Karen Jutzi-Johnson, as administrator of the estate of Robert Johnson, deceased, Plaintiff-Appellee, v. United States of America, Defendant-Appellant.
No. 00-2411
United States Court of Appeals For the Seventh Circuit
Argued January 23, 2001—Decided September 4, 2001
Before Posner, Easterbrook, and Ripple, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 5708—Charles P. Kocoras, Judge.
The district judge, after a bench trial, awarded the estate $1.8 million in damages, of which $1.6 million was intended to compensate for the pain and suffering that Johnson suffered during the period of several minutes in which he remained alive before strangling while hanging from the noose that he had made out of a bedsheet and suspended from an exposed pipe that ran beneath the ceiling of his cell. The other $200,000 in damages were for the loss to his family resulting from his
Although the initial psychological screening that Johnson like all new inmates underwent revealed no history of psychiatric disorders or suicide attempts and no suicidal thoughts, and although this was not his first spell of incarceration, he deteriorated markedly during his stay in the jail. He scratched and picked at sores on his body until they bled so copiously that they stained his clothes and bedsheets and were noticed by other inmates. One of the guards observed that Johnson was a loner, slept a lot during the day, seemed nervous, had poor hygiene, and had a lot of sores that bled; yet the guard did not think to refer Johnson to the medical or psychology department of the jail. Another inmate told at least one other member of the prison staff that Johnson had a nervous problem and might need an antidepressant, but nothing was done about this information either. The day before Johnson killed himself his cellmate importuned him to see a physician‘s assistant and filled out a sick-call form in which the cellmate stated: “Open sores all over body caused from nerves. Request to see a psychologist or psychiatrist.” Johnson presented the form to the physician‘s assistant the next day, but she neglected to read it and when he told her his roommate was taking some kind of medication that he thought he should be taking as well she merely told him to make an appointment to see the jail psychologist. He did not do that, but instead hanged himself 12 hours later.
The government does not deny that the jail‘s staff was negligent in failing to discover that Johnson had some kind of nervous condition and to take steps to deal with it. The obsessive scratching and picking, in the context of a general pattern of abnormal behavior, should have alerted the staff to the fact that Johnson might have a psychiatric illness. The physician‘s assistant whom Johnson consulted should have read the sick-call form and had she done so she might well have sent him directly to the jail psychologist rather than relying on him to make an appointment to see the psychologist. But it was the plaintiff‘s burden to prove both that Johnson would not have committed suicide had the jail‘s staff acted responsibly, e.g., Beul v. ASSE Int‘l, Inc., 233 F.3d 441, 445-47 (7th Cir. 2000); Merco Distributing Corp. v. Commercial Police Alarm Co., 267 N.W.2d 652 (Wis. 1978); Guthrie v. American Protection Industries, 206 Cal. Rptr. 834, 836 (Cal. App. 1984); Vastola v. Connecticut Protective System, Inc., 47 A.2d 844, 845 (Conn. 1946), and that his suicide was a foreseeable as well as actual consequence of the staff‘s negligence.
