      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206             2    Bowman v. Corrections                Nos. 00-6719/6720
   ELECTRONIC CITATION: 2003 FED App. 0413P (6th Cir.)         Corp. of Am.
               File Name: 03a0413p.06
                                                                              _________________
UNITED STATES COURT OF APPEALS                                                     COUNSEL
             FOR THE SIXTH CIRCUIT                        ARGUED:         James F. Blumstein, VANDERBILT
               _________________                          UNIVERSITY LAW SCHOOL, Nashville, Tennessee, for
                                                          Appellant. John W. Chandler, Jr., Memphis, Tennessee,
PATRICIA BOWMAN ,                X                        Patrick A. Ruth, RUTH, HOWARD, TATE & SOWELL,
             Plaintiff-Appellee/ -                        Nashville, Tennessee, for Appellee. ON BRIEF: James F.
               Cross-Appellant, -                         Blumstein, VANDERBILT UNIVERSITY LAW SCHOOL,
                                  -   Nos. 00-6719/6720   Nashville, Tennessee, Andree Sophia Blumstein,
                                  -                       SHERRARD & ROE, Nashville, Tennessee, Tom Anderson,
            v.                     >                      ANDERSON LAW FIRM, Jackson, Tennessee, for
                                  ,
                                  -                       Appellant. John W. Chandler, Jr., Memphis, Tennessee,
CORRECT IONS CORPORATION          -                       Patrick A. Ruth, RUTH, HOWARD, TATE & SOWELL,
OF AMERICA ,                      -                       Nashville, Tennessee, Joseph Howell Johnston, Nashville,
                                                          Tennessee, for Appellee.
          Defendant-Appellant/ -
                Cross-Appellee. -                                             _________________
                                  -
                                 N                                                OPINION
      Appeal from the United States District Court                            _________________
    for the Middle District of Tennessee at Nashville.
 No. 96-01142—William J. Haynes, Jr., District Judge.       BOGGS, Chief Judge. Anthony Bowman was an inmate at
                                                          the South Central Correctional Center (SCCC) who had a
               Argued: March 27, 2003                     long history of medical problems associated with sickle cell
                                                          anemia. Over the course of his incarceration at SCCC,
       Decided and Filed: November 21, 2003               Anthony experienced numerous infections, and was
                                                          hospitalized repeatedly. During one such episode, on
Before: BOGGS, Chief Judge; and SUHRHEINRICH and          January 3, 1996, Dr. Coble, the medical director at SCCC,
              SILER, Circuit Judges.                      admitted Anthony to the SCCC infirmary, having diagnosed
                                                          him with “an early pneumonia,” and on January 4, 1996,
                                                          Anthony was transferred to the Nashville Memorial Hospital
                                                          where he died a day later, at the age of twenty-eight.
                                                            Anthony’s mother, Patricia Bowman, on behalf of her son
                                                          and his two children (collectively Bowman) filed a civil rights
                                                          complaint under 42 U.S.C. § 1983, naming as defendants,

                           1
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among others, the Corrections Corporation of America               making the various evidentiary rulings objected to by
(CCA), Kevin Myers, the warden of CCA’s South Central              Bowman. We reverse the district court’s holding with respect
Facility, and Dr. Robert B. Coble, the physician with whom         to the unconstitutionality of CCA’s medical policy and the
CCA contracted for medical services for inmates housed             injunction awarded on that basis, because this issue is moot
within SCCC. The complaint alleged that the defendants had         as to Bowman and she had no standing upon which to bring
violated her son’s constitutional right to adequate medical        such a claim for prospective relief. Finally, we vacate the
care while incarcerated. The case went to trial and the jury       district court’s award of attorney’s fees to Bowman, because
found that the defendants had not acted with deliberate            Bowman is no longer the prevailing party.
indifference towards Anthony’s serious medical condition.
The district court entered judgment in accordance with the                                               I
jury verdict, but granted Bowman’s motion for judgment as
a matter of law in part, holding that CCA’s medical policy, as                            A. The Medical Contract
reflected in its agreement with Dr. Robert B. Coble, is
unconstitutional. On this basis, the district court enjoined          During 1990, the State of Tennessee issued a request for
CCA and all parties acting in concert with it from enforcing       proposals from private companies to manage the South
its contract with Dr. Coble and additionally granted the           Central Correctional Center (SCCC)1. The proposals were to
plaintiff’s motion for sanctions, but only to the extent of        include a detailed budget of projected costs for operating the
awarding attorney’s fees in relation to a particular evidentiary   SCCC, including the cost of providing medical care to SCCC
dispute in which CCA failed to supplement properly its             inmates. Tennessee required the companies submitting
discovery responses as to the number of referrals it had made      proposals to state how much they would charge Tennessee on
to medical specialists on behalf of inmates. Bowman also           a per inmate per day (PIPD) basis to manage the SCCC and
moved for an award of attorney’s fees under 42 U.S.C. § 1988       their estimated profit for doing so. On January 24, 1992,
as a “prevailing party” in a § 1983 case. The district court       following negotiations regarding the SCCC budget and
awarded Bowman attorney’s fees and costs, but only on a pro-       CCA’s profit margin, CCA entered into a three-year contract
rated basis for the issues upon which she had “prevailed”          with the State of Tennessee, acting through the Tennessee
against the defendants.                                            Department of Corrections (TDOC), to house state prisoners
                                                                   at CCA facilities, including SCCC. The contract contained an
  CCA appeals both the district court’s injunction and its         option to renew for two additional years.
award of attorney’s fees under 42 U.S.C. § 1988 to Bowman.
