Bond v. Bd. of Cnty. Comm'rs of Muskogee Cnty., 20-7067

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtJerome A. Holmes Chief Circuit Judge
PartiesAUSTIN P. BOND, as Special Administrator of the Estate of Billy Woods, deceased, Plaintiff - Appellant, v. BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY, OKLAHOMA, Defendant-Appellee.
Docket Number20-7067
Decision Date23 May 2023


AUSTIN P. BOND, as Special Administrator of the Estate of Billy Woods, deceased, Plaintiff - Appellant,


No. 20-7067

United States Court of Appeals, Tenth Circuit

May 23, 2023

(D.C. No. 6:18-CV-00108-RAW) (E.D. Okla.)

Before HOLMES, Chief Judge, BALDOCK, and BACHARACH, Circuit Judges.


Jerome A. Holmes Chief Circuit Judge

Special Administrator Austin Bond ("Plaintiff") appeals from the district court's decision to admit evidence concerning a settlement agreement (as well as to permit the jury to hear related statements from counsel for the defense) and the court's subsequent decision to deny his motion for a new trial. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.



This appeal stems from the death of Billy Woods ("Decedent"), a sixteen-year-old teenager who committed suicide while incarcerated at the Muskogee County Regional Juvenile Detention Center ("RJDC"). Decedent's then-Special Administratrix, Robbie Burke,[1] brought, among other claims, a lawsuit pursuant to 42 U.S.C. § 1983 against eight Defendants: the Board of County Commissioners of Muskogee County ("Board"), which owned the RJDC; the Muskogee County Council of Youth Services ("MCCOYS"), which operated and maintained the RJDC; the State of Oklahoma, ex rel., Office of Juvenile Affairs ("OJA") which generally oversaw judicial detentions statewide and inspected the RJDC annually; Steven Buck, then-OJA director; and Jerrod Lang, Angela Miller ("A. Miller"), Brandon Miller ("B. Miller"), and Marietta Winkle (collectively the "MCCOYS Officers," and, when grouped with the MCCOYS, the "MCCOYS Defendants"), the detention officers working when Decedent died.

Plaintiff voluntarily dismissed his claims against the OJA on February 7, 2019. Then, Plaintiff settled with the MCCOYS Defendants and Mr. Buck-who were subsequently dismissed. That left the Board as the sole defendant. To possibly facilitate a settlement, Plaintiff and the Board participated in a summary jury trial before a magistrate judge, a dress rehearsal of sorts before the real trial, to find out


how a theoretical jury would rule. As the record reflects, "[t]he summary jury trial provides a low risk method by which counsel may obtain the perception of six jurors of the merits of their case in the course of a half-day proceeding so as to give parties a reliable basis upon which to build a just and acceptable settlement." Aplt.'s App., Vol. 21, at 5837 (Handbook and Rules of the Ct. for Summ. Jury Trial Proceedings, filed May 22, 2019). "This proceeding in no way affects the parties' right to a full trial de novo on the merits." Id.

The summary jury trial was held before two six-member juries, an "Individual Jury" and a "Group Jury." Id., Vol. 9, at 2343, 2345 (Order Setting Summ. Jury Trial, filed May 22, 2019). The parties were given the opportunity to present "evidence that would be admissible at trial upon the merits." Id. at 2344. At the conclusion of the presentations, the six-member Group Jury was tasked to return a consensus verdict, if possible, while each of the six jurors composing the Individual Jury was tasked to return a separate verdict "on liability and/or damages."[2] Id. At 2345.


The Group Jury rendered a verdict in Plaintiff's favor and determined that it would have awarded $20 million in damages. However, three members of the Individual Jury found for the Board, while the other three individual jurors found for Plaintiff and awarded less than $20 million in damages. After that exercise, no settlement was reached.

Plaintiff and the Board then went to trial to dispose of Plaintiff's § 1983 municipal liability claim against the Board. Before the trial, the Board asked the district court if it could mention the fact that Plaintiff settled with the Board's former codefendants. Specifically, the Board wanted to introduce Plaintiff's pre-trial settlement with the MCCOYS Defendants. In making this request, the Board reasoned that the settlement agreement would be needed to avoid jury confusion and speculation, and to possibly counter any bias that the codefendants-who were scheduled to be witnesses at trial-may have against the Board. The district court granted that request over Plaintiff's objection, ruling that the evidence was permissible for limited purposes pursuant to Rule 408 and Rule 403 of the Federal Rules of Evidence; but it prohibited the Board from mentioning or discussing the terms or amount of the settlement agreement.

