Thomas v. Cook County Sheriff's Department

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

A MENDED M AY 3, 2010 Œ

Œ

On consideration of Defendant-Appellant Cook County’s

petition for rehearing and rehearing en banc, the panel has

amended its opinion. A judge called for a vote on the petition

for rehearing en banc, but a majority of active judges voted to

deny rehearing. Circuit Judges Posner, Sykes, and Tinder

voted to grant en banc rehearing. Judge Sykes has written

an opinion, which Judges Posner and Tinder have joined,

dissenting from the denial of the petition.

(continued...)

2 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

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,

alleging that the defendants violated her son’s constitu-

tional rights by failing to respond to his serious medical

needs. Thomas also alleged various state law claims. 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 defendants’ motion

for judgment as a matter of law and the defendants now

appeal. Specifically, they challenge the sufficiency of the

Œ

(...continued)

On consideration of the individual Defendants-Appellants’

petition for rehearing and rehearing en banc, all members of

the original panel have voted to deny the petition for rehearing.

No judge in regular active service requested a vote on

the petition for rehearing en banc. Judge Rovner did not

take part in consideration of either petition.

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 3

evidence supporting each of the jury’s liability deter-

minations, 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 connec-

tion between the Sheriff’s policies and practices and

Smith’s death is tenuous in light of the jury’s finding

that individual correctional officers deliberately disre-

garded Smith’s medical needs. Nonetheless, the Sheriff’s

absence as a liable party does not affect the jury’s com-

pensatory 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 addi-

tional source 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

4 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

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

discretion. And even if it was, corroborating live testi-

mony from other witnesses, along with the defendants’

opportunity 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 judgment in the Sheriff’s favor.

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

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 5

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 contact

sheets. Further, a number of correctional officers re-

ported that Cook County Jail was severely understaffed.

The officers, who were employed by the Cook County

Sheriff, kept daily logs in which they often made ref-

erences 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 understaffing and cross-watching

in Cook County Jail, officers could not perform physical

security checks with the frequency required by Sheriff

6 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

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

cellmate, 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.

Other detainees, along with Matias, testified to the

rapid deterioration in Smith’s condition through the

week. For instance, Smith’s other cellmate, Corey

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 cellmates. 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.

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 7

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 Smith from receiving immedi-

ate 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

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. Fortunately,

a few inmates intervened, carried Smith to the gurney,

and the paramedics wheeled him out. Smith died later

that morning. The Cook County medical examiner deter-

mined that he suffered from pneumococcal meningitis,

a particularly deadly form of the disease.

8 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

Based on these events, Marlita Thomas, Smith’s mother,

sued a number of individual correctional employees, 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 award of

$4,450,000, comprised of $4,150,000 in federal § 1983

damages and $300,000 in state claim damages. On the

§ 1983 verdict forms, the jury apportioned the $4,150,000

award into three parts: $3,000,000 against Cook County,

$1,000,000 against the Sheriff, and $150,000 against the

individual defendants collectively. On the verdict form

for the state wrongful death claim, the jury awarded

$150,000 against the individual defendants collectively.

On the verdict form for the state survival claim, it also

awarded $150,000 against the same individual defendants

collectively. The district court ordered a remittitur of

the total award from $4,450,000 to $4,150,000,1 resulting

1

The $300,000 remittitur had two components. Half of the

amount remitted was the $150,000 state survival claim award, on

the basis that it was compensating the same injury as the

damages awarded for the federal claim and was therefore

duplicative. (The district court did not remit the $150,000

wrongful death award because the court determined that the

wrongful death damages were different from the damages for

the survival claim. The survival claim damages addressed the

same injury as the federal damages and were thus duplicative;

(continued...)

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 9

in a final award made up of $4,000,000 in federal § 1983

damages, and $150,000 in state wrongful death damages.

The defendants moved for judgment as a matter of law

or for a new trial, which the district court denied. The

defendants appeal these denials and also challenge the

damage award.

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

1

(...continued)

the wrongful death damages addressed a different injury,

suffered by a different party, and thus were not duplicative.

