KRAMER v. THE CITY OF NEW KENSINGTON et al

Filing 262

OPINION setting forth the reason the motion for judgment NOV 257 will be DENIED. An appropriate order will be entered. Signed by Chief Judge Joy Flowers Conti on 4/12/2018. (kjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL KRAMER,

)
)
Plaintiff,
)
)
)
v.
)
)
ANTHONY GRILLO, RUSSELL,
)
BAKER, GARY SCHUBERT, and
)
WILLIAM WEBER,
)
Defendants. )

Civil Action No. 13-606

OPINION
CONTI, Chief District Judge
I.

Introduction
In this civil rights case asserted under 42 U.S.C. § 1983, a jury returned a unanimous verdict

in favor of plaintiff Michael Kramer (“Kramer” or “plaintiff”) and against defendant William
Weber (“Weber”). The jury determined that Weber violated Kramer’s due process right to receive
medical care for his serious medical needs while in police custody, which is guaranteed by the
Fourteenth Amendment to the United States Constitution (“due process claim”). The jury awarded
Kramer $1,000 in compensatory damages for physical harm and $1,000 in compensatory damages
for mental/emotional suffering. (ECF No. 252 at 5-6.) The jury also returned a unanimous verdict
in favor of defendants Russell Baker (“Baker”), Anthony Grillo (“Grillo”), and Gary Schubert
(“Schubert”) with respect to Kramer’s due process claim and § 1983 claims based upon Kramer’s
right to be free from excessive force under the Fourth Amendment.
Weber argues that under Federal Rule of Civil Procedure 50(b) he is entitled to judgment
as a matter of law because Kramer did not present evidence from which the jury could find that
Weber violated Kramer’s § 1983 rights by being deliberately indifferent to Kramer’s serious

medical needs. (ECF No. 257.) Kramer opposes Weber’s motion and points to evidence presented
in his case-in-chief to show that Weber acted with deliberate indifference to Kramer’s serious
medical needs.
As fully explained in this opinion, the jury’s verdict with respect to the due process claim
tried against Weber is supported by the evidence presented in Kramer’s case-in-chief. Even if
Weber is correct that Kramer failed to present sufficient evidence in his case-in-chief with respect
to that claim, however, the court must consider the entire record of evidence from trial, including
evidence presented by Weber in his case-in-chief, to decide the Rule 50(b) motion. Trustees of
Univ. of Pa. v. Lexington Ins. Co., 815 F.2d 890, 903 (3d Cir. 1987). Upon consideration of the
record as a whole, including Kramer’s testimony and Weber’s testimony, Weber is not entitled to
judgment as a matter of law and the jury’s determination that Weber acted deliberately indifferent
to Kramer’s serious medical needs is supported by the evidence. The Rule 50(b) motion will,
therefore, be denied.
II. Evidence at Trial
A. Kramer’s case-in-chief
Kramer testified that on July 16, 2011, he was at an apartment with the address of 1818 ½
Kenneth Avenue, Arnold, Pennsylvania (the “apartment”). (H.T. 1/16/2018 (ECF No. 342) at 11.)
He was at the apartment with Qwenda Reed (“Reed”), Reed’s son, and the son’s girlfriend. The
apartment was located above a large garage. (Id. at 11-12.) The apartment had two small bedrooms,
a small living room, which was used as a bedroom, a small kitchen, and a balcony. (Id. at 12, 16.)
On that day, police officers approached the apartment while Kramer was on the balcony of the
apartment smoking a cigarette. (Id. at 12, 20.) The only ways to access the balcony were via a door
in the living and a window on each side of the door. (H.T. 1/16/2018 (ECF No. 342) at 14.) There