The issue of causation is doctrinally straightforward; not so the issue of the foreseeability of suicide. When failure to prevent a suicide is claimed to be negligent, the issue of foreseeability is analyzed under the rubric of “supervening cause” and the general rule is that the negligent actor is not liable for the victim‘s decision to kill himself. The suicide is said to be a supervening cause of the victim‘s loss of his life, breaking the chain of responsibility that would otherwise link the loss to the negligent act. E.g., Beul v. ASSE Int‘l, Inc., supra, 233 F.3d at 447; McMahon v. St. Croix Falls School District, 596 N.W.2d 875, 879 (Wis. App. 1999); Wyke v. Polk County School Board, 129 F.3d 560, 574-75 (11th Cir. 1997); Bruzga v. PMR Architects, P.C., 693 A.2d 401 (N.H. 1997); Edwards v. Tardif, 692 A.2d 1266, 1269 (Conn. 1997); W. Page Keeton et al., Prosser and Keeton on the Law of Torts sec. 44, p. 311 (5th ed. 1984). Of course this is just a conclusion, not reasoning; but it is a conclusion sustained by reasoning about the unforeseeability of most suicides and the role of foreseeability in determining tort liability. If an employer refuses an employee‘s request for a raise, the latter may respond by killing himself, and yet the employer even if somehow negligent in failing to give the employee the raise would not be legally responsible for the death, just as if through the carelessness of the driver a truck spilled a toxic substance and a passerby scraped it up and poisoned his mother-in-law with it the driver would not be liable to the mother-in-law‘s estate; the son-in-law‘s criminal act would be deemed a supervening cause. See Rowe v. State Bank of Lombard, 531 N.E.2d 1358, 1361 (Ill. 1988); Giebel v. Richards, 591 N.W.2d 901 (Wis. App. 1999); Henry v. Merck & Co., 877 F.2d 1489, 1494-97 (10th Cir. 1989); Shelton v. Board of Regents, 320 N.W.2d 748, 752-53 (Neb. 1982).
But first we should consider whether there was any causal relation between that negligence and the suicide. We think not. Johnson did not commit suicide because he had sores on his body. As nearly as can be reconstructed from the evidence, he committed suicide because he was upset about being in jail, separated from his family (including a daughter born while he was in jail) and facing a prison term if he was convicted. The scratching and the suicide were the consequences of an underlying unhappiness. Nothing the jail‘s
It is true that jail inmates are much more likely to commit suicide than free persons are—in fact, nine times as likely. Lindsay M. Hayes & Joseph R. Rowan, National Study of Jail Suicides: Seven Years Later 54 (National Center on Institutions and Alternatives, Feb. 1988). According to the study just cited (the only one we have found), 12.9 percent of jail suicides occur within the first three hours of confinement, 32.8 percent within the first 24 hours, 62.1 percent within the first two weeks, 72.8 percent within the first month, 89.2 within the first four months, and 97.4 within the first seven months. The likelihood of suicide is highest between 2 and 14 days of confinement, and only 10.8 percent of suicides occur after 5 months. Id. at 36. Thus, when Johnson was in his worst psychological state, after 5 months of being in jail, the statistical likelihood of suicide was diminishing rapidly. No evidence has been offered that a prisoner who has no history of suicide attempts or even suicidal thoughts should be considered
If the jail psychologist would not have diagnosed Johnson as suicidal, there is no reason to believe that his suicide would have been averted. It is here that the analysis of causality and the analysis of foreseeability, though distinct (the issue of foreseeability does not arise until the defendant‘s negligent act is identified as a cause of the plaintiff‘s injury), blend insensibly into each other. The reason that measures to prevent Johnson‘s suicide probably would not have been taken even if the jail‘s staff had been exercising due care is that the suicide was not a foreseeable consequence of Johnson‘s behavior. The population of prisons and jails is not a random sample of American citizens. It is largely a subset of the criminal population (not entirely, since some pretrial detainees are innocent of the crimes for which they are awaiting trial), itself a population prone to abnormal behavior, and the conditions of incarceration place the prisoners under considerable psychological strain. Abnormal behavior in jails and prisons is therefore common. Whether such behavior connotes a substantially enhanced suicide risk after the first few days or weeks or months of incarceration is a question on which the record of this case, including the expert evidence, casts no light. Had Johnson developed infections from his obsessive picking and scratching, the government might well be liable; for infection is a foreseeable result of that behavior. Suicide, so far as the record shows, is not.
