In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1775
A PRIL O RTIZ, as administrator of the
E STATE OF M AY M OLINA,
Plaintiff-Appellant,
v.
T HE C ITY OF C HICAGO, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 7423—John F. Grady, Judge.
A RGUED F EBRUARY 15, 2011—D ECIDED A UGUST 25, 2011
Before R OVNER, W OOD , and E VANS , Circuit Judges.
W OOD , Circuit Judge. May Molina, a prominent civil
rights activist known for protesting police practices, died
Circuit Judge Evans died on August 10, 2011, and did not
participate in the decision of this case, which is being
resolved by a quorum of the panel under 28 U.S.C. § 46(d).
2 No. 10-1775
in custody over 24 hours after officers arrested her on
drug charges at her home. Molina was disabled, obese,
and in poor health. She took daily medications for
several ailments, including diabetes, a thyroid condition,
hypertension, and asthma. Pursuant to a Chicago Police
Department (CPD) policy that prohibits arrestees from
taking medications while in lockup unless they are taken
to a hospital, Molina had no access to her medications
while in custody. When she met with her lawyer about
16 hours into her detention, she could hardly speak, walk,
or stand. He told the lockup keepers to get Molina to
a hospital because she was clearly sick. None of the
guards on duty responded. Instead, her health deteri-
orated and she died alone in her cell.
April Ortiz, who is Molina’s daughter, is acting as the
administrator of Molina’s estate. (Appellant’s opening
brief represents that of the several plaintiffs who ap-
peared in the district court, the only one remaining is
the Estate. For convenience we refer to it as Ortiz.) First,
Ortiz argues that the district court improperly granted
summary judgment on her claim that the defendants,
collectively the City of Chicago and the lockup officers,
unreasonably denied Molina medical care by not taking
her to the hospital so that she could resume her medica-
tions. Embedded in this claim is an evidentiary issue,
because the court excluded Ortiz’s expert witness. Second,
Ortiz argues that the district court erred in granting
summary judgment for the defendants on her claim
that they unconstitutionally held Molina in custody for
27 hours without taking her before a judge for a probable
cause hearing. We reverse the district court’s grant of
No. 10-1775 3
summary judgment on the denial of medical care claim
but affirm on the delayed hearing claim.
I
Because Ortiz appeals from a grant of summary judg-
ment against her, we construe the evidence and rea-
sonable inferences from it in her favor. CPD officers
searched Molina’s home at 3526 N. Halsted Street
pursuant to an uncontested search warrant on May 24,
2004. Officers apparently received a tip from a con-
fidential informant stating that he had purchased small
amounts of drugs from Molina and from her son, Michael
Ortiz, who lived upstairs. Based on this information,
17 officers raided the two-flat apartments where Molina
and her son lived. There they recovered a number of
tinfoil packets and some brown putty. Officers later
arrested the two, but all charges against Michael Ortiz
were eventually dropped.
Molina required constant access to an array of medica-
tions to survive. She had Type II diabetes mellitus that
required medication (including Glipizide and Metformin)
and monitoring to ensure that her blood sugar was con-
trolled. Otherwise, she risked slipping into either a
hyperglycemic or hypoglycemic state, which could lead
to a fatal coma. She also suffered from life-threat-
ening hypertensive and thyroid conditions, both of
which required medication (including Fursosemide,
Enalapril, and Potassium Chloride) and monitoring. She
used a wheelchair or walker to get around. At the time of
her arrest (10:07 p.m. on May 24), Molina informed the
4 No. 10-1775
officers that she took thyroid and diabetes medications
and asked whether she could bring them along. The
officers told her that medications were not permitted
in lockup.
Initially, Molina was detained briefly at the 23rd
District lockup, which does not have a women’s unit. Ortiz
brought Molina’s medications to that facility, explaining
to the officer on duty (who is not a defendant in this
lawsuit) that her mother needed the medications “to
save her life.” The officer refused to accept the medica-
tions, stating that Molina would soon be transferred to
the 19th District lockup and then taken to Cermak
Hospital where she would be provided with medical care.
Molina arrived at the 19th District lockup at 4:25 a.m.
on May 25. At that time, Officers Avis Jamison and
Authurine Pryor were staffing the 9:30 p.m. to 5:30 a.m.
overnight shift. Officer Jamison, in Pryor’s presence,
interviewed Molina upon arrival to create what the
parties call the screening record. She asked if Molina had
any “serious medical problems,” and Molina responded
that she did. Molina described her medical problems to
Jamison, who noted on the screening record that Molina
was taking medicine for diabetes, thyroid-related issues,
and other conditions. Jamison did not inquire further
about the type or frequency of Molina’s medications.
After completing the screening record, Jamison took it to
the front desk, where it remained accessible to all front
desk personnel. Officer Pryor photographed and finger-
printed Molina, and also asked her routine questions
about whether she was sick, injured, or in need of medical
No. 10-1775 5
assistance. Pryor says that Molina responded that she
was fine and did not want to go to the hospital.
During this time, another arrestee, Diane Rice, was
detained at the 19th District lockup. She heard Molina
yell several times for a doctor and a wheelchair, though
exactly when is unclear. Rice recounted that after
Molina yelled for a doctor, someone yelled back: “Ma’am,
we asked you when you came in if you needed a doctor,
and you said no.” Rice also asserts that the officers did
not conduct the requisite 15-minute cell checks.
After Molina was photographed and fingerprinted,
CPD personnel transmitted her prints to the “10-print”
unit for verification. Around 5:30 a.m., Officer Pryor
observed Molina walk back to her cell after making a
phone call. Pryor estimated that it took Molina five to
seven minutes to walk a distance of about 30 feet. The
next shift began at 5:30 a.m. on May 25, at which
point Officers Catherine Ziemba and Tamara Lemon-
Richmond took over. During the shift change, Pryor
informed Ziemba that Molina had trouble walking and
would need a “special needs” car to go to court because
she was obese and moving slowly. By about 7:00 a.m.,
Molina’s identity was manually verified and confirmed.
