish that under-staffing was a contributing factor. Because the jury held the individual officers liable, it must have found that the officers deliberately ignored Smith’s condi- tion. But the evidence does not demonstrate that their actions had anything to do with under-staffing. No one testified or even argued that the officers would have acted differently if more of them were on duty. How many officers would the Sheriff need to hire to 22 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
ensure that no one deliberately ignores a complaint or medical request? We do not know. One possible theory that the plaintiff proposes is that the Sheriff’s policy of under-staffing prevented the CMTs from retrieving the medical request forms submitted on Smith’s behalf. Generally, inmates place their request forms in lockboxes, which are located within the tiers. The officers on duty must first grant the CMTs access into the tiers, after which the CMTs must use their own keys to retrieve the forms from the lockboxes. In other words, when the officers are under-staffed, they may not be available to grant CMTs access to the tiers, and, by extension, the lockboxes. That is what the plaintiff suggests may have happened here. But the only evidence supporting this conclusion was testimony that CMTs have complained previously of being unable to access the tiers to retrieve the medical requests. Assuming the jury believed the witnesses who claimed to have submitted request forms on Smith’s behalf, the plaintiff presented no evidence as to why those forms were not retrieved. No one testified that they could not have access to the tiers on the days Smith or the other inmates submitted requests. Some CMTs reported not having keys to the medical request lockboxes, and others did not turn in their daily encounter forms, so there was no way of knowing if they picked up the request forms. The plaintiff even argues (albeit to establish a widespread practice of CMTs failing to retrieve request forms) that one of the CMTs on duty on April 29, 2004, did not have a key to the lockbox and could not have opened it anyways. The relevant question for the causation requirement is whether the Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 23
Sheriff’s policy of under-staffing was the reason the CMTs could not access the forms on those days that Smith and the other inmates claimed to have submitted their re- quests. We see no evidence to suggest that it was. Nothing occurs in a vacuum, and we have no doubt that additional factors, other than the officers’ malfeasance, may be at play. Perhaps if the officers re- ceived better training, or if the jail was less crowded, they might not have ignored Smith’s condition. All of this may be true, but it does not satisfy the causation require- ment here. To hold otherwise would significantly expand Monell and lead us down the road to vicarious liability. So when individual officers are aware of, and make the conscious decision not to respond to, reports of an inmate’s poor health, we cannot infer, without more evidence, that under-staffing was the moving force behind the resulting injury.
D. Trial Court’s Evidentiary Rulings Cook County, the Sheriff, and the individual officers provide a long list of evidentiary rulings that they claim amounted to an abuse of discretion and warrant a new trial. Among the testimony and other evidence challenged on appeal are: Carlos Matias’s deposition testimony, which was read to the jury; a doctor’s state- ments contained in the Sheriff’s death investigation report; hearsay statements admitted through Gilbert Yorke, an inmate; and a list of names that the plaintiff obtained of other inmates who had information on Smith’s death. We review the district court’s decision to admit testimony for an abuse of discretion, and we will 24 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
only reverse if the district court’s evidentiary ruling was not harmless. Dadian v. Vill. of Wilmette, 269 F.3d 831, 842 (7th Cir. 2001).
