### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17-1603
A LFREDO M IRANDA , Administrator of Estate of Lyvita Gomes, Plaintiff-Appellant,

v.

C OUNTY OF L AKE , et al. , Defendants-Appellees

.

____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 C 4439 — Sharon Johnson Coleman , Judge

.

____________________
A RGUED D ECEMBER 6, 2017

— D ECIDED A UGUST 10, 2018

____________________

Before W OOD , Chief Judge , and E ASTERBROOKand H AMILTON , Circuit Judges

. W OOD , Chief Judge . In the fall of 2011, Lyvita Gomes failed to show up for jury duty. This minor infraction triggered a series of events that led to her untimely death in the early days of 2012. She wound up in the county jail, where she refused to eat and drink. The medical providers who worked at the Jail did li tt le other than monitoring as she wasted away in her2 No. 17-1603

cell. By the time she was sent to the hospital, it was too late to save her. Alfredo Miranda, the administrator of Gomes’s estate,brought an action under 42 U.S.C. § 1983 and assorted statelaw theories against Lake County, the Jail o ffi cials (the “County defendants”), and Correct Care Solutions (CCS, theJail’s contract medical provider) and its employees (the “medical defendants”). The district court dismissed the County defendants at summary judgment. The medical defendants proceeded to trial, but halfway through the proceeding the court granted judgment as a ma tt er of law under Federal Rule ofCivil Procedure 50(a) for them on some claims. The Estate prevailed to a modest degree on another claim, and part of the case resulted in a mistrial. Our principal ruling in response to the Estate’s appeal is that th e Rule 50(a) judgment was premature, and so further proceedings are necessary.

I

A On October 12, 2011, an o ffi cer arrested Gomes, a 52-yearold Indian national, for failing to appear for jury duty. (In hindsight, this was the County’s fi rst misstep: as a non-citizen, Gomes was categorically ineligible to serve as a juror. 705 ILCS 305/2(a)(4).) Gomes pulled away from the o ffi cer as he a tt empted to arrest her. That action earned her a second charge of resisting arrest. The o ffi cers took Gomes to Lake County Jail, where she made statements that landed her on suicide watch the next day. But she did not stay at the Jail long. On October 14, Gomes was t ransferred to the custody of the federal Immigration and Cu stoms Enforcement (ICE) service, which released her within a few days.No. 17-1603 3

Roughly two months later, on December 14, after failing to appear in court on the resi sting-arrest charge, Gomes found herself back in the Lake County Jail. Though o ffi cials initiallyplaced her in the general population, it quickly became apparent that her physical and mental health were deteriorating, and so she was moved. On December 16, CCS’s Director of Mental Health, Jennifer Bibbiano (a social worker), performed a mental health evaluation on Gomes. Bibbiano documented that Gomes had ingested no food or water since arriving at the Jail two days earlier. As a result, Gomes was transferred the next day to the Jail’s medical pod for closer monitoring. On December 18, sta ff placed Gomes on suicide watch and the hunger strike protocol. At that point, after she had gone four days without food or water, sta ff weighed her for the fi rst time and recorded a weight of 146 pounds. Over the next ten days, this number plummeted; by December 28, Gomes weighed only 128 pounds.During this period, social workers and physicians continued to assess Gomes daily. Defendant Dr. Rozel Elazegui, an internist, saw Gomes on Decemb er 22 and 27. In several progress notes, the CCS sta ffreported various symptoms of dehydration, such as skin tentin g. Gomes’s refusal to eat or drink and her unresponsiveness often prevented the medical
sta ff from recording her vital si gns and collecting any blood or urine samples. For most of this time, Gomes lay in bed and refused to speak. As Gomes’s physical condition worsened, concerns abouther mental state grew. When Gomes appeared in court on December 20, the judg e ordered a mental fi tness examination. On December 22, Gomes was identi fi ed as needing an urgent4 No. 17-1603

psychiatric visit. That prompted a visit two days later from psychiatrist Hargurmukh Singh, who fi rst met Gomes then and diagnosed her with a “psych otic disorder not otherwise speci fi ed.” He prescribed no medication. After seeing Gomesagain on December 27, Dr. Singh concluded that her psychosis rendered her unable to understand the risks of not eating and unable to participate in he r treatment plan. But his onlyadvice to Dr. Elazegui, who wanted to perform an involuntary blood draw for monitoring purposes, was that Elazegui could do so if push came to shove.

Around this time the o ffi cials in charge of Lake County Jail entered the picture. On December 26, Wayne Hunter, the Jail’s acting chief, was fi rst noti fi ed by email that Gomes was in theJail and was refusing medical treatment and tests. Hunter received assurances that CCS sta ff were monitoring Gomes’s condition and that they would provide him with any updates. Two days later, Hunter personally went down to Gomes’s cell in a futile a tt empt to persuade her to eat. On December 27, Sco ttFitch, the liaison between the correctional and medical
sta ff , learned about Gomes. He too asked for updates. Fitchcalled Gomes’s public defender, entreating her to visit and encourage her client to eat. Sheri ffMark Curran did not hear about Gomes until December 29, th e day she left the Jail. That same day, Jail o ffi cials went to court to get Gomes formally released from custody.Also on December 29, Dr. Young Kim, another CCS internist, returned to work from a vacation. Dr. Kim was surprised to learn that Gomes had remained in the Jail while continuing to refuse all food and drink. (A few stray comments in Gomes’s medical records suggest that she may have rubbed water on her body and perhaps ta ken a few sips of water fromNo. 17-1603 5

her sink. But the record as a whole implies li tt le to no water intake.) Dr. Kim immediately called an ambulance to take Gomes to the hospital for evalua tion and treatment of her dehydration and psychosis. Unfort unately, this intervention came too late. On January 3, 2012, fi ve days after arriving at the hospital, Gomes died. The au topsy opined that she died of “Complications of Starvat ion and Dehydration.” The manner of death was suicide.