Bowman cross-appeals the district court’s partial denial of her      As part of the contract process, CCA estimated its medical
motion for a judgment as a matter of law or for a new trial, on    expenses for the treatment of prisoners. This expense
her claims for compensatory and punitive damages against           category included hospital expenses incurred during the first
CCA, Dr. Coble, and Myers for their alleged violations of          seventy-two hours up to four thousand dollars per
Bowman’s son’s Eighth Amendment right to be free of “cruel         hospitalization, referrals to medical specialists, prescription
and unusual punishment.” We affirm the district court’s            drugs and laboratory tests. CCA’s initial projection was
denial of Bowman’s motion for judgment as a matter of law
or a new trial because there was evidence to support the jury’s
verdict and the district court did not abuse its discretion in         1
                                                                           Also referred to as SCCF: South Cen tral Co rrectional Facility.
Nos. 00-6719/6720                       Bowman v. Corrections                 5    6       Bowman v. Corrections                     Nos. 00-6719/6720
                                                Corp. of Am.                               Corp. of Am.

$500,000 per year for these expenses (projecting an average                        Every six months, CCA would calculate the amount being
of $1.34 PIPD in 1992, gradually rising over the years to an                       spent PIPD. If the amount being spent was equal to or more
average of $1.48 in 1997). However, during 1992, 1993, and                         than $3.07, which was the average amount being spent by
1994, CCA’s actual expenses for these services and products                        CCA PIPD at the time of contract negotiations with Dr.
averaged $1,000,000 per year ($3.75 PIPD in 1992, $3.16                            Coble, no further money would be distributed to Dr. Coble.
PIPD in 1993, and $2.41 PIPD in 1994). In response to being                        If, however, the amount being spent PIPD was less than
so dramatically over budget, CCA negotiated a contract with                        $3.07, Dr. Coble would receive a “proportionate return” of
Dr. Coble to be the exclusive provider of medical services at                      the amount withheld, up to the full $9.40 per inmate. Finally,
SCCC. Dr. Coble was, among other things, to “determine the                         Dr. Coble would receive an additional five percent bonus if he
existence of medical emergencies,” and therefore determine                         was able to keep the PIPD cost below $2.47.
when it was necessary to send a patient to the hospital or for
a medical referral. This contract was executed on October 6,                         From the very beginning, it is undisputed that Dr. Coble
1994, and effectively created a managed health-care system                         received the maximum amount of income that he could under
at SCCC. The contract automatically renewed itself on an                           his contract with CCA, since he was able to reduce CCA’s
annual basis and could be terminated by either party upon 60                       non-personnel medical expenses at SCCC below the lowest
days notice.                                                                       level set forth in the capitation plan provision of his contract.
                                                                                   Furthermore, it is agreed that during Dr. Coble’s tenure, the
  Unlike CCA’s previous agreements with other physicians,                          total amount CCA spent on inmate medical services at SCCC
this contract provided a “capitation plan,” which provided Dr.                     remained approximately the same per year at $1,000,000 from
Coble with a financial incentive to reduce the PIPD costs for                      1994 through 1997, despite the fact that the population of
CCA. Dr. Coble received a minimum salary under the                                 inmates increased from 1311 in October 1994, to
contract, but was able to earn up to an additional $100,000                        approximately 1506 in 1997,3 and the fact that, after August
annually by reducing CCA’s costs.2 The way in which the                            1995, TDOC began to charge CCA for prisoners sent to the
incentive system worked is laid out in the contract and can be                     DeBerry Special Needs Facility for specialty consultations,
understood as follows:                                                             when it had not previously done so. By June 1995, CCA’s
                                                                                   PIPD cost was reduced to as little as $1.46, and appears to
  According to CCA’s contract with Dr. Coble, he was to be                         have remained close to that amount thereafter.
paid a flat rate of $9.40 per inmate under his care, every
month. However, twenty percent of that figure was
“withheld” so that Dr. Coble’s minimum salary was actually                             3
eighty percent of $9.40 or $7.52 per inmate, per month.                                   A chart supplied by T DO C rep orts that the numb er of inm ates at
                                                                                   SCCC during the month of October 1994 was 1311, but does not reflect
                                                                                   numbers for 1997. A letter from the ward en of SCCC, which discusses
     2
                                                                                   the remarkable reduction in costs for prescription drugs since 1994,
       For some reason the district court and Bowm an’s briefs both use the        desp ite the increase in the numb er of inm ates, reflec ts an inmate
figure of $95 ,000 , but the d efendants ad mit in their respo nse to B owm an’s   population size of 1506 during the months of February through Augu st,
second request for admissions that Dr. Coble could earn as much as                 1997. Although there is some dispute over precise numbers for this time
$100,000. Of course this number would fluctuate according to the                   period, both parties agree that the inmate population increased
number of inma tes at SC CC, since D r. Coble was paid on a per inmate             significantly from 1994 to 1997, and the numbers supplied by these
basis.                                                                             exhibits are evidence of that increase.