See Patch v. Glover, 618 N.E.2d 583, 591 (Ill. App. Ct. 1993) (“A

wrongful death action is brought to compensate the surviving

spouse and next of kin of a decedent for the pecuniary loss

that they sustained . . . . A survival action is brought . . . for the

benefit of the decedent’s estate . . . . [and] permits the represen-

tative of the estate to prosecute a claim for the personal injury

that the defendant could have brought had he lived.”) (internal

citations omitted); see also Will v. Northwestern University,

881 N.E.2d 481, 495 (Ill. App. Ct. 2007) (same); Johnson v.

Provena St. Therese Medical Center, 778 N.E.2d 298, 308 (Ill. App.

Ct. 2002) (Wrongful Death Act compensates parents for their

loss)). The other half of the remittitur was $150,000 of the § 1983

damages, which we discuss further in Section E, infra. Neither

portion of the $300,000 remittitur is an issue on appeal.

10 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

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

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 demon-

strate 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).

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 11

A prison official violates a prisoner’s Eighth Amendment

rights, and, in this case, due process rights, when he dis-

plays deliberate indifference to a serious medical need.2

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 attention.”

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

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.

2

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.

12 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

A brief overview of the record reveals testimony de-

scribing 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 subjec-

tive 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

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 substantial risk

from the very fact that the risk was obvious.”), and their

failure to act could have led a jury to find that they

ignored this risk.

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 13

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 subjective

knowledge, is legally insufficient. They only argue that

it is “conflicting and specious.” This is an argument

better suited for cross-examination and closing state-

ments than appellate review. When faced with con-

flicting, 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 plain-

tiff’s witnesses here provided conflicting testimony, 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,

and they did nothing.3 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

3

For example, Smith’s cellmate, Corey 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.

14 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

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 understaffing

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, contends 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 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

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 15

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 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 as to whether the evidence

demonstrates that the County had a widespread prac-

tice that the alleged constitutional harm. See Woodward v.

Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 928 (7th Cir. 2004).

16 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

The plaintiff presented evidence of County customs

and practices that caused Smith’s death. There was evi-

dence of a widespread practice of failing to review in-

mates’ timely filed medical requests, such as testimony

from the supervisor for Cermak’s CMTs, Woodroe

Winfrey, 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 suggested 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 super-

visors when CMTs failed to make their daily rounds.

Jean Kiriazes, Cermak’s director of continuous 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 em-

ployees testified to, and other evidence corroborated, the

practice of not retrieving medical requests 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 practice. 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 apparent, and the former director

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 17

of Cermak seemed to acknowledge as much in his testi-

mony.

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. Corey

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

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 mor-

tality 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

18 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

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

municipality could not be held liable for constitutional

violations 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

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 in-

structed 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 culpable. Without any

affirmative defenses, a verdict in favor of the officer

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 19

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). So, to

determine whether the County’s liability is dependent

on its officers, we look to the nature of the constitutional

violation, the theory of municipal liability, and the de-

fenses 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 indifferent 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

20 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

adequately because of the well-documented break-

downs 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.4

4

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

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 supported 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”).

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 21

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

understaffing correctional officers, and the Sheriff

believes the evidence is legally insufficient to sustain this

verdict. The Sheriff argues that understaffing cannot be

a basis for liability under § 1983, that there is no causal

link between understaffing and Smith’s death, and that

the Sheriff has limited control of the budget so any

fault lies with Cook County.

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 uncontroversial

application of basic tort law. But in cases such as this,

where individual defendants are commingled with gov-

ernmental bodies, and the plaintiff alleges a litany of

policy failures that interact to create some constitutional

harm, it is sometimes easier to obscure the causal links

between different actors.

22 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

The individual officers in this case (the Sheriff’s dep-

uties) were found liable because they displayed delib-

erate indifference to Smith’s medical needs, yet the

Sheriff was also found liable for its policy of severely

understaffing the prison. The only way to reconcile these

two verdicts is to find that both the officers’ deliberate

indifference and the policy of understaffing 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 investigate

and ensure that Smith received medical attention.