B
The Estate fi led this action against Lake County, Sheri ff Curran, Hunter, Fitch, CCS, Dr. Elazegui, Dr. Singh, Bibbiano, and two more soci al workers, Ruth Muuru and Edith Jones. It raised due pr ocess claims under 42 U.S.C. § 1983, state statutory and common law tort claims, violations of international treaty oblig ations, and claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Only the claims against the medical defendants went to trial. But the jury never had the opportunity to resolve some ofthose claims. At the close of the Estate’s presentation of evidence, the court entered judgment as a ma tt er of law under Rule 50(a) for social workers M uuru and Jones on all claims against them. The court also concluded that the Estate had failed to present enough evidence to reach the jury on the question whether the medical defendants caused Gomes’s death; it therefore granted them judgment as a ma tt er of law on that part of the case. The only question remaining for thejury was the Estate’s due process claim for inadequate medical care, limited to the pain and su ff ering Gomes experienced while in the Jail. The jury failed to reach a unanimous verdict regarding the conduct of Dr. El azegui and Dr. Singh but it held social worker Bibbiano liable. It awarded the Estate6 No. 17-1603

$119,000 in compensatory damages, which Bibbiano has paid in full. The Estate does not challenge the jury verdict, but it takes issue with four aspects of the proceedings below: fi rst, the district court’s dismissal of the County defendants; second, the judgment as a ma tt er of law on causation of death; third, thecourt’s ruling barring the Estate from pursuing one of its theories of recovery under the Due Process Clause; and fourth, the court’s instruction on the ap plicable legal standard. While

we fi nd no merit in its fi rst point, we conclude on the la tt er three that the Estate is entitled to the opportunity to try its full case against the medical defendants before a jury.

II

A

We start with the Estate’s a tt empt to revive some of the claims against the County defendants. It fi rst challenges thedistrict court’s conclusion that the Jail’s chief, Hunter, and liaison, Fitch, were not deliberately indi ff erent to Gomes’s inadequate medical care in violat ion of her due process rights. We need not delve into the nuan ces of the standard for such aclaim, because the Estate faces an insurmountable hurdle independent of that standard. We have long recognized the fact that correctional institutions ( like most entities in a modern economy) engage in the division of labor. See Greeno v. Daley, 414 F.3d 645, 656 (7th Cir. 2005) (citation omi tt ed). When detainees are under the care of me dical experts, non-medical jail
sta ffmay generally trust the professionals to provide appropriate medical a tt ention. E.g. , Rice ex rel. Rice v. Corr. Med. Servs. , 675 F.3d 650, 676, 678–79 (7th Cir. 2012); see also RashoNo. 17-1603 7

v. Elyea , 856 F.3d 469, 478–79 (7th Cir. 2017) (holding that medical professionals were not liabl e when sued in their capacity as “prison administrators and policymakers, not treaters”). We will not fi nd a jail o ffi cial to have acted with deliberate indi ff erence if she reasonably relied on the judgment of medical personnel. E.g. , Greeno , 414 F.3d at 655–56; Estate of Perry v. Wenzel , 872 F.3d 439, 458–59 (7th Cir. 2017). On the other hand, if jail o ffi cials had reason to know that their medical
sta ff were failing to treat or inadequately treating an inmate, liability is possible. King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012); Rice , 675 F.3d at 676. Nothing in this record justi fi es a fi nding of personal liability against the County defendants. Hunter and Fitch received assurances that CCS sta ff were regularly monitoring Gomes.They requested periodic updates on her condition. The medical providers informed Hunter and Fitch that Gomes was stable and promised to send her to the hospital if necessary. Knowing that the CCS employees were on the case, Hunter and Fitch were entitled to rely on their professional judgments. See Arne tt v. Webster, 658 F.3d 742, 756 (7th Cir. 2011) (“This is not a case where [the plainti ff ] was being completely ignored by medical sta ff .”). The fact that they expressed concern about Gomes’s condition and tried directly and indirectly to get her to eat does not make them culpable.

Because we fi nd that Fitch and Hunt er’s reasonable reliance on their medical providers shields them from liabilityunder section 1983, we need not consider the County defendants’ alternative arguments for dismissal.8 No. 17-1603

B While the Estate has apparently abandoned its claim that Sheri ff Curran is individually liable for Gomes’s inadequate medical care, it is still trying to pursue an o ffi cial-capacity claim about the Jail’s allegedly de fi cient hunger-strike policy. As an Illinois sheri ff , Curran has fi nal policymaking authority over jail operations. DeGenova v. Sheri ff

of DuPage Cnty. , 209 F.3d 973, 976 (7th Cir. 2000). He is thus a proper party for a claim under Monell v. Department of Social Services of New York , 436 U.S. 658, 690–91 (1978), targeted at policies and customs that deprive inmates of their federal rights. Id. Monell liability is possible even if no individual o ffi cial is found deliberately indi ff erent. Glisson v. Ind. Dep’t of Corr. , 849 F.3d 372, 379 (7th Cir. 2017) ( en banc ).
The focus of the Estate’s Monell claim is Lake County Jail’s hunger-strike policy. That policy required four things: (1) the immediate noti fi cation of medical sta ffwhen an inmate begins a hunger strike; (2) docu mentation of meal refusals and immediate noti fi cation of a command o ffi cer after an inmate’s third consecutive meal refusal ; (3) the command’s investigation and communication with medical sta ff as needed; and (4) a conference including the health services administrator and the chief or deputy chief of corrections about the best course of action. The Estate fi nds the policy lacking in some respects, including the timing of noti fi cation and consultation, follow-up procedures if the hunger strike continues, methods to review past suicidality, and guidance on what tolook for and how to document an inmate’s condition on suicide watch. The Estate’s concerns may be valid, but it has not shown that the Sheri ff was deliberately indi ff erent in enacting thisNo. 17-1603 9

