Lisa King v. Sue Kramer ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2379
LISA KING, as the Special Administrator
for the Estate of John P. King,
Plaintiff-Appellant,
v.
SUE KRAMER and
LA CROSSE COUNTY, WISCONSIN,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:10-cv-00123-wmc — William M. Conley, Chief Judge.
____________________
ARGUED JANUARY 8, 2014 — DECIDED JULY 10, 2014
AMENDED OPINION ISSUED AUGUST 14, 2014
____________________
Before BAUER, WILLIAMS, and TINDER, Circuit Judges.
TINDER, Circuit Judge. John King was in police custody
awaiting his probable cause determination in April 2007. Af-
ter being rapidly tapered off his psychotropic medication by
the jail medical staff, complaining of seizure-like symptoms,
2 No. 13-2379
and being placed in an isolated jail cell for seven hours, he
was found dead. The administrator of his estate, Plaintiff-
Appellant Lisa King, has pursued this civil suit against La
Crosse County and various individual employees of the
County for over four years. In the course of this long litiga-
tion, our court has already once ruled on an appeal concern-
ing the propriety of summary judgment. We held that a
genuine issue of material fact existed as to whether the
County had an official policy or custom of unconstitutional-
ly depriving inmates of their prescribed medications. King v.
Kramer, 680 F.3d 1013, 1020–21 (7th Cir. 2012) (“King I”). We
also held that there was a genuine issue of material fact as to
whether jail nurse Sue Kramer was liable for John King’s
death, viewed through the deliberate indifference lens of the
Fourteenth and Eighth Amendments. Id. at 1019–20. We thus
remanded the case for further proceedings.
In June of 2012, the case was returned to the district court
for trial. Six weeks before the trial date, after what appears to
have been an unsuccessful settlement discussion, King’s
counsel asserted in a letter to Defendant-Appellees that the
correct standard to be used for the jury instructions in the
upcoming trial was one of objective reasonableness, not the
deliberate indifference standard that had been used by both
parties thus far in the pleadings, the summary judgment
briefing, the subsequent appeal, and the recent pretrial
preparations. Plaintiff-Appellant’s assertion was correct as a
matter of law, but shortly after receiving the letter, Defend-
ant-Appellees filed a motion in limine arguing that King
should be precluded from arguing the applicability of the
objective reasonableness standard because of her tardiness in
asserting the argument. The district court agreed with De-
No. 13-2379 3
fendant-Appellees and ordered that the case be tried as
scheduled under the deliberate indifference standard.
The jury returned a special verdict finding that, while
John King did have a serious medical need on April 18, 2007,
Kramer had not been deliberately indifferent to John King’s
serious medical need. It also found that La Crosse County
did not have an official policy of denying access to pre-
scribed medication without appropriate oversight by a phy-
sician. King moved to alter or amend the judgment on sev-
eral grounds, including that the court improperly denied her
the use of the correct Fourth Amendment standard, but the
district court denied the motion. It reiterated its finding that
King had waived the Fourth Amendment claim by failing to
pursue it on a timely basis.
King appeals the district court’s use of the deliberate in-
difference standard, instead of the objective reasonableness
standard, in the jury instructions and verdict form. We orig-
inally issued an opinion on July 10, 2014, reversing and re-
manding for further proceedings. Defendant-Appellee La
Crosse County filed a petition for panel rehearing, and we
requested an answer, which was filed. Rehearing by the
panel with respect to the claim against Defendant-Appellee
La Crosse County only was granted without the need for
additional argument or submissions. Consequently, the July
10, 2014 opinion was withdrawn. In this amended opinion,
we reiterate our ruling as to Kramer. We find that King’s
long, unexplained delay in asserting the correct standard is
puzzling and problematic, but that the district court abused
its discretion by failing to provide a sufficient explanation of
how Defendant-Appellee Kramer would suffer prejudice as
a result of this delay. We therefore reverse the verdict
4 No. 13-2379
reached in Kramer’s favor and remand to the district court
for a new trial.
However, because the verdict in favor of La Crosse
County did not turn on the constitutional standard at issue,
we clarify that the district court’s judgment is affirmed as to
the County.
I
We discussed the tragic circumstances surrounding Mr.
King’s death at length in King I, 680 F.3d at 1015–17, and we
adopt that background. Here, we summarize the circum-
stances surrounding the dispute over the proper legal stand-
ard.
On November 27, 2012, King’s counsel emailed Defend-
ants’ counsel, stating that he wished to inform them of a
“development in the law.” King’s counsel cited Ortiz v. City
of Chicago, 656 F.3d 523 (7th Cir. 2011), a case decided in Au-
gust 2011, for the correct proposition that the Fourth
Amendment objective reasonableness standard, not a delib-
erate indifference standard, should apply in evaluating the
medical care provided to a pretrial detainee awaiting a
probable cause determination. King’s counsel did not send a
copy of the letter to the court or otherwise disclose to the
court that the previously stated formulation of the case was
being abandoned in favor of the objective reasonableness
standard. There was no explanation for why King’s counsel
had waited fifteen months since the Ortiz decision to bring
this argument to opposing counsel’s attention, nor why the
Plaintiff-Appellant considered Ortiz to be a statement of new
law, since our court had stated, as early as 2006, that the
Fourth Amendment governs challenges to conditions of con-
No. 13-2379 5
finement by a pretrial detainee awaiting a probable cause
hearing. Lopez v. City of Chicago, 464 F.3d 711, 719 (7th Cir.
