Gregory Smith v. Jalate Hunt

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1405

G REGORY S MITH,

Plaintiff-Appellant,

v.

C HICAGO P OLICE O FFICERS JAL ANCE H UNT,

JOSE C ORTES, JOSEPH M ARTIS, P ATRICK B OYLE,

D ANIEL B INFA, D ANIELLE N. P HILP,

W ILLIAM R. W HELEHAN, AND

S ERGEANT R ICHARD D OWLING,

Defendant-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08-cv-6982—Virginia M. Kendall, Judge.

A RGUED S EPTEMBER 19, 2012—D ECIDED F EBRUARY 14, 2013

Before B AUER, K ANNE, and W OOD , Circuit Judges.

K ANNE, Circuit Judge. Following the dislocation and

eventual amputation of his finger, Gregory Smith filed

suit against a group of Chicago police officers. Smith

alleged that their excessive force and failure to provide

2 No. 11-1405

medical attention during two separate arrests led to his

amputation. During trial, the district court allowed the

defense to present evidence of Smith’s heroin use prior

to one of the arrests. After the jury found for the defen-

dants, Smith brought this appeal, in which he argues

that the admission of that evidence and the references

made to it during the defense’s closing argument

denied him a fair trial. Finding that the admission of

the evidence did not constitute an abuse of the district

court’s discretion and that the improper statement

did not affect the outcome of the trial, we affirm.

I. B ACKGROUND

A. The Arrests and Injury

On December 7, 2007, Gregory Smith was arrested by

Chicago Police Officers JaLance Hunt and Jose Cortes with

narcotics on his person. Smith alleges that, during the

arrest, the officers stomped on his hand several times and

beat him in various other ways. The officers deny such

behavior. Although the actions of the parties during the

arrest are disputed, by the time Smith arrived at the police

station around 12:05 a.m. on December 8, he had an

obvious finger injury. Said a sergeant who saw

the finger: “one of his fingers wasn’t in line with the rest

of the fingers on his hand.” (R. 132 at 67.) Soon there-

after, officers delivered Smith to Holy Cross Hospital,

where a triage nurse diagnosed him with a dislocated

finger.

Dr. Danielle Wallace examined Smith at around

2:15 a.m. This interaction became important to Smith’s

No. 11-1405 3

lawsuit against the officers and, later, this appeal.

Dr. Wallace determined that Smith’s finger needed to be

moved back into place but also that some sort of pain-

killer should be administered during the potentially

unpleasant procedure. Dr. Wallace testified that she

first recommended a “digital block”—a local anesthetic

that would numb Smith’s finger and the area around it.

According to Dr. Wallace’s testimony, however, Smith

declined the anesthetic and instead requested “Dilaudid”

(a morphine derivative similar in chemical composition

to heroin). Smith denied requesting any specific medica-

tion or even knowing what painkiller he received.

Dr. Wallace first administered morphine, and when that

failed to reduce the pain sufficiently, proceeded to ad-

minister Dilaudid. She then re-set, splinted, and bandaged

Smith’s finger.

Smith returned to the hospital on December 22 for a

follow-up appointment. By that point, his finger was

swollen and infected. In fact, the finger was no longer

medically alive. The treating physician told Smith that

amputation might be necessary and scheduled another

appointment for December 29.

On December 28, before Smith could return for

that appointment, he was again arrested by Officer Cortes.

Smith again alleges mistreatment during this arrest—

specifically officers kneeling on and slapping his injured

hand—which the officers again deny. At the time of

Smith’s arrest, officers found Smith sitting on a sofa in

his home with drugs splayed out in front of him. It was

apparent that the condition of his finger had worsened:

4 No. 11-1405

the bandage was emitting a strong odor and oozing.

After processing Smith at the police station, officers

once again brought him to Holy Cross Hospital, where a

doctor determined that the finger required amputation.

The dislocation and subsequent amputation—a result,

Smith says, of the officers’ behavior during his ar-

rests—formed the basis of Smith’s lawsuit against

the defendants.

B. Legal Proceedings

Smith’s amended complaint alleged excessive force,

battery, failure to intervene, and failure to provide

medical attention. During a pre-trial deposition, Smith

admitted to using heroin five or six hours before the

December 7 arrest. Smith subsequently filed a motion in

limine to suppress this evidence at trial. The trial court

initially rejected Smith’s motion. The court found that

the heroin use could be relevant to Smith’s behavior

during the arrest and to whether he complained about

the pain of his injury to the officers. Prior to trial, how-

ever, the court reversed itself; evidence of Smith’s

heroin use on December 7 would no longer be allowed.

