In Their Opinion : Seventh Circuit Court of Appeals Commentary : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

THOMAS v. COOK COUNTY SHERIFF'S DEPARTMENT (May 3, 2010)

In their opinion of December 1, 2009, Judges Flaum, Wood, and Williams affirmed in part and reversed and remanded in part a $4.45 million jury verdict awarded to the mother of a young man who died while in custody of the Cook County Jail (refer to the panel opinion and to my post). Cook County and the individual defendants petitioned for rehearing and rehearing en banc. With respect to the petition of the individual defendants, the panel unanimously voted to deny rehearing and no judge in regular active service requested a vote on the petition en banc. With respect to the petition of the County, however, three judges voted to grant the rehearing en banc with respect to the issue of damages. In consideration of the petition and the votes to grant the rehearing, the panel amended its opinion.

In their amended opinion, Judges Flaum, Wood, and Williams refined their analysis of the damages issue and provided some general prophylactic guidance regarding verdict forms. The panel reaffirmed its original decision upholding the verdict, notwithstanding the confusion apparent in the instructions and the verdict form.

Judge Sykes, joined by Judges Posner and Tinder, dissented from the denial of the County's petition for rehearing en banc. The principal claims in the case sought compensation for a single injury -- Norman Smith's suffering and death while in the custody of the Cook County Jail. Because liability is joint and several, the jury should not have been asked to assess damages by claim or by defendant. The dissent criticizes the panel for approving the district court's discretion to choose between the "ceiling" and the "cumulative" approaches to the confusion verdict. In the dissent's view, neither approach is supported by the Circuit's precedent. Finally, Judge Sykes is critical of the panel's reliance on the general proposition and presumption that jurors follow their instructions. Given the "bewildering hodgepodge" of instructions and the backwards verdict form, the Court cannot have any confidence that the jury acted properly. Judge Sykes would have granted the petition to address the treatment of the damage award.

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HAPPEL v. WALMART STORES (April 19, 2010)

Heidi Happel was diagnosed with multiple sclerosis in the early 1990s. In 1993, her primary care physician prescribed a pain reliever for an unrelated condition. In fact, she was allergic to the medication. Her physician phoned the prescription to a Walmart pharmacy were Happel typically filled her prescriptions. Despite the fact that Walmart's computer system and Happel's husband both alerted the pharmacist to her allergy, he filled the prescription anyway. Happel immediately went into anaphylactic shock. Her general health quickly deteriorated. She and her husband sued Walmart -- Happel brought a negligence claim and her husband brought a loss of society claim. The Happels listed the original diagnosing physician as a witness but did not disclose him as an expert or tender an expert report. They did list a neurologist as their expert. Just before trial, the Happels attempted to add the diagnosing physician as an expert. The district court denied their request. The court also excluded much of the neurologist’s testimony. In its instructions, the court included the loss of society claim within the negligence claim. It then submitted to the jury a verdict form that contained only a single line for an award of damages. The jury awarded $465,400. The court reduced the award by $150,000 because of a settlement before trial with the primary care physician. The Happels appeal.

In their opinion, Judges Flaum, Williams, and Sykes reversed and remanded. The Court first addressed the expert issues. With respect to the diagnosing physician, the Court noted that the Happels only addressed his qualifications – but that was not the basis for the lower court's exclusion. The Court found no abuse of discretion in the lower court's excluding the diagnosing physician as an expert when plaintiffs failed to disclose him as such during discovery. With respect to the neurologist, the district court excluded his testimony regarding Happel's multiple sclerosis because he had very little experience with multiple sclerosis. The Court found no abuse of discretion. With respect to the damages verdict, the Court noted that the lower court treated the loss of society claim as simply one aspect of the overarching negligence claim. Although the court instructed the jury to return separate verdicts for each of the plaintiffs, the verdict form it provided had only a single line for a damages award. The Court concluded that the jury instructions and the form of verdict were ambiguous. As a result, it is impossible to determine Although it was error to give the instruction and use the form, the Court noted that it still had to find prejudice before granting a new trial. It found prejudice in reference to the set-off amounts. Each individual plaintiff had settled with the primary care physician for $75,000 each. If the jury intended to award each of the plaintiffs more than $75,000, the $150,000 ($75,000 from each) set off is correct. However, if the jury's intent was to award either plaintiff less than $75,000, that plaintiff's set-off would be capped at the amount of the award and the total set-off would then be less than $150,000. Having found prejudice, the court reversed for new trial on damages.