2

were no stairs that lead to the balcony. (Id.) The balcony was approximately two and one-half
stories high and approximately ten to twelve feet from the ground. (Id. at 17.) Directly beneath the
balcony was a concrete area and an unkempt grassy area. (Id. at 19.)
Kramer, who had absconded from parole for an armed bank robbery and was “on the run,”
saw the police approaching the apartment in their vehicles and believed that they were at the
apartment to arrest him. (Id. at 12, 21, 27.) Kramer heard police officers exit their vehicles and
approach the door on the ground level, which provided access to the apartment. (Id. at 21.) The
police officers banged on the door saying “open up police.” (Id.) Kramer instructed Reed to let the
police officers inside the apartment. (Id.) The police officers entered the residence and travelled
upstairs to the apartment. (Id. at 25.) The door leading into the living room of the apartment opened
up and Kramer “voiced that…[he was] out on the balcony.” (Id. at 26.) Kramer testified:
I surrendered, and Officer Russell Baker pulls the door back towards like to close
it. Sees me standing there holding the screen door open with my hands up and
rushes forward, and I believe---I personally believe that he was going to grab me
up.
…
[H]e actually shoved me backwards, and the momentum of his shove took me over
the balcony rail.
(Id.) According to Kramer, after Baker shoved him, the balcony rail hit the back of his legs, his
feet went up, and he fell over the balcony. (Id. at 31.) He hit the ground “hard,” there was “basically
a blackness,” and by the time he came to, he was on his stomach with a “searing pain in his neck.”
(Id. at 33.) Kramer’s arms were “not functioning right[,]” i.e., he attempted to stand up but his arm
was not working. (Id.) He had “extreme pain” in his neck, was crying, and “thrashing around on
the ground.” (Id.) Kramer did not know whether he landed on the concrete area under the balcony
or in the unkempt grassy area under the balcony. (Id.) He tried to reach back to his neck, but his
arms and legs were not working properly so he just laid on his stomach “thrashing about.” (Id.)

3

According to Kramer, he did not stand up and walk or run after the fall. (Id. at 36.)
Kramer did not know whether Baker was the first officer through the apartment door. He
testified:
I don’t know the guys came up before him and fanned out to other areas and
he just happened to be one to look behind the door or maybe he was the first one
that came up and they had not yet cleared the steps yet, but I did not see any other
officers. Only ones I saw was Officer Russell Baker.
…
He was the only person I was concerned with and what happened happened.
(H.T. 1/16/2018 (ECF No. 242) at 26-27.) When asked about his perceptions of the police officers
after he landed on the ground beneath the balcony, Kramer testified as follows:
My next perception of the officers was them – officers yelling, Don’t move,
stay on the ground, and I felt a pain in my neck, officers grabbing my arms and one
of the officers put his knee into my back. I guess they were attempting to restrain
me, and so I believe there was to be either two or three officers. One had his knee
in my neck trying to keep my head down on the ground. I believe he had one of my
arms pinned. Another one had his knee in my back, and I believe another one was
holding my legs.
At that time, you know, I voiced there was something wrong with me and I
needed medical attention, and they told me to put my arms behind my back, and
like I said, my arms weren’t functioning right, so they may have interpreted, you
know, being stiff that I was trying to not do it, but they eventually got my arms
behind my back and cuffed me.
(H.T. 1/16/2018 (ECF No. 242) at 34.) Kramer testified that he told the officers: “My neck, I need
medical attention. There’s something wrong with me.” (Id. at 35.)
Kramer was unable to stand up on his own; rather, two police officers lifted him up by
arms and escorted him to a police car where they opened the car door for him and helped to place
him into the police car. (Id. at 37.) Kramer’s physical pain was worsening at that point. (Id.)
Kramer asked for medical help on the way to the police car. (Id. at 38.) Kramer was driven to the
New Kensington police station. (Id.) After being transported to SCI Pittsburgh, a state prison,
Kramer was taken by prison officials to Allegheny General Hospital, where he was diagnosed with
4

a “C1 fracture,” placed in a “C collar,”1 and prescribed medication for six to eight weeks. (H.T.
1/17/2018 (ECF No. 243) at 3.) At the time of trial, Kramer was still in physical pain and only
recently stopped taking pain medication. (Id. at 9.)
At trial, the following questioning took place between Kramer and his counsel with respect
to the identities of the police officers that arrested him:
Q.