CPD personnel then transmitted Molina’s information
to the “Instant Update Unit,” which transferred her
arrest history from a typewritten form to a computer
database and checked for outstanding warrants.
At 12:12 p.m. all administrative tasks that were
needed before Molina could be taken to bond court
were completed. Neither Ziemba nor Lemon-Richmond
6 No. 10-1775
tried to send her to bond court before their shift ended
at 1:30 p.m.
Another shift change took place at 1:30 p.m., at which
point Officers Diane Yost and Beverly Gilchrist took
charge of the lockup until 9:30 p.m. Around 4:00 p.m.,
Molina’s long-time attorney, Jerry Bischoff, arrived to
speak with his client. Yost and Gilchrist escorted Molina
to meet with Bischoff. According to Yost, it took Molina
several minutes to walk a few feet, and she had to hold
on to the wall to make any progress. Bischoff’s testi-
mony provides the clearest insight into Molina’s health
during this time. He said that Molina, whom he had
never seen out of a wheelchair, was “having difficulty
breathing” and “was breathing like someone who had
just . . . run up a flight of stairs.” Bischoff further noted
that Molina was groggy, exhausted, and could not stand
up on her own. Upon making these observations,
Bischoff concluded that it would be unproductive to
discuss Molina’s case with her at that time and instead
he inquired about her health. He asked if she was
diabetic, and Molina, unable to speak, nodded her head
yes. Bischoff then asked how she took her medication,
and she gestured that she did so orally. When Bischoff
inquired whether she had been able to take her medica-
tions while in lockup, Molina gestured to indicate that
she had not. Bischoff thought that Molina belonged in
the hospital and terminated the meeting. He then told
Yost and Gilchrist that Molina needed to go to Cermak
Hospital because she was “clearly sick.” According to
Bischoff, the officers responded, “we are working on
No. 10-1775 7
it, counsel.” Yost denies being present at that time, and
Gilchrist contends that this exchange never occurred.
Officer Maja Ramirez was working at the front desk,
where Officer Jamison had previously deposited Molina’s
screening record, on May 25. During her shift, Ramirez
received five to ten calls from a number of different
people informing her that Molina needed to take her
medications or go see a doctor. Ramirez says she did not
recall whether the callers told her about specific medica-
tions, nor did she ask any follow-up questions. Instead
she told each caller that a request for medication must
come from the detainee, not a third party. Ramirez also
says that she informed one of her supervisors about
the phone calls after receiving the first few. Ramirez did
not take any further action, such as walking to the
lockup to see if Molina was all right, because that was
not her job. The plaintiffs say that the supervisors on
duty at the time were Sergeant Debra Holmes and Lieuten-
ant William Wallace. Neither of the supervisors took
any responsive action.
Officer Jamison returned to work the 9:30 p.m. to
5:30 a.m. overnight shift on May 25 with Officer Martha
Gomez. Jamison is the only officer who had direct
contact with Molina on two different shifts. At 11:00 that
night, another arrestee, Jasmine Vaccarello, arrived in
lockup. Vaccarello says that she heard Molina yell for
attention when she first arrived. While Vaccarello was
being led to her cell, she heard Molina ask the guards
for her medications, a walker, and a telephone call. Ac-
cording to Vaccarello, the officers on duty, Jamison and
8 No. 10-1775
Gomez, ignored Molina. While Vaccarello was in her
cell, she heard Molina call out for help, but to no avail.
At some point, Vaccarello became concerned enough
that she called out for help on Molina’s behalf, at which
point either Jamison or Gomez yelled back: “shut the f---
up!” Vaccarello says that the officers on duty that night
did not conduct the required 15-minute cell checks.
Finally, Vaccarello explains that she heard what sounded
like snoring coming from Molina’s cell, but that over
time the sound became shallower. Eventually, she could
no longer hear Molina at all. At 2:45 a.m. on May 26,
Jamison noticed Molina unresponsive in her cell. She
had passed away.
A post-mortem examination conducted by the Cook
County Medical Examiner, Dr. Eupil Choi, revealed
that Molina had ingested six tinfoil packets before
her demise. Toxicology reports showed that she had
morphine in her blood at the time of death. Based on this
information, Dr. Choi concluded that Molina died from
opiate intoxication complicated by obesity and cirrhosis
of the liver. Ortiz’s expert witness, Dr. Adelman, whose
testimony the district court excluded on Daubert grounds,
offered a competing opinion about the deterioration
of Molina’s health while in custody. Dr. Adelman con-
cluded that the deprivation of her medications for
diabetes and thyroid caused Molina to fall into a
myxedematous or diabetic coma, which eventually led
to her death. Dr. Adelman also stated that even if
Molina died of a heroin overdose, which he did not
think was the case, she could have survived had she
been taken to the hospital for medical care.
No. 10-1775 9
II
This lawsuit began when Michael Ortiz and another
plaintiff sued the City of Chicago and several police
officers on November 16, 2004 for § 1983 constitutional
and state law claims. On February 23, 2005, an amended
complaint added April Ortiz, Molina’s daughter, to the
lawsuit. Initially, the claims related to the arrest and
detention of Michael Ortiz and May Molina, but on
appeal our concern is only with Ortiz’s federal claims
on behalf of her mother’s estate, arising from Molina’s
detention and death. Unfortunately, this lawsuit has
taken a long and choppy path. One consequence of this
is that Ortiz’s medical expert, Dr. Adelman, did not
have access to all of the relevant materials until late in
the game. That is why, Ortiz says, Dr. Adelman sub-
mitted four different versions of his report to the court.
