Roe v. Elyea

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 09-1723 & 09-2107

S ANDY R OE, as Administrator of the Estate of
E DWARD J. R OE, Deceased, et al.,
Plaintiffs-Appellants,
Cross-Appellees,
v.

W ILLARD O. E LYEA, in his individual capacity,

Defendant-Appellee,
Cross-Appellant,
and

M ICHAEL P UISIS, in his official capacity as Medical
Director of the Illinois Department of Corrections,

Defendant-Appellee.

Appeals from the United States District Court
for the Central District of Illinois.
No. 3:06-cv-03034-HAB-CHE—Harold A. Baker, Judge.

A RGUED JANUARY 22, 2010—D ECIDED JANUARY 28, 2011
2 Nos. 09-1723 & 09-2107

Before R IPPLE and R OVNER, Circuit Judges, and ST. E VE,
District Judge.Œ
R IPPLE, Circuit Judge. Edward Roe, Anthony Stasiak,
Timothy Stephen and Jonathan Walker are current and
former inmates of the Illinois Department of Corrections
(“IDOC”) who were diagnosed with hepatitis C during
or prior to their time in IDOC custody. After unsuccessful
attempts to obtain certain medical services for their
disease while incarcerated, they brought this action
against Dr. Willard Elyea, the former Medical Director of
IDOC.1 The plaintiffs alleged that the diagnostic and
treatment protocols for IDOC inmates with hepatitis C
displayed deliberate indifference to their serious med-
ical needs and thus violated the constitutional prohibi-
tion on cruel and unusual punishment. They sought
relief under 42 U.S.C. § 1983. After a jury awarded sub-
stantial compensatory and punitive damages to the
plaintiffs, the defendants moved for judgment as a matter
of law and, in the alternative, for remittitur of the
award. The district court granted in part and denied in
part the motion. The parties now cross-appeal. For the

Œ
Honorable Amy St. Eve, District Judge for the Northern
District of Illinois, is sitting by designation.
1
The plaintiffs brought the action against Dr. Elyea in both
his official and his personal capacity. At the time of trial,
Dr. Elyea had been succeeded by Dr. Michael Puisis as the
Medical Director of IDOC. Dr. Puisis was substituted as the
defendant for the official capacity claims for injunctive
relief pursuant to Fed. R. Civ. P. 25(d). See R.110 at 6-7.
Nos. 09-1723 & 09-2107 3

reasons set forth in this opinion, we affirm the judgment
of the district court.

I
BACKGROUND
A. Facts
Each of the plaintiffs claims that, during his incarcera-
tion in IDOC, he was refused or delayed treatment for
hepatitis C and that he suffered some further injury as a
result. The plaintiffs contend that Dr. Elyea, the IDOC
Medical Director from 2002-2007, knowingly instituted
a protocol for the diagnosis and treatment of hepatitis C
that fell below constitutionally acceptable standards of
medical care for inmates. To facilitate an understanding
of the specific claims, we first discuss the record evidence
about the disease and the IDOC response to it and then
discuss each plaintiff’s particular medical situation. The
only record evidence regarding the disease, as a general
matter, comes from the Federal Bureau of Prison (“FBOP”)
Clinical Practice Guidelines for the Prevention and Treat-
ment of Viral Hepatitis (the “Guidelines”) 2 and the testi-
mony of Dr. Elyea himself.

2
The FBOP Guidelines have had several iterations. For our
purposes, however, we rely primarily on the Guidelines
published in February 2003 and note when we are referencing
the October 2005 update. See Trial Exs. 3 & 4.
4 Nos. 09-1723 & 09-2107

1. Hepatitis C Diagnosis and Treatment Recommen-
dations
Hepatitis C is a disease caused by a virus known as
HCV. It has the potential to affect liver functioning. The
HCV virus has six genotypes, the first of which is the
prevalent form in the United States. HCV is transmitted
by blood-to-blood contact, including, with some fre-
quency, during tattooing or other shared-needle acti-
vities. In the acute phase, individuals may have a variety
of symptoms that are only rarely severe and may include
jaundice, nausea, anorexia and malaise. HCV infection
can resolve spontaneously from the acute phase, but an
estimated 50-85% of infected persons develop chronic
infection. Even among patients with chronic hepatitis C,
the majority are asymptomatic. One-third of persons
with chronic HCV infection show no evidence of liver
disease. However, some 10-15% of infected persons
show progressive fibrosis that leads to cirrhosis. Dr.
Elyea testified at trial that there is no reliable way of
predicting which chronic HCV patients will develop
cirrhosis. R.110 at 164. However, according to the
FBOP Guidelines upon which IDOC policy purportedly
was based, known risk factors for disease progression
include high levels of alcohol consumption, male
gender, older age and simultaneous infection with other
viruses such as HIV or HBV (the hepatitis B virus). As
of 2003, viral load (the degree of virus present in
the bloodstream of a particular individual at a particular
time) and the particular genotype of HCV were not
Nos. 09-1723 & 09-2107 5

thought to affect the risk of progression of disease.3
When the disease causes liver failure, a liver transplant
may be necessary. In addition to the risks of cirrhosis
itself, liver cancer in individuals with cirrhosis develops
at a rate of about 1-4% per year. These potentially
serious conditions frequently develop in infected indi-
viduals up to twenty or thirty years after initial infection.
Because of its usual means of transmission, HCV is a
fairly common virus in the prison population, and the
FBOP Guidelines prescribe a specific course of diagnosis
and treatment in federal facilities. The FBOP Guidelines
direct that a “baseline” evaluation should be conducted
for all inmates diagnosed with chronic hepatitis C. Trial
Ex. 3 at 39-40. That evaluation should include “at least”
a “[t]argeted history and physical examination to
evaluate for signs and symptoms of liver disease,” a
variety of blood tests, including those for ALT and AST
liver enzyme levels “and further diagnostic evaluations
as clinically warranted,” a renal function assessment,

3
The 2003 FBOP Guidelines state: “Chronic HCV infection has
an unpredictable course that is frequently characterized by
fluctuations in ALT levels that may or may not be associated
with significant liver disease. Approximately one-third of
persons with chronic HCV infection have no evidence of
liver disease.” Trial Ex. 3 at 39. “The degree of ALT elevation
does not strongly correlate with the risk of disease progression,
but persons who develop cirrhosis are more likely to have
marked elevations in serum ALT levels.” Id.; see also Trial Ex. 4
at 28 (2005 Guidelines) (“The greater the ALT level, the more
likely it is that the person has significant liver disease . . . .”).
6 Nos. 09-1723 & 09-2107

and other blood tests and vaccinations. Id. at 39-40. The
Guidelines further recommend that inmates with
chronic infection should be monitored periodically in
chronic care clinics, with the frequency of monitoring to
be based on “patient-specific factors.” Id. at 41.
A variety of tests may be used to diagnose and
evaluate the progress of disease and determine the ap-
propriateness of treatment. Although blood tests can
reveal significant and useful information such as viral
load, enzyme responses of the liver and the genotype of
the virus, liver biopsy is ultimately the only method
discussed in the Guidelines to determine the effect of the
disease on the liver. See id. at 42. The appropriateness
of treatment with antiviral therapy depends on the
extent of the disease. Biopsies are not appropriate in
all cases, however, and the Guidelines offer some direc-
tion in determining who should be a candidate. When
an inmate’s initial evaluation shows normal ALT levels,
the Guidelines direct that the test should be repeated
“several times over the next 2 to 12 months.” Id. at 42.
Persistently normal results are likely indications that
there is no marked liver disease. Id. However, even
when ALT levels are in the normal range, the Guidelines
caution that a ratio of AST/ALT greater than one “may
indicate underlying liver disease and warrant further
evaluation.” Id. at 42. When ALT levels are “minimally
elevated,” that is, less than twice normal levels, patients
may have mild liver disease but are at low risk of rapid
disease progression. Id. at 43. The Guidelines recom-
mend reevaluation in three to six months and note that
the “decision to obtain a liver biopsy in these inmates
Nos. 09-1723 & 09-2107 7

should be made on a case-by-case basis.” Id. When ALT
is twice normal or greater, the Guidelines direct that the
tests be repeated at least twice over a six-month period.
“Inmates with persistent elevations in ALT levels > twice
normal should be referred directly for liver biopsy
unless antiviral therapy is contraindicated.” Id.4 Finally,
“[i]nmates with suspected compensated cirrhosis based
on clinical and laboratory parameters should be either
referred directly for liver biopsy or treated empirically
(without biopsy confirmation).” Id.
After chronic HCV infection is confirmed and the
levels indicate that liver biopsy is appropriate, the Guide-
lines direct that certain inmates should receive treat-
ment in the form of antiviral therapy, a combination of
pegylated interferon and ribavirin. Id. at 45-47. Inmates
whose biopsies reveal “portal or bridging fibrosis and at
least moderate inflammation and necrosis” are recom-
mended to receive antiviral treatment. Id. at 44. Within
that group, “[p]ersons with severe liver disease, including
compensated cirrhosis, are at higher risk of developing
liver complications and should therefore be priority
candidates for treatment.” Id. Dr. Elyea emphasized in
his testimony at trial that the long-term efficacy of
antiviral therapy is not known and that it is not always
well-tolerated by patients. See R.110 at 167-70.

