Larry Howell v. Wexford Health Sources, Inc.

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19‐3210

LARRY HOWELL,

Plaintiff‐Appellant,

v.

WEXFORD HEALTH SOURCES, INC.

and JOHN TROST, M.D.,

Defendants‐Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 3:16‐CV‐00160‐RJD — Reona J. Daly, Magistrate Judge.

____________________

ARGUED OCTOBER 2, 2020 — DECIDED FEBRUARY 5, 2021

____________________

Before RIPPLE, KANNE, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. This appeal presents recurring is‐

sues about the Eighth Amendment rights of incarcerated per‐

sons to have their serious medical needs treated and to obtain

remedies for violations of those rights. Plaintiff Larry Howell

injured his knee while playing basketball in the Menard Cor‐

rectional Center. He tore his medial meniscus cartilage and

his anterior cruciate ligament (ACL). Five months later, he

2 No. 19‐3210

had surgery to repair the torn meniscus. It was another

twenty months later, however, before Howell had surgery to

reconstruct his ACL, despite Howell’s continuing pain and ef‐

forts to have the ACL surgery sooner.

While his requests for the ACL surgery were still being re‐

jected, Howell filed this suit under 42 U.S.C. § 1983 alleging

violations of his Eighth Amendment right to be free of cruel

and unusual punishment. Howell’s claims for delaying the

ACL surgery were tried to a jury, which ruled in favor of de‐

fendant Dr. John Trost but against defendant Wexford Health

Sources, Inc. The district court later vacated the portion of the

jury verdict against Wexford. The court entered judgment as

a matter of law in favor of Wexford, as well as judgment for

Dr. Trost based on the jury verdict.

On appeal, Howell challenges only the portion of the judg‐

ment in favor of Wexford. He argues that the district court

erred by excluding his evidence of other incarcerated people’s

delayed orthopedic care and erred both procedurally and

substantively in granting Wexford’s motion for judgment as a

matter of law.

We affirm. First, the district court did not abuse its discre‐

tion in excluding the evidence about Wexford’s treatment of

other incarcerated people. Howell did not show that their sit‐

uations were fairly comparable to his. The court also did not

err in granting Wexford’s Rule 50(b) motion for judgment as

a matter of law. As a procedural matter, Wexford properly in‐

corporated its winning argument as one of the grounds for its

Rule 50(a) motions before the verdict. Turning to substance,

Howell blamed his pain and delayed surgery on Wexford’s

so‐called “collegial review process,” which requires an off‐

No. 19‐3210 3

site Wexford physician to review and approve an on‐site Wex‐

ford physician’s recommendation that an incarcerated person

be referred to an off‐site healthcare provider. The collegial re‐

view process is not unconstitutional on its face, and when we

dig into the details of this case, we find that Howell did not

offer evidence that would let a reasonable jury find that the

collegial review process caused any violation of his Eighth

Amendment rights.

I. Factual and Procedural History

A. Howell’s Knee Injury and Treatment

On May 4, 2014, while confined at the Menard Correc‐

tional Center, Howell suffered an acute knee injury while

playing basketball. The next day, Howell saw defendant Dr.

John Trost, a physician at Menard who was employed by de‐

fendant Wexford Health Sources, Inc., a private company that

contracted with the State of Illinois to provide healthcare ser‐

vices to incarcerated people. Dr. Trost ordered an MRI of

Howell’s knee, which showed a torn medial meniscus and a

torn ACL.

Dr. Trost referred Howell to Dr. Kevin Koth, an outside

orthopedic surgeon who is not a party to this case. At How‐

ell’s initial appointment in August 2014, Dr. Koth discussed

treatment options. He said that he was “not sure that doing

an ACL reconstruction with a meniscal repair is in [Howell’s]

best interest.” On October 7, 2014, Dr. Koth performed sur‐

gery to repair the meniscus tear but not the ACL.

Critical for this appeal, Dr. Koth continued to recommend

against surgery to repair the ACL unless and until it became

“absolutely necessary because I do not think that the rehab

situation of being in prison is the most favorable for [Howell]

4 No. 19‐3210

and, therefore, I would elect to hold off and not [do] an ACL

reconstruction unless it becomes absolutely necessary.” At

follow‐up appointments in October and November 2014, Dr.

Koth continued to recommend against ACL surgery, saying

that it “should be the last resort given [Howell’s] current sit‐

uation [in prison].”

To hold defendant Wexford itself liable for a violation of

his constitutional rights, Howell seeks to show that the viola‐

tion was caused by a Wexford corporate policy requiring “col‐

legial review” before an incarcerated person can receive

health care from an outside provider. In April 2015, Dr. Trost

presented Howell’s case for collegial review seeking an out‐

side orthopedic evaluation of his torn ACL. The reviewing off‐

site Wexford physician denied it and instead recommended a

physical therapy treatment plan. In November 2015, Dr. Trost

again presented Howell for collegial review seeking an out‐

side orthopedic evaluation. This too was denied. The off‐site

physician instead requested “more information as to what

kind of therapy has been completed.” In January 2016, Dr.