At trial, Defense counsel mentioned the settlement agreement several times. To start, in the opening statement, Defense counsel noted that:

The surveillance video in this case is going to be hard to watch. It shows two hours with no one checking on Billy Woods. It will show all of the other residents are out in the program but Billy Woods is the only resident in his room. The video will show MCCOYS' employee Brandon Miller
and MCCOYS' employee Jerrod Lang right there in the hallway supervising showers of the other residents. There is no reason they should not have checked on him.
The evidence will show that both [B. Miller and Lang] have been sued in this case by the plaintiff in this lawsuit and both have settled.
[T]he county agrees that these four MCCOYS' employees should have tried first aid and CPR and they should have immediately called 911. It's common sense.
The evidence will show all four MCCOYS employees were sued by the plaintiff in this case, and all four have settled. The evidence will show that MCCOYS ran the juvenile detention center. The evidence will show though that Jerrod Lang, Brandon Miller, Jackie Winkle, and Angela Miller were MCCOYS' employees, and not county employees. The evidence will show that MCCOYS hired, trained, and supervised the daily activities of these four MCCOYS employees, the count[y] did not.
The evidence will show that plaintiff sued MCCOYS in the lawsuit and the evidence will show that MCCOYS has settled with the plaintiff.

Aplt.'s Opening Br. at 13 (first and second alteration in original) (quoting Aplt.'s App., Vol. 10, at 2860-63 (Trial Tr. Vol. I, dated July 7, 2020)).

Defense counsel also specifically asked the testifying MCCOYS administrative staff and some of the MCCOYS Officers whether they had been sued and subsequently settled. See Aplee.'s Resp. Br. at 6-7; Aplt.'s App., Vol. 11, at 3141-42 (Trial Tr. Vol. II, dated July 8, 2020); id., Vol. 15, at 4119 (Trial Tr. Vol. III, dated July 9, 2020); id., Vol. 16, at 4604 (Trial Tr. Vol. V, dated July 15, 2020); id., Vol. 17, at 4640; Aplee.'s Supp. App., Vol. 5, 1049-50 (Trial Excerpt of Cross-


Examination of Patty Reece, dated July 8, 2020); Aplt.'s Opening Br. at 16. And in the closing argument, Defense counsel told the jury:

Everything Mr. Smolen [i.e., Plaintiff's attorney] is talking about has to do with Jerrod Lang, Marietta Winkle-or Jackie Winkle, Brandon Miller, and Angela Miller, those four people, and then MCCOYS, those are the people who did wrong in this case. Those are the people who didn't do what they were supposed to do and those people have settled with the plaintiffs. Now, plaintiffs are going to come and ask you for 20 million dollars. That's what they're going to want. That's not right. That's not right for what these people did.

Aplt.'s Opening Br. at 17 (quoting Aplt.'s App., Vol. 12, at 3262 (Def.'s Closing Argument Tr., dated July 17, 2020)).

Aside from one instance on the second day of trial, however, Plaintiff did not raise any concerns regarding Defense counsel's questions or his opening statement and closing argument. See id. at 15-16; Aplee.'s Resp. Br. at 7. In that sole instance, Plaintiff suggested that Defense counsel's references to the settlement agreement "were improper and appeared to be contrary" to the district court's pretrial order. Aplt.'s Opening Br. at 15. Specifically, the following exchange ensued:

MR. SMOLEN: Just two things[3] I would like to address with the Court, Your Honor, [to] make a record on it. The situation with [Defense counsel] discussing settlement. It was my understanding at pretrial that he was allowed to ask a witness, "Were you named in this case?" They were supposed to say "yes." And then he was allowed to say,
"And were you"-"did you settle?" And say, "Yes." I've heard in his opening monologs [sic] about how MCCOYS has settled and everybody has settled. He's done it over and over repeatedly with the witnesses.
THE COURT: I'm sorry. Go ahead.
MR. SMOLEN: That's okay. He's asking [a MCCOYS officer], "And MCCOYS settled; didn't they?" And that's not a-I don't feel like that's consistent with the order.
THE COURT: I saw nothing that was inconsistent with the order.
THE COURT: I mean, I figured that [Defense counsel] was going to mention [the settlement evidence] in opening. He mentioned it. I figured that he was going to mention it with each MCCOYS' witness and he has, at least the ones that were individually sued.
MR. SMOLEN: That was my understanding, was the individuals could say that; but when he's got a program coordinator testifying that MCCOYS has settled, that's where I feel like at least my understanding of your order, that it wasn't that. It was that [the MCCOYS Officers] could say I was sued or I wasn't sued and I settled out, but not the entities.
THE COURT: Well, that's-I could go either way on that; okay? MR. SMOLEN: I just wanted to make a record.
THE COURT: That's fine. I don't find it to be egregious. If it was a violation of my order, as I mentioned to my staff before this trial started when you have to rule on 13,000 motions in limine if your orders are actually somewhat nuanced, I have the rulings right in

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