Case Information
*1 Before B AUER , W ILLIAMS , and T INDER , Circuit Judges .
T INDER , Circuit Judge . John King was in police custody awaiting his probable cause determination in April 2007. Af- ter being rapidly tapered off his psychotropic medication by the jail medical staff, complaining of seizure-like symptoms, and being placed in an isolated jail cell for seven hours, he was found dead. The administrator of his estate, Plaintiff- Appellant Lisa King, has pursued this civil suit against La Crosse County and various individual employees of the County for over four years. In the course of this long litiga- tion, our court has already once ruled on an appeal concern- ing the propriety of summary judgment. We held that a genuine issue of material fact existed as to whether the County and jail nurse Sue Kramer were liable for John King’s death, viewed through the deliberate indifference lens of the Fourteenth and Eighth Amendments, and re- manded the case for further proceedings. King v. Kramer , 680 F.3d 1013 (7th Cir. 2012) (“ King I ”).
In June of 2012, the case was returned to the district court for trial. Six weeks before the trial date, after what appears to have been an unsuccessful settlement discussion, King’s counsel asserted in a letter to Defendant-Appellees that the correct standard to be used for the jury instructions in the upcoming trial was one of objective reasonableness, not the deliberate indifference standard that had been used by both parties thus far in the pleadings, the summary judgment briefing, the subsequent appeal, and the recent pretrial preparations. Plaintiff-Appellant’s assertion was correct as a matter of law, but shortly after receiving the letter, Defend- ant-Appellees filed a motion in limine arguing that King should be precluded from arguing the applicability of the objective reasonableness standard because of her tardiness in asserting the argument. The district court agreed with De- fendant-Appellees and ordered that the case be tried as scheduled under the deliberate indifference standard.
King appeals the district court’s use of the deliberate in- difference standard, instead of the objective reasonableness standard, in the jury instructions and verdict form. We find that King’s long, unexplained delay in asserting the correct standard is puzzling and problematic, but that the district court abused its discretion by failing to provide a sufficient explanation of how the Defendant-Appellees would suffer prejudice as a result of this delay. We therefore reverse and remand to the district court for a new trial.
I
We discussed the tragic circumstances surrounding Mr.
King’s death at length in
King I
,
On November 27, 2012, King’s counsel emailed Defend-
ants’ counsel, stating that he wished to inform them of a
“development in the law.” King’s counsel cited
Ortiz v. City
of Chicago
,
On December 14, Defendant-Appellees filed a motion in limine to preclude King from amending the complaint or ar- guing the applicability of the Fourth Amendment objective reasonableness standard. Defendants argued that King was attempting to “add an entirely new claim with an entirely different legal standard four weeks prior to the start of trial.” They asserted that the law had been clear three years before Plaintiff-Appellant filed her case, and that the new standard would unfairly prejudice the Defendant-Appellees, whose experts had all reviewed the case under the deliberate indif- ference standard. They argued that they would need “a sub- stantial amount of time” for their experts to address the new claim and in order to re-depose King’s experts. Plaintiff- Appellant’s response focused on the fact that objective rea- sonableness was the correct standard. King’s brief also cited law from our circuit stating that complaints need not identi- fy legal theories.
The parties conferred with the district judge to discuss the motion in limine, and other matters preparatory to the upcoming trial . There is no record of the meeting, and at oral argument before our court the parties recollected several de- tails differently, including whether either party requested to continue the trial so the parties could grapple with the cor- rect constitutional standard, and whether the judge was amenable to continuance. In any case, there was no paper filed by either party after this meeting requesting a continu- ance, or objecting to the trial proceeding on the scheduled date, January 14, 2013.