In its ruling, the court found that evidence of Smith’s

heroin use would invite speculation by jurors, who

would not “know what the effect of heroin would be

on an individual under those circumstances.” (R. 124 at 35.)

In the midst of trial, however, the court reversed

itself yet again. The precipitating events were

Dr. Wallace’s testimony, in which she described Smith

specifically requesting Dilaudid, and Smith’s testimony

No. 11-1405 5

denying that he made such a request. The court found

that Smith had created a dispute to which evidence of

his heroin use was relevant: whether and why he

requested a certain pain reliever. In other words, Smith,

the court said, had “opened the door” for evidence of

his heroin use to come in. The defense could introduce

evidence of heroin use to suggest that Smith had a

motive other than pain for requesting Dilaudid, which

is chemically similar to heroin. At the same time, the

court purported to limit potential use of the testimony.

Evidence of Smith’s heroin use, the court said, was only

relevant to the calculation of damages: how much pain

did Smith need to be compensated for? (R. 130 at 40.)

(“That goes to damages now, not to his ability to recall,

not to his behavior during the arrest. It goes to dam-

ages.”). Following this ruling, the defendants elicited

testimony from Smith, in front of the jury, regarding

his heroin use on December 7.

The court’s ruling, however, did not affect the admis-

sion of other drug-related testimony. Indeed, the jury

heard substantial evidence of Smith’s involvement

with drugs generally and narcotics specifically. It heard

that he had been convicted of a narcotics-related offense

in 2006. (R. 130 at 10.) It heard that he was arrested

with narcotics on his person on December 7. (R. 128 at

48, 61.) It heard that the officers were at Smith’s house

on December 28 pursuant to complaints of narcotics

sales. (R. 125 at 82; R. 126 at 13.) It heard that on

December 28, the officers found Smith surrounded by

drugs. (R. 125 at 85-86; R. 126 at 21.)

6 No. 11-1405

During the trial, the jury heard from several of the

police officers; Smith’s mother and uncle; Dr. Wallace;

Dr. Michael Vender, a defense expert who examined

Smith’s medical records and deposition testimony;

several of Smith’s neighbors, including potential eye-

witnesses; and, Smith himself. Smith’s attorneys cross-

examined Dr. Wallace in great depth on her medical

decisions and whether the various treatments she pre-

scribed were medically necessary (they were, she said)

and presented a consistent story of abuse at the hands of

the officers. They also elicited testimony from Smith’s

neighbors, who generally corroborated Smith’s version

of events. In response, the defense thoroughly questioned

the neighbors about their prior interactions with Smith

in order to cast doubt on their stories, and presented

testimony from Dr. Vender, who said that Smith’s

injuries could not have occurred in the manner he de-

scribed. The defense also presented evidence through

Dr. Wallace to establish that the length of time Smith

waited for medical treatment was not unreasonable

and therefore could not justify Smith’s claims for failure

to provide medical attention.

Despite the court’s instruction to limit discussion of

the December 7 heroin use to the issue of damages, defense

counsel argued the following during closing:

“Why—why didn’t he complain? The officers can’t

say—can’t get in his head and say well, this is

why he didn’t complain earlier. Is it because his

fingers were frozen because he was standing

outside for hours in the freezing cold? Is it

because he took heroin earlier that day?”

No. 11-1405 7

(R. 132 at 145.) Smith immediately objected to this state-

ment, and the court sustained the objection. At the close

of the case, the court instructed the jurors that closing

arguments are not evidence and that they should base

their verdict on their recollections of the evidence. The

court offered to issue a further curative instruction

aimed at limiting consideration of the heroin use testi-

mony, but Smith declined this offer.

After the jury returned a verdict for the defendants,

Smith timely filed this appeal. He alleges that the trial

court abused its discretion in admitting the evidence

and that the improper statements made during closing

argument merit a new trial. In so doing, Smith argues

that (1) the evidence was irrelevant to his case; (2) even

if relevant, the evidence was overly prejudicial and

should have been excluded; (3) introducing evidence of

his heroin use constituted an improper character attack;

and, (4) defense counsel made an improper closing argu-

ment referencing the evidence of heroin use. We

address each of these arguments below.

