health care this court and their families don't have a right to receive perfect health care and an incarcerated prisoner has no such right on the other hand refusing to provide an incarcerated inmate certain for necessary services does jeopardize in violate an inmate's constitutional rights not be sure that simply denying him in made up tylenol when he wants it doesn't mean that you you're guilty of deliberate indifference but luckily in this case we're not dealing with any of that because the jury heard testimony a day and a half and the jury decided that mr beard's constitutional rights had been denied eight deferred healthcare providers had referred him out for services and wexford the only defended in the case had denied his outside referral i'm here very briefly because i think it's important now is the time for this court to clarify and unequivocally rule that village of forest park persis kandor is no longer a political coun why does the answer to that issue after since you persuaded the jury and the district judge with wexford use directly by oh why would it matter whether it could be vicariously liable as well well i think that our argument is is had we've been allowed to present that issue to the jury it is certainly conceivable that we would have gotten a higher verdict was because i would have been able to been denied this and subsequently he did go for surgery but because his surgery had not occurred at that time we had argued in front of the court and were successful on the on the equitable claim that  injunctive relief was necessary that he needed to have his surgery we were never able to put that in front of the jury so for example we didn't have a surgeon testified that well this guy now has some significant problems that we uncovered at surgery and that results in his damages and i mean i shared judge easterbrook is concerned it let me jump since we were talking about the verdict what strikes me is the central question the jury this jury comes up with ten thousand dollars actual damages and after considering the various arguments the district court judge decides that a five to one ratio in this particular case is the correct ratio for punitive damages so instead of the jury's five hundred thousand dollar award for  orders fifty and so you've been given the opportunity for a new trial on punitive damages booklet really if there's a constitutional cap in terms of the ratio it would be an absurd action it seems to me for you to take that new trial i mean why why risk getting anything less than fifty thousand and fifty as the cap there you are so i'm trying to figure out first of all  have you argued anything about whether along the lines that you were just saying to us have you argued anything about whether the ten thousand was wrong whether the jury what worries me for the new trial with these ratios is that they are allowed to change only one of the two numbers in a ratio maybe you aren't giving a fair new trial so on a new trial should the jury be free even if five to one is the correct ratio to reexamine whether ten thousand is the correct measure of his damages and then turning it around the other way have you argued and i didn't wasn't clear that i saw this that the supreme court's cases whether state farm or other  cases are not so rigid as to say five to one so maybe on a new trial you'd be free to argue ten to one you'd be free to argue seven to one you'd be free to argue something those are the kinds of arguments that i guess i would have been looking for sure we did for you in state farm in this in so far as they said they have three frame from imposing a bright line ratio right but it seemed like the district court got caught up on well this isn't a remit or this is just a constitutionally required reduction in an award that the court found to be unconstitutional because it was ten thousand  compensatory and five hundred thousand i think the argument though on the new trial and why was it only ten thousand i think we tried to streamline the trial very quickly it was a day and a half trial but one of the issues is the inmate had not actually gone for his surgery yet now he has now he did after the court granted our injective relief from the patients had surgery we did incur damages should we think at a new trial he would be able to prove that the ten thousand was suffered much more than ten thousand dollars so was it a problem that you didn't get enough discovery or me i can see that once you've had the operation this is no evidence but  trying i'm just trying to get a handle on these this interesting set of situations where the trial judge produces an award sometimes the trial judge will reduce an award because there's  statutory cap sometimes a trial judge as this judge said will reduce an award of punitive damages because the supreme court has had a certain amount to say about due process and punitive damages and in that sense the judge was persuaded that the ordinary rules for a minute are don't apply this was an evidentiary he's at least what the judge said is this was not an evidentiary basis rejection that's correct actually it also says the reason he thought five to one was the right amount on the evidence so yeah it was confusing to me there was contradictory evidence because he said no this is a constitutional maximum not based on anything in the in the evidence that's what i saw and the opinion is there any non constitutional argument about punitive damages in the district court it seems very strange for a federal court to start with a constitutional question rather than asking what the maximum recovery under nine hundred eighty three it's self is why i think raised in the district court i think support i just be blunt i believe that the court is worried about me why answer to my question is