Nos. 00-6719/6720                    Bowman v. Corrections              7    8     Bowman v. Corrections                 Nos. 00-6719/6720
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  The evidence suggests that this remarkable reduction in                    Coble by telephone, the nurse, John Crunk, gave him an
costs resulted primarily from less specialty referrals and less              intramuscular injection of the synthetic opiate Nubane, gave
money spent on prescription drugs. For example, the                          him an oral antibiotic and Tylenol for his temperature, and
physician at SCCC before Dr. Coble referred SCCC inmates                     placed him in the infirmary. Anthony was examined by Dr.
to medical specialists 1,886 times the year prior to October                 Coble the next day and received an x-ray. Two days later, on
1994, while Dr. Coble referred SCCC inmates to medical                       the morning of January 4, 1996, Dr. Coble called Dr.
specialists only 506 times the following year. Similarly, the                Capobianco to arrange approval for a transfer of Anthony to
cost of prescription drugs provided to SCCC inmates was                      Nashville Memorial Hospital to the care of Dr. Boatright,
reduced by approximately thirty-nine percent from 1994 to                    who had treated him in the past. Anthony was transferred that
1997.4                                                                       afternoon and admitted to Nashville Memorial Hospital.
                                                                             Anthony died in the hospital the afternoon of January 5.
                         B. Bowman’s Case                                    According to the autopsy report, he died of complications
                                                                             related to his sickle cell anemia, including acute
  Anthony Bowman was an inmate at SCCC, who had been                         bronchopneumonia, autosplenectomy, and hepatomegaly.
incarcerated for violating the conditions of his parole,
following a conviction for passing forged checks.                               This case began as a civil rights action, based on the line of
Throughout his life he had suffered from a form of sickle cell               cases holding that deliberate indifference to a prisoner’s
anemia known as “acute chest syndrome,” a genetic blood                      illness or injury by prison authorities violates the Eighth
disorder in which sickled red blood cells clog the capillaries               Amendment, as made applicable to the states by the
of the lungs and prevent the normal exchange of carbon                       Fourteenth Amendment’s Due Process Clause, and is,
dioxide for oxygen. In the last years of his life, he                        therefore, a valid cause of action under § 1983. See, e.g.,
experienced frequent crises and his medical records reveal                   Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). Suing on
that he was seen almost daily by medical personnel at SCCC.                  behalf of her son and his two children, Patricia Bowman
                                                                             sought compensatory and punitive damages jointly and
  On January 1, 1996, Anthony arrived at the medical                         severally from CCA, Myers, and Dr. Coble for violating
department at SCCC in a wheelchair, complaining of severe                    Anthony’s Eighth Amendment right. She claims that Dr.
pain on the left side of his chest, from his armpit to his ribs.             Coble’s delay in sending Anthony to the hospital caused his
His blood pressure, pulse, and respirations were elevated and                death and was an example of his deliberate indifference
he had a fever of 102.4 degrees. After consulting with Dr.                   towards Anthony’s medical care as a result of his financial
                                                                             arrangement with CCA. Bowman contends that CCA’s
                                                                             policy authorized and encouraged deliberate indifference,
    4
      In a letter from W arden M yers of SCCC describing the remarkable      since CCA did not investigate the dramatic drop in medical
savings achieved during the perio d from 199 4 to 1 997 , the warden lists   costs to the inmate population and simply urged Dr. Coble to
the amount of money spent on prescription drugs from February through        reduce those costs further. Finally, Bowman contends that
August of each year, along with the inmate population. In 1994, the          Warden Myers exhibited deliberate indifference to Bowman’s
pop ulation was 1336 and the amount spent on prescription drugs was          care, because he allegedly failed to investigate the medical
$108,751, which is approximately $81.40 per inmate. In 1997, the
population was 1506 and the amount spent on prescription drugs was           care that Bowman was receiving after having received a
$74,660, which is approximately $49.58 per inmate.                           concerned telephone call from TDOC Commissioner
Nos. 00-6719/6720                Bowman v. Corrections         9    10   Bowman v. Corrections                 Nos. 00-6719/6720
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Campbell, which should have put him on notice that there            credibility of witnesses, or substitute its judgment for that of
was a problem.                                                      the jury.” Toth v. Yoder Co., 749 F.2d 1190, 1194 (6th Cir.
