Levi v. Bednarz et al
Filing
195
OPINION Entered by Judge Sue E. Myerscough on 7/5/16. Plaintiff's motion for judgment as a matter of law is DENIED. Plaintiff's motion for a new trial is DENIED 187 . (SW, ilcd)
E-FILED
Tuesday, 05 July, 2016 10:33:02 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RONALD LEVI,
)
)
Plaintiff,
)
)
v.
)
)
DR. MICHAEL BEDNARZ
)
And DR. HUGHES LOCHARD, )
)
Defendants.
)
12-CV-3002
OPINION
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE.
A four-day jury trial was held in this case commencing on
April 19, 2016, on Plaintiff’s claims of violation of his Fourteenth
Amendment rights arising from alleged deliberate indifference to his
medical needs by Defendants beginning in 2008. On April 22, 2016,
the jury returned a verdict in favor of Defendants. (Jury Verdict,
d/e 174)
In Plaintiff’s post-trial motions for judgment as a matter of law
(Fed. R. Civ. P. 50) and for a new trial (Fed. R. Civ. P. 59), Plaintiff
claims that the verdict returned by the jury was against the
manifest weight of the evidence. Plaintiff also maintains that
Page 1 of 16
Defendants’ testimony prejudiced Plaintiff and that Plaintiff’s court
appointed pro bono counsel provided inadequate legal assistance.
(d/e 187). Plaintiff’s motions for judgment as a matter of law and for
a new trial are DENIED because Plaintiff forfeited his right to a Rule
50 motion for a judgment as a matter of law and he was not entitled
to a new trial under Rule 59.
I.
Plaintiff Forfeited His Right to a Motion for Judgment as a
Matter of Law.
A motion for judgment as a matter of law may be made at any
time during the trial, before the case is submitted for consideration
by the jury, and after a party has been fully heard on the issue.
Fed. R. Civ. P 50(a). A party has been fully heard on an issue when
it rests its case. Mendenhall v. Mueller Streamline Co., 419 F.3d
686, 692 (7th Cir. 2005). A motion under Rule 50 “must specify the
judgment sought and the law and facts that entitle the movant to
the judgment.” Fed. R. Civ. P 50(a). The Court may grant a motion
for judgment as a matter of law if “a reasonable jury would not have
a legally sufficient evidentiary basis to find for the party on that
issue.” Id.
Page 2 of 16
If the original motion for judgment as a matter of law is not
granted, “the movant may file a renewed motion for judgment as a
matter of law” after judgment has been entered. Fed. R. Civ. P 50(b)
(emphasis added). However, in order for a motion for judgment as a
matter of law made after judgment was entered to be considered by
the Court, the motion must have been predicated by a Rule 50(a)
motion made before the evidence was submitted to the jury.
Continental Air Lines, Inc. v. Wagner-Morehouse, Inc., 401 F.2d 23,
25 (7th Cir. 1968); see also Collins v. Illinois, 830 F.2d 692, 698
(7th Cir. 1987). Where no Rule 50 motion is made prior to the
submission of evidence to the jury, any subsequent Rule 50 claim is
forfeited. Downes v. Volkswagen of Am., 41 F.3d 1132, 1139 (7th
Cir. 1994).
In the instant case, the record shows that Plaintiff made no
Rule 50 motion at any time before the evidence was submitted for
consideration by the jury. Because of this, any Rule 50 claim to
judgment as a matter of law that Plaintiff may have had was
forfeited at the moment the evidence was submitted to the jury for
consideration.
Page 3 of 16
However, were a Rule 50 motion raised or renewed by Plaintiff
in a timely and proper manner, and as explained below, Plaintiff’s
motion for judgment as a matter of law would not have succeeded.
“Under [Fed. R. Civ. P. 50] a court should grant judgment as a
matter of law when a party has been fully heard on an issue and
there is no legally sufficient evidentiary basis for a reasonable jury
to find for that party on that issue.” Alexander v. Mount Sinai Hosp.
Med. Ctr., 484 F.3d 889, 902 (7th Cir. 2007). In considering a Rule
50 motion as to whether sufficient evidence was presented for the
jury to find for a party, the Court views the evidence in the light
most favorable to the non-moving party. Keaton v. Atchison, T. & S.
F. R. Co., 321 F.2d 317, 318 (7th Cir. 1963).
The evidence in this case shows significant medical treatment
was given to Plaintiff. Defendant Lochard testified to a litany of
treatment including physical examinations, MRIs, surgeries, and
physical and occupational therapy. Viewing the evidence in the light
most favorable to Defendants, their testimony and voluminous
medical records submitted plainly gave the jury a “legally sufficient
evidentiary basis” to reach the verdict that was reached in this case.