The theory that understaffing 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

constitutional 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. Brown, 520 U.S. at 405 (“Where a

plaintiff claims that the municipality has not directly

inflicted an injury, but nonetheless has caused an

employee 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 dis-

tinguish between the acts that caused the injury and those

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 23

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

understaffing was a contributing factor. Because the

jury held the individual officers liable, it must have

found that the officers deliberately ignored Smith’s con-

dition. But the evidence does not demonstrate that their

actions had anything to do with understaffing. 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 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 understaffing 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 understaffed, 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

24 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

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 causa-

tion requirement is whether the Sheriff’s policy of

understaffing was the reason the CMTs could not access

the forms on those days that Smith and the other

inmates claimed to have submitted their requests. 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 received 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 requirement 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

understaffing was the moving force behind the

resulting injury.

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 25

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 chal-

lenged on appeal are: Carlos Matias’s deposition testi-

mony, which was read to the jury; a doctor’s statements

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 testi-

mony for an abuse of discretion, and we will 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 requirement.

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

26 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

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 defendants’ objec-

tions. The defendants argue that the plaintiff did not

exercise reasonable diligence in procuring Matias’s pres-

ence 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.

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 subpoenaed twice. The problem was that Matias

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 27

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 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 circum-

stances, 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 prej-

udicial statements in Matias’s testimony. For example,

28 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

Matias testified that, on April 24, 2004, Smith’s first day

in custody, 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-

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 investi-

gating Smith’s death, Dr. Analgate, the physician on duty

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 29

when Smith was transported to the emergency room, told

him (Raher) that he had heard that Smith had been com-

plaining of illness. The problem with this testimony 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, it does

not warrant a new trial. A number of inmates testified

that they submitted medical request forms and com-

plained 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 testimony. 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 testi-

mony that other inmates had put the officer defendants

on notice of Smith’s condition, and so any error in ad-

mitting Yorke’s testimony was harmless.

We find the defendants’ remaining evidentiary chal-

lenges meritless. These include: Matias’s deposition state-

30 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

ment 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 testimony

about Smith’s past jobs; the admission of Smith’s resume;

and the district court’s decision to exclude evidence 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 party’s own state-

ment, in either an individual or a representative

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 relation-

ship . . . .”. The plaintiff used the statement, made by a

Cook County employee, to show that the County em-

ployees 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 de-

scribed in detail Smith’s condition in the days leading

up to his death. As the district court noted, how the plain-

tiff 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

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 31

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 admis-

sion of Smith’s resume and testimony about his past

employment and education do not warrant a reversal.

Rule 901(a) of the Federal Rules of Evidence states that

the authentication requirement “is satisfied by evidence

sufficient to support a finding that the matter in ques-

tion 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 included jobs at McDonald’s, Dominick’s, Clark gas

station, T.E.A.M.S., and Commander Packaging. Any

information in his resume was also presented through

their testimony, which the defendants had an oppor-

tunity 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

The jury returned a total damage award of $4,450,000,

which the district court remitted by $300,000 to $4,150,000.

32 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

As we have explained, the district court eliminated the

$150,000 award for the state survival claim because it

duplicated the § 1983 award for Smith’s injury. The

district court also reduced the total verdict by the

$150,000 that the jury awarded to the plaintiff against the

individual defendants on the § 1983 verdict forms. Neither

party appeals those remittiturs. Instead, the defendants

argue that the post-remittitur $4,150,000 award is incon-

sistent and excessive. But this post-remittitur amount

logically represents $4,000,000 in damages to Thomas

for Smith’s injury (no matter under what theory) and

$150,000 to Thomas for her own injury as Smith’s mother

in connection with her state wrongful death claim. The

defendants take issue only with the $4,000,000 portion

of the remaining overall award. 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,

496 (7th Cir. 2008).

Although the district court instructed the jury against

duplicative compensatory damage awards, the verdict

form for the plaintiff’s federal § 1983 claim provided

spaces for the jury to enter damages for both denial of

medical care (against the individual defendants) and

policy and practice (against the County and the Sheriff),

both of which resulted in the same injury. 5 The jury

5

We note that while the defendants objected to the verdict

form that was ultimately used, the version that they proposed

was no better. The defendants’ proposed jury verdict form

also provided spaces for the jury to enter damages for both

(continued...)