1. Carlos Matias’s Deposition Testimony Federal Rule of Civil Procedure 32 governs the use of deposition testimony during trial. That provision states, in part, that “a party may use for any purpose the deposi- tion of a witness, whether or not a party, if the court finds: . . . that the party offering the deposition could not procure the witness’s attendance by subpoena . . . .” Fed. R. Civ. P. 32(4)(D). Implicit in this rule is an obligation to use reasonable diligence to secure the witness’s presence, and the district court has broad discretion to determine whether the proponent has satisfied this re- quirement. Griman v. Makousky, 76 F.3d 151, 154 (7th Cir. 1996). After two subpoenas, a show cause order, numerous phone calls, and a search by a private investigator, the plaintiff could not get Matias, who had since been released from custody, into court to testify. Pursuant to Rule 32, the district court allowed the plaintiff to read Matias’s deposition testimony at trial, over the defen- dants’ objections. The defendants argue that the plaintiff did not exercise reasonable diligence in procuring Matias’s presence because: (1) the plaintiff was in constant contact with Matias, who was in Chicago, and should have been able to secure his presence; and (2) the district court should have compelled Matias to appear by issuing an arrest warrant but chose not to based on the plaintiff’s reassurances that Matias would appear. Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 25
Neither Rule 32 nor our case law required the district court to issue an arrest warrant for Matias before admitting his deposition testimony. In Rascon v. Hardiman, for instance, we upheld the district court’s decision to admit a potential witness’s deposition testimony after a private investigator and a process server were unable to subpoena the witness. 803 F.2d 269, 277 (7th Cir. 1986). Their efforts had satisfied the magistrate judge that the plaintiff exercised reasonable diligence, and we found no abuse of discretion in the judge’s determination. Id. The defendants, however, attempt to distinguish Rascon on the grounds that the plaintiff in this case knew that Matias was in Chicago, and the plaintiff represented that Matias would appear to discourage the district court from issuing an arrest warrant. But knowledge of Matias’s whereabouts does not detract from the court’s finding that the plaintiff exercised reasonable diligence. Matias’s location was never in dispute. In fact, he was sub- poenaed twice. The problem was that Matias did not abide by court orders. And the district court found that the plaintiff’s attempts to ensure Matias’s compliance, including hiring a private investigator to transport Matias to the courthouse, met the reasonable diligence standard. We find no abuse of discretion here. Reasonable diligence aside, it seems an additional step could have been taken to ensure Matias’s presence in court. In most cases, courts understandably elect live or even recorded testimony over transcripts read to the jury. See, e.g., Murillo v. Frank, 402 F.3d 786, 790 (7th Cir. 2005); Griman, 76 F.3d at 153. This preference should be even more pronounced for witnesses, like Matias, who may be 26 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
instrumental to a party’s case. Iragorri v. Int’l Elevator, Inc., 203 F.3d 8, 17 (1st Cir. 2000) (“[T]he live testimony of [key] witnesses for the purposes of presenting demeanor evidence [is] essential to a fair trial.”) (citation omitted). The court had anticipated the possibility that Matias would not appear, and advised the parties to review his deposition. Under these circumstances, where everyone has notice that the witness may not comply with court orders, and the plaintiff knows his whereabouts, it would make sense to issue an arrest warrant. Nonetheless, that we may have done things differently in hindsight is beside the point. The court had broad discretion to determine whether the plaintiff’s actions satisfied Rule 32’s requirements, and we see no reason to reverse its ruling. And even if we did find error, a number of other live witnesses corroborated the more significant or prejudicial statements in Matias’s testimony. For example, Matias testified that, on April 24, 2004, Smith’s first day in cus- tody, Smith asked him to fill out a medical request form. Robotis said he had filled out a request form for Smith after Matias sent his form in, and Robinson stated that Smith was sick from the first day he arrived at jail. Both Matias and Mitchell also testified that they witnessed Smith fill out a medical request form. By Smith’s second day in custody, Matias claimed that he cleaned the vomit Smith left behind in the day room, and Mitchell testified that he too saw Smith vomiting in the day room. Also, Matias said that on April 28, 2004, a number of inmates told officers that “a man was really sick,” referring to Smith. Robotis made similar state- Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 27
ments when he testified to personally informing the guards working on the 28th that Smith was ill, and Mitchell recalled witnessing inmates approach medical technicians to request help for Smith. Finally, Matias testified that Smith could not walk and was lying on the floor, but Mitchell corroborated this statement when he described Smith as lethargic and “not moving” on April 29, 2004. The defendants had the opportunity to cross-examine Matias during his deposition, as well as the other inmates whose testimony corroborated Matias’s accounts. Under these circumstances, the minimal preju- dice to the defendants does not warrant a new trial.
