Reed v. Larson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

RECO REED, B18431, )

)

Plaintiff, )

)

vs. ) Case No. 18-cv-01182-JPG

)

WEXFORD HEALTH SOURCES, INC., )

)

Defendant. )

MEMORANDUM AND ORDER

This matter comes before the Court on Defendant Wexford Health Sources, Inc.’s motion

for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b) or, in the

alternative, for a new trial pursuant to Federal Rule of Civil Procedure 59 (Doc. 148). Plaintiff

Reco Reed has responded to the motion (Doc. 157), and Wexford has replied (Doc. 161).1 For the

reasons set forth below, the motion shall be DENIED.

This case was tried before a jury in April 2023 on the question of whether Wexford

maintained a policy of refusing to authorize surgical repair of abdominal/inguinal hernias unless

the hernia was strangulated or incarcerated.2 (Doc. 118). Specifically, Reed claims that this policy

caused a delay in surgical repair of his abdominal hernia until several months after he filed this

1 To the extent Wexford’s reply raises new arguments that it did not address in its original motion, the Court

disregards all new arguments. Wright v. United States, 139 F.3d 551, 553 (7th Cir. 1998).

2 An inguinal hernia occurs when tissue, such as part of the intestine, protrudes through a weak spot in the

abdominal muscles, resulting in a bulge that can be painful and may lead to serious complications. If the

hernia can be pushed back into place, it is considered “reducible.” When the contents of the hernia become

trapped in the abdominal wall, the hernia is considered “incarcerated.” And, when blood flow is cut off to

the trapped tissue, the hernia is considered “strangulated.” A strangulated hernia can be life-threatening if

left untreated. See https://www.mayoclinic.org/diseases-conditions/inguinal-hernia/symptoms-causes (site

last visited March 20, 2024).

1

lawsuit, and the jury was asked to determine whether Wexford’s failure to timely repair the hernia

or treat his hernia pain amounted to deliberate indifference that caused Reed harm.

At the close of evidence, Wexford moved for judgment as a matter of law under

Federal Rule of Civil Procedure 50(a). Wexford argued that the evidence did not support a finding

of corporate deliberate indifference or a finding that Wexford caused Reed to suffer any harm.

The Court denied Wexford’s motion. The jury then returned a verdict of $250,000 in

compensatory damages and $500,000 in punitive damages (Doc. 131), and the Court entered

judgment accordingly on April 10, 2023 (Doc. 135).

On May 8, 2023, Wexford renewed its motion for judgment as a matter of law pursuant to

Rule 50(b) on Reed’s Eighth Amendment claim. Wexford additionally argued that the amount of

compensatory damages for emotional pain and suffering was not rationally connected to the

evidence, and the punitive damages award was so excessive that it denied due process in violation

of the Fourteenth Amendment. Wexford also moved for a new trial under Rule 59, challenging

the Court’s evidentiary rulings as erroneous and prejudicial and challenging the verdict as being

against the manifest weight of the evidence. The trial proceedings are discussed below, only to

the extent they are pertinent to the pending motion.

I. Renewed Motion for Judgment as a Matter of Law

Under Federal Rule of Civil Procedure 50(a), the Court may grant judgment as a matter of

law during trial, if “a party has been fully heard on an issue during a jury trial and the court finds

that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on

that issue.” See FED. R. CIV. P. 50(a)(1). If the Court denies the motion at trial, the moving party

may renew it after entry of judgment on the verdict. See FED. R. CIV. P. 50(b). In response to a

2

post-verdict motion under this rule, the Court may allow the judgment to stand, order a new trial,

or direct entry of judgment as a matter of law. See id.

This rule sets a high bar. Ruiz Cortez v. City of Chi., 931 F.3d 592, 601 (7th Cir. 2019).

When presented with a motion for judgment as a matter of law under Rule 50, the Court should

consider all of the evidence, draw all reasonable inferences in favor of the non-moving party,

refrain from credibility determinations, and avoid weighing evidence. Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Hakim v. Safariland, LLC, 79 F.4th 861, 868

(7th Cir. 2023). “That is, the court should give credence to the evidence favoring the nonmovant

as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at

least to the extent that that evidence comes from disinterested witnesses.’” Reeves, 530 U.S. at

151 (quoting 9A C. Wright & A. Miller, Federal Practice and Procedure § 2529, at 300 (2d ed.

1995)). When construing the evidence in this light, the Court concludes that a reasonable jury

could find for Reed, so this motion is DENIED.

A. Motions for Judgment as a Matter of Law

The issue at trial was whether Wexford had a policy3 of refusing to authorize surgical repair

of abdominal hernias unless the hernia was strangulated or incarcerated and whether this policy

caused Reed to suffer harm. (See Doc. 49, Count I; Doc. 87, p. 2; Doc. 118, p. 2; Doc. 136, pp.

14-15). As a private corporation that contracted to provide medical services to inmates in the

Illinois Department of Corrections, Wexford was subject to § 1983 liability much like a

3 The jury instructions defined “policy” as “a custom or practice that is persistent and widespread, so that

it is Defendant Wexford’s standard operating procedure. A persistent and widespread custom or practice

may be a policy even if Defendant Wexford has not formally approved it, so long as Plaintiff Reed proves

that a policy-making official knew of the custom or practice and allowed it to continue.” (Doc. 136, p. 14)

(quoting Jury Instruction (“JI”) No. 14 (Version 3)).

