STEPHEN CULLINAN, M.D.'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW

THOMAS M. DURKIN, District Judge.

NOW COMES Defendant, STEPHEN CULLINAN, M.D., by and through his attorneys, HEYL, ROYSTER, VOELKER & ALLEN, and for his Renewed Motion for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50(b), states as follows:

1. On August 3, 2015 this matter proceeded to trial on Plaintiff's claims against the individual medical Defendant Dr. Stephen Cullinan ("Defendant").

2. At the close of Plaintiff's evidence, Defendant moved for judgment as a matter of law arguing, inter alia, that Plaintiff's evidence was insufficient for a reasonable jury to have a legally sufficient evidentiary basis to find for Plaintiff. Fed. R. Civ. P. 50(a)(1). See Attached Exhibit A Motion for Judgment as a Matter of Law [Doc. 506] and Exhibit B Motion to Reconsider Court's Decision on Defendant's Motion for Judgment as a Matter of Law ("Motion to Reconsider")[Doc. 507].1

3. Both Defendant's Motion for Judgment as a Matter of Law and Motion to Reconsider were denied, without prejudice.

4. On August 13, 2015 after three days of deliberations, the jury could not reach a unanimous verdict and the Court declared a mistrial.

5. Defendant now moves for a Renewed Motion for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50(b).

6. Fed. R. Civ. P. 50(b), states in pertinent part:

"No later than 28 days after the jury was discharged, the movant may file a renewed motion for judgment as a matter of law. . . . In ruling on the renewed motion the court may:

7. That the Court declared a mistrial does not prevent the Defendant from filing or prevailing on its Renewed Motion for Judgment as a Matter of Law pursuant to Rule 50(b). Schultz v. Owens-Illinois Inc., 696 F.2d 505, 508 (7th Cir. 1982) (affirming directed verdict granted after mistrial declared); see also Garrett v. Barnes, 961 F.2d 629, 632 (7th Cir. 1992) (affirming directed verdict entered at close of third trial following two mistrials).

8. As previously asserted in Defendant's Motion for Judgment as a Matter of Law and Motion to Reconsider, Plaintiff presented no evidence that Dr. Cullinan had any actual knowledge that: (1) Robert Awalt was suffering active seizures while in the Grundy County Jail in September 2010; and (2) that Mr. Awalt was not receiving his anti-seizure medication (Dilantin) as prescribed by Dr. Cullinan.

9. Plaintiff's failure to present any evidence that Dr. Cullinan had actual knowledge that Awalt was suffering from seizures supports judgment as a matter of law, as without such evidence, Plaintiff cannot meet the deliberate indifferent standard. Pittman ex rel. Hamilton v. County of Madison, Ill., 746 F.3d 766, 778-79 (7th Cir. 2014).

10. In Pittman, the Seventh Circuit denied summary judgment to guards that had received a suicidal inmate's request to see a crisis intervention counselor and who were aware that the inmate may have suffered from a serious psychological condition. Id. at 778. However, the court affirmed summary judgment for the nurse and doctor, contrasting the negligence standard for what they should have known with the deliberate indifference standard that "requires a showing that the defendants had actual knowledge that Mr. Pittman was at risk of serious harm and deliberately ignored that risk." Id. (emphasis in original). The court found the record did not support the conclusion, "even by inference," that the nurse or doctor addressed the inmate's situation with such a mental state. Id.; see also id. at 779 ("These professional caregivers addressed Mr. Pittman's complaints and prescribed medication.").

11. As further outlined in Defendant's Motion to Reconsider, Plaintiff has attempted to prove that such evidence of Dr. Cullinan's knowledge does exist. In order to do so, Plaintiff has relied on the testimony of Superintendent McComas reciting alleged out of court statements by Van Cleave that Awalt had a seizure and that Awalt was having seizures at the jail, which, by Plaintiff's own admission, were not to be offered for the truth of the matter asserted, and accordingly are not substantive evidence and cannot be used to defeat Defendant's Motion. See Exhibit B Defendants Motion to Reconsider and Exhibit A Attached thereto.

12. Despite Plaintiff's own representations that such statements were not being offered for their truth, Plaintiff, aware of the lack of this needed evidence, is now in effect asking the Court to accept the hearsay statements for the truth of the matter stated therein — that Van Cleave knew that Awalt was having seizures — to support an inference that Van Cleave is lying and must have told Dr. Cullinan of the seizures, despite Van Cleave's unequivocal testimony that she never saw Awalt have a seizure and never told Dr. Cullinan that Awalt was having seizures or requesting anti-seizure medication. This inference is unfounded and specious.

13. In fact, Plaintiff's own expert, Dr. Pedelty, testified that she had not seen any documentation that Awalt was having seizures in jail, and did not recall any witness testimony that anyone had told Dr. Cullinan that Awalt was suffering seizures.

14. Worse than in Garrett, Plaintiff is trying to make her case "on a nod, a wink, and a suggestion," 961 F.2d at 634. Plaintiff's attenuated inference is not only insufficient but is improper and cannot be considered in opposition to Defendant's Motion. Thus, Plaintiff "has not produced anywhere near the level of evidence as other plaintiff's whose cases were dismissed on directed verdicts or j.n.o.v.," and the same result should follow here. Garrett, 961 F. 2d at 634.