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McBRIDE v. CSX TRANSPORTATION (March 16, 2010)

Robert McBride was a locomotive engineer for CSX Transportation. After several years as a long-distance engineer, McBride expressed an interest to transfer to a job where he would work more regular hours with fewer nights away from home. In April 2004, he went on a qualifying run with a supervising engineer. Much of the ten-hour shaft involved switching, the process of adding and dropping individual cars from the locomotive. The switching process requires heavy use of the manual brakes. Toward the end of his shift, while operating the brakes, McBride experienced extreme pain in his hand. He has since undergone two surgeries and physical therapy but still experiences pain and numbness. He filed an action for negligence under the Federal Employers' Liability Act. At trial, McBride offered an instruction on causation that would instruct the jury that defendant’s negligence had to play "a part - no matter how small" in bringing about the injury. CSX offered an instruction that included a requirement that defendant’s negligence be a "proximate cause" of the injury. The court used the McBride instruction. The jury found in McBride's favor. CSX appeals.

In their opinion, Judges Ripple, Rovner, and Sykes affirmed. The Court first noted that courts have "grappled" with the proper causation standard under FELA since the Act was passed. The Act provides that the injury must result "in whole or in part" from the employer's negligence. The Court noted that early cases did not conclude that the "in whole or in part of" language eliminated the common-law proximate cause requirement. Later cases, however, including the Supreme Court's decision in Rogers, suggested that a less stringent standard of causation should apply under FELA. Many courts of appeals interpreted Rogers as relaxing the standard of causation. The Supreme Court addressed the question again in Sorrell. Although the majority skirted the question, Justice Souter's concurring opinion stated that Rogers did not eliminate the proximate cause requirement. Justice Ginsburg's opinion, concurring in the judgment, stated her view that the causation standard in FELA cases is more relaxed than in tort litigation generally. Although the Court concluded that Justice Souter's position is a plausible one, it declined to adopt it. It noted that the majority in Sorrell did not even address the question, other statements of the Supreme Court have suggested a broader reading, and all other circuit courts that have addressed the issue have concluded that Rogers adopted a relaxed standard of probable cause. Finally, the Court noted that Congress is well aware of the decisions adopting a relaxed standard of causation and could clarify the FELA. It therefore found no error in the lower court's instruction.

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LEWIS v. CITY OF CHICAGO (December 21, 2009)

Donna Lewis was an officer in the tactical unit of the Chicago Police Department in 2002 when Lt. Terrence Williams became her supervisor. When she volunteered for a special security detail in Washington DC, Williams took her off the list. Lewis filed a grievance, alleging that it was a gender-based decision. She claims that she was the victim of several instances of retaliation after she filed the grievance. She filed an EEOC charge concerning both the security detail and retaliation. She alleges that the very next day Williams directed her to assist a narcotics team operation. During the operation, another officer accidentally struck her with a sledgehammer, breaking her neck. She is now on permanent disability. She filed suit. Although the court originally granted summary judgment to the defendants, the Seventh Circuit reversed her gender discrimination claim against Williams and the City and the retaliation claim against the City. At trial, a jury found in favor of the defendants. The court denied Lewis' motion for new trial. Lewis appeals.

In their opinion, Judges Evans and Sykes and District Judge Simon affirmed. Lewis raised four categories of error: jury instructions, evidentiary errors, prejudicial closing argument and insufficient evidence. With respect to the seven instruction challenges, the Court found the instructions to be proper or that Lewis either did not object or waived her objection. Likewise, with respect to Lewis' several evidentiary objections, the Court found no error. Specifically, the Court agreed that allowing Lewis to testify regarding the incident in which she suffered a broken neck at the hands of a fellow police officer would have been highly inflammatory. She was allowed to present evidence that she was diverted to a dangerous assignment. The Court also rejected her arguments with respect to the defendants' closing argument and the sufficiency of the evidence.

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CONSUMER PRODUCTS RESEARCH & DESIGN v. JENSEN (July 16, 2009)

Consumer Products Research & Design ("CPRD") holds a patent for a wireless smoke detector. CPRD entered into contracts with two companies owned, respectively, by a father and his son. One company, owned by the father, agreed to develop and market the product. The other, owned by the son, was responsible for its manufacturing. Unhappy with of the relationship, CPRD filed a complaint alleging fraudulent inducement and breach of contract. A jury awarded over $700,000 in damages. Defendants appeal.

In their opinion, Judges Cudahy, Flaum and Rovner affirmed. The Court rejected the defendants’ first argument, that the evidence was insufficient to support the verdict, because none of the defendants filed a motion for judgment as a matter of law after the verdict. The defendants did move for judgment as a matter of law under Rule 50 (a) after the liability phase of the bifurcated trial. The Court held, however, that a party's failure to comply with Rule 50 (b) after the verdict forfeits any claim on appeal challenging the sufficiency of the evidence. The Court also rejected defendants’ jury instruction argument. The defendants accepted the jury instructions without complaint in the court below and forfeited their objection. 