Ortiz also asserts that the district court’s grant of the
defendants’ motion for a stay of discovery prevented
them from identifying two important witnesses, Rice
and Vaccarello, until quite late in the proceedings.
Finally, we note that there appears to be an unresolved
dispute concerning whether the City of Chicago
stipulated to accept liability in this lawsuit if any of the
defendants was found to be liable.
Reflecting the staggered development of the case, the
district court resolved the two substantive issues Ortiz
raises on appeal in two different orders, and it addressed
her evidentiary issue in two more orders. Disposing of
the plaintiff’s ineffective medical care claim on May 13,
2008, the court concluded that only two of the
10 No. 10-1775
defendants were sufficiently on notice that Molina was
in need of medical care. These defendants, it held, were
entitled to summary judgment because the plaintiff
failed to put forth enough evidence on the proximate
cause of Molina’s death. The absence of evidence on
proximate causation, as the court acknowledged,
stemmed from the court’s prior exclusion of the plain-
tiff’s expert witness in an order dated October 7, 2007.
The court concluded that Ortiz had failed to remedy
the weaknesses in Dr. Adelman’s testimony by the time
of summary judgment. On February 18, 2010, the court
granted summary judgment for the two defendants
named in conjunction with the plaintiff’s Gerstein
claim, concluding that they were not responsible for
any delay in getting Molina to a bond hearing. We con-
sider first the medical care claim, including the evidentiary
point, and then the hearing claim.
III
A
The court rejected Ortiz’s claim that Molina received
constitutionally inadequate medical care in its order of
May 13, 2008. Our review is de novo, and we construe
all facts and reasonable inferences in the light most favor-
able to Ortiz, the nonmoving party. Stokes v. Bd. of Educ.,
599 F.3d 617, 619 (7th Cir. 2010). Before delving into the
facts, the court determined that the Fourth Amendment’s
reasonableness standard governs this inquiry, rather
than the deliberate indifference standard derived from
the Eighth Amendment and applied to claims from de-
No. 10-1775 11
tainees awaiting a trial by virtue of the Due Process
Clause. Because Molina had not yet benefitted from a
judicial determination of probable cause, otherwise
known as a Gerstein hearing, we agree that the Fourth
Amendment applies. See Lopez v. City of Chicago, 464 F.3d
711, 719 (7th Cir. 2006) (“Our cases thus establish that
the protections of the Fourth Amendment apply at arrest
and through the Gerstein probable cause hearing, due
process principles govern a pretrial detainee’s condi-
tions of confinement after the judicial determination of
probable cause, and the Eighth Amendment applies
following conviction.”); Williams v. Rodriguez, 509 F.3d
392, 403 (7th Cir. 2007).
Four factors inform our determination of whether an
officer’s response to Molina’s medical needs was objec-
tively unreasonable: (1) whether the officer has notice
of the detainee’s medical needs; (2) the seriousness of the
medical need; (3) the scope of the requested treatment;
and (4) police interests, including administrative, penologi-
cal, or investigatory concerns. Williams, 509 F.3d at 403.
Ortiz must also show that the defendants’ conduct caused
the harm of which she complains. See Gayton v. McCoy,
593 F.3d 610, 620 (7th Cir. 2010). The district court
properly narrowed the analysis by concluding that
third and fourth factors are off the table in this case
because the defendants do not assert that taking Molina
to the hospital would have been burdensome or compro-
mised any police interests. Our focus therefore is on
whether each individual defendant was on notice of
Molina’s condition, the seriousness of her medical needs,
and whether their failure to act caused her harm. As we
12 No. 10-1775
explained in Williams, “[t]he severity of the medical
condition under this standard need not, on its own, rise
to the level of objective seriousness required under the
Eighth and Fourteenth Amendments. Instead, the Fourth
Amendment’s reasonableness analysis operates on a
sliding scale, balancing the seriousness of the medical
need with the third factor—the scope of the requested
treatment.” 509 F.3d at 403.
The defendants do not dispute that the Williams frame-
work should guide our analysis, but they urge us to
focus primarily on another consideration. In light of the
inquiry we have just described, the defendants contend
that the conduct of the officers should be viewed in light
of the “short detention period” that usually spans the
time between arrest and the bond hearing. Since the
detention period should not generally exceed 48 hours,
see County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991),
they contend that lockup keepers should not be required
to whisk arrestees off to the hospital every time there
is a complaint. We agree with the defendants that the
relatively short period of time that a detainee spends in
lockup is pertinent to the analysis. Some medical pro-
cedures are urgent, but many are not time-sensitive
within a reasonable period. This general proposition,
however, is not a license for lockup keepers to deny
all arrestees all medical care simply because they will
probably be transferred within 48 hours. To the contrary,
“when the State takes a person into its custody and
holds [her] there against [her] will, the Constitution
imposes upon it a corresponding duty to assume some
responsibility for [her] safety and general well-being.”
No. 10-1775 13
See DeShaney v. Winnebago Cnty. Dep’t of Soc. Serv., 489
U.S. 189, 199-200 (1989). Each state actor who encounters
a detainee must reasonably respond to medical com-
plaints; a detainee cannot be treated like a hot potato, to
be passed along as quickly as possible to the next holder.
The duty to respond reasonably to an arrestee’s
medical needs is affected by any police policies that may
endanger the well-being of those in custody. Here, the
CPD’s policy of prohibiting detainees from taking med-
ication in lockup unless the individual is transported to
Cermak Hospital is central to our inquiry. We have no
occasion to comment on whether that policy is wise as a
general matter, but its existence cannot be ignored.
When a state actor detains a known diabetic in a facility
that separates her from the drugs that keep her alive,
it must take her medical needs into account in deciding
what justifies a trip to the hospital. Presumably, at
least part of the function served by creating a screening
record for each detainee upon arrival is to gain the in-
formation about her health status that is needed to
ensure that she remains safe while in custody. In short,
in cases like this we must consider everything that
each officer knew about Molina’s deteriorating health
in light of the amount of time she was in custody and
the CPD’s policy that detainees could not obtain any
medication unless they were sent to the hospital.