3

municipality under Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978). See

Shields v. Illinois Dept. of Corr., 746 F.3d 782 (7th Cir. 2014). Respondeat superior liability does

not apply to either one under § 1983. Id. (citing Iskander v. Village of Forest Park, 690 F.2d 126,

128 (7th Cir. 1982)). A private medical corporation cannot be liable under § 1983, unless an

unconstitutional policy or custom of the corporation, itself, caused the constitutional violation at

issue. Id.

A plaintiff must prove three things to establish liability under Monell. First, the plaintiff

must point to: (a) an express policy that, when enforced, caused a constitutional deprivation; (b) a

widespread practice that, although not authorized by written law or express policy, was so

permanent and well settled as to constitute a custom or usage with the force of law; or (c) a

constitutional injury that was caused by a person with final decision-making or policy-making

authority. Spiegel v. McClintic, 916 F.3d 611, 617 (7th Cir. 2019). Second, the plaintiff must

establish that the defendant was culpable, meaning that the policymakers were deliberately

indifferent to a known or obvious risk that a policy or custom would lead to constitutional

violations. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 407 (1997). Third, the defendant’s

policy must “directly cause[ ] a deprivation of federal rights.” Id. at 415. In other words, the

defendant’s own actions were the “moving force” behind the plaintiff’s injuries. Id. at 404. These

three elements are addressed, in turn, below.

1. Policy or Practice of Refusing to Authorize Surgical Repair of Abdominal

Hernias Unless Hernia Was Strangulated or Incarcerated

Wexford argues that the evidence was insufficient for a jury to conclude that it had a policy

of refusing to authorize surgical repair of abdominal hernias unless the hernia was strangulated or

incarcerated. According to Wexford, Reed presented evidence of a policy in the form of a

4

widespread practice by relying on three sources, including: (1) the opinion of Reed’s expert,

Dr. Clay DeMattei, that Wexford refuses surgical consultation “until there is an emergency or

someone files a lawsuit” based on his review of 6-10 other inmate hernia cases involving reducible,

strangulated, or incarcerated hernias (Doc. 139, pp. 137-38, 162); (2) Reed’s own testimony that

Dr. Larson told him Wexford does not do hernia surgery (Doc. 138, p. 63); and (3) Reed’s own

experience (Doc. 149, p. 26).

Reed counters that the jury heard evidence of Wexford’s unwritten and written hernia

policies from both parties. Wexford’s own expert, Dr. Glen Babich, introduced evidence of the

private medical corporation’s written policy as Exhibit 5. (Doc. 139) (Transcript of Trial (“Tr.”)

at 254:15-25 – 255:1-21). As written, the policy does not contemplate surgery for hernia patients

with abdominal wall hernias deemed stable or reducible, until the hernia becomes strangulated or

incarcerated. (Doc. 139, pp. 133-34). Dr. Babich explained the policy, as follows:

Section A. reads: “Patients with stable abdominal wall hernias are not, in general,

candidates for” – and that word means hernia surgery – “and will be monitored and treated

with appropriate non-surgical therapy.” . . . . “Hernias which do not impact on an inmate’s

activities of daily living in this setting would not be a consideration for a repair.” . . . That

if the patient can function, do everything, work, do all their other activities and they’re not

having any real issues, then it’s okay to defer surgery and do the, the monitor and watch

that we had heard referred to earlier. Because there are complications that can occur with

the surgery.

(Doc. 139: Tr. 257:22-25 - 258:1-14). Dr. Babich testified that one risk associated with a reducible

hernia is that it will grow in size and become incarcerated or strangulated. (Doc. 139: Tr. 295:10-

16). According to Wexford’s written policy, hernia patients become candidates for urgent surgical

referrals when a hernia reaches this point. (Doc. 139: Tr. 258:20-22; Ex. 5, § B). From this, a

reasonable jury could conclude that Wexford waits for an emergency before authorizing surgery.

5

Dr. DeMattei also observed this policy or practice in 6-10 other cases he reviewed.

(Doc. 139, pp. 137-38, 162). Wexford’s hernia policies came under attack in several other

lawsuits,4 including the class action filed just before Reed filed this suit, i.e., Bryant v. Wexford,

Case No. 18-cv-2192 (C.D. Ill.). Reed’s expert opined that Wexford’s policy was to delay surgical

consultation and elective surgery until an emergency developed or suit was filed. Id.

Reed offered personal testimony about Wexford’s policy. According to his testimony,

Reed’s hernia grew in size dramatically over the course of a year at BMRCC, until it descended

into his right testicle. Whenever he tried to reduce it by pushing it back into place, the hernia

would pop out and cause pain when he stood, coughed, or sneezed. He was not seen by a doctor

about his complaints until January 2018. When he requested surgery in January 2018, Dr. Larson

told him that they (Wexford) would not approve it:

Q. Ok. If it was in January [the Plaintiff spoke with Dr. Larson], did you have any

discussion with him about getting approval for surgery?

A. Yes, I talked to him about it, and he said I can have surgery when I go home, they

don’t do surgery for hernias.

***

Q. and what was it that Dr. Larson told you when you say they won’t do surgery---I

kind of got distracted. What was your comment again that he told you?