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 33

entered $150,000 in damages against the officers collec-

tively, $3,000,000 in damages against Cook County, and

$1,000,000 against the Sheriff. As a result, it is unclear

from the face of the verdict form whether the jury meant

to allocate duplicate awards for the same injury, or

whether it merely calculated total damages and allocated

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 instruc-

tion that the jury not award compensatory 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 single

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 assess-

ment of compensatory damages for a given claim, citing

Bosco v. Serhant, 836 F.2d 271, 281 (7th Cir. 1987). Bosco

suggests that in cases where a jury improperly apportions

compensatory damages for a single injury among jointly

liable defendants, one permissible approach to remedy

5

(...continued)

the denial of medical care and policy and practice theories, and

even provided separate spaces for the jury to enter a damage

award as to each individual defendant.

34 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

the problem could be to place a ceiling on recovery at the

highest assessment of damages that was assessed against

any one defendant. Id. Here, however, while the highest

damage award allocated to a single defendant was

$3,000,000 assessed against Cook County, the district

court established a “ceiling” of $4,000,000 by including

the $1,000,000 award assessed against the Sheriff under

the same Monell theory.

It appears that the district court combined two ap-

proaches in interpreting the compensatory damage

awards. It placed a ceiling on the highest assessment of

damages for a single injury (not a single defendant), by

adding the awards allocated to different defendants (the

Sheriff and Cook County). In doing so, the district court

actually came up with a total that was $150,000 less than

it might have been, when it established a ceiling of

$4,000,000 for all of Smith’s injuries. But this decision

did not prejudice the defendants. As the district court

recognized, we have previously suggested that a ceiling

at the highest assessment of compensatory damages may

be appropriate when a jury improperly allocates the

award among defendants who are jointly and severally

liable. Bosco, 836 F.2d at 281; Watts v. Laurent, 774 F.2d 168,

180 (7th Cir. 1985). But our cases have also sanctioned the

approach of cumulating apportioned damages instead,

when doing so better reflects the jury’s intent. See, e.g.,

Havoco of America, Ltd. v. Sumitomo Corp. of America, 971

F.2d 1332, 1346 (7th Cir. 1992). Which of these approaches

should be taken in a specific case will depend on a

district court’s interpretation of a jury’s actions in that

case, in light of the instructions the jury was given and

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 35

the verdict form that was used. 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. Here, assuming 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 com-

pensate the plaintiff. Therefore, cumulating the damage

awards—which the district court ended up effectively

doing—would be more consistent with the presumption

we apply to jury verdicts.

Under either theory, a $4,000,000 federal award does not

exactly add up, but that does not present an issue due to

the posture of this case on appeal. If the district court

sought to establish a ceiling based on the highest damage

assessment allocated to a defendant, that number would

have been $3,000,000—the damage award entered against

Cook County. If, on the other hand, the district court

decided to add the allocated damages based on the pre-

sumption that the jury heeded its instruction not to

issue duplicate awards, then there was no need to ex-

clude the $150,000 award against the officers, and the

total amount of federal damages would have been

$4,150,000. 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, which is not before us,

we agree with the district court’s decision to award the

damages allocated to both Cook County and the Sheriff.

36 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

The court presumed that the jury followed its instruction

not to issue duplicate awards, and its decision not to grant

a new trial for damages was not an abuse of discretion.

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 Petersen 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.

Most of the issues surrounding the damages award in

this case could have been avoided with a better verdict

form, and we take this opportunity to offer some general

guidance on what the proper sequence of inquiries on a

civil verdict form should be. A verdict form should not

ask a jury to assess damages before liability. In cases

involving joint and several liability for a single

indivisible injury, a verdict form should ask the jury first

to indicate which, if any, of the defendants are liable.

Second, if at least one defendant is found liable, the form

should instruct the jury to determine the total amount

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 37

of damages for the plaintiff’s injury, an inquiry that is

wholly separate from the liability decisions made in the

first step.6 The form should not be structured in a way

that would invite the jury to divide the damages for a

single injury among defendants or theories of recovery.