                                                                    1984). Instead we must view the evidence in the light most
   The case was tried to a jury, which returned a verdict in        favorable to the opposing party, drawing all reasonable
favor of the defendants CCA, Myers, and Dr. Coble. The jury         inferences in its favor. Ibid.
specifically found that neither Dr. Coble nor Warden Myers
was deliberately indifferent to Anthony’s serious medical             In order for Bowman to have succeeded in her claim that
condition and thus, there was no violation of Anthony’s             the defendants violated Anthony’s Eighth Amendment right,
constitutional rights. The district court entered judgment for      she must have demonstrated “acts or omissions sufficiently
the defendants in accordance with the jury verdict, but held        harmful to evidence deliberate indifference to serious medical
that CCA’s medical policy violated the Eighth Amendment             needs.” Estelle, 429 U.S. at 106. Mere negligence or
right of inmates at SCCC to receive adequate medical care           malpractice is insufficient to establish an Eight Amendment
and enjoined enforcement of Dr. Coble’s contract. This              violation. Id. at 106 n.14. The Supreme Court has further
appeal followed.                                                    explained that the Estelle standard contains both an objective
                                                                    component – whether the deprivation was sufficiently serious
                               II                                   – and a subjective component – whether the prison official
                                                                    acted with a sufficiently culpable state of mind. Farmer v.
       A. Motion for a Judgment as a Matter of Law                  Brennan, 511 U.S. 825, 838-39 (1994).
   The district court denied Bowman’s motion for judgment              Bowman argues that Dr. Coble was liable on the theory that
as a matter of law, or in the alternative, for a new trial          he responded to the financial incentives in his contract with
pursuant to Fed. R. Civ. P. 50(b). Bowman contends that the         CCA by denying appropriate care to SCCC inmates,
district court erred in not granting her motion for judgment as     including Bowman. However, the defendant’s proof included
a matter of law against Dr. Coble, Warden Myers, and CCA,           the testimony of two physicians who were familiar with the
because the jury verdict was contrary to the evidence               treatment of sickle cell anemia, Dr. John Flexner and Dr.
presented at trial. We review the denial of a motion for            Frank Thomas. Both of these physicians testified that Dr.
judgment as a matter of law de novo. McCurdy v.                     Coble’s treatment of Anthony was appropriate. With this
Montgomery County, 240 F.3d 512, 516-17 (6th Cir. 2001)             testimony, the jury could reasonably conclude that Coble was
(citing Cook v. Am. S.S. Co., 53 F.3d 733, 740 (6th Cir.            not deliberately indifferent and, as we have stated above, we
1995)). Fed. R. Civ. P. 50(a)(1) states that “[i]f during a trial   will not second guess the jury’s determinations of credibility.
by jury a party has been fully heard on an issue and there is       See Toth, 749 F.2d at 1194.
no legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue,” then judgment as a matter of      Warden Myers was liable, according to Bowman, on the
law for the opposing litigant is appropriate. The motion “may       theory that he allegedly failed to investigate the medical care
not be granted unless reasonable minds could not differ as to       Bowman was receiving after he received a telephone call
the conclusions to be drawn from the evidence.” McJunkin            from TDOC Commissioner Campbell on January 2, 1996,
Corp. v. Mechanicals, Inc., 888 F.2d 481, 486 (6th Cir. 1989).      which put him on notice about concerns regarding Bowman’s
An appeals court is not to “weigh the evidence, pass on the         medical care. Warden Myers was responsible for the day-to-
Nos. 00-6719/6720               Bowman v. Corrections        11    12    Bowman v. Corrections                 Nos. 00-6719/6720
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day operations of SCCC and only had supervisory authority          damages for having been arrested without probable cause and
over Dr. Coble in relation to administrative matters, such as      having been the victim of excessive force by one of the
the transportation and security of the inmates. According to       officers during the course of the arrest. The district court held
Myers’s deposition testimony, Dr. Coble’s medical decisions        a bifurcated trial, hearing first Mr. Heller’s claims against the
were not reviewable by Myers. Furthermore, Myers testified         police officer responsible for the alleged excessive force. The
that he knew Dr. Coble to be familiar with Anthony and his         jury found for the police officer. On that basis, the district
history of sickle cell anemia, and relied on the doctor to         court dismissed the case against the remaining defendants.
provide Bowman with appropriate medical care. Based on             The Ninth Circuit reversed, but the Supreme Court reversed
this evidence, the jury could reasonably conclude that even        the Ninth Circuit, noting that if the police officer “inflicted no
after having received a concerned phone call, Myers’s              constitutional injury on [Mr. Heller], it is inconceivable that
reliance on Dr. Coble did not rise to the level of deliberate      [the remaining defendants] could be liable to [Mr. Heller].”
indifference. In sum, although there was evidence presented        Heller, 475 U.S. at 799. The court went on to state that “[i]f
to contradict the conclusion reached by the jury, there was        a person has suffered no constitutional injury at the hands of
nevertheless sufficient evidence to support the jury’s findings    the individual police officer, the fact that the departmental
and they are not clearly erroneous. For these reasons we           regulations might have authorized the use of constitutionally
agree with the district court that there was sufficient evidence   excessive force is quite beside the point.” Ibid. (emphasis in
to uphold a judgment in favor of Dr. Coble and Warden              the original).