2006) (“[T]he Fourth Amendment should have been applied
to [plaintiff’s] claim relating to the treatment and conditions
he endured during his … warrantless detention. … [T]he
Gerstein [v. Pugh, 420 U.S. 103, 114 (1975)] probable cause
hearing is the event that terminates the Fourth Amend-
ment’s applicability following a warrantless arrest.”). See
Williams v. Rodriguez, 509 F.3d 392, 403 (7th Cir. 2007) (stat-
ing that Lopez recognized that the Fourteenth Amendment’s
due process protections only apply to a pretrial detainee’s
confinement conditions after he has received a judicial de-
termination of probable cause, and that claims regarding
confinement conditions for pretrial detainees awaiting a
probable cause determination are governed by the Fourth
Amendment and the objectively unreasonable standard).
On December 14, Defendant-Appellee Kramer filed a mo-
tion in limine to preclude King from amending the com-
plaint or arguing the applicability of the Fourth Amendment
objective reasonableness standard. Kramer argued that King
was attempting to “add an entirely new claim with an en-
tirely different legal standard four weeks prior to the start of
trial.” She asserted that the law had been clear three years
before Plaintiff-Appellant filed the case, and that the new
standard would unfairly prejudice Kramer, whose experts
had all reviewed the case under the deliberate indifference
standard. She argued that she would need “a substantial
amount of time” for her experts to address the new claim
and in order to re-depose King’s experts. Plaintiff-
Appellant’s response focused on the fact that objective rea-
sonableness was the correct standard. King’s brief also cited
6 No. 13-2379
law from our circuit stating that complaints need not identi-
fy legal theories.
The parties conferred with the district judge to discuss
the motion in limine, and other matters preparatory to the
upcoming trial. There is no record of the meeting, and at oral
argument before our court the parties recollected several de-
tails differently, including whether either party requested to
continue the trial so the parties could grapple with the cor-
rect constitutional standard, and whether the judge was
amenable to continuance. In any case, there was no paper
filed by either party after this meeting requesting a continu-
ance, or objecting to the trial proceeding on the scheduled
date, January 14, 2013.
In its written opinion granting the motion in limine, the
district court noted that the parties had proceeded on the de-
liberate indifference theory at summary judgment and on
appeal to our court, and determined that this conduct consti-
tuted waiver. See Order at 6 (W.D. Wis. Jan. 9, 2013), ECF
No. 643 (“[P]laintiff waived any right to a Fourth Amend-
ment claim premised on an objectively unreasonable stand-
ard by failing to timely pursue such a claim.”). The district
court therefore allowed only a limited amendment: Plaintiff-
Appellant was allowed to proceed with her claim against
Kramer under the Fourth Amendment, but was required to
prove deliberate indifference under the more exacting
Eighth and Fourteenth Amendment standards. In essence,
the order required Plaintiff-Appellant to try her case against
Kramer under the deliberate indifference standard, and this
requirement was reflected in the liability instructions, which
asked the jury to evaluate whether Kramer was “deliberately
indifferent to King’s serious medical need.” As to La Crosse
No. 13-2379 7
County, the liability instructions stated that “[t]he County
cannot be held liable for the unconstitutional acts of its or
HPL’s employees unless those acts are part of an official pol-
icy. To find La Crosse County liable, you must find that inju-
ry to John King was proximately caused by an official policy
of denying access to prescribed medication without appro-
priate oversight by a physician.”
After the jury returned a verdict finding Kramer was not
deliberately indifferent and that La Crosse County had no
official custom or policy of denying inmates access to pre-
scribed medication, King filed a timely appeal.
In the main, this appeal presents the question of whether
the district court erred in denying Plaintiff-Appellant’s re-
quested Fourth Amendment jury instructions with regard to
Kramer. We address that portion of the appeal first.
II
In granting Kramer’s motion in limine to preclude Plain-
tiff-Appellant from arguing the applicability of the Fourth
Amendment, the district court stated that Plaintiff-Appellant
had waived her Fourth Amendment claim. Slip Op. at 6
(W.D. Wis. Jan. 9, 2013), ECF No. 643 (“[P]laintiff waived
any right to a Fourth Amendment claim premised on an ob-
jectively unreasonable standard by failing to timely pursue
such a claim. The court will not allow such a significant shift
in plaintiff’s theory of recovery on the eve of trial after such
a delay.”). The court repeated its finding of waiver in ad-
dressing Plaintiff-Appellant’s post-verdict motion to amend
the jury’s verdict, stating that “[a]s in Williams v. Rodriguez,
509 F.3d 392, 403 (7th Cir. 2007), plaintiff waived any right to
a Fourth Amendment claim premised on an objectively rea-
8 No. 13-2379
sonable standard by failing to pursue such a claim on a time-
ly basis.” Slip Op. at 5 (W.D. Wis. May 30, 2013), ECF No.
705.