15. Even if the Court accepts that Dr. Cullinan should have done more based on the facts presented, a Judgment as a matter of law in his favor should still follow.

16. Deliberate indifference is not medical malpractice. McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013) (quotation and citations omitted). It is axiomatic that a defendant must be "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists," and that the defendant "must also draw the inference." Pittman, 746 F.3d at 776 (quoting Higgins v. Corr. Med. Servs. of Ill., Inc., 178 F.3d 508, 511 (7th Cir. 1999) (in turn quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

17. Absent any evidence that Dr. Cullinan actually drew the inference that Awalt was having seizures at Grundy County Jail or not receiving the medication as ordered by Dr. Cullinan a directed verdict is warranted. See Belbachir v. County of McHenry, 726 F.3d 975, 983 (7th Cir. 2013) (affirming summary judgment dismissal of nurse manager who treated inmate for panic attacks and anxiety, but was never told that inmate was suicidal).

18. Further, Plaintiff failed to produce evidence of causation against Dr. Cullinan, further warranting a Judgment as a matter of law in his favor. See Belbachir v. County of McHenry, 726 F.3d 975,983 (7th Cir. 2013) (noting causation is an "elementary requirement of liability.")

19. Plaintiff introduced testimony as to what she claims Dr. Cullinan should have done in regards to the care of Awalt. However, Plaintiff provided no evidence that any of this treatment would have saved Awalt's life or prevented his alleged constitutional injury. See Hahn v. Walsh, 762 F.3d 617, 640 (7th Cir. 2014) (finding policy claim failed where plaintiff presented no evidence that obtaining detainee's medical records would have saved her life); Belbachir v. County of McHenry, 726 F.3d 975, 983 (7th Cir. 2013) ("[E]ven if the sheriff was culpable for failing to discover and correct the [training and policy] deficiencies argued by the plaintiff, there is no evidence that correcting them before [the detainee] arrived at the jail would have prevented her suicide. Once again a causal relation between fault and injury is missing.").

20. Therefore, not only did Plaintiff not produce any evidence that Dr. Cullinan knew Awalt was suffering from seizures or that Awalt was allegedly not receiving his anti-seizure medication as prescribed, but after being critical of Dr. Cullinan's actions, Plaintiff still failed to provide any evidence that Dr. Cullinan's conduct had a causal relation to Awalt's alleged injury.

21. For the reasons outlined in Defendant's Motion for Judgment as a Matter of Law and Motion to Reconsider pursuant to Fed. R. Civ. Pro. 50(a)(1) and further outlined above, Defendant's Renewed Motion for Judgment as a Matter of Law should be granted, disposing of the remaining allegations against Dr. Cullinan.

WHEREFORE, Defendant, STEPHEN CULLINAN, M.D., respectfully requests that this Court enter judgment in his favor as a matter of law pursuant to Rule 50(b), and for any other relief this Court deems fair and just.

EXHIBIT A

STEPHEN CULLINAN, M.D.'S MOTION FOR JUDGMENT AS A MATTER OF LAW

NOW COMES Defendant, STEPHEN CULLINAN, M.D., by and through his attorneys, HEYL, ROYSTER, VOELKER & ALLEN, and for his Motion for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50(a), states as follows:

1. Fed. R. Civ. P. 50(a) requires the Court to resolve an issue against a party when that party "has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed. R. Civ. P. 50(a)(1). The Court is to grant a motion for judgment as a matter of law against the party on a claim that can be maintained only with a favorable finding on the issue lacking a sufficient basis. Id. In other words, judgment as a matter of law is appropriate if the Court finds that "no rational jury could have found for the plaintiff." Williams v. Pharmacia, Inc., 137 F.3d 944, 948 (7th Cir. 1998). Such a motion may be made at any time before the case is submitted to the jury, and should detail the judgment sought, as well as the law and facts that entitle the moving party to the judgment. Fed. R. Civ. P. 50(a)(2).

2. Plaintiff alleges that Dr. Cullinan failed to 1) "intervene in order to prevent the denial of care" to Robert Awalt ("Decedent"); 2) "supervise other individuals who failed to provide care" to Decedent; and 3) provide care to Decedent. See Second Amended Complaint.

3. Based on the evidence that Plaintiff presented to the jury in the instant matter, the Court should grant this Motion for Judgment as a Matter of Law as to all of the aforementioned allegations.

FAILURE TO INTERVENE

4. Plaintiff alleges that Decedent was denied medical attention, and that although Dr. Cullinan had a realistic opportunity to prevent harm from occurring to Decedent, Dr. Cullinan "failed to take reasonable steps" to prevent said harm. Id.

5. Plaintiff's theory of liability is based on the so-called "standby officer" instruction. See Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 477-78 (7th Cir. 1997). However, Plaintiff's claim fails as a matter of both law and proof. The failure to intervene and not been extended to jail medical providers, and Plaintiff has not submitted evidence from which any reasonable juror could find that Dr. Cullinan both knew that Decedent was having seizures in jail or not receiving his medication.