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STAUB v. PROCTOR HOSPITAL (March 25, 2009)

Vincent Staub was a technologist at Proctor Hospital - and also a member of the Army reserves. Although he managed to balance the two obligations for years, things began to deteriorate in 2000. One of his supervisors was clearly irritated with him because of his reserve obligations. She was very vocal about her dislike of the reserve and her desire to “ get rid of him." Staub, unfortunately, already had a checkered employment history at the hospital. In January 2004, she gave Staub a written warning. She accused him of failing to assist other members of the hospital staff and of leaving his work area. As a result, Staub was instructed to keep his supervisors advised of his whereabouts and schedule at all times. A few months later, a similar incident occurred. Staub was fired immediately by the Vice President of Human Resources. She fired Staub for not only failing to follow the earlier warning, but also for his past issues. Although Staub filed a grievance insisting that the original incident was fabricated by his colleague who did not like him, the HR VP did not investigate. Staub filed an action against the hospital under the Uniformed Services Employment and the Reemployment Rights Act (USERRA). The jury found for Staub and awarded damages. The district court denied Proctor’s motion for judgment as a matter of law or for a new trial. Proctor appeals.

In their opinion, Judges Manion, Evans and Tinder reversed and remanded. The Court stated that USERRA prohibits adverse action based on military status. In order to recover, however, a plaintiff must show that the decision-maker, and not just any coworker, harbored the animus. Here, the HR VP was the decision-maker. There is no evidence in the record that she harbored any animosity against Staub or his military responsibilities. Realizing this, Staub relies on the “cat's paw” theory. Under this approach, the discriminatory animus of a non-decisionmaker is imputed to a decisionmaker when the non-decisionmaker exerts singular influence over the decisionmaker to cause the adverse employment action. The Court emphasized that the employer is not liable unless the decisionmaker relies exclusively on the information provided and fails to conduct any investigation. Here, the Court found that the evidence did not support that conclusion. The evidence was clear that the decisionmaker did not rely exclusively on any information provided by other employees. In fact, the Court criticized the district court for even sending the issue to the jury. Instead, the Court suggested an approach whereby the trial judge makes a threshold determination on whether a reasonable jury could find this exclusive influence before even admitting into evidence the animus of a non-decisionmaker.

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MALONE v. RELIASTAR LIFE INSURANCE CO. (March 12, 2009)

Gordon Beeler disappeared in January of 1998, leaving behind a wife of 30 years, four children, a business partner and $2.6 million in life insurance policies. A trust was the beneficiary of the policies. The insurance companies denied benefits in 2003, and again in 2005, citing evidence that Beeler may have been alive. The beneficiaries brought suit against the insurance companies, seeking death benefits and punitive damages. The district court granted summary judgment to the insurance companies on the punitive damages claim. The breach of contract claim was tried to a jury. The trustee presented evidence that Beeler had been missing since the date of his disappearance, that the family had conducted numerous investigations into his disappearance, and that he had not been in communication with his family or friends since the day of his disappearance. The insurance companies presented evidence of a troubled family situation, a strained marriage, and witnesses who claimed to have seen Beeler after the date of his disappearance. The jury returned a verdict in favor of the defendants. The district court denied the trustee’s Motion for a New Trial. The trustee appeals.

In their opinion, Judges Kanne, Williams and Sykes affirmed in part, vacated in part and remanded for a new trial. On the punitive damages issue, the Court concluded that there was a good-faith dispute over coverage. Under Indiana law, a good-faith coverage dispute precludes punitive damages. The Court affirmed the district court. With respect to the death benefits claims, however, the Court found that the district court had erred. In Indiana, a claimant may prove an insured’s death in two different ways. It can present evidence, direct or circumstantial, that the insured is, in fact, dead. Alternatively, it can seek a common law presumption of death by showing that the individual has been "inexplicably absent" for seven years, that the individual has not communicated with close family and friends and that the individual cannot be found despite diligent search. That presumption can be rebutted by proof of facts inconsistent with the presumption. The Court found two errors in the district court's approach to the trial. First, the district court erred in instructing the jury that "inexplicably absent" meant that Beeler’s absence was "unexplained by circumstances other than those suggesting death." The Court concluded that the presumption arises when the plaintiff proves a seven-year absence, a lack of communication, and an inability after diligent search to find the person. Any evidence offered to explain the disappearance is relevant only to rebutting the presumption. Second, the Court found error in the special verdict form. The jury was asked three questions: whether the plaintiff raised the presumption of death, whether the defendants rebutted the presumption of death, and whether plaintiff proved that Beeler was, in fact, dead. The special verdict form instructed the jury to conclude its deliberations if it answered no to the first question. The jury did answer no to the first question, it did conclude its deliberations, and it never considered whether plaintiff proved that Beeler was, in fact, that. The Court conceded that either of the two errors, standing alone, might not have required a reversal. Considered together, however, they amounted to reversible error.

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