Patricia Bowman v. Corrections Corporation of America

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0413P (6th Cir.)
File Name: 03a0413p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
PATRICIA BOWMAN,
Plaintiff-Appellee/
Cross-Appellant,
v.
CORRECTIONS CORPORATION
OF AMERICA,
Defendant-Appellant/
Cross-Appellee.
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Nos. 00-6719/6720
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 96-01142—William J. Haynes, Jr., District Judge.
Argued: March 27, 2003
Decided and Filed: November 21, 2003
Before: BOGGS, Chief Judge; and SUHRHEINRICH and
SILER, Circuit Judges.
2 Bowman v. Corrections
Corp. of Am.
Nos. 00-6719/6720
_________________
COUNSEL
ARGUED: James F. Blumstein, VANDERBILT
UNIVERSITY LAW SCHOOL, Nashville, Tennessee, for
Appellant. John W. Chandler, Jr., Memphis, Tennessee,
Patrick A. Ruth, RUTH, HOWARD, TATE & SOWELL,
Nashville, Tennessee, for Appellee. ON BRIEF: James F.
Blumstein, VANDERBILT UNIVERSITY LAW SCHOOL,
Nashville, Tennessee, Andree Sophia Blumstein,
SHERRARD & ROE, Nashville, Tennessee, Tom Anderson,
ANDERSON LAW FIRM, Jackson, Tennessee, for
Appellant. John W. Chandler, Jr., Memphis, Tennessee,
Patrick A. Ruth, RUTH, HOWARD, TATE & SOWELL,
Nashville, Tennessee, Joseph Howell Johnston, Nashville,
Tennessee, for Appellee.
_________________
OPINION
_________________
BOGGS, Chief Judge. Anthony Bowman was an inmate at
the South Central Correctional Center (SCCC) who had a
long history of medical problems associated with sickle cell
anemia. Over the course of his incarceration at SCCC,
Anthony experienced numerous infections, and was
hospitalized repeatedly. During one such episode, on
January 3, 1996, Dr. Coble, the medical director at SCCC,
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
(CCA), Kevin Myers, the warden of CCA’s South Central
Facility, and Dr. Robert B. Coble, the physician with whom
CCA contracted for medical services for inmates housed
within SCCC. The complaint alleged that the defendants had
violated her son’s constitutional right to adequate medical
care while incarcerated. The case went to trial and the jury
found that the defendants had not acted with deliberate
indifference towards Anthony’s serious medical condition.
The district court entered judgment in accordance with the
jury verdict, but granted Bowman’s motion for judgment as
a matter of law in part, holding that CCA’s medical policy, as
reflected in its agreement with Dr. Robert B. Coble, is
unconstitutional. On this basis, the district court enjoined
CCA and all parties acting in concert with it from enforcing
its contract with Dr. Coble and additionally granted the
plaintiff’s motion for sanctions, but only to the extent of
awarding attorney’s fees in relation to a particular evidentiary
dispute in which CCA failed to supplement properly its
discovery responses as to the number of referrals it had made
to medical specialists on behalf of inmates. Bowman also
moved for an award of attorney’s fees under 42 U.S.C. § 1988
as a “prevailing party” in a § 1983 case. The district court
awarded Bowman attorney’s fees and costs, but only on a pro-
rated basis for the issues upon which she had “prevailed”
against the defendants.
CCA appeals both the district court’s injunction and its
award of attorney’s fees under 42 U.S.C. § 1988 to Bowman.
Bowman cross-appeals the district court’s partial denial of her
motion for a judgment as a matter of law or for a new trial, on
her claims for compensatory and punitive damages against
CCA, Dr. Coble, and Myers for their alleged violations of
Bowman’s son’s Eighth Amendment right to be free of “cruel
and unusual punishment.” We affirm the district court’s
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
4 Bowman v. Corrections
Corp. of Am.
Nos. 00-6719/6720
1Also referred to as SCCF: South Central Co rrectional Facility.
making the various evidentiary rulings objected to by
Bowman. We reverse the district court’s holding with respect
to the unconstitutionality of CCA’s medical policy and the
injunction awarded on that basis, because this issue is moot
as to Bowman and she had no standing upon which to bring
such a claim for prospective relief. Finally, we vacate the
district court’s award of attorney’s fees to Bowman, because
Bowman is no longer the prevailing party.
I
A. The Medical Contract
During 1990, the State of Tennessee issued a request for
proposals from private companies to manage the South
Central Correctional Center (SCCC)1. The proposals were to
include a detailed budget of projected costs for operating the
SCCC, including the cost of providing medical care to SCCC
inmates. Tennessee required the companies submitting
proposals to state how much they would charge Tennessee on
a per inmate per day (PIPD) basis to manage the SCCC and
their estimated profit for doing so. On January 24, 1992,
following negotiations regarding the SCCC budget and
CCA’s profit margin, CCA entered into a three-year contract
with the State of Tennessee, acting through the Tennessee
Department of Corrections (TDOC), to house state prisoners
at CCA facilities, including SCCC. The contract contained an
option to renew for two additional years.
