Burke v. Regalado

935 F.3d 960

Robbie Emery BURKE, as the Special Administratrix of the estate of Elliott Earl Williams, deceased, Plaintiff - Appellee,

v.Vic REGALADO, in his official capacity as Tulsa County Sheriff, Defendant - Appellant,andStanley Glanz, in his individual capacity, Defendant.

Robbie Emery Burke, as the Special Administratrix of the estate of Elliott Earl Williams, deceased, Plaintiff - Appellee,

v.Stanley Glanz, in his individual capacity, Defendant - Appellant,andVic Regalado, in his official capacity as Tulsa County Sheriff, Defendant.

No. 18-5042

No. 18-5043

United States Court of Appeals, Tenth Circuit.

FILED August 20, 2019

Guy A. Fortney (Clark O. Brewster, Katie S. Arnold, and Mbilike M. Mwafulirwa with him on the brief), of Brewster & De Angelis, P.L.L.C., Tulsa, Oklahoma, for Defendants – Appellants.

Robert M. Blakemore of Smolen Roytman, (Daniel E. Smolen, of Smolen Roytman; Louis W. Bullock of Bullock, Bullock & Blakemore with him on the briefs) Tulsa, Oklahoma, for Plaintiff – Appellee.

Before MATHESON, MURPHY, and EID, Circuit Judges.

MATHESON, Circuit Judge.

Table of Contents

I. Background...982

A. Factual Background...982

1. Mr. Williams’s Arrest and Transfer to TCSO Custody...982

2. Mr. Williams’s Injury and Lack of Treatment...982

a. October 22—Response to initial injury and transfer to medical unit...982

b. October 23-24—Continued paralysis and arrival of mental health staff...983

c. October 25—Transfer to monitored cell and visit from Dr. Harnish...984

d. October 26—Lack of medical examination or treatment...984

e. October 27—Mr. Williams’s first medical exam...984

3. Mr. Williams’s Death...985

4. McKelvey and OSBI Reports...985

5. TCSO Policies and Practices...985

a. 2007 audit...986

b. 2009 inspection and Gondles Report...986

c. Prior inmate deaths...987

d. 2010 NCCHC probation...987

e. Homeland Security inspection...988

B. Procedural Background...988

1. Complaint...988

2. Pre-Trial Motions, CHC Settlement, and Replacement of Sheriff Glanz with Sheriff Regalado...989

3. Trial and Verdict...989

4. Post-Trial Motions...989

II. Discussion...990

A. Judgment as a Matter of Law...990

1. Denial of Judgment as a Matter of Law under Rule 50(b)...990

a. Additional procedural background...991

b. Standard of review...991

c. Sufficiency of evidence showing underlying constitutional violation...991

i. Legal background...991

1) Deliberate indifference—Objective and subjective components...992

2) Gatekeeping function...992

ii. Analysis...993

d. Sufficiency of evidence showing supervisory and municipal liability...995

i. Legal background...996

1) Constitutional violations by TCSO or CHC employees as the basis for the Sheriffs’ liability...996

2) Supervisory liability under § 1983...997

3) Municipal liability under § 1983...998

4) Supervisory and municipal liability—Same elements in this case...998

ii. Analysis...999

1) Supervisory liability—Sheriff Glanz...999

2) Municipal liability—Sheriff Regalado...1001

2. Qualified Immunity...1001

a. Legal background...1001

i. Qualified immunity...1001

ii. Waiver...1002

b. Analysis...––––

i. Denial of summary judgment based on disputed issues of fact not appealable...1003