In its written opinion granting the motion in limine, the district court noted that the parties had proceeded on the de- liberate indifference theory at summary judgment and on appeal to our court, and determined that this conduct consti- tuted waiver. See Order at 6 (W.D. Wis. Jan. 9, 2013), ECF No. 643 (“[P]laintiff waived any right to a Fourth Amend- ment claim premised on an objectively unreasonable stand- ard by failing to timely pursue such a claim.”). The district court therefore allowed only a limited amendment: Plaintiff- Appellant was allowed to proceed under the Fourth Amendment, but was required to prove deliberate indiffer- ence under the more exacting Eighth and Fourteenth Amendment standards. In essence, the order required Plain- tiff-Appellant to try the case under the deliberate indiffer- ence standard, and this requirement was reflected in the lia- bility instructions, which asked the jury to evaluate whether Kramer was “deliberately indifferent to King’s serious medi- cal need.” After the jury returned a verdict finding Kramer was not deliberately indifferent, King filed a timely appeal. The appeal presents the question of whether the district court erred in denying Plaintiff-Appellant’s requested Fourth Amendment jury instructions. [1]
II
In granting Defendant-Appellees’ motion in limine to preclude Plaintiff-Appellant from arguing the applicability of the Fourth Amendment, the district court stated that Plaintiff-Appellant had waived her Fourth Amendment claim. Slip Op. at 6 (W.D. Wis. Jan. 9, 2013), ECF No. 643 (“[P]laintiff waived any right to a Fourth Amendment claim premised on an objectively unreasonable standard by failing to timely pursue such a claim. The court will not allow such a significant shift in plaintiff’s theory of recovery on the eve of trial after such a delay.”). The court repeated its finding of waiver in addressing Plaintiff-Appellant’s post-verdict mo- tion to amend the jury’s verdict, stating that “[a]s in Williams v. Rodriguez , 509 F.3d 392, 403 (7th Cir. 2007), plaintiff waived any right to a Fourth Amendment claim premised on an objectively reasonable standard by failing to pursue such a claim on a timely basis.” Slip Op. at 5 (W.D. Wis. May 30, 2013), ECF No. 705.
What the court meant by waiver is difficult to define
sharply, in part because “waiver is a flexible concept with no
definite and rigid meaning” that is “generally defined as an
intentional relinquishment of a known right,” but which is
often construed as “an equitable principle used by courts to
avoid harsh results when a party has conducted itself in
such a way as to make those results unfair.”
Shearson Hayden
Stone, Inc. v. Leach
,
The posture here is unusual, and different from the
above-cited cases. While the district court ruled against
Plaintiff-Appellant in granting summary judgment, we re-
versed that decision and remanded for further proceedings
before the district court, re-opening the opportunity for the
Plaintiff-Appellant to present and preserve arguments for
appellate review. Plaintiff-Appellant’s ability to do so was
limited by the discretion of the district court—and the heart
of this matter concerns whether the district court’s discre-
tionary call in excluding the Fourth Amendment standard in
this case was correct. In reviewing the district court in a
“matter of equitable judgment and discretion,” we review
for abuse of discretion.
See Grochocinski v. Mayer Brown Rowe
& Maw, LLP
,
Here, we review the district court’s discretion in balanc-
ing several competing concerns. The district court was right-
ly concerned with case management. Our law on pretrial
case management underscores the principle that a district
court has the discretion to narrow and focus the operative
legal issues as the trial date closes in.
Cf. Exxon Shipping Co.
v. Baker
, 554 U.S. 471, 487 n.6 (2008) (“[L]itigation is a win-
nowing process, and the procedures for preserving or waiv-
ing issues are part of the machinery by which courts narrow
what remains to be decided.”) (citation and internal quota-
tion marks omitted). But the district court was also required
to consider our strong commitment to the idea that a plain-
tiff need not plead legal theories in her complaint.
See
,
e.g.
,
Rabe v. United Air Lines, Inc.
,
However, it is unquestionably true that the Plaintiff- Appellant allowed, and perhaps encouraged, the parties to construe her complaint as invoking a deliberate indifference claim. Regardless of whether the amendment to the plead- ings was necessary, it was not inappropriate for the district court to recognize that Plaintiff-Appellant’s introduction of the Fourth Amendment standard entailed a jump-shift. But even construing the Plaintiff-Appellant’s move as a major change in her legal theory, the district court was faced with our law that permits flexibility for a plaintiff to adjust her legal theory over the course of litigation. See , e.g. , Fed. R. Civ. P. 15(a)(2) (stating that a court “should freely give leave” for a party to amend its pleadings “when justice so requires”); Fed. R. Civ. P. 15(b)(1) (stating that “[t]he court should freely permit an amendment” to the pleadings, based on a trial ob- jection that “evidence is not within the issues raised in the pleadings … when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evi- dence would prejudice that party’s action or defense on the merits”); United States v. Sec. Pac. Bus. Credit, Inc. , 956 F.2d 703, 707–08 (7th Cir. 1992) (“[A]mendments to complaints are liberally allowed under the Federal Rules of Civil Proce- dure up to and even after trial, judgment, and appeal, in cas- es in which there is no harm to the defendant from the tardy amendment.”). Underscoring the importance of this flexibil- ity, the district court is not unfettered in its discretion to re- fuse such changes. Foman v. Davis , 371 U.S. 178, 182 (1962) (“[T]he grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Fed- eral Rules.”). So in examining whether the district court abused its discretion in granting Defendant-Appellees’ mo- tion in limine, we review the court’s balancing of the equities to each of the parties—whether a sufficient “justifying rea- son” was stated for the bar of Plaintiff-Appellant’s Fourth Amendment claim, despite our liberal pleading and amendment practices.