A verdict form that takes a jury through these steps in

this sequence—reinforced by clear instructions from the

court not to duplicate damages or divide the amount

among defendants—will go far to help future litigants

avoid the problems that arose in this case. Tort concepts

of single indivisible injuries and joint and several liability

are potentially confusing for a jury, and verdict forms

should help remedy potential confusion, not add to it.

The defendants also argue that the award was exces-

sive. In particular, they note the discrepancy between

the 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

ju ry’s v erd ic t w a s u n re as on ab le. “W h en th e

district court has remitted a portion of the jury’s award

and the defendant claims that the remitted award is still

excessive,” 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).

6

In a case involving comparative liability instead of joint and

several liability, an additional step would occur, where the

jury would be asked to apportion relative fault among the

various parties.

38 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

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 an 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] 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

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 39

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 resume. He had a solid work history that

included McDonald’s, Dominick’s, 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 witnessed

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 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.

40 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

S YKES, Circuit Judge, with whom P OSNER and T INDER,

Circuit Judges, join, dissenting in part from denial of

rehearing en banc. The individual defendants in this §

1983 case have requested rehearing en banc but raise no

issue worthy of the full court’s review. In a separate

request, Cook County has also asked for en banc

rehearing, and its petition has considerable merit. The

County maintains that the district court incorrectly sub-

mitted the question of damages to the jury, resulting in

duplicative separate awards, which the court then im-

properly aggregated. I would grant the County’s petition

and address the important issues it raises regarding the

law of damages in this circuit.

The verdict form and jury instructions were badly

botched in this case, inviting juror confusion and duplica-

tion of damages. The district court added the jury’s

improper separate awards (the total: $4.45 million),

ordered a modest remittitur, and entered judgment for

$4.15 million. The panel acknowledged the errors in the

verdict but affirmed anyway. The panel’s amended opin-

ion does the same, albeit with a bit more and slightly

different explanation, as well as some “general guidance”

for the future. Op. at 31-37. I appreciate the panel’s effort

at clarification. But even as revised, the opinion misreads

our caselaw and validates an improper approach to tort

damages in general and § 1983 damages in particular.

Moreover, the guidance now offered is not meaningful

because the panel has not fully explained the flaws in

the district court’s verdict form and in the jury instruc-

tions on damages.

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 41

Here’s a more complete description of the problem:

Plaintiff Marlita Thomas sued for damages stemming

from the death of her son Norman Smith while he was a

pretrial detainee in the Cook County Jail. She named

Cook County, the sheriff, and eight individual jail em-

ployees as defendants, and stated several different

claims for relief: a § 1983 claim against the individual

defendants for their deliberate indifference to Smith’s

medical needs; a policy-or-practice § 1983 claim against

Cook County and the sheriff under Monell v. Department of

Social Services of New York, 436 U.S. 658 (1978); a state-law

wrongful-death claim against the individual defendants;

and state-law survival and emotional-distress claims

against the individual defendants. Under Illinois law

a wrongful-death claim compensates the decedent’s next-

of-kin—here, Thomas—for her own pecuniary loss. See

Op. at 8-9 n.1 (explaining the distinction between wrong-

ful-death and survival claims under Illinois law). But all

the other claims in the case sought compensation

for a single indivisible injury—Smith’s suffering and

death from pneumococcal meningitis while detained in

the jail—though from more than one defendant and

under multiple theories of relief.

Nothing could be more common in a tort case. Personal-

injury plaintiffs almost always sue every defendant

plausibly within the causal chain under all available

legal theories. But the presence of multiple claims and

multiple defendants does not mean that damages are

assessed “by claim” or “by defendant,” and that’s how

the district court submitted this case to the jury. Damages

42 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

may be measured by category—that is, the verdict form

may have separate line-item inquiries for economic dam-

ages (medical expenses, lost wages, and other pecuniary

losses) and noneconomic damages (pain and suffering,

loss of consortium, etc.). In a comparative-liability case

(which this is not), the jury will also be instructed to

apportion fault (not damages) by assigning percentages

among the parties found to be causally responsible for

the injury. But the jury in a single-injury case should not

be asked to assess damages “by claim” or “by defendant.”

