In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2411

Karen Jutzi-Johnson, as administrator of the
estate of Robert Johnson, deceased,

Plaintiff-Appellee,

v.
United States of America,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 5708--Charles P. Kocoras, Judge.

Argued January 23, 2001--Decided September 4, 2001



  Before Posner, Easterbrook, and Ripple,
Circuit Judges.

  Posner, Circuit Judge. Robert Johnson
hanged himself in his cell in the
Metropolitan Correctional Center, the
federal jail in Chicago, where he had been
held for six months awaiting trial for
extortion. His estate brought this suit for
damages against the United States under the
Federal Torts Claim Act, 28 U.S.C. sec.sec.
1346(b), 2671-80, charging that the jail
was negligent in failing to identify him
as a suicide risk and take suitable
preventive measures. The Act incorporates
local law, id., sec. 1346(b), and so the
question is the liability of the United
States under the principles of Illinois
tort law, though so far as bears on issues
of liability in this case they are the
general principles of Anglo-American tort
law, not anything special to Illinois.

  The district judge, after a bench trial,
awarded the estate $1.8 million in damages,
of which $1.6 million was intended to
compensate for the pain and suffering that
Johnson suffered during the period of
several minutes in which he remained alive
before strangling while hanging from the
noose that he had made out of a bedsheet
and suspended from an exposed pipe that
ran beneath the ceiling of his cell. The
other $200,000 in damages were for the
loss to his family resulting from his
death.

  Although the initial psychological
screening that Johnson like all new inmates
underwent revealed no history of
psychiatric disorders or suicide attempts
and no suicidal thoughts, and although this
was not his first spell of incarceration,
he deteriorated markedly during his stay in
the jail. He scratched and picked at sores
on his body until they bled so copiously
that they stained his clothes and bedsheets
and were noticed by other inmates. One of
the guards observed that Johnson was a
loner, slept a lot during the day, seemed
nervous, had poor hygiene, and had a lot
of sores that bled; yet the guard did not
think to refer Johnson to the medical or
psychology department of the jail. Another
inmate told at least one other member of
the prison staff that Johnson had a
nervous problem and might need an
antidepressant, but nothing was done about
this information either. The day before
Johnson killed himself his cellmate
importuned him to see a physician’s
assistant and filled out a sick-call form
in which the cellmate stated: "Open sores
all over body caused from nerves. Request
to see a psychologist or psychiatrist."
Johnson presented the form to the
physician’s assistant the next day, but she
neglected to read it and when he told her
his roommate was taking some kind of
medication that he thought he should be
taking as well she merely told him to make
an appointment to see the jail
psychologist. He did not do that, but
instead hanged himself 12 hours later.

  The government does not deny that the
jail’s staff was negligent in failing to
discover that Johnson had some kind of
nervous condition and to take steps to
deal with it. The obsessive scratching and
picking, in the context of a general
pattern of abnormal behavior, should have
alerted the staff to the fact that Johnson
might have a psychiatric illness. The
physician’s assistant whom Johnson
consulted should have read the sick-call
form and had she done so she might well
have sent him directly to the jail
psychologist rather than relying on him to
make an appointment to see the
psychologist. But it was the plaintiff’s
burden to prove both that Johnson would
not have committed suicide had the jail’s
staff acted responsibly, e.g., Beul v. ASSE
Int’l, Inc., 233 F.3d 441, 445-47 (7th
Cir. 2000); Merco Distributing Corp.
v.Commercial Police Alarm Co., 267 N.W.2d
652 (Wis. 1978); Guthrie v. American
Protection Industries, 206 Cal. Rptr. 834,
836 (Cal. App. 1984); Vastola v.
Connecticut Protective System, Inc., 47
A.2d 844, 845 (Conn. 1946), and that his
suicide was a foreseeable as well as
actual consequence of the staff’s
negligence.

