                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 10-3728

M AURICE C OBIGE, personally
and as special representative of
the estate of Patricia Cobige,
                                                    Plaintiff-Appellee,
                                  v.

C ITY OF C HICAGO, ILLINOIS, et al.,
                                             Defendants-Appellants.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 06 C 3807—Amy J. St. Eve, Judge.



         A RGUED JUNE 7, 2011—D ECIDED JULY 12, 2011




 Before EASTERBROOK, Chief              Judge,    and     BAUER    and
WILLIAMS, Circuit Judges.
  E ASTERBROOK, Chief Judge. While in a police lockup,
Patricia Cobige died of a heart arrhythmia. She was
arrested on June 10, 2006, and pronounced dead at
about 1:30 A . M . on June 12. Evidence from one of
Cobige’s cellmates, plus two deputy sheriffs and a
2                                             No. 10-3728

civilian aide at the lockup, permitted a jury to find that
she experienced severe abdominal pain throughout her
confinement. Dan J. Fintel, Professor of Medicine at
Northwestern University and head of coronary care at
its hospitals, testified that the pain led Cobige to
produce more epinephrine (also known as adrenaline),
which combined with a pre-existing heart condition
(ventricular hypertrophy) caused her death. Uterine
tumors found during a post-mortem examination led
Dr. Fintel to conclude that Cobige indeed had suffered
serious abdominal pain; Peter Santucci, the medical
expert for the defendants, agreed. Dr. Fintel thought
that routine tests and care would have prevented
Cobige’s death had she been taken to an emergency
room. Yet Cobige never received any medical attention
after her arrest. A jury found that four police officers
violated both state law and the federal Constitution by
allowing Cobige to suffer untreated pain; the award is
$5,000,000 in compensatory and $4,000 in punitive dam-
ages to Maurice Cobige, who sued as Patricia’s son
and special representative of her estate. The City of
Chicago will indemnify the officers, and on this appeal
we use “Chicago” or “defendants” to refer to the City
plus the four officers.
   The police officers who ignored Cobige’s pleas for
help did not want her to die, but they are responsible
for that death nonetheless if the untreated pain caused
it. This is an application of the “eggshell skull” rule:
A tortfeasor takes his victim as he finds him, and if a
special vulnerability (a thin skull, or here a ventricular
hypertrophy) leads to an unusually large loss, the wrong-
No. 10-3728                                                3

doer is fully liable. See Colonial Inn Motor Lodge ex rel.
Cincinnati Insurance Co. v. Gay, 288 Ill. App. 3d 32, 45, 680
N.E.2d 407, 416 (1997); Prosser & Keeton on Torts §43 (5th
ed. 1984). The state-law claim, under the Illinois
Wrongful Death Act, 740 ILCS 180/1 to 180/2.1, requires
only proof of negligence. The federal-law claim, under
42 U.S.C. §1983, requires proof of intentional wrong-
doing or deliberate indifference to a serious medical
need, see Farmer v. Brennan, 511 U.S. 825 (1994), but
defendants do not contend that the evidence on that
issue was deficient. The jury was entitled to conclude
that multiple people told the four officers about Cobige’s
pain, and that each of the four turned a deaf ear—indeed,
that one of them, Rene Dimalanta, directed Cobige not
to tell sheriff’s deputies about her pain when she was
taken to the courthouse for a bond hearing, and that, if
she did anyway, Dimalanta would see to it that she
did not receive any medical care. Cobige did complain,
the deputies deemed her too ill to be presented in
court, and Dimalanta then carried through with this threat.
  Chicago’s principal appellate argument is that the
proof does not establish causation. Dr. Fintel explained
that epinephrine from pain is capable of causing death
for only a brief time after each episode. Chicago main-
tains that Cobige died while sleeping peacefully; this
is incompatible with Dr. Fintel’s theory and requires
judgment for the defense as a matter of law, Chicago
concludes.
  But the testimony on which this argument depends
comes from police officers who denied that Cobige had
4                                            No. 10-3728