As part of the contract process, CCA estimated its medical
expenses for the treatment of prisoners. This expense
category included hospital expenses incurred during the first
seventy-two hours up to four thousand dollars per
hospitalization, referrals to medical specialists, prescription
drugs and laboratory tests. CCA’s initial projection was

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2For some reason the district court and Bowm an’s briefs both use the
figure of $95 ,000 , but the d efendants admit in their respo nse to B owm an’s
second request for admissions that Dr. Coble could earn as much as
$100,000. Of course this number would fluctuate according to the
number of inmates at SC CC, since D r. Coble was paid on a per inmate
basis.
$500,000 per year for these expenses (projecting an average
of $1.34 PIPD in 1992, gradually rising over the years to an
average of $1.48 in 1997). However, during 1992, 1993, and
1994, CCA’s actual expenses for these services and products
averaged $1,000,000 per year ($3.75 PIPD in 1992, $3.16
PIPD in 1993, and $2.41 PIPD in 1994). In response to being
so dramatically over budget, CCA negotiated a contract with
Dr. Coble to be the exclusive provider of medical services at
SCCC. Dr. Coble was, among other things, to “determine the
existence of medical emergencies,” and therefore determine
when it was necessary to send a patient to the hospital or for
a medical referral. This contract was executed on October 6,
1994, and effectively created a managed health-care system
at SCCC. The contract automatically renewed itself on an
annual basis and could be terminated by either party upon 60
days notice.
Unlike CCA’s previous agreements with other physicians,
this contract provided a “capitation plan,” which provided Dr.
Coble with a financial incentive to reduce the PIPD costs for
CCA. Dr. Coble received a minimum salary under the
contract, but was able to earn up to an additional $100,000
annually by reducing CCA’s costs.2 The way in which the
incentive system worked is laid out in the contract and can be
understood as follows:
According to CCA’s contract with Dr. Coble, he was to be
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
eighty percent of $9.40 or $7.52 per inmate, per month.
6 Bowman v. Corrections
Corp. of Am.
Nos. 00-6719/6720
3A 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
the remarkable reduction in costs for prescription drugs since 1994,
desp ite the increase in the numb er of inm ates, reflec ts an inmate
population size of 1506 during the months of February through August,
1997. Although there is some dispute over precise numbers for this time
period, both parties agree that the inmate population increased
significantly from 1994 to 1997, and the numbers supplied by these
exhibits are evidence of that increase.
Every six months, CCA would calculate the amount being
spent PIPD. If the amount being spent was equal to or more
than $3.07, which was the average amount being spent by
CCA PIPD at the time of contract negotiations with Dr.
Coble, no further money would be distributed to Dr. Coble.
If, however, the amount being spent PIPD was less than
$3.07, Dr. Coble would receive a “proportionate return” of
the amount withheld, up to the full $9.40 per inmate. Finally,
Dr. Coble would receive an additional five percent bonus if he
was able to keep the PIPD cost below $2.47.
From the very beginning, it is undisputed that Dr. Coble
received the maximum amount of income that he could under
his contract with CCA, since he was able to reduce CCA’s
non-personnel medical expenses at SCCC below the lowest
level set forth in the capitation plan provision of his contract.
Furthermore, it is agreed that during Dr. Coble’s tenure, the
total amount CCA spent on inmate medical services at SCCC
remained approximately the same per year at $1,000,000 from
1994 through 1997, despite the fact that the population of
inmates increased from 1311 in October 1994, to
approximately 1506 in 1997,3 and the fact that, after August
1995, TDOC began to charge CCA for prisoners sent to the
DeBerry Special Needs Facility for specialty consultations,
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
have remained close to that amount thereafter.

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4In a letter from W arden M yers of SCCC describing the remarkable
savings achieved during the period from 199 4 to 1997 , the warden lists
the amount of money spent on prescription drugs from February through
August of each year, along with the inmate population. In 1994, the
pop ulation was 1336 and the amount spent on prescription drugs was
$108,751, which is approximately $81.40 per inmate. In 1997, the
population was 1506 and the amount spent on prescription drugs was
$74,660, which is approximately $49.58 per inmate.
The evidence suggests that this remarkable reduction in
costs resulted primarily from less specialty referrals and less
money spent on prescription drugs. For example, the
physician at SCCC before Dr. Coble referred SCCC inmates
to medical specialists 1,886 times the year prior to October
1994, while Dr. Coble referred SCCC inmates to medical
specialists only 506 times the following year. Similarly, the
cost of prescription drugs provided to SCCC inmates was
reduced by approximately thirty-nine percent from 1994 to
1997.4
B. Bowman’s Case
Anthony Bowman was an inmate at SCCC, who had been
incarcerated for violating the conditions of his parole,
following a conviction for passing forged checks.