Page 4 of 16
Therefore, had Plaintiff’s motion for judgment as a matter of law
been properly submitted, the Court would have denied it.
II.
Plaintiff was not Entitled to a New Trial.
Under Fed. R. Civ. P. 59(a)(1)(A), after a jury trial has
concluded, the Court may grant a motion for a new trial “for any
reason for which a new trial has heretofore been granted in an
action at law in federal court.” The decision whether to grant the
Plaintiff’s motion for a new trial “is confided almost entirely to the
exercise of discretion on the part of the trial court.” Allied Chemical
Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980).
In support of his Rule 59 motion, Plaintiff argues that the
verdict returned by the jury was against the manifest weight of the
evidence, that Defendants’ testimony prejudiced the Plaintiff, and
that
Plaintiff’s
court
appointed
pro
bono
counsel
provided
inadequate legal assistance. (d/e 187). Plaintiff’s motion for a new
trial is DENIED because the verdict returned by the jury was not
against the manifest weight of the evidence, Defendants’ testimony
did not prejudice Plaintiff, and Plaintiff’s pro bono counsel did not
provide ineffective assistance.
Page 5 of 16
A.
The Verdict Was Not Against the Manifest Weight of
the Evidence.
When considering a motion for a new trial, “a court will set
aside a verdict as contrary to the manifest weight of the evidence
‘only if no rational jury could have rendered the verdict.’” Lewis v.
City of Chicago Police Dep't, 590 F.3d 427, 444 (7th Cir. 2009)
(quoting Moore ex. rel. Estate of Grady, v. Tuleja, 546 F.3d 423, 427
(7th Cir. 2008)). When deciding whether a rational jury could have
rendered the contested verdict, the Court views the evidence in the
light most favorable to the non-moving party and does not make
judgments as to the credibility or weight of the evidence presented.
King v. Harrington, 447 F.3d 531, 534 (7th Cir. 2006). The Court
will sustain the jury’s verdict “where a ‘reasonable basis’ exists in
the record to support the outcome.” Id. (quoting Kapelanski v.
Johnson, 390 F.3d 525, 530 (7th Cir. 2004)). Conversely, “a new
trial should be granted ‘only when the record shows that the jury's
verdict resulted in a miscarriage of justice . . . or shocks [the]
conscience.’” Davis v. Wis. Dep't of Corr., 445 F.3d 971, 979 (7th
Cir.2006) (quoting Latino v. Kaizer, 58 F.3d 310, 314 (7th Cir.
1995)).
Page 6 of 16
Defendants in this case testified at length concerning their
exposure to and involvement in Plaintiff’s medical treatment. This
treatment included physical examinations, MRIs, surgeries, and
physical and occupational therapy both within the facility and at
other treatment sites. Dozens of documents were submitted
detailing Plaintiff’s medical conditions and extensive history of
treatment at the DHS facility and elsewhere. Plaintiff received
treatment on the conditions affecting his knees, left wrist and hand,
lymph nodes, left shoulder, and diabetes-related ailments.
In addition to the extensive treatment received by Plaintiff for
his medical conditions, his diabetes may have contributed to the
severity and chronic nature of a number of his illnesses and
injuries. Defendant Lochard testified that Plaintiff’s diabetes was
poorly controlled and that Plaintiff’s poorly controlled diabetes
contributed
Furthermore,
to
the
healing
Defendant
delay
Lochard
in
Plaintiff’s
testified
that
wrist
injury.
Plaintiff
was
instructed to control his diabetes better as a general remedy for
some of his nerve disorders and that Plaintiff did not do so.
Viewing
this
evidence
in
the
light
most
favorable
to
Defendants, and without giving weight to the evidence or judging its
Page 7 of 16
credibility, this Court finds that any reasonable jury could have
reached the verdict that was reached by the jury in this case.
Furthermore, the jury’s verdict neither represents a miscarriage of
justice nor does it shock the conscience. Because of this, Plaintiff’s
claim that the verdict was against the manifest weight of the
evidence is denied.