A. Larson said I can have surgery when I go home, they don’t do hernia surgeries.

Q. And when you say they—

A. Wexford.

Q. Who is he referring to?

A. Wexford.

Q. Okay. Did he tell you why?

A. No.

4 Reed identifies the following other lawsuits targeting Wexford’s policies, practices, and procedures for

hernia treatment: Barnes v. Sood, et al., No. 15-cv-4088 (C.D. Ill.); Mitchell v. Sood, et al., No. 16-cv-4012

(C.D. Ill.) and Mitchell v. Bautista, et al., No. 16-cv-4154 (C.D. Ill.) (consolidated); Noser v. Smith, et al.,

No. 18-cv-3050 (C.D. Ill.); and Bryant, et al. v. Baldwin, et al., No. 18-cv-2192 (C.D. Ill.) (class action).

6

(Doc. 138: Tr. 26:21-15 – 27:1-6). Reed testified that when he requested treatment with an outside

provider, Dr. Larson again admitted that “[w]e do not do hernia surgeries.” (Id.; Tr. 41:12-16).

Dr. Larson instead instructed him to reduce the hernia, wear a hernia belt for support, and use

ointment for the rash it caused. The problem, according to Reed, was that the hernia was not

reducible, the hernia belt was often unavailable, and the ointment was not provided or was

ineffective. By the time surgery was performed, Reed’s hernia was so large that he had to prop it

up with his hand while mobilizing.

Dr. Babich admitted on cross-examination that the written policy also omitted pain as a

factor in hernia treatment decisions. (Doc. 139: Tr. 310:17-25 – 311:1-6). Dr. DeMattei testified

that Reed was not treated for his hernia pain or given pain medication. (Doc. 139: Tr. 139:15-21).

And, Reed confirmed that Wexford ignored his regular complaints of hernia pain and disability

between March 2017 and September 21, 2018.5 (Doc. 138: Tr. 17:5-25 – 18:1-4; 82:1-2).

From the evidence presented at trial, the jury could reasonably conclude that Wexford had

a policy of refusing to authorize treatment or repair of abdominal hernias until the hernia became

strangulated or incarcerated or suit was filed.

2. Corporate Deliberate Indifference

As for this second element, Wexford argues that Reed failed to prove corporate fault. To

do so, Reed was required to show that Wexford’s policymakers were deliberately indifferent to a

known or obvious risk that a policy or custom would lead to constitutional violations. Brown, 520

5 Reed was housed at Centralia Correctional Center when his hernia symptoms began in March 2017, and

he transferred to Big Muddy River Correctional Center in August 2017. Id. Although Wexford was

responsible for medical staffing at both facilities, Reed’s primary complaints of hernia pain and disability

arose at BMRCC, after he transferred there.

7

U.S. at 407. In other words, Wexford’s policy or custom must demonstrate that the corporation

acted, or failed to act, with conscious disregard for known or obvious risks to inmate health or

safety, i.e., deliberate indifference. LaPorta v. City of Chi., 988 F.3d at 986-87 (7th Cir. 2021).

Wexford claims that Reed failed to satisfy this element because he offered no evidence of

specific instances or refusals to authorize surgical repair of abdominal hernias until they were

strangulated or incarcerated. Therefore, the jury had no basis to infer Wexford’s policymakers’

knowledge of the practice. (Doc. 149, p. 29) (citing Dean v. Wexford Health Sources, Inc.,

18 F.4th 214, 236 (7th Cir. 2021) (finding no fault without prior knowledge of similar violations);

Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985)).

Reed counters that evidence of Wexford’s conscious disregard of a known or obvious risk

abounded. (Doc. 157, pp. 22-23). Its policy, as written, was “hands off.” Id. According to the

explicit policy language, an inmate became a candidate for treatment only when an abdominal wall

hernia became strangulated or incarcerated to the point it presented an emergency. Id. at 23. Until

then, the policy did not contemplate pain as a factor in treatment of hernias. Id. Reed’s case was

marked by complaints of ongoing pain and disability, requests for treatment of hernia pain, and

requests for hernia surgery, as noted in his medical records and as exemplified in his testimony.

When viewed from this perspective, a reasonable jury could find that Wexford’s hernia policy

reflected deliberate indifference and fault on the part of the corporation.

3. Moving Force Causation

The final element of this claim is causation. For liability to arise under § 1983, Wexford’s

policy must be the direct cause of Reed’s federal rights deprivation and serve as the “moving force”

behind it. Dean, 18 F.4th at 235; Brown, 520 U.S. at 404. According to Wexford, Reed has not

shown “moving force” causation because he was approved for surgery before his abdominal wall

8

hernia became incarcerated or strangulated. (Doc. 149, pp. 29-30). Wexford’s authorization of

this elective surgery shows--conclusively, according to Wexford--that Reed was not denied or

delayed treatment pursuant to its policy. Wexford argues that Reed’s experience supports no

finding that the corporation’s policy caused his constitutional deprivation. Id.

The Court disagrees. The jury could have reached its verdict by finding that Wexford’s

policies caused the delay in Reed’s treatment. Reed complained of hernia symptoms beginning in

March 2017. He did not undergo surgery until September 21, 2018. For much of his time at

BMRCC, he complained of an enlarging hernia, pain, and disability. Reed requested and received

no meaningful treatment, even as his symptoms worsened.6 The jury could reasonably conclude

that Wexford’s hernia policy caused him to suffer unnecessarily prolonged pain, delayed his

necessary hernia surgery, and led to post-operative complications that included castration of his

right testicle. (Doc. 139, pp. 158-59).

Based on this evidence and more, a jury could conclude that Wexford’s policy was the

moving force behind Reed’s constitutional deprivation.