4
The Guidelines list specific contraindications for treatment.
They include active substance abuse, co-infections with HBV
or HIV and latent tuberculosis. See Trial Ex. 3 at 48-49.
8 Nos. 09-1723 & 09-2107

The Guidelines also specifically direct that HCV geno-
type should be determined prior to ordering antiviral
therapy because genotypes 2 and 3 not only have a
greater rate of positive response to treatment, but also
may be treated with only a twenty-four-week course of
the drugs, while genotype 1 requires forty-eight weeks.5
Finally, the FBOP Guidelines segregate two groups:
“Detention center/short-term inmates” and “Long-term
(sentenced) inmates.” Trial Ex. 3 at 41. The former group
“should ordinarily not be started on antiviral therapy,”
and, instead, “[t]reatment decision should be deferred
until the inmate is sentenced and redesignated or re-
leased.” Id. Sentenced inmates should be considered for
treatment in light of a variety of factors. Among those
factors is that the “best markers for determining who
should be offered antiviral therapy” are “[t]he presence
of moderate to severe fibrosis and inflammation and
necrosis on liver biopsy.” Id. at 42.
The cost of antiviral therapy to reduce the viral load
was, at the time of trial, $15,000-$20,000 per year per
patient. R.110 at 99.

2. IDOC Protocol
No documentary evidence was presented at trial of an
independent IDOC policy for inmates with chronic hepati-

5
Indeed, the 2005 version of the Guidelines indicates that
some patients with genotype 2 or 3 may respond fully to
antiviral therapy in as little as twelve weeks. See Trial Ex. 4 at 31.
Nos. 09-1723 & 09-2107 9

tis C infection. Instead, Dr. Elyea testified as to the re-
quirements for treatment in IDOC facilities. The plain-
tiffs themselves also testified about what their individual
treating physicians in the IDOC system told them, and
they submitted into the record responses received to
grievances filed requesting treatment.
Dr. Elyea stated that, in order to establish a consistent
treatment plan that covered all inmates, the decision was
made to limit follow-up testing and treatment to those
individuals who could complete a course of treatment
while still incarcerated. See R.110 at 109. In order to allow
for a work-up and for a forty-eight-week period of treat-
ment, IDOC would not consider further testing, biopsy
or therapy unless an inmate had at least eighteen
months 6 remaining in his sentence. According to Dr. Elyea,
this limitation was necessary in order to ensure that
inmates received an uninterrupted course of therapy.

6
There was some dispute about the length of time an inmate
had to have remaining on his sentence to receive testing and
treatment. More than one response to an inmate grievance
indicates that the policy required at least two years re-
maining on a sentence before an inmate would be considered
for follow-up testing and treatment, and more than one
inmate testified that this was his understanding of the policy.
See Trial Ex. 5 (Memorandum from Dave Huffman, Health
Care Unit Administrator, in response to Mr. Walker’s grievance
(Dec. 29, 2003)); Trial Ex. 5 (Memorandum from Dave Huffman,
Health Care Unit Administrator, in response to Mr. Stephen’s
grievance (Apr. 19, 2004)); R.110 at 60 (Mr. Stasiak), 77
(Mr. Stephen).
10 Nos. 09-1723 & 09-2107

Although not noted in the 2003 Guidelines, the 2005
Guidelines indicate that interrupted antiviral therapy
for hepatitis C places inmates “at risk for a number of
undesirable outcomes, including treatment failure . . . and
adverse effects from medications if the inmate does not
receive the required laboratory and clinical monitoring
upon release or transfer.” Trial Ex. 4 at 26. Dr. Elyea
testified that the blanket sentence-based policy afforded
the facilities’ health care vendors six months to complete
a pre-treatment work-up and then one year to complete
treatment, regardless of genotype. R.110 at 90.
Dr. Elyea repeatedly testified that the treatment
protocol was consistent with the FBOP Guidelines, and,
indeed, counsel for Dr. Elyea contended that the IDOC
policy was more generous to inmates than the FBOP
Guidelines required. He noted that an individual could
be an unsentenced detainee in the federal system for as
much as two years and the Guidelines recommend defer-
ring treatment until sentencing or release. In his view,
because the Guidelines sanctioned a delay of treatment
decisions for at least that period for some detainees,
IDOC policy was consistent with the Guidelines.

3. The Plaintiffs’ Specific Claims
a. Mr. Roe
In 1991, during an incarceration prior to Dr. Elyea’s
term as Medical Director, Mr. Roe was diagnosed with
hepatitis C, though his records suggested infection since
the 1970s. See Trial Ex. 5 (Grievance of Mr. Roe at 2, Mar.
Nos. 09-1723 & 09-2107 11

11, 2004); Doc. 1-279.7 He was released from custody
in 2002. During Dr. Elyea’s term, Mr. Roe was incar-
cerated for two months in 2003 and a little more than
eight months, from January 19, 2004 to October 1, 2004. He
again was incarcerated from July 2007 until his death in
June 2008. During his 2002 incarceration, Mr. Roe had
liver enzyme testing and genotype testing. His lab results
showed his ALT and AST levels at more than twice
normal.8 They further revealed that his HCV genotype
was 3a, and thus, according to the FBOP guidelines in
place in 2003, he would have been a candidate for the
shorter twenty-four-week course of antiviral therapy.
Labs were repeated in 2003 and 2004, each showing
elevated liver enzyme levels. Indeed, including the 2002
test, four of the five tests included in the record showed
not only ALT levels greater than twice normal, but also
an AST/ALT ratio of greater than one,9 which the Guide-

7
The trial exhibits, particularly the inmate medical and
grievance records, are not bound and were not bate-stamped
consistently. If a particular document was stamped, we have
used the notation “Doc.” and a stamp number to identify
the document. When no numbering is available, we have
referred to the general number of the trial exhibit with which
a particular document was admitted and then have described
the document by content and date.
8
See Doc. 1-257, LabCorp Rpt., 6/8/02 (showing ALT and AST
of 100 each, reference range 0-40).
9
See Doc. 1-306, LabCorp Rpt., 8/27/03 (showing ALT of 72 and
AST of 96, reference range 0-40 for each); Doc. 1-308, LabCorp
(continued...)
12 Nos. 09-1723 & 09-2107

lines identify as an indicator of “underlying liver dis-
ease” even when ALT levels are within the normal
range, see Trial Ex. 3 at 42.
During his 2004 incarceration, Mr. Roe was misdiag-
nosed and treated briefly for tuberculosis. See Doc. 1-283
(noting the repeated test results). Tuberculosis is a contra-
indication for antiviral therapy according to the Guide-
lines. After repeat testing revealed the incorrect diagno-
sis, Mr. Roe’s tuberculosis treatment was discontinued
on March 6, 2004, just under seven months from his
scheduled release date.
During and prior to his 2004 incarceration, Mr. Roe was
not considered a candidate for biopsy or antiviral ther-
apy. He also received no treatment following his re-
lease. When he returned to prison in 2007, after Dr. Elyea’s
term had ended but while his policy was still in place,
he again received no further testing until one week
before trial, when his liver was biopsied. He was, ac-
cording to the court, “visibly quite ill with a distended
abdomen at the trial.” R.88 at 9. He died three months
later, apparently from cirrhosis. R.63-64.

9
(...continued)
Rpt., 1/21/04 (showing ALT of 98 and AST 105, reference range
for each 0-40); Doc. 1-313, LabCorp Rpt., 4/21/04 (showing
ALT and AST of 182 each, reference range 0-40); Doc. 1-315,
LabCorp Rpt., 7/23/04 (showing ALT of 162 and AST 182,
reference range for each 0-40).
Nos. 09-1723 & 09-2107 13

b. Mr. Walker
At the time of trial, Mr. Walker had been incarcerated
since 1995 and had a scheduled release date in 2011. He
was diagnosed with hepatitis C in October 2003, but
received no treatment until 2007, after the lawsuit had
begun. From 2003 through 2005, several lab reports indi-
cated at least minimal elevation in his ALT and AST
levels; at times, the elevation was considerably higher
than twice normal levels. See, e.g., Docs. 1-166, 1-176, 1-228.
In December 2003, he filed a grievance concerning his
lack of treatment. The Health Care Unit Administrator,
Dave Huffman, responded that, in order to qualify for
treatment, Mr. Walker had to be “on the Hepatitis C
chronic clinic for 1 year and meet specific lab test
results . . . . After 1 year, if he meets the criterion, treatment
will be started because he will still have more than 1 year
left to serve.” Doc. 1-156. Mr. Walker again grieved the
lack of treatment in June 2004, and his grievance was
again denied because he did not meet set IDOC treat-
ment criteria.10

10
This second denial stated:
I/M is on the chronic clinic appropriate for his
disease process. I/M has not met the criteria for treat-
ment as of yet. His medical issue is a disease process
that progresses very slowly. Just because a person
has the disease that person has to meet treatment
criteria.
....
(continued...)
14 Nos. 09-1723 & 09-2107

Mr. Walker testified that, although his enzymes were
checked periodically, he received no treatment for his
HCV infection until he was deposed in connection with
the present action in 2007. He was given a liver biopsy
and a week later began a course of treatment, after
which the virus was undetectable in his body. R.110 at 30.
He also testified that, prior to receiving treatment, he
suffered from a number of symptoms, including nose
bleeds, headaches and pain, all of which had stopped
after treatment. Id. at 31-32.

c. Mr. Stasiak
While Dr. Elyea was IDOC Medical Director, Mr. Stasiak
was incarcerated from August 2003 through Decem-
ber 2004. He testified that he was diagnosed with
hepatitis C in January 2004 and made numerous re-
quests for a liver biopsy and treatment. He complained of
symptoms he attributed to his infection, but one medical
progress note stated that his claimed symptom of ab-
dominal pain was “not due to Hepatitis [and was]
possibly musculoskeletal in nature.” Doc. 1-128.
Mr. Stasiak’s enzyme levels were taken numerous times
from January through December of 2004, with results