What the court meant by waiver is difficult to define
sharply, in part because “waiver is a flexible concept with no
definite and rigid meaning” that is “generally defined as an
intentional relinquishment of a known right,” but which is
often construed as “an equitable principle used by courts to
avoid harsh results when a party has conducted itself in
such a way as to make those results unfair.” Shearson Hayden
Stone, Inc. v. Leach, 583 F.2d 367, 370 (7th Cir. 1978). Neither
the district court nor the Kramer states that Plaintiff-
Appellant intentionally relinquished her Fourth Amendment
claim, nor are we dealing with a hard, judicially recognized
bright line for waiver, like the principle that a party waives
on appeal any argument that it does not present to the dis-
trict court. This bright-line principle backs the numerous
waiver cases cited by Defendant-Appellee Kramer in her
brief. See, e.g., Teumer v. Gen. Motors Corp., 34 F.3d 542, 546
(7th Cir. 1994) (holding that “[t]he failure to draw the district
court’s attention to an applicable legal theory waives pursuit
of that theory in this court”); Colburn v. Trs. of Ind. Univ., 973
F.2d 581, 588 (7th Cir. 1992) (“In general, we will not consid-
er an argument which is presented for the first time on ap-
peal.”); Geva v. Leo Burnett Co., 931 F.2d 1220, 1225 (7th Cir.
1991) (holding that an issue not “properly preserved below”
in the district court is generally waived); Oates v. Discovery
Zone, 116 F.3d 1161, 1168 (7th Cir. 1997) (holding that a claim
is not properly before the appellate court because “it is axi-
omatic that arguments not raised below are waived on ap-
peal”) (citation omitted). Likewise, Williams concerned a
plaintiff who failed to raise the proper constitutional stand-
No. 13-2379 9
ard during the summary judgment briefing or in appellate
briefing. 509 F.3d at 403 (“Williams has waived any Fourth
Amendment claim by failing to amend or supplement his
motion for summary judgment or raise the issue on ap-
peal.”).
The posture here is unusual, and different from the
above-cited cases. While the district court ruled against
Plaintiff-Appellant in granting summary judgment, we re-
versed that decision and remanded for further proceedings
before the district court, re-opening the opportunity for the
Plaintiff-Appellant to present and preserve arguments for
appellate review. Plaintiff-Appellant’s ability to do so was
limited by the discretion of the district court—and the heart
of this matter concerns whether the district court’s discre-
tionary call in excluding the Fourth Amendment standard in
this case was correct. In reviewing the district court in a
“matter of equitable judgment and discretion,” we review
for abuse of discretion. See Grochocinski v. Mayer Brown Rowe
& Maw, LLP, 719 F.3d 785, 795 (7th Cir. 2013), cert. denied, 134
S. Ct. 1026 (2014). “The district court’s decision must strike
this court as fundamentally wrong for an abuse of discretion
to occur.” Salata v. Weyerhauser Co., No. 13-3136, --- F.3d ---,
2014 WL 3045772, at *2 (7th Cir. Jul. 7, 2014).
Here, we review the district court’s discretion in balanc-
ing several competing concerns. The district court was right-
ly concerned with case management. Our law on pretrial
case management underscores the principle that a district
court has the discretion to narrow and focus the operative
legal issues as the trial date closes in. Cf. Exxon Shipping Co.
v. Baker, 554 U.S. 471, 487 n.6 (2008) (“[L]itigation is a win-
nowing process, and the procedures for preserving or waiv-
10 No. 13-2379
ing issues are part of the machinery by which courts narrow
what remains to be decided.”) (citation and internal quota-
tion marks omitted). But the district court was also required
to consider our strong commitment to the idea that a plain-
tiff need not plead legal theories in her complaint. See, e.g.,
Rabe v. United Air Lines, Inc., 636 F.3d 866, 872 (7th Cir. 2011)
(“A complaint need not identify legal theories, and specify-
ing an incorrect theory is not a fatal error.”); Ryan v. Ill. Dep’t
of Children & Family Servs., 185 F.3d 751, 764 (7th Cir. 1999)
(“We have consistently held that plaintiffs are not required
to plead legal theories. While a plaintiff may plead facts that
show she has no claim, she cannot plead herself out of court
by citing to the wrong legal theory or failing to cite any theo-
ry at all.”) (citations omitted). In light of our liberal pleading
principles, it appears that no amendment to the complaint
would have been necessary for Plaintiff-Appellant to allege a
Fourth Amendment claim: Plaintiff-Appellant, from the first,
pled the fact that John King was a pretrial detainee awaiting
his probable cause hearing. See Complaint at ¶ 412 (W.D.
Wis. Mar. 3, 2010), ECF No. 1 (“Between April 7, 2007 and
April 18, 2007, John King was being held as a pretrial detain-
ee in the La Crosse Jail while awaiting a probable cause hear-
ing.”). So Kramer’s motion in limine, at least the part that
sought to prevent Plaintiff-Appellant from amending her
complaint, was an awkward fit: no such amendment was
necessary in order for King to argue a Fourth Amendment
theory, because the facts required for that claim were in the
complaint all along.
However, it is unquestionably true that the Plaintiff-
Appellant allowed, and perhaps encouraged, the parties to
construe her complaint as invoking a deliberate indifference
claim. Regardless of whether the amendment to the plead-
No. 13-2379 11
ings was necessary, it was not inappropriate for the district
court to recognize that Plaintiff-Appellant’s introduction of
the Fourth Amendment standard entailed a jump-shift. But
even construing the Plaintiff-Appellant’s move as a major
change in her legal theory, the district court was faced with
our law that permits flexibility for a plaintiff to adjust her
legal theory over the course of litigation. See, e.g., Fed. R. Civ.
