In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-1405

G REGORY S MITH,
                                                  Plaintiff-Appellant,
                                  v.

C HICAGO P OLICE O FFICERS JAL ANCE H UNT,
JOSE C ORTES, JOSEPH M ARTIS, P ATRICK B OYLE,
D ANIEL B INFA, D ANIELLE N. P HILP,
W ILLIAM R. W HELEHAN, AND
S ERGEANT R ICHARD D OWLING,
                                       Defendant-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 08-cv-6982—Virginia M. Kendall, Judge.



  A RGUED S EPTEMBER 19, 2012—D ECIDED F EBRUARY 14, 2013




 Before B AUER, K ANNE, and W OOD , Circuit Judges.
  K ANNE, Circuit Judge. Following the dislocation and
eventual amputation of his finger, Gregory Smith filed
suit against a group of Chicago police officers. Smith
alleged that their excessive force and failure to provide
2                                               No. 11-1405

medical attention during two separate arrests led to his
amputation. During trial, the district court allowed the
defense to present evidence of Smith’s heroin use prior
to one of the arrests. After the jury found for the defen-
dants, Smith brought this appeal, in which he argues
that the admission of that evidence and the references
made to it during the defense’s closing argument
denied him a fair trial. Finding that the admission of
the evidence did not constitute an abuse of the district
court’s discretion and that the improper statement
did not affect the outcome of the trial, we affirm.


                     I. B ACKGROUND
A. The Arrests and Injury
  On December 7, 2007, Gregory Smith was arrested by
Chicago Police Officers JaLance Hunt and Jose Cortes with
narcotics on his person. Smith alleges that, during the
arrest, the officers stomped on his hand several times and
beat him in various other ways. The officers deny such
behavior. Although the actions of the parties during the
arrest are disputed, by the time Smith arrived at the police
station around 12:05 a.m. on December 8, he had an
obvious finger injury. Said a sergeant who saw
the finger: “one of his fingers wasn’t in line with the rest
of the fingers on his hand.” (R. 132 at 67.) Soon there-
after, officers delivered Smith to Holy Cross Hospital,
where a triage nurse diagnosed him with a dislocated
finger.
  Dr. Danielle Wallace examined Smith at around
2:15 a.m. This interaction became important to Smith’s
No. 11-1405                                             3

lawsuit against the officers and, later, this appeal.
Dr. Wallace determined that Smith’s finger needed to be
moved back into place but also that some sort of pain-
killer should be administered during the potentially
unpleasant procedure. Dr. Wallace testified that she
first recommended a “digital block”—a local anesthetic
that would numb Smith’s finger and the area around it.
According to Dr. Wallace’s testimony, however, Smith
declined the anesthetic and instead requested “Dilaudid”
(a morphine derivative similar in chemical composition
to heroin). Smith denied requesting any specific medica-
tion or even knowing what painkiller he received.
Dr. Wallace first administered morphine, and when that
failed to reduce the pain sufficiently, proceeded to ad-
minister Dilaudid. She then re-set, splinted, and bandaged
Smith’s finger.
  Smith returned to the hospital on December 22 for a
follow-up appointment. By that point, his finger was
swollen and infected. In fact, the finger was no longer
medically alive. The treating physician told Smith that
amputation might be necessary and scheduled another
appointment for December 29.
  On December 28, before Smith could return for
that appointment, he was again arrested by Officer Cortes.
Smith again alleges mistreatment during this arrest—
specifically officers kneeling on and slapping his injured
hand—which the officers again deny. At the time of
Smith’s arrest, officers found Smith sitting on a sofa in
his home with drugs splayed out in front of him. It was
apparent that the condition of his finger had worsened:
4                                               No. 11-1405

the bandage was emitting a strong odor and oozing.
After processing Smith at the police station, officers
once again brought him to Holy Cross Hospital, where a
doctor determined that the finger required amputation.
The dislocation and subsequent amputation—a result,
Smith says, of the officers’ behavior during his ar-
rests—formed the basis of Smith’s lawsuit against
the defendants.