6. In Byrd v. Brishke, the "seminal" failure to intervene case in the Seventh Circuit, the Court examined a case involving police officers who found the plaintiff in an injured condition at a local tavern. Id. at 7-9; Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). The police officer defendants beat the plaintiff with "blackjacks, nightsticks, fists, feet and clubs" and then placed him under arrest. Brishke, 466 F.2d at 7-9. In holding that there is a duty to intervene imposed upon police officers, the Seventh Circuit wrote "[w]e believe it is clear that one who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge." Id. at 11.

7. Liability is imposed upon a police officer who is present and fails to intervene to prevent "other law enforcement officers from infringing the constitutional rights of a citizen under § 1983" when a plaintiff proves that the police officer had reason to know "(1) that excessive force was being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official; and the officer had a realistic opportunity to intervene to prevent the harm from occurring." Yang, 37 F.3d at 285 (emphasis in the original). The duty to intervene is imposed upon not only a supervisory police officer, but also those nonsupervisory police officers who are present at the scene of such summary punishment." Brishke, 466 F.2d at 11. The Seventh Circuit Court of Appeals opined that such a duty to intervene grows from a police officer's "duty to enforce the laws and preserve the peace." Id.

8. A query of relevant case law, including cases cited by Plaintiff in her response to Dr. Cullinan's objections to Plaintiff's Proposed Jury Instruction No. 26, reveals no instance in which the Seventh Circuit has extended the doctrine of failure to intervene beyond law enforcement officers. See, e.g., Windle v. City of Marion, 321 F.3d 658, 661 (7th Cir. 2003) (explaining that the case is based on a 1997 incident in which police officers wrongfully intercepted cellular phone conversations between lovers); Yang, 37 F.3d at 283 (examining a case of mistreatment at the hands of two Chicago police officers who were later convicted of felonies for the incident); Brishke, 466 F.2d at 11 (in which a plaintiff was beaten by police officers); Montano v. City of Chi., 535 F.3d 558, 561 (7th Cir. 2008) (where Chicago police officers "forcibly arrested and jailed" plaintiffs in what was alleged to be "flagrant mistreatment"); Lanigan, 110 F.3d at 478 (where a chief of police was accused of failure to intervene during a "poke and push"). In fact, no case law was found in which an allegation of a failure to intervene was successful against any individuals other than police officers, chiefs of police, wardens or deputy wardens. Moreover, Plaintiff failed to prove the same, as explained below. As such, the Court should grant Dr. Cullinan's Motion for Judgment as a Matter of Law as to Plaintiff's failure to intervene claim.

9. Even if the Court decides to extend the doctrine of failure to intervene beyond law enforcement defendants and excessive force, Plaintiff has nonetheless failed to present adequate evidence of a failure to intervene on the part of Dr. Cullinan such that a rational jury could find for Plaintiff. As detailed above, such an allegation requires that Plaintiff prove that Dr. Cullinan had reason to know "that any constitutional violation has been committed by a law enforcement official; and the officer had a realistic opportunity to intervene to prevent the harm from occurring." Yang, 37 F.3d at 285 (emphasis in the original). Based on the evidence presented to the jury, there is no indication that Dr. Cullinan was aware of any violation of Decedent's constitutional rights on the part of law enforcement officials.

10. Plaintiff has not presented any evidence that Correctional Officer Van Cleave or anyone else at Grundy County Jail told Dr. Cullinan that Decedent suffered any seizures in custody or had not been receiving the medication that Dr. Cullinan prescribed. Had they done so, Dr. Cullinan testified without equivocation that he would ordered the inmate "sent out of the facility" to the emergency room. Even if he had been so aware, Plaintiff has nonetheless failed to show that Dr. Cullinan had a realistic opportunity to prevent said harm. The Court should therefore grant this motion as to Plaintiff's allegation of failure to intervene.

FAILURE TO SUPERVISE

11. Plaintiff alleges that a person who Dr. Cullinan supervised failed to provide or secure appropriate medical attention to Decedent. See Second Amended Complaint. Further, Plaintiff alleges that Dr. Cullinan either knew Decedent was not receiving appropriate care, or knew that someone he supervised had a practice of "failing to provide or secure appropriate medical attention for detainees." Id. Plaintiff must prove that Dr. Cullinan "approved, assisted, condoned, or purposely ignored" failure by those he supervised to provide appropriate medical attention, and that Decedent was injured as a result. Id.

12. "Supervisory liability will be found . . . if the supervisor, with knowledge of the subordinate's conduct, approves of the conduct and the basis for it. . . . [T]o be liable for the conduct of subordinates, a supervisor must be personally involved in that conduct." Lanigan, 110 F.3d at 477. Further, an individual cannot be held liable for a § 1983 action "unless he caused or participated in an alleged constitutional deprivation." Wolf-Lillie v. Songuist, 699 F.2d 864, 869 (7th Cir. 1983). Since ruling in Lanigan, the Seventh Circuit Court of Appeals has clarified the meaning of personal involvement. Id. at 477. Though omissions may also violate civil rights, "supervisors who are merely negligent in failing to detect and prevent subordinates' misconduct are not liable. . . ." Yang, 37 F.3d at 285; Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). Additionally, the Court held that "gross negligence is also not enough to impose supervisory liability." Lanigan, 110 F.3d at 477. Instead, "supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate, reckless indifference." Jones, 856 F.2d at 992-93.