Trost again presented Howell for collegial review to approve

an MRI following his December 2015 complaints of knee pain.

This referral was approved, and an MRI was performed off‐

site in January.

In February 2016, Dr. Trost presented Howell for collegial

review, this time requesting an orthopedic consultation about

those MRI results. This request was denied at first, but Dr.

Trost appealed. The request was ultimately granted in March

2016. In April 2016, Howell discussed his MRI results with an

outside physician’s assistant who recommended proceeding

with ACL reconstruction surgery. In May 2016, Dr. Trost re‐

quested and received approval for ACL surgery. Howell had

No. 19‐3210 5

ACL reconstruction surgery on June 23, 2016, approximately

twenty months after his meniscus surgery and more than two

years after his injury.

B. Procedural History

Howell filed a complaint in the district court on Febru‐

ary 10, 2016, shortly after the MRI that eventually led to the

ACL surgery. Defendants filed motions for summary judg‐

ment, which were granted in part and denied in part. Before

trial, defendants filed motions in limine, including one seek‐

ing to bar evidence of Wexford’s medical treatment provided

to other incarcerated people. The court granted this motion in

limine on relevance grounds, ruling that the affidavits of

Howell’s four disclosed incarcerated witnesses did not suffi‐

ciently indicate that they would testify to issues concerning

the collegial review process as it related to orthopedic injuries.

At the close of plaintiff’s evidence and again when defend‐

ants rested without presenting additional evidence, defend‐

ants made oral motions under Federal Rule of Civil Procedure

50(a) for judgment as a matter of law. The court denied as to

Dr. Trost and reserved decision as to Wexford. The jury re‐

turned a verdict in favor of Dr. Trost and against Wexford,

awarding plaintiff damages of $25,000. After the verdict, de‐

fendants renewed their Rule 50 motions in writing. The court

treated Dr. Trost’s motion as moot but granted judgment as a

matter of law to Wexford.

Howell has appealed the judgment in favor of Wexford

but not the judgment against Dr. Trost. Howell contends that

the district court erred by excluding evidence about Wex‐

ford’s delays and failures in treating other patients, and by

granting Wexford’s Rule 50 motion. The district court had

6 No. 19‐3210

subject‐matter jurisdiction under 28 U.S.C. §§ 1331 and 1343

as to plaintiff’s Eighth Amendment claims. This court has ju‐

risdiction of the appeal under 28 U.S.C. § 1291.

II. Monell Liability and the Wexford Collegial Review Process

The district court’s decisions first to exclude evidence

about other incarcerated people and then to grant judgment

as a matter of law are two sides of the same coin. They both

stem from doctrinal requirements under § 1983 that can make

it difficult for a plaintiff to prove that a private corporation

like Wexford should be held liable for violating his constitu‐

tional rights. As we explain below, Howell needed to prove

that a violation of his Eighth Amendment rights was caused

not only by a Wexford agent or employee but by a corporate

policy or widespread practice or custom. See generally Mo‐

nell v. Dep’t of Social Servs., 436 U.S. 658, 690–91 (1978). Howell

tried to meet that burden by showing that Wexford’s collegial

review process, which requires a second, off‐site approval be‐

fore referring a patient to an outside specialist, violated his

rights and those of other incarcerated persons. We assume

that this policy is widespread in Menard and other facilities

where Wexford provides healthcare services. The question

here is whether Howell offered sufficient evidence that Wex‐

ford’s widespread collegial review policy caused a violation

of his constitutional rights. Before engaging with the specifics

of Howell’s claims, some background on 42 U.S.C. § 1983 lia‐

bility governed by Monell may be helpful.

A. Monell Liability for Prison Healthcare Providers

Under the Eighth Amendment, prison officials are respon‐

sible for providing healthcare to incarcerated persons who

cannot obtain healthcare on their own. Estelle v. Gamble, 429

No. 19‐3210 7

U.S. 97, 103−04 (1976). To prove a violation of that right, a

plaintiff must prove that a defendant actually knew of a seri‐

ous health need and acted with deliberate indifference to the

plaintiff’s suffering. Farmer v. Brennan, 511 U.S. 825, 843

(1994); Gamble, 429 U.S. at 104−05. Denying or delaying appro‐

priate treatment to an incarcerated person suffering from

avoidable pain can violate the Eighth Amendment. E.g.,

Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008) (plain‐

tiff stated plausible claim for deliberate indifference where

jury could find that guards needlessly delayed treatment of

plaintiff’s broken nose for a day and a half); Edwards v. Snyder,

478 F.3d 827, 831 (7th Cir. 2007) (plaintiff stated plausible

claim for deliberate indifference where he was needlessly de‐

nied treatment for painful dislocated finger for two days).