II. A NALYSIS

A. Admission of the Evidence

This court reviews claims that evidence has been im-

properly admitted for an abuse of discretion. EEOC v.

Mgmt. Hospitality of Racine, Inc., 666 F.3d 422, 440 (7th

Cir. 2012). A decision is an abuse of discretion only if

“no reasonable person would agree with the decision

made by the trial court.” United States v. Thomas, 453 F.3d

8 No. 11-1405

838, 845 (7th Cir. 2006). But an abuse of discretion alone is

not enough to warrant granting a new trial. Mgmt. Hospital-

ity of Racine, 666 F.3d at 440. Rather, we will disrupt

a trial court’s decision only if the abuse violated a party’s

substantial rights. Florek v. Vill. of Mundelein, 649

F.3d 594, 602 (7th Cir. 2011). To meet that threshold, a

significant chance must exist that the ruling affected the

outcome of the trial. Hasham v. Cal. State Bd. of Equaliza-

tion, 200 F.3d 1035, 1048 (7th Cir. 2000). We do not find

convincing any of Smith’s arguments that the trial

court abused its discretion by admitting evidence of the

December 7 heroin use. Even if it had, we do not find

that the admission affected the outcome of the trial

such that it violated Smith’s substantial rights.

1. Admission was not an abuse of discretion

a. Relevance

Smith’s first two arguments can be collapsed into one

discussion of relevance; he argues that the testimony

was not relevant to his legal claims or was at least irrele-

vant absent expert testimony on heroin’s effects on a

user (which the defense did not provide).

“Evidence is relevant if: (a) it has any tendency to make

a fact more or less probable than it would be without

the evidence; and (b) the fact is of consequence in deter-

mining the action.” Fed. R. Evid. 401. The amount of pain

Smith experienced on December 7 and 8 was clearly

“of consequence” to the proceedings—Smith sought dam-

ages for pain and suffering, and his attorneys ar-

No. 11-1405 9

gued throughout the trial that Smith’s award should

be significant because of the high level of pain that his

client endured. (R. 132 at 135) ([Mr. Neslund, Smith’s

counsel, during closing argument] “When you think of

the pain and suffering, think about three things back

there. How bad was it? How much did it hurt? Where

on the scale of intensity this pain was? How long did

it last? Where on the scale of time was he left in pain?”).

Therefore, evidence that might make a specific level of

pain more or less probable is relevant to the proceeding.

We do not think that the trial court abused its discretion

by determining that evidence of Smith’s heroin use

could be so-described.

Furthermore, the level of pain Smith experienced

during the evening of December 7 and morning of Decem-

ber 8 was very much under dispute. Smith contends

that his “pain level of 10 out of 10 at the ER was not

at issue in this case.” (Appellant’s Br. at 13.) Although

Smith’s characterization of the record may be true in a

sense, it is also incomplete. No party disputes that Smith

described his pain as “10 out of 10” in the emergency

room. Smith’s description alone, however, did not con-

clusively determine the level of pain that he experienced

(and could be compensated for). Indeed, Smith’s own

attorneys did not rely on Smith’s description alone

and repeatedly used third party descriptions of Smith

and his injury to illustrate vividly the extent of Smith’s

pain and suffering. (R. 127 at 34-35) (“[Mr. Neslund]

Q. Now, a complete dislocation such as we see in this

X-ray, would you agree that that is a painful injury? [Dr.

Vender] A. Yes . . . . Q. And, Doctor, is there severe pain

10 No. 11-1405

with range of motion of the finger when you have this kind

of injury?”); (R. 132 at 51) ([Mr. Neslund, reading stipu-

lated evidence]: “A visual check of Gregory Smith was

performed and it was determined that Mr. Smith was

in obvious pain or had an obvious injury.”); (id. at 77)

(“[Mr. Robertson] Q. Now, when you saw Greg Smith

at the station, he had a visible dislocation of a finger,

correct? [Officer Boyle] A. When I looked at him yes . . . it

appeared as if his finger were bent up.”). Smith’s

attorneys also tried to rely on the nature and dosage of

the painkillers that Smith received at the emergency

room to establish the level of pain that Smith deserved

compensation for. (R. 127 at 40) (“[Mr. Neslund] Q. And

that was to treat the pain he was experiencing once

he arrived; is that correct? [Dr. Vender] A. Well,

morphine is for pain . . . . Q. Right now, am I correct

that that [Dilaudid] is a pain medication administered in

emergency rooms that is stronger than morphine? A. It’s

not necessarily stronger. It’s just—it’s different. Q. It’s not

eight times stronger than morphine, Doctor?”); (id. at 42)

([Mr. Neslund] Q. Dr. Vender, given the degree of pain as

documented in the emergency room records, the pain

medications administered to Mr. Smith, and the X-ray

you reviewed, is it fair to say that Mr. Smith suffered

a severely painful injury the night of December 7th?