When a district court makes discretionary decisions of
this nature, we do not always require the court to explicitly
balance the equities to each of the parties. For example, we
have before noted that where allowing a significant late
amendment causes “apparent” delay and prejudice, a dis-
trict court does not err in not stating that reasoning outright.
See Sanders v. Venture Stores, Inc.
,
A district court that gives “insufficient reasons” for its equitable decision abuses its discretion. See Dubicz v. Com- monwealth Edison Co. , 377 F.3d 787, 792–93 (7th Cir. 2004) (holding that a district court abuses its discretion in denying a motion to amend when “the [opposing party’s] case for prejudice is stated … only in the most conclusory of terms,” and no “particular witnesses or documents are identified” to support the argument that a delay would prejudice a party). Equities that may be considered include “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously al- lowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Foman , 371 U.S. at 182. But where Defendants would “not [be] prejudiced in any legally relevant sense by the court’s amendment,” and “[t]he equities … weigh heavily in favor of the [movant],” a court should exercise its discretion to al- low an amendment. Matter of Delagrange , 820 F.2d 229, 233 (7th Cir. 1987).
We do not deny that the delay in asserting the correct standard was substantial: it is well-documented that that Plaintiff-Appellant single-mindedly pursued only the more rigorous standard of deliberate indifference until her letter six weeks before trial. [2] No good reason was given to the dis- trict court, or indeed at oral argument before our court, for why the Plaintiff-Appellant waited so long to bring our court’s Fourth Amendment jurisprudence to the fore. [3] But as we have stated, delay in itself does not constitute a sufficient basis for a district court’s equitable decision. See George v. Kraft Foods Global, Inc. , 641 F.3d 786, 789–91 (7th Cir. 2011) (“[D]elay alone is not a reason to deny a proposed amend- ment, and that delay must be coupled with some other rea- son, such as prejudice to the defendants.”). There must be more, especially in a situation like the one at hand, where grave inequity may result from the district court’s decision: the trial of the case under a more demanding, incorrect legal standard, when the correct legal standard is known to the district court. See Slip Op. at 5 (W.D. Wis. Jan. 9, 2013), ECF No. 643 (“The law is clear that the ‘Fourth Amendment gov- erns the period of confinement between … arrest without a warrant and the preliminary hearing at which a determina- tion of probable cause is made, while due process regulates the period of confinement after the initial determination of probable cause.’”) (quoting Lopez v. City of Chicago , 464 F.3d 711, 719 (7th Cir. 2006)). It is an extraordinary sanction in- deed to require that a case be tried under the incorrect legal standard, when all parties and the court are aware of the correct standard.
It does not fall on us today to define the set of improba- ble circumstances under which such a sanction may be mer- ited. But our review of the record and the Defendant- Appellees’ submissions leaves us with the firm conviction that the present case was not an instance where the shift to the correct standard would have been sufficiently “signifi- cant” or prejudicial to the defendants to merit such a sanc- pretrial stages, Defendant-Appellees also failed to appreciate the signifi- cance of King’s status as a pre-trial detainee awaiting a probable cause hearing, and to raise the correct governing law in our circuit. tion, and that it was “fundamentally wrong” of the district court to disallow this change. It appears to us that there would have been no great cost to amending the jury instruc- tions (which had not yet been finalized), or instructing the experts and witnesses to cabin their testimony to their opin- ions on the objective, accepted standard of professional con- duct—as we will see, the very testimony that the experts were permitted to make at trial under the law of our circuit. The district court’s two opinions on this question—once in response to the motion in limine, once in response to Plain- tiff’s post-verdict motion—proffer no specific weighing of the equities to change our analysis. The court determined that the Fourth Amendment argument had been waived by the Plaintiff-Appellant’s delay in raising the correct stand- ard. While we can certainly appreciate why the district court considered delay as a factor in deciding whether a change in legal theory should be allowed, there is no reason why delay should have been the sole factor considered, or the weighti- est. The district court expressed abstract concerns that the plaintiff’s shift would “prejudice the opposing side” and “derail the case from its trial track.” Slip Op. at 5 (W.D. Wis. May 30, 2013), ECF No. 705. However, by contrast to the clear disadvantage to the Plaintiff-Appellant that would re- sult from going to trial under the deliberate indifference standard, the district court never explained in concrete terms why a shift to the correct objective reasonableness standard would be prejudicial and disadvantageous to the defend- ants.
