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

January 20, 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

Ray A. Fox, by and through his guardian, Rose Fox v. Dr. P. Ghosh et al.

DOCKET ENTRY TEXT

The court has discussed the proposed jury instructions off-the-record at the Final Pretrial Conference held on 1/19/12. The court has considered the objections that counsel have raised, and its rulings are in the Statement section of the order. A revised set of preliminary and final jury instructions are filed in the record.

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

STATEMENT

First, the court overrules defendants' objection to the inclusion of the ostrich instruction in the instructions on Plaintiff's claim for failure to provide medical attention against the individual defendants, because the evidence may show that certain of the defendants strongly suspected that Plaintiff Ray 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. Specifically, the jury may conclude that the CMTs and correctional officers who may have passed by Fox's cell while he was asking for medical attention may have heard enough to give them a strong suspicion of Fox's medical needs, and yet have declined to investigate further.

Second, the court overrules defendants' objection to the inclusion of Seventh Circuit Pattern Jury Instruction 7.17 regarding the liability of supervisors, and its objection to the exclusion of Seventh Circuit Pattern Jury Instruction 7.02 requiring the personal involvement of the defendants to hold them liable. The parties have stipulated that Dr. Peters was the Medical Director of Stateville NRC, and there is other evidence that he supervised the medical practices of others. Consequently, it is appropriate to instruct the jury that he may be held responsible for the actions of his subordinates. The court declines to instruct the jury that the other defendants must be personally involved to be found liable, because that instruction 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.

Third, the court overrules defendants' objection to the court's determination that Dr. Peters is the final policymaker for Wexford Health Sources, Inc., as explained in Dkt. No. 349.

Fourth, the court sustains plaintiff's objection to the reference to "employees" in the failure to train instruction. To match the evidence that the plaintiff's counsel asserts will be introduced as to Wexford's supervision of IDOC officers, "its employees" will be replaced with "Wexford's employees or Department of Corrections officers."

STATEMENT

Fifth, the court sustains plaintiff's objection to the inclusion of the phrase "was aware of the risk of harm to Plaintiff" in the instruction on corporate liability because of official policy or custom. In accordance with Farmer v. Brennan, 511 U.S. 825, 837 (1994), the court will substitute the phrase "was aware of the risk of harm to the health of inmates such as Plaintiff."

Sixth, the court sustains plaintiff's objection to the phrase "a custom of deliberate indifference to the serious medical needs of inmates" in the jury instructions' definition of "official policy," and accepts plaintiff's proposal to substitute "a custom of failing to respond reasonably to the serious medical needs of inmates." The court agrees with plaintiff that a corporation may be liable under § 1983 because of a custom or policy even if none of its employees are 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). Instructing the jury that there must be a "custom of deliberate indifference" raises the danger that the jury will interpret that instruction to require a custom of individual employees being deliberately indifferent to the serious medical needs of inmates, rather than that the corporation have a custom of being deliberately indifferent. It is true that "deliberate indifference" requires Wexford additionally to be aware of the substantial risk to inmate health, while "failing to respond reasonably to the serious medical needs of inmates," leaves that requirement out. The requirement of Wexford's knowledge is covered in the element #2 of the requirements for liability for corporate official policy or custom, so leaving it out of the definition of "official policy" does not misstate the law.

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 all papers and things mentioned during this trial.

You have heard witnesses give opinions about matters requiring special knowledge or skill. You should judge this testimony in the same way that you judge the testimony of any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness's qualifications, and all of the other evidence in the case.

Certain demonstrative exhibits have been shown to you. Those exhibits are used for convenience and to help explain the facts of the case. They are not themselves evidence or proof of any facts.

You must give separate consideration to each claim and each party in this case. Although there are several defendants, it does not follow that if one is ...


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