King v. Sue Kramer & La Crosse Cnty., 13–2379.

Citation763 F.3d 635
Decision Date26 August 2014
Docket NumberNo. 13–2379.,13–2379.
PartiesLisa KING, as the Special Administrator for the Estate of John P. King, Plaintiff–Appellant, v. Sue KRAMER and La Crosse County, Wisconsin, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

763 F.3d 635

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.

No. 13–2379.

United States Court of Appeals,
Seventh Circuit.

Argued Jan. 8, 2014.
Decided July 10, 2014.

Amended Opinion Issued Aug. 14, 2014.

Rehearing En Banc Denied Aug. 26, 2014.


[763 F.3d 638]


Michael. J. Devanie, Devanie, Belzer & Schroeder, La Crosse, WI, Jeff Scott Olson, The Jeff Scott Olson Law Firm, S.C., Madison, WI, for Plaintiff–Appellant.

W. Patrick Sullivan, Siesennop & Sullivan, Amy J. Doyle, Crivello Carlson, S.C., Milwaukee, WI, for Defendants–Appellees.


Before BAUER, WILLIAMS, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

John King was in police custody awaiting his probable cause determination in April 2007. After 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–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 litigation, our court has already once ruled on an appeal concerning 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 unconstitutionally 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, Defendant–Appellees

[763 F.3d 639]

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 Defendant–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 prescribed medication without appropriate oversight by a physician. King moved to alter or amend the judgment on several 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 indifference standard, instead of the objective reasonableness standard, in the jury instructions and verdict form. We originally issued an opinion on July 10, 2014, reversing and remanding 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 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 circumstances surrounding the dispute over the proper legal standard.

On November 27, 2012, King's counsel emailed Defendants' 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 August 2011, for the correct proposition that the Fourth Amendment objective reasonableness standard, not a deliberate 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 confinement by a pretrial detainee awaiting a probable cause hearing.

[763 F.3d 640]

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, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) ] probable cause hearing 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 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 motion in limine to preclude King from amending the complaint 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 entirely 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 reasonableness was the correct standard. King's brief also cited law from our circuit stating that complaints need not identify 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 details differently, including whether either party requested to continue the trial so the parties could grapple with the correct 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 continuance, 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 deliberate indifference theory at summary judgment and on appeal to our court, and determined that this conduct constituted waiver. See Order 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 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 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 policy. To find

[763 F.3d 641]

La Crosse County liable, you must find that injury to John King was...

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