Awalt v. Marketti et al

Filing 506

MOTION by Defendant Dr. Stephen Cullinan for judgment as Matter of Law (Salemi, Scott)

10209-T1169
SGS/cml

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ELIZABETH AWALT, as Administrator of the ESTATE OF
ROBERT AWALT,
Plaintiff,
v.
RICK MARKETTI, as Administrator of the Estate of TERRY
MARKETTI, et al.,
Defendants.

)
)
)
)
) Law No.: 11 CV 6142
)
)
)
)
)

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).

1

10209-T1169
SGS/cml

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
2

10209-T1169
SGS/cml

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
3

10209-T1169
SGS/cml

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,
4

10209-T1169
SGS/cml

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.
5

10209-T1169
SGS/cml

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.

6

10209-T1169
SGS/cml

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

7

10209-T1169
SGS/cml

a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must be aware
of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.
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

8

10209-T1169
SGS/cml

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.

STEPHEN CULLINAN, M.D.
BY:
/ s / Scott G. Salemi
HEYL, ROYSTER, VOELKER & ALLEN
Scott G. Salemi
ARDC #: 6209932

9

10209-T1169
SGS/cml

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.
TO:
Attorneys for Plaintiff
Arthur R. Loevy – [e-mail]
Jonathan I. Loevy – [e-mail]
Steven Edwards Art - [e-mail]
Elizabeth Wang – [e-mail]
Julie M. Thompson – [e-mail]
Cindy Tsai - [e-mail]
Anand Swaminathan – [e-mail]
Michael Kanovitz – [e-mail]
Sarah Copeland Grady – [e-mail]
Thomas Kayes – [e-mail]
Loevy & Loevy
312 N. May St., Suite 100
Chicago, IL 60607
[phone]
/ s / Scott G. Salemi
Scott G. Salemi
HEYL, ROYSTER, VOELKER & ALLEN
Second Floor, PNC Bank Building
120 West State Street
P.O. Box 1288
Rockford, Illinois 61105 1288
T: 815.963.4454 / F: 815.963.0399

10