  The issue of causation is doctrinally
straightforward; not so the issue of the
foreseeability of suicide. When failure to
prevent a suicide is claimed to be
negligent, the issue of foreseeability is
analyzed under the rubric of "supervening
cause" and the general rule is that the
negligent actor is not liable for the
victim’s decision to kill himself. The
suicide is said to be a supervening cause
of the victim’s loss of his life, breaking
the chain of responsibility that would
otherwise link the loss to the negligent
act. E.g., Beul v. ASSE Int’l, Inc.,
supra, 233 F.3d at 447; McMahon v. St.
Croix Falls School District, 596 N.W.2d
875, 879 (Wis. App. 1999); Wyke v. Polk
County School Board, 129 F.3d 560, 574-75
(11th Cir. 1997); Bruzga v. PMR Architects,
P.C., 693 A.2d 401 (N.H. 1997); Edwards v.
Tardif, 692 A.2d 1266, 1269 (Conn. 1997);
W. Page Keeton et al., Prosser and Keeton
on the Law of Torts sec. 44, p. 311 (5th
ed. 1984). Of course this is just a
conclusion, not reasoning; but it is a
conclusion sustained by reasoning about the
unforeseeability of most suicides and the
role of foreseeability in determining tort
liability. If an employer refuses an
employee’s request for a raise, the latter
may respond by killing himself, and yet
the employer even if somehow negligent in
failing to give the employee the raise
would not be legally responsible for the
death, just as if through the carelessness
of the driver a truck spilled a toxic
substance and a passerby scraped it up and
poisoned his mother-in-law with it the
driver would not be liable to the mother-
in-law’s estate; the son-in-law’s criminal
act would be deemed a supervening cause.
See Rowe v. State Bank of Lombard, 531
N.E.2d 1358, 1361 (Ill. 1988); Giebel v.
Richards, 591 N.W.2d 901 (Wis. App. 1999);
Henry v. Merck & Co., 877 F.2d 1489, 1494-
97 (10th Cir. 1989); Shelton v. Board of
Regents, 320 N.W.2d 748, 752-53 (Neb.
1982).
  A person is not liable for such
improbable consequences of negligent
activity as could hardly figure in his
deciding how careful he should be.
Liability in such circumstances would serve
no deterrent, no regulatory purpose; it
would not alter behavior and increase
safety. Nothing would be gained by imposing
liability in such a case but compensation,
and compensation can be obtained more
cheaply by insurance. But by the same
token the doctrine of supervening cause is
not applicable when the duty of care
claimed to have been violated is precisely
a duty to protect against ordinarily
unforeseeable conduct. A risk unforeseeable
to an ordinary person is foreseeable to a
specialist who assumes a duty to prevent
the risk from materializing. The duty is a
recognition that the unforeseeable has
become foreseeable to the relevant
community. And so a hospital that fails to
maintain a careful watch over patients
known to be suicidal is not excused by the
doctrine of supervening cause from
liability for a suicide, e.g., DeMontiney
v. Desert Manor Convalescent Center, 695
P.2d 255, 259-60 (Ariz. 1985), any more
than a zoo can escape liability for
allowing a tiger to escape and maul people
on the ground that the tiger is the
supervening cause of the mauling. City of
Mangum v. Brownlee, 75 P.2d 174 (Okla.
1938); see also Scorza v. Martinez, 683
So. 2d 1115, 1117 (Fla. App. 1996);
Behrens v. Bertram Mills Circus, Ltd.,
[1957] 2 Q.B. 1, 1 All E.R. 583 (1957). In
both cases there is a foreseeable, in the
sense of probable, hazard which precautions
can and should be taken in order to
lessen. So we may set the language of
supervening cause to one side and ask
simply whether Johnson’s suicide was a
foreseeable consequence of the negligence
of his jailers in responding ineffectually
to his abnormal behavior.

  But first we should consider whether
there was any causal relation between that
negligence and the suicide. We think not.
Johnson did not commit suicide because he
had sores on his body. As nearly as can be
reconstructed from the evidence, he
committed suicide because he was upset
about being in jail, separated from his
family (including a daughter born while he
was in jail) and facing a prison term if
he was convicted. The scratching and the
suicide were the consequences of an
underlying unhappiness. Nothing the jail’s
staff could have done would have alleviated
Johnson’s concerns about separation and
imprisonment. They were inherent in his
situation. True, had the jail’s
psychologist interviewed him, Johnson might
have expressed suicidal thoughts and in
that event the jail would doubtless have
placed him on suicide watch and thereby
prevented him from killing himself. (At
least it would have moved him out of a
cell that, because of the exposed pipe
near the ceiling, made it easy for an
inmate to hang himself.) "Might" is the
operative word. Johnson had no history of
psychiatric illness and had not revealed
any suicidal ideation at his intake exam.
Until nudged by his roommate to visit the
physician’s assistant he had made no effort
to contact the medical (including
psychiatric) personnel of the jail. It is
sheer conjecture that an interview with the
jail psychologist would have produced
sufficient information to have enabled the
psychologist to infer that Johnson was a
suicide risk and place him on suicide
watch. The psychologist would have noticed
Johnson’s sores--would even, we may assume,
have pronounced him or his behavior
bizarre. But bizarre behavior and suicidal
behavior are different, and there is no
evidence that suicidal tendencies can be
inferred from the kind of behavior that
Johnson exhibited.

  It is true that jail inmates are much
more likely to commit suicide than free
persons are--in fact, nine times as likely.
Lindsay M. Hayes & Joseph R. Rowan,
National Study of Jail Suicides: Seven
Years Later 54 (National Center on
Institutions and Alternatives, Feb. 1988).
According to the study just cited (the
only one we have found), 12.9 percent of
jail suicides occur within the first three
hours of confinement, 32.8 percent within
the first 24 hours, 62.1 percent within
the first two weeks, 72.8 percent within
the first month, 89.2 within the first
four months, and 97.4 within the first
seven months. The likelihood of suicide is
highest between 2 and 14 days of
confinement, and only 10.8 percent of
suicides occur after 5 months. Id. at 36.
Thus, when Johnson was in his worst
psychological state, after 5 months of
being in jail, the statistical likelihood
of suicide was diminishing rapidly. No
evidence has been offered that a prisoner
who has no history of suicide attempts or
even suicidal thoughts should be considered
a suicide risk merely because, months after
his imprisonment began, he displays
symptoms of a possible psychiatric
disturbance.