policy. Though hunger strike s may be common in jails, as amicisuggest, Gomes went longer without food and water than anyone else in the Jail’s experience. This does not give the Sheri ff a free pass, since a single incident can be enoughfor liability where a constitutional violation was highly foreseeable. Woodward v. Corr. Me d. Serv. of Ill., Inc. , 368 F.3d 917, 929 (7th Cir. 2004) (rejecting the no tion of a “‘one free suicide’ pass”). But this is not a case inwhich the Jail knew that hunger strikes were a risk yet did nothin g. It had a system in place, and that system included a series of reasonable measures. The Estate presented no evidence that would allow a trier of fact to conclude that some feature in the Jail’s policy caused Gomes’s death. Once Jail sta ff learned about her refusal to eat or drink, they stayed in regular communication with CCS’s medical personnel. See Belbachir v. Cnty. of McHenry, 726 F.3d975, 983 (7th Cir. 2013). It is unclear whether anyone connected the dots between Gomes’s suicidal statements in October and her condition in December, but that is irrelevant because sta ff identi fi ed Gomes as actively suicidal almost from the start of her second detention. There is no reason to think that additional guidance in the hunger-strike policy would have made a di ff erence in Gomes’s deterioration. Summary judgment was appropriate on this Monell claim.

C We can be brief with the Estate’s complaint that the County defendants failed to comply with their internationaltreaty obligations. Article 36 of the Vienna Convention guarantees a foreign national the right to have her home country’s consular o ffi ce noti fi ed when she is detained. Vienna Convention on Consular Relations, art. 36, Apr. 24, 1963, 21 U.S.T. 77; Sandoval v. United States , 574 F.3d 847, 850 (7th Cir. 2009).10 No. 17-1603

When Gomes, an Indian nation al, was detained in October, ICE o ffi cials informed her of her Article 36 rights. No one repeated this advice when Gome s was taken back into custodyin December. Still, we think summary judgment is appropriate, though for reasons di ff erent from those mentioned by the district court.

The district court was concerne d that the Estate failed to mention section 1983 when raising this claim, see Jogi v. Voges , 480 F.3d 822, 825 (7th Cir. 2007) (Jogi II ), but “complaints need not plead legal theories,” and so that alone does not support dismissal, see id. at 826. Another strike against the Estate, according to the district court, was the lack of evidence connecting Gomes’s death with the failu re to notify. Indeed, when given the opportunity to speak with the Indian consulate in October, Gomes chose not to do so. Nonetheless, we have yet to explore the question whether a plainti ff is required to show actual harm in order to recover for an Article 36 violation, or if this is more in the nature of a failure to receive required Miranda warnings.We need not wrestle with that issue now, however, because our case is easily resolv ed on the more straightforward ground of quali fi ed immunity. The County o ffi cials are immune from suit if it was not clearly established in 2011 that their conduct violated the Vienna Convention. See Pearson v. Callahan , 555 U.S. 223, 245 (2009). Article 36 charges “competent authorities” with notifying foreign nationals. The term “competent authorities” includes booking o ffi cers. Mordi v. Zeigler, 770 F.3d 1161, 1166–1167 (7th Cir. 2014). Consistent with this precedent, the Jail’s wri tt en policy places the noti fi

cation obligation exclusively with booking o ffi cers. But the Estate did not sue the o ffi cer who booked Gomes. And, as weNo. 17-1603 11

acknowledged in 2014, the boundaries of who else might qualify as a competent authority have “yet to be fi xed.” Mordi , 770 F.3d at 1167. Because it was not clearly established who, beyond the booking o ffi cer, had a duty to inform Gomes of her consular rights, the County defendants are entitled to quali fi ed immunity.

D
The Estate also seeks to reinstate a Monell claim based on the County’s alleged failure to train Jail sta ffto notify detainees of their consular rights. A failure-to-train claim is actionable only if the failure amounted to deliberate indi ff erence to the rights of others. City of Canton v. Harris , 489 U.S. 378, 388 (1989). Deliberate indi ff erence exists where the defendant (1) failed “to provide adequate training in light of foreseeable consequences”; or (2) failed “to act in response to repeated complaints of constitutional violations by its o ffi cers.” Sornberger v. City of Knoxville , 434 F.3d 1006, 1029–30 (7th Cir.2006). In essence, the defendant must have actual or constructive notice of a problem. See Robles v. City of Fort Wayne, 113 F.3d 732, 735 (7th Cir. 1997). Here, Sheri ff Curran had neither. The Estate points to no evidence indicating that detainees repeatedly complained about the absence of consular noti fi cation. The parties try to paint the problem as rampant or nonexistent, but the record does not support either extreme.