The Defendant-Appellees’ submissions to us and to the district court are also vague in elaborating on the inequities of disallowing an amended theory. We do not find compel- ling Defendant-Appellees’ argument about the inequity that *15 15 would result from allowing the remaining defendants to be tried under the objective reasonableness theory after several defendants were dismissed in King I by prevailing on the de- liberate indifference standard. Perhaps this would be a per- suasive argument if the Plaintiff-Appellant had tried to re- vive her claims against the dismissed parties on the basis of her change in theory—but King did not, and does not, make any such attempt. They also state that the shift in the legal standard would require Defendant-Appellees to expend a “substantial amount of additional time” so that their experts could address the new legal standard, and that Plaintiff- Appellant’s experts would have to be re-deposed. But no de- tail was provided about what experts would need this deep- er study and why, or which of the Plaintiff-Appellant’s ex- perts require additional deposition. The vagueness of the Defendant-Appellees’ claim of prejudice is curious, given that expert discovery had concluded well before Plaintiff- Appellant’s November 27 letter. Defendant-Appellees could have explained specifically which of their experts would need additional preparation, and which of King’s experts would need to be re-deposed, and on what grounds. These questions were clearly on the parties’ minds, as the issue of whether particular experts and witnesses could testify on the standard of care was hotly disputed by the parties even prior to the summary judgment decision, [4] and certainly in the lead-up to trial. [5]
But we are ultimately unpersuaded that the change in the governing legal standard would have required the experts’ testimony to change, or that the experts’ preexisting prepara- tion under the Eighth Amendment standard would have hobbled their testimony under a Fourth Amendment stand- ard. As the district court concluded in an order determining an expert’s permissible scope of testimony, experts could not testify as to the subjective element of what Nurse Kramer “ should have known,” but they could testify as to what “the from testifying that Kramer and Anderson were deliberately indifferent for failing to take and/or record King's vital signs after 10:00 a.m. on April 18, 2007 (May 3, 2011), ECF No. 164; Motion in Limine to preclude Robert Greifinger, MD from offering any opinion that the alleged denial of King's asthma medication and/or inhalers by Sue Kramer constituted deliberate indifference (May 3, 2011), ECF No. 165; Motion in Limine to preclude nursing students from offering standard of care opinions re- garding Sue Kramer's actions on April 18, 2007 (May 3, 2011), ECF No. 175; Supplemental Motion in Limine to preclude Robert Stuart, MD from testifying that Sue Kramer and Karen Anderson were deliberately indif- ferent (May 4, 2011), ECF No. 181. See Motion in Limine to exclude opinion evidence of Jacqueline Moore
on deliberate indifference (Dec. 14, 2012), ECF No. 404; Motion in Limine to preclude Dr. Greifinger from offering any opinion that Kramer was deliberately indifferent relative to failing to take or record vital signs af- ter 10 AM (Dec. 14, 2012), ECF No. 440; Motion in Limine to preclude Dr. Greifinger from offering any opinion that alleged denial of asthma medi- cation or inhalers constitutes deliberate indifference (Dec. 14, 2012), ECF No. 441; Motion in Limine to preclude standard of care opinions of nurs- ing students and opinions as to additional assessments (Dec. 14, 2012), ECF No. 451; Motion in Limine to preclude Dr. Stuart from opining that Kramer was deliberately indifferent to King's serious medical need (Dec. 14, 2012), ECF No. 455; Motion in Limine to preclude testimony by Dr. Greifinger as to training of officers, deliberate indifference of the officers, violation of county policies and violation of state and federal standards (Dec. 14, 2012), ECF No. 485.
jury could
infer
a nurse with Kramer’s background and ex-
perience in correctional health care
would
have known,”
—
in
other words, the objective element of whether Kramer’s ac-
tions constituted a departure from established professional
standards of conduct. Order at 7 (W.D. Wis. Dec. 11, 2012),
ECF No. 384. Under the law of our circuit, they were limited
to this testimony because “Rules 702 and 704 [of the Federal
Rules of Evidence] prohibit experts from offering opinions
about legal issues that will determine the outcome of a case.”