The psychiatric condition most closely associated with suicide is severe (“clinical“) depression, and a disturbed sleep pattern is a symptom of depression. But of course many people who sleep badly are not depressed, and most people who are depressed do not commit suicide. No evidence was presented that compulsive scratching is a symptom of depression. Had the staff been more alert, maybe they would have stumbled on some underlying psychiatric condition predictive of suicide. But maybe not, because no one knows whether Johnson committed suicide because he was depressed or because he could not stand the prospect of
Although our analysis makes it unnecessary to consider the government‘s objection to the size of the award of damages for pain and suffering, we shall address that objection in an effort to provide some guidance for future cases. The judge awarded the plaintiff $1.6 million for Johnson‘s pain and suffering without any explanation of how he had arrived at this amount, apart from noting that “there is no dispute that Bob Johnson did not die instantly.” Juries do not explain their reasoning process, but
Awarding any amount of damages for pain and suffering has long been criticized as requiring the trier of fact to monetize a loss that is incommensurable with any monetary measure. We do not agree with the criticism. Pain and suffering are perceived
But can we prescribe it in a case such as this where the rule of decision is state rather than federal? The Supreme Court has held that a rule requiring uniformity in damages awards is, like a cap on damages, see Knowles v. United States, 91 F.3d 1147, 1150 (8th Cir. 1996); Aguilar v. United States, 920 F.2d 1475, 1478 (9th Cir. 1990); Reilly v. United States, 863 F.2d 149, 161 (1st Cir. 1988), substantive within the meaning of the Erie doctrine. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 428-31 (1996). But the Erie doctrine, a limitation on federal judicial intervention in disputes that arise under state law, is not directly applicable to a suit against the United States. Here state law is being borrowed only because there is no well developed body of federal common law concerning the common torts such as negligence, not because there is a state interest in the outcome of the suit. It is true that Erie was not merely a constitutional decision but also an interpretation of the Rules of Decision Act,
The distinction between borrowing and applying state law is perhaps most clearly established in cases involving the borrowing of a state statute of limitations for use in litigation based on a federal statute. See, e.g., West v. Conrail, 481 U.S. 35, 39 n. 4 (1987); Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 873-74 (7th Cir. 1997); McIntosh v. Antonino, 71 F.3d 29, 36 (1st Cir. 1995); Hemmings v. Barian, 822 F.2d 688, 689-90 (7th Cir. 1987). As we put it in Hemmings, “When a federal court borrows a state statute of limitations for use in connection with a federal statute that does not have its own statute of limitations, the court is not applying state law; it is applying federal law. It looks to state law for guidance. . . . The analysis would, however, be different if Count I were a diversity rather than federal-question count. For purposes of the Erie doctrine the statute of limitations is substantive rather than procedural, and the federal court therefore applies state law—it doesn‘t just borrow it.” Id.
Nor is a practice of consulting damages awards in comparable cases for purposes of facilitating a more thoughtful, disciplined, and informed award in the particular case the same thing as a rule limiting awards within a range set by previous cases, one understanding of the state law rule involved in Gasperini: an award of damages was not to “deviate materially” from awards that had been made
In any event, any argument that we should not look at comparable awards in reviewing the award of pain and suffering damages in this case has been forfeited by the plaintiff, who, while citing Epping for the proposition stated in her brief that “not all courts agree that comparison of damage awards aids in evaluating their propriety,” has not argued that Illinois forbids such comparisons or that, if it does, its rule binds us. Instead, both parties have cited what they deem comparable cases. Only their notions of comparability are stunted. The plaintiff cites three cases in which damages for pain and suffering ranging from $600,000 to $1 million were awarded, but in each one the pain and suffering continued for hours, not minutes. The defendant confined its search for comparable cases to other prison suicide cases, implying that prisoners experience pain and suffering differently from other persons, so that it makes more sense to compare Johnson‘s pain and suffering to that of a prisoner who suffered a toothache than to that of a free person who was strangled, and concluding absurdly that any award for pain and suffering in this case that exceeded $5,000 would be excessive. The parties should have looked at awards in other cases involving asphyxiation, for example cases of drowning, which are numerous. See, e.g., Millman v. County of Butler, 504 N.W.2d 820, 826 (Neb. 1993); Snyder v. Whittaker Corp., 839 F.2d 1085, 1092-93 (5th Cir. 1988); Dontas v. City of New York, 584 N.Y.S.2d 134 (App. Div. 1992) (per curiam); Turner v. Parish of Jefferson, 721 So. 2d 64, 76-78 (La. Ct. App. 1999); Stissi v. Interstate & Ocean Transport Co., 590 F. Supp. 1043, 1048-49 (E.D.N.Y. 1984), aff‘d in relevant part, 765 F.2d 370, 377 (2d Cir. 1985). Had they done so, they would have come up with an award in the range of $15,000 to $150,000.