Myers.
                                                                      In Hancock, 958 F.2d at 1375, we dealt with a similar
   Next, Bowman argues that even if Dr. Coble and Warden           situation. The wife of an arrestee brought a § 1983 action
Myers were not deliberately indifferent, and therefore not         against the city of Lake Orion and a police officer, claiming,
liable, CCA’s policy, as embodied in its contract with Dr.         among other things, that a police officer had entered their
Coble, and its subsequent lack of investigation as the costs for   home without a search warrant, in violation of the Fourth and
medical care for inmates at SCCC plummeted, was                    Fourteenth Amendments. We held that the search was
nevertheless unconstitutional and, thus, CCA should be held        justified by exigent circumstances and that “[b]ecause the
liable. However, on the basis of City of Los Angeles v.            only city police officer present committed no constitutional
Heller, 475 U.S. 796, 799 (1986), and our subsequent               violation, the city cannot be held liable.” Id. at 1376.
decision in Hancock v. Dodson, 958 F.2d 1367, 1376 (6th Cir.
1992), the district court held that without a constitutional          Bowman argues that Heller is not controlling in this case,
violation of Anthony’s Eighth Amendment right by Dr. Coble         and that we should instead follow a line of Eighth Circuit
or Warden Myers, CCA cannot be held liable for its policy,         cases that distinguish Heller, upholding direct municipal
even if it were to encourage deliberate indifference. We           liability without finding a municipal employee liable in his or
agree.                                                             her individual capacity. Bowman points in particular to the
                                                                   recent case of Speer v. City of Wynne, 276 F.3d 980 (8th Cir.
  In Heller, the plaintiff brought a § 1983 case against the       2002), in which a city police officer brought a § 1983 action
City of Los Angeles, members of the city police commission,        against the city and the mayor, alleging that the city’s failure
and two police officers who had stopped and arrested him on        to conduct a name-clearing hearing prior to his termination
suspicion of driving while intoxicated. Mr. Heller claimed         violated his procedural due-process rights. A newspaper
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article quoted the mayor concerning allegations that the             there was no violation of Bowman’s rights by anyone, even
officer had traded sex with suspects for favors, yet at trial        if CCA’s policy implicitly authorized such a violation. The
several people recanted their earlier allegations, and the city      similarity between this case and Heller is that the
eventually conceded that the allegations were false. The court       constitutional violation claimed either occurred or did not
held that the officer had a right to a name-clearing hearing in      occur as a direct result of the actions of at least one person, in
order to protect his liberty interest in his good name and           this case Dr. Coble. This is not a scenario in which the
reputation and that the city could not deprive him of that           “combined actions of multiple officials” could give rise to the
interest without due process, and thereby found the city liable.     violation at issue. For these reasons, we affirm the district
Id. at 984-85. Nevertheless, the court concluded that if the         court’s denial of Bowman’s motion for a judgment as a matter
Mayor was not the city official who refused to give the officer      of law against the defendants in this case.
the opportunity to clear his name, the Mayor was not
individually liable. Id. at 987. The court distinguished                               B. Motion for a New Trial
Heller, stating:
                                                                       Bowman argues that she is entitled to a new trial because
  The outcome of the inquiry depends on the nature of the            the district court improperly admitted the testimony of four
  constitutional violation alleged, the theory of municipal          medical expert witnesses for the defense, erred in excluding
  liability asserted by the plaintiff, and the defenses set          the testimony of Father John Paris, and improperly allowed
  forth by the individual actors. We do not suggest that             Warden Myers to testify in contradiction to an admission he
  municipal liability may be sustained where there has               made during a pretrial interrogatory and allowed him to
  been no violation of the plaintiff’s constitutional rights as      testify as to his “habit” without having raised the issue prior
  a result of action by the municipality’s officials or              to trial. We review all evidentiary rulings for an abuse of
  employees. . . . However, situations may arise where the           discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141
  combined actions of multiple officials or employees may            (1997); United States v. Schreane, 331 F.3d 548, 564 (6th Cir.
  give rise to a constitutional violation, supporting                2003).
  municipal liability, but where no one individual’s actions
  are sufficient to establish personal liability.                       Bowman first contends that the defendants were improperly
                                                                     allowed to call four medical experts whose testimony she
Id. at 986.                                                          alleges was cumulative and redundant under Fed. R. Evid.