With these principles in mind, we examine whether
the conduct of each defendant was objectively reasonable
under the circumstances. As our discussion of the facts
indicates, each of them had some notice that Molina’s
14 No. 10-1775
health was bad. The question on summary judgment
is whether a jury could find that it was objectively unrea-
sonable for each defendant to take no action to seek
medical care for Molina based on what she knew at the
time. We will evaluate the case against each officer in
the order that she encountered Molina.
The evidence against Jamison, who worked two
9:30 p.m. to 5:30 a.m. shifts, first on the night Molina was
booked and then on the night she died, consists of the
following: (1) She created Molina’s screening record,
making note of the fact that Molina suffered from and
took medications for various serious medical conditions,
including diabetes; (2) According to Rice, Molina yelled
out a request for a doctor after she was placed in her cell
while Jamison was on duty; (3) Molina was still in
custody on May 26, when Jamison began her shift that
day, and Jamison knew Molina had not yet been taken to
her bond hearing (and thus could infer that, because
Molina had never left the lockup, she had not had access
to any of her medications); and (4) On the night of May 26,
according to Vaccarello, Molina again yelled for help
and asked for her medications.
The defendants respond by attacking the credibility
of Rice and Vaccarello, who were in lockup with Molina.
But none of their arguments undercuts the value of this
testimony at summary judgment, where we resolve all
disputed facts and make all reasonable inference in
favor of the plaintiff and do not weigh the credibility of
witnesses. We decline the defendants’ invitation to disre-
gard Rice’s and Vaccarello’s statements. We acknowl-
No. 10-1775 15
edge that Jamison and Pryor assert that Molina said
she did not need to go to the hospital when she first
arrived. But a jury would not be required to believe this
account, particularly since Molina’s death precludes her
from testifying on her own behalf. See Cobige v. City of
Chicago, Ill., 2011 WL 2708756, at *2 (7th Cir. July 12,
2011). Rice’s testimony, if credited by a jury, establishes
that Molina requested a doctor shortly after she was
booked, and Vaccarello’s testimony establishes that she
called out for her medications shortly before she died.
Based on the evidence in the record, a jury could
conclude that Jamison was on notice that Molina was
suffering from a serious medical condition that required
attention. See Egebergh v. Nicholson, 272 F.3d 925, 927-28
(7th Cir. 2001).
Officer Pryor, like Jamison, first encountered Molina
in the early morning hours of May 25. The evidence
against her is a subset of the evidence against
Jamison—Pryor asked Molina about her health when
she first arrived, observed her condition at the time, was
present when Jamison interviewed Molina to create
her screening record, and was present when (according
to Rice) Molina called out for a doctor. For largely the
same reasons that apply to Jamison, we think that a
reasonable jury could infer from this evidence that
Pryor was on notice that Molina was suffering from a
serious medical condition that required attention. When
an officer knows that an arrestee has an array of
medical conditions as serious as Molina’s, a call for
help from the arrestee asking to see a doctor is sufficient
to create notice of a serious medical need. Thus, we
16 No. 10-1775
hold that there is a genuine issue of fact with respect
to Jamison’s and Pryor’s notice of Molina’s need for
prompt medical attention. A jury could thus find
that their failure to get Molina to the hospital was unrea-
sonable.
We need not linger too long on whether Officers Yost
and Gilchrist, who staffed the following shift from
1:30 p.m. to 9:30 p.m. on May 25, were on notice that
Molina needed help. They were on duty when Bischoff,
Molina’s attorney, met with her that afternoon.
Bischoff says that he directly told them that Molina
was “clearly sick” and needed to be taken to the hospi-
tal. Given that (according to Bischoff) Molina was
unable to speak at the time, we cannot imagine more
direct notice that she needed medical care. Yost’s
assertion that she was not present when Bischoff spoke
to Gilchrist, and Gilchrist’s denial that Bischoff ever
made that statement, are immaterial to our present
inquiry. We of course resolve these disputed facts in
Ortiz’s favor.
Although the district court ultimately concluded that
Yost and Gilchrist were on notice, the court appeared to
doubt the import of Bischoff’s testimony because “it is
unclear whether Ms. Molina’s problems observed by
Mr. Bischoff . . . were symptomatic of diabetes or a thyroid
condition.” But whether Bischoff or anyone else knew
precisely what was the root cause of Molina’s physical
distress is not at issue here. Lockup keepers are not
medical professionals; neither are attorneys or other
detainees who happen to observe an arrestee in jail.
The question is not whether a particular defendant
No. 10-1775 17
knew what was wrong with Molina, but rather whether
the defendant, based on what she observed herself and
learned from others, should reasonably have known that
Molina needed medical care. We therefore reject the
defendants’ assertion that Yost and Gilchrist should be
excused because they could not have known why
Bischoff thought that Molina needed to be hospitalized.
We conclude that there is triable issue as to whether
they were on notice that Molina needed medical care.
We turn next to Ortiz’s related claims against Ramirez,
Wallace, and Holmes. The claim against Ramirez arises
solely from the fact that while she worked the front desk
on May 25, she received five to ten calls stating that
Molina needed either her medication or a doctor. The
defendants say that this alone is insufficient to put
Ramirez on notice that Molina needed medical care
because Ramirez could not have known who was calling
or if the caller was lying about Molina’s need for medica-
tion. And, they assert, Ramirez herself did not have the
authority to dispense medication to Molina or personally
to take her to the hospital. All she could do was notify
her supervisors, which she did.