There is more wrong with the award. The $1.6 million awarded by the judge was far higher than the amount requested by the plaintiff (which was $300,000 to $600,000) and came after the judge, in accordance with the principle of comparative negligence, had reduced the award on the ground that Johnson‘s own conduct, that is, his hanging himself, required his estate to bear some of the responsibility for the pain and suffering that the hanging inflicted on him. The judge did not indicate from what level (or by what percentage) he had reduced the award to $1.6 million.
But as we said the plaintiff failed to establish liability. The judgment must therefore be reversed with instructions to enter judgment for the government.
Reversed.
Karen Jutzi-Johnson, as administrator of the estate of Robert Johnson, deceased, Plaintiff-Appellee, v. United States of America, Defendant-Appellant.
No. 00-2411
United States Court of Appeals For the Seventh Circuit
1.
On June 7, 1993, Robert Johnson committed suicide by hanging himself from an overhead pipe using his bedsheet. The facts that led up to that tragedy are the basis of this lawsuit.
An understanding of the issue before us—and of the import of the majority‘s conclusion—will be best understood if the circumstances surrounding Mr. Johnson‘s suicide are placed in the broader factual context of the case.
Mr. Johnson was arrested and incarcerated at Metropolitan Correction Center (“MCC“) in Chicago while awaiting trial on extortion charges. During his incarceration, Mr. Johnson was first detained on the thirteenth floor, and later, was moved to the seventeenth. By
Even more apparent than his general state of mind was a disturbing nervous habit that Mr. Johnson acquired. Mr. Johnson would scratch and pick at his skin, causing open sores that would bleed. Once he would cause these sores, Mr. Johnson would continue to pick at them with his fingers, manicure scissors, playing cards, or apparently anything else that was available. This continual scratching and picking caused the sores to fester and ooze blood; they never properly healed.2
Several inmates went out of their way to help Mr. Johnson. Thomas Johnson testified that, a few days prior to Mr. Johnson‘s suicide, Johnson had told a guard that he thought Mr. Johnson was in need of psychiatric care. Jeffery Sorrenson, a former cellmate of Mr. Johnson, testified that he went to a female officer to complain about Mr. Johnson‘s nervous habits and hygiene. Derrick Anderson encouraged Mr. Johnson to see a doctor and even accompanied him to sick call on the final morning of Mr. Johnson‘s life.
The efforts of two inmates in particular are especially noteworthy. Richard Dover met Mr. Johnson while they both were on the thirteenth floor; Dover also was placed on the seventeenth floor with Mr. Johnson. Dover testified that two other inmates and he approached at least three guards in an attempt to get medical assistance for Mr. Johnson. Dover pointed out Mr. Johnson‘s symptoms and said that Mr. Johnson needed to go to a hospital. Dover testified that nothing came of these conversations: “We always stayed up onto the guards, trying to get them to do something about it, and they never did.” Dover Dep. at 21.
The night before Mr. Johnson‘s suicide, McCarver filled out a sick call sheet for Mr. Johnson. A sick call sheet was a request to see medical personnel. On the sheet, McCarver described Mr. Johnson‘s complaint as open sores caused by nerves. In the box next to the question whether the complaint was serious, McCarver checked yes twice. However, when the physician‘s assistant (“PA“) saw Mr. Johnson the next morning, she did not have the sick call sheet with her, in violation of prison policy.
Mr. Johnson told the PA that he was nervous and that he wanted something to calm him down. Again in violation of policy, the PA told Mr. Johnson to make an appointment with a psychologist rather than referring Mr. Johnson personally.