A. It would appear so.”) Given this testimony, the defen-

dants could permissibly offer an alternative explana-

tion for the events of that night, one that would

illustrate a lower level of pain and justify a lower level

of damages. Particularly, they could argue that the

nature and dosage of the pain medications prescribed

No. 11-1405 11

for Smith—medications that the defense argued Smith

himself requested—could be explained by factors other

than pain, such as a desire to ingest opiates generally.

We think that a reasonable person might find that

Smith’s admitted heroin use earlier in the day could

be relevant to that explanation.

Smith focuses his relevance argument on whether

the evidence of his heroin use had any tendency to

make his excessive force claims more or less probable.

We find this argument misplaced. The trial court

admitted the evidence for the sole purpose of deter-

mining damages for pain and suffering. Evidence, how-

ever, does not need to be relevant to each and every

claim to qualify as “relevant” for purposes of admissi-

bility. Here, evidence of Smith’s heroin use was relevant

to the events at the hospital and how they related to his

level of pain and suffering. That was enough for the

court to admit the testimony.

Smith’s contention that this evidence was irrelevant

without expert testimony of heroin’s effect is similarly

misplaced, as Smith appears to misapprehend the

reason the trial court admitted the evidence. Smith con-

tends that “[t]he effect of heroin, if any on Smith’s

ability to feel and articulate pain during the time

frame from his arrest through his treatment, was clearly

a topic that was beyond the knowledge of an average

juror.” (Appellant’s Br. at 14.) However true that state-

ment may be, Smith’s “ability to feel and articulate

pain” was not what was at issue for the admission of

this evidence—his motivation for allegedly requesting

12 No. 11-1405

a specific painkiller by name was. We think it is within

the ken of the average juror to appreciate the basic rela-

tionship between two opiates (in this case, heroin

and Dilaudid), and to reasonably conclude that a desire

for one might be related to a desire for the other.

Although expert testimony on the effects of either

heroin or Dilaudid might have been useful, it was not

an abuse of discretion for the trial court to admit evi-

dence of Smith’s heroin use without such testimony.

b. Unfair prejudice

Smith next argues that even if the evidence were rele-

vant, its admission was overly prejudicial and should

have been excluded under Fed. R. Evid. 403. We are

unconvinced. Evidence should be excluded under Fed.

R. Evid. 403 “ ‘if its probative value is substantially out-

weighed by the danger of unfair prejudice.’ ” Cobige v.

City of Chicago, 651 F.3d 780, 784 (7th Cir. 2011) (quoting

previous version of Fed. R. Evid. 403). Evidence is

unfairly prejudicial where “its admission makes it likely

that the jury will be induced to decide the case on an

improper basis, commonly an emotional one, rather than

on the evidence presented.” Thompson v. City of Chicago, 472

F.3d 444, 456-57 (7th Cir. 2006). Whether evidence is

“probative” is a similar question to whether it is “rele-

vant.” Compare Black’s Law Dictionary 1323 (9th ed. 2009)

(defining “probative” as “[t]ending to prove or disprove”),

with id. at 1404 (defining “relevant” as “[l]ogically con-

nected and tending to prove or disprove a matter in

No. 11-1405 13

issue.”). Here, the defendants contended that evidence of

Smith’s heroin use would disprove the theory that Smith

required (and perhaps requested) the medication in the

hospital solely for pain. Just as we think evidence of

Smith’s drug use on December 7 was relevant to the

proceedings, we also find that it had probative value.