10
(...continued)
. . . . It is important to remember that this disease
process was caught by the I/M because of his own
behaviors prior to incarceration. The Medical Director
is monitoring the disease process appropriately.
Doc. 1-160.
Nos. 09-1723 & 09-2107 15

varying from more than twice normal to within the
normal range.11
Mr. Stasiak complained to his prison physician that he
was not receiving treatment for his HCV infection in
February 2004. At that time, the physician noted his “out
date” was only ten months away, and, therefore, he
would “not meet criteria” for treatment during his incar-
ceration. Doc. 1-125. In July 2004, a separate note
indicated “liver enzyme levels 8 . Minimum stay is needed
at least of 1 year.” Doc. 1-130 (emphasis in original).
Mr. Stasiak received no treatment prior to his release.

d. Mr. Stephen
During Dr. Elyea’s tenure, Mr. Stephen was incarcerated
for seven months in 2004, seven months from 2005-2006
and two months in 2007. He was diagnosed with
hepatitis C during his 2004 incarceration. Throughout
his periods of incarceration in 2004 and 2005-2006, his

11
In mid-January 2004, he had an ALT of 91, more than twice
normal, and an AST of 54, minimally elevated. Doc. 1-121. Later
that month, his ALT had risen to 112 and his AST to 62. Doc. 1-
153. Handwritten notes in May ambiguously include the
notation “ 8 ,” although it is not clear whether this indicates
that the values again went up or were simply elevated. Doc. 1-
128. When tests were repeated in August 2004, however, his
values had fallen to an ALT of 53 and an AST of 30. Doc. 1-132.
In September, his values were an ALT of 69 and an AST of 40.
Doc. 1-155. By October, his ALT had fallen to 6, and no AST
value was reported. Doc. 1-136.
16 Nos. 09-1723 & 09-2107

relevant liver enzyme levels were checked numerous
times and were always above twice normal. 1 2
Medical progress notes written in July 2004 noted that,
despite his highly elevated enzyme levels, “liver
biopsy and treatment cannot be accomplished. He needs
to stay at least 12-15 months here.” Doc. 1-63 (emphasis
in original).
No medical records were submitted from Mr. Stephen’s
2007 incarceration. According to his trial testimony, he
suffered a number of symptoms, including abdominal
pain and swelling. After his release, he subsequently
was scheduled for treatment outside of prison and, at
that time, had three liters of fluid removed from his
abdomen. R.110 at 73.

B. District Court Proceedings
The plaintiffs filed the present claim alleging constitu-
tionally inadequate medical care in IDOC facilities.
They named Dr. Elyea and several other officials as
defendants. The plaintiffs sought, but were denied, class
certification. The defendants later sought summary
judgment, which was granted in part and denied in part.
Specifically, the district court entered judgment for

12
See Doc. 1-99 (ALT 288, AST 204 in Feb. 2004); Doc. 1-54
(ALT 310, AST 256 in early Mar. 2004); Doc. 1-102 (ALT 200,
AST 186 in late Mar. 2004); Doc. 1-75 (AST 416, ALT 389
in Aug. 2005); Doc. 1-104 (ALT 329, AST 267 in Sept. 2005); Doc.
1-105 (ALT 157, AST 157 in Nov. 2005).
Nos. 09-1723 & 09-2107 17

the defendants on claims for injunctive relief by those
plaintiffs no longer in IDOC custody and on claims
barred by the statute of limitations. R.27. The court also
dismissed the official defendants other than Dr. Elyea
and his successor. The damages claims of the four
plaintiffs arising during Dr. Elyea’s tenure proceeded to
trial. At trial, the plaintiffs presented no independent
expert medical testimony in support of their claims;
instead, they relied only on the FBOP Guidelines,
their IDOC medical records, their own testimony and
Dr. Elyea’s adverse testimony.
At the close of the plaintiffs’ evidence, the defense
made its first motion for judgment as a matter of law,
arguing that sovereign immunity barred the suit. The
motion was denied. The defense then recalled Dr. Elyea
to the stand as part of its case-in-chief. After his
further testimony, the defense rested, and the jury was
excused.13 Dr. Elyea then again moved for judgment as
a matter of law, this time citing qualified immunity
among his objections. The motion again was denied, and
the case was submitted to the jury. On February 15, 2008,
the jury returned its verdict in favor of the plaintiffs,
awarding compensatory damages of $20,000 and puni-
tive damages of $2 million to each plaintiff, for a total
award of $8,080,000.
On March 4, 2008, Dr. Elyea filed a renewed motion
for judgment as a matter of law. He further requested, as

13
Although the pre-trial order identified eight additional
witnesses for the defense, none testified at trial. See R.36, Ex. C.
18 Nos. 09-1723 & 09-2107

alternative relief, a new trial or remittitur of the award.
On February 18, 2009, the district court issued an opinion
and order addressing Dr. Elyea’s motion. The court
vacated the judgment in favor of Mr. Stephen, Mr. Stasiak
and Mr. Walker. It concluded that insufficient evidence
supported the verdict in their favor. We shall discuss the
specific failings identified by the district court in the
context of our discussion of their contentions on appeal.
With respect to the remaining plaintiff, Mr. Roe (or, more
properly at that stage of the litigation, his estate), the
district court denied the defendant’s motion on the issue
of liability and on the issue of compensatory damages,
sustaining the jury’s verdict on those matters. The court
granted the defendant’s motion, however, with respect
to the punitive damages award and ordered conditional
remittitur of the $2 million award to $20,000, or, at the
Estate’s election, a new trial on punitive damages. The
order stated that the Estate “shall file a pleading within
14 days of the entry of this order stating whether [it]
accepts or rejects the proposed remittitur of the jury’s
punitive damage award. Failure to file said pleading
shall be deemed an acceptance of the remittitur.” R.88
at 20. The judgment entered the following day stated
that the 2008 judgment, based on the jury’s verdict,
was “still in effect as to Plaintiff Roe.” R.89.
The Estate of Mr. Roe did not respond to the condi-
tional remittitur order. On March 18, 2009, the court
entered an amended judgment clarifying the award of
costs and continued to note that the prior judgment was
“still in effect as to Plaintiff Roe,” despite the fact that
more than fourteen days had passed from the conditional
Nos. 09-1723 & 09-2107 19

remittitur order without a response from Mr. Roe’s Estate.
R.96. The same day, the plaintiffs filed their notice of
appeal. The notice purported to challenge the rulings of
the court as to remittitur of Mr. Roe’s award and liability
of Dr. Elyea with respect to the remaining plaintiffs.
On March 24, 2009, the court entered a further order
confirming that Mr. Roe’s Estate had failed to respond
and was deemed to have accepted the remittitur. The
court also “clarifie[d] that Defendant Puisis, who was
substituted for Defendant Elyea in his official capacity
after the jury trial for purposes of injunctive relief only,
[was] terminated” because “no injunctive relief is avail-
able in this case.” R.101 at 2.

II
DISCUSSION
The parties have filed cross-appeals of the district court’s
judgment. Mr. Stephens, Mr. Stasiak and Mr. Walker
appeal the district court’s entry of judgment as a matter
of law against them following the jury verdict in their
favor. The Estate of Mr. Roe challenges the remittitur.
Dr. Elyea appeals the denial of judgment as a matter of
law on the claims related to Mr. Roe and challenges this
court’s jurisdiction over the plaintiffs’ appeal.

A. Jurisdiction
Dr. Elyea makes two jurisdictional objections to the
plaintiffs’ appeal. Before turning to the substantive con-
20 Nos. 09-1723 & 09-2107

tentions each party presents, we address each of these
contentions.

1. Premature Notice of Appeal
Dr. Elyea contends that this court lacks jurisdiction
over the plaintiffs’ appeal in its entirety because the
plaintiffs’ March 18, 2009 notice of appeal was filed
prematurely. The appeal was taken following the
February 19, 2009 decision and order, which announced
the conditional remittitur. Although that order specified
that fourteen days of inaction by Mr. Roe’s Estate “shall
be deemed an acceptance,” R.88 at 20, of the remittitur,
the court did not enter an amended judgment to that
effect until March 24, 2009. According to Dr. Elyea, the
February 19, 2009, judgment was not final and appealable.
“An order that offers a choice between a remitted award
and a new trial is not a final decision . . . .” Republic Tobacco
Co. v. N. Atl. Trading Co., 381 F.3d 717, 739 (7th Cir. 2004).
Nevertheless, Federal Rule of Appellate Procedure 4(a)(2)
provides that an appeal taken “after the court announces
a decision or order—but before the entry of the judgment
or order—is treated as filed on the date of and after the
entry.” That is, a prematurely filed notice will “spring
forward” to the date on which a judgment technically
has become final, thus effectively conferring jurisdic-
tion on the court of appeals at the time that the final
judgment is entered. A. Bauer Mech., Inc. v. Joint Arbitration
Bd., 562 F.3d 784, 789 (7th Cir. 2009); see also Garwood
Packaging, Inc. v. Allen & Co., 378 F.3d 698, 701 (7th Cir.
2004) (“[O]nce the decision is announced, a premature
Nos. 09-1723 & 09-2107 21