Section 1983 grants a private right of action against a “per‐

son” who acts under color of state law to deprive another of

rights under federal law, including the Constitution. A key

part of § 1983’s doctrinal structure is the difference between

individual and governmental liability. In Monroe v. Pape, 365

U.S. 167 (1961), the Supreme Court held that an individual

could be held liable under § 1983 even if his conduct violated

state law. That holding opened the door to the extensive mod‐

ern use of this Reconstruction‐Era statute. But Monroe also

held that a local government could not be held liable under

§ 1983. 365 U.S. at 187.

In Monell, the Supreme Court overruled the latter holding

in Monroe and held for the first time that a municipal govern‐

ment could be a proper defendant under § 1983. Monell, 436

U.S. at 700–01. At the same time, Monell rejected the common‐

law theory of respondeat superior liability for an employee’s

actions. Instead, the Court crafted a new, more restrictive

8 No. 19‐3210

standard to determine when a municipal government itself

has caused a deprivation of constitutional rights. A plaintiff

must show that the violation was caused by (1) an express

government policy; (2) a widespread and persistent practice

that amounted to a custom approaching the force of law; or

(3) an official with final policymaking authority. 436 U.S. at

690–91; Glisson v. Indiana Dep’t of Correction, 849 F.3d 372, 379

(7th Cir. 2017) (en banc).

But Wexford is not a municipal government. It is a private

corporation that contracts with the Illinois Department of

Corrections to provide healthcare services that the govern‐

ment is obliged to provide to incarcerated persons. Circuit

precedent establishes at this time that private corporations

acting under color of law also benefit from Monell’s rejection

of respondeat superior liability for an employee’s constitu‐

tional violations. See Shields v. Illinois Dep’t of Corrections, 746

F.3d 782, 786 (7th Cir. 2014) (following precedent but criticiz‐

ing extension of Monell to private corporations). In a case

against a private contractor that provides healthcare to incar‐

cerated people, the “critical question” for liability is “whether

a municipal (or corporate) policy or custom gave rise to the

harm (that is, caused it).” Glisson, 849 F.3d at 379.

As we apply controlling precedent, we may recognize that

the overall doctrinal structure grew case‐by‐case with incre‐

mental improvisations, and that it is difficult to make sense of

the overall structure. One scholar in the field expressed frus‐

tration that the

fracturing of constitutional torts into disparate

liability rules does not reflect any plausible con‐

ception of policy. Although the Court occasion‐

ally makes functional arguments about one or

No. 19‐3210 9

another corner of this landscape, it has never at‐

tempted to justify the overall structure in those

terms. Nor could it. The proliferation of incon‐

sistent policies and arbitrary distinctions ren‐

ders constitutional tort law functionally unintel‐

ligible.

John C. Jeffries, Jr., The Liability Rule for Constitutional Torts, 99

Va. L. Rev. 207, 208 (2013); see also Board of County Comm’rs of

Bryan Cty. v. Brown, 520 U.S. 397, 430 (1997) (Breyer, J., dis‐

senting) (Monell has “produced a highly complex body of in‐

terpretive law”); Karen M. Blum, Section 1983 Litigation: The

Maze, the Mud, and the Madness, 23 Wm. & Mary Bill Rts. J. 913,

913−14 (2015) (“There is a growing consensus among practi‐

tioners, scholars, and judges that Section 1983 is no longer

serving its original and intended function as a vehicle for rem‐

edying violations of constitutional rights, that it is broken in

many ways, and that it is sorely in need of repairs.”). The most

important doctrinal elaborations—individual versus official

liability, qualified immunity, and Monell liability rather than

respondeat superior—bear only a tenuous connection to the

text of § 1983, let alone to its history. Repair of the creaky doc‐

trinal structure, however, will need to come from the Su‐

preme Court or Congress. For now we do the best we can,

recognizing the challenges that parties face in asserting and

defending claims under the statute.

B. Isolated Incidents Versus Widespread Problems

In applying Monell and avoiding respondeat superior lia‐

bility, one key is to distinguish between the isolated wrong‐

doing of one or a few rogue employees and other, more wide‐

spread practices. Monell, 436 U.S. at 694. In our extensive case

law on prison healthcare, we have not adopted bright‐line

10 No. 19‐3210

rules regarding the quantity, quality, or frequency of conduct

needed to prove a widespread custom or practice under Mo‐

nell. Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th

Cir. 2010). “[W]hat is needed is evidence that there is a true

municipal [or corporate] policy at issue, not a random event.”

Grieveson, 538 F.3d. at 774 (quotations omitted); see also

Palmer v. Marion Cty., 327 F.3d 588, 596 (7th Cir. 2003) (“proof

of isolated acts of misconduct will not suffice; a series of vio‐

lations must be presented to lay the premise of deliberate in‐

difference”); Cornfield v. Consolidated High Sch. Dist. No. 230,

991 F.2d 1316, 1326 (7th Cir. 1993) (requiring “a pattern or a

series of incidents of unconstitutional conduct”).