“Because all probative evidence is to some extent prej-

udicial, we have consistently emphasized that Rule

403 balancing turns on whether the prejudice is un-

fair. ” United States v. McKibbins, 656 F.3d 707, 712 (7th

Cir. 2011). We have previously found evidence

unfairly prejudicial, for example, where it was sig-

nificantly more inflammatory than other evidentiary

alternatives, see United States v. Loughry, 660 F.3d 965, 973-

74 (7th Cir. 2011) (finding that the introduction of

“hard core” pornography shortly before the trial’s con-

clusion caused unfair prejudice to a defendant who

stood accused of distributing only “lascivious exhibi-

tion” pornography, when introducing the latter type

would have equally served the government’s purposes),

or where the contested evidence conveyed a false or

misleading impression to the jury, cf. United States v.

Hanna, 630 F.3d 505, 512 (7th Cir. 2010) (finding that a

defendant was not unfairly prejudiced when he was

“prosecuted for exactly what the evidence depict[ed]”)

(internal brackets omitted).

Here, we cannot find that evidence of Smith’s drug

use on December 7 was unfairly prejudicial. Smith argues

that admitting evidence of the December 7 heroin use

“undoubtedly diverted the jury’s attention from its

14 No. 11-1405

task” and “allowed the jury to decide against Smith not

because his rights were violated, but because he used

illegal drugs.” (Appellant’s Br. at 23.) However, the

defense presented to the jury a substantial amount

of evidence on Smith’s involvement with narcotics.

For example, the jury heard that Smith was arrested on

December 7 with drugs in his pocket and on December 28

with drugs laid out in front of him. The jury heard

that officers went to Smith’s house on December 28 to

inquire about Smith’s association with a drug dealer.

Given the other evidence of narcotics involvement and

use before the jury, we do not find Smith’s argument

credible. Evidence of Smith’s December 7 heroin use

was neither significantly more inflammatory than the

other drug evidence, nor did it convey a false impres-

sion. We do not think that it was an abuse of discretion

for the trial court to decide that evidence of Smith’s

drug use was not unfairly prejudicial when other evi-

dence linking him to narcotics had been properly admit-

ted. (R. 130 at 47) (“[I]t’s not overly prejudicial . . . when we

have heard from this defendant that he has a possession

with intent to distribute conviction, that he has two

possession drug convictions, that he had drugs on him . .

. .”).

c. General character attack

Similarly, we cannot conclude that admitting Smith’s

testimony constituted a general character attack on

Smith that ran afoul of Fed. R. Evid. 404. Fed. R. Evid. Rule

404(b)(1) prohibits the use of evidence of a “crime, wrong,

No. 11-1405 15

or other act . . . to prove a person’s character in order to

show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. Rule 404(b)(2)

provides, however, that such evidence may be admissible

for a range of other uses, including “proving motive.” As

we explained above, the testimony was relevant to

Smith’s motivation for allegedly requesting Dilaudid. The

district court’s prescribed use of the evidence plainly

falls within the text of Fed. R. Evid. 404. We therefore

cannot conclude that it was an abuse of the trial court’s

discretion to permit the admission of testimony on

that basis.

2. Admission did not affect the outcome of the trial

Even if we were to accept that the trial court abused

its discretion in admitting this evidence, we would only

disturb the court’s ruling if there was a significant

chance that the error affected the outcome of the trial.

Hasham, 200 F.3d at 1048. We do not find that to be the

case here. As described above, the defense introduced

a substantial amount of evidence about Smith’s involve-

ment with narcotics to the jury. We have already held

that evidence of Smith’s December 7 heroin use had

some probative value and caused no unfair prejudice

to him. We similarly find it unlikely, in light of the

other drug-related evidence admitted, that there was a

“significant chance” that the contested evidence alone

changed the outcome of the trial. Cf. United States v.

Jackson, 540 F.3d 578, 593 (7th Cir. 2008) (finding error

16 No. 11-1405

harmless where a district court excluded statements that

could have illustrated defendants’ knowledge or intent

when other evidence tended to show the same thing).

Our analysis is not complete, however. We must also

consider the general strength of the government’s case.

McKibbins, 656 F.3d at 713. Here, there was significant

evidence presented that contradicted Smith’s version

of events. Dr. Wallace testified that she did not observe

other injuries on Smith in the emergency room, which

calls into question his claims of excessive force. (R. 127

at 103-05.) Dr. Vender, the defense expert, further

testified that Smith’s injury could not have been caused

through the mechanism Smith described. (R. 127 at 15-26.)