notice of appeal lingers until the final decision is en-
tered.”).
Dr. Elyea contends that Rule 4(a)(2) cannot be applied to
this case because the order that preceded the appeal
offered Mr. Roe’s Estate a choice between alternatives
and was, therefore, an inherently non-final decision. That
is, in his view, an issue was left to be decided and, there-
fore, the prematurity was more than the mere tech-
nicality that Rule 4(a)(2) authorizes courts to overlook.
We decline to adopt Dr. Elyea’s position. When the
district court entered its February 18, 2009 order, it articu-
lated its decision with respect to the remaining issues in
the case. More specifically, the district court’s consider-
ation of the request for a remittitur had concluded
and, although Mr. Roe’s Estate had an opportunity to
respond, the district court already had dictated the con-
sequences of either response the Estate could elect. Given
these unequivocal statements in the conditional order,
when the fourteen days specified in the order passed, the
Estate appears to have concluded that the award had
been remitted and there would be no new trial on dam-
ages. See R.97 at 1 (Notice of Appeal stating that the
order appealed from “remitt[ed] the punitive dam-
ages assessed by the jury in favor of Plaintiff Roe”). The
March 24, 2009 order of the district court itself confirms
that the Estate was correct to conclude that the matter
already had been decided, despite the fact that, as a tech-
nical matter, it was that subsequent order that made
the court’s previously announced decision final. See R.101.
Under the circumstances of this case, the Estate’s “be-
lief” that the February 19, 2009 “order also disposed of its
22 Nos. 09-1723 & 09-2107

claims was reasonable.” A. Bauer Mech., 562 F.3d at 789.
For all intents and purposes, the district court had
“announce[d]” its decision, Fed. R. App. P. 4(a)(2), on
every pending matter in the case. Dr. Elyea’s conten-
tion to the contrary elevates form over substance, the
precise problem that Rule 4(a)(2) gives this court the
authority to correct.
We also are not persuaded by Dr. Elyea’s quotation of
the Supreme Court’s decision in FirsTier Mortgage Co. v.
Investors Mortgage Insurance Co., 498 U.S. 269 (1991), for
the proposition that “Rule 4(a)(2) permits a notice of
appeal from a nonfinal decision to operate as a notice of
appeal from the final judgment only when a district
court announces a decision that would be appealable if
immediately followed by the entry of judgment.” Id. at 276
(emphasis in original). Dr. Elyea believes that, because
our precedent holds that the conditional order itself is
not appealable, FirsTier requires us to determine that
Rule 4(a)(2) cannot save the prematurely filed notice.
Read in context, however, the quoted language from
FirsTier merely clarifies that some notices of appeal filed
long before a decision on the merits are so premature
that they are not saved by the rule; specifically, the Court
references notices of appeal filed after “a discovery
ruling or a sanction order under Rule 11,” and states that
the losing party’s “belief that such a decision is a final
judgment would not be reasonable.” Id. (emphasis in
original). We do not think this language applies to cases
such as this, where the merits of the entire case ef-
fectively are resolved by a particular ruling. We further
note that Mr. Roe’s Estate never has challenged the non-
Nos. 09-1723 & 09-2107 23

final conditional order itself, only the remittitur that
resulted from its inaction following the conditional order.
FirsTier does not affect our conclusion that the Estate’s
mistaken belief about the automatic effectiveness of the
conditional order was reasonable and that its error is
correctable by this court under Rule 4(a)(2). Accordingly,
our jurisdiction over the plaintiffs’ appeals in their
entirety is not affected by the premature filing.

2. Remittitur
Dr. Elyea next asserts that Mr. Roe’s Estate may not
challenge the remitted award itself. Although such
review initially was sought by the Estate, it conceded
that a remittitur order is unreviewable in its reply brief
and at oral argument. Its concession is well-taken. See
Donovan v. Penn Shipping Co., 429 U.S. 648, 649-50 (1977)
(per curiam) (noting that a plaintiff may not appeal a
remittitur that he has accepted, even “under protest”);
Republic Tobacco, 381 F.3d at 739 (“[I]f a plaintiff agrees
to accept the reduced judgment in the trial court, that
plaintiff may not later argue that the jury’s verdict
should be reinstated on appeal.”); Ash v. Georgia-Pac. Corp.,
957 F.2d 432, 437 (7th Cir. 1992) (“An order setting the
case for a new trial is not final, and hence not appealable
under 28 U.S.C. § 1291. An election between that new
trial and a sum certain is final, but a party may not
appeal from a judgment to which it consents. One who
accepts a remittitur in lieu of a new trial has consented,
and so may not appeal.”). We therefore affirm the
district court’s order remitting the punitive damages
awarded to Mr. Roe.
24 Nos. 09-1723 & 09-2107

B. Standard of Review
Mr. Stephen, Mr. Stasiak and Mr. Walker appeal the
district court’s entry of judgment as a matter of law to
Dr. Elyea following the jury verdict and award of
damages in their favor, and Dr. Elyea appeals a denial of
the same with respect to the claims made by Mr. Roe.
As we recently have stated, we review a district court’s
ruling on a motion for judgment as a matter of law
de novo, “examining the record as a whole to
determine whether the evidence presented, com-
bined with all reasonable inferences permissibly
drawn therefrom, was sufficient to support the
jury’s verdict.” Walker v. Bd. of Regents of the Univ.
of Wis. System, 410 F.3d 387, 393 (7th Cir. 2005)
(quoting Millbrook v. IBP, Inc., 280 F.3d 1169, 1173
(7th Cir. 2002)). In making this determination, we
are mindful of the fact that “[c]redibility determi-
nations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are
jury functions, not those of a judge.” Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133,
150-51 (2000) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)).
Von der Ruhr v. Immtech Int’l, Inc., 570 F.3d 858, 866 (7th
Cir. 2009) (parallel citations omitted) (modification in
original). Further, we “must disregard all evidence favor-
able to the moving party that the jury [was] not required
to believe.” Reeves, 530 U.S. at 151. The jury’s verdict
must stand “unless the moving party can show that
‘no rational jury could have brought in a verdict against
Nos. 09-1723 & 09-2107 25

[him].’ ” Woodward v. Corr. Med. Servs. of Illinois, Inc., 368
F.3d 917, 926 (7th Cir. 2004) (modification in original)
(quoting E.E.O.C. v. G-K-G, Inc., 39 F.3d 740, 745 (7th Cir.
1994)). We begin with a discussion of the law of deliberate
indifference and then turn to the plaintiffs’ specific claims.

C. Deliberate Indifference
As we recently have stated,
The Eighth Amendment’s prohibition against
cruel and unusual punishment, which embodies
“broad and idealistic concepts of dignity, civilized
standards, humanity, and decency,” prohibits
punishments which are incompatible with “the
evolving standards of decency that mark the
progress of a maturing society.” Estelle [v. Gamble],
429 U.S. [97,] 102 [(1976)] (quotation marks omit-
ted). It thus requires that the government provide
“medical care for those whom it is punishing by
incarceration.” Id. at 103. The Eighth Amendment
safeguards the prisoner against a lack of medical
care that “may result in pain and suffering which
no one suggests would serve any penological
purpose.” Id. Accordingly, “deliberate indifference
to serious medical needs” of a prisoner constitutes
the unnecessary and wanton infliction of pain
forbidden by the Constitution. Id. at 104.
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828
(7th Cir. 2009) (parallel citations omitted).
A successful deliberate indifference claim is comprised
of both an objective and a subjective element. Farmer v.
26 Nos. 09-1723 & 09-2107

Brennan, 511 U.S. 825, 834 (1994). First, an inmate must
demonstrate that, objectively, the deprivation he
suffered was “sufficiently serious; that is, it must result
in the denial of the minimal civilized measure of life’s
necessities.” Walker v. Benjamin, 293 F.3d 1030, 1037 (7th
Cir. 2002). In the medical care context, this objective
element is satisfied when an inmate demonstrates that
his medical need itself was sufficiently serious. Gutierrez
v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). A medical
need is considered sufficiently serious if the inmate’s
condition “has been diagnosed by a physician as man-
dating treatment or . . . is so obvious that even a lay
person would perceive the need for a doctor’s atten-
tion.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005).
Notably, “[a] medical condition need not be life-threat-
ening to be serious; rather, it could be a condition that
would result in further significant injury or unnecessary
and wanton infliction of pain if not treated.” Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010). Second, an
inmate must establish that prison officials acted with a
“ ‘sufficiently culpable state of mind’ ” to support liability
under § 1983. Greeno, 414 F.3d at 653 (quoting Farmer,
511 U.S. at 834). Although negligence or inadvertence
will not support a deliberate indifference claim, an
inmate need not establish that prison officials actually
intended harm to befall him from the failure to provide
adequate care. Walker, 293 F.3d at 1037. “[I]t is enough to
show that the defendants knew of a substantial risk of
harm to the inmate and disregarded the risk.” Greeno,
414 F.3d at 653.
Nos. 09-1723 & 09-2107 27

Applying the above to prison medical professionals, we
have stated that “[a] medical professional is entitled to
deference in treatment decisions unless no minimally
competent professional would have so responded under
those circumstances.” Sain v. Wood, 512 F.3d 886, 894-95
(7th Cir. 2008) (internal quotation marks omitted). “A
medical professional acting in his professional capacity
may be held to have displayed deliberate indifference
only if the decision by the professional is such a sub-
stantial departure from accepted professional judgment,
practice, or standards, as to demonstrate that the person
responsible actually did not base the decision on such
a judgment.” Id. (internal quotation marks omitted). The
burden is high on a plaintiff making such a claim: “Delib-
erate indifference is not medical malpractice; the
Eighth Amendment does not codify common law torts.”
Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008).
However, a successful plaintiff need not “show that he
was literally ignored” in his demands for medical treat-
ment, and a defendant’s showing that a plaintiff received
“some” treatment does not resolve the issue conclusively
if the treatment was “blatantly inappropriate.” Greeno,
414 F.3d at 653-54 (emphasis in original) (internal quota-
tion marks omitted). Finally, the Eighth Amendment
“protects [an inmate] not only from deliberate indif-
ference to his or her current serious health problems, but
also from deliberate indifference to conditions posing
an unreasonable risk of serious damage to future health.”
Board v. Farnham, 394 F.3d 469, 479 (7th Cir. 2005) (empha-
sis in original).
28 Nos. 09-1723 & 09-2107