ever been in pain. The jury was entitled to disbelieve
them and to credit the testimony of Cobige’s cellmate
that the attacks of abdominal pain were frequent and
becoming worse, and to infer that she had another
episode of abdominal pain shortly before she died. So the
district judge observed when denying Chicago’s post-
judgment motions. See 752 F. Supp. 2d 860, 869–70 (N.D.
Ill. 2010). Moreover, the fact that Cobige was silent
during the four hours before paramedics pronounced
her dead need not mean that she was sleeping. A reason-
able jury could have concluded that she was silent
because she was dead. (The jurors were entitled to find
that she was silent during those four hours; they were
not required to believe one guard’s testimony that
Cobige was heard snoring after midnight of June 12.)
  Chicago contends that there was another problem
with Dr. Fintel’s evidence: the judge allowed him to
testify that a person with Cobige’s symptoms should
have been taken to a hospital. How could Dr. Fintel
know this?, Chicago asks. He is not a specialist in
police procedures. That’s true enough, but the extent of
his knowledge about how stationhouse lockups
handle medical needs affects the weight rather than
the admissibility of his testimony. Evidence is relevant
whenever it has “any tendency to make the existence of
any fact that is of consequence to the determination of
the action more probable or less probable than it would
be without the evidence.” Fed. R. Evid. 401. Police pro-
cedures unknown to Dr. Fintel may affect the speed of
a response, but the need for one is a subject within
his medical expertise. Stationhouse personnel have
No. 10-3728                                              5

other duties that may take precedence, see Portis v.
Chicago, 613 F.3d 702 (7th Cir. 2010), and police are
entitled to weed out fakers, but these and other consider-
ations that affect timing can be addressed by de-
fense witnesses. None of Chicago’s witnesses disputed
Dr. Fintel on this point, however; the defense was that
Cobige never said that she was in pain and never ap-
peared to be in distress.
  Some evidence in the record implies that the police
themselves agree with Dr. Fintel’s view that a person
suffering abdominal pain needs swift medical care. A
placard on the wall of the lockup told the guards that
any prisoner claiming to experience abdominal pain
should be taken to a hospital immediately. Chicago
asked the judge to exclude this chart on the ground that
the jury might interpret it as a legal requirement,
rather than an exercise of caution and concern for pris-
oners. Again this is a subject on which the lawyers
can present arguments to the jurors; it does not justify
exclusion—certainly not when the defense was at the
same time trying to block the plaintiff’s expert from
testifying about the subject. The judge was not required
to keep the jury in the dark about the question whether
the police department shares Dr. Fintel’s assessment
of how the guards should have behaved.
  Chicago’s other arguments do not require discus-
sion—except for those that concern evidence of Cobige’s
drug addiction and legal problems. These bear on dam-
ages.
  Maurice Cobige, who was 27 when his mother died,
testified that she had been a friend as well as a parent, a
6                                            No. 10-3728

bulwark of support and a role model throughout his
life. This testimony potentially affected not only the
damages recoverable by Maurice for loss of companion-
ship but also the damages for Cobige’s loss of the enjoy-
ment of life. (Maurice did not seek damages for
Patricia’s lost earnings; she had not supported him fin-
ancially as an adult.) Chicago wanted to undermine
Maurice’s rosy view of the mother-son relationship by
introducing evidence that Patricia was a drug addict who
had been in trouble with the law for much of her adult
life and had spent multi-year stretches in prison. The
district court admitted evidence that Cobige had been
convicted once but excluded older sentences and did not
permit the introduction of evidence about Cobige’s drug
addiction and arrest record.
  Thus the jury did not learn that in 1998 Cobige was
sentenced to four years’ imprisonment for two drug
offenses and had scarcely been released when she was
arrested again and convicted in 2001 for another drug
crime, for which the sentence was three years. When
she died in 2006, she was in the lockup following arrest
on yet another drug charge. The excluded evidence
would have undermined the favorable picture that
Maurice Cobige painted of his mother’s character and
would have allowed defense counsel to ask just what
kind of “role model” she could have been. Moreover,
evidence that she was in prison for extended periods, and
in thrall to heroin when not imprisoned, would have
undermined testimony that she provided wise advice
and support to her son: prisoners can’t spend nearly
as much time with their relatives as free persons do.
Although a parent’s advice (and object example) not to
No. 10-3728                                             7

