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,

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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 Corp. of Am. Corp. of Am.

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 Corp. of Am. Corp. of Am.

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 Corp. of Am. Corp. of Am.

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 Nos. 00-6719/6720 Bowman v. Corrections 13 14 Bowman v. Corrections Nos. 00-6719/6720 Corp. of Am. Corp. of Am.

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 Nos. 00-6719/6720 Bowman v. Corrections 15 16 Bowman v. Corrections Nos. 00-6719/6720 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