B. Motion for Judgment as a Matter of Law on Punitive Damages

Wexford also seeks judgment as a matter of law on punitive damages. (Docs. 148-49).

Reed requested $150,000 in punitive damages at trial, and the jury awarded him $500,000.

(Doc. 131). This is more than three times the amount Reed requested for punitive damages. Id.

The Fourteenth Amendment Due Process Clause “prohibits imposition of grossly excessive

or arbitrary punishments on a tortfeasor.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.

6 Reed even testified that guards searched him for carrying contraband in his pants, only to discover his

hernia instead of contraband.

9

408, 416 (2003). When reviewing an award of punitive damages, the United States Supreme Court

has established three criteria. First, a court must consider “the degree of reprehensibility of the

defendant’s misconduct.” Campbell, 538 U.S. at 418. Second, it must evaluate “the disparity

between the actual and potential harm suffered by the plaintiff and the punitive damages award.”

Id. Third, the court must consider “the difference between the punitive damages awarded by the

jury and the civil penalties authorized or imposed in comparable cases.” Id. Wexford points out

that when considering the ratio of punitive to compensatory damages, “few awards exceeding a

single-digit ratio ‘to a significant degree’ will satisfy due process.” Id. at 425. And, when

compensatory damages are substantial, a lesser ratio (perhaps equal to compensatory damages)

can reach the outermost limit. Id.

Wexford argues that the evidence supports no punitive damages award. Punitive damages

serve the purpose of punishing or deterring reprehensible conduct much like criminal penalties. In

the Eighth Amendment context, the standard for recovering punitive damages is conduct that is

“motivated by evil motive or intent, or [that] . . . involve[ed] reckless or callous indifference to the

federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). Wexford points out

that punitive damages will not have a deterrent effect here because utilization management

impacted or delayed Reed’s care and no longer occurs. (Doc. 139, p. 241).

Punitive damages were well within the discretion of the jury to award, and the jury made

the conscious decision to award them here. During closing arguments, Reed’s counsel made clear

that the jury was free to give Reed nothing at all. (Doc. 140, p. 354). Reed requested and received

$250,000 in compensatory damages. He requested $150,000 in punitive damages and was

awarded $500,000 instead. The facts of this case show a plaintiff whose delay in surgery during

his incarceration caused long-term and persistent pain, disfigurement, disability, embarrassment,

10

disciplinary action, and post-operative complications that included castration of his right testicle.

In light of Reed’s ongoing complaints of untreated, prolonged, and persistent pain, the Court finds

that the 2:1 ratio of punitive to compensatory damages is not so excessive as to deny due process.

For the foregoing reasons, the Court declines to enter judgment as a matter of law in

Wexford’s favor on liability or damages and will let the judgment stand.

II. Motion for a New Trial

Under Federal Rule of Civil Procedure 59(a)(1)(A) (“Rule 59”), a party may move for a

new trial within 28 days of the judgment. The Court is authorized to grant this relief “for any

reason for which a new trial has heretofore been granted in an action at law in federal court.” FED.

R. CIV. P. 59(a)(1)(A). This includes instances in which the verdict is against the manifest weight

of the evidence or the trial was unfair to the moving party. Venson v. Altamirano, 749 F.3d 641,

657 (7th Cir. 2014); Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir. 2004). A verdict is against

the manifest weight of the evidence only if, viewing the evidence in favor of the non-moving party,

no rational jury could have rendered the verdict. Hakim, 79 F.4th at 868; EEOC v. AutoZone, Inc.,

809 F.3d 916, 919 (7th Cir. 2016). Because the trial was fair to the parties and the verdict was

supported by sufficient evidence, Wexford’s motion is DENIED.

A. Did the Court’s Evidentiary Rulings Deny Wexford a Fair Trial?

A jury verdict will be reversed because of erroneous evidentiary rulings only upon a clear

showing that the error affected “a substantial right of the party.” Spray-Rite Serv. Corp. v.

Monsanto Co., 684 F.2d 1226, 1244 (7th Cir. 1982) (quoting FED. R. EVID. 103). When evaluating

evidentiary rulings, great deference is given to a district court’s management of discretionary

pretrial and trial matters. Ramirez v. Sween, App. No. 21-2368, 2022 WL 1439397, at *1 (7th Cir.

2022) (citing United States v. Causey, 748 F.3d 310, 316 (7th Cir. 2014)). Even where the district

11

court made an error, that error provides no basis for reversal if it did not affect the defendant’s

substantial rights. Id. (citing FED. R. CIV. P. 61). The jury verdict will be affirmed if the errors

were harmless. Id. Upon review of the record, this Court finds that any errors were harmless, and

the jury’s verdict is otherwise supported by sufficient evidence.

1. Did the Court Err in Allowing Expert Testimony about Wexford’s

Customs, Practices, and Habits in Providing Care to Inmates with

Hernias?

Wexford complains that, over its pretrial motions and trial objections, Reed’s expert was

allowed to testify that Wexford had a policy of not sending patients with hernias for surgical

consultation until an emergency arose or a lawsuit was filed. According to Wexford, neither the

expert’s opinion, nor the bases for it, were disclosed during discovery; the testimony was not

helpful to the jury because it constituted a legal conclusion on an element of Reed’s claim and

amounted to improper speculation on Wexford’s mental state; and the opinion was not based on

reliable methodology.