13. Here too, a review of relevant case law, including cases cited by Plaintiff, does not reveal Seventh Circuit cases in which a failure to supervise is applied to non-law enforcement officials. See, e.g., Backes v. Vill. of Peoria, 662 F.3d 866, 869 (7th Cir. 2011) (applying the doctrine where the Central Illinois Emergency Response Team forcibly removed a suspect from a car utilizing spike strips, pepper balls, and physical contact); Sanville v. McCaughtry, 266 F.3d 724, 739 (7th Cir. 2001) (applying the doctrine where wardens were accused of failing to adopt adequate suicide prevention policies); Fillmore v. Page, 358 F.3d 496, 500 (7th Cir. 2004); Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001) (an opinion based on a plaintiff's allegation against a police trainer); Jones, 856 F.2d at 993 (in which the Seventh Circuit Court of Appeals examined actions of police officers and their use of "deceitful reports"); Morfin v. City of E. Chicago, 349 F.3d 989, 1001-02 (7th Cir. 2003). In these cases, only law enforcement officers, chiefs of police, deputy wardens and wardens are the only individuals against which a failure to supervise was successful. In fact, in the one case where a failure to supervise claim was brought against medical professionals, the Northern District failed to find the doctrine to be applicable. Harris v. Ghosh, 2012 U.S. Dist. 128209, * 19 (N.D. Ill. 2012). Even setting aside the fact that a failure to supervise has not been extended to medical professionals, Plaintiff nonetheless failed to present competent evidence of this to the jury. As such, the Court should grant Dr. Cullinan's Motion for Judgment as a Matter of Law as to Plaintiff's failure to supervise claim.

14. The Northern District of Illinois has also demonstrated its discomfort with contentions that an allegation of a failure to supervise can take the place of, or is akin to, the doctrine of respondeat superior. In Harris v. Ghosh, the Court held that a medical defendant's alleged failure to supervise medical technicians "is not by itself a basis for liability" because "agency principles of respondeat superior and vicarious liability do not apply to § 1983 claims." Id. Courts in the Seventh Circuit have not extended causes of action for a failure to supervise away from the arena of excessive force by law enforcement because failure to supervise functions much like the doctrine of respondeat superior, a doctrine that expressly has no place in § 1983 claims.

15. Even if the Court decides to extend the failure to supervise doctrine into the uncharted territory of non-law enforcement actions, the evidence presented by Plaintiff nonetheless fails to reach the standards set by the Seventh Circuit — namely that the jury must find that Dr. Cullinan caused or was personally involved in a constitutional deprivation. Again, even gross negligence is sufficient, and Plaintiff instead must attain the high bar of proving that Dr. Cullinan acted either knowingly or with deliberate, reckless indifference. No competent evidence was presented in Plaintiff's case in chief. Nowhere did Plaintiff present evidence that Dr. Cullinan had information relating to the facts alleged, nor did she prove that he was deliberately or recklessly indifferent towards the medical needs of Plaintiff. No Witness, nor any physical evidence, demonstrated that any information collected by jail guards relating to Decedent's ongoing seizures was provided to Dr. Cullinan. As a result, the Court should grant this motion as to Plaintiff's allegation of a failure to supervise on the part of Dr. Cullinan.

DELIBERATE INDIFFERENCE TO MEDICAL NEEDS

16. Plaintiff alleges that Dr. Cullinan was deliberately indifferent to Decedent's medical need, and that Decedent was harmed as a result. See Second Amended Complaint.

17. The standard for "deliberate indifference to serious medical needs . . . contains both an objective element and a subjective element. The former requires that the deprivation suffered by the prisoner be `objectively, sufficiently serious.' In the medical care context, the objective element requires that the inmate's medical need be sufficiently serious. The subjective element requires that the officials act with a `sufficiently culpable state of mind.'" Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997) (citations omitted). Continuing, the United States Supreme Court opine that

Farmer v. Brennan, 114 S.Ct. 1970, 1979 (1994).

18. Plaintiff has failed to meet such a standard. Instead, the jury has seen no evidence that Dr. Cullinan knew of and disregarded excessive risk to Decedent's health or safety. He was not made aware of facts from which such an inference about Decedent could be made, and he consequently could not have made such an inference. As such, the Court should enter a judgment as a matter of law as to Plaintiff's deliberate indifference claim.

STANDARD OF CARE

19. Dr. Pedelty testified that Decedent should have reached a therapeutic level of Dilantin if he received it as prescribed. According to Dr. Pedelty, Dr. Cullinan allegedly breached the standard of care by failing to obtain a complete medical history of Decedent on September 15, 2010. That alleged breach, she admitted, did not and could not have caused Decedent's death from any failure to provide medical care.