Sheri ff Curran did not fail to act in the face of foreseeable violations. Lake County Jail ha s had a policy about consular noti fi cation since at least October 2005. In addition to requiring booking o ffi cers to inform detainees, the policy speci fi ed that all o ffi cers who work at the booking desk “shall receive12 No. 17-1603

appropriate training,” including a video, handouts, and a training session. Sheri ff Curran testi fi ed that he knew about this policy and was never noti fi ed that it was not being followed. Thus, at most, Sheri ff Curran was negligent in failingto ensure that the Jail’s training protocol was being implemented. This is not enough to establish that he was deliberately indi ff erent to detainees’ rights. See Rice , 675 F.3d at 675 (requiring that “the failure to train re fl ect[] a conscious choice among alternatives”). The Sheri ffdid not display deliberate indi ff erence, and so we need not consider the County defendants’ alternative arguments.

III We turn now to the Estate’s claims against Drs. Elazegui and Singh, which the district court partially blocked on the ground that there was not enough evidence of causation to reach the jury. Though the Estate assigns error to the court’s ruling on a motion in limine and its jury instruction, we need reach these decisions only if we reverse on causation. This is because neither ruling prejudiced the Estate on the claim that did go to the jury. Under the single recovery rule, defendantsare jointly and severally liable for the full amount of compensatory damages that result from an indivisible harm; a plainti ff can recover only once for those damages. Janusz v. City of Chi. , 832 F.3d 770, 774, 777 (7th Cir. 2016); Minix v. Canarecci, 597 F.3d 824, 829–30 (7th Cir. 2010). The Estate has already been fully compensated for Gomes’s su ff ering at the Jail, sinceBibbiano paid the assessed $119,000. It has not, however, received any compensation for Gome s’s death. We thus turn to the question whether that issue too should have gone to the jury.No. 17-1603 13

A The court granted judgment as a ma tt er of law on the Estate’s constitutional and stat e-law wrongful death claimsagainst Drs. Elazegui and Singh because it thought that no rational jury could conclude thattheir actions caused Gomes’s death. It identi fi ed two evidentiary gaps: fi rst, the lack of expert testimony explaining what the notation of “Complications of Starvation and Dehydration” in the autopsy report meant and how those complications related to Gomes’s death; and second, the lack of experttestimony about what took place during the fi ve days between Gomes’s transfer to the hospital and her death. We consider this decision de novo

. Holder v. Ill. Dep’t of Corr. , 751 F.3d 486, 490 (7th Cir. 2014).

We start with the Estate’s claim under the Fourteenth Amendment’s Due Process clause for inadequate medical

care. 1 Although Dr. Elazegui and Dr. Singh were employed bya private company that contracted with Lake County to provide detainees’ medical care, they are considered state actors amenable to suit under section 1983. West v. Atkins , 487 U.S. 42, 54–56 (1988). They are not, however, entitled to quali fi ed immunity. Pe tt ies v. Carter, 836 F.3d 722, 734 (7th Cir. 2016) ( en banc ). Moreover, they concede both that Gomes’s medical condition was objectively seriou s and that the evidence would have permi tt ed the jury to conclude the doctors acted with

1 We do so because this was the claim that supports the district court’s subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343; the Estate relied on the court’s supplemental juri sdiction, 28 U.S.C. § 1367, for its state-law theories. It is possible that the alienage branch of diversity jurisdiction may also have existed, see 28 U.S.C. § 1332(a)(2), but this was not explored.14 No. 17-1603

deliberate indi ff erence. Our focus is thus exclusively on causation. To recover on its due process claim, the Estate had to present “‘verifying medical evidence’ that the delay” in medical care “caused some degree of harm.” Williams v. Liefer, 491 F.3d 710, 715 (7th Cir. 2007) (citation omi tt ed). It did not, however,bear the burden of proving that but for the medical defendants’ inaction, Gomes would de fi nitely have lived. It would have been enough for the Estate to show that the resulting harm was a diminished chance of survival. See Murrey v. United States , 73 F.3d 1448, 1453–54 (7th Cir. 1996); Holton v. Mem’l Hosp. , 176 Ill. 2d 95, 119 (1997) (recognizing the lost chance doctrine in Illinois). While expert testimony could be used as “verifying medical evidence,” medical records alone could su ffi ce. Grieveson v. Anderson , 538 F.3d 763, 779 (7th Cir. 2008); Williams , 491 F.3d at 715. The record contains ample evidence from which a jurycould infer that Drs. Elazegui and Singh’s inaction diminished Gomes’s chances of survival. First, it shows that shedied from starvation and dehydration. Under Illinois law, autopsy reports are prima facie evidence of their fi ndings and conclusions, including cause of death. 725 ILCS 5/115-5.1. The report here did not mince words about Gomes’s cause of death—“Complications of St arvation and Dehydration”—or her manner of death—“suicide.” The coroner implicitly ruled out the possibility that Gomes died from any hospital-based illnesses or other causes. The report is clear: not eating or drinking caused her death. (Hospital records underscore this conclusion. On the day she arrive d at the hospital, Gomes was already experiencing acute liver and renal failure. For present purposes, however, we disregard these records, because theyNo. 17-1603 15