Roundy’s Inc. v. N.L.R.B.
,
Furthermore, the experts’ opinions regarding the objec- tive element of the deliberate indifference inquiry would have been just as helpful in resolving the question of wheth- er Kramer had been objectively reasonable in her conduct. “Examples of behavior that does (and does not) constitute deliberate indifference are relevant in assessing the scope of clearly established law and, therefore, are relevant in deter- mining whether the defendants’ actions were objectively reasonable.” Thompson v. Upshur Cnty., Tex. , 245 F.3d 447, 459 (5th Cir. 2001) (citation omitted). Plaintiff-Appellant’s assertion that the experts’ testimony under either standard would have been identical was borne out by the actual tes- timony at the trial, in which none of the witnesses, including the nine experts, used the phrase “deliberate indifference”; the only individuals who uttered that phrase were the attor- neys and the court.
A party’s attempted jump-shift in legal theory on the brink of trial is certainly not a vested right. As we have stat- ed, it is within a district court’s discretion to deny such a change where significant prejudice or harm would accrue to the non-movant, and equities in favor of the movant do not compel the change. Here, the record provides no elaboration from the district court or the Defendant-Appellees of what actual, specific prejudice would have resulted to the Defend- ant-Appellees in defending against the correct Fourth Amendment standard. And in scrutinizing the record, we are unable to find compelling equities that would have justi- fied the district court’s decision to go to trial under the in- correct standard. In the absence of such countervailing equi- ties, we are not convinced by the district court’s statement that going to trial under the deliberate indifference standard while “recogniz[ing] plaintiff’s claim under the Fourth Amendment” was “the only way to allow plaintiff to pro- ceed on her claim without unduly prejudicing defendants with a last-minute, significant shift in plaintiff’s theory of recovery at trial.” Order at 4 (W.D. Wis. May 30, 2013), ECF No. 705. Indeed, it is unclear what it means to allow a plain- tiff to proceed with a Fourth Amendment claim, but only under an Eighth Amendment standard. The fact that more intermediate measures were available to the district court— such as granting a continuance to allow the Defendant- Appellees to retool their defense, or conditioning the grant to amend the legal theory on the Plaintiff-Appellant’s pay- ment of any additional discovery costs—bolster our conclu- sion. See Estes v. Ky. Utils. Co. , 636 F.2d 1131, 1134 (6th Cir. 1980) (“This is not to say, however, that disallowance of the amendment is the only course open to a district court faced with such a motion. The scope of the district court's discre- tion in this area is broad, and in a proper case conditions may be imposed on the party seeking the amendment; for example, costs of preparing for litigation could be imposed on the party who asserts a valid, but untimely, dispositive [legal theory].”); 6 Charles Alan Wright et al., Federal Practice and Procedure § 1486 (3d ed.) (“If the party opposing the amendment can be protected by the use of conditions from any possible prejudice that might result from the untimeli- ness of the amendment, there is no justifiable reason for not allowing it.”). Had the Plaintiff-Appellant refused these or comparable ameliorating measures, perhaps the district court would have been entitled to deny leave to amend the theory. See Campania Mgmt. Co. v. Rooks, Pitts & Poust , 290 F.3d 843, 849 (7th Cir. 2002) (“A trial court may deny leave to amend when the amendment would cause the opposing par- ty to bear additional discovery costs litigating a new issue and the moving party does not offer to reimburse the non- moving party for its expenses.”).
Lastly, we note that we cannot find anything in the rec-
ord to suggest that King or her counsel “acted willfully, de-
liberately, [or] in bad faith” in waiting until late in the litiga-
tion to request an amendment of their legal theory.
Cf. Salata
,
For these reasons, we find that the district court abused its discretion in ordering that the case be tried under the in- correct Eighth Amendment standard. We therefore reverse, and direct that the motion for a new trial be granted.
III
Plaintiff-Appellant raises two other arguments, both of which are unsuccessful and only deserving of our quick con- sideration.