  If the jail psychologist would not have
diagnosed Johnson as suicidal, there is no
reason to believe that his suicide would
have been averted. It is here that the
analysis of causality and the analysis of
foreseeability, though distinct (the issue
of foreseeability does not arise until the
defendant’s negligent act is identified as
a cause of the plaintiff’s injury), blend
insensibly into each other. The reason that
measures to prevent Johnson’s suicide
probably would not have been taken even if
the jail’s staff had been exercising due
care is that the suicide was not a
foreseeable consequence of Johnson’s
behavior. The population of prisons and
jails is not a random sample of American
citizens. It is largely a subset of the
criminal population (not entirely, since
some pretrial detainees are innocent of the
crimes for which they are awaiting trial),
itself a population prone to
abnormalbehavior, and the conditions of
incarceration place the prisoners under
considerable psychological strain. Abnormal
behavior in jails and prisons is therefore
common. Whether such behavior connotes a
substantially enhanced suicide risk after
the first few days or weeks or months of
incarceration is a question on which the
record of this case, including the expert
evidence, casts no light. Had Johnson
developed infections from his obsessive
picking and scratching, the government
might well be liable; for infection is a
foreseeable result of that behavior.
Suicide, so far as the record shows, is
not.

  The psychiatric condition most closely
associated with suicide is severe
("clinical") depression, and a disturbed
sleep pattern is a symptom of depression.
But of course many people who sleep badly
are not depressed, and most people who are
depressed do not commit suicide. No
evidence was presented that compulsive
scratching is a symptom of depression. Had
the staff been more alert, maybe they
would have stumbled on some underlying
psychiatric condition predictive of
suicide. But maybe not, because no one
knows whether Johnson committed suicide
because he was depressed or because he
could not stand the prospect of
imprisonment--as the district judge well
understood. He asked "why did Bob Johnson
take his own life" and answered that "the
evidence presented some reasons but does
not establish any of them with certainty.
While an official declaration by this Court
might be useful in trying to come to grips
with this human tragedy, no explanation
will be offered because it would
necessarily be dependent upon an
inappropriate degree of speculation."
Precisely. The judge should have ended his
opinion there. Since no one knows why
Johnson killed himself, there is no basis
for thinking that due care by the staff
would have prevented him from doing so (by
detecting the risk and, as a consequence,
placing him on suicide watch), or that the
staff should have foreseen that suicide
would be a likely result of its
beingcareless.

  Although our analysis makes it
unnecessary to consider the government’s
objection to the size of the award of dam
ages for pain and suffering, we shall
address that objection in an effort to
provide some guidance for future cases. The
judge awarded the plaintiff $1.6 million
for Johnson’s pain and suffering without
any explanation of how he had arrived at
this amount, apart from noting that "there
is no dispute that Bob Johnson did not die
instantly." Juries do not explain their
reasoning process, but Fed. R. Civ. P.
52(a) requires judges, when they are the
triers of fact, to make written findings
in support of their conclusions. This
means, when the issue is the amount of
damages, that the judge must indicate the
reasoning process that connects the
evidence to the conclusion, here the
evidence that Johnson may have remained
conscious for anywhere from three to twenty
minutes while hanging and the conclusion
that his estate should receive $1.6 million
for his pain and suffering. The judge
should have determined what the best esti
mate of the amount of time that Johnson
remained conscious was and explained why
(supposing it was four minutes) an award
of $400,000 for each minute of pain and
suffering is appropriate. He did neither.