C. Proving an Unconstitutional Policy, Practice, or Custom in

Prison Healthcare

Institutional liability “can be proven in a number of ways,

including but not limited to repeated actions. A single memo

or decision showing that the choice not to act is deliberate”

may establish liability under Monell. Glisson, 849 F.3d at 381

(emphasis added). “There is no magic number of injuries that

must occur before [a defendant’s] failure to act can be consid‐

ered deliberately indifferent.” Id. at 382.

Through a bureaucracy that diffuses individual responsi‐

bility and accountability, healthcare in a prison or jail may be

delivered (or not delivered) so that it is difficult or even im‐

possible to assign the individual responsibility for deliber‐

ately indifferent failure that offers the simplest path to § 1983

liability. See, e.g., Daniel v. Cook Cty., 833 F.3d 728, 733−34 (7th

Cir. 2016) (noting that individual defendants can put blame

on “the system” where responsibility is so diffused that no

individual is accountable for failures to provide adequate

healthcare); see also Shields, 746 F.3d at 799 (plaintiff may be

No. 19‐3210 11

“the victim not of any one human being’s deliberate indiffer‐

ence but of a system of medical care that diffuse[s] responsi‐

bility for his care to the point that no single individual [is] re‐

sponsible for seeing that he receive[s] the care he need[s] in a

timely way”); Hildreth v. Butler, 960 F.3d 420, 437 (7th Cir.

2020) (Hamilton, J., dissenting) (“The law should not … re‐

ward divided responsibility and deliberate ignorance by

those who control prisoners’ only access to health care.”). In

this case, for example, the jury could reasonably find that Dr.

Trost as an individual was not deliberately indifferent to

Howell’s pain. He repeatedly submitted Howell’s case for

outside diagnosis and treatment, but his requests were turned

down several times through Wexford’s collegial review pro‐

cess.

Glisson provided a fatal example of this sort of diffused re‐

sponsibility. The plaintiff suffered from several serious ill‐

nesses that required comprehensive and coordinated care. He

died of starvation, acute renal failure, and associated condi‐

tions only 37 days after he entered custody where no individ‐

ual was responsible for his overall care. We held in Glisson,

however, that a jury could conclude that Wexford had

adopted what amounted to a “policy of inaction” for which

Wexford itself could be held liable. Glisson, 849 F.3d at 382.

There are many other, less severe examples where incar‐

cerated plaintiffs have adequately pleaded Monell liability al‐

leging only their individual experiences.1 But the more com‐

mon paths toward Monell liability require proof either of an

1 In the following cases, for example, district courts denied defend‐

ants’ motions to dismiss Monell claims: Haywood v. Wexford Health Sources,

2017 WL 3168996 at *1, 4 (N.D. Ill. July 26, 2017) (alleging multiple Wex‐

ford employees’ repeated indifference to plaintiff’s medical needs);

12 No. 19‐3210

express policy that is unconstitutional or a widespread prac‐

tice or custom affecting other individuals or showing re‐

peated deliberate indifference toward the plaintiff.

Despite the absence of bright‐line rules, there can be little

doubt that a practice or custom theory will be more persua‐

sive if a plaintiff can show that the defendant government or

company treated other, similarly situated patients in similar

unconstitutional ways. For example, Grieveson held the plain‐

tiff’s allegations of four botched refills of his pain prescrip‐

tions did not prove a widespread unconstitutional practice.

538 F.3d at 774 (“This simply is not enough to foster a genuine

issue of material fact that the practice was widespread….”).

Cf. Harper v. Wexford Health Sources, 2016 WL 1056661 at *3–4

(N.D. Ill. Mar. 17, 2016) (denying motion to dismiss where

plaintiff’s specific allegations that defendant maintained a

widespread cost‐cutting policy were accompanied by refer‐

ences to experiences of other incarcerated people). We re‐

cently found that three incidents of late medication refills for

an incarcerated plaintiff, resulting in painful withdrawal

Baker v. Wexford Health Sources, Inc., 2014 WL 1346613 at *6 (N.D. Ill. Apr. 4,

2014) (plaintiff’s requests for treatment of arm injury repeatedly ignored

for almost eight months); Ford v. Wexford Health Sources, Inc., 2013 WL

474494 at *1–3 (N.D. Ill. Feb. 7, 2013) (plaintiff alleged near daily requests

for medical attention to back injury, defendants’ denial of permits for suf‐

ficient medical restraints, and delays in scheduling medical appoint‐

ments); Quinn v. Hardy, 2013 WL 4836262 at *1 (N.D. Ill. Sept. 10, 2013)

(following plaintiff’s foot and back injuries and Wexford employees’ re‐

peated denials of requests for treatment resulting in hunger strikes and

attempted suicide); see also Neely v. Randle, 2013 WL 3321451 at *6 (N.D.

Ill. June 29, 2013) (“[A]llegations of routine delays and denials of medical

care and nonresponsiveness to requests for care, combined with … spe‐

cific factual allegations regarding how he was dealt with … are sufficient

to state claims under Monell.”).