D. Qualified Immunity
Dr. Elyea submits that, even if the plaintiffs are able to
establish a violation of a constitutional right to medical
treatment for their HCV infection and resultant condi-
tions, that right was not “clearly established” at the time
that he acted. Therefore, in his view, the district court
erred in denying him the defense of qualified immunity.
In actions under 42 U.S.C. § 1983 alleging violations
of constitutional rights, qualified immunity shields an
official from liability for civil damages, provided that the
illegality of the official’s conduct was not clearly estab-
lished at the time he acted. Alexander v. City of Mil-
waukee, 474 F.3d 437, 446 (7th Cir. 2007).
Based on our earlier discussion of the law governing
deliberate indifference claims, we have no difficulty in
concluding that the right to adequate medical care
and treatment of conditions of inmates was clearly estab-
lished at all times during the relevant actions in this case.
Nor do we understand Dr. Elyea to contend otherwise.
Instead, his contention is that, with respect to the
particular condition and particular treatment at issue
here, any unlawfulness in the IDOC’s policy was not
apparent to him when he implemented the hepatitis C
treatment rules in effect in 2003. He relies on two cases
that take note of similar waiting-period policies for hepati-
tis C treatment in other state correctional systems as
evidence that “reasonable people in [Dr. Elyea’s] position
would [not] have agreed that the Illinois policy was
unconstitutional.” App. R.32 at 1; see McKenna v. Wright,
386 F.3d 432 (2d Cir. 2004) (New York); Bender v. Regier,
385 F.3d 1133 (8th Cir. 2004) (South Dakota).
Nos. 09-1723 & 09-2107 29

In determining whether a right was “clearly established”
at the time of an official action, we must look at the
right violated in a “particularized” sense, rather than “at
a high level of generality.” Brosseau v. Haugen, 543 U.S. 194,
198 (2004) (per curiam) (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)). As the Supreme Court recently
has emphasized, however, “there is no need that ‘the
very action in question [have] previously been held unlaw-
ful.’ ” Safford Unified Sch. Dist. v. Redding, ___ U.S. ___,
129 S. Ct. 2633, 2643 (2009) (modification in original)
(quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)). Outra-
geous conduct obviously will be unconstitutional. Id.
“But even as to action less than an outrage, ‘officials
can still be on notice that their conduct violates estab-
lished law . . . in novel factual circumstances.’ ” Id. (modifi-
cation in original) (quoting Hope v. Pelzer, 536 U.S. 730,
741 (2002)). The basic question is whether the state of
the law at the time that Dr. Elyea acted gave him reason-
able notice that his actions violated the Constitution. The
focus of our inquiry must be the “objective legal reason-
ableness” of the official’s action. Wilson, 526 U.S. at
614 (internal quotation marks omitted). The official must
have “fair warning” that his conduct is unconstitutional.
Hope, 536 U.S. at 739-40 (internal quotation marks omitted).
Before we analyze the plaintiffs’ claims in light of
these governing principles, we pause briefly to recall the
precise nature of their allegations against Dr. Elyea. They
claim that, while serving as medical director of IDOC,
Dr. Elyea inaugurated a protocol for hepatitis C treat-
ment that categorically required that all candidates for
antiviral therapy—despite their particular genotype—have
30 Nos. 09-1723 & 09-2107

at least two years left on their sentence. This categorical
rule, the plaintiffs submit, deprived them of necessary
treatment that would have been effective. This rule was
grounded, they further contend, in consideration of
administrative convenience rather than medical effec-
tiveness.
Although the parties can point to no case that held
squarely that such a policy was constitutional or unconsti-
tutional, Dr. Elyea points to two cases that take note
that two other states had the same or similar policies. See
McKenna, 386 F.3d 432; Bender, 385 F.3d 1133. Notably,
neither of these cases hold, or even suggest, that the
policies mentioned were constitutionally acceptable.
We believe that there was sufficient guidance that Dr.
Elyea, or any other reasonable prison medical director,
should have been on notice that such a policy was viola-
tive of the Eighth Amendment.
At the outset, we note that the cases that Dr. Elyea
claims supported his contemporaneous belief in the
legality of his conduct do not hold that waiting periods
for treatment of HCV infection are constitutional. Bender
simply held that a treating general practitioner was not
deliberately indifferent to the needs of an inmate for
antiviral therapy when the physician had referred the
inmate to, and was awaiting further recommendations
from, a specialist. 385 F.3d at 1138. McKenna rejected an
appeal from the denial of the qualified immunity defense
on a motion to dismiss by medical and other prison
officials responsible for the denial of antiviral therapy to
an inmate with HCV. 386 F.3d at 437. Indeed, Dr. Elyea
Nos. 09-1723 & 09-2107 31

has not presented us with any case from any court in
which a similar, categorical treatment policy has been
upheld against a constitutional challenge.
In contrast, at the time Dr. Elyea acted, several cases
had acknowledged that deliberate indifference claims
based on medical treatment require reference to the
particularized circumstances of individual inmates. See,
e.g., Rouse v. Plantier, 182 F.3d 192, 199 (3d Cir. 1999)
(remanding a class action to the district court for sub-
classifications among a “medically diverse group” of
individuals with different stages of diabetes, because
alleged violations of the Eighth Amendment “obviously
var[y] depending on the medical needs of the particular
prisoner”); Monmouth Cnty. Corr. Institutional Inmates v.
Lanzaro, 834 F.2d 326, 347 & n.32 (3d Cir. 1987) (noting
that, by virtue of a blanket policy of denying elective
abortions and failing to consider factors relevant to each
particular inmate “the County denies to a class of inmates
the type of individualized treatment normally associated
with the provision of adequate medical care” (emphasis
added)). Indeed, it is implicit in the professional judg-
ment standard itself, which long predates the actions
relevant to this case, that inmate medical care decisions
must be fact-based with respect to the particular inmate,
the severity and stage of his condition, the likelihood
and imminence of further harm and the efficacy of avail-
able treatments. See Collignon v. Milwaukee Cnty., 163
F.3d 982, 989 (7th Cir. 1998) (“A plaintiff can show that
the professional disregarded the need only if the profes-
sional’s subjective response was so inadequate that it
demonstrated an absence of professional judgment, that
32 Nos. 09-1723 & 09-2107

is, that no minimally competent professional would
have so responded under those circumstances.” (emphasis
added)).
We emphasize, however, that the necessity of indivi-
dualized treatment does not mean that the use of treat-
ment protocols and guidelines is generally unconstitu-
tional. Indeed, in the ordinary course, such standard
practices implement a professional discipline that in
turn facilitates appropriate and quality care within large
and administratively complex institutional settings, in-
cluding correctional systems. Often, as is the case in
Illinois, outside contractors provide day-to-day care, and
a carefully crafted protocol can ensure the maintenance
of legally and medically acceptable standards of care
throughout the system. In the prison context, however,
such protocols must ensure that prison officials fulfill
their responsibility to provide constitutionally adequate
care to each individual inmate with reference to his
particularized medical need. Here, the FBOP Guidelines
employed by Dr. Elyea as a guide in formulating and
implementing IDOC’s policy were no doubt a useful tool
and, as a general matter, might assist in assessing treat-
ment options with respect to a disease that is slow-pro-
gressing and highly dangerous or fatal, over time, in only
a small percentage of infected persons. See Trial Ex. 3 at 41-
42 (directing treating physicians to weigh relevant
factors, including that only 10-15% of infected persons
will develop complications of long-term liver disease,
in determining the appropriateness of treatment). With
respect to an individual case, however, prison officials
still must make a determination that application of the
Nos. 09-1723 & 09-2107 33

protocols result in adequate medical care. Cf. Johnson v.
Wright, 412 F.3d 398, 406 (2d Cir. 2005) (holding that an
inmate with HCV had produced sufficient evidence to
survive summary judgment on a deliberate indifference
claim, in part, by demonstrating that officials were “reflex-
ively relying on the medical soundness of” a policy
“when they had been put on notice that the medically
appropriate decision could be, instead, to depart from”
that policy). This basic legal obligation to provide care
adequate to a particular inmate’s medical circumstances
should have been clear to reasonable physicians with
the responsibility for creating inmate healthcare policy
in 2003.
There was evidence in the record that permitted the
jury to conclude that Dr. Elyea in fact implemented not
the federal policy, but a variation of it. Under that varia-
tion, all genotypes of the disease were handled in the
same way. Although certain genotypes, such as the one
that afflicted Mr. Roe, could be treated in a relatively
short period of time, patients with these genotypes
were treated in the same manner as those requiring a
longer period, and therefore a longer expected term
of incarceration. There was also record evidence that
permitted the jury to conclude that, in formulating the
Illinois policy, Dr. Elyea was motivated by administrative
convenience rather than patient welfare. According to
Dr. Elyea’s deposition testimony, confirmed by his testi-
mony at trial: “At the time we set this up, there may not
have been any real medical reason other than to keep it simple
for folks.” R.110 at 123 (emphasis added). Dr. Elyea did
testify that he believed the policy was “medically sound”
34 Nos. 09-1723 & 09-2107

and based on the guidelines, id. at 135, even if the limita-
tions were not instituted for medical reasons. See also id. at
113 (Dr. Elyea testifying that “I felt medically that the
ones that weren’t getting treatment did not need it at
that point.”). Since Estelle v. Gamble, 429 U.S. 97, 104 n.10
(1976) (internal quotation marks omitted), it has
been established that the choice of an “easier and less
efficacious treatment” can demonstrate that the actor
displayed “deliberate indifference . . . rather than an
exercise of professional judgment.” Id. (citing Williams
v. Vincent, 508 F.2d 541 (2d Cir. 1974)). The evidence
permitted, although it did not compel, the jury to
conclude that Dr. Elyea’s policy prevented treating physi-
cians from exercising any professional judgment as to
whether to commence interferon treatment for inmates
who could complete the prescribed course of treatment
during the remaining period of their incarceration.
Mr. Roe’s records reflect that on several occasions his
physicians identified him as not a candidate for treat-
ment because of the policy.1 4
Under these circumstances, we believe that the district
court properly denied, each time it was presented,
Dr. Elyea’s invocation of qualified immunity.