either yes or no and then you can know meanwhile you think i ask to know what i do know what i am but no no all right doesn't that strike you as as odd  in which the supreme court says do not start with constitutional questions start with statutory questions the supreme court held in the exxon valdez case exxon shipping against baker that the maximum ratio people is one to one as a matter of federal law and i wonder whether that isn't equally true about nine hundred eighty three all these constitutional cases deal with state law awards and states as a matter of their domestic law can have what law they want subject to federal constitutional constraints but nine hundred eighty three safin rule rule we have to figure out what it means my answer was no i don't think so i don't believe selwyn in my opinion trying to get inside the judge's head is i'm not asking anything about the judges i'm asking about whether the parties made any non  constitutional argument about the amount of punitive damages yet you have treated this on appeal both sides as if this were an award under state moral where federal law was setting the care but it's not an award under state we have to figure out what the proper award is a matter of federal use right well we argued that it should be a punishment we argued that because  the prisoner being a captive audience that he can't go anywhere else very sensually i mean to embellish your argument the parties assume i'm looking at one part of the judge s decision this is a district court judge's decision the parties assume that the same criteria that are used in these state cases match reasonably well a body of law that borrows quite a bit anyway from state tort law  hundred three and i just want to go back to page thirteen of one of the district judges opinions he's looking at the facts when he picks five to one he says it better matches the reprehensible idiot what's for its conduct the actual harm suffered by plaintiff in the need for deterrence and punishment so at least reprehensive billet he an actual harm sound to me like facts like i'm looking at this record in this is what you did here and maybe in another records not that they hate or anything it's just that something happened here so i guess i am thinking about the whole notion about whether one can handle this as though it's in a fact free zone doesn't seem to be  i don't i think it was fact free but we're stuck with what the judge set i bet it wasn't based on if seventh amendment argument is affected by whether it's facts or not that's that's correct it seems like the judge went and looked at whether or not it was reprehensible or not and then our argument of course is that if there is going to be a remit dirge then he'd be inmate has a seventh amendment right to a new trial on your starting with the constitution sure adversary did and i am interested in whether that is appropriate the supreme court says that constitutional issues are reached only after non constitutional grams of decision have been resolved so what is the maximum award as a matter of statutory law under nine hundred eighty three i've mentioned the assume that the jury can do anything it pleases subject only to the constitution because the illinois supreme i'm sorry the united states supreme court has been in the campbell case expressed its concern about the arbitrariness of punitive damage awards but where did the supreme court say that in one thousand nine hundred eighty three cases any amount of punitive damages greater than the amount of compensatory damages is appropriate cases the parties are signing arose under state tort law except of course exxon valdez which the parties didn't cite that's the only decision under federal tort law of which i'm aware in which the supreme court asked the question as a matter of federal law what is the maximum permissible amount of punitive damages i am not aware of any max cap on the maximum amount of punitive damages under federal law yes i've just made you aware of one you were not aware of the exxon case previously but in fact that's what the supreme court is hell and it is never held any other number under any other front a federal law that's just the world we live in we're having fun let's just side you know what the ratio is and it was very consciously wearing that hat as a common law court that they came up with the rule that there had to be a one to one ratio so you can eight have been understood now we do know that the supreme court says for statutes of limitations for example we borrow from state law for nine hundred eighty three cases so you know well i'm sure  illinois it's going to be two years in wisconsin's can be six years in other states is going to be whatever number of years so this sort of another question do you think the supreme court would borrow here from state law which would take you back into the line of cases that you're talking about or do you think one of the three criteria for establishing the cap on punitive damages is the difference between the punitive damages awarded by the jury and civil penalties authorized or imposed in comparable cases that's precisely what the district court did in this case the go go to big list of cases but it seems to me you could create an equally long list of cases where ratios up to you know eight nine or ten to one where you cited i don't  dollars work to mean that again this is something that that's it within the court's discretion but well it's that's where i want to get back to my seventh amendment point to the extent this is just a pure question of law i'm willing to buy the proposition that that doesn't implicate the seventh amendment but to the extent we're talking about something that depends on the jury's evaluation of the facts in front of it how reprehensible was the conduct