In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-1763

DONALD E. BEARD, JR.,

Plaintiff-Appellant,

v.

WEXFORD HEALTH SOURCES, INC.,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Central District of Illinois.

No. 11-CV-3360 — Colin Stirling Bruce, Judge.

____________________

ARGUED OCTOBER 30, 2017 — DECIDED AUGUST 21, 2018

____________________

Before WOOD, Chief Judge, and BAUER and EASTERBROOK,

Circuit Judges.

EASTERBROOK, Circuit Judge. Wexford Health Sources 

provides medical care to inmates in Illinois’s prisons. Donald Beard, Jr., an inmate, experiences chronic ankle pain. In 

December 2010 he consulted with his prison’s doctors about 

managing his condition. Beard wanted surgery, but the doctors ordered conservative treatment. When Beard’s pain persisted, the doctors considered referring Beard for surgical 
2 No. 16-1763

evaluation, a step that requires Wexford’s approval. It rejected the doctors’ requests for surgical evaluation, though it 

authorized Beard to see a podiatrist in September 2012 and 

an orthopedist in January 2015.

Beard filed a pro se complaint in September 2011. He alleged that members of the prison’s medical staff and administrative team were deliberately indifferent to his serious 

medical need in violation of the Eighth Amendment (applied 

to the states through the Fourteenth), and he sought damages plus injunctive relief. The district court recruited counsel, 

who added Wexford as a defendant and stipulated to the 

dismissal of the individual defendants. Beard presented his 

case against Wexford to a jury, which awarded him $10,000 

in compensatory damages and $500,000 in punitive damages.

Wexford persuaded the judge that the punitive-damages 

award violates the Fourteenth Amendment’s prohibition on 

excessive or arbitrary punishment. The judge reduced punitive damages to $50,000. Initially he offered Beard a choice 

between retrying the issue of punitive damages and accepting the reduced award but later withdrew the option and 

entered a judgment that awarded only $50,000 in punitive 

damages (plus the jury’s compensatory award).

Beard’s first argument on appeal is that the district court 

improperly prevented him from presenting an additional 

theory of liability. Beard convinced the jury to find Wexford 

directly liable; he contends that he should have been allowed 

to argue that Wexford also is vicariously liable for its doctors’ 

violations of his constitutional rights. Beard maintains that

Iskander v. Forest Park, 690 F.2d 126 (7th Cir. 1982), which 
No. 16-1763 3

stopped him from pursuing vicarious liability, should be 

overruled.

Monell v. Department of Social Services, 436 U.S. 658 (1978), 

holds that a municipal corporation cannot be vicariously liable if its employees deprive others of their civil rights. Iskander treats private corporations the same way, when their 

liability depends on performing governmental functions. 

Beard maintains that Monell should be limited to governmental litigants. But Beard has not explained how Iskander

harmed him. We asked Beard’s counsel what additional 

damages he would have sought if Wexford could be found 

vicariously liable. He did not point to any. So we need not 

decide whether Iskander should be overruled; anything we

say about the subject would be advisory.

Beard also contends that the district court erred in reducing the jury’s award of punitive damages without offering 

him a new trial. Punitive damages punish blameworthy behavior and deter defendants from committing future bad

acts—the more reprehensible a defendant’s conduct and the 

more easily a defendant can conceal violations, the higher 

the punitive damages. See, e.g., Zazú Designs v. L’Oréal, S.A., 

979 F.2d 499, 508 (7th Cir. 1992). But excessive punitivedamages awards violate the Due Process Clause. See, e.g., 

State Farm Mutual Automobile Insurance Co. v. Campbell, 538 

U.S. 408 (2003); BMW of North America, Inc. v. Gore, 517 U.S. 

559 (1996). The Justices have instructed courts to review 

whether an award of punitive damages exceeds the Due 

Process Clause’s bounds by considering the reprehensibility 

of the defendant’s conduct, the ratio between punitive and 

compensatory damages, and any civil penalties that punish 

similar behavior. See, e.g., BMW of North America, 517 U.S. at 
4 No. 16-1763

574–75. Applying these guideposts to the jury’s verdict, the 

district court concluded that an award of punitive damages 

equal to fifty times compensatory damages violates the Due 

Process Clause and must be reduced. The district court’s decision is consistent with the Supreme Court’s caution that

“few awards exceeding a single-digit ratio between punitive 

and compensatory damages, to a significant degree, will satisfy due process.” State Farm, 538 U.S. at 425.

So far, so good. But even taking the Court’s caution about 

single-digit ratios as a rule, the district court had nine single 

digits (and an infinite number of fractions) from which to 

choose. From these options, the court selected: five. It concluded that, because a ratio of five to one “better matches the 

reprehensibility of Wexford’s conduct, the actual harm suffered by [Beard], and the need for deterrence and punishment of Wexford”, a punitive-damages award in excess of 

$50,000 would offend the Due Process Clause. It also decided that the Seventh Amendment did not require it to offer 

Beard the option of a new trial before it entered judgment on 

the reduced award.