were excluded from trial at the request of the medical defendants, and the Estate has not chal lenged that exclusion on appeal.) Moreover, the Estate’s expert witnesses testi fi ed that thedoctors’ failure to transfer Gomes to the hospital sooner allowed her deterioration to reach a dangerous point. Psychiatry expert Dr. James Gilligan repeatedly testi fi ed that Dr. Singh contributed to Gomes’s death by failing to initiate her transfer from the Jail to the hospital. Furthermore, Dr. Singh (a psychiatrist, reca ll) knew that Gomes was clinically incompetent, but he took no steps to treat her even though she was endangering her life. Dr. Gilligan concluded that Dr. Singh’s “failure to act ... contributed to [Gomes’s] death.” Internal medicine expert Dr. Jack Raba testi fi ed that Gomes’s pulse on December 25 was an “ominous sign,” raising the possibility of cardiovascular problems, electrolyte or metabolic imbalances, or renal failure. He added that Gomes’s blood pressure clearly indicated dehydration. Dr. Raba said it was “impossible” not to consid er that Gomes was starting to show signs of organ failure. These “absolute signs” signaled that Gomes urgently needed to be admi tt ed to a hospital for bloodwork and possibly forced feeding and medication. Dr. Raba concluded that Dr. El azegui’s failure to intervene “contributed to [Gomes’s] ultimate demise and death.” The prison doctors’ testimony lent support to Dr. Raba’s expert opinion on causation. When Dr. Elazegui spoke with Gomes on December 22, he informed her that starvation risked organ failure and death. He asked to be informed whenher weight loss hit 18%, since that number indicates an increased risk of organ failure. D r. Kim’s testimony was also rel-16 No. 17-1603

evant to the causation question. When he returned from vacation, he was concerned that Gomes could go into respiratory failure or cardiac arrest at any minute (and unlike the others, he promptly acted on this concern). Taken together, this evidence was enough to support an inference on the jury’s part that the delay in sending Gomes to the hospital resulted in her death, or at least lessened her chance of survival. Our analysis applies with equal force to the Estate’s state malpractice claims. See 740 ILCS 180/1. Under this theory, the Estate had to show that the physicians’ negligent failure to comply with the standard of care proximately caused Gomes’s injury. See Sullivan v. Edward Hosp. , 209 Ill. 2d 100, 112 (2004). In Illinois, proximat e cause “must be established by expert testimony to a reas onable degree of medical certainty.” Morisch v. United States , 653 F.3d 522, 531 (7th Cir. 2011) (citation omi tt ed). An expert’s opinion on the connection between a delay in treatmen t and injury must be factually supported in order to be submi tt ed to the jury. Wiedenbeck v. Searle, 385 Ill. App. 3d 289, 293–94 (2008). The proximate-cause inquiry encompasses both cause-infact and legal cause. Palay v. United States , 349 F.3d 418, 432 (7th Cir. 2003). For there to be legal cause, a reasonable person must have been able to foresee that the plainti ff ’s injury would result from his conduct. Id. For cause-in-fact, the plainti ff must show that but for the defendant’s conduct, the injury would not have occurred. Id. Again, the injury can be the decedent’s lost chance at survival. Holton , 176 Ill. 2d at 119. A jury would have been permi tt ed to fi nd legal cause here. By their own admission, Drs. Elazegui and Singh knew that ifNo. 17-1603 17

Gomes continued to refuse food and fl uids, she could die. They warned her as much. The record also contained support for cause-in-fact. The experts op ined that the medical defendants’ inaction contributed to Gomes’s death. This was not impermissibly conclusory for an expert opinion. See F ED

. R. E VID . 705; see also Wilson v. Clark , 84 Ill. 2d 186, 196 (1981) (adopting Federal Rule of Evidence 705 for Illinois). The medical defendants are right that an expert’s testimony in a malpractice case cannot be based on “sheer, unsubstantiated speculation.” Wiedenbeck , 385 Ill. App. 3d at 293. But the opinions here su ff ered from no such fl aw, and the defendants were free to cross-examine th e experts about what led them to draw their conclusions. Wilson , 84 Ill. 2d at 194. Based on Drs. Raba and Gilligan’s expert testimony, a jury could havefound that the defendants’ inaction more likely than not contributed to Gomes’s decreased chance of survival and her ultimate death. The Estate is entitled to a new trial in which it can present these arguments to a jury.

BSince the Estate is entitled to a new trial against the medical defendants, we will also say a few words about its challenge to the district court’s deci sion to bar all reference to the theory that the medical defendants violated the Due Process Clause by failing to protect Gomes from harming herself. Our review is for abuse of discretion. Perry v. City of Chi. , 733 F.3d 248, 252 (7th Cir. 2013). 2

2 Once again, it is worth recalling that a person may recover only oncefor a given set of injuries. At this stage, however, no one has had any occasion to consider whether state law and federal law overlap so much that the elements supporting each theory are the same, or that full relief could18 No. 17-1603

The Supreme Court has declared that “competent persons” have a due-process “right to refuse lifesaving hydration and nutrition.” Washington v. Glucksberg, 521 U.S. 702, 723 (1997) (quoting Cruzan v. Dir., Mo . Dep’t of Health , 497 U.S. 261, 279 (1990)). But this right does no t extend to incarcerated persons who have been deemed incompetent. Freeman v. Berge , 441 F.3d 543, 546 (7th Cir. 2006). For these detainees, jails have a duty “to prevent the prisoner from giving way” to the “unusual psychological strain” caused by incarceration. Id. at 547. We repeatedly have recognized a jail or prison o ffi cial’sfailure to protect an inmate from self-harm as one way of establishing deliberate indi ff erence to a serious medical need. E.g. , Estate of Miller, ex rel. Bertram v. Tobiasz , 680 F.3d 984, 989– 90 (7th Cir. 2012); Collins v. Seeman , 462 F.3d 757, 760–61 (7th Cir. 2006). The obligation to intervene covers self-destructive behaviors up to and including suicide. Rice , 675 F.3d at 665; Cavalieri v. Shepard, 321 F.3d 616, 620–22 (7th Cir. 2003). The duty applies “when suicide takes the form of starving oneself to death.” Freeman , 441 F.3d at 547; accord Rodriguez v. Briley, 403 F.3d 952, 953 (7th Cir. 2005). In barring this theory, the court reasoned that the Estate had not presented evidence that Gomes’s suicidal ideation and mental illness were “so acute” that the defendants should have known about them and prot ected her from herself. See Seventh Circuit Pa tt ern Civil Jury Instruction 7.19 (rev. 2017) (an element of a failure-to-protect-from-self-harm claim is that the defendant was aware or strongly suspected a strong likelihood of serious self-harm). The court a tt ached particular