No. 19‐3210 13

symptoms, could not survive summary judgment in part be‐

cause the plaintiff failed to offer evidence of medication de‐

lays for other incarcerated people. Hildreth, 960 F.3d at 429 (af‐

firming summary judgment for defendants); but see id. at 432,

441 (Hamilton, J., dissenting).

III. Defendants’ Motion in Limine

With this background, we turn to Howell’s first appellate

challenge. To prove a Monell claim against Wexford for delib‐

erate indifference to his medical needs, Howell sought to offer

evidence that Wexford’s collegial review process had caused

four other incarcerated persons to experience similarly avoid‐

able pain by delaying needed orthopedic care. That evidence

was the target of defendants’ motion in limine. The district

court reviewed the four affidavits and concluded that none

was a suitable comparator.

A. Standard of Review

We review such evidentiary rulings for abuse of discre‐

tion. Morgan v. City of Chicago, 822 F.3d 317, 338–40 (7th Cir.

2016), citing Young v. James Green Mgmt., Inc., 327 F.3d 616 (7th

Cir. 2003). “[W]e will not find error unless the court’s decision

is based on an erroneous conclusion of law or the record con‐

tains no evidence on which the court rationally could have

based its decision….” Van Stan v. Fancy Colours & Co., 125 F.3d

563, 570 (7th Cir. 1997) (noting special deference to eviden‐

tiary rulings).

In exercising that discretion in a prison healthcare case,

however, a district court must take into account the burden

an incarcerated plaintiff faces in asserting Monell claims under

the Eighth Amendment. Because of the doctrinal burdens of

Monell discussed above, a plaintiff who has direct access only

14 No. 19‐3210

to his own medical records may well need discovery concern‐

ing the healthcare provided to others. Such discovery may

also encounter issues of healthcare privacy and a need for an

appropriate protective order. In deciding how far such dis‐

covery should go and whether evidence of others’ treatment

should be admitted at trial, employment discrimination law

may provide a helpful guide.

Employees often try to prove discrimination by showing

that they were treated less favorably than similarly situated

employees who did not share their race, sex, religion, or other

protected status. To determine whether other employees are

similarly situated, “courts ask ‘whether the other employees’

situations were similar enough to the plaintiff’s that it is rea‐

sonable to infer, in the absence of some other explanation, that

the different treatment was a result of race or some other un‐

lawful basis.’” de Lima Silva v. Dep’t of Corrections, 917 F.3d 546,

559 (7th Cir. 2019), quoting Luster v. Illinois Dep’t of Correc‐

tions, 652 F.3d 726, 730 (7th Cir. 2011). This inquiry is “flexible,

common‐sense, and factual. It asks, ‘essentially, are there

enough common features between the individuals to allow a

meaningful comparison?’” Coleman v. Donahoe, 667 F.3d 835,

841 (7th Cir. 2012), quoting Humphries v. CBOCS West, Inc., 474

F.3d 387, 405 (7th Cir. 2007), aff’d, 553 U.S. 442 (2008).

Fair comparability often presents a jury question: “While

the comparability of other employees is a context‐dependent

question often suitable for a jury, when the facts of a case sug‐

gest that no reasonable jury could see enough commonality

for a meaningful comparison between the employees, sum‐

mary judgment is appropriate.” Rozumalski v. W.F. Baird & As‐

sociates, Ltd., 937 F.3d 919, 927 (7th Cir. 2019). In employment

cases, courts look for comparators who differ primarily with

No. 19‐3210 15

respect to the protected category, and a plaintiff typically

needs only one comparator to avoid summary judgment or

judgment as a matter of law. See Humphries, 474 F.3d at 406–

07 (“A single comparator will do; numerosity is not re‐

quired.”).

In applying Monell to prison healthcare, the issue is

whether the similarities show a widespread practice that sup‐

ports a finding of an unconstitutional custom or practice.

However, the comparator need not be perfect in either con‐

text. See, e.g., Coleman, 667 F.3d at 841 (concluding in employ‐

ment context that comparators’ “case is close enough to [plain‐

tiff’s] to provide a ‘meaningful comparison’ and to permit a

reasonable jury to infer discrimination”) (emphasis added),

quoting Humphries, 474 F.3d at 405.

B. Procedural History

Before trial, defendants filed a motion in limine seeking to

exclude “any and all argument and evidence of other medical

treatment provided to inmates.” In response, Howell sought

to add four witnesses to his witness list. All had been incar‐

cerated patients treated by Wexford. With his response, How‐

ell submitted an affidavit from each to show Wexford’s prac‐

tice of “offering ineffective physical therapy for any and all

injuries and denying outside consultations with physicians.”