B. Defendants’ Testimony did not Prejudice the Plaintiff.
A motion for a new trial may be granted if “the trial was not
fair to the party moving.” Montgomery Ward & Co. v. Duncan, 311
U.S. 243, 251 (1940). This right to a fair trial applies in both civil
and criminal cases. Illinois v. Allen, 397 U.S. 337 (1970); see also
Lemons v. Skidmore, 985 F.2d 354, 357 (7th Cir. 1993). In civil
cases involving prisoner-plaintiffs, the Court must sustain this right
to a fair trial, difficult though it may be. Lemons v. Skidmore, 985
F.2d 354, 357 (7th Cir. 1993) (generally discussing prisonerplaintiffs’ appearance in court while shackled). Furthermore, “civil
litigants are entitled to a fair trial, not a perfect one, and [] a new
trial will not be ordered unless there was an error that caused some
prejudice to the substantial rights of the parties.” Id.
Page 8 of 16
Here, Plaintiff claims that Defendants violated the Court’s
order granting Plaintiff’s Motion in Limine (d/e 77, 98), requiring
that in lieu of any mention of “Rushville” as the DHS facility in
which Plaintiff is housed, parties merely refer to it as “the facility.”
Plaintiff argues that these violations prejudiced him (d/e 187). In
support of these claims, Plaintiff says that Defendants Bednarz and
Lochard intentionally mentioned “Rushville” numerous times, and
that Defendant Bednarz went on to mention his credentials as a
counselor to sex offenders. Plaintiff claims that this is prejudicial
because jurors may infer from these references that Plaintiff has
been adjudicated a Sexually Violent Person. Plaintiff further
contends, solely based on his own impressions, that the jury’s mood
shifted markedly against him immediately after “Rushville” was
mentioned. Plaintiff claims that after Defendant Lochard said
“Rushville” the “Jury stop[ped] taking notes and stare[d] at
[Plaintiff] in disgust[]” (d/e 187).
Plaintiff’s assertion that Defendant Lochard’s single mention of
“Rushville” prejudiced the jury is unconvincing. In voir dire, this
Court informed the jury that Plaintiff was a resident at a
Department of Human Services (DHS) Treatment and Detention
Page 9 of 16
Facility (TDF) and then inquired whether any jurors had a
connection to the DHS and/or any TDFs. One juror said that her
“grand-daughter’s mother” worked at the detention facility in
Rushville. Because the eventual jury learned during voir dire that
Plaintiff was a resident at a DHS TDF and a potential juror then
named “Rushville” as the home of one such TDF.
Defendant Lochard’s single mention of the word “Rushville,”
without alluding to Plaintiff’s status as a Sexually Violent Person,
could not have prejudiced Plaintiff any more than voir dire did.
Furthermore, Plaintiff did not in fact even object to that violation of
the motion in limine. Plaintiff’s failure to object forfeited his right to
claim this error in a post-judgment motion. See Gonzalez v. Volvo of
America Corp., 752 F.2d 295, 298 (7th Cir. 1985) (“[R]isky gambling
tactics such as this are usually binding on the gambler. This court
has not hesitated in the past to bind a party to its strategic decision
to sit silent in the face of claimed error by refusing relief when the
party complains because the result is unfavorable.”)
Plaintiff also claims that Defendant Bednarz’s testimony
prejudiced Plaintiff. Defendant Bednarz testified, while listing his
qualifications, that he was licensed to treat sex offenders, among
Page 10 of 16
other things. After a side bar concerning these remarks, Defendant
Bednarz clarified that he did not provide sex offender treatment at
the facility. This curative testimony would have removed any
prejudicial effect that the prior testimony may have had on Plaintiff.
In addition, the objection by Plaintiff and subsequent side bar
affirmatively waives Plaintiff’s claim of error in a post-judgment
motion.
Defendant
Lochard’s
single
minor
error
in
mentioning
“Rushville” would not have prejudiced Plaintiff because the facts
that Plaintiff was being held in a DHS TDF, and such a TDF being
located in Rushville, IL, were already presented to jury during voir
dire. Defendant Bednarz’s testimony as to his qualification to treat
sex offenders would not have prejudiced Plaintiff because of the
curative testimony clarifying that Defendant Bednarz did not treat
sex offenders in the course of his employment by the DHS at the
facility. Therefore, Plaintiff’s claim that Defendants’ testimony
prejudiced Plaintiff is denied.