14
Although Dr. Elyea testified that if treating physicians
wanted to deviate from the policy, they could contact him
and request it, there is no evidence in the record that IDOC’s
treating physicians understood the policy to contain that
flexibility. R.110 at 134.
Nos. 09-1723 & 09-2107 35

E. The Plaintiffs’ Claims
With the questions of our jurisdiction and qualified
immunity resolved, we now turn to the specific facts
raised in each plaintiff’s claim.

1. Mr. Roe
Following the jury verdict in Mr. Roe’s favor, the
district court denied Dr. Elyea’s motion for judgment as a
matter of law. Dr. Elyea contends that this was error.
He first asks this court to conclude that Mr. Roe failed
to establish the substantive elements of a deliberate
indifference claim, which we already have set forth.
Further, he believes that even if Mr. Roe demonstrated
an actionable violation of his constitutional rights,
Mr. Roe failed to show an injury and causation that
would permit the damages allowed by the district court.

a. Sufficiency of the Evidence to Support Mr. Roe’s
Deliberate Indifference Claim
We begin with an evaluation of the elements of Mr. Roe’s
deliberate indifference claim. We believe that there is
sufficient evidence in the record to support the jury’s
conclusion that Mr. Roe established both an objective
serious medical need and that the policy Dr. Elyea imple-
mented evinces a deliberate indifference to that need.
First, sufficient evidence supported the jury’s conclu-
sion that Mr. Roe had an objectively serious medical need
for treatment in 2004. As we acknowledged in Edwards v.
36 Nos. 09-1723 & 09-2107

Snyder, 478 F.3d 827 (7th Cir. 2007), our cases demonstrate
that a broad range of medical conditions may be suf-
ficient to meet the objective prong of a deliberate indif-
ference claim, including a dislocated finger, a hernia,
arthritis, heartburn and vomiting, a broken wrist, and
minor burns sustained from lying in vomit. Id. at 831
(collecting cases);15 see also Berry v. Peterman, 604 F.3d
435, 440 (7th Cir. 2010) (holding that tooth decay can
constitute an objectively serious medical condition).
Based on the evidence submitted by Mr. Roe in support
of his claim, the jury was entitled to conclude that his
HCV infection and resultant physical condition were
sufficiently serious to meet that standard. Specifically,
as the FBOP Guidelines make clear, at least for some
patients, HCV infection is a serious medical condition
that can lead to irreversible physical damage and even life-
threatening situations. Mr. Roe’s own medical records
show not only that he had been diagnosed with HCV

15
Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007), which
involved a dislocated finger, relies on a number of other
Seventh Circuit cases to reach its conclusion that the plaintiff
had not pleaded himself out of court by alleging a condition
that could not meet the objective prong of the deliberate
indifference standard. See O’Malley v. Litscher, 465 F.3d 799, 805
(7th Cir. 2006) (per curiam) (minor burns resulting from lying
in vomit); Norfleet v. Webster, 439 F.3d 392, 394-95 (7th Cir.
2006) (arthritis); Johnson v. Doughty, 433 F.3d 1001, 1003-04, 1010
(7th Cir. 2006) (hernia); Greeno v. Daley, 414 F.3d 645, 649-51
(7th Cir. 2005) (heartburn and vomiting); Duncan v. Duckworth,
644 F.2d 653, 654 (7th Cir. 1981) (fractured wrist).
Nos. 09-1723 & 09-2107 37

infection, but that his enzyme levels were repeatedly
twice normal over a period of several years. Given his
particular history, the FBOP Guidelines counseled, at
minimum, biopsy of the liver and consideration for
antiviral therapy.16 The recommendations set forth by
the federal prison system, read together with Mr. Roe’s
medical history and testimony regarding his symptoms,
are sufficient evidence to permit the jury to conclude

16
We disagree with Dr. Elyea’s assertion that the Guidelines
permit deferral of treatment for at least two years, because a
section entitled “Detention center/short-term inmates,” states
that “[i]nmate candidates for hepatitis C treatment entering
BOP short-term detention facilities should ordinarily not be
started on antiviral therapy.” Trial Ex. 3 at 41. In Dr. Elyea’s
view, because a detainee might remain in that system for
two years without entitlement to treatment, the Guidelines
require nothing more for inmates actually sentenced to terms
shorter than two years.
The quoted section continues, however, to explain that a
“[t]reatment decision[] should be deferred until the inmate is
sentenced and redesignated or released,” id. (emphasis added).
This context makes plain that the Guidelines are drawing a
distinction between inmates whose future term is wholly
uncertain and those who will serve finite terms of incarceration.
The point is made even clearer by the following section of
the Guidelines, which provides direction in the case of “Long-
term (sentenced) inmates.” Id. We, like the district court, are
not persuaded that Dr. Elyea can assert compliance with the
Guidelines as conclusive evidence that his conduct met or
exceeded the constitutional minimum standard of care
under these circumstances.
38 Nos. 09-1723 & 09-2107

that Mr. Roe’s HCV infection amounted to a serious
medical need.
Second, Mr. Roe presented sufficient evidence from
which a jury could conclude that Dr. Elyea acted with a
sufficiently culpable state of mind in setting the IDOC
policy that resulted in a denial of the treatment recom-
mended under the Guidelines to Mr. Roe. Under that
policy, inmates were denied further testing and treat-
ment for HCV infection categorically based on the
expected length of their continued incarceration in an
IDOC facility. In addition to mandating that inmates
have one year of incarceration left for a treatment
regimen to begin, the policy required an additional year
to allow for enzyme level checks six months apart and
an additional six months to “allow the vendor ample
time for” some unspecified “workup” prior to the biopsy.
R.110 at 127 (testimony of Dr. Elyea). IDOC justified this
policy because the Guidelines note that an interrupted
course of treatment may pose further health risks and
because, with respect to some (but not all) genotypes, forty-
eight weeks was the recommended course of treatment.
According to Dr. Elyea, IDOC adopted the policy because
it wanted to keep its protocols “consistent for all of the
people who had hepatitis C.” Id. at 113.
The failure to consider an individual inmate’s condi-
tion in making treatment decisions is, as we already
have concluded, precisely the kind of conduct that con-
stitutes a “substantial departure from accepted profes-
sional judgment, practice, or standards, [such] as to
demonstrate that the person responsible actually did not
Nos. 09-1723 & 09-2107 39

base the decision on such a judgment.” Sain, 512 F.3d at 895
(internal quotation marks omitted). Indeed, at trial,
Dr. Elyea confirmed his deposition testimony that, “[a]t
the time we set this up, there may not have been any
real medical reason” for the policy of presuming a forty-
eight-week treatment period for all inmates, regardless
of genotype, “other than to keep it simple for folks.” R.110
at 123. Although administrative convenience and cost
may be, in appropriate circumstances, permissible factors
for correctional systems to consider in making treatment
decisions, the Constitution is violated when they are
considered to the exclusion of reasonable medical judgment
about inmate health. See Johnson v. Doughty, 433 F.3d
1001, 1013 (7th Cir. 2006) (“The cost of treatment alterna-
tives is a factor in determining what constitutes ade-
quate, minimum-level medical care, but medical
personnel cannot simply resort to an easier course of
treatment that they know is ineffective.” (citations omit-
ted)). Given Dr. Elyea’s own testimony, this is simply not
a case where the jury was required to conclude that
Mr. Roe’s care plan was a result of a “deliberate decision
by a doctor to treat a medical need in a particular man-
ner.” Jackson v. Kotter, 541 F.3d 688, 698 (7th Cir. 2008)
(quotation marks omitted). Rather, it was entitled to
conclude that Dr. Elyea’s action constituted a failure to
exercise medical—as opposed to administrative—judgment
at all.17

17
In his testimony, Dr. Elyea did state that treatment for all
inmates with hepatitis would be impossible, estimating the
(continued...)
40 Nos. 09-1723 & 09-2107

Under these circumstances, the district court did not err
in denying judgment as a matter of law to Dr. Elyea on
the ground that Mr. Roe failed to present sufficient evi-
dence from which a jury could conclude that he had
satisfied both the objective and subjective elements of a
deliberate indifference claim.

b. Injury, Causation and Damages
Dr. Elyea also submits that Mr. Roe failed to provide
sufficient evidence from which a reasonable jury could
conclude that the IDOC two-year policy, and its applica-
tion to him during his 2004 incarceration, caused him
any injury. First, Dr. Elyea claims that Mr. Roe failed to
account for other factors that could have been the cause
of any injury, including a failure to receive treatment
while not in custody and abuse of alcohol. Second, he
claims that the incarceration period in question for
Mr. Roe lasted only nine months, and that, for a period
during those nine months, Mr. Roe was being treated

