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King v. Kramer

United States Court of Appeals, Seventh Circuit

July 10, 2014

LISA KING, as the Special Administrator for the Estate of John P. King, Plaintiff-Appellant,

Argued  January 8, 2014

Amended Opinion Issued August 14, 2014

Page 636

[Copyrighted Material Omitted]

Page 637

Appeal from the United States District Court for the Western District of Wisconsin. No. 3:10-cv-00123-wmc -- William M. Conley, Chief Judge.

For LISA KING, as the Special Administrator for the Estate of John P. King, Plaintiff - Appellant: Michael. J. Devanie, Attorney, Devanie, Belzer & Schroeder, La Crosse, WI; Jeff Scott Olson, Attorney, Madison, WI.

For Sue Kramer, Defendant - Appellee: W. Patrick Sullivan, Attorney, Siesennop & Sullivan, Milwaukee, WI.

For La Crosse County, Wisconsin, Defendant - Appellee: Amy J. Doyle, Attorney, Crivello Carlson, S.C., Milwaukee, WI.

Before BAUER, WILLIAMS, and TINDER, Circuit Judges.


Page 638

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

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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.


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 ...

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