As for the timing of these disclosures, the Court granted both parties additional time to

name experts and produce reports. Neither party fully disclosed this information before the

original discovery deadline. This was due, in part, to the fact that the original scheduling order

included no deadlines for expert disclosures. (See Docs. 28, 65-68). The COVID-19 pandemic

also caused delays. (Doc. 66) (citing Admin. Orders 261 and 266). In addition, both parties waited

until the close of discovery to address expert disclosures for the first time. (Docs. 67, 68).

On the original discovery cutoff date of November 16, 2020, Reed requested an extension

of time for expert disclosures, after Wexford disclosed the names of four non-retained experts, two

known treaters, and two defendants as potential witnesses just hours before the close of discovery.

(Docs. 67, 68 at ¶ 2). Wexford did not produce any reports with its disclosure. Id. The Court

12

granted Reed’s request and set a deadline for Reed to depose Wexford’s expert(s) (March 16,

2021), a deadline for Reed to disclose rebuttal expert(s) (May 17, 2021), a deadline for Wexford

to depose Reed’s expert(s) (June 16, 2021), and an extended deadline for both parties to complete

discovery (June 16, 2021) and file dispositive motions (July 16, 2021). (Doc. 67).

On March 16, 2021, Reed’s counsel deposed Dr. Babich, who Wexford described as a non-

retained corporate representative and a non-treating physician. (Doc. 68 at ¶ 4). Wexford

produced Dr. Babich’s written report at the deposition. Reed then disclosed Dr. DeMattei as a

retained expert and rebuttal witness and produced an expert’s report May 17, 2021. (Doc. 71-1).

The following day, May 18, 2021, Wexford requested an extension of the deadline for

Wexford to disclose its retained expert and an extension of time for discovery, citing Reed’s

disclosure of a retained expert the previous day. (Doc. 68 at ¶ 5) (citing Ex. B, Plaintiff’s Expert

Disclosures) (stating “On May 17, 2021, Plaintiff disclosed a retained expert witness. This witness,

however, is not a rebuttal witness with regard to Dr. Babich’s testimony and in fact has very little

to say about Dr. Babich’s testimony”) (Doc. 68-2, Report of Dr. Clay DeMattei, M.D.). The Court

granted additional time for Wexford to disclose its retained expert/rebuttal witness (July 16, 2021)

and for both parties to complete all discovery (August 16, 2021) and file dispositive motions on

the merits (September 16, 2021). (Doc. 68).

As for the bases of the expert opinions, Dr. DeMattei identified the following sources of

information on May 17, 2021: Reed’s medical records, Reed’s deposition, Wexford’s expert

deposition, other cases where he testified (listed below), and his 25-plus years of experience.

Wexford deposed Dr. DeMattei on July 16, 2021. During this deposition, the defendant had an

opportunity to explore all of the expert’s opinions and the underlying bases for them. Wexford

also had an opportunity to question Dr. DeMattei on other related cases where he testified as a

13

witness, including those he disclosed on May 17, 2021: Barnes v. Wexford, CDIL 15-4088;

Mitchell v. Wexford, CDIL, 16-cv-4012 and Consolidated Case(s) CDIL 18-cv-4154; and Noser v.

Wexford, CDIL 18-3050. (Doc. 71-1). Discovery closed on August 16, 2021.

On September 13, 2021, Wexford filed a motion for summary judgment (Doc. 69) and a

motion to bar Reed’s expert testimony (Doc. 71). Reed filed a response in opposition to summary

judgment, along with a 9-page Declaration of Dr. DeMattei from the Bryant, et al. v. Baldwin, et

al., Case No. 18-cv-2192 (C.D. Ill.). (Docs. 76, 77, 77-1). Wexford then moved to strike all

testimony about other litigation. (Doc. 81). The Court denied Wexford’s motion for summary

judgment and motion to bar, subject to its reserved ruling on certain objections. (Docs. 88). The

motion to strike was dismissed without prejudice. (Doc. 87).

Wexford did not request permission to re-depose Reed’s expert regarding any of his

opinions at any time after his initial deposition, and no supplemental expert disclosures were

produced by either party after the close of discovery. Wexford instead filed numerous motions in

limine aimed at excluding Dr. DeMattei’s testimony. (Doc. 103). Reed likewise file motions in

limine to exclude the testimony of Wexford’s expert, Dr. Babich. (Doc. 106). The parties’ pretrial

objections stemmed, in part, from the late disclosure of experts and, in part, from the failure to

timely produce complete expert reports. The Court allowed both experts to testify. (Doc. 117).

Wexford now challenges as conclusory, unhelpful, and speculative Dr. DeMattei’s

testimony that Wexford had a policy in which “patients with hernias are not sent for elective

surgery, and not even offered consultation with someone who actually can repair the hernia to

discuss whether or not it needs to be done [and] for the most part, it continues until there is an

emergency or someone files a lawsuit.” (Doc. 149, p. 5) (quoting Doc. 139, Tr. 137). Wexford

asserts that Dr. DeMattei’s trial testimony deviated from the opinions disclosed in his expert report

14

produced during discovery on May 17, 2021 pursuant to Rule 26(a)(2)(B). Wexford claims that it

was not on notice that Dr. DeMattei would offer the opinion he gave at trial based on his review

of other cases, and failure to disclose this opinion was unjustified and harmful. (Doc. 149, p. 6).

The Court disagrees. Wexford received notice of the expert’s opinions when Reed

produced his expert’s report in May 2021. Dr. DeMattei listed other related cases where he

testified or offered opinions. Wexford had an opportunity to question Dr. DeMattei about all of

this during his deposition. The deposition took place after Dr. DeMattei disclosed his opinions.

