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
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
(...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