B. Legal Proceedings
  Smith’s amended complaint alleged excessive force,
battery, failure to intervene, and failure to provide
medical attention. During a pre-trial deposition, Smith
admitted to using heroin five or six hours before the
December 7 arrest. Smith subsequently filed a motion in
limine to suppress this evidence at trial. The trial court
initially rejected Smith’s motion. The court found that
the heroin use could be relevant to Smith’s behavior
during the arrest and to whether he complained about
the pain of his injury to the officers. Prior to trial, how-
ever, the court reversed itself; evidence of Smith’s
heroin use on December 7 would no longer be allowed.
In its ruling, the court found that evidence of Smith’s
heroin use would invite speculation by jurors, who
would not “know what the effect of heroin would be
on an individual under those circumstances.” (R. 124 at 35.)
  In the midst of trial, however, the court reversed
itself yet again. The precipitating events were
Dr. Wallace’s testimony, in which she described Smith
specifically requesting Dilaudid, and Smith’s testimony
No. 11-1405                                            5

denying that he made such a request. The court found
that Smith had created a dispute to which evidence of
his heroin use was relevant: whether and why he
requested a certain pain reliever. In other words, Smith,
the court said, had “opened the door” for evidence of
his heroin use to come in. The defense could introduce
evidence of heroin use to suggest that Smith had a
motive other than pain for requesting Dilaudid, which
is chemically similar to heroin. At the same time, the
court purported to limit potential use of the testimony.
Evidence of Smith’s heroin use, the court said, was only
relevant to the calculation of damages: how much pain
did Smith need to be compensated for? (R. 130 at 40.)
(“That goes to damages now, not to his ability to recall,
not to his behavior during the arrest. It goes to dam-
ages.”). Following this ruling, the defendants elicited
testimony from Smith, in front of the jury, regarding
his heroin use on December 7.
  The court’s ruling, however, did not affect the admis-
sion of other drug-related testimony. Indeed, the jury
heard substantial evidence of Smith’s involvement
with drugs generally and narcotics specifically. It heard
that he had been convicted of a narcotics-related offense
in 2006. (R. 130 at 10.) It heard that he was arrested
with narcotics on his person on December 7. (R. 128 at
48, 61.) It heard that the officers were at Smith’s house
on December 28 pursuant to complaints of narcotics
sales. (R. 125 at 82; R. 126 at 13.) It heard that on
December 28, the officers found Smith surrounded by
drugs. (R. 125 at 85-86; R. 126 at 21.)
6                                             No. 11-1405

  During the trial, the jury heard from several of the
police officers; Smith’s mother and uncle; Dr. Wallace;
Dr. Michael Vender, a defense expert who examined
Smith’s medical records and deposition testimony;
several of Smith’s neighbors, including potential eye-
witnesses; and, Smith himself. Smith’s attorneys cross-
examined Dr. Wallace in great depth on her medical
decisions and whether the various treatments she pre-
scribed were medically necessary (they were, she said)
and presented a consistent story of abuse at the hands of
the officers. They also elicited testimony from Smith’s
neighbors, who generally corroborated Smith’s version
of events. In response, the defense thoroughly questioned
the neighbors about their prior interactions with Smith
in order to cast doubt on their stories, and presented
testimony from Dr. Vender, who said that Smith’s
injuries could not have occurred in the manner he de-
scribed. The defense also presented evidence through
Dr. Wallace to establish that the length of time Smith
waited for medical treatment was not unreasonable
and therefore could not justify Smith’s claims for failure
to provide medical attention.
  Despite the court’s instruction to limit discussion of
the December 7 heroin use to the issue of damages, defense
counsel argued the following during closing:
    “Why—why didn’t he complain? The officers can’t
    say—can’t get in his head and say well, this is
    why he didn’t complain earlier. Is it because his
    fingers were frozen because he was standing
    outside for hours in the freezing cold? Is it
    because he took heroin earlier that day?”
No. 11-1405                                              7

(R. 132 at 145.) Smith immediately objected to this state-
ment, and the court sustained the objection. At the close
of the case, the court instructed the jurors that closing
arguments are not evidence and that they should base
their verdict on their recollections of the evidence. The
court offered to issue a further curative instruction
aimed at limiting consideration of the heroin use testi-
mony, but Smith declined this offer.
  After the jury returned a verdict for the defendants,
Smith timely filed this appeal. He alleges that the trial
court abused its discretion in admitting the evidence
and that the improper statements made during closing
argument merit a new trial. In so doing, Smith argues
that (1) the evidence was irrelevant to his case; (2) even
if relevant, the evidence was overly prejudicial and
should have been excluded; (3) introducing evidence of
his heroin use constituted an improper character attack;
and, (4) defense counsel made an improper closing argu-
ment referencing the evidence of heroin use. We
address each of these arguments below.