The district court granted the motion to exclude these wit‐

nesses, finding that because the “affidavits have not indicated

they would testify to issues and delays concerning the colle‐

gial review process as it relates to an orthopedic injury, their

testimony is not relevant.”2

2Howell’s response to this motion in limine was the first time these

four witnesses were identified, even though some of their affidavits dated

16 No. 19‐3210

C. The Affidavits

The admissibility of such evidence lies within the discre‐

tion of the trial judge, who must weigh the dangers of unfair‐

ness, confusion, and undue expenditure of time in the trial of

collateral issues against the factors favoring admissibility.

Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1269 (7th Cir.

1988) (finding no abuse of discretion in excluding evidence of

other airplane accidents that were not sufficiently similar to

accident at issue). In exercising that discretion, the judge may

not reflexively refuse to conduct a “trial within a trial” but

must consider carefully the probative value of the evidence

and the offering party’s need to offer it. See id. at 1268 (closely

examining specific reasons for excluding evidence). The court

must remain aware of the challenge a plaintiff faces in prov‐

ing a widespread custom or practice and must give the plain‐

tiff a fair opportunity both to discover and then to prove sim‐

ilar wrongs. The judge here showed that she was aware of

those requirements. In the end, however, she found that How‐

ell’s evidence did not show sufficient similarity to permit a

reasonable inference that Howell and these four witnesses

suffered similar constitutional violations caused by a com‐

mon, widespread practice.

Howell’s first witness said he received inadequate physi‐

cal therapy following knee surgery. Similarly, the second wit‐

ness alleged knee pain and inadequate physical therapy. But

neither mentioned Wexford’s collegial review process; they

addressed only inadequate physical therapy. The third wit‐

from 2017. The district court did not rely on the delayed disclosure in

granting the motion in limine, however, so we also bypass the timing.

No. 19‐3210 17

ness had injured his bicep. He testified that he requested cor‐

rective surgery but was given pain medication and physical

therapy instead. The problem here is that he never claimed he

was denied medical care through the collegial review process,

or even that a physician submitted a collegial review referral

on his behalf. These first three witnesses offered essentially no

relevant support for Howell’s attack on Wexford’s collegial re‐

view process.

The fourth witness presented a closer question. He testi‐

fied that he suffered a knee injury and sought surgery, which

was rejected through the collegial review process. But the dec‐

laration is sparse on details and does not include evidence of

a request for collegial review. It is not even clear whether any

physician ever recommended surgery for this fourth witness.

A proponent seeking to demonstrate an unconstitutional

harm caused by the collegial review process must present ev‐

idence that the requested treatment was medically appropri‐

ate and that denial was not justifiable. The comparator evi‐

dence is not sufficient if it relies solely on the incarcerated per‐

son’s own assessment of the appropriateness of the treatment.

Saying “I was unhappy with my treatment” is not enough.

Given the meager details concerning the fourth witness’s

condition and medical treatment, we conclude that the district

court did not abuse its discretion in excluding his testimony.

The Monell claim against Wexford challenges the collegial re‐

view process, not other aspects of prison healthcare, such as

the adequacy of on‐site physical therapy. Neither the fourth

affidavit nor the first three showed situations similar enough

to Howell’s to find an abuse of discretion in excluding the wit‐

nesses.

18 No. 19‐3210

IV. Wexford’s Rule 50(b) Motion After the Jury Verdict

At the close of plaintiff’s evidence and again at the close of

all evidence, defendants made oral Rule 50(a) motions for

judgment as a matter of law. The court denied the motions as

to Dr. Trost’s liability and reserved a decision as to Wexford’s

liability. The jury returned a verdict in favor of Dr. Trost and

against Wexford, awarding damages of $25,000. After the ver‐

dict, defendants relied on Rule 50(b) to file written versions of

their oral Rule 50(a) motions. The court found that Dr. Trost’s

motion was moot but granted Wexford’s motion, finding that

Howell had failed to offer evidence that his “experience with

the collegial review process was widespread or systemic.”

The court then vacated the jury verdict and award and en‐

tered judgment in favor of both Wexford and Dr. Trost.

Federal Rule of Civil Procedure 50(a)(1) allows a district

court to enter judgment against a party who has been fully

heard on an issue during a jury trial “if a reasonable jury

would not have a legally sufficient evidentiary basis to find

for the party on that issue.” We engage in “rigorous and de

novo review” of a district court’s ruling on a Rule 50 motion.

Passananti v. Cook Cty., 689 F.3d 655, 659 (7th Cir. 2012). The

appellate court does not weigh evidence or make credibility

determinations, id., and construes evidence “strictly in favor

of the party who prevailed before the jury.” Empress Casino

Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 822 (7th

Cir. 2016), quoting Passananti, 689 F.3d at 659.

A. Procedural Challenge

Howell argues that the district court granted Wexford’s

Rule 50(b) motion on a basis not raised in a Rule 50(a) motion.