P. 15(a)(2) (stating that a court “should freely give leave” for
a party to amend its pleadings “when justice so requires”);
Fed. R. Civ. P. 15(b)(1) (stating that “[t]he court should freely
permit an amendment” to the pleadings, based on a trial ob-
jection that “evidence is not within the issues raised in the
pleadings … when doing so will aid in presenting the merits
and the objecting party fails to satisfy the court that the evi-
dence would prejudice that party’s action or defense on the
merits”); United States v. Sec. Pac. Bus. Credit, Inc., 956 F.2d
703, 707–08 (7th Cir. 1992) (“[A]mendments to complaints
are liberally allowed under the Federal Rules of Civil Proce-
dure up to and even after trial, judgment, and appeal, in cas-
es in which there is no harm to the defendant from the tardy
amendment.”). Underscoring the importance of this flexibil-
ity, the district court is not unfettered in its discretion to re-
fuse such changes. Foman v. Davis, 371 U.S. 178, 182 (1962)
(“[T]he grant or denial of an opportunity to amend is within
the discretion of the District Court, but outright refusal to
grant the leave without any justifying reason appearing for
the denial is not an exercise of discretion; it is merely abuse
of that discretion and inconsistent with the spirit of the Fed-
eral Rules.”). So in examining whether the district court
abused its discretion in granting Kramer’s motion in limine,
we review the court’s balancing of the equities to each of the
parties—whether a sufficient “justifying reason” was stated
12 No. 13-2379
for the bar of Plaintiff-Appellant’s Fourth Amendment
claim, despite our liberal pleading and amendment practic-
es.
When a district court makes discretionary decisions of
this nature, we do not always require the court to explicitly
balance the equities as to each of the parties. For example,
we have before noted that where allowing a significant late
amendment causes “apparent” delay and prejudice, a dis-
trict court does not err in not stating that reasoning outright.
See Sanders v. Venture Stores, Inc., 56 F.3d 771, 773–74 (7th Cir.
1995) (holding that though the court did not expressly state
its reason for denying leave to amend, it was “apparent”
what delay and prejudice would be caused by plaintiffs’ mo-
tion, which sought to add four new individual defendants,
as well as additional counts under two federal statutes and a
state-law claim). But here, the district court resolved a close
question: whether the Plaintiff-Appellant could argue the
(undisputedly) correct legal standard to the jury, when it
appeared that the shift would be a matter of law and jury
instruction rather than a re-opening of discovery, and when
the relevant facts underpinning the correct legal standard
were already in the record. It was therefore essential in this
case that the court give a specific account of its decision-
making, and to clearly set forth its account of what harm
would result from the shift in the legal standard. This it
failed to do.
A district court that gives “insufficient reasons” for its
equitable decision abuses its discretion. See Dubicz v. Com-
monwealth Edison Co., 377 F.3d 787, 792–93 (7th Cir. 2004)
(holding that a district court abuses its discretion in denying
a motion to amend when “the [opposing party’s] case for
No. 13-2379 13
prejudice is stated … only in the most conclusory of terms,”
and no “particular witnesses or documents are identified” to
support the argument that a delay would prejudice a party).
Equities that may be considered include “undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously al-
lowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc.”
Foman, 371 U.S. at 182. But where Kramer would “not [be]
prejudiced in any legally relevant sense by the court’s
amendment,” and “[t]he equities … weigh heavily in favor
of the [movant],” a court should exercise its discretion to al-
low an amendment. Matter of Delagrange, 820 F.2d 229, 233
(7th Cir. 1987).
We do not deny that the delay in asserting the correct
standard was substantial: it is well-documented that that
Plaintiff-Appellant single-mindedly pursued only the more
rigorous standard of deliberate indifference until her letter
six weeks before trial. 1 No good reason was given to the dis-
1 The Plaintiff-Appellant entered numerous filings premised upon the
incorrect deliberate indifference standard. See Complaint at 1, King v.
Kramer, No. 10 CV 123 (Mar. 10, 2010), ECF No. 1; Joint Preliminary Pre-
Trial Report and Discovery Plan at 1, 2 (Jun. 7, 2010), ECF No. 18; King’s
amended complaint, First Amended Complaint at 1, 3, 4, 7, 16, 17 (Jul. 30,
2010), ECF No. 21; Plaintiff’s Brief in Opposition to Olson, Koby-Gobel,
and La Crosse County’s Motion for Summary Judgment at 22–27 (Feb. 4,
2011), ECF No. 71; Plaintiff’s Brief in Opposition to Kramer and Mondry-
Anderson’s Motion for Summary Judgment at 1, 3, 12 (Feb. 4, 2011), ECF
No. 73; Brief in Support of Motions in Limine of Plaintiff to Exclude Cer-
tain Testimony and Admit Other Testimony at 1–2, 4 (May 2, 2011), ECF
No. 142; Plaintiff’s Proposed Jury Instructions—Liability at 2, 4, 5, 7, 9,
13, 15, 16, 18 (May 13, 2011), ECF No. 206; Plaintiff’s Proposed Special
Verdict on Liability at 2–3 (May 13, 2011), ECF No. 209; Brief of Plaintiff-
14 No. 13-2379
trict court, or indeed at oral argument before our court, for
why the Plaintiff-Appellant waited so long to bring our
court’s Fourth Amendment jurisprudence to the fore. 2 But as
we have stated, delay in itself does not constitute a sufficient
basis for a district court’s equitable decision. See George v.