                                                                     403. However, these witnesses possessed expertise in the
   Ultimately, it is not necessary to choose between the Eighth      distinct areas of hematology, pulmonary medicine and critical
Circuit’s reasoning and our own in Hancock, following                care, infectious disease, and pathology. These experts were
Heller, since they are entirely reconcilable. In Speer, the          used to rebut the testimony of Bowman’s experts that
Eighth Circuit held that there must be a violation of the            Anthony could have died from various causes, including
plaintiff’s constitutional rights in order for liability to attach   sickle cell anemia, a bacterial infection, or a pulmonary
to either the individual defendants or to the municipal              infection. Furthermore, the jury was instructed that the
authority under § 1983. In Speer, the plaintiff’s constitutional     number of witnesses for one side was not to be considered in
rights were violated, but not by the Mayor. Here, if we              weighing the proof. District courts have wide discretion in
uphold the jury’s findings as to Dr. Coble and Warden Myers,         managing the quantities of evidence admitted. The district
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                                         Corp. of Am.                     Corp. of Am.

court did not abuse its discretion in allowing the defendants          Bowman’s third new trial issue deals with Warden Myers’s
to call four medical experts in this case, all of whom testified    testimony at trial, in which he stated that he did not
as to different aspects of Anthony’s care and medical               “specifically recall” receiving Commissioner Campbell’s
condition.                                                          telephone call, despite his response to a request for admission
                                                                    by the plaintiff, in which he stated “to the best of [his]
   Bowman’s second claim, regarding the district court’s            memory and recollection” he had received such a call.
decision to bar John Paris’s testimony is also without merit.       Bowman contends that this testimony essentially
Before trial, Bowman identified two experts who were to             circumvented his prior admission and is, therefore, grounds
testify as to the ethical impropriety of the contract between       for a new trial. However, after this testimony was given, the
CCA and Dr. Coble. One, Dr. Howard Brody, was a licensed            district judge called the lawyers into a sidebar and at the end
physician, while the other, Father John Paris, was a medical        of that sidebar, the following testimony was given:
ethicist. At trial, Bowman decided to have Dr. Brody testify
first.                                                                Q    Warden Myers, just so there is no confusion, you do
                                                                           agree or admit that Warden – or excuse me, that
  After hearing Dr. Brody’s testimony, the district court                  Commissioner Campbell apparently called you on
reconsidered its previous denial of the defendants’ pretrial               January the 2nd, 1996?
motion to exclude the testimony of both Dr. Brody and John
Paris. Because Paris was not a physician, and his expert              A    I will admit to that.
report “read like a lawyer’s brief,” the district court concluded
that it was not appropriate for him to testify. Moreover,           In addition, on cross-examination, Bowman’s lawyer led
Bowman had already presented proof by a physician on the            Myers through his pretrial admissions. The district court
medical ethics of CCA’s contract with Coble, and the court          ultimately ruled that Myers was bound by his response to the
felt that Paris’s evidence on this issue would be cumulative.       specific request for admission and so instructed the jury. The
                                                                    judge’s corrective action rendered any error harmless. We
   A district court is “free to exclude any expert testimony,       will only reverse the district court’s judgment if the error was
including testimony of an announced expert, if the testimony        not harmless. United States v. Carter, 969 F.2d 197, 201 (6th
is cumulative or redundant under Fed. R. Evid. 403.” In re          Cir. 1992).
Air Crash Disaster, 86 F.3d 498, 527 (6th Cir. 1996). While
we encourage the district court to make such rulings before            Myers also testified that there was an “informal procedure”
the trial, as a last-minute decision made during trial can be       for dealing with phone calls received from “outside sources”
disruptive to a party’s strategy, we also cannot hold that in       such as Commissioner Campbell. Bowman argues that this
this case the district court’s decision was an abuse of             testimony regarding Myers’s habits should not have been
discretion. Furthermore, Bowman has not demonstrated how            admitted since it was not raised prior to trial and since the
the exclusion of Paris’s testimony resulted in substantial          defendants did not establish a “degree of specificity and
injustice to Bowman, and we will not disturb a discretionary        frequency of uniform response” in order to ensure that it was
decision on appeal unless it is unsupported in fact and results     truly a habit. Bowman also argues that this evidence was
in substantial injustice to the aggrieved party. McGowan v.         prejudicial since it created a false impression in the minds of
Cooper Indus., 863 F.2d 1266, 1271 (6th Cir. 1988).
Nos. 00-6719/6720                     Bowman v. Corrections            17     18   Bowman v. Corrections                Nos. 00-6719/6720
                                              Corp. of Am.                         Corp. of Am.

the jury that Myers had in fact taken action in response to the               evidence that is not present in Myers’s testimony. In Simplex,
phone call from Commissioner Campbell.                                        a supplier had brought an action against its purchaser,
                                                                              alleging anticipatory and actual breach of various contracts.