That approach invites duplication of damages and is

especially problematic where liability is joint and several.

As the panel has noted, liability among defendants in

a § 1983 case is joint and several—at least in the usual

case of one plaintiff with a single indivisible injury. See

Watts v. Laurent, 774 F.2d 168, 180 (7th Cir. 1985);

McKinnon v. City of Berwyn, 750 F.2d 1383, 1386-87 (7th

Cir. 1984). Accordingly, in a typical § 1983 case—which

this one was—the jury should not be invited to attribute

different injuries to different claims, award compensa-

tory damages “by claim,” or assess damages separately

against particular defendants. But that’s exactly what

happened here.

More specifically, the district court gave the jury a five-

page “Verdict Form A.” The first page pertained to the

deliberate-indifference claim against the individual jail

employees. The second pertained to the policy-or-practice

claim against Cook County and the sheriff. The third,

fourth, and fifth pages pertained to the state-law wrongful-

death, survival, and emotional-distress claims against

the individual employees. As to each separate claim, the

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 43

jury was first asked to award an amount of damages as

to that claim. The jury was then asked to decide the

liability of each defendant on that claim by checking a

“yes” or “no” box next to the name of the defendant. The

jury was also given a general “Verdict Form B,” which it

was to use if it found for the defendants across the board.

This verdict form was manifestly improper in several

important respects. An initial and obvious flaw was that

it directed the jury to decide the question of damages

first, which is backward. The district judge struggled to

explain this bizarre upside-down verdict to the jury and

eventually just punted, telling the jurors to disregard

the physical layout of the verdict and “answer the [liabil-

ity] questions first.” This is a totally unacceptable mode

of submitting a case to a jury. In fairness, this strange

form of verdict was proposed by the plaintiff’s attorney,

and as the panel notes, the defendants’ proposed verdict

form was just as bad. See Op. at 32-33 n.5. But it’s the

judge’s responsibility to get the verdict form right, not

just pick one side’s proposal or the other’s. The judge

should have rejected both proposals and written a

proper verdict form himself or insisted that the lawyers

go back to the drawing board. To adopt a seriously

flawed verdict form and then tell the jury to disregard

its structure is a careless way to charge a jury; it invites

juror confusion.

The verdict form also directed the jury to assess

damages by claim, which as the panel acknowledges is

legally incorrect in a case like this one involving a single

indivisible injury. Finally, the verdict form invited the

jury to award damages separately by defendant—that is,

44 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

separately against the individual employees, Cook

County, and the sheriff. This, too, is legally incorrect,

and for the same reason: This case involves a single

indivisible injury for which the defendants, if liable at

all, are jointly and severally liable.

That the jurors were confused is evident from the

verdict they returned. The jury awarded $150,000 on the

deliberate-indifference claim and found three of the

eight individual employees liable on this claim. On the

Monell claim, the jury awarded $3 million in damages

against Cook County and $1 million against the sheriff.

The jury awarded $150,000 on the wrongful-death claim

and found the same three individual employees liable

on this claim, and also awarded $150,000 on the survival

claim against these same employees. Finally, the jury

returned a zero-damages, no-liability verdict on the

emotional-distress claim. The district court tallied every-

thing up, ordered a $300,000 remittitur, and entered

judgment for $4.15 million. See Op. at 8-9 n.1.

The amended opinion acknowledges the flaws in the

verdict form but affirms nonetheless, relying on the

general presumption that jurors follow their instructions

and ultimately placing an appellate stamp of approval on

the district court’s unusual manner of reconciling the

confusing verdict they returned. There are two major

problems with the panel’s decision: The jury instructions

were just as incoherent as the verdict form, and neither

of the verdict-reconciliation methods mentioned by the

panel can be properly invoked here.

Taking the second point first, the panel says there

are two possible ways to read the district court’s

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 45

postverdict decision on damages, although neither of

them quite adds up. First, the panel notes that the judge

“decided to place a ceiling at the highest assessment of

compensatory damages for a given claim, citing Bosco v.

