The opinion of the court was delivered by: James F. Holderman, Chief Judge:
MEMORANDUM OPINION AND ORDER
On January 18, 2013, a jury returned a verdict in favor of plaintiff Ray A. Fox*fn1 on his Eighth Amendment claim under 42 U.S.C. § 1983 that defendant David Barnes failed to provide adequate medical attention when Fox was incarcerated in the Illinois prison system, causing Fox to suffer a seizure, a brain aneurysm, and permanent mental damage. (Dkt. No. 446.) The jury awarded Fox $11 million in compensatory damages and $1 million in punitive damages. (Id.)
Prior to trial the court approved, over Barnes's objection, a jury instruction limiting the damages Fox was seeking at trial to the value of the medical care Fox was likely to receive after the date of trial on January 14, 2013, the value of the physical pain and suffering Fox experienced at all times, and the value of the mental pain and suffering Fox suffered after being released from prison. (Dkt. No. 405.)
That limitation meant that the damages the jury awarded to Fox at trial did not overlap with the amounts Fox received from settlement agreements with other defendants in the case who were responsible his medical care during the days he was incarcerated. (See Dkt. No. 396, at 9-10 (entering a judgment for $14 million against defendant Wexford Health Source, Inc. ("Wexford") for mental pain and suffering before Fox was released from prison, Fox's increased risk of premature death, and punitive damages); Dkt. No. 478 ($3 million settlement agreement with defendants Constantine Peters and James Becker for the value of the medical care Fox received prior to October 1, 2012).)
Barnes now moves under Federal Rule of Civil Procedure Rule 59(a)*fn2 for a new trial and under Rule 59(e)*fn3 for a setoff. (Dkt. No. 450.) The court has granted leave to Admiral Insurance Company, Wexford's insurer against whom Fox has asserted a claim for the judgment against Wexford, to file a brief on Barnes's motion. (Dkt. No. 476.) Fox has responded to that brief (Dkt. No. 477), and Admiral Insurance Company has replied. (Dkt. No. 484).
I. Motion for a New Trial
Barnes argues first that the court erred by excluding certain items from the damages that the jury was instructed to award to Fox, and that this error requires a new trial. "A court may only order a new trial if the jury's verdict is against the manifest weight of the evidence, or if for other reasons the trial was not fair to the moving party." Willis v. Lepine, 687 F.3d 826, 836 (7th Cir. 2012) (quotation marks, citation, and alteration omitted). "To prevail on a Rule 59(a) motion based on erroneous jury instructions, the [movant] must establish that (1) the instructions did not adequately state the law, and (2) the error was prejudicial because the instructions confused or misled the jury." Purtell v. Mason, No. 04 C 7005, 2006 WL 2037254, at *4 (N.D. Ill. July 18, 2006) (citing Byrd v. Ill. Dep't. of Pub. Health, 423 F.3d 696, 705 (7th Cir. 2005)). Erroneous jury instructions are prejudicial only if "considering the instructions as a whole, along with all of the evidence and arguments, the jury was misinformed about the applicable law." Boyd v. Ill. State Police, 384 F.3d 888, 894 (7th Cir. 2004).
Barnes contends that, in federal § 1983 cases as well as under the law of most states, "[i]t is axiomatic that where several independent actors concurrently or consecutively produce a single, indivisible injury, each actor will be held jointly and severally liable for the entire injury." Watts v. Laurent, 774 F.2d 168, 179 (7th Cir. 1985) (emphasis added) (applying principle in a § 1983 suit). The principle of joint and several liability, however, establishes only that a plaintiff may, if he desires, proceed against any of several joint tortfeasors for his injury. See id. ("In such a case the injured party may proceed to judgment against any or all of the responsible actors in a single or in several different actions." (emphasis added)). The principle does not require that the plaintiff must necessarily seek damages for the entire injury from each joint tortfeasor.
It is true, as Admiral Insurance Company contends, that "damages are not assessed 'by defendant' or 'by claim' but 'for' an injury." Duran v. Town of Cicero, Ill., 653 F.3d 632, 640 (7th Cir. 2011) (finding that it was error to issue instructions suggesting that the jury should assess damages as to each of two jointly and severally liable defendants). That principle does not mean, however, that a plaintiff may not forfeit certain items of damages flowing from an injury.
