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Ray A. Fox, By and Through His Guardian Rose Fox v. Wexford Health Sources

January 18, 2012

RAY A. FOX, BY AND THROUGH HIS GUARDIAN ROSE FOX, PLAINTIFF,
v.
WEXFORD HEALTH SOURCES, INC., DAVID BARNES, CMT, OFFICER ROSALINE ) CURTIS, OFFICER MICHAEL BREWER, CONSTANTINE PETERS, J. PASQUA, ) MARLON BROWN, J. ENCARNACION, MICHAEL R. BORKOWSKI, JOSEPH P. ) SHEEHY, KAREN FRYER, JAMES F. BECKER, ) UNKNOWN CORRECTIONAL OFFICERS, AND ) UNKNOWN MEDICAL PERSONNEL, DEFENDANTS.



Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other or Magistrate Judge James F. Holderman than Assigned Judge

CASE NUMBER 09 C 5453

CASE TITLE

Fox v. Ghosh et al.

DOCKET ENTRY TEXT

The court proposes to provide the jury the attached Preliminary Verdict Form and Agreed Statement of Uncontested Facts prior to opening statements on January 23, 2012. The court also proposes to read to the jury the attached Preliminary Jury Instructions before opening statements on January 23, 2012. The court also attaches its proposed Final Jury Instructions. The court's resolution of the parties' objections are included in the Statement section of the order. Counsel are to voice any objections to the Verdict Form, the Preliminary Jury Instructions, or the Final Jury Instructions at the Final Pretrial Conference at 4 pm on 1/19/12.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Except where indicated below, the court has adopted the parties' agreed jury instructions, although it has modified some of the agreed instructions for clarity. The court has resolved the contested jury instructions as follows:

Plaintiff's Proposed Jury Instruction #1

The Seventh Circuit "requires a showing of an intentional act by the party in possession of the allegedly lost or destroyed evidence to support the tendered instruction." Spesco, Inc. v. Gen. Elec. Co., 719 F.2d 233, 239 (7th Cir. 1983). This court therefore rejects the proposed instruction, subject to reconsideration if the plaintiff produces evidence at trial of an intentional act by the defendants to destroy or lose the logbooks.

Agreed Proposed Jury Instruction #20

The court declines to give this instruction because it is redundant with the agreed statement of uncontested facts.

Plaintiff's Proposed Jury Instruction #2; Wexford Defendants' Proposed Jury Instruction #5

The plaintiff proposed an instruction taking judicial notice of four facts that the jury should accept as true. The defendants agree that facts (1) and (2), the life expectancies of a 49 year-old male and 49 year-old African American male, should be included, but object to the inclusion of (3) and (4), the facts included in the FDA informational package inserts for Dilantin and Phenobarbital.

The court declines to take judicial notice of the (3) and (4) because they are not facts "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). It is true that a court may take judicial notice of "reports of administrative bodies," Lamers Dairy Inc. v. U.S. Dept. of Agr., 379 F.3d 466, 471 (7th Cir. 2004), but it generally does so to establish the fact that the information in the reports was reported to the public, or to establish the occurrence of an administrative action, not to establish the truth of the contents of the reports, as plaintiff proposes. See Anspach ex rel. Anspach v. City of Philadelphia, Dep't of Pub. Health, 503 F.3d 256, 273 (3d Cir. 2007).

As to (1) and (2), the court proposes to include the facts in the Agreed Statement of Uncontested Facts, to avoid unnecessarily confusing the jury with a second set of facts that it must consider as proved. The court therefore rejects the proposed instructions.

Plaintiff's Proposed Jury Instruction #3

The court declines to give this instruction because the court has determined that Fox has not brought a state law claim for intentional infliction of emotional distress.

Plaintiff's Proposed Jury Instruction #4; IDOC Defendants' Proposed Jury Instruction #21; Wexford Defendants' Proposed Jury Instruction # 6

The court accepts these instructions, but rejects the defendants' proposal to list all of the defendants in each element, as it is unnecessary and confusing to the jury.

Plaintiff's Proposed Jury Instruction #5; IDOC Defendants' Proposed Jury Instruction # 23; Wexford Defendants' Proposed Jury Instruction # 7

The court has included plaintiff's proposed ostrich instruction, because the evidence may show that certain of the defendants strongly suspected that Fox faced a substantial risk of serious harm because of his medical condition, but did not investigate further to determine whether he in fact faced such a risk. The court has rejected the IDOC Defendants' proposed changes to the Seventh Circuit Pattern Instruction.

