King Ex Rel. Estate of King v. Kramer

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
____________________
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,
and being placed in an isolated jail cell for seven hours, he
was found dead. The administrator of his estate, Plaintiff-
2 No. 13-2379
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 and jail nurse Sue Kramer were liable for John
King’s death, viewed through the deliberate indifference
lens of the Fourteenth and Eighth Amendments, and re-
manded the case for further proceedings. King v. Kramer, 680
F.3d 1013 (7th Cir. 2012) (“King I”).
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-
fendant-Appellees and ordered that the case be tried as
scheduled under the deliberate indifference standard.
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 find
No. 13-2379 3
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 the Defendant-Appellees would suffer
prejudice as a result of this delay. We therefore reverse and
remand to the district court for a new trial.
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 their 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-
finement by a pretrial detainee awaiting a probable cause
4 No. 13-2379
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 Ger-
stein [v. Pugh, 420 U.S. 103, 114 (1975)] probable cause hear-
ing is the event that terminates the Fourth Amendment’s
applicability following a warrantless arrest.”). See Williams v.
Rodriguez, 509 F.3d 392, 403 (7th Cir. 2007) (stating 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 determination of
probable cause, and that claims regarding confinement con-
ditions for pretrial detainees awaiting a probable cause de-
termination are governed by the Fourth Amendment and the
objectively unreasonable standard).
On December 14, Defendant-Appellees filed a motion in
limine to preclude King from amending the complaint or ar-
guing the applicability of the Fourth Amendment objective
reasonableness standard. Defendants argued that King was
attempting to “add an entirely new claim with an entirely
different legal standard four weeks prior to the start of trial.”
They asserted that the law had been clear three years before
Plaintiff-Appellant filed her case, and that the new standard
would unfairly prejudice the Defendant-Appellees, whose
experts had all reviewed the case under the deliberate indif-
ference standard. They argued that they would need “a sub-
stantial amount of time” for their 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
law from our circuit stating that complaints need not identi-
fy legal theories.
No. 13-2379 5
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 under the Fourth
Amendment, but was required to prove deliberate indiffer-
ence under the more exacting Eighth and Fourteenth
Amendment standards. In essence, the order required Plain-
tiff-Appellant to try the case under the deliberate indiffer-
ence standard, and this requirement was reflected in the lia-
bility instructions, which asked the jury to evaluate whether
Kramer was “deliberately indifferent to King’s serious medi-
cal need.” After the jury returned a verdict finding Kramer
was not deliberately indifferent, King filed a timely appeal.
The appeal presents the question of whether the district
6 No. 13-2379
court erred in denying Plaintiff-Appellant’s requested
Fourth Amendment jury instructions. 1
II
In granting Defendant-Appellees’ motion in limine to
preclude Plaintiff-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 objectively 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 addressing Plaintiff-Appellant’s post-verdict mo-
tion 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 reasonable standard by failing to pursue
such a claim on a timely 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
1 Plaintiff-Appellant also appeals two peripheral issues: whether the
court abused its discretion in refusing to take judicial notice of a contract
between the County and a private health provider, and whether the dis-
trict court correctly excluded an indemnification agreement between
those two parties.
No. 13-2379 7
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 Defendant-Appellees state that
Plaintiff-Appellant intentionally relinquished her Fourth
Amendment claim, nor are we dealing with a hard, judicial-
ly recognized bright line for waiver, like the principle that a
party waives on appeal any argument that it does not pre-
sent to the district court. This bright-line principle backs the
numerous waiver cases cited by the Defendant-Appellees in
their 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 consider an argument which is presented for the first
time on appeal.”); Geva v. Leo Burnett Co., 931 F.2d 1220, 1225
(7th Cir. 1991) (holding that an issue not “properly pre-
served 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 axiomatic that arguments not raised be-
low are waived on appeal”) (citation omitted). Likewise, Wil-
liams concerned a plaintiff who failed to raise the proper
constitutional standard during the summary judgment brief-
ing 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 appeal.”).
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-
8 No. 13-2379
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-
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)
No. 13-2379 9
(“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 the Defendant-Appellees’ 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-
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”);
10 No. 13-2379
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 Defendant-Appellees’ mo-
tion in limine, we review the court’s balancing of the equities
to each of the parties—whether a sufficient “justifying rea-
son” was stated for the bar of Plaintiff-Appellant’s Fourth
Amendment claim, despite our liberal pleading and
amendment practices.
When a district court makes discretionary decisions of
this nature, we do not always require the court to explicitly
balance the equities 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.
No. 13-2379 11
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
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 Defendants would “not
[be] prejudiced in any legally relevant sense by the court’s
12 No. 13-2379
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. 2 No good reason was given to the dis-
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. 3 But as
2 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-
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.
3 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
No. 13-2379 13
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-
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 the Defendant-
Appellees’ 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 “signifi-
cant” or prejudicial to the defendants to merit such a sanc-
pretrial stages, Defendant-Appellees also failed to appreciate the signifi-
cance of King’s status as a pre-trial detainee awaiting a probable cause
hearing, and to raise the correct governing law in our circuit.