be recovered under either. Reconciliation of those theories is something better done by the district court on remand.No. 17-1603 19

weight to testimony from Gomes’s family members and theadministrator that she was a devout Catholic who had no history of mental illness and would not have commi tt ed suicide. In the past, we have taken into account jail o ffi cials’ knowledge of a decedent’s mental health history or warnings from family members, as that information pertains to the defendants’ subjective awareness of a problem. E.g. , Payne for Hicks v. Churchich , 161 F.3d 1030, 1042 (7th Cir. 1998). But that is not the use to which the court put the testimony of Gomes’s family. It jumped from the factthat Gomes was a Catholic toan assumption that the defendants were aware of her religious a ffi liation, but there is no evidence that they knew any such thing. Furthermore, mental illness and suicide regre tt ably a ffl ict devout members of all religious groups. While a jury could consider testimony from Gomes’s family when assessing this theory of recovery, it was not the court’s role to accept the family opinion as an undisputed fact. And in any event, the trial record was fi lled with evidence supporting a fi nding that the medical defendants knew thatGomes was at great risk of death by starvation and dehydration, and that she was unable to think rationally. On December 27, Dr. Singh deemed her not competent and concluded that she did not understand the risks of refusing to eat. Before then, CCS sta ff documented Gomes’s suicidal ideation and placed her on suicide watch. Dr. Elazegui had warned Gomes that if she continued to refuse nutrition, she could die. The defendants’ records reveal thatthey were aware that Gomes was at serious risk of causing her own death. The district court abused its discretion by prohibit ing the Estate from pursuing this line of argument. At the next trial, the Estate must be allowed to argue this theory of recovery to the jury.20 No. 17-1603

C Finally, we consider whether th e district court properly instructed the jury on intent. We evaluate the jury instructions anew when deciding if they accurately state the law. Sanchez v. City of Chi. , 880 F.3d 349, 355 (7th Cir. 2018). The Supreme Court fi rst recognized an incarcerated person’s right to receive adequate medical treatment in Estelle v. Gamble, 429 U.S. 97 (1976), which concerned a convicted prisoner. In that case, the Court concluded that deliberate indifference to a prisoner’s serious medical need violates the Eighth Amendment’s protectionagainst cruel and unusual punishment. Id. at 104–05. The “deliberate indi ff erence” standard requires a showing that the defendant had a “su ffi

ciently culpable state of mind” and asks whether the o ffi cial actually believed there was a signi fi cant risk of harm. Pi tt man ex rel. Hamilton v. Cnty. of Madison , 746 F.3d 766, 775–76 (7th Cir. 2014)

. This subjective standard is closely linked to the language of the Eighth Amendment, which prohibits the in fl iction of “cruel and unusual punishments .” The Supreme Court has interpreted this to ban only th e “unnecessary and wanton in fl iction of pain.” Farmer v. Brennan , 511 U.S. 825, 834 (1994). The Court has applied the deliberate-indi ff erence standard not just to medical-care problems , but also to other types of claims. See Farmer, 511 U.S. at 837 (failure-to-protect); Wilson v. Seiter, 501 U.S. 294, 303 (1991) (conditions of con fi nement).
Pretrial detainees stand in a di ff erent position: they have not been convicted of anything, and they are still entitled to the constitutional presumption of innocence. Thus, the pun-No. 17-1603 21

ishment model is inappropriate for them. Kingsley v. Hendrickson , 135 S. Ct. 2466, 2475 (2015) (“[P]retrial detainees (unlikeconvicted prisoners) cannot be punished at all, much less ‘maliciously and sadistically.’” (citations omi tt ed)); Bell v. Wol fi sh , 441 U.S. 520, 535 (1979) (“For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.”). Yet they also are protected from certain abusive conditions. The di ff erence is that the claims of state de tainees being held on probable cause arise under the Fourteen th Amendment’s Due Process Clause. Collins v. Al-Shami, 851 F.3d 727, 731 (7th Cir. 2017). That said, we have typically assessed pretrial detainees’medical care (and other) claims under the Eighth Amendment’s standards, reasoning that pretrial detainees are entitled to at least that much protection. E.g. , Minix , 597 F.3d at 831; Board v. Farnham , 394 F.3d 469, 477–78 (7th Cir. 2005). In conducting this borrowing exercise, we have grafted the Eighth Amendment’s deliberate indi ff erence requirement onto the pretrial detainee situation. Cavalieri, 321 F.3d at 620. Missing from this picture has been any a tt ention to the di ff erence that exists between th e Eighth and the Fourteenth Amendment standards. The Supreme Court recently disapproved the uncritical extension of Eighth Amendment jurisprudence to the pretrial

se tt ing in Kingsley v. Hendrickson , 135 S. Ct. 2466 (2015). Therethe Court held that a pretrial detainee bringing an excessiveforce claim did not need to prove that the defendant was subjectively aware that the amount of force being used was unreasonable. Id. at 2472–73. Rather, the plainti ffneeded only to show that the defendant’s conduct was objectivelyunreasonable. Id. Kingsley, it is worth emphasizing, was a Fourteenth22 No. 17-1603