ii. Failure to raise qualified immunity in Rule 50 motions...1003

B. New Trial...1003

1. Challenges to Pretrial Order...1003

a. Additional procedural background...1003

b. Standard of review...1005

c. Legal background...1005

d. Analysis...1005

i. No objections to the complaint...1006

ii. Adequate notice of allegations in the pretrial order...1007

2. Challenge to Jury Instructions...1008

a. Additional procedural background...1009

b. Standard of review...1009

c. Legal background...1009

d. Analysis...1010

3. Evidentiary Rulings...1011

a. Investigative reports and interview transcripts...1011

i. Additional procedural background...1011

ii. Additional legal background...1013

1) Hearsay...1013

2) Waiver and inadequate briefing...1014

3) Forfeiture...1014

iii. Analysis...1014

1) The McKelvey Report—Waiver...1014

2) The OSBI Report—Forfeiture...1015

3) Transcript of interview with Mr. Latham...1016

4) Transcript of interview with Mr. Johnson...1016

b. Sheriff Glanz’s misdemeanors...1017

i. Additional procedural background...1017

ii. Additional legal background...1017

iii. Analysis...1018

c. Mr. Williams’s background...1019

i. Additional procedural background...1019

ii. Additional legal background...1019

iii. Analysis...1019

d. Insurance coverage...1020

i. Standard of review...1020

ii. Additional procedural background...1020

iii. Additional legal background...1021

iv. Analysis...1021

e. Branstetter email...1021

i. Additional procedural background...1022

ii. Analysis...1022

f. Wyrick memo and testimony...1022

i. Additional procedural background...1023

ii. Additional legal background...1023

iii. Analysis...1023

g. Redirect examination of Chief Robinette and memo about Dr. Adusei...1023

i. Additional procedural background...1024

ii. Additional legal background...1024

iii. Analysis...1025

4. Closing Argument...1025

a. Additional procedural background...1025

i. Counsel’s allegedly improper statements during closing argument...1025

ii. District court ruling...1025

b. Standard of review...1026

c. Legal background...1026

d. Analysis...1027

i. First Whittenburg factor—Extent of improper remarks...1027

1) Statements urging the jury to award damages for deterrence...1027

2) Additional legal background...1028

3) Contested statements...1027

4) Statements contrary to the evidence...1029

5) Statements urging the jury to disregard the court’s instructions...1030

6) Statements violating the Golden Rule...1030

7) Statements expressing counsel’s own opinion...1031

8) Pervasiveness of improper comments...1032

ii. Second Whittenburg factor—Curative action...1033

iii. Third Whittenburg factor—Size of the verdict...1033

iv. Balancing the Whittenburg factors...1034

C. Compensatory and Punitive Damages...1034

5. Remittitur as to Compensatory Damages...1034

a. Additional procedural background...1034

b. Standard of review...1035

c. Legal background...1035

d. Analysis...1035

6. Punitive Damages...1036

a. Additional procedural background...1036

b. Standard of review...1037

c. Legal background...1037

i. Degree of reprehensibility...1037

ii. Relationship to actual harm...1038

iii. Comparison to similar cases...1038

d. Analysis...1039

7. Setoff...1040

a. Legal background...1040

i. Preservation and waiver of setoff defense...1040

ii. Setoff law in § 1983 cases...1041 iii. Oklahoma setoff statute...1042

b. Additional procedural background...1042

i. Settlement and dismissal of CHC defendants...1042

ii. Pretrial order and motion at trial...1042

iii. Post-trial motions for disclosure of the settlement and a setoff...1043

c. Standard of review...1044

d. Analysis...1044

i. Waiver...1045

ii. Error in application of step three of the § 1988 analysis...1045

1) Policy goals of § 1983...1045

2) State law consistency—Case-specific or categorical analysis...1046

3) Error in the district court’s categorical rejection of setoff statute...1047

iii. Disclosure of the settlement agreement...1047

D. Disqualification...1048

8. Disqualification of District Court Judge...1048

a. 28 U.S.C. § 455...1048

b. Additional background...1049

i. The Sheriffs’ disqualification motion...1050

1) 2008 suit against the County and Sheriff Glanz...1050

2) Summary judgment order...1050

ii. District court ruling...1051

iii. Summary of factual background...1051

c. Standard of review and legal background...1052

i. Timeliness...1053

ii. Disqualification under § 455(a)...1053

d. Analysis...1054

i. Timeliness...1055

ii. 2008 Case...1056

1) The 2008 case was unrelated to this case...1056

2) The Sheriffs’ other arguments...1058

9. Reassignment on Remand...1058

III. Conclusion...1059

The Tulsa County Sheriff’s Office ("TCSO") runs the Tulsa County Jail ("the jail"). In 2011, Elliott Williams was jailed there. Shortly after his booking, he severely injured his neck, causing lower body paralysis. No one treated his injury. Despite his frequent complaints of pain and paralysis, no one transported him to a hospital. He remained immobile for five days, lying on his back in various cells at the jail, and died of complications from the neck injury.

The administrator of Mr. Williams’s estate, Robbie Emery Burke, filed a complaint under 42 U.S.C. § 1983. It alleged detention officers and medical providers at the jail violated Mr. Williams’s Fourteenth Amendment right by acting with deliberate indifference to his serious medical needs. It further alleged Tulsa County Sheriff Stanley Glanz was liable in his individual supervisory capacity and in his official capacity for his subordinates’ violations. During pretrial litigation, Sheriff Glanz resigned and his successor, Sheriff Vic Regalado, was substituted as the defendant on the official-capacity claim. By the time of trial, Sheriffs Glanz and Regalado ("the Sheriffs") were the only defendants remaining.

A jury awarded Ms. Burke $10 million in compensatory damages against Sheriff Glanz and Sheriff Regalado and $250,000 in punitive damages against Sheriff Glanz in his individual supervisory capacity. On appeal, the Sheriffs challenge the verdict, various evidentiary rulings, and several pre- and post-trial decisions of the district court.

The following summarizes the 11 issues presented on appeal and our dispositions. We organize them under the four types of relief sought by the Sheriffs.

A. Judgment as a Matter of Law

1. Were the Sheriffs entitled to judgment as a matter of law under Federal Rule of Civil Procedure 50(b) on Ms. Burke’s constitutional claims because the evidence for the verdict was insufficient?

No. The evidence was sufficient for a reasonable jury to conclude that one or more jail detention officer or medical provider was deliberately indifferent to Mr. Williams’s serious medical needs and that Sheriff Glanz maintained a custom or practice of neglecting to remedy deficient medical services at the jail.

2. Was Sheriff Glanz entitled to dismissal of the individual supervisory liability claim against him based on qualified immunity?

Sheriff Glanz has waived this issue for appellate review because he did not

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