Kraft Foods Global, Inc., 641 F.3d 786, 789–91 (7th Cir. 2011)
(“[D]elay alone is not a reason to deny a proposed amend-
ment, and that delay must be coupled with some other rea-
son, such as prejudice to the defendants.”). There must be
more, especially in a situation like the one at hand, where
grave inequity may result from the district court’s decision:
the trial of the case under a more demanding, incorrect legal
standard, when the correct legal standard is known to the
district court. See Slip Op. at 5 (W.D. Wis. Jan. 9, 2013), ECF
No. 643 (“The law is clear that the ‘Fourth Amendment gov-
erns the period of confinement between … arrest without a
warrant and the preliminary hearing at which a determina-
tion of probable cause is made, while due process regulates
the period of confinement after the initial determination of
probable cause.’”) (quoting Lopez v. City of Chicago, 464 F.3d
711, 719 (7th Cir. 2006)). It is an extraordinary sanction in-
Appellant at 2–4, 30–34, 39–40, King v. Kramer, 680 F.3d 1013 (7th Cir.
Aug. 5, 2011), ECF No. 8; Reply Brief of Plaintiff-Appellant at 2–3, 6–9,
20–21 (7th Cir. Sep. 20, 2011), ECF No. 19.
2 On the other hand, as we note above, the Plaintiff-Appellant did re-
peatedly plead the fact that King was a pretrial detainee awaiting his
Gerstein hearing. We also note that it was not just Plaintiff’s counsel who
failed to raise the applicable Fourth Amendment jurisprudence until six
weeks prior to trial; in their numerous challenges to Plaintiff’s suit in the
pretrial stages, Kramer’s counsel also failed to appreciate the significance
of King’s status as a pre-trial detainee awaiting a probable cause hearing,
and to raise the correct governing law in our circuit.
No. 13-2379 15
deed to require that a case be tried under the incorrect legal
standard, when all parties and the court are aware of the
correct standard.
It does not fall on us today to define the set of improba-
ble circumstances under which such a sanction may be mer-
ited. But our review of the record and Kramer’s submissions
leaves us with the firm conviction that the present case was
not an instance where the shift to the correct standard would
have been sufficiently “significant” or prejudicial to Kramer
to merit such a sanction, and that it was “fundamentally
wrong” of the district court to disallow this change. It ap-
pears to us that there would have been no great cost to
amending the jury instructions (which had not yet been fi-
nalized), or instructing the experts and witnesses to cabin
their testimony to their opinions on the objective, accepted
standard of professional conduct—as we will see, the very
testimony that the experts were permitted to make at trial
under the law of our circuit. The district court’s two opin-
ions on this question—once in response to the motion in
limine, once in response to Plaintiff’s post-verdict motion—
proffer no specific weighing of the equities to change our
analysis. The court determined that the Fourth Amendment
argument had been waived by the Plaintiff-Appellant’s de-
lay in raising the correct standard. While we can certainly
appreciate why the district court considered delay as a factor
in deciding whether a change in legal theory should be al-
lowed, there is no reason why delay should have been the
sole factor considered, or the weightiest. The district court
expressed abstract concerns that the plaintiff’s shift would
“prejudice the opposing side” and “derail the case from its
trial track.” Slip Op. at 5 (W.D. Wis. May 30, 2013), ECF No.
705. However, by contrast to the clear disadvantage to the
16 No. 13-2379
Plaintiff-Appellant that would result from going to trial un-
der the deliberate indifference standard, the district court
never explained in concrete terms why a shift to the correct
objective reasonableness standard would be prejudicial and
disadvantageous to Kramer.
Kramer’s submissions to us and to the district court are
also vague in elaborating on the inequities of disallowing an
amended theory. We do not find compelling her argument
about the inequity that would result from allowing Kramer
to be tried under the objective reasonableness theory after
several defendants were dismissed in King I by prevailing on
the deliberate indifference standard. Perhaps this would be a
persuasive argument if the Plaintiff-Appellant had tried to
revive her claims against the dismissed parties on the basis
of her change in theory—but King did not, and does not,
make any such attempt. Kramer also states that the shift in
the legal standard would require her to expend a “substan-
tial amount of additional time” so that her experts could ad-
dress the new legal standard, and that Plaintiff-Appellant’s
experts would have to be re-deposed. But no detail was pro-
vided about what experts would need this deeper study and
why, or which of the Plaintiff-Appellant’s experts require
additional deposition. The vagueness of Kramer’s claim of
prejudice is curious, given that expert discovery had con-
cluded well before Plaintiff-Appellant’s November 27 letter.
Kramer could have explained specifically which of her ex-
perts would need additional preparation, and which of
King’s experts would need to be re-deposed, and on what
grounds. These questions were clearly on the parties’ minds,
as the issue of whether particular experts and witnesses
could testify on the standard of care was hotly disputed by
No. 13-2379 17
the parties even prior to the summary judgment decision, 3
and certainly in the lead-up to trial. 4
3 See, e.g., Motion in Limine to bar plaintiff’s expert, Robert Greifinger,
from rendering opinions regarding deliberate indifference or that train-
ing of La Crosse County jail officers was deficient (May 3, 2011), ECF No.
