In their opinion of December 1, 2009, Judges Flaum, Wood, and Williams affirmed in part and reversed and remanded in part a $4.45 million jury verdict awarded to the mother of a young man who died while in custody of the Cook County Jail (refer to the panel opinion and to my post). Cook County and the individual defendants petitioned for rehearing and rehearing en banc. With respect to the petition of the individual defendants, the panel unanimously voted to deny rehearing and no judge in regular active service requested a vote on the petition en banc. With respect to the petition of the County, however, three judges voted to grant the rehearing en banc with respect to the issue of damages. In consideration of the petition and the votes to grant the rehearing, the panel amended its opinion.

In their amended opinion, Judges Flaum, Wood, and Williams refined their analysis of the damages issue and provided some general prophylactic guidance regarding verdict forms. The panel reaffirmed its original decision upholding the verdict, notwithstanding the confusion apparent in the instructions and the verdict form.

Judge Sykes, joined by Judges Posner and Tinder, dissented from the denial of the County's petition for rehearing en banc. The principal claims in the case sought compensation for a single injury -- Norman Smith's suffering and death while in the custody of the Cook County Jail. Because liability is joint and several, the jury should not have been asked to assess damages by claim or by defendant. The dissent criticizes the panel for approving the district court's discretion to choose between the "ceiling" and the "cumulative" approaches to the confusion verdict. In the dissent's view, neither approach is supported by the Circuit's precedent. Finally, Judge Sykes is critical of the panel's reliance on the general proposition and presumption that jurors follow their instructions. Given the "bewildering hodgepodge" of instructions and the backwards verdict form, the Court cannot have any confidence that the jury acted properly. Judge Sykes would have granted the petition to address the treatment of the damage award.