The compassionate attempts by inmates to help Mr. Johnson were to little avail. There is no evidence that any prison official attempted to get Mr. Johnson any type of medical attention. At least one prison official testified that he knew of Mr. Johnson‘s problems. Officer James Young admitted that McCarver had confronted him about the blood-stained linens, but he nonetheless failed to seek assistance for Mr. Johnson. Other prison officials claimed to have no memory of Mr. Johnson. Cunneen,
Through their combined efforts, inmates were able to cajole Mr. Johnson into seeking help for his problems. After months of suffering alone, Mr. Johnson went to the PA in hopes of receiving help. When the PA failed to treat Mr. Johnson adequately, the last opportunity to help Mr. Johnson was lost. Twelve hours later, Mr. Johnson took his own life.
2.
The majority holds that the United States cannot be liable for Mr. Johnson‘s death. Specifically, the majority reasons that Mr. Johnson‘s suicide was not foreseeable and that the Government was not the proximate cause of Mr. Johnson‘s death. I respectfully disagree.
“The district court‘s determination of foreseeability is a factual determination reviewable only for clear error.” United States v. Bullis, 77 F.3d 1553, 1564 (7th Cir. 1996). I do not believe that the district court clearly erred in its determination that Mr. Johnson‘s suicide was foreseeable. The record offers ample evidence that demonstrates that prison officials should have known that Mr. Johnson was suffering severe emotional distress. As the district court noted, pretrial detainees like Mr. Johnson have a greater risk of suicide than the population in general. This reality should have alerted prison officials to scrutinize seriously the numerous reports they received concerning Mr. Johnson‘s deteriorating psychiatric state.
Inmates testified that Mr. Johnson brushed his teeth until they bled, that he was up at nights vomiting, and that he scratched his skin until it bled. Mr. Johnson was described as a loner who had problems sleeping and eating. On more than one occasion, inmates such as Alvin McCarver brought these symptoms to the attention of prison officials. Prison officials chose to do nothing.
3.
The court reviews factual findings, such as the existence of proximate cause, for clear error and will not reverse if the district court‘s findings are plausible in light of the entire record. See Anderson v. Bessemer City, 470 U.S. 564, 573 (1985); Wyletal v. United States, 907 F.2d 49, 50 (7th Cir. 1990) (factual findings in Federal Tort Act cases reviewed under clearly erroneous standard); Susnis v. Radfar, 739 N.E.2d 960, 967 (Ill. App. Ct. 2000) (under Illinois law, questions of proximate causation are questions of fact). “A factual determination is clearly erroneous only if, after considering all the evidence, the reviewing court is left with the definite and firm conviction that a mistake has been committed.” United States v. Charles, 238 F.3d 916, 918 (7th Cir. 2001) (internal quotation marks and citations omitted). Additionally, “a district court‘s choice between two permissible inferences from the evidence cannot be clearly erroneous.” See id. Under Illinois law, “proximate cause can only be established when there is a reasonable certainty that the defendant‘s acts caused the injury” or the increased risk of future injury. Henderson v. Sheahan, 196 F.3d 839, 852 (7th Cir. 1999) (internal quotation marks and citations omitted).
I cannot join the majority view that the district court was clearly erroneous in its determination that the United States was the proximate cause of Mr. Johnson‘s death. The majority correctly notes that suicide is generally viewed as a supervening cause breaking the chain of causation. However, there are circumstances that render this rule inapplicable. “As a general rule, absent some type of custodial relationship, one cannot be held liable for the suicide of another.” Wyke v. Polk County Sch. Bd., 129 F.3d 560, 574 (11th Cir. 1997). By articulating the qualification “absent some type of custodial relationship,” our colleagues in the Eleventh Circuit acknowledged that the general rule makes no sense when a higher duty of care is required because “the State ‘takes a person into its custody and holds him there against his will,’ hence depriving him of liberty.” Butera v. Dist. of Columbia, 235 F.3d 637, 648 (D.C. Cir. 2001) (quoting DeShaney v. Winnebago County Dep‘t of Soc. Servs., 489 U.S. 189, 199-200 (1989)); see also Bruzga v. PMR Architects, P.C., 693 A.2d 401, 403 (N.H. 1997). “[H]aving stripped them [incarcerated persons] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” Farmer v. Brennan, 511 U.S. 825, 833 (1994).