20. Causation is an essential element of Plaintiff's § 1983 claims. Dr. Pedelty understandably did not, and could not, criticize the ultimate treatment prescribed by Dr. Cullinan, a doctor with decades of experience in correctional facilities. Both her and Dr. Filkins' expert admissions are fatal to Plaintiff's case — namely that under the loading dose and daily regimen of Dilantin prescribed, Decedent would have reached a "steady state" and a therapeutic level of Dilantin by Sunday, September 19, 2010 if he arrived with no Dilantin in his system. Dr. Cullinan's treatment simply could not have caused Decedent's death, regardless of whether it was due to the guards' failing to administer Dilantin to Decedent (contrary to their representations on his MAR) or suicide.

21. Absent any evidence that anyone reported active seizures to Dr. Cullinan or that Decedent was not receiving Dilantin as prescribed, Dr. Cullinan is entitled to judgment as a matter of law. Any other result is inconsistent with the Court's ruling that evidence of Decedent's pre-arrest medical history is irrelevant. There is simply no evidence that such information would have required a different course of treatment, the prescription of Dilantin. In contrast, if the medical history would have required some unspecified difference in the course of treatment, then the preclusion of such evidence from the jury was unduly prejudicial and unfair.

WHEREFORE, Defendant, STEPHEN CULLINAN, M.D., respectfully requests that this Court grant his Motion for Judgment as a Matter of Law.

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing instrument was served upon all attorneys to the above cause via the CM/ECF System on the 8th day of August, 2015.

EXHIBIT B

DEFENDANT STEPHEN CULLINAN, M.D.'S MOTION TO RECONSIDER THE COURT'S DECISION ON DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW

NOW COMES the Defendant, STEPHEN CULLINAN, M.D., by and through his attorneys, HEYL, ROYSTER, VOELKER & ALLEN, and for his Motion to Reconsider the Court's ruling on his Motion for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50(a), states as follows:

1. At the outset of trial, Plaintiff had three claims against Defendant Dr. Stephen Cullinan, M.D. ("Defendant"): (1) §1983 failure to provide adequate medical care while Mr. Awalt was incarcerated in the Grundy County jail in September of 2010; (2) failure to intervene; and (3) failure to supervise. Plaintiff has since dropped claims 2 & 3 and is now proceeding only on the § 1983 failure to provide adequate medical care claim.

2. At the close of Plaintiff's evidence, Defendant moved for judgment as a matter of law on the remaining issue, arguing, inter alia, that Plaintiff's evidence was insufficient for a reasonable jury to have a legally sufficient evidentiary basis to find for Plaintiff. Fed. R. Civ. P. 50(a)(1). [Doc. 506]

3. The Court denied Defendant's motion, without prejudice. Defendant now moves for reconsideration of that decision based on the following.

4. Defendant asserts that Plaintiff presented no evidence in her case-in-chief of any knowledge of Dr. Cullinan that Mr. Awalt was (1) Suffering active seizures while in the Grundy County Jail; and (2) That Mr. Awalt was not receiving his anti-seizure medication (Dilantin) as prescribed by Dr. Cullinan. Defendant asserts that without such evidence, Plaintiff cannot meet the standard of Dr. Cullinan being deliberately indifferent. At most, even in a light most favorable, the most they could prove is ordinary negligence.

5. Plaintiff's counsel argued before the Court that such evidence of Dr. Cullinan's knowledge does exist. Despite the testimony of Officer Van Cleave expressly denying she ever had any knowledge of Mr. Awalt having seizures while in the jail, expressly denying any knowledge of Mr. Awalt not receiving his anti-seizure medication while in the jail, and expressly denying relaying either of those pieces of information to Dr. Cullinan, Plaintiff's counsel argues that Van Cleave did in fact relay this information to Dr. Cullinan. In support of this proposition, Plaintiff takes a circuitous route through various out of court statements, relying on the testimony of Superintendent McComas. For the reasons that follow, the testimony of McComas reciting alleged out of court statements by Van Cleave were not offered for their truth, were not substantive evidence, and cannot be used to defeat Defendant's motion.

6. As the Court will recall, Defendant was highly suspicious of McComas' testimony as irrelevant to the issues pending against Dr. Cullinan. Plaintiff's counsel argued that McComas was relevant to the video editing, and had referenced a "cover up" in his opening statement to the jury. McComas admitted early in his testimony that Dr. Cullinan had no role in the editing or keeping of jail videotapes.

7. Superintendent McComas was called in Plaintiff's case-in-chief. Early on in Plaintiff's counsel's direct examination, Defendant objected to eliciting out of court statements of Van Cleave through McComas on grounds of hearsay, as well as objecting to the relevance of McComas' testimony generally. See Transcript of Sidebar, pp.2-5, attached hereto as Exhibit A. During the sidebar based on Defendant's objections, the following representations and exchanges took place:

See Exhibit A, pp.2-5 (emphasis added).

8. Despite the above representations by Mr. Kanovitz and rulings by the Court, offering out of court statements of Van Cleave through McComas for their truth is exactly what Plaintiff is arguing in response to Defendant's motion. These statements are not substantive evidence, and should not and cannot be considered in opposition to Defendant's motion. Per the Court's ruling, the only relevance of Van Cleaves' alleged out of court statements would be to McComas' state of mind as to why he edited the video.