2. Hearsay and Other Objections The remaining evidentiary challenges can also be quickly resolved. Officer Raher testified that while in- vestigating Smith’s death, Dr. Analgate, the physician on duty when Smith was transported to the emergency room, told him (Raher) that he had heard that Smith had been complaining of illness. The problem with this testi- mony is that it is not very probative at all. See Fed. R. Evid. 403. It only shows that Raher spoke to Dr. Analgate, and learned of Matias’s complaints, on April 30—the day Smith was taken to the emergency room. His failure to interview more witnesses after the fact says nothing about the County’s response to requests for medical attention. Similarly, Dr. Analgate did not indicate when he heard about Smith’s complaints (whether before or on the 30th), so his statements do not tell us much about County policy either. Nonetheless, if any error occurred, 28 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
it does not warrant a new trial. A number of inmates testified that they submitted medical request forms and complained directly to the officer, and it is unlikely that this testimony had an injurious effect on the verdict. The other inmates’ testimony also renders harmless the admission of Gilbert Yorke’s statement and the alleged hearsay statements in Matias’s deposition testi- mony. Yorke testified that Matias told him to sleep on the top bunk because Smith had been sick since he arrived on the tier (Smith and Yorke shared bunk beds), possibly inferring that the guards should have known that Smith was sick and responded. Even if Yorke’s testimony could be read to allow this inference, the jury heard ample other testimony that other inmates had put the officer defen- dants on notice of Smith’s condition, and so any error in admitting Yorke’s testimony was harmless. We find the defendants’ remaining evidentiary chal- lenges meritless. These include: Matias’s deposition statement that he heard a nurse say that Smith was just “dope sick” and that there was nothing she could do about it; the admission of the list given to the plaintiff containing the names of inmates who wanted her to know what happened to her son; the plaintiff’s testi- mony about Smith’s past jobs; the admission of Smith’s resumè; and the district court’s decision to exclude evi- dence of Smith’s previously unknown child. Matias’s statement that a nurse told him that Smith was just “dope sick” is not hearsay. Federal Rule of Evidence 801(d)(2)(D) states that “[a] statement is not hearsay if . . . the statement is offered against a party and is the Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 29
party’s own statement, in either an individual or a repre- sentative capacity . . . or a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship . . . .”. The plaintiff used the statement, made by a Cook County employee, to show that the County employees were deliberately indifferent to Smith’s illness and had a widespread practice of ignoring medical re- quests; therefore, it was admissible. Regarding the list of inmates, the plaintiff argues that the list was only offered to show how the plaintiff found the inmates who testified at trial. For this purpose, the list is not hearsay, but it is unclear why it was relevant in the first place. Many inmates on the list testified and described in detail Smith’s condition in the days leading up to his death. As the district court noted, how the plaintiff found the inmate witnesses is of limited probative value. But for that same reason, its admission was also harmless. We cannot think of any reasonable inference the jury could have made from the list that it could not have made from the inmates’ testimony. We also agree with the district court that the admission of Smith’s resumé and testimony about his past employ- ment and education do not warrant a reversal. Rule 901(a) of the Federal Rules of Evidence states that the authentica- tion requirement “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Smith’s mother (the plaintiff) and girlfriend testified, based on their personal knowledge, to Smith’s past employment and education, which in- 30 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
cluded jobs at McDonald’s, Dominicks, Clark gas station, T.E.A.M.S., and Commander Packaging. Any information in his resumé was also presented through their testimony, which the defendants had an opportunity to challenge during trial. Finally, we see no error in the district court’s decision to exclude any evidence of Smith’s previously unknown fourth child. The County claims that the evidence would have enabled it to challenge the plaintiff’s credibility because she had stated that Smith had only three children. The district court determined that evidence of a previously unknown child would not impeach the plaintiff, and the defendants have not demonstrated otherwise. None of these alleged infirmities entitle the defendants to a new trial.