how  serious was the harm then that starts to sound like findings of fact by a jury and the kind of thing that the remit iter process ought to work for and i'm especially worried if we are in this world ratios of fiddling with only one side of the ratio and it's a risk by the way for mr beard for all i know a new jury would decide that his actual damages weren't ten thousand dollars after all they were just seven thousand dollars which would then create a whole cascade of consequences that he didn't like maybe a new jury would think it was fifteen maybe you would think it was ten on the button again i don't know but a full new trial is not risk free for any  i think the question we're dealing with here is at what point do we depart from the suggested suggested single dish it digit ratio and i'm just saying there are a lot of single digits left over after five in th on the list and it may not be in there but that's why i'm worried about even if there were a new trial scenario number one new trial five to one ratio is etched in stone  and no sane plaintiff would do that scenario number two new trial is this may be a case if you've looked at it where one of the other available single digits is that is the correct ratio depending on the facts that are present at the new trial maybe n saying that citing a bunch of cases is is a risky way to go about this well it's something that's called for by the supreme court required him to to list these cases but he didn't have the on the other hand there was the bed bug case or you know he matter of fact absolutely reasonable thirty seven to one for that case i believe was the original well and one of the key factors in the matthias case is that the plaintiffs completely eliminated any possibility of an innocent explanation and that was the key factor that the district court found was a reason to depart from the single digit ratio in that case that thirty seven to one ratio did not violate due process because the behavior was not only completely it reprehensible but there was absolutely no evidence that they could put up to support their conduct an investigation the jury clearly thought here to any not be the same level of gross notices thinking that you went to a hotel with a lot of bed bugs but for him that was a serious issue i'm not going to re argue the facts of the case i believe that the jury saw the we are not contesting the ruling that the there was sufficient evidence for a finding of deliberate indifference and finding a punitive damages however when you look at the district court noted that there was evidence supporting the defendant's case and i'd like to point out just one just one fact two years after his initial complaint of pain he went to an outside podiatrist not a prison podiatrist outside referral and you know what that  he prescribed a ball conservative measures conservative measures and the plaintiff's attorney said i agree with that treatment choice now the m r i that revealed the tear in his achilles tendon that didn't come from an outside referral the prison doctors made that referral that's what that's now they discovered it the collegial reviews turned down his request for surgical refuse referral because they said th use surgical procedure doesn't always work plaintiff's expert agreed with that moreover the plaintiff's expert stated he said in my opinion his prognosis following surgery would be good however in his deposition he said i really have no idea what that his prognosis would be now those are just a for a small sampling of facts here but they indicate that there is some unlike mathias there is some evidence suggesting that this may have been just mere negligence that perhaps the jurors are really arguing the evidence i'm telling you the jury didn't see it that way or understand but in the end and it's a jury verdict so whatever we're to think of the case without accepting their number they have told us on ambiguously that they don't think that the care was anything but deliberately indifferent and getting back to justice easterbrook question is there any cap on reading from that number i'm not saying that anybody thinks that the number had some sacrosanct status other than that and i would respond that a fifty thousand dollar award of punitive damages sends a very or there's been a number of cases that are suggestive that we the court should not take into account the the status of the company there should not be a thumb on the scale of justice against large corporations sort of th scales of justice we're talking about deterrence and you know if i find you six dollars you know for doing something you might think ok you know final pay six dollars if i find you six hundred thousand dollars you'd probably get your attention much more fifty thousand plaintiffs only retain the expert gave a clean bill of health for the first couple of years of treatment conservative treatment your honor i find that the judge made a reasonable decision he looked at  comparable cases which he's required to do and he also looked at the fact that unlike the mathias case there were some there was some evidence suggesting that the medical decisions were not entirely wrong now the jury has spoken on that we're not contesting the jury's verdict you are trying to use this as a yeah it's just not a fact i'm sure it has relevance i realized the district judge said that it may be that he was talking about something that's not a relevant factor i consider it highly relevant just as i consider it highly relevant and matthias that the plaintiff completely eliminated any possibility of  that there was no explanation for what they did here at least we had something i'm not saying it was enough to prevent a verdict against us but there was something there no further questions thank you ok thank you