157; Motion in Limine to strike Robert Griefinger’s standard of care opin-
ion that Kramer and Anderson were deliberately indifferent (May 3,
2011), ECF No. 162; Motion in Limine to preclude Robert Greifinger, MD
from testifying that Kramer and Anderson were deliberately indifferent
for failing to take and/or record King's vital signs after 10:00 a.m. on
April 18, 2007 (May 3, 2011), ECF No. 164; Motion in Limine to preclude
Robert Greifinger, MD from offering any opinion that the alleged denial
of King's asthma medication and/or inhalers by Sue Kramer constituted
deliberate indifference (May 3, 2011), ECF No. 165; Motion in Limine to
preclude nursing students from offering standard of care opinions re-
garding Sue Kramer's actions on April 18, 2007 (May 3, 2011), ECF No.
175; Supplemental Motion in Limine to preclude Robert Stuart, MD from
testifying that Sue Kramer and Karen Anderson were deliberately indif-
ferent (May 4, 2011), ECF No. 181.
4 See Motion in Limine to exclude opinion evidence of Jacqueline Moore
on deliberate indifference (Dec. 14, 2012), ECF No. 404; Motion in Limine
to preclude Dr. Greifinger from offering any opinion that Kramer was
deliberately indifferent relative to failing to take or record vital signs af-
ter 10 AM (Dec. 14, 2012), ECF No. 440; Motion in Limine to preclude Dr.
Greifinger from offering any opinion that alleged denial of asthma medi-
cation or inhalers constitutes deliberate indifference (Dec. 14, 2012), ECF
No. 441; Motion in Limine to preclude standard of care opinions of nurs-
ing students and opinions as to additional assessments (Dec. 14, 2012),
ECF No. 451; Motion in Limine to preclude Dr. Stuart from opining that
Kramer was deliberately indifferent to King's serious medical need (Dec.
14, 2012), ECF No. 455; Motion in Limine to preclude testimony by Dr.
Greifinger as to training of officers, deliberate indifference of the officers,
violation of county policies and violation of state and federal standards
(Dec. 14, 2012), ECF No. 485.
18 No. 13-2379
But we are ultimately unpersuaded that the change in the
governing legal standard would have required the experts’
testimony to change, or that the experts’ preexisting prepara-
tion under the Eighth Amendment standard would have
hobbled their testimony under a Fourth Amendment stand-
ard. As the district court concluded in an order determining
an expert’s permissible scope of testimony, experts could not
testify as to the subjective element of what Kramer “should
have known,” but they could testify as to what “the jury
could infer a nurse with Kramer’s background and experi-
ence in correctional health care would have known,”—in oth-
er words, the objective element of whether her actions con-
stituted a departure from established professional standards
of conduct. Order at 7 (W.D. Wis. Dec. 11, 2012), ECF No.
384. Under the law of our circuit, they were limited to this
testimony because “Rules 702 and 704 [of the Federal Rules
of Evidence] prohibit experts from offering opinions about
legal issues that will determine the outcome of a case.”
Roundy’s Inc. v. N.L.R.B., 674 F.3d 638, 648 (7th Cir. 2012) (in-
ternal quotation marks and citation omitted).
Furthermore, the experts’ opinions regarding the objec-
tive element of the deliberate indifference inquiry would
have been just as helpful in resolving the question of wheth-
er Kramer had been objectively reasonable in her conduct.
“Examples of behavior that does (and does not) constitute
deliberate indifference are relevant in assessing the scope of
clearly established law and, therefore, are relevant in deter-
mining whether the defendants’ actions were objectively
reasonable.” Thompson v. Upshur Cnty., Tex., 245 F.3d 447,
459 (5th Cir. 2001) (citation omitted). Plaintiff-Appellant’s
assertion that the experts’ testimony under either standard
would have been identical was borne out by the actual tes-
No. 13-2379 19
timony at the trial, in which none of the witnesses, including
the nine experts, used the phrase “deliberate indifference”;
the only individuals who uttered that phrase were the attor-
neys and the court.
A party’s attempted jump-shift in legal theory on the
brink of trial is certainly not a vested right. As we have stat-
ed, it is within a district court’s discretion to deny such a
change where significant prejudice or harm would accrue to
the non-movant, and equities in favor of the movant do not
compel the change. Here, the record provides no elaboration
from the district court or Kramer of what actual, specific
prejudice would have resulted to her in defending against
the correct Fourth Amendment standard. And in scrutiniz-
ing the record, we are unable to find compelling equities that
would have justified the district court’s decision to go to trial
under the incorrect standard. In the absence of such coun-
tervailing equities, we are not convinced by the district
court’s statement that going to trial under the deliberate in-
difference standard while “recogniz[ing] plaintiff’s claim
under the Fourth Amendment” was “the only way to allow
plaintiff to proceed on her claim without unduly prejudicing
defendants with a last-minute, significant shift in plaintiff’s
theory of recovery at trial.” Order at 4 (W.D. Wis. May 30,
2013), ECF No. 705. Indeed, it is unclear what it means to al-
low a plaintiff to proceed with a Fourth Amendment claim,
but only under an Eighth Amendment standard. The fact
that more intermediate measures were available to the dis-
trict court—such as granting a continuance to allow Kramer
to retool her defense, or conditioning the grant to amend the
legal theory on the Plaintiff-Appellant’s payment of any ad-
ditional discovery costs—bolsters our conclusion. See Estes v.