17
(...continued)
costs at some $300-400 million without further explanation.
See R.110 at 135. If IDOC’s financial constraints limit the care
available, Dr. Elyea might well be justified in triaging the
cases and deciding eligibility for treatment. However, in
order for that triage not to run afoul of the Eighth Amendment,
the decision about who should have priority for care must
itself be based on medical judgment. The jury was entitled to
conclude, on the record before it, that the categorical delay
period was not a medical judgment.
Nos. 09-1723 & 09-2107 41

(apparently mistakenly) for latent tuberculosis; such
treatment was incompatible, he notes, with treatment
for hepatitis C, and thus the treatment period could not
be completed during the incarceration. Third, Dr. Elyea
claims that the success of treatment is highly vari-
able, and thus, it would be “rank speculation” to find
the policy harmed Mr. Roe. Appellee/Cross-Appellant’s
Br. 36.
As the Supreme Court repeatedly has noted, § 1983
“creates a species of tort liability.” Heck v. Humphrey, 512
U.S. 477, 483 (1994) (internal quotation marks omitted).
A successful § 1983 plaintiff therefore must establish
not only that a state actor violated his constitutional
rights, but also that the violation caused the plaintiff
injury or damages. Harris v. Kuba, 486 F.3d 1010, 1014
(7th Cir. 2007).
We begin with the concept of injury. At trial in 2008,
the district court noted that Mr. Roe appeared in signifi-
cantly diminished health. Further, it is apparently undis-
puted that Mr. Roe’s liver disease had progressed so
significantly shortly thereafter that it caused his death.
Dr. Elyea contends that other causes might well have
accounted for Mr. Roe’s condition, and, therefore, no
injury has been demonstrated. Dr. Elyea notes that
Mr. Roe did not obtain treatment for himself when he
was not incarcerated and, further, that there is some
evidence in the record that Mr. Roe had engaged in other
behaviors that put his liver health at risk after leaving
42 Nos. 09-1723 & 09-2107

IDOC custody in 2004.1 8 These observations, although
correct, miss the mark. The administrator of Mr. Roe’s
Estate need not prove that this severe progression of
disease in 2008 to the point of death is directly traceable
to Dr. Elyea’s conduct. All that is required to support
the verdict is some actual compensable injury, causally
connected to the application to Mr. Roe of IDOC policy
set by Dr. Elyea.19
The record is sufficient to support the jury’s conclu-
sion on this issue. At trial, Mr. Roe testified that his
symptoms included stomach distention, nose bleeds,
rashes and bowel irregularity that had worsened sig-
nificantly in the months leading to trial. R.110 at 44.
His prison records, which provide contemporaneous
accounts of his physical complaints, verify that some
of these symptoms stretched back to the period in ques-
tion and beyond. See, e.g., Doc. 1-286, Offender Out-
patient Progress Notes (Apr. 7, 2004) (noting complaints
of left abdominal pain “ascribe[d] . . . to hepatitis C” and
the corresponding physician plan to order ALT and AST

18
Specifically, Mr. Roe was reincarcerated for a felony charge
of driving under the influence in 2007, which necessarily
means that he had consumed alcohol to the point of intoxica-
tion, at least on the occasion of that offense.
19
See Henderson v. Sheahan, 196 F.3d 839, 848 (7th Cir. 1999)
(noting that, under tort principles applicable in § 1983 actions,
a plaintiff must show that “he has suffered an ‘actual’ present
injury and that there is a causal connection between that
injury and the deprivation of a constitutionally protected
right caused by a defendant”).
Nos. 09-1723 & 09-2107 43

testing in response); Doc. 1-288, Offender Outpatient
Progress Notes (May 6, 2004) (noting “pain in left side of
abdomen” which “radiates to left leg,” directly under
which the physician has written “Hepatitis C. Not
a candidate for biopsy of liver,” and noting ALT and
AST levels of 180); Doc. 1-248, Medical Progress Notes
(July 15, 2002) (noting “bowel issues”). Furthermore, in
his deposition testimony, Mr. Roe stated that, not long
after his release from prison in 2004, he was sent for
a consultation with a liver specialist.2 0 According to
Mr. Roe, that specialist confirmed by simple palpation
of his abdomen that Mr. Roe had “early stages of
cirrhosis and fibrosis setting” in, and that treatment
should proceed even without a biopsy being performed.2 1
Trial Ex. 6, Roe Dep. 23. At that time, Mr. Roe could
not afford the treatment because he was awaiting ap-
provals on his applications for public assistance. We
previously have held that testimony from which a jury
could infer that a prison employee’s overnight delay
in providing treatment for an inmate’s infection caused
“many more hours of needless suffering” was sufficient
to withstand summary judgment. See Gil v. Reed, 381 F.3d

20
The depositions of the plaintiffs were admitted into evi-
dence without objection as Defendants’ Ex. 6.
21
This recommended course of treatment is consistent with the
Guidelines, which note that “[i]nmates with suspected compen-
sated cirrhosis based on clinical and laboratory parameters
should be either referred directly for liver biopsy or treated
empirically (without biopsy confirmation) in consultation with
a specialist.” Trial Ex. 3 at 43 (emphasis added).
44 Nos. 09-1723 & 09-2107

649, 662 (7th Cir. 2004) (emphasis added). We have
little difficulty in concluding that the symptoms
Mr. Roe endured during the period of his relevant incar-
ceration and shortly thereafter were, in and of them-
selves, and regardless of the more severe symptoms
that would befall him in the years following, at least
minimally sufficient to support the jury’s verdict and
compensatory damages award. See Naeem v. McKesson
Drug Co., 444 F.3d 593, 605 (7th Cir. 2006) (noting the
standard of review).
The plaintiffs, and Mr. Roe specifically, proceeded
precariously in this regard by failing to introduce their
own medical expert, who might have testified directly to
the medical issues involved in the causation analysis.2 2

22
See Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir. 2010) (noting
that, in the absence of evidence of the “exact cause” of the
plaintiff’s death, “the jury should hear testimony, backed by
accepted medical science, about factors that could have exacer-
bated her heart condition”); Walker v. Peters, 233 F.3d 494, 502
(7th Cir. 2000) (rejecting an Eighth Amendment claim because
the prisoner’s expert had opined that the refusal of prison
physicians to provide medication on certain occasions might
have been the cause of the injury, while another explanation
not attributable to the physician’s conduct might also have
been the cause). But see Williams v. Liefer, 491 F.3d 710, 715-16
(7th Cir. 2007) (concluding that medical records alone, even
when contradicted by adverse expert testimony, were suf-
ficient to support a finding that a delay in treatment caused
the plaintiff harm and satisfied the “verifying medical evi-
dence” requirement in delayed treatment cases).
Nos. 09-1723 & 09-2107 45

Instead, the plaintiffs relied on the adverse testimony of
Dr. Elyea himself and on the Guidelines. Although this
way of proceeding was a risky trial strategy when the
condition at issue—hepatitis C—was outside the com-
mon experience of lay jurors,2 3 we must conclude that, in
this case, the evidence recounted above was minimally
sufficient to allow a reasonable juror to conclude that
an injury attributable to the policy had been established
by Mr. Roe.
Dr. Elyea did produce contrary evidence on the issue
of whether any of the plaintiffs, including Mr. Roe, suf-
fered any injury as a result of IDOC treatment policy.
Dr. Elyea himself testified, consistent with the Guide-
lines, that the normal course of HCV infection would take
twenty or more years to result in significant liver
disease, if it does so at all, and remains “asymptomatic”
unless “the disease is at its end stages.” R.110 at 94, 95. At
trial, counsel for Dr. Elyea contended that the lack of any
“short-term impact” of the disease justified, in all cases
covered by the policy, denial of further testing and consid-
eration for treatment. Id. at 190-91. The force of these
general statements about the normal progression of the
disease, however, did not require the jury to find that, in
the case of Mr. Roe, he was not injured by the failure of
IDOC to provide treatment. In fact, these general state-

23
Cf. Hendrickson v. Cooper, 589 F.3d 887, 892 (7th Cir. 2009)
(noting that, in the case of pain allegedly caused by beating,
“[n]o expert testimony is required to assist jurors in deter-
mining the cause of injuries that are within their common
experiences or observations”).
46 Nos. 09-1723 & 09-2107

ments are particularly unpersuasive when the prison’s
own medical records indicate that Mr. Roe believed he
had been infected since the 1970s; it is unsurprising,
therefore, that he had advanced liver disease in 2003.
The “short-term” for Mr. Roe, it seems, was actually the
long-term consequence of a decades-old infection.2 4
The State contends that, despite the evidence we
already have discussed, facts specific to Mr. Roe’s case
demonstrate that any injury he suffered was not the
result of the blanket length-of-incarceration-based IDOC
policy rather than sound medical judgment. The State
notes that the Guidelines recommend twenty-four weeks
of antiviral treatment for Mr. Roe, but that, because of
his original misdiagnosis for tuberculosis, he could not
have completed treatment during his incarceration.
Mr. Roe, however, had thirty weeks remaining in his
incarceration when a repeat tuberculosis test revealed
the misdiagnosis. Moreover, although the State is correct