Amendment Due Process case. Indeed, the Court took painsto reiterate the basic principles that apply to pretrial detainees: Several considerations have led us to conclude that the appropriate standard for a pretrial detainee’s excessive force claim is solely an objective one. For one thing, it is consistent with our precedent. We have saidthat “the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” Graham [v. Connor, 490 U.S. 386
, ] 395, n. 10 [1989]. And in Bell [v. Wol fi sh , 441 U.S. 520(1979)], we explained that such “punishment” can consist of actions taken with an “expressed intent to punish.” 441 U.S., at 538. But the Bell Court went on to explain that, in the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the actions are not “ratio nally related to a legitimate nonpunitive governmental purpose” or that the actions “appear excessive in relati on to that purpose.” Id., at 561. 135 S. Ct. at 2473 (emphasis added). Though Kingsley ’s direct holding spoke only of excessiveforce claims, two of our sister ci rcuits have held that its logic is not so constrained. The Ninth Circuit fi rst extended Kingsley ’s objective inquiry to detainees’ Fourteenth-Amendment failure-to-protect claims. Castro v. Cnty. of L.A. , 833 F.3d 1060, 1070–71 (9th Cir. 2016) ( en banc ), cert. denied, 137 S. Ct. 831 (2017). Since then, that court has applied the Kingsley holding more broadly to a medical-need claim brought by a pretrial detainee. Gordon v. Cnty. of Orange , 888 F.3d 1118, 1120, 1122– 25 (9th Cir. 2018). The Second Ci rcuit followed suit, applyingNo. 17-1603 23

the objective standard to detainees’ Fourteenth-Amendment complaints about their conditions of con fi nement; in the process it overruled a decision applying a subjective test to a medical-care claim. Darnell v. Pineiro , 849 F.3d 17, 34–35 (2d Cir. 2017) (overruling Caiozzo v. Koreman , 581 F.3d 63 (2d Cir. 2009)); see Wilson , 501 U.S. at 303 (medical care is a condition of con fi nement). Later, the Second Circuit expressly applied an objective standard to a claim of deliberate indi ff erence to a serious medical condition. Bruno v. City of Schenectady, No. 16-1131, 2018 WL 1357377, at *2–*3 (2d Cir. Mar. 16, 2018) (unpublished) (asking “whether a ‘reasonable person’would appreciate the risk to which the detainee was subjected”). Other courts of appeals have contemplated the same reading of Kingsley

. Richmond v. Huq , 885 F.3d 928, 938 n.3 (6th Cir. 2018) (not applying Kingsley, which neither party raised, but recognizing the “shift in Fourteenth Amendment deliberate indi ff erence jurisprudence [that] calls into serious doubt whether [the plainti ff ] need even show that the individual defendant-o ffi cials were subjectively aware of her serious medical conditions and nonetheless wantonly disregarded them”). The Eighth, Eleventh, and Fifth Circuits have chosen to

con fi ne Kingsleyto its facts—that is, to Fourteenth-Amendment claims based on excessive-f orce allegations in a pretrial

se tt ing. E.g. , Whitney v. Cityof St. Louis , 887 F.3d 857, 860 n.4 (8th Cir. 2018); Dang by & through Dang v. Sheri ff

, Seminole Cnty. , 871 F.3d 1272, 1279 n.2 (11th Cir. 2017); Alderson v. Concordia Parish Corr. Facility , 848 F.3d 415, 419 n.4 (5th Cir. 2017) (following circuit precedent an d concluding that the issue was not directly raised). It is worth noting, however, that a concurring judge in Alderson advocated reconsideration of the24 No. 17-1603

subjective standard to detainees’ other claims in light of Kingsley

. Id. at 424–25 (Graves, J., specially concurring in part).Some circuits have continued to analyze inadequate medical treatment claims under the deliberate indi ff erence standard without grappling with the potential implications of Kingsley

. E.g. , Du ff

v. Po tt er, 665 F. App’x 242, 244–45 (4th Cir.2016) (applying the objective reasonableness standard to a detainee’s excessive-force claim but not his medical-need claim, which it a ffi rmed on forfeiture grounds). We have not yet expressly weighed in on the debate. Since Kingsley, we have continued to duplicate the Eighth Amendment inquiry for claims of de fi cient medical treatment. E.g. , Phillips v. Sheri ff

of Cook Cnty. , 828 F.3d 541, 554 n.31 (7th Cir. 2016). But we have acknowledged that Kingsley has “called into question” our case law treating the “protections a ff orded by” the Eighth and Fourteenth Amendments as “‘functionally indistinguishable’ in the contex t of a claim about inadequate medical care.” Smego v. Jumper, 707 F. App’x 411, 412 (7th Cir. 2017); accord Collins , 851 F.3d at 731. Because the answer may make a di ff erence in the retrial of Gomes’s claims, we think it appropriate to address the proper standard at this time. We begin with the fact that the Supreme Court has been signaling thatcourts must pay careful a tt ention to the di ff erent status of pretrial detainees. In this respect, Kingsley does not stand alone. See, e.g. , Manuel v. City of Joliet, 137 S. Ct. 911 (2017) (allowing Fo urth Amendment challenges to pretrial detention even beyo nd the start of legal process). The Court has cautioned that the Eighth Amendment and Due Process analyses are not coextensive. See Kingsley, 135 S. Ct. at 2475 (“The language of the two Clauses di ff ers, and the nature of the claims often di ff ers.”); Currie v. Chhabra ,No. 17-1603 25