                      II. A NALYSIS
A. Admission of the Evidence
  This court reviews claims that evidence has been im-
properly admitted for an abuse of discretion. EEOC v.
Mgmt. Hospitality of Racine, Inc., 

, 440 (7th
Cir. 2012). A decision is an abuse of discretion only if
“no reasonable person would agree with the decision
made by the trial court.” United States v. Thomas, 

                                              No. 11-1405

838, 845 (7th Cir. 2006). But an abuse of discretion alone is
not enough to warrant granting a new trial. Mgmt. Hospital-
ity of 

. Rather, we will disrupt
a trial court’s decision only if the abuse violated a party’s
substantial rights. Florek v. Vill. of Mundelein, 

, 602 (7th Cir. 2011). To meet that threshold, a
significant chance must exist that the ruling affected the
outcome of the trial. Hasham v. Cal. State Bd. of Equaliza-
tion, 

, 1048 (7th Cir. 2000). We do not find
convincing any of Smith’s arguments that the trial
court abused its discretion by admitting evidence of the
December 7 heroin use. Even if it had, we do not find
that the admission affected the outcome of the trial
such that it violated Smith’s substantial rights.


1.   Admission was not an abuse of discretion
a.   Relevance
  Smith’s first two arguments can be collapsed into one
discussion of relevance; he argues that the testimony
was not relevant to his legal claims or was at least irrele-
vant absent expert testimony on heroin’s effects on a
user (which the defense did not provide).
  “Evidence is relevant if: (a) it has any tendency to make
a fact more or less probable than it would be without
the evidence; and (b) the fact is of consequence in deter-
mining the action.” Fed. R. Evid. 401. The amount of pain
Smith experienced on December 7 and 8 was clearly
“of consequence” to the proceedings—Smith sought dam-
ages for pain and suffering, and his attorneys ar-
No. 11-1405                                              9

gued throughout the trial that Smith’s award should
be significant because of the high level of pain that his
client endured. (R. 132 at 135) ([Mr. Neslund, Smith’s
counsel, during closing argument] “When you think of
the pain and suffering, think about three things back
there. How bad was it? How much did it hurt? Where
on the scale of intensity this pain was? How long did
it last? Where on the scale of time was he left in pain?”).
Therefore, evidence that might make a specific level of
pain more or less probable is relevant to the proceeding.
We do not think that the trial court abused its discretion
by determining that evidence of Smith’s heroin use
could be so-described.
  Furthermore, the level of pain Smith experienced
during the evening of December 7 and morning of Decem-
ber 8 was very much under dispute. Smith contends
that his “pain level of 10 out of 10 at the ER was not
at issue in this case.” (Appellant’s Br. at 13.) Although
Smith’s characterization of the record may be true in a
sense, it is also incomplete. No party disputes that Smith
described his pain as “10 out of 10” in the emergency
room. Smith’s description alone, however, did not con-
clusively determine the level of pain that he experienced
(and could be compensated for). Indeed, Smith’s own
attorneys did not rely on Smith’s description alone
and repeatedly used third party descriptions of Smith
and his injury to illustrate vividly the extent of Smith’s
pain and suffering. (R. 127 at 34-35) (“[Mr. Neslund]
Q. Now, a complete dislocation such as we see in this
X-ray, would you agree that that is a painful injury? [Dr.
Vender] A. Yes . . . . Q. And, Doctor, is there severe pain
10                                                No. 11-1405