Serhant, 836 F.2d 271, 281 (7th Cir. 1987).” Op. at 33. The

panel reads Bosco as suggesting that “in cases where a

jury improperly apportions compensatory damages

for a single injury among jointly liable defendants, one

permissible approach to remedy the problem could be

to place a ceiling on recovery at the highest assessment of

damages that was assessed against any one defendant.” 1

Id. at 33-34. This is a considerable overreading of Bosco,

which merely hypothesized the possibility of using the

highest single assessment as a “ceiling” under these

circumstances and neither adopted nor endorsed this

method of reconciling a verdict with improper separate

damages awards. The panel also cites Watts v. Laurent,

774 F.2d 168, 180 (7th Cir. 1985), as support for this

“ceiling” approach, Op. at 34, but Watts never uses the

1

A recurring problem in the panel opinion is its use of the

phrase “apportionment of damages” to describe what the jury

did here. This terminology is incorrect as a matter of tort law.

“Apportionment” is a comparative-liability concept; as I have

earlier noted, in a comparative-liability case, the jury appor-

tions fault, not damages. See generally, R ESTATEMENT (T HIRD ) OF

T ORTS : A PPORTIONMENT OF L IABILITY §§ 1 et seq. (2000). This

is not a comparative-liability case. The jury was not in-

structed on the principles of comparative fault. The panel’s

nomenclature problem, however, further illustrates the basic

difficulty with this verdict.

46 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

word “ceiling” and does not stand for the proposition

that it is appropriate in this situation to enter judgment

in the amount of the highest single damages award. (More

on Watts in a moment.) Simply put, there is no solid

support for the panel’s suggested “ceiling” remedy.

In any event, the panel ultimately concludes that the

judge didn’t use the “ceiling” approach after all because

the highest single damages award was $3 million (against

Cook County), and the judge entered judgment for

$4.15 million instead. So the panel surmises that the

judge must have “combined two approaches in inter-

preting the compensatory damages awards”—the so-called

“ceiling” approach and another method that “cumulates”

improper separate awards. Op. at 34. Citing Havoco of

America, Ltd. v. Sumitomo Corp. of America, 971 F.2d 1332,

1346 (7th Cir. 1992), the panel suggests that “cumulating”

improper separate damages awards is appropriate

“when doing so better reflects the jury’s intent . . . in light

of the instructions the jury was given and the verdict

form that was used.” Op. at 34-35.

Havoco does not support what the judge did here.

Havoco was a single-injury case litigated on four theories

of relief against a single defendant, and the jury was

given a “no duplication of damages” instruction that was

much clearer than the one used in this case. The jury in

Havoco was instructed as follows: “Havoco seeks recovery

for the same injury in more than one of its claims

against Hill. You are instructed that if you have occasion

to consider damages against Hill under more than one

of Havoco’s claims, you should not make duplicate dam-

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 47

ages awards for the same injury.” Havoco, 971 F.2d at

1346 (quotation marks omitted). The jury returned

separate damages awards on each of the four counts. The

district court added them up and entered judgment for

the total; this court affirmed. Based on the clarity of the

no-duplication instruction, we said we would “presume

that the damages the jury awarded on each of the

four counts are not duplicative awards for the same

injury, and thus cumulation of the awards was proper.” Id.

Here, in contrast, the jury instructions on damages

were contradictory and confounding. It is true that the

jury was told not to duplicate damages:

You must not award compensatory damages more

than once for the same injury. For example, if the

plaintiff prevails on two claims and establishes a

dollar amount for his [sic] injuries, you must not

award him [sic] any additional compensatory

damages on each claim. The plaintiff is only entitled

to be made whole once and may not recover more

than he [sic] has lost.

But immediately after this no-duplication instruction,

the judge confusingly told the jury:

Of course, if different injuries are attributed to the

separate claims, then you must compensate the plain-

tiff fully for all his [sic] injuries. You may impose

damages on a claim solely upon the defendant or

defendants that you find are liable on that claim.

Although there are multiple defendants in this case, it

does not necessarily follow that if one is liable, all or

48 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

any of the others are also liable. Each defendant is

entitled to fair, separate and individual consideration

of his or her case without regard to your decision as

to the other defendants.