The contention that the calls did not put Ramirez on
notice that Molina needed her medication because the
caller could have been lying is nonsensical. That explana-
tion may shed light on why Ramirez failed to act once
she was on notice—because she thought the caller was
lying—but it does not refute the receipt of notice. Was
it reasonable to do nothing aside from notifying her
supervisors after receiving the calls? That, in our view, is
18 No. 10-1775
the very question that the jury should decide. So we
conclude that there is a triable issue as to whether
Ramirez was on notice that Molina needed medical care.
For the same reason, we conclude that Ramirez’s super-
visors, Wallace and Holmes, were also on notice. We
recognize that the defendants now contend, for the first
time, that Ramirez worked during the daytime, not the
evening, and so she could not have informed supervisors
Wallace and Holmes (who apparently worked nights)
about the phone calls. Evidence on this issue is not part
of the record. To the contrary, the district court was
under the impression that Ramirez worked during the
evening, supporting the plaintiff’s narrative of the se-
quence of events. The parties should resolve this issue
on remand.
Finally, we turn to Officer Gomez, who with Jamison
worked the shift beginning at 9:30 p.m. on the night that
Molina died. As discussed above, the testimony of
Vaccarello, the detainee housed in the cell next to
Molina’s that last night, provides the best evidence that
the officers working that shift were on notice that she
needed medical care. Indeed, the district court concluded
that Vaccarello’s testimony creates a triable issue with
regard to the officers on duty at the time, but the court
appears erroneously to have believed that Yost and
Gilchrist, not Jamison and Gomez, were on duty then.
The defendants contend that Gomez never saw Molina
awake or spoke to her, and so she could not have
known that Molina needed any medical care. Without
Vaccarello’s testimony, that may have been undisputed.
But in light of Vaccarello’s statement that Molina called
No. 10-1775 19
out for her medications, we conclude that Gomez too
was on notice that Molina needed medical attention.
Thus, we conclude that defendants Jamison, Pryor, Yost,
Gilchrist, Ramirez, Wallace, Holmes, and Gomez had
sufficient notice that Molina needed medical care to
treat a serious medical condition. This, combined with
the fact that it would not have been difficult to
transport Molina to the hospital and no police interests
stood in the way of that treatment, leads us to conclude
that Ortiz has put forth enough facts to survive
summary judgment. Certainly, the evidence is of varying
strength against each defendant, but at this stage we do
not weigh the proof, make credibility determinations,
or resolve narrative disputes. Those tasks are left for
the trier of fact.
B
We must, however, resolve another issue before any
of these defendants can be compelled to face a jury.
Ortiz must present evidence sufficient to permit a jury
to infer that the defendants’ failure to act was a source
of harm for Molina. The district court initially framed
the causation inquiry as follows: “whether the admis-
sible evidence does create a genuine issue as to whether,
had [the defendants] done what they should have done
in light of what they observed about May Molina, and
seen to it that she was taken to a hospital where she
could have been diagnosed and treated, she would not
have died or have experienced pain and suffering prior
to her death.” This is the proper issue for analysis, but it
20 No. 10-1775
is not the one that the court pursued. Instead, it looked
at a much narrower issue: whether the plaintiff could
prove that the failure of the defendants to provide
Molina with access to her medications proximately
caused her death. With the issue thus framed, the court
focused its attention on the plaintiff’s expert witness,
Dr. Adelman. After excluding Dr. Adelman’s testimony
under Federal Rule of Evidence 702, the court concluded
that the plaintiff’s case necessarily failed on the issue
of causation. We think the district court misunderstood
the proximate cause inquiry and, relatedly, abused its
discretion in excluding Dr. Adelman’s testimony. We
also conclude it was an error for the court to disregard
the testimony of Ortiz’s second expert, Dr. Joye M. Carter.
Gayton v. McCoy illustrates how the district court
should have conducted the proximate causation analysis.
593 F.3d at 624-25. There, the detainee entered county
jail complaining of chest pain. The defendants knew
that the detainee suffered from a serious heart condition
and high blood pressure, but she was not provided
with any medication or examined by a doctor. While in
custody, she began suffering from heroin withdrawal
and vomited violently. Soon after, she died. The district
court decided that the plaintiff needed to show,
through expert testimony, that the defendant’s inaction
caused the detainee’s death. Id. at 624. After excluding
the plaintiff’s expert under Rule 702, the court granted
summary judgment for the defendants. We reversed, ex-
plaining that “even if the plaintiff could not proffer expert
testimony,” she still had “adequate causation evidence” to
get the case to trial. Id. We emphasized that “[p]roximate
No. 10-1775 21
cause is a question to be decided by a jury, and only in
the rare instance that a plaintiff can proffer no evidence
that a delay in medical treatment exacerbated an
injury should summary judgment be granted on the
issue of causation.” Id.
With the proper causation inquiry identified, it
becomes apparent that expert medical testimony estab-
lishing the cause of death is not required in this kind of
case at summary judgment. Where an obviously ill de-
tainee dies in custody and the defendants’ failure to
provide medical care is challenged, the causation
inquiry is quite broad: “the constitutional violation in
question here is the failure to provide adequate medical
care [] in response to a serious medical condition, not
‘causing her death.’ ” Id. at 619; see also Egebergh, 272
F.3d at 928 (reversing summary judgment because a
jury could infer that depriving arrestee of one insulin
shot exposed him to substantial danger). Here, a jury
could infer, based on medical records and witness testi-
mony, that the defendants caused Molina harm when
they failed to take her to the hospital after they knew
she suffered from a serious medical condition.