with range of motion of the finger when you have this kind
of injury?”); (R. 132 at 51) ([Mr. Neslund, reading stipu-
lated evidence]: “A visual check of Gregory Smith was
performed and it was determined that Mr. Smith was
in obvious pain or had an obvious injury.”); (id. at 77)
(“[Mr. Robertson] Q. Now, when you saw Greg Smith
at the station, he had a visible dislocation of a finger,
correct? [Officer Boyle] A. When I looked at him yes . . . it
appeared as if his finger were bent up.”). Smith’s
attorneys also tried to rely on the nature and dosage of
the painkillers that Smith received at the emergency
room to establish the level of pain that Smith deserved
compensation for. (R. 127 at 40) (“[Mr. Neslund] Q. And
that was to treat the pain he was experiencing once
he arrived; is that correct? [Dr. Vender] A. Well,
morphine is for pain . . . . Q. Right now, am I correct
that that [Dilaudid] is a pain medication administered in
emergency rooms that is stronger than morphine? A. It’s
not necessarily stronger. It’s just—it’s different. Q. It’s not
eight times stronger than morphine, Doctor?”); (id. at 42)
([Mr. Neslund] Q. Dr. Vender, given the degree of pain as
documented in the emergency room records, the pain
medications administered to Mr. Smith, and the X-ray
you reviewed, is it fair to say that Mr. Smith suffered
a severely painful injury the night of December 7th?
A. It would appear so.”) Given this testimony, the defen-
dants could permissibly offer an alternative explana-
tion for the events of that night, one that would
illustrate a lower level of pain and justify a lower level
of damages. Particularly, they could argue that the
nature and dosage of the pain medications prescribed
No. 11-1405                                           11

for Smith—medications that the defense argued Smith
himself requested—could be explained by factors other
than pain, such as a desire to ingest opiates generally.
We think that a reasonable person might find that
Smith’s admitted heroin use earlier in the day could
be relevant to that explanation.
  Smith focuses his relevance argument on whether
the evidence of his heroin use had any tendency to
make his excessive force claims more or less probable.
We find this argument misplaced. The trial court
admitted the evidence for the sole purpose of deter-
mining damages for pain and suffering. Evidence, how-
ever, does not need to be relevant to each and every
claim to qualify as “relevant” for purposes of admissi-
bility. Here, evidence of Smith’s heroin use was relevant
to the events at the hospital and how they related to his
level of pain and suffering. That was enough for the
court to admit the testimony.
  Smith’s contention that this evidence was irrelevant
without expert testimony of heroin’s effect is similarly
misplaced, as Smith appears to misapprehend the
reason the trial court admitted the evidence. Smith con-
tends that “[t]he effect of heroin, if any on Smith’s
ability to feel and articulate pain during the time
frame from his arrest through his treatment, was clearly
a topic that was beyond the knowledge of an average
juror.” (Appellant’s Br. at 14.) However true that state-
ment may be, Smith’s “ability to feel and articulate
pain” was not what was at issue for the admission of
this evidence—his motivation for allegedly requesting
12                                              No. 11-1405

a specific painkiller by name was. We think it is within
the ken of the average juror to appreciate the basic rela-
tionship between two opiates (in this case, heroin
and Dilaudid), and to reasonably conclude that a desire
for one might be related to a desire for the other.
Although expert testimony on the effects of either
heroin or Dilaudid might have been useful, it was not
an abuse of discretion for the trial court to admit evi-
dence of Smith’s heroin use without such testimony.


b. Unfair prejudice
  Smith next argues that even if the evidence were rele-
vant, its admission was overly prejudicial and should
have been excluded under Fed. R. Evid. 403. We are
unconvinced. Evidence should be excluded under Fed.
R. Evid. 403 “ ‘if its probative value is substantially out-
weighed by the danger of unfair prejudice.’ ” Cobige v.
City of Chicago, 

, 784 (7th Cir. 2011) (quoting
previous version of Fed. R. Evid. 403). Evidence is
unfairly prejudicial where “its admission makes it likely
that the jury will be induced to decide the case on an
improper basis, commonly an emotional one, rather than
on the evidence presented.” Thompson v. City of Chicago, 

, 456-57 (7th Cir. 2006). Whether evidence is
“probative” is a similar question to whether it is “rele-
vant.” Compare Black’s Law Dictionary 1323 (9th ed. 2009)
(defining “probative” as “[t]ending to prove or disprove”),
with 

“relevant” as “[l]ogically con-
nected and tending to prove or disprove a matter in
No. 11-1405                                                13

issue.”). Here, the defendants contended that evidence of
Smith’s heroin use would disprove the theory that Smith
required (and perhaps requested) the medication in the
hospital solely for pain. Just as we think evidence of
Smith’s drug use on December 7 was relevant to the
proceedings, we also find that it had probative value.
  “Because all probative evidence is to some extent prej-
udicial, we have consistently emphasized that Rule
403 balancing turns on whether the prejudice is un-
fair. ” United States v. McKibbins, 