  Awarding any amount of damages for pain
and suffering has long been criticized as
requiring the trier of fact to monetize a
loss that is incommensurable with any
monetary measure. We do not agree with the
criticism. Pain and suffering are perceived
as costs, in the sense of adversities that
one would pay to be spared, by the people
who experience them. Unless tortfeasors are
made to bear these costs, the cost of
being adjudged careless will fall and so
there will be more accidents and therefore
more pain and suffering. The problem of
figuring out how to value pain and
suffering is acute, however. Various
solutions, none wholly satisfactory, have
been suggested, such as asking the trier
of fact, whether jurors or judge, to
imagine how much they would pay to avoid
the kind of pain and suffering that the
victim of the defendant’s negligence
experienced or how much they would demand
to experience it willingly, 2 Dan B.
Dobbs, Dobbs Law of Remedies: Damages-
Equity-Restitution sec. 8.1(4), p. 383 (2d
ed. 1993); or to estimate how much it
would cost the victim (if he survived) to
obtain counseling or therapy to minimize
the pain and suffering, Law Commission,
Damages for Personal Injury: Non-Pecuniary
Loss 8 (Consultation Paper No. 140, 1995);
Andrews v. Grand & Toy Alberta Ltd.,
(1978) 83 D.L.R. (3d) 452, 476-77 (Can. S.
Ct.), or how much they would demand to
assume the risk of the pain and suffering
that the victim experienced. Mark
Geistfeld, "Placing a Price on Pain and
Suffering: A Method for Helping Juries
Determine Tort Damages for Nonmonetary
Injuries," 83 Cal. L. Rev. 773, 818-28
(1995). If they said they would demand
$1,000 to assume a .01 risk of such a
misfortune, this would imply that the
victim should receive an award of $100,000,
as that is the judgment that, if
anticipated, would have induced the
defendant to spend up to $1,000 to
prevent. Talk is cheap, though; and maybe
a better approach would be to present the
jury with evidence of how potential victims
themselves evaluate such risks, an approach
that has been used to infer the value of
life from people’s behavior in using safety
devices such as automobile seatbelts or in
demanding risk premiums to work at
hazardous jobs. See, e.g., Richard Thaler
& Sherwin Rosen, "The Value of Saving a
Life: Evidence from the Labor Market," in
Household Production and Consumption 265
(Nestor E. Terleckyj ed. 1975); W. Kip
Viscusi, "The Value of Risks to Life and
Health," 31 J. Econ. Lit. 1912 (1992);
Paul Lanoie, Carmen Pedro & Robert Latour,
"The Value of a Statistical Life: A
Comparison of Two Approaches," 10 J. Risk
& Uncertainty 235 (1995).
  Most courts do not follow any of these
approaches. Instead they treat the
determination of how much damages for pain
and suffering to award as a standardless,
unguided exercise of discretion by the
trier of fact, reviewable for abuse of
discretion pursuant to no standard to guide
the reviewing court either. To minimize the
arbitrary variance in awards bound to
result from such a throw-up-the-hands
approach, the trier of fact should, as is
done routinely in England, J. Munkman,
Damages for Personal Injury and Death 162-
63 (7th ed. 1985); Law Commission, supra,
at 19-22, be informed of the amounts of
pain and suffering damages awarded in
similar cases. See, e.g., Johnson v. Rogers
& Phillips, Inc., 753 So. 2d 286, 295 (La.
App. 1999); Oscar G. Chase, "Helping Jurors
Determine Pain and Suffering Awards," in
Reforming the Civil Justice System 340
(Larry Kramer ed. 1996); James F.
Blumstein, Randall R. Bovbjerg & Frank A.
Sloan, "Beyond Tort Reform: Developing
Better Tools for Assessing Damages for
Personal Injury," 8 Yale J. Reg. 171, 184-
85 (1991). And when the trier of fact is a
judge, he should be required as part of
his Rule 52(a) obligation to set forth in
his opinion the damages awards that he
considered comparable. We make such
comparisons routinely in reviewing pain and
suffering awards, see, e.g., Tullis v.
Townley Engineering & Mfg. Co., 243 F.3d
1058, 1066 (7th Cir. 2001); Riemer v.
Illinois Dept. of Transportation, 148 F.3d
800, 808 (7th Cir. 1998); DeBiasio v.
Illinois Central R.R., 52 F.3d 678, 689
(7th Cir. 1995), as do other courts. See,
e.g., Smith v. KMart Corp., 177 F.3d 19,
31-32 (1st Cir. 1999); Mathie v. Fries,
121 F.3d 808, 813-14 (2d Cir. 1997);
Williams v. Chevron U.S.A., Inc., 875 F.2d
501, 506 (5th Cir. 1989). It would be a
wise practice to follow at the trial level
as well.

  But can we prescribe it in a case such as
this where the rule of decision is state
rather than federal? The Supreme Court has
held that a rule requiring uniformity in
damages awards is, like a cap on damages,
see Knowles v. United States, 91 F.3d
1147, 1150 (8th Cir. 1996); Aguilar v.
United States, 920 F.2d 1475, 1478 (9th
Cir. 1990); Reilly v. United States, 863
F.2d 149, 161 (1st Cir. 1988), substantive
within the meaning of the Erie doctrine.
Gasperini v. Center for Humanities, Inc.,
518 U.S. 415, 428-31 (1996). But the Erie
doctrine, a limitation on federal judicial
intervention in disputes that arise under
state law, is not directly applicable to a
suit against the United States. Here state
law is being borrowed only because there
is no well developed body of federal
common law concerning the common torts such
as negligence, not because there is a
state interest in the outcome of the suit.
It is true that Erie was not merely a
constitutional decision but also an
interpretation of the Rules of Decision
Act, 28 U.S.C. sec. 1652--but that Act
provides only that "the laws of the
several states . . . shall be regarded as
rules of decision in civil actions in the
courts of the United States, in cases
where they [the laws of the several
states] apply" (emphasis added), and they
do not apply, in the sense of govern, the
conduct of the United States.