First, Plaintiff-Appellant argues that the district court
should have taken judicial notice of the contract between La
Crosse County and Health Professionals, Ltd. (“HPL”), to
conclude as a matter of law that the County had delegated
final decision-making authority over inmate health decisions
to HPL. This argument is extrapolated from a statement in
King I
, where we stated that “[t]he County’s express policies
as embodied in the contract show that the County delegated
to HPL final authority to make decisions about inmates’
medical care.”
King
,
“We review the district court’s refusal to take judicial no-
tice of proffered materials for an abuse of discretion.”
Craw-
ford v. Countrywide Home Loans, Inc.
, 647 F.3d 642, 649 (7th
Cir. 2011). Here, we easily conclude that the district court
did not abuse its discretion in refusing to take judicial notice
of the HPL contract. The district court correctly concluded
that Plaintiff-Appellant’s legal argument was not the proper
kind of fact that may be judicially noticed under Federal
Rule of Evidence 201(b).
See Gen. Elec. Capital Corp. v. Lease
Resolution Corp.
,
Plaintiff-Appellant also urges us to reverse on the basis
of the district court’s decision to exclude the indemnification
agreement between the County and HPL. King argues that
the indemnification agreement was admissible as evidence
that the County delegated final decision-making authority to
HPL. Under Federal Rule of Evidence 411, when the “para-
mount question before the jury [i]s one of negligence, evi-
dence of [liability] insurance” is not admissible “absent a
showing on the part of [the Plaintiff-Appellant] that [she]
intended to use the information for some alternate purpose
set forth in the second sentence of Rule 411,” such as “proof
of agency, ownership, or control, or bias or prejudice of a
witness.”
King v. Harrington
,
IV
For the foregoing reasons, we R EVERSE the judgment of the district court and R EMAND this case for further proceed- ings consistent with this opinion.
Notes
[1] Plaintiff-Appellant also appeals two peripheral issues: whether the court abused its discretion in refusing to take judicial notice of a contract between the County and a private health provider, and whether the dis- trict court correctly excluded an indemnification agreement between those two parties.
[2] The Plaintiff-Appellant entered numerous filings premised upon the incorrect deliberate indifference standard. See Complaint at 1, King v. Kramer, No. 10 CV 123 (Mar. 10, 2010), ECF No. 1; Joint Preliminary Pre- Trial Report and Discovery Plan at 1, 2 (Jun. 7, 2010), ECF No. 18; King’s amended complaint, First Amended Complaint at 1, 3, 4, 7, 16, 17 (Jul. 30, 2010), ECF No. 21; Plaintiff’s Brief in Opposition to Olson, Koby-Gobel, and La Crosse County’s Motion for Summary Judgment at 22–27 (Feb. 4, 2011), ECF No. 71; Plaintiff’s Brief in Opposition to Kramer and Mondry- Anderson’s Motion for Summary Judgment at 1, 3, 12 (Feb. 4, 2011), ECF No. 73; Brief in Support of Motions in Limine of Plaintiff to Exclude Cer- tain Testimony and Admit Other Testimony at 1–2, 4 (May 2, 2011), ECF No. 142; Plaintiff’s Proposed Jury Instructions—Liability at 2, 4, 5, 7, 9, 13, 15, 16, 18 (May 13, 2011), ECF No. 206; Plaintiff’s Proposed Special Verdict on Liability at 2–3 (May 13, 2011), ECF No. 209; Brief of Plaintiff- Appellant at 2–4, 30–34, 39–40, King v. Kramer, 680 F.3d 1013 (7th Cir. Aug. 5, 2011), ECF No. 8; Reply Brief of Plaintiff-Appellant at 2–3, 6–9, 20–21 (7th Cir. Sep. 20, 2011), ECF No. 19.
[3] On the other hand, as we note above, the Plaintiff-Appellant did re- peatedly plead the fact that King was a pretrial detainee awaiting his Gerstein hearing. We also note that it was not just Plaintiff’s counsel who failed to raise the applicable Fourth Amendment jurisprudence until six weeks prior to trial; in their numerous challenges to Plaintiff’s suit in the
[4] See, e.g. , Motion in Limine to bar plaintiff’s expert, Robert Greifinger, from rendering opinions regarding deliberate indifference or that train- ing of La Crosse County jail officers was deficient (May 3, 2011), ECF No. 157; Motion in Limine to strike Robert Griefinger’s standard of care opin- ion that Kramer and Anderson were deliberately indifferent (May 3, 2011), ECF No. 162; Motion in Limine to preclude Robert Greifinger, MD