, 712 (7th
Cir. 2011). We have previously found evidence
unfairly prejudicial, for example, where it was sig-
nificantly more inflammatory than other evidentiary
alternatives, see United States v. Loughry, 

, 973-
74 (7th Cir. 2011) (finding that the introduction of
“hard core” pornography shortly before the trial’s con-
clusion caused unfair prejudice to a defendant who
stood accused of distributing only “lascivious exhibi-
tion” pornography, when introducing the latter type
would have equally served the government’s purposes),
or where the contested evidence conveyed a false or
misleading impression to the jury, cf. United States v.
Hanna, 

, 512 (7th Cir. 2010) (finding that a
defendant was not unfairly prejudiced when he was
“prosecuted for exactly what the evidence depict[ed]”)
(internal brackets omitted).
  Here, we cannot find that evidence of Smith’s drug
use on December 7 was unfairly prejudicial. Smith argues
that admitting evidence of the December 7 heroin use
“undoubtedly diverted the jury’s attention from its
14                                                  No. 11-1405

task” and “allowed the jury to decide against Smith not
because his rights were violated, but because he used
illegal drugs.” (Appellant’s Br. at 23.) However, the
defense presented to the jury a substantial amount
of evidence on Smith’s involvement with narcotics.
For example, the jury heard that Smith was arrested on
December 7 with drugs in his pocket and on December 28
with drugs laid out in front of him. The jury heard
that officers went to Smith’s house on December 28 to
inquire about Smith’s association with a drug dealer.
Given the other evidence of narcotics involvement and
use before the jury, we do not find Smith’s argument
credible. Evidence of Smith’s December 7 heroin use
was neither significantly more inflammatory than the
other drug evidence, nor did it convey a false impres-
sion. We do not think that it was an abuse of discretion
for the trial court to decide that evidence of Smith’s
drug use was not unfairly prejudicial when other evi-
dence linking him to narcotics had been properly admit-
ted. (R. 130 at 47) (“[I]t’s not overly prejudicial . . . when we
have heard from this defendant that he has a possession
with intent to distribute conviction, that he has two
possession drug convictions, that he had drugs on him . .
. .”).


c. General character attack
  Similarly, we cannot conclude that admitting Smith’s
testimony constituted a general character attack on
Smith that ran afoul of Fed. R. Evid. 404. Fed. R. Evid. Rule
404(b)(1) prohibits the use of evidence of a “crime, wrong,
No. 11-1405                                              15

or other act . . . to prove a person’s character in order to
show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. Rule 404(b)(2)
provides, however, that such evidence may be admissible
for a range of other uses, including “proving motive.” As
we explained above, the testimony was relevant to
Smith’s motivation for allegedly requesting Dilaudid. The
district court’s prescribed use of the evidence plainly
falls within the text of Fed. R. Evid. 404. We therefore
cannot conclude that it was an abuse of the trial court’s
discretion to permit the admission of testimony on
that basis.


2. Admission did not affect the outcome of the trial
   Even if we were to accept that the trial court abused
its discretion in admitting this evidence, we would only
disturb the court’s ruling if there was a significant
chance that the error affected the outcome of the trial.

. We do not find that to be the
case here. As described above, the defense introduced
a substantial amount of evidence about Smith’s involve-
ment with narcotics to the jury. We have already held
that evidence of Smith’s December 7 heroin use had
some probative value and caused no unfair prejudice
to him. We similarly find it unlikely, in light of the
other drug-related evidence admitted, that there was a
“significant chance” that the contested evidence alone
changed the outcome of the trial. Cf. United States v.
Jackson, 

, 593 (7th Cir. 2008) (finding error
16                                              No. 11-1405

harmless where a district court excluded statements that
could have illustrated defendants’ knowledge or intent
when other evidence tended to show the same thing).
   Our analysis is not complete, however. We must also
consider the general strength of the government’s case.