Did you know which officers were arresting you?

A.
To be honest, I can’t say that I do just because of the nature of my injuries,
and that’s all that I was focusing on. I learned who it was that arrested me based off
the police report when I got it after charges was [sic] filed against me.
Q.
The officers that you named off the police report, are those the four
defendants?
A.

Correct.

(Id. at 36.)
B. Evidence introduced by Weber, Baker, Grillo, and Schubert with respect to
Weber
Weber was a police officer for the City of Arnold at the time the events took place in this
case. (H.T. 1/18/2018 (ECF No. 244) at 61.) He was also a certified emergency medical technician
(“EMT”) for the State of Pennsylvania and a certified “firefighter 2” in Pennsylvania. (Id. at 8789.) Prior to 2011, Weber was an EMT on approximately 9,000 calls, which included calls
involving individuals who suffered physical trauma and falls. (H.T. 1/19/2018 (ECF No. 245) at
105-06.)
On July 16, 2011, Weber received a telephone call from Grillo informing him that the
Federal Bureau of Investigation had an arrest warrant for Kramer for bank robbery and that Kramer

Kramer testified that a “C collar” is “a large strap that they strap around your neck in order
to stable your neck. It’s kind of on there so you can’t really move your neck and it’s strapped on.”
(H.T. 1/17/2018 (ECF No. 243) at 4.) Kramer wore his “C collar” for eight weeks. (Id.)
1

5

was “possibly coming to a location located in the City of Arnold.” (H.T. 1/18/2018 (ECF No. 244)
at 63.) Weber testified that he travelled to the apartment with police officers from New Kensington.
(Id.) Weber’s police report of the July 16, 2011, incident noted that Grillo and Weber were the
officers who approached the apartment and spoke with Reed. (Id. at 66-67.) Weber, Grillo, and
Baker went inside the apartment while Schubert and John Carilli, another police officer, waited
outside the residence. (Id. at 67.)
Weber testified that once they entered the apartment Grillo encountered a black male, who
Weber eventually learned was Kramer, sitting on the toilet in the bathroom. (Id. at 69.) Weber and
Baker checked the other rooms of the apartment to determine whether there were any other
individuals in the apartment. (Id. at 70.) By the time Weber and Baker finished checking the
apartment for other people, Kramer had exited the living room and handed Grillo a source of
identification. (Id.) Grillo looked at the identification and told Kramer “this isn’t you.” (Id.) Weber
then testified:
At that point, the black male, he may have said something in response to
Officer Grillo, but I can't remember if he did or not, turns. The stairwell door is
closed, because first, we don't want anybody coming up behind us, nor do we want
anybody leaving the small confines of the place.
He opens the door out on to the balcony. At this point, we're not too much
concerned, because there's no way off the porch, you know. There's no staircase, so
fine, we feel that he's confined, this black male. He leaps over the railing into the
front yard between 1818 front and 1818 rear.
At that time, being that we have no other occupants of the apartment, we
start down the steps and Officer Schubert that was positioned in between the two
buildings had radioed that he's running towards the front street, Kenneth Avenue.
We get out there. Naturally, they're in a foot pursuit. I go to the rear and get in my
patrol car and go. I'm kind of a little old and I can cover more ground with a patrol
car than I can having nine guys or eight guys or six guys in a foot pursuit with the
same individual, so I got back in my patrol car.
(Id. at 71.) Weber drove to a vacant lot where he saw Kramer “facedown with officers surrounding