E. The Jury’s Verdict Although the district court instructed the jury against duplicative compensatory damage awards, the verdict form, to which the defendants did not object, provided spaces for the jury to enter damages for both the denial of medical care (against the individual defendants) and policy and practice (against the County) claims, both of which resulted in the same injury. The district court remitted the jury’s total damage award from $4,450,000 to $4,300,000, ($300,000 of which were for the wrongful death and survival claims) but the defendants argue that the verdict is still inconsistent and excessive. We review the district court’s decision not to grant a new trial on damages for an abuse of discretion. Houskins v. Sheahan, 549 F.3d 480, 498 (7th Cir. 2008). Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 31
On the federal claims, the jury entered $150,000 in damages against the officers collectively, $3,000,000 in damages against Cook County, and $1,000,000 against the Sheriff. As a result, it is unclear whether the jury meant to allocate duplicate awards for the same injury, or whether it merely calculated total damages and allo- cated the amounts separately based on what it perceived to be each party’s relative fault. Because we presume that juries follow the court’s instructions, we will assume the latter, Soltys v. Costello, 520 F.3d 737, 744 (7th Cir. 2008), which is more consistent with the district court’s instruction that the jury not award com- pensatory damages twice for the same injury. This raises another question, however, because the defendants were jointly and severally liable, and allocating damages between the parties for the indivisible injury alleged in this case was improper. See Transcraft, Inc. v. Galvin, Stalmack, Kirschner & Clark, 39 F.3d 812, 821 (7th Cir. 1994). To remedy this error, the district court decided to place a ceiling at the highest assessment of compensatory damages against any of the jointly liable defendants as opposed to totaling all of the allocated amounts. See Bosco v. Serhant, 836 F.2d 271, 281 (7th Cir. 1987). The highest damage award was $3,000,000 assessed against Cook County; however, the district court also added the $1,000,000 award assessed against the Sheriff. It appears that the district court adopted two approaches in interpreting the compensatory damage awards. It attempted to place a ceiling on the highest assessment of damages, and, at the same time, added the 32 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
awards allocated to different defendants (the Sheriff and Cook County). As the district court recognized, we have previously suggested that a ceiling at the highest assess- ment of compensatory damages may be appropriate when a jury improperly allocates the award among defen- dants who are jointly and severally liable. Bosco, 836 F.2d at 281; Watts v. Laurent, 774 F.2d 168, 180 (7th Cir. 1985). But those cases do not require us to apply that rule in every instance. One can just as easily argue that, instead of a ceiling, the total damage award should be the sum of all damages allocated among the defendants. See Watts, 774 F.2d at 180. Ultimately we interpret jury awards to avoid inconsistency, Majeske v. City of Chi., 218 F.3d 816, 823 (7th Cir. 2000), and presume that juries follow the court’s instructions. Soltys, 520 F.3d at 744. If the jury avoided duplicate compensatory damage awards, as the court ordered, then a ceiling at the highest assessment would not accurately reflect the amount that the jury determined would compensate the plaintiff. Therefore, adding the damage awards would be more consistent with the presumptions we apply to jury verdicts. Under either theory, a $4,000,000 award does not add up. If the district court sought out to establish a ceiling based on the highest damage assessment allocated to a defendant, that number is $3,000,000—the damage award entered against Cook County. To add the $1,000,000 award originally entered against the Sheriff defeats the purpose of placing a ceiling. If, on the other hand, the district court decided to add the allocated damages based on the presumption that the jury heeded its in- Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 33