  The distinction between borrowing and
applying state law is perhaps most clearly
established in cases involving the
borrowing of a state statute of limitations
for use in litigation based on a federal
statute. See, e.g., West v. Conrail, 481
U.S. 35, 39 n. 4 (1987); Doe v. Blue Cross
& Blue Shield United of Wisconsin, 112
F.3d 869, 873-74 (7th Cir. 1997); McIntosh
v. Antonino, 71 F.3d 29, 36 (1st Cir.
1995); Hemmings v. Barian, 822 F.2d 688,
689-90 (7th Cir. 1987). As we put it in
Hemmings, "When a federal court borrows a
state statute of limitations for use in
connection with a federal statute that does
not have its own statute of limitations,
the court is not applying state law; it is
applying federal law. It looks to state
law for guidance. . . . The analysis
would, however, be different if Count I
were a diversity rather than federal-
question count. For purposes of the Erie
doctrine the statute of limitations is
substantive rather than procedural, and the
federal court therefore applies state law--
it doesn’t just borrow it." Id.

  Nor is a practice of consulting damages
awards in comparable cases for purposes of
facilitating a more thoughtful,
disciplined, and informed award in the
particular case the same thing as a rule
limiting awards within a range set by
previous cases, one understanding of the
state law rule involved in Gasperini: an
award of damages was not to "deviate
materially" from awards that had been made
in comparable cases. Nor is it easy to
characterize a practice of not consulting
comparable awards as a remedial rule, hence
"substantive" in the Erie sense, rather
than as a rule of evidence; or a practice
of such consultation by a reviewing court
endeavoring to carry out its duty to
prevent abuses of discretion in the award
of damages as anything more than a rule of
appellate procedure. So on multiple
grounds, what indeed appears to be the
rule in Illinois, that comparable awards
for pain and suffering are not to be
considered at either the appellate or the
trial stage, see, e.g., Epping v.
Commonwealth Edison Co., 734 N.E.2d 916,
918-19 (Ill. App. 2000); Barry v. Owens-
Corning Fiberglas Corp., 668 N.E.2d 8, 14
(Ill. App. 1996); Simmons v. University of
Chicago Hospitals & Clinics, 617 N.E.2d
278, 288 (Ill. App. 1993), does not bind
us in this case.

  In any event, any argument that we should
not look at comparable awards in reviewing
the award of pain and suffering damages in
this case has been forfeited by the
plaintiff, who, while citing Epping for the
proposition stated in her brief that "not
all courts agree that comparison of damage
awards aids in evaluating their propriety,"
has not argued that Illinois forbids such
comparisons or that, if it does, its rule
binds us. Instead, both parties have cited
what they deem comparable cases. Only their
notions of comparability are stunted. The
plaintiff cites three cases in which
damages for pain and suffering ranging from
$600,000 to $1 million were awarded, but
in each one the pain and suffering
continued for hours, not minutes. The
defendant confined its search for
comparable cases to other prison suicide
cases, implying that prisoners experience
pain and suffering differently from other
persons, so that it makes more sense to
compare Johnson’s pain and suffering to
that of a prisoner who suffered a
toothache than to that of a free person
who was strangled, and concluding absurdly
that any award for pain and suffering in
this case that exceeded $5,000 would be
excessive. The parties should have looked
at awards in other cases involving
asphyxiation, for example cases of
drowning, which are numerous. See, e.g.,
Millman v. County of Butler, 504 N.W.2d
820, 826 (Neb. 1993); Snyder v. Whittaker
Corp., 839 F.2d 1085, 1092-93 (5th Cir.
1988); Dontas v. City of New York, 584
N.Y.S.2d 134 (App. Div. 1992) (per curiam);
Turner v. Parish of Jefferson, 721 So. 2d
64, 76-78 (La. Ct. App. 1999); Stissi v.
Interstate & Ocean Transport Co., 590 F.
Supp. 1043, 1048-49 (E.D.N.Y. 1984), aff’d
in relevant part, 765 F.2d 370, 377 (2d
Cir. 1985). Had they done so, they would
have come up with an award in the range of
$15,000 to $150,000.

  There is more wrong with the award. The
$1.6 million awarded by the judge was far
higher than the amount requested by the
plaintiff (which was $300,000 to $600,000)
and came after the judge, in accordance
with the principle of comparative
negligence, had reduced the award on the
ground that Johnson’s own conduct, that is,
his hanging himself, required his estate to
bear some of the responsibility for the
pain and suffering that the hanging
inflicted on him. The judge did not
indicate from what level (or by what
percentage) he had reduced the award to
$1.6 million.

  But as we said the plaintiff failed to
establish liability. The judgment must
therefore be reversed with instructions to
enter judgment for the government.

Reversed.




  RIPPLE, Circuit Judge, dissenting.

1.

  On June 7, 1993, Robert Johnson committed
suicide by hanging himself from an overhead
pipe using his bedsheet. The facts that
led up to that tragedy are the basis of
this lawsuit.

  An understanding of the issue before us--
and of the import of the majority’s
conclusion--will be best understood if the
circumstances surrounding Mr. Johnson’s
suicide are placed in the broader factual
context of the case.

