dissenting.
While I agree with much of the majority opinion, its end result can only be reached by an unnecessarily formalistic reading of the defendant’s arguments. The theory upon which the majority upholds the jury verdict, refined at oral argument, is that a county policy permitted Lansbach’s decision to put Ford’s medical screening questionnaire into the nurse’s inbox without promptly contacting the on-call nurse. Maj. Op. 495-96. No other aspect of the county policy, such as the part-time nurse’s absence on weekends, is challenged. In order to permit recovery, the policy has to have amounted to deliberate indifference to prisoner medical needs. Yet the jury found that Lansbach in making that very decision was not deliberately indifferent to Ford’s medical needs. Such an inconsistent result should not form the basis for liability against the county.
The technical justification for this result is that the county did not sufficiently anticipate this combination of decisions in its Rule 50 motion. The county did sufficiently move for a directed verdict on the basis that there was insufficient evidence that its policy was deliberately indifferent to prisoner medical needs. As the majority states, the defendant’s attorney asserted that Ford had “fail[ed] to make out a prima facie case against the county” on a theory of deliberate indifference, and had not shown a(l) a causal link between the county’s policy and the alleged constitutional deprivation or (2) a pattern of misconduct of which the county was aware. It is true that the argument presented at that point did not anticipate the particular combination that (1) the sole deliberately indifferent aspect of the county’s policy would be that it permitted what Lansbach did, but (2) Lansbach was not deliberately indifferent. In my view, it is inconsistent with the liberal interpretation of Rule 50 reflected in Kusens to demand such prescience.
It is true that the county’s brief on appeal does not make the argument in precisely these terms. But it was not until oral argument that the policies challenged by plaintiff were limited to countenancing Lansbach’s specific actions. According to plaintiffs brief, the deliberately indifferent policies of the county also included permitting the weekend nurse to set her own schedule, not requiring the weekend nurse to notify the jail of her whereabouts, and *500not posting when medical staff would be present. Appellee’s Br. 29-30. If there was enough evidence that these aspects of the county’s policies were deliberately indifferent and caused plaintiffs injury, that would have been consistent with Lans-baeh’s not having been deliberately indifferent. Thus, it made sense for defendant to argue that the policies were not deliberately indifferent, and that they did not cause the injury, without focusing on the possible inconsistency of the determination that Lansbach had not been deliberately indifferent.
In short, the county cannot be liable on the majority’s theory unless Lansbach in particular was deliberately indifferent, and the jury found Lansbach not to have been deliberately indifferent. I would not uphold such an incoherent result.