struction not to issue duplicate awards, then there was no reason to exclude the $150,000 award against the officers. The plaintiff, however, does not challenge the $150,000 adjustment so we will not address it. Cf. Luellen v. City of E. Chi., 350 F.3d 604, 612 n.4, 5 (7th Cir. 2003) (noting that arguments not raised on appeal are waived). Other than the reduction, we agree with the district court’s decision to award the damages allocated to both Cook County and the Sheriff. The court presumed that the jury followed its instruction not to issue duplicate awards, and it appropriately interpreted the verdict. Moreover, our conclusion that the evidence was insuffi- cient to hold the Sheriff’s office liable under Monell does not affect the damages calculation. The defendants were jointly and severally liable for one indivisible injury, and the damage award represents the amount required to compensate the plaintiff for that harm. See Peterson v. Gibson, 372 F.3d 862, 864 (7th Cir. 2004); Maul v. Constan, 928 F.2d 784, 787-88 (7th Cir. 1991). That amount remains the same because it is tied to the injury itself. The plaintiff may collect the full amount from any one of the defendants, and the jury’s decision to include the Sheriff among those liable merely added another source of collection. Watts, 774 F.2d at 180. Removing the Sheriff from this list, therefore, only removes that potential source but does not affect the amount of damages to which the plaintiff is entitled. The defendants also argue that the award was excessive. In particular, they note the discrepancy between the 34 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
jury’s allocation of damages against the individual and institutional defendants, and also point to damage awards in other cases in an attempt to show that the jury’s verdict was unreasonable. “When the district court has remitted a portion of the jury’s award and the defendant claims that the remitted award is still exces- sive,” we review the evidence of damages in the light most favorable to the jury verdict and will only reverse if there is no rational connection between the evidence and the damage award. Deloughery v. City of Chi., 422 F.3d 611, 619 (7th Cir. 2005). Under the federal standard for reviewing com- pensatory damages we assess whether the award is “monstrously excessive,” “whether there is no rational connection between the award and the evidence,” and whether the award is comparable to those in similar cases. Naeem v. McKesson Drug Co., 444 F.3d 593, 611 (7th Cir. 2006). As we stated earlier, the jury’s allocation of damages does not render the verdict unreasonable. Nor is it excessive in comparison to similar cases. Estate of Moreland v. Dieter, for example, involved a § 1983 claim based on the death of a inmate, and, while the officers’ conduct in that case was much more egregious, the jury awarded $29,000,000 in compensatory damages. 395 F.3d 747 (7th Cir. 2005). Cf. DeBiasio v. Ill. Cent. R.R., 52 F.3d 678 (7th Cir. 1995) (upholding a $4,201,000 damage award for a plaintiff who was injured and lost his left arm while employed with Illinois Central Railroad). The defendants, however, point to various state court cases with lower compensatory damage awards. Aside from the fact that these cases allege different claims, “[a] Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 35
court should not substitute a jury’s damages verdict with its own figure merely because . . . a plaintiff in a similar case was perhaps not able to plead his facts to the jury as well.” Lampley v. Onyx Acceptance Corp., 340 F.3d 478, 485 (7th Cir. 2003). Finally, we find sufficient evidence to support the award. Smith was only thirty-two years old and died of a treatable illness while in custody. Numerous witnesses testified that their attempts to obtain medical care for Smith, or to alert officials about Smith’s condition were largely ignored. Smith had three children whom he supported and with whom he had a close relationship. The jury also heard evidence about Smith’s employment history through witness testimony and the admission of Smith’s resumé. He had a solid work history that included McDonald’s, Dominicks, Clark gas station, T.E.A.M.S., and working for Commander Packaging as a machine operator. Our review of the facts supporting the damage award and the district court’s decision to uphold it is deferential. “We are reluctant to substitute our assessment of the evidence in place of the discretion of the district court, exercised in light of what it wit- nessed at trial,” Deloughery, 422 F.3d at 620, and we see no reason to do so here.
III. CONCLUSION For these reasons, we A FFIRM the district court’s denial of Cook County and the individual officers’ motion for judgment as a matter of law, and we A FFIRM the district court’s denial of the defendants’ motion for a 36 Nos. 08-2232, 08-2233, 08-2482 & 08-2597 & 08-2948
new trial. We R EVERSE, however, the district court’s denial of the Sheriff’s motion for judgment as a matter of law and R EMAND with instructions that the district court enter judgment in the Sheriff’s favor.
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