(“[Mr. Nathan, defense counsel] Q. [I]f in a stomping

motion, two or three times, is it physically, scientifically,

or medically possible to get hyperextension, movement

back, or lateral deviation, side to side? [Dr. Vender]

A. No . . . . Q. And what was your opinion about the mech-

anism of the injury? A. [I]t didn’t happen according

to the way it was described in the deposition by

Mr. Smith, the stomping.”) The defense also presented

significant evidence that any delay in providing Smith

with medical care was not unreasonable. (R. 127 at 98)

(normal wait time at the hospital was in the in the 3-6

hour range, and Dr. Wallace saw Smith within an hour

of arrival.) Finally, there was competent testimony

from Dr. Vender that Smith’s finger was medically

dead prior to December 28, such that the officers’ actions

that day could not have been responsible for any pain or

its ultimate amputation. (R. 127 at 31) (“[Mr. Nathan]

No. 11-1405 17

Q. [D]o you have an opinion with regard to what point

in time Mr. Smith’s left ring finger was no longer viable

or needed to be taken off or amputated? [Dr. Vender]

A. Sometime before December 22, 2007.”). Given the

extent of this evidence, we find that there was a low

probability, and certainly below the necessary “significant

chance,” that Smith’s testimony about his heroin use

on December 7 changed the outcome of the trial. As

such, any error in its admission cannot be the basis

for reversal.

B. Closing Argument

The defendants’ attorney clearly made an improper

statement in his closing argument. Despite the court’s

instruction that the December 7 heroin use was only

relevant to the damages calculation, defense counsel

attempted to tie the heroin use to Smith’s actions during

the arrest: “Why—why didn’t he complain? . . . Is it

because he took heroin earlier that day?” (R. 132 at 145.)

“Improper remarks during a closing argument warrant

reversal of the judgment only if the remarks influenced

the jury in such a way that substantial prejudice resulted

to the opposing party.” Gruca v. Alpha Therapeutic Corp.,

51 F.3d 638, 644 (7th Cir. 1995) (internal quotation marks

omitted). Reversible error occurs only if the statement

was “plainly unwarranted and clearly injurious.” Jones

v. Lincoln Elec. Co., 188 F.3d 709, 730 (7th Cir. 1999).

We cannot conclude that the remarks, improper though

they may have been, substantially prejudiced Smith

18 No. 11-1405

such that the jury’s verdict should be overturned and

a new trial ordered. This court has been loathe to find

that improper comments made during closing argument

rise to the level of reversible error. See, e.g., Schandelmeier-

Bartels v. Chi. Park Dist., 634 F.3d 372, 388 (7th Cir. 2011)

(“We have stated repeatedly that improper comments

during closing argument rarely amount to reversible

error.”); Miksis v. Howard, 106 F.3d 754, 764 (7th Cir. 1997);

Doe v. Johnson, 52 F.3d 1448, 1465 (7th Cir. 1995).

The lone case that Smith cites to support his argument

illustrates the high level of impropriety and prejudice

necessary for improper statements during a closing

argument to merit a new trial. In Gruca v. Alpha

Therapeutic Corp., an attorney for a pharmaceutical com-

pany defendant improperly and falsely stated during

his surrebuttal that the plaintiffs could have sued the

U.S. Food and Drug Administration rather than the

defendant. 51 F.3d at 645. The district court overruled

the plaintiffs’ objections and “compounded its error by

instructing the jury that ‘government entities are sued

all the time.’ ” Id. In essence, the improper statements

“became a statement of the district court.” Id. More-

over, because these “statements were made during

surrebuttal argument, the plaintiffs had no opportunity

to reply.” Id. at 645-46.

Nothing of the sort occurred in this case. The district

court immediately sustained Smith’s objection, issued a

curative instruction, and even offered a further curative

instruction that Smith declined. The court did not

adopt the statement or compound the error. There is a

No. 11-1405 19

longstanding presumption that “curative instructions

to the jury mitigate harm that may otherwise result

from improper comments” during closing argument.

Schandelmeier-Bartels, 634 F.3d at 388; see also Soltys v.