9. Without these out of court statements, and as further argued in Defendant's original motion for judgment as a matter of law, Plaintiff cannot meet her burden of proving deliberate indifference against Dr. Cullinan. At most, even in a light most favorable, her allegations and evidence at best amount to negligence. As a result, the Court should grant Defendant's Motion for Judgment as a Matter of Law as to the remaining allegation pending against Dr. Cullinan.

10. It is Defendant's position that their motion for judgment as a matter of law should be granted, disposing of the remaining allegations against Dr. Cullinan. To the extent any claims survive, Defendant moves for an Order in limine barring Plaintiff's counsel from arguing in closing the out of court statements of Van Cleave through McComas for their truth. Defendant further asserts that Superintendent McComas' testimony is so immaterial to any allegations against Dr. Cullinan, and has such a high degree of danger of confusion and unfair prejudice, that his testimony should be stricken from the record entirely and that the jury be instructed to disregard it.

11. Additionally, the lack of any evidence of knowledge of Dr. Cullinan that Mr. Awalt was allegedly having seizures in the jail and/or knowledge of the guards failing to dispense the Dilantin as Dr. Cullinan prescribed has added significance to the issue of punitive damages.

12. Even when taken in a light most favorable to Plaintiff, without any knowledge on the part of Dr. Cullinan, Plaintiff's evidence has at most proven ordinary negligence. This is far from the standard for punitive damages. As stated by the Supreme Court, "[A] jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L. Ed. 2d 632 (1983).

13. There is simply no evidence or testimony that a rational jury could conclude that Dr. Cullinan acted with "evil motive" and Plaintiff simply has not and could not present evidence to the contrary because it doesn't exist. With respect to recklessness, as stated by the Seventh Circuit, Dr. Cullinan would have to be aware of a substantial risk of harm to Mr. Awalt, and decide to do nothing about it. See West By and Through Norris v. Waymore, 114 F.3d 646, 651 (7th Cir. 1997). The standard of "deliberate indifference" is the equivalent of criminal recklessness. See id. (emphasis added). There is no evidence that Dr. Cullinan knew of a substantial risk of harm to Mr. Awalt and ignored it. To the contrary, the evidence shows that Dr. Cullinan was told, per the statements of Mr. Awalt himself, that Mr. Awalt had a seizure disorder and was taking Dilantin. The evidence shows that Dr. Cullinan prescribed the Dilantin as requested, including that in his medical judgment, Dilantin is a safe drug to prescribe in this circumstance with the loading and maintenance does being the same. Plaintiff's standard of care expert, neurologist Dr. Pedelty, agreed the dosage was appropriate. Dr. Cullinan was not told that the guards allegedly failed to give the Dilantin to Mr. Awalt, nor was he told that Mr. Awalt was allegedly having seizures in the jail. Thus, there is no evidence Dr. Cullinan ignored a substantial risk of harm to Mr. Awalt. Plaintiff's remaining theories about failure to document, etc., amount to at most negligence allegations, not criminal recklessness.

14. As the Court is aware, Defendant is and has been concerned with the substantial risk of unfair prejudice against Dr. Cullinan having his financial assets disclosed to the jury, and had previously moved for bifurcation of any punitive aspect of the case so the jury's judgment on liability and compensatory issues would not be clouded by evidence of a clearly wealthy Defendant. That danger is higher than ever at the close of Plaintiff's case, with zero evidence of evil intent or criminal recklessness on the part of Dr. Cullinan.

15. For these reasons, Defendant moves that the Court issue a ruling that punitive damages are not recoverable in this case based on the evidence, and that the jury be given a limiting instruction not to consider Dr. Cullinan's wealth in deliberations regarding any surviving liability claims or compensatory damages issues.

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing instrument was served upon all attorneys to the above cause via the CM/ECF System on the 8th day of August, 2015.

EXHIBIT A

EXCERPT TRANSCRIPT OF PROCEEDINGS — Trial DUANE McCOMAS SIDEBAR PROCEEDINGS BEFORE THE HONORABLE THOMAS M. DURKIN, and a Jury

(Proceedings had not herein transcribed.)

(At sidebar outside the hearing of the jury.)

THE COURT: All right. They're a party opponent, even though they're out of the case. Leading is allowed of a witness. He was a defendant in the case, wasn't he?

MR. KANOVITZ: Yeah. I think he's adverse for sure.

THE COURT: Yeah, no question about it.

Now, what's the — the question exactly was what?

MR. KANOVITZ: I actually went through this with Mr. Salemi, and he said fine. The question is he comes there that night, and he makes the edits on the video.

THE COURT: Yeah.

MR. KANOVITZ: So I get to establish what he knew in his mind when he decided what to keep and what to —

THE COURT: Yeah.

MR. KANOVITZ: And so the fact that she said to him he had a seizure doesn't — I'm not offering it for the truth; I'm offering it to prove why he would have a motive to edit what he edited.