Plaintiff's Proposed Jury Instruction #6

The court has included this instruction, because the parties have stipulated that Dr. Peters was the Medical Director of Stateville NRC, which is evidence that he supervised the medical practices of others. (Dkt. No. 250 ¶ 2(a)(v).)

Plaintiff's Proposed Jury Instruction #7; Wexford Defendants' Proposed Jury Instruction # 8

The court has included these instructions, but has altered them because a corporation may be liable in these circumstances even if no individual defendant was liable. See Thomas v. Cook Cnty. Sheriff's Dep't, 604 F.3d 293, 305 (7th Cir. 2010)(stating that "a municipality can be held liable under Monell, even when its officers are not, unless such a finding would create an inconsistent verdict," and listing the elements of a claim that a municipality is liable for deliberate indifference to a prisoner's serious medical needs).

Agreed Proposed Jury Instruction #21

The court has included this instruction, but has altered it to match Seventh Circuit Pattern Jury Instruction 7.20. It is inappropriate to include "an act or omission ratified by the policymakers of Wexford" as a definition of "official policy." See Thomas, 604 F.3d at 303.

Plaintiff's Proposed Jury Instruction #8; Wexford Defendants' Proposed Jury Instruction # 9

The court has included these instructions, but modified them to accurately state the standard of failure to train for a deliberate indifference case. The court rejects the defendants' proposal to limit the instructions to include only NRC nurses' training in dispensing medication.

Plaintiff's Proposed Jury Instruction # 9-11; IDOC Defendants' Proposed Jury Instruction #24; Wexford Defendants' Proposed Jury Instruction #10-12

The court has rejected these instruction because the court has determined that Fox has not brought a state law claim for intentional infliction of emotional distress.

Plaintiff's Proposed Jury Instruction # 12; IDOC Defendants' Proposed Jury Instruction #26; Wexford Defendants' Proposed Jury Instruction #13

The court adopts the plaintiff's instruction, and overrules the defendants' objections. If no evidence is introduced at trial as to plaintiff's past medical bills, the court may reconsider this decision. The court also rejects the defendants' proposed nominal damages instruction, because this is not a no-injury case. See Clarett v. Roberts, 657 F.3d 664, 673 (7th Cir. 2011)

Plaintiff's Proposed Jury Instruction # 13

The court finds that there is evidence to support a punitive damages award, and adopts this instruction.

Plaintiff's Proposed Jury Instruction # 14

The court has adopted this instruction because the principle of the egg-shell skull rule, that "the tortfeasor takes his victim as he finds him" is applicable even when the defendant knows of the plaintiff's pre-existing condition. Richman v. Sheahan, 512 F.3d 876, 883 (7th Cir. 2008). Indeed, it is all the more applicable, because any resulting injuries are then reasonably foreseeable.

Plaintiff's Proposed Jury Instruction # 15

The court declines to adopt this instruction, although it will revisit the question if evidence of the individual Defendants' finances is introduced.

IDOC Defendants' Proposed Jury Instruction #20; Wexford Defendants' Proposed Jury Instruction #4

The court declines to give these instructions because they is redundant with the substantive instructions on plaintiff's claim of deliberate indifference, which makes clear that each defendant must be personally involved for liability to attach.

IDOC Defendants' Proposed Jury Instruction #22

The court rejects this instruction because the parties have stipulated that Fox's seizure disorder was a serious medical need.

Wexford Defendants' Proposed Jury Instruction # 2

The court rejects this instruction because it may confuse the jury by instructing them that it can only consider the conduct of each defendant in the case against that defendant, when Plaintiff's Monell theories require the consideration of others' conduct in some cases.

The following instructions are rejected because they are redundant with other agreed instructions:

IDOC Defendants' Proposed Jury Instructions #1-19, 25

Wexford Defendants' Proposed Jury Instructions #1, 3

FINAL JURY INSTRUCTIONS

Members of the jury, you have seen and heard all the evidence and arguments of the attorneys. Now I will instruct you on the law.

You have two duties as a jury. Your first duty is to decide the facts from the evidence in the case. This is your job, and yours alone.

Your second duty is to apply the law that I give you to the facts. You must follow these instructions, even if you disagree with them. Each of the instructions is important, and you must follow all of them.

Perform these duties fairly and impartially. Do not allow sympathy, prejudice, fear, or public opinion to influence you. You should not be influenced by any person's race, color, religion, national ancestry, or sex.