728 F.3d 626, 630 (7th Cir. 2013) (“[D]i ff erent constitutional provisions, and thus di ff erent standards, govern depending on the relationship between th e state and the person in the state’s custody.”). We see nothing in the logic the Supreme Court used in Kingsley that would support this kind of dissection of the di ff erent types of claims that arise under the Fourteenth Amendment’s Due Process Clause. To the contrary, the Court said that “[t]he language of the [Eighth and Fourteenth Amendments] di ff ers, and the nature of the claims often differs. And, most importantly, pretrial detainees (unlike convicted prisoners) cannot be pu nished at all, much less ‘maliciously and sadistically

. ’” 135 S. Ct. at 2475 (citations omi tt ed). We thus conclude, along with the Ninth and Second Circuits, that medical-care claims brought by pretrial detainees under the Fourteenth Amendment are subject only to the objective unreasonableness inquiry identi fi ed in Kingsley

. Although the defendants failed to mention Parra tt v. Taylor, 451 U.S. 527 (1981), overruled in part on other grounds by Daniels v. Williams , 474 U.S. 327, 330–31 (1986), and thus have forfeited any argument based on that case, we see nothing in Parra tt that points in the opposite direction. There the Supreme Court held that plainti ff s may not bring claims under the Due Process Clause where state law provides an adequate remedy. 451 U.S. at 543–44. Though the Estate has brought state malpractice claims in addi tion to its due-process claim,the availability of parallel and even overlapping forms of recovery does not doom its constitutional claim. See Zinermon v. Burch , 494 U.S. 113, 124 (1990); Armstrong v. Daily, 786 F.3d 529, 539 (7th Cir. 2015). Parra tt applies only to certain procedural-due-process claims. The vi olation of which the Estatecomplains derives from the substantive aspect of the Due Process Clause. See Youngberg v. Romeo , 457 U.S. 307, 315–1626 No. 17-1603

(1982); see also City of Revere v. Mass. Gen. Hosp. , 463 U.S. 239, 244 (1983); Collignon v. Milwaukee Cnty. , 163 F.3d 982, 988 (7th Cir. 1998). In this situation, there is no amount of process that would justify a decision to sit by and leave serious medical needs una tt ended. Parra tt is thus beside the point.

We also see no con fl ict between this application of Kingsley and the Supreme Court’s later decision in Daniels v. Williams , 474 U.S. 327 (1986). Daniels overruled part of Parra tt and held (or underscored) that negligent conduct does not o ff end the Due Process Clause. Id. at 330–31. The defendants here worry that an objective-reasonableness standard will impermissibly constitutionalize medical malpractice claims, because it would allow mere negligence to su ffi ce for liability. A careful look at Kingsley, however, shows that this is not the case; the state-of-mind requirement for constitutional cases remains higher. Here is what the Court had to say about this problem in Kingsley : We consider a legally requisite state of mind. In a caselike this one, there are, in a sense, two separate stateof-mind questions. The fi rst concerns the defendant’s state of mind with respect to his physical acts— i.e., hisstate of mind with respect to the bringing about of certain physical consequences in the world. The second question concerns the defendant’s state of mind with respect to whether his use of force was “excessive.” Here, as to the fi rst question, there is no dispute. As tothe second, whether to interpret the defendant’s physical acts in the world as involving force that was “excessive,” there is a dispute. We conclude with respect to that question that the relevant standard is objectiveNo. 17-1603 27

not subjective. Thus, the defendant’s state of mind is
not a ma tt er that a plainti ff is required to prove. 135 S. Ct. at 2472. As applicable here, the fi rst of those inquiries asks whether the medical de fendants acted purposefully, knowingly, or perhaps even re cklessly when they considered the consequences of their handling of Gomes’s case. See id. at 2472, 2474 (discussing purposeful or knowing conduct and leaving open the possibility thatrecklessness would also suffi ce). The courts of appeals that have applied Kingsley to detainees’ claims in contexts other than excessive force have taken that step, while continuing to recognize that it will not be enough to show negligence or gross negligence. Gordon , 888 F.3d at 1125 (under Kingsley, a detainee must “prove more than negligence but less than subjective intent—something akin to reckless disregard” (quoting Castro , 833 F.3d at 1071)); accord Darnell , 849 F.3d at 36 & n.16. As Kingsley instructs, the second step is the objective one. The allegations here easily fi t the mold of Gordon , Darnell , and Castro . A properly instructed jury could fi nd thatDrs. Elazegui and Singh made the decision to continue observing Gomes in the jail, rather than transporting her to the hospital, with purposeful, knowing, or reckless disregard ofthe consequences. (The jury could also reject such a conclusion.) It would be a di ff erent ma tt er if, for example, the medical defendants had forgo tt en that Gomes was in the jail, or mixed up her chart with that of another detainee, or if Dr. Elazegui forgot to take over coverage for Dr. Kim when he went on vacation. Suchnegligence would be insu ffi cient to support liability under the Fourteenth Amendment, even though it might support state-la w liability. Here, there is evidence that Drs. Elazegui and Singh deliberately chose a “wait28 No. 17-1603

and see” monitoring plan, kn owing that Gomes was neither eating nor drinking nor compet ent to care for herself. See Glisson , 849 F.3d at 380, 382 (recognizing inaction as a choice). Because the Estate does not clai m merely negligent conduct, a jury must decide whether the doctors’ deliberate failure to act was objectively reasonable.

IV Any death is a great loss, but one as preventable as Gomes’s is especially disturbing . On this record, a jury could have found that the intentional and knowing inaction of Drs. Elazegui and Singh caused Gomes’s death. We therefore R EVERSE and R EMAND for new trial of the Estate’s claim against them, as it relates to Gomes’s death. We A FFIRM the district court’s grant of summ ary judgment to the County defendants.