  Mr. Johnson was arrested and incarcerated
at Metropolitan Correction Center ("MCC")
in Chicago while awaiting trial on
extortion charges. During his
incarceration, Mr. Johnson was first
detained on the thirteenth floor, and
later, was moved to the seventeenth. By
all accounts, Mr. Johnson was not well on
either floor. Mr. Johnson was described by
inmates and guards alike as being a
nervous and anxious person. Different
inmates testified that Mr. Johnson did not
eat or sleep well and that his emotional
well-being was poor. Inmates alternately
describe Mr. Johnson’s mood as very
nervous, unstable, and worried. They
testified that Mr. Johnson spent a great
deal of time by himself and that he became
less and less social as his incarceration
progressed. Mr. Johnson’s last cellmate,
Alvin McCarver, also testified that during
the night, Mr. Johnson would be up
alternately vomiting and brushing his teeth
until his gums bled./1

  Even more apparent than his general state
of mind was a disturbing nervous habit
that Mr. Johnson acquired. Mr. Johnson
would scratch and pick at his skin,
causing open sores that would bleed. Once
he would cause these sores, Mr. Johnson
would continue to pick at them with his
fingers, manicure scissors, playing cards,
or apparently anything else that was
available. This continual scratching and
picking caused the sores to fester and
ooze blood; they never properly healed./2

  Several inmates went out of their way to
help Mr. Johnson. Thomas Johnson testified
that, a few days prior to Mr. Johnson’s
suicide, Johnson had told a guard that he
thought Mr. Johnson was in need of
psychiatric care. Jeffery Sorrenson, a
former cellmate of Mr. Johnson, testified
that he went to a female officer to
complain about Mr. Johnson’s nervous habits
and hygiene. Derrick Anderson encouraged
Mr. Johnson to see a doctor and even
accompanied him to sick call on the final
morning of Mr. Johnson’s life.

  The efforts of two inmates in particular
are especially noteworthy. Richard Dover
met Mr. Johnson while they both were on
the thirteenth floor; Dover also was placed
on the seventeenth floor with Mr. Johnson.
Dover testified that two other inmates and
he approached at least three guards in an
attempt to get medical assistance for Mr.
Johnson. Dover pointed out Mr. Johnson’s
symptoms and said that Mr. Johnson needed
to go to a hospital. Dover testified that
nothing came of these conversations: "We
always stayed up onto the guards, trying
to get them to do something about it, and
they never did." Dover Dep. at 21.
  Alvin McCarver, Mr. Johnson’s final
cellmate, also sought help for Mr. Johnson.
Even though McCarver shared a cell with
Mr. Johnson for only a short time,
McCarver already knew of Mr. Johnson’s
problems just from living on the same
floor. After becoming cellmates, however,
his awareness of the problem increased. One
day, while Mr. Johnson was at an attorney
visit, McCarver brought a unit officer into
their cell to see Mr. Johnson’s blood-
stained sheets./3 McCarver told the
officer that "[s]omething needs to be done
about this. This guy needs some help. He
has a nervous condition." McCarver Dep. at
27. Because McCarver believed the unit
officer had not done anything, McCarver
then spoke to Mark Cunneen, a counselor
assigned to the seventeenth floor. McCarver
told Cunneen that Mr. Johnson needed
psychiatric care and that perhaps
antidepressant medication was in order.
McCarver testified that this meeting
happened only days before Mr. Johnson
committed suicide.

  The night before Mr. Johnson’s suicide,
McCarver filled out a sick call sheet for
Mr. Johnson. A sick call sheet was a
request to see medical personnel. On the
sheet, McCarver described Mr. Johnson’s
complaint as open sores caused by nerves.
In the box next to the question whether
the complaint was serious, McCarver checked
yes twice. However, when the physician’s
assistant ("PA") saw Mr. Johnson the next
morning, she did not have the sick call
sheet with her, in violation of prison
policy.

  Mr. Johnson told the PA that he was
nervous and that he wanted something to
calm him down. Again in violation of
policy, the PA told Mr. Johnson to make an
appointment with a psychologist rather than
referring Mr. Johnson personally.

  The compassionate attempts by inmates to
help Mr. Johnson were to little avail.
There is no evidence that any prison
official attempted to get Mr. Johnson any
type of medical attention. At least one
prison official testified that he knew of
Mr. Johnson’s problems. Officer James Young
admitted that McCarver had confronted him
about the blood-stained linens, but he
nonetheless failed to seek assistance for
Mr. Johnson. Other prison officials claimed
to have no memory of Mr. Johnson. Cunneen,
the counselor that McCarver testified he
spoke to, claimed no recollection either of
Mr. Johnson or of any conversation with
McCarver regarding Mr. Johnson. The
district court found that McCarver’s
testimony was "adamant and precise" and
that Cunneen’s testimony "strains
credulity." R.38 at 14.

