Wednesday, October 24, 2012
No Remedy At Law: 7th Circuit Opinion Skirts Issue Of Admissibility Of Subsequent Remedial Measures In Suicide Suit
A juvenile incarcerated at Illinois Youth Center has a history of mental illness and was known to have attempted suicide at least three times. While incarcerated in a room with a bunk bed, the juvenile fatally hangs himself from the top bunk in his room. The juvenile's mother thereafter brings a § 1983 action against various state officials, alleging deliberate indifference to the minor's serious mental illness. If the state officials thereafter took various steps to decrease the risk of their inmates committing suicide, can the mother present evidence of these steps to prove their prior culpability? The Seventh Circuit didn't answer this question in its recent opinion in Miller v. Harbaugh, 2012 WL 5064985 (7th Cir. 2012), but I think that the answer is a clear "yes." "no."
In Harbaugh, the facts were as stated above. After the subject suicide, the Department of Juvenile Justice took various remedial measures, including the replacement of bunk beds at the Illinois Youth Center with single living units. The district court granted the defendants' motion for summary judgment dismissing the § 1983 action against them on the grounds that they were not deliberately indifferent to the victim's rights and that they were entitled to qualified immunity.
The mother thereafter appealed, claiming, inter alia, that evidence of the defendants' subsequent remedial measures created a triable issue of fact regarding their deliberate indifference. In response, the Seventh Circuit stated:
We are willing to assume, for present purposes, that [the mother] presented enough evidence to support a finding that the supervisory defendants were subjectively aware of the suicide risks posed by the bunk beds and that alternate measures such as dismantling them or assigning residents to single-bed rooms were feasible. We therefore have no need to decide whether the evidence of the changes at St. Charles in the wake of Jamal's death was excludable as a subsequent remedial measure for purposes of Federal Rule of Evidence 407, or if it instead was admissible to show feasibility of precautionary measures, as permitted by the rule. But even if the evidence, viewed favorably to [the mother], would support a finding of a constitutional violation, we must still consider the second part of the qualified immunity inquiry—the question whether any duty the defendants had was clearly established.
The court then found that the defendants were entitled to qualified immunity.
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
- culpable conduct;
- a defect in a product or its design; or
- a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
It seems pretty clear that the mother sought to use evidence of the defendants' subsequent remedial measures to prove their culpability in not previously replacing the bunk beds. So, unless the defendants claimed that such a change was not feasible (and there is some intimation in the court's opinion that the defendants might have been making an economic feasibility argument), it seems pretty clear that the evidence would have been inadmissible.