To avoid this result, the defendants cite Myers v. Illinois
Central R.R. Co., 629 F.3d 639 (7th Cir. 2010), for the propo-
sition that expert testimony is necessary to establish
causation. Myers was a Federal Employment Liabilities
Act (FELA) case that stated it is the norm for a plaintiff
to provide expert testimony to establish “specific causa-
tion” for “cumulative trauma disorders.” Id. at 642 (dis-
cussing the debate over how plaintiffs must establish
22 No. 10-1775
causation under FELA). That general FELA rule is of no
help to these defendants, because Ortiz is not required to
show “specific causation” for a particular result; she
needs only to establish that the failure to take Molina to
the hospital was unreasonable under the circumstances
and that it caused her some harm. The defendants also
argue that, to the extent that the plaintiff claims that
Molina was harmed by a delay in medical care, she must
produce “verifying medical evidence.” True, in Langston
v. Peters, we said that in delay of medical care cases, a
plaintiff must produce “verifying medical evidence.” 100
F.3d 1235, 1240-41 (7th Cir. 1996). Yet although expert
testimony satisfies this requirement, non-expert evidence
is sufficient as long as it permits the fact-finder to deter-
mine whether the delay caused additional harm. See
Williams v. Liefer, 491 F.3d 710, 715 (7th Cir. 2007); see also
Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008)
(holding that absent expert testimony, a jury could infer
that the defendant’s delay in providing care caused the
plaintiff “many more hours of needless suffering for no
reason.”). In any event, this is not a delay-of-medical-
care case, since Molina died before receiving any care.
Moreover, even if only a delay in providing medical care
were at issue here, there is enough non-expert verifying
medical evidence in this record to survive summary
judgment.
All that said, the district court was nevertheless
mistaken to exclude Dr. Adelman’s testimony and to
disregard that of Dr. Carter. Though the plaintiff does not
need the expert testimony to survive summary judg-
ment, the testimony remains important to the force of
No. 10-1775 23
her case. On one level, how (if at all) the defendants’
failure to act ultimately caused Molina harm is an
inquiry that would benefit from the input of experts. But
lurking just below the surface of this question is the
mystery of what actually caused Molina’s death: a
heroin overdose from small packages of drugs she alleg-
edly swallowed just before she was arrested, or the depri-
vation of her life-saving medications? Ortiz argues that
Dr. Adelman’s testimony should be admitted in support
of her argument that the defendants’ inaction caused
Molina’s death, in addition to needless pain and suffering.
We assume that at trial, the defendants will support
their theory of a heroin overdose.
Under Rule 702, expert testimony is admissible if (1) the
testimony is based on sufficient facts or data; (2) the
testimony is the product of reliable principles and meth-
ods; and (3) the witness has applied the principles and
methods reliably to the facts of the case. F ED. R. OF E VID.
702; Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).
The district court has significant latitude in determining
how to measure the reliability of the proposed expert
and whether the testimony is in fact reliable. Gayton,
593 F.3d at 616. Still, the court must provide “more
than just conclusory statements” about admissibility to
show that it properly performed its gatekeeping function.
Id. The admissibility determination is not intended to
supplant the adversarial process, and so even “shaky”
testimony may be admissible. Id.
In his January 2, 2008, report, Dr. Adelman said that
it was his opinion, “to a reasonable degree of medical
24 No. 10-1775
probability, that Ms. Molina, deprived of her diabetic
and thyroid medications, fell into a comatose state, most
likely a diabetic coma or myxedematous coma, and died.
Had she been brought to a hospital even as late as when
her lawyer visited with her, the outcome would, to a high
degree of medical probability, been much different.”
Dr. Adelman, therefore, disagreed with the medical exam-
iner’s conclusion that Molina died of a narcotic overdose.
Nevertheless, Dr. Adelman also opined that even if she
had overdosed, death could have been averted if she
had been taken to the hospital.
The district court identified three key problems with
Dr. Adelman’s testimony: (1) his failure to consult
Molina’s medical records or her treating physician;
(2) his failure to discuss the prescribed dosages of her
medicine; and (3) his “speculative” conclusions. In the
end, the district court concluded that Dr. Adelman’s
testimony was not based on sufficient data, and, citing
General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997), the court
said that “there is simply too great an analytical gap
between the data and the opinion proffered.” We point out
that the court did not conclude that Dr. Adelman was
unqualified to provide expert testimony on the effect of
depriving Molina of her medicine. Indeed, the court noted
that Dr. Adelman could have acquired the relevant data
from Molina’s treating physician to make his testimony
more reliable. Cf. Gayton, 593 F.3d at 618-19 (finding
expert unqualified to testify about effect of cardiac med-
ications for inmate’s congenital heart failure because
he lacked training in cardiology or pharmacology,
but qualified to testify whether vomiting and diuretic
No. 10-1775 25
medications contributed to her illness and subsequent
death).
Our review of the record shows that the district court
was mistaken about the data on which Dr. Adelman
relied. Part of the problem may be that, because of the
defendants’ foot-dragging approach to discovery,
Dr. Adelman found it necessary to submit at least four
different reports over a three-year period, developing
his analysis as he had access to more data. Dr. Adelman’s
final report, dated January 2, 2008, does not list every-
thing he consulted to make his findings, but the previous
reports do. His August 20, 2005, report relied on a long
list of Molina’s medical and legal records, including:
(1) Norwegian Hospital medical records of May Molina
for December 29, 2003, admission (about five months
before her arrest); (2) medication list; (3) autopsy report
and photos; (4) toxicology report; (5) deposition of Dr.
Choi, Chief Medical Examiner; (6) CPD arrestee history
and supplementary reports; and (7) legal documents,
including complaint and search warrant. By the time Dr.
Adelman submitted his March 6, 2007, report, Ortiz had
collected more information from the defendants about the
night of Molina’s death, including the names of several
witnesses who saw Molina while in lockup. And for the
January 2, 2008, report, Dr. Adelman had reviewed
more information about Molina’s prescribed medications.