Ky. Utils. Co., 636 F.2d 1131, 1134 (6th Cir. 1980) (“This is not
20 No. 13-2379
to say, however, that disallowance of the amendment is the
only course open to a district court faced with such a motion.
The scope of the district court's discretion in this area is
broad, and in a proper case conditions may be imposed on
the party seeking the amendment; for example, costs of pre-
paring for litigation could be imposed on the party who as-
serts a valid, but untimely, dispositive [legal theory].”); 6
Charles Alan Wright et al., Federal Practice and Procedure §
1486 (3d ed.) (“If the party opposing the amendment can be
protected by the use of conditions from any possible preju-
dice that might result from the untimeliness of the amend-
ment, there is no justifiable reason for not allowing it.”). Had
the Plaintiff-Appellant refused these or comparable amelio-
rating measures, perhaps the district court would have been
entitled to deny leave to amend the theory. See Campania
Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 849 (7th Cir.
2002) (“A trial court may deny leave to amend when the
amendment would cause the opposing party to bear addi-
tional discovery costs litigating a new issue and the moving
party does not offer to reimburse the nonmoving party for
its expenses.”).
Lastly, we note that we cannot find anything in the rec-
ord to suggest that King or her counsel “acted willfully, de-
liberately, [or] in bad faith” in waiting until late in the litiga-
tion to request an amendment of their legal theory. Cf. Salata,
2014 WL 3045772, at *3. The district court did not make any
such finding, nor did it conclude that the delay was for a
strategic advantage. Indeed, it is difficult to see why this
shift would have been withheld until the eleventh hour as a
strategic move to throw the litigation into disarray: the
Fourth Amendment standard was a more favorable standard
for the Plaintiff-Appellant, and she stood to benefit from
No. 13-2379 21
presenting the correct legal theory earlier in the litigation. At
worst, King’s attorneys may have been negligent in failing to
identify the correct legal theory sooner, but they are not
guilty of gamesmanship or a last-minute ambush. A district
court that detects chicanery of this nature may be justified in
denying a change in legal theory—but that was not the case
here.
For these reasons, we find that the district court abused
its discretion in ordering that the case against Kramer be
tried under the incorrect Eighth Amendment standard. We
therefore reverse the judgment as to her, and direct that the
motion for a new trial be granted.
III
We now turn to the judgment in favor of La Crosse
County. As we noted in King I, at the summary judgment
stage there remained a “question of material fact whether
the County was aware at the relevant time that [Health Pro-
fessionals Ltd., a private company that contracts with the
County to provide medical services to inmates] had policies
that violated inmates’ constitutional rights.” King I, 680 F.3d
at 1021. We were concerned about the County’s potential
delegation of final decision-making authority to HPL, be-
cause of evidence that “HPL routinely switched patients off
prescribed medication without appropriate oversight by a
physician.” Id. Even if the County retained final decision-
making authority, we noted that the County “was on notice
that HPL’s physician- and medication-related policies were
causing problems at the jail,” and that the County was still
prohibited from “adopt[ing] a policy of inaction” in re-
sponding to these potential violations of constitutional
rights. Id. (citation and internal quotation marks omitted). As
22 No. 13-2379
part of this analysis, we noted that “[t]he evidence presented
for summary judgment purposes shows that the County's
policy was to entrust final decision-making authority to HPL
over inmates’ access to physicians and medications.” Id. at
1020. However, we also observed that “[t]he County cannot
be held liable for the unconstitutional acts of its employees
unless those acts were part of an official custom or policy.”
Id. (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690
(1978)). “It is not enough to assert that the municipality is
responsible under a theory of respondeat superior." Id.In pretrial proceedings on remand, the district court de-
nied King’s motion in limine to take judicial notice of the
contract between HPL and La Crosse County and instruct
the jury that the County had delegated final decision-
making authority to HPL. The district court also excluded
the contract’s indemnification provision. After the four-day
trial, the jury returned a special verdict that the County did
not have an official policy of denying access to prescribe
medication without appropriate oversight by a physician.
In her briefs in this appeal, as well as in her answer to the
County’s petition for rehearing, Plaintiff-Appellant raises
three separate arguments for why the judgment in favor of
the County should be reversed. First, she argues that the
shift in the applicable constitutional standard from one of
deliberate indifference to objective reasonableness changes
the constitutional standard by which La Crosse County’s
employees should be evaluated in determining the County’s
liability to King. That is true. However, as asserted in La
Crosse County’s original brief in this appeal and clarified in
its petition for rehearing, the constitutional standard is only
relevant if there existed a custom or policy that caused John
No. 13-2379 23
King to be deprived of a federal right. The jury was asked to
evaluate whether there existed a custom or policy, and
found that there was no policy of deprivation. That finding
is not disturbed by the change of constitutional standard
governing the claim against Kramer.
In the alternative, King raises two separate evidentiary
arguments: she argues the district court erred in not taking
judicial notice of the HPL contract, and in excluding the in-
demnification clause in the contract. We consider King’s two
evidentiary arguments for an abuse of discretion. Because
we do not find that the evidentiary rulings were in error, the
verdict in favor of the County stands.