If you find that only one defendant is responsible for a

particular injury, then you must award damages for

that injury only against that defendant.

You may find that more than one defendant is liable

for a particular injury.

If so, the plaintiff is not required to establish how much

of the injury was caused by each particular defendant

who[m] you find liable. Thus, if you conclude that the

defendants you find liable acted jointly, then you may

treat them jointly for purposes of calculating damages.

If you decide that two or more of the defendants are

jointly liable on a particular claim, then you may

simply determine the overall amount of damages for

which they are liable without determining individual

percentages of liability.

If you find that plaintiff has proven any of the claims

against any of the defendants, you must determine

what amount of damages, if any, plaintiff is entitled to

recover from each defendant, and you will use Verdict

Form A.

This bewildering hodgepodge of instructions—some

inapplicable, some simply wrong—erased whatever

effectiveness the no-duplication instruction might have

had. The panel omits any discussion of the instructions as

a whole, which like the verdict form had the effect of

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 49

inviting the jury to assess damages “by defendant” and

“by claim.” The instructions also appear to have invited

the jury to decide the issue of joint liability, which is a

legal question for the court. Thus, although the jury was

indeed told not to award damages more than once for

the same injury, it was also told to award damages for

different injuries on separate claims, to award damages

separately by defendant, and to decide whether any of

the defendants “acted jointly,” and if so, to “treat them

jointly for purposes of calculating damages.” We cannot

safely rely on the presumption that jurors follow their

instructions when the instructions are this muddled.

Here, unlike in Havoco, we cannot know with any confi-

dence exactly what the jury did.2

This brings me back to Watts. That case involved a

§ 1983 claim against five defendants who specifically

asked the district court to instruct the jury to assess

damages separately by defendant. The court did so

(which was a mistake), and the jury found each defendant

liable for damages of $40,000. The plaintiff claimed this

meant he could recover $200,000, but we disagreed. The

plaintiff had a single indivisible injury for which the

defendants were jointly liable, so stacking the separate

awards was inappropriate. We gave the plaintiff a

choice: He could either accept a judgment in the amount

of $40,000 or have a new trial on damages. Watts, 774

F.2d at 180-81. Watts therefore specifically rejected the

2

This is not to suggest that better instructions necessarily

would have cured the serious flaws in the verdict form.

50 Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948

remedy of aggregation for a verdict that improperly

assesses damages “by defendant” in a single-injury joint-

liability case.

Although there are some differences between Watts and

this case, the material similarity is this: The jury was

improperly invited to award damages “by defendant” in

a single-injury joint-liability case, and the question on

appeal was whether the resulting separate damages

awards may properly be aggregated. Watts answered this

question “no”—aggregation is not appropriate in this

situation. Here, the error is even worse because the jury

was invited to award damages “by defendant” and “by

claim”—and was given unintelligible instructions to

boot. Aggregation is no more appropriate here than it

was in Watts.

In short, there are ample reasons for rehearing en banc.

That this case went so badly askew suggests a need for

greater clarity on how damages should be tried.3 The

amended opinion overreads Bosco, misapplies Havoco, and

conflicts with Watts. The panel relies too heavily on the

presumption that jurors follow their instructions—

3

A proper verdict form would have asked the liability ques-

tions first, sequentially by claim and defendant, and then

directed the jury to answer (if necessary) two damages ques-

tions: one setting an amount of damages for Thomas’s

pecuniary loss from Smith’s death (the wrongful-death dam-

ages) and the other setting an amount of damages for

Smith’s death (a single award of damages on all the other

claims, which were premised on the same injury).

Nos. 08-2232, 08-2233, 08-2482, 08-2597 & 08-2948 51

a presumption that is unwarranted given the circum-

stances, or at least cannot bear the weight the panel

assigns to it. The panel approves the aggregation

of improper separate damages awards in a single-injury

joint-liability case; this has consequences for the law of

damages in our circuit. My concern is not so much with

the size of this judgment than with the process by which

it was reached, which the panel rightly acknowledges

was flawed but wrongly declines to remedy. I would

grant Cook County’s petition for rehearing en banc.

5-3-10