  Through their combined efforts, inmates
were able to cajole Mr. Johnson into
seeking help for his problems. After months
of suffering alone, Mr. Johnson went to
the PA in hopes of receiving help. When
the PA failed to treat Mr. Johnson
adequately, the last opportunity to help
Mr. Johnson was lost. Twelve hours later,
Mr. Johnson took his own life.

2.

  The majority holds that the United States
cannot be liable for Mr. Johnson’s death.
Specifically, the majority reasons that Mr.
Johnson’s suicide was not foreseeable and
that the Government was not the proximate
cause of Mr. Johnson’s death. I
respectfully disagree.

  "The district court’s determination of
foreseeability is a factual determination
reviewable only for clear error." United
States v. Bullis, 77 F.3d 1553, 1564 (7th
Cir. 1996). I do not believe that the
district court clearly erred in its
determination that Mr. Johnson’s suicide
was foreseeable. The record offers ample
evidence that demonstrates that prison
officials should have known that Mr.
Johnson was suffering severe emotional
distress. As the district court
noted,pretrial detainees like Mr. Johnson
have a greater risk of suicide than the
population in general. This reality should
have alerted prison officials to scrutinize
seriously the numerous reports they
received concerning Mr. Johnson’s
deteriorating psychiatric state.

  Inmates testified that Mr. Johnson
brushed his teeth until they bled, that he
was up at nights vomiting, and that he
scratched his skin until it bled. Mr.
Johnson was described as a loner who had
problems sleeping and eating. On more than
one occasion, inmates such as Alvin
McCarver brought these symptoms to the
attention of prison officials. Prison
officials chose to do nothing.
  Undoubtedly, it is easier for officials
to know that someone is having suicidal
thoughts when that person says that he is
having suicidal thoughts. However, having
an inmate in custody creates a duty of
care that must include enough attention to
mental health concerns that inmates with
obvious symptoms receive medical attention.
Prison officials had numerous opportunities
to meet their responsibilities to help Mr.
Johnson, but no one did. One cannot avoid
responsibility by putting one’s head in the
sand.

3.

  The court reviews factual findings, such
as the existence of proximate cause, for
clear error and will not reverse if the
district court’s findings are plausible in
light of the entire record. See Anderson
v. Bessemer City, 470 U.S. 564, 573
(1985); Wyletal v. United States, 907 F.2d
49, 50 (7th Cir. 1990) (factual findings
in Federal Tort Act cases reviewed under
clearly erroneous standard); Susnis v.
Radfar, 739 N.E.2d 960, 967 (Ill. App. Ct.
2000) (under Illinois law, questions of
proximate causation are questions of fact).
"A factual determination is clearly
erroneous only if, after considering all
the evidence, the reviewing court is left
with the definite and firm conviction that
a mistake has been committed." United
States v. Charles, 238 F.3d 916, 918 (7th
Cir. 2001) (internal quotation marks and
citations omitted). Additionally, "a
district court’s choice between two
permissible inferences from the evidence
cannot be clearly erroneous." See id. Under
Illinois law, "proximate cause can only be
established when there is a reasonable
certainty that the defendant’s acts caused
the injury" or the increased risk of
future injury. Henderson v. Sheahan, 196
F.3d 839, 852 (7th Cir. 1999) (internal
quotation marks and citations omitted).

   I cannot join the majority view that the
district court was clearly erroneous in its
determination that the United States was
the proximate cause of Mr. Johnson’s death.
The majority correctly notes that suicide
is generally viewed as a supervening cause
breaking the chain of causation. However,
there are circumstances that render this
rule inapplicable. "As a general rule,
absent some type of custodial relationship,
one cannot be held liable for the suicide
of another." Wyke v. Polk County Sch. Bd.,
129 F.3d 560, 574 (11th Cir. 1997). By
articulating the qualification "absent some
type of custodial relationship," our
colleagues in the Eleventh Circuit
acknowledged that the general rule makes no
sense when a higher duty of care is
required because "the State ’takes a person
into its custody and holds him there
against his will,’ hence depriving him of
liberty." Butera v. Dist. of Columbia, 235
F.3d 637, 648 (D.C. Cir. 2001) (quoting
DeShaney v. Winnebago County Dep’t of Soc.
Servs., 489 U.S. 189, 199-200 (1989)); see
also Bruzga v. PMR Architects, P.C., 693
A.2d 401, 403 (N.H. 1997). "[H]aving
stripped them [incarcerated persons] of
virtually every means of self- protection
and foreclosed their access to outside aid,
the government and its officials are not
free to let the state of nature take its
course." Farmer v. Brennan, 511 U.S. 825,
833 (1994).

  Here, prison officials knew that Mr.
Johnson was suffering severe emotional
distress. Given that knowledge, they had an
affirmative duty to aid Mr. Johnson. Time
and again, when presented with information
that Mr. Johnson was suffering, officials
failed to act. The combination of this
inaction caused Mr. Johnson’s death.