C. Plaintiff’s Counsel Provided Effective Assistance.
In all criminal proceedings, defendants are guaranteed the
right to effective assistance of counsel. Gideon v. Wainwright, 372
Page 11 of 16
U.S. 335, 340 (1963). However, this protection does not extend to
matters in civil courts. Bell v. Eastman Kodak Co., 214 F.3d 798,
802 (7th Cir. 2000) While ineffective assistance of counsel “is a
ground for a collateral attack on a criminal judgment, it is not a
basis for collateral attack on a civil one.” Id. (internal citations
omitted) (citing Hernandez v. Cowan, 200 F.3d 995 (7th Cir. 2000);
Sparrow v. Heller, 116 F.3d 204, 206-07 (7th Cir. 1997)).
Furthermore, dissatisfaction with the performance of one’s attorney
or the result of the trial does not necessarily render such legal
assistance ineffective. Jones v. Page, 76 F.3d 831, 840 (7th Cir.
1996) (“whether counsel is effective or ineffective does not turn on
the defendant's subjective pleasure or displeasure with counsel's
performance”).
Where a party claims ineffective assistance of counsel, it is the
burden of that party to prove that the assistance was deficient.
Michel v. Louisiana, 350 U.S. 91, 101 (1955) (“Defendant must
show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different.”). The Court, in determining whether the assistance of
counsel was effective, applies a two-part test. Strickland v.
Page 12 of 16
Washington, 466 U.S. 668, 689 (1984). To satisfy part one, a party
must show that his “counsel’s performance was deficient.” Id. To
satisfy part two, the party must show that the deficiency in
performance prejudiced the party. Id.
In general, the Court will not second guess an attorney’s
performance or tactics. See Strickland v. Washington, 466 U.S. 668
(1984); United States v. Malone, 484 F.3d 916 (7th Cir. 2007). The
Court
must
give
a
high
degree
of
deference
to
counsel’s
performance. Strickland v. Washington, 466 U.S. 668, 689 (1984).
(“Judicial scrutiny of counsel's performance must be highly
deferential . . . . Every effort [must] be made to eliminate the
distorting effects of hindsight.”). The “court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. See generally Kubat v.
Thieret, 867 F.2d 351 (7th Cir. 1989). In matters concerning trial
strategy, “[t]rial tactics are a matter of professional judgment, and .
. . [the Court] will not play ‘Monday morning quarterback’ when
reviewing claims that an attorney rendered constitutionally deficient
representation in making decisions on how best to handle a case.”
United States v. Malone, 484 F.3d 916, 920 (7th Cir. 2007) (internal
Page 13 of 16
citations omitted) (quoting Harris v. Reed, 894 F.2d 871, 877 (7th
Cir. 1990)).
Plaintiff’s argument as to the efficacy of his court appointed
counsel is unclear. In general, Plaintiff claims that his court
appointed pro bono counsel refused to advocate on his behalf, but
he fails to show how his counsel’s alleged short-comings negatively
affected the outcome of the trial.
Plaintiff contends that his counsel failed to impeach witnesses
by refusing to ask Defendant Lochard whether Plaintiff’s left wrist
injury would cause pain while Plaintiff waited for the surgery.
Plaintiff further contends that his court appointed counsel refused
to submit “prima facie evidence” to the jury, but what effect this
omission may have had is unclear. Plaintiff also claims that his
counsel made Plaintiff seem like a liar during her closing
statements by stating that Plaintiff wrapped his wrist in toilet paper
instead of a toilet paper roll.
Plaintiff additionally claims that his counsel did not consult
with him sufficiently. However, there is no “minimum number of
meetings between counsel and client prior to trial necessary to
prepare an attorney to provide effective assistance of counsel.”
Page 14 of 16
United States v. Mealy, 851 F.2d 890, 908 (7th Cir. 1988). Plaintiff
goes on to claim that his pro bono counsel failed present certain
expert testimony from “doctor, nurse or other qualified medical
person[nel]” at trial.
This Court recognizes that Plaintiff was not guaranteed
effective assistance of counsel due to the civil nature of the lawsuit.
However, Attorney De Saint Phalle represented Plaintiff’s interests
well and performed her duties exceptionally. Attorney De Saint
Phalle’s performance was neither deficient nor did it prejudice
Plaintiff. Had Plaintiff been guaranteed the right to effective
assistance of counsel in this civil case, for the foregoing reasons, his
claim
that
his
court
appointed
council
provided
ineffective
assistance would have been denied.
IT IS THEREFORE ORDERED:
(1) Plaintiff’s motion for judgment as a matter of law is
DENIED.
(2) Plaintiff’s motion for a new trial is DENIED.
ENTER: 7/5/2016
FOR THE COURT:
Page 15 of 16
s/Sue E. Myerscough
.
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 16 of 16
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