In particular, Dr. Adelman listed and discussed the
following medications prescribed to Molina: Glipizide, 10
mg; Metformin, 1,000 mg; Furosemide, 80 mg; Potassium
Chloride, 20 mEq; Albuterol inhaler; Enalapril, 5 mg; and
Ibuprofen, 800 mg.
26 No. 10-1775
Based on this information, it is plain that the district
court’s central reason for excluding Dr. Adelman’s testi-
mony—that his opinion was based on insufficient data—
was founded on an erroneous understanding of the
factual record. This alone constitutes an abuse of discre-
tion requiring reversal. See Musser v. Gentiva Health Serv.,
356 F.3d 751, 755 (7th Cir. 2004) (a district court’s decision
to exclude evidence based on clearly erroneous factual
findings is an abuse of discretion). We briefly address
the district court’s other concerns to simplify proceedings
on remand. First, Dr. Adelman’s supposed failure to
consult with Molina’s treating physician is something
that would go only to the weight, not to the admissibility,
of his opinion. In fact, it is not evident that Molina had
a primary care physician at the time. More importantly,
once we take full stock of the material Dr. Adelman
considered in developing his expert opinion, we do not
see what additional information he could have dis-
covered from speaking to a primary care physician that
he did not already have before him. This is especially
true since Dr. Adelman examined the records from
Molina’s hospital visit only five months before her ar-
rest. Second, we do not see why the district court was
so concerned that Dr. Adelman failed to discuss how
often Molina took each of her prescribed medications.
Molina was deprived of all medication for over 24 hours.
Dr. Adelman’s opinion is that this was too long, and
that this degree of deprivation caused her harm and
ultimately her death. Under these circumstances, we
cannot agree that Dr. Adelman’s failure to discuss how
often Molina took each medication is dispositive of
whether his expert opinion is reliable.
No. 10-1775 27
As in Gayton, Dr. Adelman’s expert opinion was derived
from examining a “cold record,” including an autopsy
report, medical records, and the testimony of prison
guards and other witnesses. 593 F.3d at 618. His opinion
explaining what he believes happened to Molina in
the final hours of her life need not conclusively and
indisputably attest to the cause of her death. See id. at 619
(“As we have held on many occasions, an expert need
not testify with complete certainty about the cause of an
injury; rather he may testify that one factor could have
been a contributing factor to a given outcome.”). The
district court’s concern that Dr. Adelman’s testimony
did no more than provide “a series of hypotheses
about what could have happened” is misplaced. See
Walker v. Soo Line R.R. Co., 208 F.3d 581, 587 (7th Cir. 2000).
Similarly, the defendants’ assertion that Dr. Adelman’s
ultimate conclusions are incorrect should be redirected
toward the jury. We conclude that the court should have
accepted Dr. Adelman as an expert witness.
We can be brief with the court’s rejection of Dr. Carter.
Dr. Carter’s testimony was limited to whether, assuming
that she died of a heroin overdose, Molina would have
suffered less if she had been taken to the hospital. The
defendants assert that the court decided not to consider
Dr. Carter’s testimony because it was untimely, but once
again the record does not support that assertion. As with
other aspects of this case, the choppy nature of the pro-
ceedings seems to have generated more than a little
confusion. The record shows that the court gave the
parties until January 8, 2008, to name additional experts.
Dr. Carter’s report is dated January 5, 2008, comfortably
28 No. 10-1775
within that deadline. Ortiz appears to have submitted the
final report of Dr. Adelman along with Dr. Carter’s report,
but the court considered only Dr. Adelman’s testimony.
On top of all that, the defendants have not shown us
any ruling of the district court excluding Dr. Carter as
untimely. They merely hypothesize about why the court
failed to mention her. We are not persuaded by this
conjecture; on remand, the court should evaluate the
admissibility of Dr. Carter’s testimony in light of the
principles we have outlined in this opinion. To minimize
confusion in future proceedings, we reiterate that the
proper question is whether Dr. Carter’s testimony could
help the jury understand whether the defendants’
failure to take Molina to the hospital exacerbated her
injury. It is not necessary, although it would be permis-
sible, for her to testify about the precise cause of
Molina’s death. See Cobige, 2011 WL 2708756, at *2
(holding that medical expert’s testimony was admissible
on whether someone with the decedent’s symp-
toms should have been taken to the hospital).
C
In light of our decision to reverse the grant of summary
judgment in favor of the seven defendants mentioned
above, we must address the defendants’ qualified immu-
nity defense. They argue that the uncertainty over
whether the “deliberate indifference” or “objectively
unreasonable” standard governs the medical care claim
entitles them to qualified immunity. They argue that until
2007, when we decided Williams v. Rodriguez, 509 F.3d
No. 10-1775 29
392 (7th Cir. 2007), and Sides v. City of Champaign, 496
F.3d 820 (7th Cir. 2007), no decision had applied the
Fourth Amendment to analyze the reasonableness of the
provision of medical care to arrestees. While that may be
true, we have long held that the Fourth Amendment
protects a person’s rights until she has had a probable
cause hearing. See Luck v. Rovenstine, 168 F.3d 323, 326
(7th Cir. 1999) (“There is, to be sure, a difference between
the constitutional provisions that apply to the period of
confinement before and after a probable cause hearing: the
Fourth Amendment governs the former and the Due
Process Clause the latter.”); Villanova v. Abrams, 972
F.2d 792, 797 (7th Cir. 1992) (same). The multifactor test
announced in Sides and clarified in Williams was unan-
nounced at the time of Molina’s death, yet it was quite
clear that the Fourth Amendment applied to her stage
of the criminal process.