At trial, Reed’s expert did not get into the details of each of the related cases, consistent with

Reed’s attorney’s agreement to avoid lines of questions about other matters that amounted to “trials

within a trial.” Reed’s attorney focused the inquiry on the general practice of Wexford through

their habit, practice, and custom of not treating hernia cases until they’re strangulated or

incarcerated. (Doc. 117, pp. 5-6). Dr. DeMattei generally testified about his experience with other

Wexford hernia cases. Wexford’s related pretrial motion to bar expert testimony, motion in limine,

and/or trial objections were denied. (See Doc. 88). In addition, Wexford could, and did, cross-

examine Dr. DeMattei on his experience, opinions, and bases for his opinions. (Doc. 139, p. 136).

Under the circumstances, the Court finds no error in allowing Dr. DeMattei’s opinion testimony.

2. Did Reed’s Counsel Improperly Inflame the Jury’s Passion in Closing

Argument by Appealing to its Sympathy?

Wexford separately argues that Reed’s counsel appealed to the sympathies of the jury

during closing arguments in a manner that violated the “Golden Rule.” (Doc. 149, pp. 19-20). A

“Golden Rule” appeal occurs when the jury is asked to put itself in the plaintiff’s position. Spray-

Rite Serv. Corp., 684 F.2d at 1246. This is “universally recognized as improper because it

encourages the jury to depart from neutrality and decide the case on the basis of personal interest

15

and bias rather than evidence.” Id. A district court’s ruling on a related objection is given

deference because the district court is in the best position to determine whether the conduct or

statements caused prejudice. Christmas v. City of Chi., 682 F.3d 632, 642-43 (7th Cir. 2012).

During closing arguments, Reed’s counsel began reading an excerpt from a letter his client

wrote, prompting Wexford’s “Golden Rule” objection:

Mr. Pliura: My client asked me---because he can’t talk now, only the attorneys are---

but he asked me to basically become him. “Yes, I’m locked up, but I’m not

the one on trial here. I’m serving my time but I have rights. I want you to

ask yourself a question: what if it was your father or your brother or your

husband” ---

Mr. Kinkade: Objection, Your Honor, personalization

Mr. Pliura: ---“or son”---

The Court: Pardon

Ms. Kinkade: Improper personalization.

The Court: Overruled.

Mr. Pliura: “No one has said sorry to me. No one has apologized for what happened to

me. I want to prevent this from happening again. You have the power to

help the next person. Before I go again, what if this was a family member?

All I continued to do was to ask for help, ask for pain medicines, ask for

surgery, and I never got it until I filed this lawsuit.

(Doc. 140: Tr. 354:18-25 – 355:1-7).

These remarks might have appealed to the sympathies of the jury. The Seventh Circuit has

explained, however, that “[a]s a general matter, improper comments during closing argument

rarely rise to the level of reversible error, and considerable discretion is entrusted to the district

court to supervise the arguments of counsel.” United States v. Thomas, 933 F.3d 685 (7th Cir.

2019) (quoting United States v. Wilson, 985 F.2d 348, 353 (7th Cir. 1993) (internal citation and

quotation marks omitted); United States v. Berg, 640 F.3d 239, 253 (7th Cir. 2011)). Here, the

Court overruled Wexford’s objection and instructed the jury about the law it should apply when

deciding liability and damages. In the process, the Court made clear that the jury must perform its

duties fairly and impartially and not allow prejudice or bias to influence its decision. The Court

16

explained that the jury must decide the facts from the evidence presented, apply the law to the

facts, and perform these two duties fairly and impartially:

You have two duties as a jury. Your first duty is to decide the facts from the evidence in

this case. This is your job and yours alone. Your second duty is to apply the law I give

you to the facts. You must follow these instructions, even if you disagree with them. Each

of the instructions is important, and you must follow all of them. Perform these duties

fairly and impartially.

Tr. 340:23-25 – 341:1-5. The jury was explicitly instructed that the lawyers’ comments, opening

arguments, and closing arguments are not evidence: “[T]he lawyers’ opening statements and

closing arguments to you are not evidence. Their purpose is to discuss the issues and the

evidence.” Tr. 342:2-4. According to the Seventh Circuit, a jury instruction which explains that

arguments of counsel are not evidence “mitigate[s] the harm potentially caused by improper

statements made by counsel during closing argument.” Valbert v. Pass, 866 F.2d 237, 241 (7th

Cir. 1989). Even where a judge overrules a “Golden Rule” objection and does not give a limiting

instruction, however, the Seventh Circuit has noted that “any prejudice can often be cured simply

by a general instruction that properly informs the jury on the law of damages.” Joan W. v. City of

Chi., 771 F.2d 1020, 1023 (7th Cir. 1985).

In this case, the Court provided instructions that focused the jury on its proper function and

informed the jury of the correct legal standards for determining liability and damages. Shroyer v.

Kaufman, 426 F.2d 1032 (7th Cir. 1970). Jurors was instructed to “follow these instructions, even

if you disagree with them.” Tr. 340:2-3. Jurors are presumed to follow the Court’s instructions:

The jury system is premised on the idea that rationally and careful regard for the court’s

instructions will confine and exclude jurors’ raw emotions. Jury routinely serve as

impartial factfinders in cases that involve sensitive, even life-and-death matters. In those

cases, as in all cases, juries are presumed to follow the court’s instructions. See Greer v.