14 No. 13-2379
tion, and that it was “fundamentally wrong” of the district
court to disallow this change. It appears to us that there
would have been no great cost to amending the jury instruc-
tions (which had not yet been finalized), or instructing the
experts and witnesses to cabin their testimony to their opin-
ions on the objective, accepted standard of professional con-
duct—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 opinions on this question—once in
response to the motion in limine, once in response to Plain-
tiff’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 delay in raising the correct stand-
ard. While we can certainly appreciate why the district court
considered delay as a factor in deciding whether a change in
legal theory should be allowed, there is no reason why delay
should have been the sole factor considered, or the weighti-
est. 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 Plaintiff-Appellant that would re-
sult from going to trial under 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 the defend-
ants.
The Defendant-Appellees’ 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 compel-
ling Defendant-Appellees’ argument about the inequity that
No. 13-2379 15
would result from allowing the remaining defendants to be
tried under the objective reasonableness theory after several
defendants were dismissed in King I by prevailing on the de-
liberate indifference standard. Perhaps this would be a per-
suasive argument if the Plaintiff-Appellant had tried to re-
vive 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. They also state that the shift in the legal
standard would require Defendant-Appellees to expend a
“substantial amount of additional time” so that their experts
could address the new legal standard, and that Plaintiff-
Appellant’s experts would have to be re-deposed. But no de-
tail was provided about what experts would need this deep-
er study and why, or which of the Plaintiff-Appellant’s ex-
perts require additional deposition. The vagueness of the
Defendant-Appellees’ claim of prejudice is curious, given
that expert discovery had concluded well before Plaintiff-
Appellant’s November 27 letter. Defendant-Appellees could
have explained specifically which of their experts 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 the parties even prior
to the summary judgment decision, 4 and certainly in the
lead-up to trial. 5
4 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
16 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 Nurse Kramer
“should have known,” but they could testify as to what “the
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.
5 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.
No. 13-2379 17
jury could infer a nurse with Kramer’s background and ex-
perience in correctional health care would have known,”—in
other words, the objective element of whether Kramer’s ac-
tions constituted 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-
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
18 No. 13-2379
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 the Defendant-Appellees of what
actual, specific prejudice would have resulted to the Defend-
ant-Appellees in defending against the correct Fourth
Amendment standard. And in scrutinizing the record, we
are unable to find compelling equities that would have justi-
fied the district court’s decision to go to trial under the in-
correct standard. In the absence of such countervailing equi-
ties, we are not convinced by the district court’s statement
that going to trial under the deliberate indifference standard
while “recogniz[ing] plaintiff’s claim under the Fourth
Amendment” was “the only way to allow plaintiff to pro-
ceed 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 allow a plain-
tiff to proceed with a Fourth Amendment claim, but only
under an Eighth Amendment standard. The fact that more
intermediate measures were available to the district court—
such as granting a continuance to allow the Defendant-
Appellees to retool their defense, or conditioning the grant
to amend the legal theory on the Plaintiff-Appellant’s pay-
ment of any additional discovery costs—bolster our conclu-
sion. See Estes v. Ky. Utils. Co., 636 F.2d 1131, 1134 (6th Cir.
1980) (“This is not 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 discre-
tion in this area is broad, and in a proper case conditions
may be imposed on the party seeking the amendment; for
example, costs of preparing for litigation could be imposed
on the party who asserts a valid, but untimely, dispositive
No. 13-2379 19
[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 prejudice that might result from the untimeli-
ness of the amendment, there is no justifiable reason for not
allowing it.”). Had the Plaintiff-Appellant refused these or
comparable ameliorating 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 par-
ty to bear additional discovery costs litigating a new issue
and the moving party does not offer to reimburse the non-
moving 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
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.
20 No. 13-2379
For these reasons, we find that the district court abused
its discretion in ordering that the case be tried under the in-
correct Eighth Amendment standard. We therefore reverse,
and direct that the motion for a new trial be granted.
III
Plaintiff-Appellant raises two other arguments, both of
which are unsuccessful and only deserving of our quick con-
sideration.
First, Plaintiff-Appellant argues that the district court
should have taken judicial notice of the contract between La
Crosse County and Health Professionals, Ltd. (“HPL”), to
conclude as a matter of law that the County had delegated
final decision-making authority over inmate health decisions
to HPL. This argument is extrapolated from a statement in
King I, where we stated that “[t]he County’s express policies
as embodied in the contract 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 regarding HPL’s decision-making au-
thority reflected only our consideration of “[t]he evidence
presented for summary judgment purposes.” Id. at 1020.
Additionally, our conclusion 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
No. 13-2379 21
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 “in order for a fact to be judicially noticed, indisputabil-
ity is a prerequisite”) (citation omitted). HPL’s final authori-
ty, or lack thereof, was a disputed point and was not suitable
for judicial notice. The district court had the requisite pur-
chase to determine this disputed matter, in light of the com-
plete 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.
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.
22 No. 13-2379
IV
For the foregoing reasons, we REVERSE the judgment of
the district court and REMAND this case for further proceed-
ings consistent with this opinion.