6

him.” (Id. at 72.)
The first time Weber saw Kramer after Kramer jumped from the balcony was in the vacant
lot after the foot chase. (H.T. 1/19/2018 (ECF No. 245) at 104.) According to Weber, “[t]here was
nothing obvious” about Kramer that indicated that he had a neck injury, he did not verbally express
that he was in pain, and there was “no way outwardly” that Weber could tell that he was in pain.
(Id. at 104-05.) Kramer was handcuffed and placed into a police car from Lower Burrell. (Id.)
Officers from the Lower Burrell police department transported Kramer to the New Kensington
police station. (Id. at 73.) Weber was within earshot of Kramer while Kramer was being arrested
for two to three minutes. (Id. at 86.) Weber testified that he did not hear Kramer calling for help
or saying that he was hurt. (Id. at 86-87.)
The next time Weber saw Kramer, Kramer was walking unassisted down a hallway at the
New Kensington police station. (Id. at 108-09.) Weber and the other officers involved in arresting
Kramer did not know who Kramer was at that time. (Id. at 74.) At the New Kensington police
station, Weber sat approximately one to two feet across from Kramer for approximately one minute
and thirty seconds and placed Kramer on “Live Scan[,]” which “is a jointly run fingerprint” system
used for identification. (Id. at 73-74; H.T. 1/19/2018 (ECF No. 245) at 109, 112.) Prior to running
Kramer’s fingerprint through the Live Scan system, Kramer admitted his identity to Weber, i.e.,
he was Michael Kramer. (H.T. 1/18/2018 (ECF No. 244) at 74.) At that point, Weber turned off
the Live Scan system, turned Kramer over to the New Kensington police officers, and returned to
his station to write a police report. (Id.)
Counsel for Kramer questioned Weber about why he did not call an ambulance for Kramer
after witnessing Kramer fall from a two and one-half story balcony. (H.T. 1/18/2018 (ECF No.
244) at 90.) Weber responded:

7

If he was in the yard after the fall, he would have been flown from that location to
Pittsburgh hospital, because the protocol is anything over a ten foot fall, you have
to start thinking of head injury and to go. Your client, the plaintiff, leaped off the
porch and then ran for about two and a half blocks, 20 minutes or so foot chase and
basically was put in a police car and had no obvious signs to me, as a trained
individual with my EMT, that he needed any treatment at all.
(Id. at 90-91.) Weber further explained:
If he was laying in the yard and not moved, the mechanism -- the protocol
for mechanism of injury, if it's over a ten foot fall, you know, he'd very possibly
need to be sent in to the city to a trauma unit, but he was not in the yard. The next
time I seen him, he was two and a half city blocks away from the location that I
first encountered him and, you know, he does not outwardly have any signs to me
that there was a problem, you know.
Everything is functioning pretty good or he would have still been back in
the yard, so my assumption would be that he had no injuries at that time.
(Id. at 92-93.) Counsel for Kramer then asked Weber whether after Kramer fell from the two and
one-half story balcony Weber was in a position to assess Kramer’s medical condition. (Id. at 91.)
Weber responded:
Yes, sir, and if you refer to my report, I also am the one that put him on Live Scan,
and I was probably closer than myself and the court reporter in a lighted hallway in
front of the Live Scan machine.
(Id.)
Weber estimated that on July 16, 2011, he was a few feet from Kramer for a total of ten to
fifteen minutes. (H.T. 1/19/2018 (ECF No. 245) at 112.) He testified that he was inside the
apartment with Kramer for three to four minutes, with Kramer at the vacant lot for two to three
minutes, and the rest of the time was spent at the New Kensington police station. (Id. at 112-13.)
Weber explained the procedure he would have used if he believed Kramer required medical
attention. (Id. at 110-11.) Weber agreed with Kramer’s counsel that “some internal injuries”
sustained from a fall of more than ten feet cannot be “ascertain[ed]…just visually[,]” and,
therefore, “the default is medical attention[.]” (Id.at 121-22.) Weber, however, did not think that
8

Kramer required medical attention. (Id. at 123.)
III.