Here, prison officials knew that Mr. Johnson was suffering severe emotional distress. Given that knowledge, they had an affirmative duty to aid Mr. Johnson. Time and again, when presented with information that Mr. Johnson was suffering, officials failed to act. The combination of this inaction caused Mr. Johnson‘s death.
I believe it to be entirely permissible for the district court to determine that the collective failure of prison officials to provide medical assistance for Mr. Johnson was the proximate cause of his death. Accordingly, the district court‘s conclusion is not clearly erroneous and must be upheld.
4.
I also cannot join the majority‘s discussion of the damage award in this case. First, the point should be made that the majority concedes that “our analysis makes it unnecessary” to consider the damage award in this case. Maj. Op. at 8. Because the discussion of this issue is not necessary to determine the outcome of this case, it is “purely dicta” and “does not constitute the law of the case or any other binding precedent for our current consideration.” Thomas & Betts Corp. v. Panduit Corp., 138 F.3d 277, 289 n.4 (7th Cir. 1998). We have noted that:
Dicta are the parts of an opinion that are not binding on a subsequent court, whether
as a matter of stare decisis or as a matter of law of the case. . . . They are non-binding for two reasons. First, not being integral elements of the analysis underlying the decision . . . they may not express the judges’ most careful, focused thinking. Second, to give the inessential parts of an opinion the force of law would give judges too much power, and of an essentially legislative character; we could hardly consider ourselves judges in the Anglo-American tradition were we to interrupt this opinion to offer our thoughts.
Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir. 1998).
The wisdom of this time-honored approach to dicta is well-justified by the majority‘s expressed view that hanging deaths and death by drowning are comparable. Hanging is an excruciatingly painful and cruel way to die. Of the forty-eight states that once allowed executions by hanging, only two jurisdictions still do. More specifically:
In properly-performed hangings, the neck breaks immediately and unconsciousness is supposedly instantaneous. However, hanging has been called an “art,” and considerable skill is necessary to ensure that the neck breaks . . . . In most instances, however, this [break] does not result, and the condemned dies a violent and lingering death. If the drop is too long, the prisoner may be decapitated, causing great indignity to the body. If the drop is too short, the inmate may slowly strangle to death. In strangulation, extreme pain is evident: the eyeballs pop out, the tongue swells and protrudes, the rope can pull hunks of flesh off the face, and the neck elongates and distorts. As it is so often improperly performed, the risk of either decapitation or slow strangulation is likely.
Kristina E. Beard, Comment, Five Under the Eighth: Methodology Review and the Cruel and Unusual Punishments Clause, 51 U. Miami L. Rev. 445, 464 (1997).
Given that a professional execution, in at least a semi-controlled environment, leads to an agonizing death, it seems apparent that a depressed man with only an overhead pipe and a bedsheet would suffer a great deal. Dr. Kern, an ear, nose, and
Drowning is also clearly a traumatic experience. When a person in the water begins to take water in, the automatic physiological reaction is that the muscle at the entrance of the windpipe contracts, preventing water from entering the lungs. See Am. Med. Ass‘n, Encyclopedia of Medicine 375 (1989). However, this contraction impairs breathing; without access to oxygen, the brain begins to be affected within thirty seconds, and the individual quickly loses consciousness. See id.; see also Roy W. Rafter, The Anatomy of Drowning, at http://www.airsearchrescue.com/drowning.htm. Depending on the physical status of the victim, death often occurs in two minutes or less.
The differences between drowning and hanging are far too great to cabin the discretion of the trial court by making the court treat them as one and the same. The standard of review for damage awards is still an abuse of discretion.