THE COURT: All right. Well, I'll instruct the jury that this isn't being offered for the truth of, you know, the — Van Cleave saying — Van Cleave saying he had a seizure, it doesn't go to the fact of whether, in fact, he had a seizure or not; it's just a fact that was in the mind of McComas when he did what he did next.

MR. KANOVITZ: Exactly.

THE COURT: And I'll make that instruction.

Go ahead.

MR. ROTH: What's the relevance of establishing that he's editing video? What does that have to do with Dr. Cullinan?

THE COURT: Well, because — I don't know.

MR. KANOVITZ: I'm not accusing Cullinan of editing the video. I'm establishing that there was a motive to get rid of the seizures and that he was having seizures.

MR. ROTH: What does that have to do with Dr. Cullinan?

THE COURT: But —

MR. KANOVITZ: These guys have just as much of a motive.

THE COURT: Well, I know, but what does that have to do with them being out of —

MR. KANOVITZ: They're saying he wasn't having seizures.

THE COURT: Let me complete my sentence.

MR. KANOVITZ: Oh, I'm sorry, Judge. I'm sorry, Judge.

THE COURT: With the Grundy County defendants being out of the case, unless there's an issue that the jury would think somehow they're not getting the full story or that if there's a real question about critical parts of the tape being missing, what's the point of going through why he edited what he did?

MR. KANOVITZ: They're saying — well, okay. May I respond?

THE COURT: You may.

MR. KANOVITZ: And I'm sorry for cutting you off.

THE COURT: That's all right.

MR. KANOVITZ: So they're saying he didn't have seizures. At the time that he made those edits, he had reason to suppress the fact that he was having seizures. The edits that he made are irrational, like this missing 33 minutes, and all of a sudden we're in the middle of this, you know, hyper stuff.

And they're saying to the jury, "Just look at the hyper stuff." And the fact of the matter is — the fact that he had a motive to get rid of seizures is probative evidence of that's exactly what he did.

THE COURT: All right. Well, I'm — I can't give it — in my own mind see a clear path to total relevancy. But as long as the testimony is not attributable and there's nothing about this that's attributable to Dr. Cullinan.

MR. KANOVITZ: I agree.

THE COURT: And I think, in fairness, you ought to raise the fact that he had no contact with Dr. Cullinan about how he edited these.

MR. KANOVITZ: Okay.

THE COURT: And bring that out in your direct —

MR. KANOVITZ: I will bring it out.

THE COURT: — so there's no misunderstanding about it. I was concerned about that in opening.

MR. KANOVITZ: Okay.

THE COURT: I'll allow it, but let's not belabor this. This doesn't go to deliberate indifference. It may go to proving seizure or not. That's your theory.

MR. KANOVITZ: Right.

THE COURT: But I'll let you do it, but —

MR. KANOVITZ: Okay.

THE COURT: — not lengthy.

MR. KANOVITZ: Understood.

THE COURT: Okay.

MR. SALEMI: Judge, as to leading? He's — they're not in the case —

THE COURT: He's still —

MR. SALEMI: — and they have a settlement agreement.

THE COURT: He's still adverse.

MR. SALEMI: Okay.

THE COURT: All right.

(Proceedings had not herein transcribed.)

EXCERPT TRANSCRIPT OF PROCEEDINGS — Trial DUANE McCOMAS SIDEBAR PROCEEDINGS BEFORE THE HONORABLE THOMAS M. DURKIN, and a Jury

(Proceedings had not herein transcribed.)

(At sidebar outside the hearing of the jury.)

MR. SALEMI: I've been informed that they don't intend to call Mrs. Awalt as a witness in this trial.

MR. KANOVITZ: In this phase of the trial.

THE COURT: All right.

MR. SALEMI: Then what did we just do?

THE COURT: Then what is the basis of your eliciting this from the doctor? I can't see any reason for this to be offered for other than the truth of the matter asserted. What are you going to bring out, what she said about medication?

MR. KANOVITZ: No, no. I mean, it's not the truth that he has seizures; it's the truth that she told him that he has seizures.

THE COURT: That's a — it's a meaningless distinction in light of the contested issues in this case.

MR. KANOVITZ: Okay.

THE COURT: You can't bring out a plaintiff's statement from another witness when you're offering that witness unless there's a non-hearsay purpose for it. And the non-hearsay purpose you just told me about I don't think is a correct one.

Are you going to call Liz Awalt in this case?

MR. KANOVITZ: Not in this phase of the case, for sure.

THE COURT: All right. So how would you intend to establish, if at all, what she told the Grundy County people about the medications he was on? If you're not going to — if you're not going to call her, I don't know how you're going to establish it in a way that doesn't violate the hearsay rule.

MR. KANOVITZ: Fair enough.

THE COURT: All right. As long as you know that.

MR. KANOVITZ: Yeah.

THE COURT: All right. I'm going to have the last question and answer stricken.

MR. KANOVITZ: Okay.

THE COURT: And you can't do it this way.

MR. KANOVITZ: Understood.

THE COURT: All right.

MR. KANOVITZ: Thanks.

MR. SALEMI: Thank you.

(Proceedings had not herein transcribed.)