But even if we were to assume that the standard we
have applied in this case was not clearly established at
the time Molina died, the outcome of this case would be
unaffected. To survive summary judgment, Ortiz would
then be required to satisfy the more stringent deliberate
indifference standard. This, however, is not a case that
turns on the difference between the two standards. Ortiz’s
argument, if credited by a jury, satisfies the deliberate
indifference standard because she argues that defendants
were subjectively aware that Molina had a serious
medical condition that needed care and they failed to
respond adequately. See Sherrod v. Lingle, 223 F.3d 605,
610 (7th Cir. 2000). The defendants do not argue that
Molina did not suffer from an objectively serious
medical condition. The question is only whether the
30 No. 10-1775
officers’ failure to act was not only negligent, but deliber-
ately indifferent. Yet it is well settled that providing no
medical care in the face of a serious health risk constitutes
deliberate indifference. See Walker v. Benjamin, 293 F.3d
1030, 1037 (7th Cir. 2002). This is not a case where
prison officials provided substandard medical care and
we must decide whether they crossed the line from
medical malpractice (negligence) to deliberate indif-
ference (recklessness). Ortiz’s claim is that each of the
defendants knew that Molina suffered from a serious
medical condition, yet they failed to take any step in
response. At this stage, she has done enough to defeat
summary judgment even if the higher standard applied.
We therefore conclude that the defendants are not
entitled to qualified immunity on this claim.
IV
Finally, we address Ortiz’s Gerstein claim. A person
arrested without a warrant is entitled to a timely “judicial
determination of probable cause as a prerequisite to
extended restraint of liberty following arrest.” Gerstein v.
Pugh, 420 U.S. 103, 114 (1975). In County of Riverside, 500
U.S. at 56-57, the Supreme Court adopted a burden-shifting
approach using 48 hours as its benchmark. Detentions
over 48 hours are presumptively unreasonable and the
state bears the burden of proving that specific circum-
stances justified the delay, while the plaintiff bears the
burden of showing any detention under 48 hours is
unreasonable. See Portis v. City of Chicago, 613 F.3d 702,
704 (7th Cir. 2010).
No. 10-1775 31
Ortiz argues that Molina’s identity and fingerprints
were verified by 7:01 a.m. on May 25, and it was unrea-
sonable for Officers Ziemba and Lemon-Richmond not
to present her to a judge that day. The defendants
assert that it took about five additional hours to
complete administrative tasks—in this case updating
her “rap sheet” from a paper file to a computer—and so
Molina was not cleared for a probable cause hearing
until 12:12 p.m. After that, according to the defendants,
it was not possible to take her to court because an
arrestee needs to be at Criminal Court by 10:30 a.m. for
a probable cause hearing. The plaintiff responds that
there was a 1:30 p.m. bond call available and that it
would have been possible to get Molina to court even later.
The district court granted summary judgment in favor
of Ziemba and Lemon-Richmond on this claim, finding
that neither of them was personally liable for the delay.
Both of them worked the 5:30 a.m. to 1:30 p.m. shift on
May 25, and they do not dispute that it was their duty
to get arrestees “going to court” once they were cleared
for their appearance. But the record shows that Molina
was not cleared for court until 12:12 p.m., leaving only
slightly more than an hour for the two officers to get
Molina on her way to court before their shift ended
(assuming, favorably to Molina, that there was a 1:30 p.m.
bond call). Since a delay of one hour did not appear
unreasonable to the court, it absolved Ziemba and
Lemon-Richmond of all liability.
We agree with the district court that Ortiz has not
identified enough facts to establish individual liability of
32 No. 10-1775
Ziemba and Lemon-Richmond on this claim. “To establish
personal liability in a section 1983 action, the plaintiff
must show that the officer ‘caused the deprivation of a
federal right.’ ” Luck, 138 F.3d at 327 (quoting Hafer v.
Melo, 502 U.S. 21, 25 (1991)). With respect to Ortiz’s first
claim that Molina’s rights were violated because the
defendants opted to update Molina’s criminal history
into a computer database from her printed rap sheet
(causing the delay from 7:01 a.m. to 12:12 p.m.), Ortiz
fails to explain what role—if any—Ziemba and
Lemon-Richmond had with this task. Indeed, the
record indicates that these administrative steps were
undertaken not by these two defendants, but by some-
one else. We thus agree with the district court that
Ziemba and Lemon-Richmond are not liable based on
that theory. We express no opinion on whether it was
reasonable for the CPD to take this administrative step
before presenting Molina to a judge for a probable
cause hearing.
That leaves Ziemba and Lemon-Richmond on the hook
for only the period between 12:12 p.m. when Molina
was cleared for bond court and 1:30 p.m. when their shift
ended. Even if we assume that there was a 1:30 p.m. bond
hearing that Molina could have attended, her claim fails.
It is the plaintiff’s burden to rebut the presumption of
reasonableness for a detention that lasts less than 48
hours, and Ortiz has not done so. See Portis, 613 F.3d at
704 (observing that arrestees in Chicago are not required
to be taken before a judge within 12 hours just because
the city operates 24-hour courts). Moreover, it is well
known that the “Fourth Amendment does not compel
No. 10-1775 33
an immediate determination of probable cause upon
completing the administrative steps incident to arrest.”
County of Riverside, 500 U.S. at 53-54. We note, finally, that
though Ortiz makes some references to the City’s policy
of completing unnecessary administrative tasks before
sending an individual to a probable cause hearing, she
has not pleaded or argued on appeal an independent
claim based on an “official policy” of the City of Chicago.
See Luck, 138 F.3d at 325-26 (explaining actions against
municipalities).
For these reasons, we A FFIRM the district court’s grant
of summary judgment for defendants Ziemba and
Lemon-Richmond. We R EVERSE the grant of summary
judgment for defendants Jamison, Pryor, Yost, Gilchrist,
Ramirez, Wallace, Holmes, and Gomez and R EMAND
for further proceedings consistent with this opinion.
We also instruct the district court to determine whether
the parties have entered into a valid stipulation re-
garding the City’s acceptance of liability if any of the
defendants are found liable to Ortiz.
8-25-11