  We reject Bowman’s arguments. First, Bowman did not                         The purchaser answered and counterclaimed, asserting breach
object to the admission of what she describes as “habit”                      of agreement by failing to meet contract specifications.
testimony by Myers at trial. Bowman has, therefore, waived                    During the subsequent trial, the purchaser sought to introduce
any objection she may have had to such testimony. Fed. R.                     evidence of the supplier’s allegedly routine practice of “late
Evid. 103 (error may not be predicated upon a ruling that                     deliveries and defective performance pursuant to Rule 406."
admits evidence “unless a substantial right of the party is                   The district court excluded this evidence and the Seventh
affected, and . . . a timely objection or motion to strike                    Circuit affirmed that decision on review, recognizing that
appears of record, stating the specific ground of objection, if               such evidence was likely to conflict with Fed. R. Evid. 404,
the specific ground was not apparent from the context.”). See                 which expressly prohibits the admission of prior bad acts used
also American Anodco, Inc. v. Reynolds Metals Co., 743 F.2d                   to establish a party’s propensity to act in conformity
417, 424 (6th Cir. 1984).5 We, therefore, review only for                     therewith, except under narrowly prescribed circumstances.
plain error pursuant to Fed. R. Civ. P. 52(b), which allows us                The court in Simplex held that, under these circumstances,
to consider a plain error that affects the substantial rights of              “before a court may admit evidence of habit, the offering
the party, even if it was not brought to the court’s attention.               party must establish the degree of specificity and frequency
There is no such error here. Habit evidence is entirely                       of uniform response that ensures more than a mere ‘tendency’
admissible under Fed. R. Evid. 406, which states in relevant                  to act in a given manner, but rather, conduct that is ‘semi-
part: “Evidence of the habit of a person . . ., whether                       automatic’ in nature.” Id. at 1293. The testimony offered by
corroborated or not and regardless of the presence of                         Myers does not conflict with Rule 404 and is not otherwise so
eyewitnesses, is relevant to prove that the conduct of the                    prejudicial as to outweigh its probative value under the
person . . . was in conformity with the habit.”                               circumstances. The district court did not commit error in
                                                                              allowing it to be admitted. We therefore affirm the district
   Bowman contends that the district court erred in admitting                 court’s denial of Bowman’s motion for a new trial.
this evidence and relies on a Seventh Circuit case for the
proposition that before a court may admit habit evidence, the                                              III
offering party must establish a degree of specificity and
frequency of posited response. See Simplex, Inc. v.                                                  The Injunction
Diversified Energy Systems, 847 F.2d 1290 (7th Cir. 1988).
However, Simplex dealt with a particular subset of habit                         CCA contends that the district court’s holding that its
                                                                              medical policy is unconstitutional should be reversed for three
                                                                              reasons. CCA argues that the district court: 1) did not have
                                                                              jurisdiction to issue injunctive relief since it confronted no
    5
     Bowman states in her Rep ly Brief at 33 that she did object to “the      live “case or controversy”; 2) was precluded from awarding
admission of Myers’ ‘habit’ testimony.” However, we find no such              injunctive relief by the Prison Litigation Reform Act of 1996,
objection on the record. Instead, Bowman objected to the entirety of          18 U.S.C. § 3626 (PLRA); and 3) erred in finding that CCA
Myers’s testimony, stating that it was an attempt to “get around” his prior
admission.
                                                                              violated its Eighth Amendment duty to Anthony. We need
Nos. 00-6719/6720                Bowman v. Corrections        19    20   Bowman v. Corrections                 Nos. 00-6719/6720
                                         Corp. of Am.                    Corp. of Am.

only look at the first argument, for this issue is clearly moot     inevitable result. Kremens was a class action suit in which
as a result of Anthony’s death, and Bowman has no standing          teenagers between the age of 15 and 18 years old were the
to request injunctive relief.                                       named plaintiffs challenging the constitutionality of a
                                                                    Pennsylvania statute governing the voluntary admission and
                         A. Mootness                                voluntary commitment of persons 18 years of age and
                                                                    younger to state mental institutions. As a result of a change
  The district court noted that because Anthony had died, “it       in the law, which was immediately applicable, mentally ill
is clearly arguable that any claim for injunctive relief is         juveniles 14 years of age and older were, in essence, treated
moot.” Nevertheless, the district court resolved this issue in      as adults, thereby rendering the claims of the named plaintiffs
favor of Bowman, stating in relevant part:                          moot on appeal. Nevertheless, the Court held that the case
                                                                    could be heard, relying on the fact that “[i]n particular types
    [E]xceptions arise for the type of important legal issue        of class actions this Court has held that the presence of a
  that is “capable of repetition, yet evading judicial              properly certified class may provide an added dimension to
  review,” Kremens v. Bartley, 431 U.S. 119, 133 (1977),            our Art. III analysis, and that the mootness of the named
  or involves a class action. County of Riverside v.                plaintiffs’ claims does not ‘inexorably’ require dismissal of
  McLaughlin, 500 U.S. 44 (1991). Here, this is a rare              the action.” Kremens, 431 U.S. at 129-30. However, the
  case in which a prisoner is represented by counsel on a           Court specifically noted that “[i]f the only appellees before us
  constitutional issue of the dimensions raised here.               were the named appellees, the mootness of the case with
  Moreover, although this is nominally not a class action,          respect to them would require that we vacate the judgment of
  there was class type proof introduced on the effects and          the District Court with instructions to dismiss their
  impact of CCA’s medical policy. Given the extensive               complaint.” Id. at 129. Although Bowman’s case could
  resources devoted to this litigation, the Court concludes         conceivably lend itself to pleading as a class action, we
  that this case represents exceptional circumstances that          cannot change the posture of the case in this appeal. The
  warrant consideration of the constitutionality of this            other case that the district court relied on, Riverside, is yet
  important medical policy that continues to operate at             another class action, and the same reasoning can be applied.