(At sidebar outside the hearing of the jury.)

THE COURT: Thank you.

All right. First question is "Can the prisoners change the channel on the TV by standing on the toilet?"

Any objection to that by plaintiffs?

MR. KANOVITZ: No.

THE COURT: Defendants?

MR. SALEMI: No.

THE COURT: All right. "What is the normal frequency of guard rounds to view into the dayroom through the window?"

Any objection by plaintiff?

MR. KANOVITZ: No.

THE COURT: By defendants?

MR. SALEMI: No.

THE COURT: Okay. Those will all be asked. Mr. Kanovitz, you can ask those. You put the witness on.

"What qualifications did Mr. McComas need to be a prison superintendent? Does he have a background in law enforcement?"

I think those are reasonable questions. Any objection by plaintiff?

MR. KANOVITZ: No.

THE COURT: By defendant?

MR. SALEMI: No.

THE COURT: "When did he start/stop being superintendent? Number of years."

No objection?

MR. KANOVITZ: No objection.

MR. SALEMI: No.

THE COURT: All right. "What is the object in the hall on the floor when or after Robert is being put in the cell?"

MR. KANOVITZ: No objection.

MR. SALEMI: No objection.

I think it's a mattress.

THE COURT: Okay.

MR. KANOVITZ: I agree.

THE COURT: Okay. "Will we see clip 21? Why or why not?"

MR. KANOVITZ: Oh. I could play clip 21 just to take care of the issue.

THE COURT: All right.

MR. SALEMI: How long is it?

MR. KANOVITZ: It's like three minutes or something.

THE COURT: All right.

MR. KANOVITZ: It's not that long.

MR. SALEMI: It's up to you.

MR. KANOVITZ: Yeah, I'd like to play it.

THE COURT: All right. Then we'll play it.

"Are there bar codes on dayroom doors?"

Any objection?

MR. KANOVITZ: No objection.

MR. SALEMI: No objection.

THE COURT: "Can officers enter dayroom cells without scanning?"

MR. KANOVITZ: No objection.

MR. SALEMI: No objection.

THE COURT: "What time was the last cell check before he was found unresponsive?"

MR. KANOVITZ: No objection.

MR. SALEMI: No objection.

THE COURT: "On the medical screen form, why does it say on the second page he has no serious medical conditions when he declared seizures on page 1?"

MR. KANOVITZ: No objection.

MR. SALEMI: No objection.

THE COURT: Okay. Those will all be asked.

"What was the witness's understanding of policies and procedures when the jail has a medical incident or emergency?"

MR. KANOVITZ: Say that one one more time.

THE COURT: "What was the witness's understanding of policies and procedures when the jail has a medical incident or emergency?"

MR. KANOVITZ: No objection.

MR. SALEMI: Second trial.

THE COURT: Well, no, because he — it's not really the second trial because he's a — Grundy County is not in the second trial. They want to see what Grundy County did. Perhaps one of the policies and procedures is call Dr. Cullinan. I don't know.

MR. SALEMI: That's fine. No objection.

THE COURT: Okay. "What is he required to do from the second he is informed of the incident to the point he starts reviewing the tapes?"

MR. KANOVITZ: Okay.

THE COURT: Any objection?

MR. KANOVITZ: No objection.

MR. SALEMI: No objection.

THE COURT: Okay. Those can all be asked.

"When inmates are given medication, who dispenses the medicine, i.e., takes the pills out of the bottle?"

Any objection?

MR. KANOVITZ: No objection. I would like to be able to while asking that ask a follow-up question because what the person doesn't appreciate is that the nurse takes the pills out of the bottle, but then the guards deliver the pills.

THE COURT: All right. If he knows that, that's great. If not, then presumably Van Cleave knows that.

MR. KANOVITZ: Yes.

MR. SALEMI: I don't think — well, first of all, no, I think there's a foundational problem. I don't know that he's ever said that. I don't know that he testified to that. I don't think he knows it. And that —

THE COURT: Well, that's the question. Ask him if he knows the procedure for how medication is administered. If he doesn't know it, no leading on this subject.

MR. KANOVITZ: Understood. That's fine.

THE COURT: Yeah, I'm not accusing you of leading, but don't — he's not a competent witness for it then.

MR. KANOVITZ: So in that case, I shouldn't even ask the question, or should I say "do you know?"

THE COURT: "Do you know?"

MR. KANOVITZ: Okay.

THE COURT: "Do you know?"

MR. KANOVITZ: Okay.

THE COURT: Any objection if it's asked that way?

MR. SALEMI: No.

THE COURT: All right. These should all be asked by you, Mr. Kanovitz.

MR. KANOVITZ: Very good.

THE COURT: You can do appropriate follow-up. Your colleague or you can do — your colleague can do appropriate follow-up, if necessary.

MR. SALEMI: Yes.

MR. KANOVITZ: Okay.

THE COURT: Okay.

MR. SALEMI: Thank you.

(Proceedings had not herein transcribed.)

(Concluded at 11:21 a.m.)

CERTIFICATE

I certify that the foregoing is a correct transcript of the excerpt of proceedings in the above-entitled matter.