Standard of Review
Rule 50 provides, in pertinent part:
(a) Judgment as a Matter of Law.
(1) In General. If a 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, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a
claim or defense that, under the controlling law, can be maintained or
defeated only with a favorable finding on that issue.
…
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If
the court does not grant a motion for judgment as a matter of law made under Rule
50(a), the court is considered to have submitted the action to the jury subject to the
court's later deciding the legal questions raised by the motion. No later than 28 days
after the entry of judgment--or if the motion addresses a jury issue not decided by
a verdict, no later than 28 days after the jury was discharged--the movant may file
a renewed motion for judgment as a matter of law and may include an alternative
or joint request for a new trial under Rule 59. In ruling on the renewed motion, the
court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.

FED. R. CIV. P. 50.
Under Rule 50(b), the court must determine “whether ‘viewing the evidence in the light
most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference,
there is insufficient evidence from which a jury reasonably could find liability.’” Eshelman v.
Agere Sys., Inc., 554 F.3d 426, 433 (3d Cir. 2009) (quoting Lightning Lube, Inc. v. Witco Corp.,
4 F.3d 1153, 1166 (3d Cir. 1993)). “Although judgment as a matter of law should be granted
9

sparingly, [the court shall] grant it where ‘the record is critically deficient of the minimum quantum
of evidence’ in support of the verdict.” Eshelman, 554 F.3d at 433 (quoting Gomez v. Allegheny
Health Servs., Inc., 71 F.3d 1079, 1083 (3d Cir. 1995)). The Third Circuit Court of Appeals has
instructed that “[i]n performing this narrow inquiry, [the court] must refrain from weighing the
evidence, determining the credibility of witnesses, or substituting [its] own version of the facts for
that of the jury.” Eshelman, 554 F.3d at 433 (quoting Marra v. Phila. House. Auth., 497 F.3d 283,
300 (3d Cir. 2007)).
IV.

Discussion
A. Applicable Law
Section 1983 claims for denial of adequate medical care filed by pretrial detainees are

analyzed under the Fourteenth Amendment to the United States Constitution. Richardson v.
PrimeCare Medical, Inc., Civ. Action No. 16-5490, 2017 WL 2957827, at *5 (E.D. Pa. July 10,
2017) (citing King v. Cnty. of Gloucester, 302 F. App’x 92, 97 (3d Cir. 2008)). The elements of
the claim are: (1) the pretrial detainee had “a serious medical need,”2 and (2) “acts or omissions
by [state actors]…that indicate deliberate indifference to that need.”3 Natale v. Camden Cty. Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999)). Here, Weber does not dispute that the evidence presented by Kramer was sufficient for the
jury to find that Kramer had a serious medical need; indeed, the evidence showed that Kramer was

This is recognized as the “objective” element of the claim. Montgomery v. Pinchak, 294
F.3d 492 (3d Cir. 2002) (The “plaintiff must make an ‘objective’ showing that the deprivation was
‘sufficiently serious,’ or that the result of defendant's denial was sufficiently serious.”).
2

This is recognized as the “subjective” element of the claim. Montgomery, 294 F.3d at 499
(“[T]he plaintiff must make a ‘subjective’ showing that defendant acted with ‘a sufficiently
culpable state of mind.’”).
3

