dissenting.
I am unable to agree with the majority’s conclusion that the plaintiffs established a sufficient causal nexus between the failure to act on the part of the individual defendants and the death of the decedent, and therefore respectfully dissent. Further, I do not find a sufficiently particularized constitutional right of a suicide victim to be cut down immediately upon discovery to have been clearly established, and so would accord the individual defendants qualified immunity. I am also troubled by a verdict which essentially finds that the individual defendants, especially Crutcher, acted with a personalized intent to punish the decedent, yet also essentially finds that the individual defendants were executing a county custom or policy. Finally, I would remand the case for a new trial in light of what I consider to be the admission of improper testimony by plaintiffs’ expert witness.
Fundamental to plaintiffs’ recovery is the finding that the decedent could have been revived upon discovery by Deputy Crutcher. I do not believe sufficient evidence was presented to support such a finding. Plaintiffs’ expert testified that if no heartbeat was heard by any of the parties checking for vital signs, then the decedent had, at most, up to a ten percent chance of survival. The only evidence offered to support a finding of a heartbeat was hearsay testimony that the county medical examiner, in seeking to quiet the scene during his initial check for vital signs, said that he thought he heard a heartbeat. The doctor himself testified that he never heard a heartbeat. His previous statement and his court testimony are not inconsistent. Several minutes before the doctor’s arrival, two EMT’s using stethoscopes could not detect a heartbeat. Of four checks for vital signs by trained medical personnel, therefore, the only evidence of a heartbeat came from an alleged statement referring to the possibility of a heartbeat made in quieting a scene that made it *719difficult, if not impossible, to hear anything. Viewing the evidence in the light most favorable to the non-moving party, McDowell v. Rogers, 863 F.2d 1302 (6th Cir.1988), I find an absence of anything more substantial than a scintilla of hope that there was in fact a heartbeat and therefore a chance of being resuscitated.
I am also troubled by the internal inconsistency of a verdict finding both individual liability and municipal liability. The majority upholds the verdict against Stewart County, finding a policy established by the county Sheriff in his official capacity, of not cutting down and resuscitating hanging victims. Acting under this policy, individual actors who fail to cut down hanging victims cannot be said to possess any form of intent to punish a particular detainee, but rather are simply following county policy. Or, vice versa, if the individual actors are found to have acted with a deliberate indifference to the medical needs of the decedent tantamount to an intent to punish, they could not have been following the county policy. I do not see how the deliberate indifference tantamount to an intent to punish and the county policy can both have been the motivation behind the failure to administer CPR and therefore a cause of the death. If we are to uphold the county’s liability, the verdict against Crutcher must be set aside.
Since the sheriff was both a policy maker and an employee/actor, it may be possible that liability can attach for either one of these roles. However, determining policy is a legislative function for which immunity is traditionally granted. When he carries out that policy as an employee, he should have the same qualified immunity afforded to any other employee. Whichever hat he is determined to be wearing for liability purposes, there cannot be both municipal liability for the policy and individual liability for deliberate indifference.
I also disagree with both the legal standard and its application by the majority with respect to the question of qualified immunity for the individual defendants. While it is true that a detainee’s generalized right to medical care was clearly established in 1987, see Scharfenberger v. Wingo, 542 F.2d 328 (6th Cir.1976), I do not agree that, properly particularized, the right of hanging victims displaying no vital signs to be immediately cut down and administered CPR by jail officials was clearly established such that a reasonable official would have known of it. See Rich v. City of Mayfield Heights, 955 F.2d 1092 (6th Cir.1992). Further, I disagree with the majority’s characterization of the facts at issue here. Crutcher was not indifferent to Heflin’s condition. It is undisputed that he immediately called for medical assistance, checked for vital signs, and, finding the pupils dilated and the heart stopped, ensured that no one disturbed the body. It must be kept in mind that unless defendants were consciously aware of the possibility that Heflin was still alive, they could not be guilty of deliberate indifference.1 Although Crutcher’s actions may not have been as efficacious as attempting CPR, they do not constitute nothing, and they certainly meet the standard of medical care that was clearly established as the right of détainees in 1987. Id. at 1097.
Finally, I would remand the case in light of what I consider to have been an abuse of discretion on the part of the District Court in allowing the expert penological witness to testify that it was his expert opinion that the defendants were deliberately indifferent to the medical needs of the decedent. Rule 704 of the Federal Rules of Evidence does not operate to open the door to all testimony on ultimate legal issues, but rather shifts the focus to whether the testimony is “otherwise admissible.” Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir.1985). I do not think the testimony here is otherwise admissible for two reasons.
First, as noted by the trial judge, the testimony here “smack[s] of just flat out telling how the jury ought to decide the case.” As noted in Torres, proper analysis examines whether the terms used by the *720witness have a separate, distinct and specialized meaning in the law different from that present in the vernacular. Id. at 151. Just as a witness cannot testify that a party was negligent in failing to do something, I believe an expert should not be allowed to state that the party was deliberately indifferent in failing to do something.
Second, and more importantly, the witness possessed no specialized knowledge as to the mental state of the individual defendants so as to be able to assist the trier of fact. The witness was a corrections expert. He was therefore qualified to testify to what the defendants’ training may have been, or what it should have been. He was in a position to assist the trier of fact as to the standards of care in the corrections field, and as to what a reasonable jailer might have been expected to do.
The expert has no specialized knowledge that would assist the trier of fact, however, relating to the mental state and motivation of the defendants. Yet his testimony that they were deliberately indifferent can only encompass his opinion as to their state of mind, i.e. was it accident, happenstance, or negligent error that caused them to fail to cut the victim down, or did they affirmatively and consciously choose to not cut him down? Were they ignorant of his chance of survival, either through inadequate training or negligent response to the circumstances, or did they consciously ignore his known chance of survival? The testimony did more than simply emphasize the witness’ view of the seriousness of the defendants’ failures to follow proper correctional procedure, as the majority contends, it spoke to defendants’ states of mind and mental culpability. Because of the expert’s impressive credentials, the jury would be very likely to' accept his opinion rather than reach their own.
This error cannot be deemed harmless, moreover, in light of the paucity of evidence relating to intent. The only evidence offered indicating any motive or intent to punish the decedent was circumstantial evidence relating to a civil rights complaint filed by the decedent against a Tennessee State Trooper, who was in no way affiliated with the individual defendants or involved in their failure to cut the victim down. It was highly prejudicial, therefore, when the only expert corrections witness at trial testified that in his opinion the defendants had acted with deliberate indifference.
For the foregoing reasons, I respectfully DISSENT.
. I do not believe that the panel is suggesting that defendants were deliberately indifferent in not acquiring knowledge about possibilities of resuscitating victims.