Costello, 520 F.3d 737, 744 (7th Cir. 2008) (“We presume

that juries follow the instructions given them by the

court.”); 3M v. Pribyl, 259 F.3d 587, 600 (7th Cir. 2001)

(“[A]bsent evidence to the contrary, we assume that

juries follow a court’s instructions.”); Jones, 188 F.3d at

732 (“We have repeatedly found that jury instructions

of this sort [reminding the jury to base its verdict on

admitted evidence rather than counsels’ statements]

mitigate any prejudicial effect of potentially improper

remarks made by counsel . . . .”). As proof that the jury

could not follow the instructions given, Smith offers

nothing other than the fact that it decided against him.

We do not think that is enough. On these facts, we

cannot conclude that the improper statements caused

such substantial prejudice to Smith that a new trial

is warranted.

III. C ONCLUSION

For the foregoing reasons, we A FFIRM the judgment of

the district court.

20 No. 11-1405

W OOD , Circuit Judge, concurring in the judgment.

Somehow, in the late hours of December 7, 2007, Gregory

Smith’s finger was seriously injured as he was being

arrested by Chicago Police Officers JaLance Hunt and

Jose Cortes. The injury was obvious enough to the

officers that they transported Smith to Holy Cross

Hospital after booking him. There he was treated for

a dislocated finger—an injury that appears clearly on

x-rays that were taken at the hospital. Unfortunately,

the treatment was not successful. By December 22, two

weeks later, the finger was necrotic; after another week

had passed and Smith was arrested again, the police

returned him to the hospital and the doctors realized

that the finger had to be amputated. It was. Smith then

sued the officers under 42 U.S.C. § 1983, asserting that

they had used excessive force in both arrests. After a trial,

a jury ruled in favor of the defendant officers.

Before this court, Smith’s principal argument is that

the district court erred in admitting evidence showing

that he had used heroin at some point earlier in the day

on December 7. My colleagues believe that the district

court did not abuse its discretion in permitting this evi-

dence to be admitted for the purpose of showing what

damages Smith suffered. With respect, I cannot join

them in this assessment. I thus do not find it necessary

or appropriate to analyze the admission of the contested

evidence under Federal Rules of Evidence 403 or 404(b).

Nevertheless, I agree with the majority that the admis-

sion of the heroin-use evidence was harmless error, and on

that basis alone, I concur in the judgment of affirmance.

No. 11-1405 21

The evidence in question came from a pre-trial deposi-

tion in which Smith admitted to using heroin five or

six hours before his arrest on December 7. He provided

no additional details about that event or about his

heroin use in general. The district court first ruled that

the evidence could come in, then that it had to stay out,

and finally that it could be admitted for the limited pur-

pose of proving damages. In so doing, it rejected both

Smith’s general relevance objection and his argument

that the evidence, if admitted, had to be accompanied by

expert testimony. Smith is right on both points. Standing

alone, the evidence was meaningless. Even for the issue

of damages, it supported nothing but speculation on the

jury’s part. With an expert and with the addition of

critical facts, these flaws might have been cured, but that

never happened.

It is impossible in the abstract to have any idea what

effect Smith’s use of heroin earlier in the day might have

had. The possibilities range from zero to significant, but

we have no way of selecting a point on that spectrum.

The effect of heroin on the human body varies according

to a number of variables, including (but probably not

limited to) (1) the amount taken, (2) the purity of the

substance ingested, (3) the method of administration,

(4) user tolerance (because addicts typically need a

greater dose to achieve the same result), and (5) time

since the dose. See generally NYUSteinhardt, Center for

Health, Identity, Behavior & Prevention Studies, Depart-

ment of Applied Psychology, Substances—Heroin, avail-

able at http://steinhardt.nyu.edu/appsych/chibps/heroin

(last visited Feb. 4, 2013); The Gateway Foundation for

22 No. 11-1405

Alcohol & Drug Treatment, The Facts About Heroin,

available at http://recovergateway.org/heroin-abuse/

heroin-facts/ (last visited Feb. 4, 2013) (“Because the

strength of heroin varies and its impact is more unpredict-

able when used with alcohol or other drugs, the user never

knows what might happen with the next dose.”); BBC

Health, Heroin, available at http://www.bbc.co.uk/health/

emotional_health/addictions/heroin.shtml#effects_of_

heroin (last visited Feb. 4, 2013) (“The effects vary de-

pending on how the heroin is taken.”). The record

reveals nothing about any of these essential facts. If

Smith had taken a small dose and his body was inured

to heroin from habitual use, the effects might have worn

off entirely by the time of his arrest at 11:25 p.m. If the

dose had been large, the purity high, and Smith’s user

tolerance low, then he might have still been experiencing

some effects. The period during which a dosage is

effective, however, appears to be closer to three hours,

not five or six. Id. When the district court first excluded

the heroin use, it recognized that this foundation was

needed to make the evidence relevant: “we don’t know

how much he took, and no one’s here who’s going to

testify . . . how quickly the [drugs] assimilate into his

body, how quickly would he recall, how quickly would

he be clear headed . . . how long would the drug, if at all,

numb his pain . . . . [T]hose are all questions that without

an expert on [the defense’s] side to say, it’s speculation.”