repeat the parent’s mistakes may be valuable, this
is not the kind of value that leads to an award of
damages in a wrongful-death action.
   The district court cited Fed. R. Evid. 404(b) and 609
when excluding Cobige’s police record, time in prison,
and drug addiction, and again relied on these
rules when denying Chicago’s post-trial motion. 752
F. Supp. 2d at 877–78. Rule 609(b) says that convictions
that occurred more than ten years before the date of
trial ordinarily may not be used “for the purpose of
attacking the character for truthfulness of a witness”.
That rule has no bearing on this case. Patricia Cobige
did not testify (this is a wrongful-death action, after
all), and Chicago did not attempt to contest her character
for truthfulness. As for Rule 404(b): This begins by
saying that “[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in
order to show action in conformity therewith.” Chicago
did not offer the evidence about imprisonment, arrests,
and addiction to show that Cobige acted “in conformity
therewith” on a different occasion. That is, Chicago
did not propose to use evidence of one crime to estab-
lish propensity to commit another. It proffered the evi-
dence because it is relevant to how much loss Cobige’s
estate and son suffered by her death.
  Cobige’s character and life prospects were put in ques-
tion by her son’s testimony. Just as Maurice Cobige
was entitled to paint a favorable view of his mother’s
ability to give sage advice and emotional support—he
testified that “she taught me mostly everything I know.
Everything she knew she tried to instill in me.”—Chicago
8                                              No. 10-3728

was entitled to introduce evidence suggesting that
Patricia Cobige was not likely to assist others or to have
enjoyed life to the extent that her son narrated. Illinois
law makes surviving relatives’ emotional loss and
familial ties relevant to damages. See, e.g., Pleasance v.
Chicago, 396 Ill. App. 3d 821, 827–28, 920 N.E.2d 572,
578 (2009). The district judge should not have forbidden
evidence that would have helped defendants counter
Maurice’s presentation.
  Rule 403, which permits a judge to exclude relevant
evidence “if its probative value is substantially out-
weighed by the danger of unfair prejudice,” does not
justify exclusion of this evidence. The effect that Chicago
sought would not have been “unfair prejudice”; the
evidence bore directly on the appropriate amount of
damages. When the law makes damages depend on
matters such as the emotional tie between mother and
son, the defendant is entitled to show that the
decedent’s character flaws undermined the quality of
advice and support that she could have supplied. This
kind of effect is not “prejudice” at all—not unless we
count as “prejudice” all evidence that undermines the
other side’s contentions, see Thompson v. Chicago, 472
F.3d 444, 456 (7th Cir. 2006)—let alone “unfair prejudice”.
Defendants preserved their position on this subject by
trying multiple times to have this evidence admitted,
even after the pretrial ruling in limine that forbade its
use; the district court did not find a procedural default,
and we reject Maurice’s contention that the absence of
a formal offer of proof at trial is conclusive against the
defendants. See Fed. R. Evid. 103(a) (no need to renew
an offer of proof after a definitive pretrial ruling).
No. 10-3728                                              9

  The district court’s error in excluding evidence that
could have significantly reduced the award of damages
cannot be called harmless. Defendants are entitled to a
new trial. But because the exclusion did not affect the
jury’s consideration of the merits—not if the jurors fol-
lowed their instructions, anyway, and we do not have
any reason to doubt that they did—the new trial should
be limited to the subject of damages. See Gasoline
Products Co. v. Champlin Refining Co., 283 U.S. 494 (1931)
(new trial limited to damages is proper when liability
and remedy present distinct issues).
  The district court should take care to avoid recurrence
of a problem that cropped up in the first trial. The
jury’s verdict is ambiguous. It awarded $3 million in
compensatory damages on one count of the complaint
and $2 million on another. It is possible that the jury
meant these to be added, as the judge did, for a total of
$5 million, but it is also possible that the jury meant
them to be alternative awards, with only the greater to be
enforced. The verdict form used in this case was not as
opaque as the one in Thomas v. Cook County Sheriff’s
Department, 604 F.3d 293, 310–14 (7th Cir. 2010), but it
was far from ideal and should be improved for the
next trial. Thomas offers some help for that endeavor.
  The judgment is affirmed to the extent it establishes
the police officers’ liability but is vacated to the extent
that it assesses damages. The case is remanded for a
new trial limited to damages.



                          7-12-11