Miller, 483 U.S. 756, 766, n. 8 (1987).

17

CSX Transp., Inc. v. Hensley, 556 U.S. 838, 841 (2009). See also Spray-Rite Serv. Corp., 684

F.2d at 1246 (citation omitted) (request that jury put itself in the position of plaintiff when deciding

damages award was clearly improper, but also harmless, where it was not so prejudicial that it

deprived the defendant of a fair trial and jury was also clearly instructed on the law it should apply

when deciding liability and damages).

Improper comments made during closing arguments rarely constitute reversible error, and

the remarks made during Reed’s closing argument do not rise to this level. Christmas, 682 F.3d

at 642. The problematic remarks represented an insignificant portion of the case and the closing

argument.7 See Ewing v. 1645 W. Farragutt LLC, 90 F.4 876, 890-91 (7th Cir. 2024) (no new trial

warranted and no prejudice shown from problematic statement made during closing arguments

that triggered the defendant’s timely objection based on a “golden rule” violation). At most, the

remarks resulted in harmless error, and Wexford has shown no prejudice that was so unfair as to

deprive the defendant of a fair trial.

3. Did the Court Err in Admitting Reed’s Hearsay Affidavit and Complaint?

Wexford also objects to the introduction of Page 5 of the Complaint8 at trial. (Doc. 138,

pp. 112-114). Page 5 is the statement of Reed’s claim. Wexford argues that this page consists

7 Wexford points to one other question that Reed’s counsel asked Wexford’s expert and then highlighted

during closing: “If one of the jurors or anybody in this courtroom had development of a hernia just like

what Mr. Reed did, and you were providing care to the patient, and they presented with the exact same

series of complaints, same timeline, do you believe it would be appropriate to follow the same exact course

that happened with Mr. Reed?” (Doc. 139, pp. 309, 390). Wexford vaguely references this question and

does not discuss it in any detail. Any argument about this rebuttal question is undeveloped. See Puffer v.

Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) (arguments that are “undeveloped, conclusory, or

unsupported by law” are waived); see also Spath v. Hayes Wheels Int’l-Ind., Inc., 211 F.3d 392, 397 (7th

Cir. 2000); Perry v. Sullivan, 207 F.3d 379, 382 (7th Cir. 2000).

8 Wexford refers to this as Exhibit 11, and Reed refers to it as Exhibit 10. To avoid confusion, the Court

will refer to it simply as “Page 5.”

18

entirely of hearsay without exception. Id. More specifically, Wexford challenges the Court’s

decision to allow Reed to recite an allegation that a nurse instructed him to push his hernia back

in. (Doc. 149, p. 21) (citing FED. R. EVID. 801(c)). Wexford challenges this ruling as erroneous,

by arguing that the allegation was admitted into evidence for the truth of the matter asserted

without adequate opportunity to cross-examine Reed. (Doc. 138, pp. 112-14; Doc. 149, p. 22).

Reed points out that Rule 801(d)(2)(D) of the Federal Rules of Evidence “defines as non-

hearsay certain hearsay-like evidence.” Aliotta v. National Railroad Passenger Corp., 315 F.3d

756, 759 (7th Cir. 2003). This rule excludes the following from the definition of hearsay:

Rule 801. Exclusions from Hearsay

(d) Statements That Are Not Hearsay. A statement that meets the following

conditions is not hearsay:

(2) An Opposing Party’s Statement. The statement is offered against an

opposing party and:

(D) was made by the party’s agent or employee on a matter within the

scope of that relationship and while it existed

See FED. R. EVID. 801(d)(2)(D). Reed points out that he briefly discussed the statement during his

direct examination, after the Court took judicial notice of Page 5 of the Complaint. (Doc. 138, pp.

112-14). The brief discussion echoed testimony that both parties introduced through other

witnesses without objection at trial. Id. at pp. 28, 62, 81, 106, and 308.

Review of the record confirms this. Wexford’s expert, Dr. Babich, testified that he

reviewed the Complaint when forming his opinion about Reed’s case. (Doc. 138, p. 308). Reed’s

counsel cross-examined Dr. Babich on the information he relied on when forming his opinions.

(Doc. 157, p. 13) (citing FED. R. EVID. 702, 703, and 705). Page 5 was part of this information

19

and was addressed during his testimony. The Court did not commit clear error in allowing Reed’s

brief testimony.

4. Did the Court Err in Allowing Reed to Testify to Statements of Dr. Larson?

Relatedly, Wexford challenges Reed’s introduction of testimony that Dr. Larson told Reed,

“I can have surgery when I go home, they don’t do surgery for hernias.” (Doc. 138, pp. 25-26).

Dr. Larson is the Wexford physician who was responsible for Reed’s medical care during the

relevant time period. Wexford objects to this testimony as a violation of Rule 803(4) of the Federal

Rules of Evidence, which excepts from hearsay comments made to a medical professional for

diagnosis and treatment and not statements made by medical professionals. (Doc. 149, p. 22)

(citing White v. Illinois, 502 U.S. 346, 355-56 (1992)). Wexford characterizes Reed’s testimony

as a self-serving statement rather than a corporate admission. (Doc. 138, pp. 48-50). According

to Wexford, the corporation never denied a referral for Reed and also approved the elective

surgery. (Doc. 149 p. 23).