. Here, there was significant
evidence presented that contradicted Smith’s version
of events. Dr. Wallace testified that she did not observe
other injuries on Smith in the emergency room, which
calls into question his claims of excessive force. (R. 127
at 103-05.) Dr. Vender, the defense expert, further
testified that Smith’s injury could not have been caused
through the mechanism Smith described. (R. 127 at 15-26.)
(“[Mr. Nathan, defense counsel] Q. [I]f in a stomping
motion, two or three times, is it physically, scientifically,
or medically possible to get hyperextension, movement
back, or lateral deviation, side to side? [Dr. Vender]
A. No . . . . Q. And what was your opinion about the mech-
anism of the injury? A. [I]t didn’t happen according
to the way it was described in the deposition by
Mr. Smith, the stomping.”) The defense also presented
significant evidence that any delay in providing Smith
with medical care was not unreasonable. (R. 127 at 98)
(normal wait time at the hospital was in the in the 3-6
hour range, and Dr. Wallace saw Smith within an hour
of arrival.) Finally, there was competent testimony
from Dr. Vender that Smith’s finger was medically
dead prior to December 28, such that the officers’ actions
that day could not have been responsible for any pain or
its ultimate amputation. (R. 127 at 31) (“[Mr. Nathan]
No. 11-1405                                             17

Q. [D]o you have an opinion with regard to what point
in time Mr. Smith’s left ring finger was no longer viable
or needed to be taken off or amputated? [Dr. Vender]
A. Sometime before December 22, 2007.”). Given the
extent of this evidence, we find that there was a low
probability, and certainly below the necessary “significant
chance,” that Smith’s testimony about his heroin use
on December 7 changed the outcome of the trial. As
such, any error in its admission cannot be the basis
for reversal.


B. Closing Argument
  The defendants’ attorney clearly made an improper
statement in his closing argument. Despite the court’s
instruction that the December 7 heroin use was only
relevant to the damages calculation, defense counsel
attempted to tie the heroin use to Smith’s actions during
the arrest: “Why—why didn’t he complain? . . . Is it
because he took heroin earlier that day?” (R. 132 at 145.)
“Improper remarks during a closing argument warrant
reversal of the judgment only if the remarks influenced
the jury in such a way that substantial prejudice resulted
to the opposing party.” Gruca v. Alpha Therapeutic Corp.,

, 644 (7th Cir. 1995) (internal quotation marks
omitted). Reversible error occurs only if the statement
was “plainly unwarranted and clearly injurious.” Jones
v. Lincoln Elec. Co., 

, 730 (7th Cir. 1999).
  We cannot conclude that the remarks, improper though
they may have been, substantially prejudiced Smith
18                                                 No. 11-1405

such that the jury’s verdict should be overturned and
a new trial ordered. This court has been loathe to find
that improper comments made during closing argument
rise to the level of reversible error. See, e.g., Schandelmeier-
Bartels v. Chi. Park Dist., 

, 388 (7th Cir. 2011)
(“We have stated repeatedly that improper comments
during closing argument rarely amount to reversible
error.”); Miksis v. Howard, 

, 764 (7th Cir. 1997);
Doe v. Johnson, 

, 1465 (7th Cir. 1995).
   The lone case that Smith cites to support his argument
illustrates the high level of impropriety and prejudice
necessary for improper statements during a closing
argument to merit a new trial. In Gruca v. Alpha
Therapeutic Corp., an attorney for a pharmaceutical com-
pany defendant improperly and falsely stated during
his surrebuttal that the plaintiffs could have sued the
U.S. Food and Drug Administration rather than the

. The district court overruled
the plaintiffs’ objections and “compounded its error by
instructing the jury that ‘government entities are sued
all the time.’ ” 

improper statements
“became a statement of the district court.” 

these “statements were made during
surrebuttal argument, the plaintiffs had no opportunity
to reply.” 

of the sort occurred in this case. The district
court immediately sustained Smith’s objection, issued a
curative instruction, and even offered a further curative
instruction that Smith declined. The court did not
adopt the statement or compound the error. There is a
No. 11-1405                                             19

longstanding presumption that “curative instructions
to the jury mitigate harm that may otherwise result
from improper comments” during closing argument.

; see also Soltys v.
Costello, 

, 744 (7th Cir. 2008) (“We presume
that juries follow the instructions given them by the
court.”); 3M v. Pribyl, 

, 600 (7th Cir. 2001)
(“[A]bsent evidence to the contrary, we assume that
juries follow a court’s instructions.”); 

(“We have repeatedly found that jury instructions
of this sort [reminding the jury to base its verdict on
admitted evidence rather than counsels’ statements]
mitigate any prejudicial effect of potentially improper
remarks made by counsel . . . .”). As proof that the jury
could not follow the instructions given, Smith offers
nothing other than the fact that it decided against him.
We do not think that is enough. On these facts, we
cannot conclude that the improper statements caused
such substantial prejudice to Smith that a new trial
is warranted.