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diagnosed with a C1 fracture of his neck. (H.T. 1/17/2018 (ECF No. 243) at 3.) Weber argues that
the evidence presented by Kramer does not support the jury’s determination that Weber acted with
deliberate indifference to Kramer’s serious medical need because “[n]one of the evidence Plaintiff
presented identified Weber; placed Weber at the scene of Plaintiff’s arrest; or otherwise implicated
Weber’s involvement with the events surrounding Plaintiff’s arrest on July 16, 2011.” (ECF No.
258 at 2.)
“Deliberate indifference is a ‘subjective standard of liability consistent with recklessness
as that term is defined in criminal law.’” Natale, 318 F.3d at 582 (quoting Nicini v. Morra, 212
F.3d 798, 811 (3d Cir. 2000)). “In order to find that state officials acted with deliberate
indifference, a plaintiff must prove that the official knew of and disregarded an excessive risk
to…[the plaintiff’s] health or safety.” Lawrence v. Netzlof, Civ. Action No. 10-433, 2012 WL
4498834, at *9 (W.D. Pa. Sept. 28, 2012) (citing Natale, 318 F.3d at 582). The Third Circuit Court
of Appeals has explained:
We have found “deliberate indifference” in a variety of circumstances,
including where the prison official (1) knows of a prisoner's need for medical
treatment but intentionally refuses to provide it; (2) delays necessary medical
treatment based on a non-medical reason; or (3) prevents a prisoner from receiving
needed or recommended medical treatment. See Durmer, 991 F.2d at 68 (citing
Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 346–47
(3d Cir.1987)). We also have found “deliberate indifference” to exist where the
prison official persists in a particular course of treatment “in the face of resultant
pain and risk of permanent injury.” Napoleon, 897 F.2d at 109–11 (holding that
allegations of several instances of flawed medical treatment state a claim under
Eighth Amendment).
Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
The court will analyze the evidence presented at trial—without engaging in credibility
determinations—to determine whether there was sufficient evidence presented to support the
jury’s finding that Weber acted with deliberate indifference to Kramer’s serious medical needs.

11

B. Whether the court may consider evidence offered by Kramer and evidence offered
by Weber and the other defendants to decide the Rule 50(b) motion
Weber argues that Kramer in his case-in-chief did not prove that Weber was involved in
Kramer’s apprehension or arrest, and, under those circumstances, the jury’s determination that
Weber acted deliberately indifferent to Kramer’s serious medical needs is not supported by the
record. The court’s review of the record, however, is not limited to the evidence presented in
Kramer’s case-in-chief. The case law interpreting the reasoning behind Rule 50 supports the court
considering all the evidence presented, including the evidence presented by Weber, to decide the
pending Rule 50(b) motion.
In order for the court to consider a Rule 50(b) motion by a party after the jury verdict
(traditionally referred to as “judgment n. o. v.”), that party must have previously moved for
judgment as a matter of law pursuant to Rule 50(a) on that issue (traditionally referred to as a
“directed verdict”). Mallick v. Int’l Broth. of Elec. Workers, 644 F.2d 228, 233 (3d Cir. 1981).
Rule 50(a)(2) requires that a Rule 50(a) motion must “specify the judgment sought and the law
and facts that entitle the movant to the judgment.” FED. R. CIV. P. 50(a)(2). Courts have interpreted
this provision to require enough specificity to put the opponent on notice so that he may cure any
possible technical defects in his case. Acosta v. Honda Motor Co., 717 F.2d 828, 831-32 (3d Cir.
1983). The United States Court of Appeals for the Third Circuit explained the reasoning behind
enabling an opponent to cure defects in Acosta:
Rule 50(b) is essentially a notice provision that, among other functions, protects the
important seventh amendment right of trial by jury. A motion for a judgment n.o.v.
must be preceded by a motion for a directed verdict sufficiently specific to afford
the party against whom the motion is directed an opportunity “to cure possibly
technical defects in proof which might otherwise make his case legally insufficient.
A motion for judgment notwithstanding the verdict made after trial, in the absence
of prior notice of the alleged defect, comes too late for possibly curative action,
short of a completely new trial. Thus, whether or not the Constitution compels the
rule forbidding a party to advance by judgment notwithstanding the verdict motion
12