In this case, Defendants are a corporation, employees of the corporation, and government officials. Plaintiff Ray Fox is a private citizen. All parties are equal before the law. All parties in this case are entitled to the same fair consideration that you would give any individual person.

Nothing I say now, and nothing I said or did during the trial, is meant to indicate any opinion on my part about what the facts are or about what your verdict should be.

The evidence consists of the testimony of the witnesses, the exhibits admitted in evidence, and stipulations. A stipulation is an agreement between both sides that certain facts are true.

Certain things are not to be considered as evidence. I will list them for you: First, if I told you to disregard any testimony or exhibits or struck any testimony or exhibits from the record, such testimony or exhibits are not evidence and must not be considered.

Second, anything that you may have seen or heard outside the courtroom is not evidence and must be entirely disregarded. This includes any press, radio, Internet or television reports you may have seen or heard. Such reports are not evidence, and your verdict must not be influenced in any way by such publicity.

Third, questions and objections or comments by the lawyers are not evidence. Lawyers have a duty to object when they believe a question is improper. You should not be influenced by any objection, and you should not infer from my rulings that I have any view as to how you should decide the case.

Fourth, the lawyers' opening statements, interim statements, and closing arguments to you are not evidence. Their purpose is to discuss the issues and the evidence. If the evidence as you remember it differs from what the lawyers said, your memory is what counts.

During the trial, certain testimony was presented to you by the reading of deposition(s) and/or video. You should give this testimony the same consideration you would give it had the witness(es) appeared and testified here in court.

Any notes you have taken during this trial are only aids to your memory. The notes are not evidence. If you have not taken notes, you should rely on your independent recollection of the evidence and not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater weight than the recollections or impressions of each juror about the testimony.

In determining whether any fact has been proved, you should consider all of the evidence bearing on the question regardless of who introduced it.

You should use common sense in weighing the evidence and consider the evidence in light of your own observations in life.

In our lives, we often look at one fact and conclude from it that another fact exists. In law we call this an "inference." A jury is allowed to make reasonable inferences. Any inference you make must be reasonable and must be based on the evidence in the case.

You may have heard the phrases direct evidence and circumstantial evidence. Direct evidence is proof that does not require an inference, such as the testimony of someone who claims to have personal knowledge of a fact. Circumstantial evidence is proof of a fact, or a series of facts, that tends to show that some other fact is true.

As an example, direct evidence that it is raining is testimony from a witness who says, I was outside a minute ago and I saw it raining. Circumstantial evidence that it is raining is the observation of someone entering a room carrying a wet umbrella.

The law makes no distinction between the weight to be given to either direct or circumstantial evidence. You should decide how much weight to give to any evidence. In reaching your verdict, you should consider all the evidence in the case, including the circumstantial evidence.

You must decide whether the testimony of each of the witnesses is truthful and accurate, in part, in whole, or not at all. You also must decide what weight, if any, you give to the testimony of each witness.

In evaluating the testimony of any witness, including any party to the case, you may consider, among other things:

- the ability and opportunity the witness had to see, hear, or know the things that the witness testified about;

- the witness's memory;

- any interest, bias, or prejudice the witness may have;

- the witness's intelligence;

- the manner of the witness while testifying; and

- the reasonableness of the witness's testimony in light of all the evidence in the case.

You may consider statements made before the trial by either a witness under oath or a party to the case as evidence of the truth of what was said in the earlier statements, as well as in deciding what weight to give the testimony here in court of that witness or party.

With respect to other witnesses, the law is different. If you decide that, before the trial, one of these witnesses made a statement not under oath or acted in a manner that is inconsistent with his or her testimony here in court, you may consider the earlier statement or conduct only in deciding whether the witness's testimony here in court was true and what weight to give to the witness's testimony here in court.

In considering a prior inconsistent statement or conduct, you should consider whether it was simply an innocent error or an intentional falsehood and whether it concerns an important fact or an unimportant detail.

You have heard evidence that certain witnesses have been convicted of crimes. You may consider this evidence only in deciding whether these witnesses' testimony is truthful in whole, in part, or not at all. You may not consider this evidence for any other purpose.

It is proper for a lawyer to meet with any witness in preparation for trial.

You may find the testimony of one witness or a few witnesses more persuasive than the testimony of a larger number. You need not accept the testimony of the larger number of witnesses.

The law does not require any party to call as a witness every person who might have knowledge of the facts related to this trial. Similarly, the law does not require any party to present as exhibits ...


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