                    III. C ONCLUSION
  For the foregoing reasons, we A FFIRM the judgment of
the district court.
20                                              No. 11-1405

  W OOD , Circuit Judge, concurring in the judgment.
Somehow, in the late hours of December 7, 2007, Gregory
Smith’s finger was seriously injured as he was being
arrested by Chicago Police Officers JaLance Hunt and
Jose Cortes. The injury was obvious enough to the
officers that they transported Smith to Holy Cross
Hospital after booking him. There he was treated for
a dislocated finger—an injury that appears clearly on
x-rays that were taken at the hospital. Unfortunately,
the treatment was not successful. By December 22, two
weeks later, the finger was necrotic; after another week
had passed and Smith was arrested again, the police
returned him to the hospital and the doctors realized
that the finger had to be amputated. It was. Smith then
sued the officers under 42 U.S.C. § 1983, asserting that
they had used excessive force in both arrests. After a trial,
a jury ruled in favor of the defendant officers.
  Before this court, Smith’s principal argument is that
the district court erred in admitting evidence showing
that he had used heroin at some point earlier in the day
on December 7. My colleagues believe that the district
court did not abuse its discretion in permitting this evi-
dence to be admitted for the purpose of showing what
damages Smith suffered. With respect, I cannot join
them in this assessment. I thus do not find it necessary
or appropriate to analyze the admission of the contested
evidence under Federal Rules of Evidence 403 or 404(b).
Nevertheless, I agree with the majority that the admis-
sion of the heroin-use evidence was harmless error, and on
that basis alone, I concur in the judgment of affirmance.
No. 11-1405                                             21

  The evidence in question came from a pre-trial deposi-
tion in which Smith admitted to using heroin five or
six hours before his arrest on December 7. He provided
no additional details about that event or about his
heroin use in general. The district court first ruled that
the evidence could come in, then that it had to stay out,
and finally that it could be admitted for the limited pur-
pose of proving damages. In so doing, it rejected both
Smith’s general relevance objection and his argument
that the evidence, if admitted, had to be accompanied by
expert testimony. Smith is right on both points. Standing
alone, the evidence was meaningless. Even for the issue
of damages, it supported nothing but speculation on the
jury’s part. With an expert and with the addition of
critical facts, these flaws might have been cured, but that
never happened.
  It is impossible in the abstract to have any idea what
effect Smith’s use of heroin earlier in the day might have
had. The possibilities range from zero to significant, but
we have no way of selecting a point on that spectrum.
The effect of heroin on the human body varies according
to a number of variables, including (but probably not
limited to) (1) the amount taken, (2) the purity of the
substance ingested, (3) the method of administration,
(4) user tolerance (because addicts typically need a
greater dose to achieve the same result), and (5) time
since the dose. See generally NYUSteinhardt, Center for
Health, Identity, Behavior & Prevention Studies, Depart-
ment of Applied Psychology, Substances—Heroin, avail-
able at http://steinhardt.nyu.edu/appsych/chibps/heroin
(last visited Feb. 4, 2013); The Gateway Foundation for
22                                              No. 11-1405

Alcohol & Drug Treatment, The Facts About Heroin,
available at http://recovergateway.org/heroin-abuse/
heroin-facts/ (last visited Feb. 4, 2013) (“Because the
strength of heroin varies and its impact is more unpredict-
able when used with alcohol or other drugs, the user never
knows what might happen with the next dose.”); BBC
Health, Heroin, available at http://www.bbc.co.uk/health/
emotional_health/addictions/heroin.shtml#effects_of_
heroin (last visited Feb. 4, 2013) (“The effects vary de-
pending on how the heroin is taken.”). The record
reveals nothing about any of these essential facts. If
Smith had taken a small dose and his body was inured
to heroin from habitual use, the effects might have worn
off entirely by the time of his arrest at 11:25 p.m. If the
dose had been large, the purity high, and Smith’s user
tolerance low, then he might have still been experiencing
some effects. The period during which a dosage is
effective, however, appears to be closer to three hours,
not five or six. 