a ground not first advanced in a motion for directed verdict, the rule is certainly
consistent with the general spirit animating the Federal Rules of Civil Procedure.
That spirit suggests avoidance of surprises and tactical victories at the expense of
substantive interests.”
Id. (quoting Wall v. United States, 592 F.2d 154 (3d Cir. 1979)).
Even if a court errs in denying a Rule 50(a) motion, the error can be cured by evidence
offered by the moving party. 9B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 2534, at 523-34 (3d ed. 2008) (citing Trustees, 815 F.2d at 903). The
court of appeals in Trustees explained:
By proceeding to offer evidence in its own defense, a defendant waives the right to
a directed verdict.[4] If the motion for directed verdict is renewed at the close of all
the evidence, the court will decide it according to the record as it then stands.
Peterson v. Hager, 724 F.2d 851 (10th Cir. 1984); 9 J. WRIGHT & A. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 2534 (1971) (initial error by district
court “is cured if subsequent testimony on behalf of the moving party repairs the
defects of his opponent's case”); 5A J. MOORE & J. LUCAS, MOORE'S
FEDERAL PRACTICE ¶ 50.05 [1] (2d ed. 1986) (same). Accordingly, any defects
in [the plaintiff]’s case in chief were cured by evidence adduced during [the
defendant]’s defense.
Trustees, 815 F.2d at 903.
In this case, the court deferred ruling on Weber’s Rule 50(a) motion. Weber testified in the
case presented by Baker, Grillo, and Schubert, and offered evidence on his own behalf in his own
case. Weber, therefore, waived his right to judgment as a matter of law under Rule 50(a). To decide
Weber’s Rule 50(b) motion, the court will consider all the competent evidence presented, including
the evidence that was presented after Weber made his Rule 50(a) motion during trial.
C. Whether the evidence presented supports the jury’s determination that Weber
acted with deliberate indifference to Kramer’s serious medical needs
The court must determine “whether ‘viewing the evidence in the light most favorable

“Directed verdict” was the terminology used for a motion for judgment as a matter of law
pursuant to Rule 50(a) prior to the 1991 revision to Rule 50.
4

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to…[Kramer] and giving it the advantage of every fair and reasonable inference, there is
insufficient evidence from which a jury reasonably could find’” that Weber acted with deliberate
indifference to Kramer’s serious medical needs. Eshelman, 554 F.3d at 433 (quoting Lightning
Lube, 4 F.3d at 1166). In other words, the court must determine whether “‘the record is critically
deficient of the minimum quantum of evidence’ in support of the verdict.” Eshelman, 554 F.3d at
433 (quoting Gomez, 71 F.3d at 1083). For the reasons that follow, there was sufficient evidence
for the jury to find that Weber acted with deliberate indifference to Kramer’s serious medical
needs.
Kramer testified that
¯

on July 16, 2011, more than one police officer entered the apartment;

¯

Baker caused him to fall from the balcony of the apartment, which was two and
one-half stories high;

¯

after the fall, he laid on the ground and did not get up and walk or run away;

¯

while he was laying on the ground, he was crying in pain and thrashing about;

¯

police officers placed him under arrest by grabbing his arms, placing a knee
into his back, and holding his legs;

¯

the police officers had to help him stand up and escort him to the police car;

¯

while being arrested and again on the way to the police car, he voiced that there
was something wrong with his neck and he needed medical attention;

¯

the police officers at the scene did not provide him medical attention;

¯

he was diagnosed with a C1 neck fracture, placed in a neck collar, endured
emotional and physical pain, and took pain medication for more than five years;

¯

at the time he was arrested, he did not know the identities of the police officers
who arrested him;

¯

he later learned the identities of the officers who arrested him via a police
report; and

14

¯

the four police officer defendants in this case, i.e., Baker, Grillo, Schubert, and
Weber, were the four officers who arrested him.

Although it is a close case, the foregoing evidence that was presented in Kramer’s case-in-chief is
sufficient to support the jury’s finding that it was more likely than not that Weber acted with
deliberate indifference to Kramer’s serious medical needs. Weber does not dispute that Kramer
had a serious medical need. If the jury believed the evidence presented by Kramer, it had a
sufficient basis to conclude that it was more likely than not that: Kramer fell from a balcony that
was ten to twelve feet in the air; he laid on the ground crying in pain, thrashing about, and unable
to stand on his own; he had to be escorted to the police car; he requested medical attention from
the police officers at the scene; Weber was one of the arresting officers at the scene on July 16,
2011; and none of the officers, including Weber, provided Kramer medical assistance. The jury
could have concluded based upon circumstantial evidence that because Weber was an arresting
officer and Kramer testified that he was crying in pain and twice requested medical attention during
the arrest, that Weber was aware of Kramer’s serious medical need. Under those circumstances,
Weber would not be entitled to judgment as a matter of law even if the court did not consider
evidence presented by Weber.
As discussed above, however, because Weber proceeded to offer evidence on his own
behalf after the court denied his Rule 50(a) motion, the court must consider the record as a whole
to decide the Rule 50(b) motion. The jury’s verdict is well-supported by the evidence presented in
Kramer’s case-in-chief and Weber’s own testimony. Weber testified that:
¯