In my opinion, therefore, in the absence of expert testi-

mony tending to show that there was any remaining

physiological effect from the heroin Smith had ingested

earlier in the day, this evidence had no relevance at all,

No. 11-1405 23

even to the damages question. The only other theory on

which my colleagues rely is the notion that Smith, a

heroin user, would be more likely to know that the pain-

killer Dilaudid is an opiate, see http://www.drugs.com/

dilaudid.html (last visited Feb. 4, 2013). Nothing in the

record tells us that Smith knew this, even if we credit

the testimony indicating that he asked for Dilaudid by

name. There is no evidence that his heroin supplier

was pushing illicit Dilaudid pills, rather than getting

heroin the usual way through criminal channels. Many

people know the names of common drugs without being

aware of the precise composition of those drugs or their

generic names. This also rules out any use of the request

for Dilaudid to show that Smith was just looking for

another fix, rather than seeking something to alleviate

the intense pain of a dislocated finger—pain he described

as a 10 out of 10. (The practice of measuring pain on a

scale of 0 to 10, with 0 being no pain and 10 being the

worse imaginable, is widely used by physicians. See

WebMD, Living with Chronic Pain, R. Morgan Griffin,

Using the Pain Scale: How to Talk About Pain, avail-

able at http://www.webmd.com/pain-management/

chronic-pain-11/pain-scale (last visited Feb. 4, 2013)

(commenting that pain scales “have a lot of good research

behind them); TIPNA (The International Pudendal Neu-

ropathy Association) website, Jack Harich, The Compara-

tive Pain Scale, available at http://www.tipna.org/

info/documents/ComparativePainScale.htm (last visited

Feb. 4, 2013).) Because we do not know how much

heroin Smith ingested, and whether the effects had worn

off by the time Smith was hospitalized, we can only

24 No. 11-1405

speculate that he might have been craving another fix

less than 12 hours after ingesting the last dose. While

some sources indicate that frequent users may crave

heroin “fixes” several times a day, BBC Health, Heroin,

supra, others explain that heroin users typically begin

to experience withdrawal and severe cravings 48 to

72 hours after their last dose, and no one argues that

Smith was anywhere close to that point. See NYUStein-

hardt, Substances—Heroin, supra; Gateway Foundation

for Alcohol & Drug Treatment, Risks of Using Heroin,

available at http://recovergateway.org/heroin-abuse/

heroin-risks/ (last visited Feb. 4, 2013). Even the district

court acknowledged at one point that without knowing

how much heroin Smith ingested or having expert testi-

mony on how heroin would have affected Smith, the

jury would have no basis for inferring that the heroin

altered Smith’s conduct or ability to perceive pain at

the time of the incident. As I have already said, nothing

but unfounded speculation existed to answer such im-

portant questions as whether the unknown quantity of

heroin had worn off, whether Smith was already

craving another fix, whether Smith knew that Dilaudid

is an opiate, and the degree to which Dilaudid has

effects that satisfy a craving for heroin. In short, I cannot

accept this alternative theory either.

Like the majority, I conclude that the prosecutor’s

improper statement in the closing argument did not

prejudice Smith so seriously as to require a new trial. The

district court intervened promptly and appropriately,

and Smith gives us no reason to think that the jury did

not heed those instructions.

No. 11-1405 25

Trials are seldom perfect, and this one was no excep-

tion. But Federal Rule of Civil Procedure 61 does not

demand perfection. To the contrary, it provides that

“[u]nless justice requires otherwise, no error in admitting

or excluding evidence—or any other error by the court

or a party—is ground for granting a new trial.” Justice

does not require otherwise here, in my view, despite

the fact that I regard the admission of the evidence

about Smith’s heroin use earlier in the day of his arrest

as an error. For these reasons, I concur in the judgment.

2-14-13