A
Municipalities can be sued directly under § 1983 only
where “the action that is alleged to be unconstitutional im-
plements or executes a policy statement, ordinance, regula-
tion, or decision officially adopted or promulgated by that
body’s officers.” Monell, 436 U.S. at 690. To succeed in recov-
ering against the County, King was required to show that
John King “(1) [] suffered a deprivation of a federal right; (2)
as a result of either an express municipal policy, widespread
custom, or deliberate act of a decision-maker with final poli-
cy-making authority for the City; which (3) was the proxi-
mate cause of his injury.” Ienco v. City of Chicago, 286 F.3d
994, 998 (7th Cir. 2002). The existence of a policy or custom
can be established in a number of ways: the plaintiff may
point to an express municipal policy responsible for the al-
leged constitutional injury, or demonstrate that there is a
practice that is so widespread that it rises to the level of a
custom that can fairly be attributed to the municipality. Es-
tate of Sims v. Cnty. of Bureau, 506 F.3d 509, 515 (7th Cir.
24 No. 13-2379
2007). The plaintiff may also assert that the individual who
committed the constitutional deprivation was an official
with policy-making authority. Id. Without establishing that a
custom or policy of the County was a cause of John King’s
injury, Plaintiff-Appellant cannot succeed in her claim of
Monell liability against the County. Ienco, 286 F.3d at 1001; see
also Sutterfield v. City of Milwaukee, 751 F.3d 542, 549 (7th Cir.
2014) (holding that a plaintiff must “identif[y]” a “municipal
policy, custom, or practice … to support a claim against” a
municipality under Monell). And, obviously, the question of
whether there existed a policy or custom is distinct from the
question of whether the plaintiff presents a cognizable con-
stitutional injury.
In essence, this is why King’s action against La Crosse
County cannot be revived by our recognition that the incor-
rect constitutional standard was used to try King’s claim
against Kramer. King does not assert a specific error commit-
ted by the jury in finding that the County had no official cus-
tom or policy in place to deprive inmates of their prescribed
medications. Furthermore, the jury’s finding that there was
no official custom or policy is not disturbed by our conclu-
sion that Kramer was evaluated under the wrong constitu-
tional standard. Having successfully established that there
was no official custom or policy in place, La Crosse County
cannot be held liable under Monell.
B
We turn our attention to the two evidentiary arguments
raised by King. First, King argues that the district court
should have taken judicial notice of the contract between La
Crosse County and HPL to conclude as a matter of law that
the County had delegated final decision-making authority
No. 13-2379 25
over inmate health decisions to HPL. This argument is ex-
trapolated from our statement in King I, where we observed
that “[t]he County’s express policies as embodied in the con-
tract show that the County delegated to HPL final authority
to make decisions about inmates’ medical care.” King, 680
F.3d at 1021. But we explicitly noted that our conclusion re-
garding HPL’s decision-making authority reflected only our
consideration of “[t]he evidence presented for summary
judgment purposes.” Id. at 1020. Additionally, our conclu-
sion resulted from construing the evidence in the light most
favorable to the Plaintiff-Appellant. Id. at 1020–21.
“We review the district court’s refusal to take judicial no-
tice of proffered materials for an abuse of discretion.” Craw-
ford v. Countrywide Home Loans, Inc., 647 F.3d 642, 649 (7th
Cir. 2011). Here, we easily conclude that the district court
did not abuse its discretion in refusing to take judicial notice
of the HPL contract. The district court correctly concluded
that Plaintiff-Appellant’s legal argument was not the proper
kind of fact that may be judicially noticed under Federal
Rule of Evidence 201(b). See Gen. Elec. Capital Corp. v. Lease
Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997) (holding
that “[i]n order for a fact to be judicially noticed, indisputa-
bility is a prerequisite”) (citation and quotation marks omit-
ted). HPL’s final authority, or lack thereof, was a disputed
point and was not suitable for judicial notice. The district
court had the requisite purchase to determine this disputed
matter, in light of the complete view of the evidence, and it
certainly had the authority not to take judicial notice of the
contract. The district court did not abuse its discretion with
regard to this request for judicial notice.
26 No. 13-2379
Plaintiff-Appellant also urges us to reverse on the basis
of the district court’s decision to exclude the indemnification
agreement between the County and HPL. King argues that
the indemnification agreement was admissible as evidence
that the County delegated final decision-making authority to
HPL. Under Federal Rule of Evidence 411, when the “para-
mount question before the jury [i]s one of negligence, evi-
dence of [liability] insurance” is not admissible “absent a
showing on the part of [the Plaintiff-Appellant] that [she]
intended to use the information for some alternate purpose
set forth in the second sentence of Rule 411,” such as “proof
of agency, ownership, or control, or bias or prejudice of a
witness.” King v. Harrington, 447 F.3d 531, 533 (7th Cir. 2006).
Because Plaintiff-Appellant’s main argument regarding the
admissibility of the indemnification agreement goes to ques-
tions of liability, the district court did not abuse its discretion
in excluding the agreement.
Because the district court did not err in making these ev-
identiary rulings, we find that King’s request for a new trial
with regard to its claim against La Crosse County is not jus-
tified. We therefore affirm the jury verdict in favor of the
County.
IV
For the foregoing reasons, we REVERSE the judgment of
the district court as to Defendant-Appellee Kramer and
REMAND that portion of the case for further proceedings con-
sistent with this opinion. We AFFIRM the judgment as to De-
fendant-Appellee La Crosse County.