Reed counters that this statement is a hearsay exception under Rule 801(d)(2)(D) because

it was made by Dr. Larson, Wexford’s employee, while treating Reed. (Doc. 157, p. 15) (citing

FED. R. EVID. 801(d)(2)(D)). Dr. Babich testified about Dr. Larson’s employment with Wexford

and established that he was employed by the corporation during the relevant time period. (Doc.

139, p. 286). Dr. Larson also admitted that he was an employee when he answered the Complaint.

(Doc. 23, p. 1). The statement was excluded from the rule against hearsay because it was made

during the course of Dr. Larson’s employment, while providing care to Reed, about a matter within

the scope of his employment relationship. See FED. R. EVID. 801(d)(2)(D). See also U.S. v. Paxson,

861 F.2d 730, 734-35 (7th Cir. 1988) (allowing admission made to a witness by non-defendant

vice president as an admission of the company president under Rule 801(d)(2)(D)).

20

Upon review of this matter, the Court finds that its decision to allow testimony about this

statement was well within this Court’s broad discretion when deciding matters about trial.

Standing alone or in combination with any other rulings, the Court’s decision provides no grounds

for upending the verdict. U.S. v. Jung, 473 F.3d 837, 841 (7th Cir. 2007).

5. Did the Court Err in Allowing Reed to Testify that Wexford Approved

Reed’s Surgical Consultation Because Reed Filed Suit?

Wexford challenges Reed’s introduction of testimony, argument, or inference that the

private medical corporation approved his surgical consultation because he filed this lawsuit. (Doc.

149, p. 23). At trial, there was testimony that: (1) Reed was referred for surgical consultation on

April 19, 2018; (2) Reed filed suit on May 31, 2018; (3) Reed was approved for surgical

consultation in mid- to late- June 2018; (4) Reed was sent for surgical evaluation on August 4,

2018; and (5) Reed underwent surgery on September 21, 2018. (Doc. 139, pp. 147-48). In

addition, the Court granted Wexford’s request to take judicial notice and instruct the jury on the

following timeline:

One. Mr. Reed’s Complaint was filed on May 31, 2018;

Two. Dr. Dennis Larson was mailed a copy of the Complaint on June 27, 2018;

Three. The Court received Dr. Larson’s signed Waiver of Formal Service of the Complaint

on July 6, 2018; and,

Four. Wexford Health Sources was mailed a copy of the plaintiff’s Complaint on

August 5, 2019; and

Five. The Court received Wexford’s signed Waiver of Formal Service of the Complaint

on August 20, 2019.

(Doc. 139, p. 316). Dr. Babich also testified that Wexford lacked knowledge of the suit at the time

the consultation referral was approved. (Doc. 139, p. 277). Wexford argues that this timeline and

testimony should have led the jury to conclude that Wexford was unaware of the lawsuit when it

approved the consultation.

21

But, the jury was free to draw its own conclusions from the above-referenced timeline,

Reed’s testimony, and each experts’ testimony. A reasonable jury could have questioned the

credibility of Wexford’s expert witness when testifying about Wexford’s knowledge of this lawsuit

and believed Reed’s testimony that he was not authorized for a referral or treatment of his hernia

pain until after he filed this lawsuit on May 31, 2018. The Court did not err in taking judicial

notice of the timeline or allowing the parties to present testimony and argument about it.

B. Was the Verdict Against the Manifest Weight of the Evidence?

Finally, Wexford maintains that the verdict was against the manifest weight of the

evidence. As previously explained, a verdict is against the manifest weight of the evidence only

if no rational jury could have rendered the verdict when viewing the evidence in favor of the non-

moving party. Hakim, 79 F.4th at 868; AutoZone, Inc., 809 F.3d at 919. Wexford does not support

its assertion with any independent arguments or citations to facts, and the Court concludes that

Wexford received a fair trial. This Court presided over the trial, heard the evidence presented, and

reviewed the transcript in connection with the pending motion. When viewing the evidence in

Reed’s favor, as required at this stage, the Court finds that the jury’s verdict had a rational basis

and was not against the manifest weight of the evidence.

III. Motion for Remittitur

Wexford seeks remittitur of the punitive damages award of $500,000. (Doc. 149).

Wexford argues that this award should be remitted as unconstitutionally excessive. The Fourteenth

Amendment Due Process Clause prohibits the imposition of grossly excessive or arbitrary

punishments on a tortfeasor. Campbell, 538 U.S. at 416. As explained above, Reed must show

that Wexford acted with “evil motive or intent” or with “reckless or callous indifference” to his

constitutional rights in order to recover punitive damages in the first place. Smith v. Wade, 461

22

U.S. 30 (1983). However, the jury returned a verdict finding Wexford guilty of corporate

deliberate indifference, and this verdict is consistent with a finding of callous disregard in

connection with damages. And, the 2:1 ratio of punitive damages to compensatory damages is

well within the bounds of multipliers of compensatory damages that the Supreme Court has found

satisfy due process. Campbell, 538 U.S. at 425. Defendant’s motion for remittitur is DENIED.

CONCLUSION

For the foregoing reasons, the Court DENIES Wexford’s motion for judgment as a matter

of law or, in the alternative, a new trial (Doc. 148). The Court also DENIES Wexford’s motion

for remittitur (Doc. 148). The Court will address Reed’s motion for attorney fees and costs (Doc.

142) and Reed’s motion for prejudgment and post-judgment interest (Doc. 144) in a separate order.

IT IS SO ORDERED.

DATED: April 2, 2024 s/ J. Phil Gilbert

J. PHIL GILBERT

United States District Judge

23