The decision to limit punitive damages to five times 

compensatory damages was arbitrary—why the district 

court chose a multiplier of five, rather than seven, or three, 

or nine and one-half, it did not say. But because the Justices 

have declined to reduce the relation between compensatory 

and punitive damages to a formula, any ratio the district 

court chose would have been arbitrary, though doubtless 

influenced by an appreciation of the case’s facts. See Mathias 

v. Accor Economy Lodging, Inc., 347 F.3d 672, 678 (7th Cir. 

2003). See also State Farm, 538 U.S. at 424–25; BMW of North 

America, 517 U.S. at 582–83. So the prudent course when a 
No. 16-1763 5

district court reduces a punitive-damages award is to offer 

the plaintiff a choice between the reduced award and a new 

trial, for the jury rather than the judge has the principal responsibility for factual evaluations. If the plaintiff opts for a

new trial, the jury plays its traditional role. And if the plaintiff accepts the reduced award—after all, there’s no guarantee that a second jury will award any punitive damages—

then the plaintiff has willingly forgone the jury option. Either way, the jury participates in the process of applying the 

law to the facts, cf. Pacific Mutual Life Insurance Co. v. Haslip, 

499 U.S. 1, 15–18 (1991), and the court plays its part by policing the range of constitutionally acceptable awards. See Mathias, 347 F.3d at 678.

Instead of following that course and offering Beard the 

option of a new trial, however, the district court entered an 

amended judgment awarding Beard exactly $50,000 in punitive damages. Doing so was a procedural misstep, which 

calls for a procedural solution: the district court’s judgment 

must be vacated and the case remanded for the court to offer 

Beard the option of a new trial on damages.

In remanding for the district court to follow prudent procedure, we do not decide whether the Seventh Amendment 

prohibited the court from unilaterally reducing Beard’s 

award on constitutional grounds. See, e.g., Ross v. Kansas 

City Power & Light Co., 293 F.3d 1041, 1049–50 (8th Cir. 2002); 

Johansen v. Combustion Engineering, Inc., 170 F.3d 1320, 1330–

33 (11th Cir. 1999). But see, e.g., Thomas v. iStar Financial, Inc., 

652 F.3d 141, 146–47 (2d Cir. 2011); Southern Union Co. v. Irvin, 563 F.3d 788, 792–93 & n.4 (9th Cir. 2009). The Justices 

have not resolved that issue, and the district court should 

not have addressed it either. Neither party asked the district 
6 No. 16-1763

court to decide whether the Seventh Amendment allows a 

judge to reduce punitive damages without offering a new 

trial as an alternative. The district court created a constitutional issue by taking a step neither party requested: though 

Beard and Wexford disputed whether Beard should have the 

option of a new trial on both compensatory and punitive 

damages, Wexford never asked the district court to reduce 

Beard’s award without offering him any choice at all. Courts 

must avoid unnecessary constitutional adjudication, see, e.g.,

Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 104–05 

(1944), and whether the Seventh Amendment prohibits a 

judge from reducing punitive damages on constitutional 

grounds without offering a new trial is a question the district 

court did not need to answer. Beard must be given the option of a new trial as a matter of sound procedure, not constitutional law.

If Beard chooses a new trial, the jury must be allowed to 

consider both compensatory and punitive damages. Cf. Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500

(1931). The constitutional limit on punitive damages depends on the reprehensibility of the defendant’s conduct and 

the ratio between compensatory and punitive damages. See, 

e.g., BMW of North America, 517 U.S. at 574–75. Because compensatory and punitive damages are correlated, they must 

be considered jointly. But a second jury need not reconsider

Wexford’s liability. Damages and liability present distinct 

issues, and the jury’s award does not suggest that it held 

Wexford liable based on passion or prejudice or otherwise 

disobeyed the district court’s instructions. See Cobige v. Chicago, 651 F.3d 780, 785 (7th Cir. 2011).
No. 16-1763 7

Though we remand to correct the district court’s procedural mistake, Beard asks that we also decide whether he is 

entitled to punitive damages exceeding five times the compensatory award. When a plaintiff challenges both the procedure and substance of a district court’s decision to reduce 

an award of punitive damages, procedural errors do not stop

us from evaluating whether the reduction was otherwise 

proper. See Adams v. Chicago, 798 F.3d 539 (7th Cir. 2015). See 

also Ash v. Georgia-Pacific Corp., 957 F.2d 432, 438 (7th Cir. 

1992). But in Adams the district court reduced the jury’s 

award because it lacked evidentiary support; the panel in 

Adams could evaluate the substance of the district court’s 

opinion without making a constitutional decision. That’s not 

true here: because the district court held that the jury’s 

award of punitive damages violated the Due Process Clause, 

reviewing the merits of the district court’s decision to cap 

punitive damages at five times compensatory damages 

would require unnecessary constitutional analysis, which is 

to be avoided. Spector Motor Service, 323 U.S. at 104–05.

And not only by us. The parties assume that only the 

Constitution limits a jury’s award of punitive damages. 

Their appellate briefs dispute whether the jury’s award violates the Due Process Clause and cite cases such as State 

Farm, BMW of North America, and Mathias. Yet because those

cases arose under state law the Constitution imposes the only federal restraint. Beard’s complaint arises under a federal 

statute. As a result, State Farm, BMW of North America, and 

Mathias matter only if the Due Process Clause is the least 

upper bound on an award of punitive damages under §1983. 