To the contrary, it is well-established that "the plaintiff is the master of its own litigation." Mizuho Corp. Bank (USA) v. Cory & Assocs., Inc., 341 F.3d 644, 651 (7th Cir. 2003). Barnes presents no argument why that principle is inapplicable here, nor does he explain why Fox should not be allowed to limit the damages that he seeks through a limiting instruction to the jury.*fn4
Plaintiffs commonly limit the damages they seek in other contexts. See, e.g., Oshana v. Coca-Cola Co., 472 F.3d 506, 511 (7th Cir. 2006) (stating that plaintiffs may disclaim damages over $75,000 to avoid diversity jurisdiction, so long as the disclaimer is binding). Accordingly, the court did not err in allowing Fox to limit the damages he sought from the defendants who went to trial.
Barnes next contends that he is entitled to a setoff for the amount that the other defendants have agreed to pay in their settlement agreements with Fox. A motion under Rule 59(e) to alter or amend the judgment is an appropriate vehicle to request a setoff of a jury verdict. See Zivitz v. Greenberg, 279 F.3d 536, 539 (7th Cir. 2002).
Fox contends first that federal law on the existence of a right of contribution in § 1983 cases resolves the setoff issue here. The Supreme Court has held that it will not add a common law right of contribution to a federal statute unless Congress has directed that doing so is appropriate. See Nw. Airlines, Inc. v. Transp. Workers Union of Am., AFL-CIO, 451 U.S. 77, 98 (1981)("[W]e are satisfied that it would be improper for us to add a right to contribution to the statutory rights that Congress created in the Equal Pay Act and Title VII."); see also Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 646 (1981) ("[W]e recognize that, regardless of the merits of the conflicting arguments, this is a matter for Congress, not the courts, to resolve."). Although neither the Supreme Court nor the Seventh Circuit has addressed the question, "a majority of District Courts that have addressed the issue" have reached the conclusion that § 1983 does not provide a right of contribution. Estate of Carlock ex rel. Andreatta-Carlock v. Williamson, No. 08-3075, 2009 WL 1708088, at *4 (C.D. Ill. June 12, 2009); see also Mathis v. United Homes, LLC, 607 F. Supp. 2d 411, 427 n.17 (E.D.N.Y. 2009) ("Moreover, the majority of cases decided since Northwest Airlines have held that there is no right to contribution under § 1983."). Fox contends that this court should follow the majority and hold that no contribution is available in § 1983 cases.
The question of a setoff, however, is distinct from a right of contribution. A right of contribution is the right of a joint and several tortfeasor to bring a distinct cause of action against a fellow defendant to apportion the cost of damages, while a setoff is a procedural device for adjusting a verdict to avoid a windfall to the plaintiff. See Martin A. Schwartz, Section 1983 Litigation Claims and Defenses § 16.15 (rev. 2013) (addressing both setoff and the right of contribution). Thus, the Seventh Circuit has made plain that a defendant may still be entitled to a setoff, even when a cause of action for contribution is unavailable:
[I]f there is no right of contribution under ERISA[,] . . . . the non-settling defendants would still have a practical interest in the settlement. Since a plaintiff's total recovery, from all the tortfeasors together, is not allowed to exceed his total damages, the amount that the non-settling defendants will have to pay will be smaller, the larger the settlement is.
Donovan v. Robbins, 752 F.2d 1170, 1178 (7th Cir. 1985) (emphasis added); see also Resolution Trust Corp. v. Gallagher, 815 F. Supp. 1107, 1108 (N.D. Ill. 1993) ("Our resolution of the settlement bar rule is necessary regardless of whether the defendants have a right to seek contribution from one another, because the parties cannot evaluate the effect of individual settlements on RTC and the remaining non-settling defendants until this Court has determined whether the pro tanto or comparative fault rule applies." (emphasis added)).
Moreover, one of the reasons for denying a right of contribution in § 1983 cases is not applicable to setoffs. A right of contribution is a right to an independent claim for relief, and federal courts are hesitant to create new claims under a federal statute unless Congress has explicitly authorized such a practice. See Moor v. Alameda Cnty., 411 U.S. 693, 703-04 (1973); Schwartz, Section 1983 Litigation Claims and Defenses § 16.15. A setoff, by contrast, ...