  SCCF.                                                             In fact, the Court very clearly stated that its “cases leave no
                                                                    doubt . . . that by obtaining class certification, plaintiffs
   The district court’s position is not convincing. “The test for   preserved the merits of the controversy for our review.” 500
mootness is whether the relief sought would, if granted, make       U.S. at 51. Any claims for injunctive relief by Bowman, the
a difference to the legal interests of the parties.” McPherson      only plaintiff in this case, have been rendered moot and there
v. Michigan High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458       are no class members to preserve those claims. Thus, we
(6th Cir. 1997) (en banc) (internal quotations and citations        must reverse the district court’s grant of an injunction.
omitted). In this case, an injunction has no impact on
Bowman’s legal interests.                                                                    B. Standing
  Given the fact that Anthony is dead, any claim for                  Although standing is a related issue, it is analyzed
injunctive relief is moot, and the district court improperly        separately, and in this case creates an additional ground for
relies on Kremens and Riverside in an attempt to avoid this         overturning the district court’s injunction. Federal courts are
Nos. 00-6719/6720               Bowman v. Corrections        21    22   Bowman v. Corrections                Nos. 00-6719/6720
                                        Corp. of Am.                    Corp. of Am.

only empowered to adjudicate “cases” or “controversies.”           Anthony were still alive or if there had been other prisoners
U.S. Const. art. III, § 2. Accordingly, Bowman must have a         who were parties and would still have been subject to the
“concrete private interest in the outcome of the suit.” Lujan      medical policy at issue in this case, that is not the situation
v. Defenders of Wildlife, 504 U.S. 555, 573 (1992). To             here, and thus Helling is not applicable.
possess standing for the award of an injunction, even though
she never asked for one, Bowman must show that 1) she has                                 Attorney’s Fees
suffered an “injury-in-fact” that is concrete, particularized,
and actual or imminent; 2) the injury is fairly traceable to the      Bowman petitioned for an award of attorney’s fees under
conduct of the defendants; and 3) the requested relief would       42 U.S.C. § 1988 as a prevailing party in a § 1983 case. The
likely redress the injury suffered. Friends of the Earth, Inc.     district court awarded Bowman attorney’s fees and costs pro-
v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000).             rated for the grounds on which she had “prevailed.” Since we
Bowman cannot meet the third requirement of this test with         now reverse the sole ground on which Bowman succeeded,
respect to injunctive relief, since enjoining Dr. Coble’s          Bowman is no longer entitled to an award of attorney’s fees
contract with CCA will not affect her in any way and will          or costs, as she is no longer a “prevailing party” for purposes
certainly not redress the alleged injury.                          of the statute. See 42 U.S.C. § 1988; Hensley v. Eckerhart,
                                                                   461 U.S. 424, 433 (1983). The district court’s award of
  Bowman argues that the Supreme Court’s decision in               attorney’s fees and costs should therefore be reversed.
Helling v. McKinney, 509 U.S. 25 (1993), provides a basis for
the district court’s injunction. In Helling, a prisoner brought                                  IV
a civil rights action against various prison officials, alleging
a violation of the Eighth Amendment due to his exposure to            For the reasons given above, we AFFIRM the district
tobacco smoke. Although the Court of Appeals held that the         court’s denial of Bowman’s motion for judgment as a matter
defendants were immune from liability for damages under            of law or a new trial. We REVERSE the district court’s
§ 1983, the Supreme Court nevertheless found that                  holding with respect to the unconstitutionality of CCA’s
McKinney, the prisoner, had stated a valid Eighth                  medical policy, along with the injunction awarded on that
Amendment claim on which prospective relief could be               basis, since this issue is moot for Bowman and she has no
granted through an injunction, by alleging that his compelled      standing upon which to bring such a claim for prospective
exposure to smoke posed an unreasonable risk with respect to       relief. Finally, we REVERSE the district court’s award of
his future health. The defendants argued that unless               attorney’s fees to Bowman, as Bowman is no longer the
McKinney was able to prove that he was currently suffering         prevailing party.
serious medical problems caused by exposure to smoke, there
could be no violation of the Eighth Amendment. However,
the Supreme Court held, as it has before, that the Eighth
Amendment protects against future harm to inmates, noting
that “[i]t would be odd to deny an injunction to inmates who
plainly proved an unsafe, life-threatening condition in their
prison on the ground that nothing yet had happened to them.”
Id. at 33. While this case would have been relevant if