See Exxon Shipping Co. v. Baker, 554 U.S. 471, 501–03 (2008); 

Perez v. Z Frank Oldsmobile, Inc., 223 F.3d 617, 625 (7th Cir. 

2000).
8 No. 16-1763

The Supreme Court has not addressed whether there is a 

nonconstitutional limit on punitive-damages awards under 

§1983. But in Exxon Shipping it concluded that a jury’s award

of punitive damages in admiralty cannot exceed compensatory damages as a matter of federal law. The Justices derived 

the limit by taking the median of the ratio of compensatory 

to punitive damages in verdicts actually issued by juries. See 

554 U.S. at 512–14. Cases such as Smith v. Wade, 461 U.S. 30 

(1983), Howlett v. Rose, 496 U.S. 356 (1990), and BrowningFerris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 

257, 278 (1989), imply that, if there is a nonconstitutional limit on punitive damages in suits under §1983, it is also supplied by a uniform federal rule, not the law of the forum 

state. See, e.g., Wilson v. Garcia, 471 U.S. 261 (1985); United 

States v. Kimbell Foods, Inc., 440 U.S. 715 (1979). But none of 

these cases tells us how the limit should be derived.

Courts could follow the Supreme Court’s approach in 

admiralty and establish a nonconstitutional limit on punitive-damages awards under §1983 empirically. In Exxon 

Shipping, however, the Justices sat as “a common law court 

of last review”. 554 U.S. at 507. Section 1983 is a statute, so 

any nonconstitutional cap derived by courts also must respect the limits on punitive damages chosen by Congress. 

See Kunz v. DeFelice, 538 F.3d 667, 678–79 (7th Cir. 2008).

The text of §1983 does not mention punitive damages. So 

the Justices have looked to the common law to fashion rules 

for awarding punitive damages under §1983, just as they 

have looked to the common law to establish rules of absolute 

and qualified immunity. See Smith, 461 U.S. at 34. When 

§1983 was enacted in 1871, many states did not impose 

bright-line caps on punitive damages; juries had considera-
No. 16-1763 9

ble discretion in awarding them. See, e.g., Williamson v. 

Western Stage Co., 24 Iowa 171, 172 (1867); Schneider v. Hosier, 

21 Ohio St. 98, 113 (1871); Myers v. San Francisco, 42 Cal. 215, 

217 (1871). And because verdicts and written decisions often 

awarded total amounts rather than separating compensatory 

and punitive damages, see, e.g., Dalton v. Beers, 38 Conn. 529, 

531 (1871), it is difficult to determine at what point courts 

considered punitive-damages awards excessive. Nor does a 

single method of limiting punitive damages prevail among 

the states today. By our count (and with some simplifications), twenty-nine states impose a generally applicable cap 

on punitive damages. Some rely on ratios, see, e.g., Alaska 

Stat. §09.17.020(f) (ratio of 3 to 1); Colo. Rev. Stat. §13-21-

102(1)(a) (ratio of 1 to 1); and others on dollar caps or formulas, see, e.g., Va. Code §8.01-38.1 ($350,000 cap); Kan. Stat. 

§60-3701(e) (limit depends on defendant’s annual gross income); twenty-one states impose no generally applicable 

limit on punitive-damages awards. Fashioning a uniform 

federal rule from the states’ diverse approaches is not an attractive prospect. See Exxon Shipping, 554 U.S. at 509–11.

Because state law does not provide a clear limit that 

could be adopted as a matter of federal common law, courts 

could consider how other federal laws handle damages that 

exceed the compensatory amount. Congress has capped

supplemental awards at twice compensatory damages in antitrust (15 U.S.C. §15), racketeering (18 U.S.C. §1964(c)), and 

patent law (35 U.S.C. §284), and at compensatory damages 

for violations of the Fair Labor Standards Act (29 U.S.C. 

§216(b)). This might suggest that punitive-damages awards 

under §1983 also should be limited to treble damages or less.

We have not found any federal statute that authorizes a multiplier greater than three, though some statutes establish dol-
10 No. 16-1763

lar limits in lieu of multipliers. For example, 42 U.S.C. 

§1981a(b)(3) sets a limit for the combination of punitive and 

certain compensatory damages that runs from $50,000 to 

$300,000, depending on the defendant’s number of employees.

We need not choose which of these options is best. We 

raise the subject only to call attention to it so that statutory 

decisions precede constitutional adjudication. Both legal and 

factual issues are open on remand.

Because we vacate the judgment and remand for the district court to offer Beard the choice between a reduced punitive-damages award and a new trial limited to damages, we 

also vacate the award of attorney’s fees and costs. Until we 

know whether Beard prefers to take his chances on a new

trial (and, if he does, the measure of his success), saying anything about fees would be premature. See Hensley v. Eckerhart, 461 U.S. 424 (1983). Still, we remind the district court 

that any award of attorney’s fees must comply with Murphy 

v. Smith, 138 S. Ct. 784 (2018).

VACATED AND REMANDED