No. 19‐3210 19

A Rule 50(b) motion may be granted “only on grounds ad‐

vanced in the pre‐verdict motion.” Abellan v. Lavelo Property

Mgmt., LLC, 948 F.3d 820, 827 (7th Cir. 2020). Wexford argued

to the judge that Howell had failed to present evidence that

Wexford had an unconstitutional widespread practice or pol‐

icy. Wexford incorporated its oral argument into its Rule 50(a)

motion at the close of Howell’s evidence, and into its Rule

50(a) motion at the close of all evidence. The court was enti‐

tled to grant Wexford’s Rule 50(b) motion on grounds ad‐

vanced in a pre‐verdict motion under Rule 50(a).

B. The Substance

Howell argues that the district court erred in granting

Wexford’s Rule 50(b) motion because the collegial review pro‐

cess was a company policy or widespread practice that caused

the violation of his Eighth Amendment rights. We agree with

the district court that Wexford’s collegial review process is not

unconstitutional on its face. We recognize that the collegial re‐

view process could be a mechanism for denying or delaying

medical care that inmates need. In this case, however, Howell

did not offer evidence that would let a reasonable jury find

that Wexford’s collegial review process is used in a wide‐

spread or systemic way to violate constitutional rights.

1. Howell’s Experience with Collegial Review

After Howell injured his knee, Dr. Trost requested ap‐

proval for referrals to outside specialists through the collegial

review process a number of times. The first led to the diagno‐

sis of the torn meniscus and torn ACL and to Howell’s first

surgery to repair the torn meniscus. Earlier in this suit, How‐

ell asserted that defendants were deliberately indifferent to

his medical needs in the five months between his knee injury

20 No. 19‐3210

and the meniscus surgery. The district court granted sum‐

mary judgment for the defendants regarding those five

months, and Howell does not challenge that decision on ap‐

peal. Our focus is on the twenty additional months before

Howell had surgery to repair his torn ACL.

During those twenty months, Dr. Trost’s requests were de‐

nied on two occasions, in April and November 2015. Both

times, he sought approval for ACL reconstruction surgery.

Both times the reviewing physician denied the request and

directed Howell to physical therapy. It is not difficult to im‐

agine how such denials might be deemed evidence of delib‐

erate indifference. Howell says he was in pain, there is little

evidence of a viable program of physical therapy to address

his ACL tear, and avoiding surgery was likely to save money

for Wexford and/or the State.

In this case, however, the undisputed evidence shows that

these two denials were consistent with the medical advice

from the outside orthopedic surgeon, Dr. Koth, to avoid ACL

reconstruction surgery unless and until it became “absolutely

necessary.” This exercise of medical judgment by the outside

specialist makes it difficult at best to show that Wexford’s de‐

lay in going through with the surgery amounted to deliberate

indifference to Howell’s serious medical needs. See, e.g., Es‐

tate of Cole v. Fromm, 94 F.3d 254, 261–62 (7th Cir. 1996) (even

negligent exercise of medical judgment does not show delib‐

erate indifference; plaintiff must show decision so far outside

bounds of medical judgment as to support inference that

medical judgment was not actually exercised).

Undisputed evidence also shows three approvals for

Howell’s outside referrals through the collegial review pro‐

No. 19‐3210 21

cess during this period. First, Dr. Trost requested and re‐

ceived approval for a new MRI in January 2016. The next

month, Dr. Trost requested an outside consultation about

those MRI results. This request was initially denied, but Dr.

Trost appealed and Wexford ultimately approved it. As a re‐

sult, Howell consulted with an outside physician’s assistant

to determine whether ACL reconstruction surgery was medi‐

cally needed. And third, after that medical professional rec‐

ommended proceeding with ACL reconstruction surgery,

Howell was approved for the surgery, which occurred in June

2016.

Howell claims an unconstitutional violation based on an

alleged refusal to follow the advice of a specialist. Failure to

follow the recommendations of a specialist, including for pain

relief, can establish deliberate indifference. See, e.g., Arnett v.

Webster, 658 F.3d 742, 753 (7th Cir. 2011); Jones v. Simek, 193

F.3d 485, 490 (7th Cir. 1999). In this case, however, there is no

evidence that Wexford personnel refused to follow the advice

of a specialist, let alone that they did so pursuant to an uncon‐

stitutional policy. Again, Dr. Koth’s advice to delay the ACL

surgery on medical grounds is vital evidence.3

Even considering the evidence in the light most favorable

to Howell, the delay of his ACL reconstruction surgery caused

3 Howell argues that Wexford’s refusal to provide a hard plastic or

metal ACL brace was a refusal to follow the advice of a specialist. After

Howell’s meniscus repair surgery, Dr. Koth did recommend an ACL knee

brace. When Howell requested the knee brace in December 2014, he re‐

ceived a sleeve instead of a hard plastic or metal brace. As best we can tell,

the refusal was based on restrictive security protocols in the facility, not

because of deliberate indifference by Wexford to Howell’s medical needs.