  I believe it to be entirely permissible
for the district court to determine that
the collective failure of prison officials
to provide medical assistance for Mr.
Johnson was the proximate cause of his
death. Accordingly, the district court’s
conclusion is not clearly erroneous and
must be upheld.

4.

  I also cannot join the majority’s
discussion of the damage award in this
case. First, the point should be made that
the majority concedes that "our analysis
makes it unnecessary" to consider the
damage award in this case. Maj. Op. at 8.
Because the discussion of this issue is
not necessary to determine the outcome of
this case, it is "purely dicta" and "does
not constitute the law of the case or any
other binding precedent for our current
consideration." Thomas & Betts Corp. v.
Panduit Corp., 138 F.3d 277, 289 n.4 (7th
Cir. 1998). We have noted that:

Dicta are the parts of an opinion that are
not binding on a subsequent court, whether
as a matter of stare decisis or as a
matter of law of the case. . . . They are
non-binding for two reasons. First, not
being integral elements of the analysis
underlying the decision . . . they may not
express the judges’ most careful, focused
thinking. Second, to give the inessential
parts of an opinion the force of law would
give judges too much power, and of an
essentially legislative character; we could
hardly consider ourselves judges in the
Anglo-American tradition were we to
interrupt this opinion to offer our
thoughts.

Wilder v. Apfel, 153 F.3d 799, 803 (7th
Cir. 1998).

  The wisdom of this time-honored approach
to dicta is well-justified by the
majority’s expressed view that hanging
deaths and death by drowning are
comparable. Hanging is an excruciatingly
painful and cruel way to die. Of the
forty-eight states that once allowed
executions by hanging, only two
jurisdictions still do. More specifically:

In properly-performed hangings, the neck
breaks immediately and unconsciousness is
supposedly instantaneous. However, hanging
has been called an "art," and considerable
skill is necessary to ensure that the neck
breaks . . . . In most instances, however,
this [break] does not result, and the
condemned dies a violent and lingering
death. If the drop is too long, the
prisoner may be decapitated, causing great
indignity to the body. If the drop is too
short, the inmate may slowly strangle to
death. In strangulation, extreme pain is
evident: the eyeballs pop out, the tongue
swells and protrudes, the rope can pull
hunks of flesh off the face, and the neck
elongates and distorts. As it is so often
improperly performed, the risk of either
decapitation or slow strangulation is
likely.

Kristina E. Beard, Comment, Five Under the
Eighth: Methodology Review and the Cruel
and Unusual Punishments Clause, 51 U. Miami
L. Rev. 445, 464 (1997).

  Given that a professional execution, in
at least a semi-controlled environment,
leads to an agonizing death, it seems
apparent that a depressed man with only an
overhead pipe and a bedsheet would suffer
a great deal. Dr. Kern, an ear, nose, and
throat surgeon, reviewed the documentation
for Mr. Johnson’s case and testified as to
his findings. Dr. Kern explained that death
from a self-hanging is slower than a
judicial hanging. Like in Mr. Johnson’s
case, the individual usually falls a short
distance and uses a material that is
looser on the neck than a rope. These
circumstances combine to cause a slow
suffocation. If a person succeeds in
completely blocking his airway, that person
may lose consciousness as quickly as in
three minutes. However, Mr. Johnson
"assuredly" could not achieve total airway
blockage using the bedsheet. Tr.II at 140.
While suffocating, Mr. Johnson experienced
the phenomenon known as "air hunger" during
which the body wants oxygen but cannot get
it. Air hunger causes extreme anxiety and
fear. Dr. Kern testified that it was very
likely that Mr. Johnson was conscious
longer than three minutes and may have
suffered up to twenty.

  Drowning is also clearly a traumatic
experience. When a person in the water
begins to take water in, the automatic
physiological reaction is that the muscle
at the entrance of the windpipe contracts,
preventing water from entering the lungs.
See Am. Med. Ass’n, Encyclopedia of
Medicine 375 (1989). However, this
contraction impairs breathing; without
access to oxygen, the brain begins to be
affected within thirty seconds, and the
individual quickly loses consciousness. See
id.; see also Roy W. Rafter, The Anatomy
of Drowning, at
http://www.airsearchrescue.com/drowning.h
tm. Depending on the physical status of
the victim, death often occurs in two
minutes or less.

  The differences between drowning and
hanging are far too great to cabin the
discretion of the trial court by making
the court treat them as one and the same.
The standard of review for damage awards
is still an abuse of discretion.

FOOTNOTES

/1 Admittedly, these individuals are not experts.
However, when even a lay person recognizes that
an individual needs help, it does not reflect
well on the experts who remain oblivious to the
situation.

/2 Although the defendants suggest that this scrat-
ching may have been caused by a skin condition,
they offer no evidence to support that conten-
tion. Additionally, at least one inmate, Derrick
Anderson, testified that Mr. Johnson told him
that he scratched because he was nervous, not
because of a skin problem.

/3 MCC policy requires blood-stained linens to be
laundered in a particular manner to guard against
blood-born pathogens. That policy was never
followed in this case.