he is a trained EMT and firefighter;

¯

he has experience as an EMT with responding to more than 9,000 calls, which
included calls involving individuals who suffered physical trauma and falls;

¯

he was one of the three police officers that entered the apartment on July 16, 2011;

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¯

he saw Kramer jump off the balcony, i.e., he knew Kramer went over the balcony,
which was more two and one-half stories high or ten to twelve feet from the ground;

¯

after Kramer jumped off the balcony, he went outside the apartment;

¯

he saw the police officers place handcuffs on Kramer and escort him to the police car;

¯

the protocol to follow if a person fell from more than ten feet and laid there would be
to send the person to a trauma unit;

¯

he saw Kramer being escorted to the police car;

¯

he interacted with Kramer inside the New Kensington police department;

¯

he sat close enough to Kramer that he could assess Kramer’s medical condition; and

¯

he did not provide Kramer any medical attention.

Viewing the evidence in the light most favorable to Kramer, there was sufficient evidence
from which the jury could reasonably find that it was more likely than not that Weber knew Kramer
needed medical attention and intentionally refused to provide it to him. Rouse, 182 F.3d at 197
(explaining that deliberate indifference may be found when, among other things, the state official
knows a person in his or her custody needs medical treatment and intentionally refuses to provide
it). The jury may have believed Kramer that once he fell from the two and one-half story balcony
he: laid on the ground; was arrested in the backyard of the apartment; only stood up after receiving
assistance from the police officers; and voiced that he was in pain and required medical attention
during the arrest and as he was being led to the police car. Weber testified that after Kramer jumped
from the balcony, Weber went outside, got into his patrol car, and later at a location separate from
the apartment saw police officers handcuffing Kramer and leading him to the police car. The jury
may have discredited the evidence offered by Weber and found that Kramer laid in the backyard
of the apartment after he jumped or was pushed off the balcony and his arrest took place in that
location. In other words, the jury may have believed that Kramer did not get up and run from the

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apartment after he was pushed or jumped off the balcony and, instead, laid there injured and
requesting help from Weber who witnessed the arrest. In light of the evidence that the balcony was
ten to twelve feet from the ground and Weber’s testimony that the proper procedure is to transport
someone to a trauma unit if they fall from more than ten feet off the ground, the evidence was
sufficient for the jury to find that Weber (1) was on scene on July 16, 2011, and (2) knew Kramer
needed medical attention and intentionally refused to provide it to him. The jury’s verdict in favor
of Kramer and against Weber was, therefore, supported by the evidence of record at trial.
V.

Conclusion
Even if the court’s review of the evidence was limited to Kramer’s case-in-chief, Weber

would not be entitled to judgment as a matter of law with respect to the due process claim. Because
Weber offered evidence in his defense after his counsel made a Rule 50(a) motion for judgment as
a matter of law, however, the court must consider the record as a whole in deciding the Rule 50(b)
motion currently pending before the court. In consideration of all the evidence viewed in the light
most favorable to Kramer and without making any credibility determinations, the evidence of
record was sufficient for the jury to reasonably conclude that Weber acted with deliberate
indifference to Kramer’s serious medical needs. The Rule 50(b) motion (ECF No. 257) will be
denied. An appropriate order will be entered.
BY THE COURT,
Dated: April 12, 2018

/s/ JOY FLOWERS CONTI
Joy Flowers Conti
Chief United States District Court Judge

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