court first excluded
the heroin use, it recognized that this foundation was
needed to make the evidence relevant: “we don’t know
how much he took, and no one’s here who’s going to
testify . . . how quickly the [drugs] assimilate into his
body, how quickly would he recall, how quickly would
he be clear headed . . . how long would the drug, if at all,
numb his pain . . . . [T]hose are all questions that without
an expert on [the defense’s] side to say, it’s speculation.”
  In my opinion, therefore, in the absence of expert testi-
mony tending to show that there was any remaining
physiological effect from the heroin Smith had ingested
earlier in the day, this evidence had no relevance at all,
No. 11-1405                                           23

even to the damages question. The only other theory on
which my colleagues rely is the notion that Smith, a
heroin user, would be more likely to know that the pain-
killer Dilaudid is an opiate, see http://www.drugs.com/
dilaudid.html (last visited Feb. 4, 2013). Nothing in the
record tells us that Smith knew this, even if we credit
the testimony indicating that he asked for Dilaudid by
name. There is no evidence that his heroin supplier
was pushing illicit Dilaudid pills, rather than getting
heroin the usual way through criminal channels. Many
people know the names of common drugs without being
aware of the precise composition of those drugs or their
generic names. This also rules out any use of the request
for Dilaudid to show that Smith was just looking for
another fix, rather than seeking something to alleviate
the intense pain of a dislocated finger—pain he described
as a 10 out of 10. (The practice of measuring pain on a
scale of 0 to 10, with 0 being no pain and 10 being the
worse imaginable, is widely used by physicians. See
WebMD, Living with Chronic Pain, R. Morgan Griffin,
Using the Pain Scale: How to Talk About Pain, avail-
able at http://www.webmd.com/pain-management/
chronic-pain-11/pain-scale (last visited Feb. 4, 2013)
(commenting that pain scales “have a lot of good research
behind them); TIPNA (The International Pudendal Neu-
ropathy Association) website, Jack Harich, The Compara-
tive Pain Scale, available at http://www.tipna.org/
info/documents/ComparativePainScale.htm (last visited
Feb. 4, 2013).) Because we do not know how much
heroin Smith ingested, and whether the effects had worn
off by the time Smith was hospitalized, we can only
24                                              No. 11-1405

speculate that he might have been craving another fix
less than 12 hours after ingesting the last dose. While
some sources indicate that frequent users may crave
heroin “fixes” several times a day, BBC Health, 

, others explain that heroin users typically begin
to experience withdrawal and severe cravings 48 to
72 hours after their last dose, and no one argues that
Smith was anywhere close to that point. See NYUStein-
hardt, Substances—

; Gateway Foundation
for Alcohol & Drug Treatment, Risks of Using Heroin,
available at http://recovergateway.org/heroin-abuse/
heroin-risks/ (last visited Feb. 4, 2013). Even the district
court acknowledged at one point that without knowing
how much heroin Smith ingested or having expert testi-
mony on how heroin would have affected Smith, the
jury would have no basis for inferring that the heroin
altered Smith’s conduct or ability to perceive pain at
the time of the incident. As I have already said, nothing
but unfounded speculation existed to answer such im-
portant questions as whether the unknown quantity of
heroin had worn off, whether Smith was already
craving another fix, whether Smith knew that Dilaudid
is an opiate, and the degree to which Dilaudid has
effects that satisfy a craving for heroin. In short, I cannot
accept this alternative theory either.
  Like the majority, I conclude that the prosecutor’s
improper statement in the closing argument did not
prejudice Smith so seriously as to require a new trial. The
district court intervened promptly and appropriately,
and Smith gives us no reason to think that the jury did
not heed those instructions.
No. 11-1405                                             25

  Trials are seldom perfect, and this one was no excep-
tion. But Federal Rule of Civil Procedure 61 does not
demand perfection. To the contrary, it provides that
“[u]nless justice requires otherwise, no error in admitting
or excluding evidence—or any other error by the court
or a party—is ground for granting a new trial.” Justice
does not require otherwise here, in my view, despite
the fact that I regard the admission of the evidence
about Smith’s heroin use earlier in the day of his arrest
as an error. For these reasons, I concur in the judgment.




                          2-14-13