22 No. 19‐3210

by the collegial review process cannot be attributed to delib‐

erate indifference. A negligent exercise of medical judgment

is not enough to show deliberate indifference. Plaintiff must

show a failure to exercise medical judgment at all. E.g., Estate

of Cole, 94 F.3d at 261−62. And Howell has not shown even

negligence here. It is not unusual outside of prisons for pa‐

tients with painful orthopedic problems to be told to try more

conservative treatment, delaying surgery until it appears that

nothing less will offer effective relief. Given Dr. Koth’s advice

to use ACL surgery as a last resort, the Wexford doctors at

worst disagreed about whether the surgery was medically ap‐

propriate. A jury could not reasonably find that this choice

amounted to a failure to exercise medical judgment.4

2. Delays in Receiving Treatment

Howell argues that the collegial review process delayed

his ability to receive treatment and that this delay itself was

unconstitutional. “[T]he dangers of delayed responses to

medical requests are readily apparent.” Thomas v. Cook Cty.

Sheriff’s Dep’t, 604 F.3d 293, 304 (7th Cir. 2010) (affirming

4The record of Howell’s knee rehabilitation and occasional com‐

plaints of pain does not reveal deliberate indifference to his medical needs.

In August 2014, when Howell first saw Dr. Koth, there was no evidence of

a limp, leading Dr. Koth to conclude that ACL reconstruction surgery may

not be the best path. After Howell’s meniscus surgery, Dr. Koth observed

that his swelling had improved but that Howell complained of muscle at‐

rophy after disuse. In December 2015, Howell complained to Wexford

nursing staff of knee pain. However, one week later, Howell was observed

doing full squats with approximately 300 pounds of weights. In January

2016, Wexford’s Dr. Rankin reported that Howell “walks well, can do

about 60% of full squat…no tenderness.” And in February 2016, Howell

admitted that he did not comply with the recommended physical therapy.

No. 19‐3210 23

plaintiff’s verdict in relevant part; systemic delays in receiv‐

ing treatment can constitute a widespread custom or practice

resulting in constitutional violations). The problem for How‐

ell is factual. From the very beginning, the outside specialist

(Dr. Koth) was reluctant to proceed with ACL surgery based

on his medical judgment concerning Howell’s limited ability

to recover from the surgery while in prison. Throughout the

months following Howell’s meniscus surgery, Dr. Trost regu‐

larly submitted requests for outside treatment and diagnosis

on Howell’s behalf. The reviewing doctors regularly assessed

whether it was yet medically appropriate or “absolutely nec‐

essary” for him to receive ACL surgery, frequently advising

instead that Howell continue with the recommended physical

therapy.

Howell’s situation is distinguishable from Shields, where

delay made the necessary shoulder surgery impossible and

resulted in a serious and permanent impairment that could

have been avoided. Shields v. Illinois Dep’t of Corrections, 746

F.3d 782, 785 (7th Cir. 2014) (affirming summary judgment for

Wexford because isolated incidents such as a referral to the

wrong doctor and a failure to promptly discipline for that

mistake did not add up to a pattern to support an inference of

unconstitutional custom or practice under Monell). Howell ul‐

timately did receive ACL reconstruction surgery. There is no

evidence that the delay resulted in permanent impairment.

Not treating pain can be an Eighth Amendment violation,

of course, even if it is a matter of only minutes or hours. See,

e.g., Estelle v. Gamble, 429 U.S. 97, 103 (1976) (“The infliction of

such unnecessary suffering is inconsistent with contemporary

standards of decency....”); Grieveson v. Anderson, 538 F.3d 763,

778–80 (7th Cir. 2008) (guards could be liable for delaying

24 No. 19‐3210

treatment for painful broken nose by at least a day and a half);

Edwards v. Snyder, 478 F.3d 827, 830–32 (7th Cir. 2007) (plain‐

tiff stated a claim against prison doctor for deliberate indiffer‐

ence after two‐day delay in treatment for open dislocated fin‐

ger for no medical reason); Cooper v. Casey, 97 F.3d 914, 916–

17 (7th Cir. 1996) (presenting jury question “whether the

plaintiffs were in sufficient pain to entitle them to pain medi‐

cation within the first 48 hours after the beating”). But the ev‐

idence shows beyond reasonable dispute here that decisions

about how best to treat Howell’s knee were based on medical

judgment, primarily Dr. Koth’s recommendation to proceed

to ACL surgery only if and when it became “absolutely nec‐

essary.” With that in mind, the delays caused by Wexford’s

collegial review process do not show deliberate indifference

to Howell’s medical needs.

One final note: Howell also argued on appeal that the dis‐

trict court erred by granting defendants judgment as a matter

of law on his demands for punitive damages. Howell points

out that we have said that the high deliberate‐indifference

standard for liability under the Eighth Amendment is not

lower than the standard for punitive damages. See Walsh v.

Mellas, 837 F.2d 789, 801–02 (7th Cir. 1988). Because defend‐

ants are entitled to judgment as to liability, however, we need

not reach the issue of punitive damages.

The judgment of the district court is AFFIRMED.