24
We note that there is some evidence in the record that factors
other than hepatitis C contributed, at least in part, to some of
Mr. Roe’s physical complaints during his relevant period of
incarceration. See Trial Ex. 6, Roe Dep. 43 (responding affirma-
tively to his attorney’s question regarding abdominal pain
during his incarceration as “what turned out to be the kidney
stone”). However, when viewed in light of the other record
evidence, specifically the specialist’s statements to Mr. Roe
that liver disease was discernible on physical examination
without need for biopsy in the period immediately following
the incarceration in question, the jury’s verdict is not so
lacking in evidentiary support that it must be overturned.
Nos. 09-1723 & 09-2107 47

to note that current treatment for tuberculosis is a contra-
indication for interferon treatment for hepatitis C, there
is nothing in the record to suggest that tuberculosis
treatment prevents the pre-treatment work-up, including
the biopsy. See Trial Ex. 3 at 49. If tuberculosis, or indeed
any other contraindication to the work-up was present
in Mr. Roe’s case, the State should have provided
evidence of it at trial. Moreover, because of his prior
incarceration periods in IDOC facilities in the not-distant
past, Mr. Roe already had had numerous tests related
to hepatitis C and other health screens. In light of the
existing medical record, it is not clear what remained to
be done in the typical six-month pre-biopsy work-up in
his case, nor did the State analyze the medical records on
this point at trial. See Trial Ex. 6, Roe Dep. 23 (noting
that a specialist had recommended treatment in 2004
without biopsy because liver disease was evident on
physical examination).
Finally, the State submits that Mr. Roe cannot establish
causation because the success of treatment for hepatitis C
is highly variable. Although the record supports the
conclusion that the long-term efficacy of interferon treat-
ment is not known, the record also supports the view that
the treatment denied Mr. Roe is the standard in the medi-
cal community and the standard in the prison medical
community. See R.110 at 130-31 (testimony from Dr. Elyea
noting that “[t]he experts feel” that reducing viral load
through interferon therapy is the appropriate treatment,
although, because the treatment is relatively new, long-
term efficacy is not known); see also Trial Ex. 3 at 44
(“Antiviral therapy is recommended for patients with
chronic hepatitis C and a liver biopsy with portal or
48 Nos. 09-1723 & 09-2107

bridging fibrosis and at least moderate inflammation
and necrosis.”); id. at 43 (“Inmates with suspected com-
pensated cirrhosis based on clinical and laboratory para-
meters should be either referred directly for liver biopsy
or treated empirically (without biopsy confirmation) in con-
sultation with a specialist.” (emphasis added)). In our
view, this evidence of the general standard of care is a
sufficient basis from which a jury reasonably could infer
that some of Mr. Roe’s injury and discomfort during
the relevant period is attributable to the failure of
IDOC to treat him consistent with that standard. More
importantly, we see no reason to conclude that the uncer-
tainty of the long-term efficacy of treatment prevents a
jury from concluding that the denial of that treatment, in
a specified period, resulted in an injury to Mr. Roe.
Accordingly, we conclude that the record contains
sufficient evidence of causation to support the jury’s
verdict in favor of Mr. Roe.2 5

2. Mr. Walker
The district court entered judgment as a matter of
law against Mr. Walker because it concluded that, al-

25
Given our conclusion that the record evidence is sufficient
to support an award for the period during and immedi-
ately following his 2004 incarceration, we need not address
Mr. Roe’s failure to obtain treatment on his own or any addi-
tional risk behaviors he may have engaged in that hastened
the progression of the disease after 2004 and caused further
identifiable injury.
Nos. 09-1723 & 09-2107 49

though Mr. Walker’s treatment had been delayed until
2007, Dr. Elyea was not responsible for that delay.
The plaintiffs’ general theory of liability was that
Dr. Elyea set IDOC policy and that the policy denied
them adequate care. The evidence at trial demonstrated
that, under the policy, Mr. Walker should have received
treatment earlier: Because of the length of his sentence,
the requirement of two additional years of incarceration
was no bar to treating him. Dr. Elyea, therefore, is not
liable in his policy-making role.
Mr. Walker posits an alternate theory of liability on
his claim against Dr. Elyea. Specifically, Mr. Walker
points to the response he received to a particular
grievance that he filed, which he believes demonstrates
that Dr. Elyea was involved personally in the decision to
delay his care. In it, the Health Care Unit Administrator,
Dave Huffman, states that treatment will not be
provided and that “[t]he Medical Director is monitoring
the disease process appropriately.” Doc. 1-160. Dr. Elyea
testified that each facility has an on-site medical director
who was involved in inmate-specific care decisions.
Dr. Elyea contends that Huffman must have been
referring to this director. In support of his argument, he
notes that other memos from Huffman refer to Dr. Elyea
as the “Agency Medical Director.” See, e.g., Trial Ex. 5,
Huffman Memo Re: Stephens (Apr. 19, 2004). In the
view of Dr. Elyea and of the district court, the “only
reasonable inference that arises is that [Huffman] meant
the medical director on site, not the agency medical
director.” R.88 at 14.
50 Nos. 09-1723 & 09-2107

A jury reasonably could not conclude, on the basis of the
reference to “Medical Director” in the Huffman memo
alone, that Dr. Elyea was responsible for the delay of care
to Mr. Walker. As the district court noted, the use of the
term was ambiguous, and, standing alone, could have
given rise to an inference that Huffman was referring
to Dr. Elyea; the other evidence in the record, however,
which demonstrates both that the on-site medical
directors, not Dr. Elyea, were involved in care deci-
sions and that Huffman himself employed different
terminology when referring to Dr. Elyea, makes clear
that the jury could not have drawn that inference rea-
sonably. Huffman’s use of the ambiguous term is
simply not sufficient, in light of the other evidence in
the record, to support a finding of Dr. Elyea’s personal
liability. Accordingly, we affirm the judgment of the
district court as to Mr. Walker.

3. Mr. Stasiak
The district court entered judgment as a matter of law
against Mr. Stasiak because it concluded that the Guide-
lines did not provide a clear directive for treatment in
his case. His ALT level was more than twice normal at
his initial test, and, over two tests in the following
five months, his levels remained elevated. The last of
these tests was reported in handwritten notes by the
medical staff on May 11, 2004. Mr. Stasiak’s “out date” was
December 8, 2004.
We respectfully disagree with the district court that
the Guidelines were unclear about Mr. Stasiak’s course
Nos. 09-1723 & 09-2107 51

of care. At the time of his May 11, 2004 lab values, taking
the evidence in the light most favorable to the jury’s
verdict,26 he had shown ALT levels of more than twice
normal on at least three tests conducted over a five-
month period. Under these circumstances, the Guidelines
recommend biopsy.2 7 Trial Ex. 3 at 43. However, at this
point in his incarceration, Mr. Stasiak had fewer than
six months remaining on his sentence, which was insuf-
ficient time to conduct a biopsy and give him even the
shortest recommended course of treatment for any geno-
type of hepatitis under the then-applicable version of
the Guidelines. Accordingly, we affirm the district court’s
entry of judgment as a matter of law for Dr. Elyea on
Mr. Stasiak’s claim.

26
The jury reasonably could have concluded that the May 11,
2004 notation by the medical staff that indicated ALT levels
as “ 8 ,” indicated that they had risen again from their
previous level, already more than twice normal.
27
We acknowledge that, subsequent to the early 2004 tests
which showed significant elevations in liver enzyme levels,
Mr. Stasiak’s late 2004 tests showed diminishing enzyme
levels that, standing alone, would not have required a biopsy
under the Guidelines. See infra n.11. Even at the time when
the medical evidence was most favorable to Mr. Stasiak’s
request for a biopsy and treatment, he would not have had
sufficient time remaining in the facility for even the shortest
course of treatment recommended by the Guidelines in
effect at the time.
52 Nos. 09-1723 & 09-2107

4. Mr. Stephen
The district court determined that Mr. Stephen had not
established that he had been harmed by Dr. Elyea’s two-
year policy. Specifically, the district court found that,
although the elevations in Mr. Stephen’s enzyme levels
were at times more than seven times the normal rates,
Mr. Stephen’s length of incarceration never permitted
him to undergo a complete course of treatment. That
is, although by the time of his 2005 incarceration,
Mr. Stephen had a history of significantly elevated
enzyme levels that would have called for biopsy under
the Guidelines, he was incarcerated thereafter only for
a period of seven months and a later period of two
months. Mr. Stephen submitted no evidence into the
record of his genotype of hepatitis to prove that he was
a candidate for the short, twenty-four-week treatment
period. As a result, the district court concluded that
Mr. Stephen failed to prove that Dr. Elyea’s policy caused
him any harm.
On appeal, Mr. Stephen does not point to any evidence
in the record that satisfies the failing identified by the
district court. Instead, we understand Mr. Stephen to
argue that he should not have been responsible for geno-
type testing because of the Guidelines’ recommenda-
tion that such testing be obtained in his circumstances.
Although this may be a correct statement of the Guide-
lines’ recommendation, and, indeed, might be relevant
to the issue of whether Mr. Stephen’s right was violated,
his failure to submit evidence on the issue of his geno-
type dooms his case. Because he failed to demonstrate
Nos. 09-1723 & 09-2107 53

that, by virtue of his genotype, he was a candidate for
the shorter course of treatment, he has not demonstrated
injury or causation as a result of the policy. Nor can the
failure of IDOC to obtain genotype testing itself
qualify as an injury, unless that failure to obtain the test
disqualified him from further treatment to which he
would have been entitled—a question we cannot answer
without knowing his genotype. Accordingly, we affirm
the court’s entry of judgment as a matter of law to
Dr. Elyea on Mr. Stephen’s claims.

Conclusion
For the reasons set forth above, we affirm the judg-
ment of the district court. The district court properly
upheld the jury’s verdict as to Mr. Roe, subject to its
remittitur, which was accepted by the Estate. Further, the
district court properly entered judgment as a matter of
law in favor of Dr. Elyea and against Mr. Walker,
Mr. Stasiak and Mr. Stephen.
A FFIRMED

1-28-11