Throughout his life he had suffered from a form of sickle cell
anemia known as “acute chest syndrome,” a genetic blood
disorder in which sickled red blood cells clog the capillaries
of the lungs and prevent the normal exchange of carbon
dioxide for oxygen. In the last years of his life, he
experienced frequent crises and his medical records reveal
that he was seen almost daily by medical personnel at SCCC.
On January 1, 1996, Anthony arrived at the medical
department at SCCC in a wheelchair, complaining of severe
pain on the left side of his chest, from his armpit to his ribs.
His blood pressure, pulse, and respirations were elevated and
he had a fever of 102.4 degrees. After consulting with Dr.
8 Bowman v. Corrections
Corp. of Am.
Nos. 00-6719/6720
Coble by telephone, the nurse, John Crunk, gave him an
intramuscular injection of the synthetic opiate Nubane, gave
him an oral antibiotic and Tylenol for his temperature, and
placed him in the infirmary. Anthony was examined by Dr.
Coble the next day and received an x-ray. Two days later, on
the morning of January 4, 1996, Dr. Coble called Dr.
Capobianco to arrange approval for a transfer of Anthony to
Nashville Memorial Hospital to the care of Dr. Boatright,
who had treated him in the past. Anthony was transferred that
afternoon and admitted to Nashville Memorial Hospital.
Anthony died in the hospital the afternoon of January 5.
According to the autopsy report, he died of complications
related to his sickle cell anemia, including acute
bronchopneumonia, autosplenectomy, and hepatomegaly.
This case began as a civil rights action, based on the line of
cases holding that deliberate indifference to a prisoner’s
illness or injury by prison authorities violates the Eighth
Amendment, as made applicable to the states by the
Fourteenth Amendment’s Due Process Clause, and is,
therefore, a valid cause of action under § 1983. See, e.g.,
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). Suing on
behalf of her son and his two children, Patricia Bowman
sought compensatory and punitive damages jointly and
severally from CCA, Myers, and Dr. Coble for violating
Anthony’s Eighth Amendment right. She claims that Dr.
Coble’s delay in sending Anthony to the hospital caused his
death and was an example of his deliberate indifference
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,
since CCA did not investigate the dramatic drop in medical
costs to the inmate population and simply urged Dr. Coble to
reduce those costs further. Finally, Bowman contends that
Warden Myers exhibited deliberate indifference to Bowman’s
care, because he allegedly failed to investigate the medical
care that Bowman was receiving after having received a
concerned telephone call from TDOC Commissioner

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Campbell, which should have put him on notice that there
was a problem.
The case was tried to a jury, which returned a verdict in
favor of the defendants CCA, Myers, and Dr. Coble. The jury
specifically found that neither Dr. Coble nor Warden Myers
was deliberately indifferent to Anthony’s serious medical
condition and thus, there was no violation of Anthony’s
constitutional rights. The district court entered judgment for
the defendants in accordance with the jury verdict, but held
that CCA’s medical policy violated the Eighth Amendment
right of inmates at SCCC to receive adequate medical care
and enjoined enforcement of Dr. Coble’s contract. This
appeal followed.
II
A. Motion for a Judgment as a Matter of Law
The district court denied Bowman’s motion for judgment
as a matter of law, or in the alternative, for a new trial
pursuant to Fed. R. Civ. P. 50(b). Bowman contends that the
district court erred in not granting her motion for judgment as
a matter of law against Dr. Coble, Warden Myers, and CCA,
because the jury verdict was contrary to the evidence
presented at trial. We review the denial of a motion for
judgment as a matter of law de novo. McCurdy v.
Montgomery County, 240 F.3d 512, 516-17 (6th Cir. 2001)
(citing Cook v. Am. S.S. Co., 53 F.3d 733, 740 (6th Cir.
1995)). Fed. R. Civ. P. 50(a)(1) states that “[i]f during a trial
by jury a party has been fully heard on an issue and there is
no legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue,” then judgment as a matter of
law for the opposing litigant is appropriate. The motion “may
not be granted unless reasonable minds could not differ as to
the conclusions to be drawn from the evidence.” McJunkin
Corp. v. Mechanicals, Inc., 888 F.2d 481, 486 (6th Cir. 1989).
An appeals court is not to “weigh the evidence, pass on the
10 Bowman v. Corrections
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Nos. 00-6719/6720
credibility of witnesses, or substitute its judgment for that of
the jury.” Toth v. Yoder Co., 749 F.2d 1190, 1194 (6th Cir.
1984). Instead we must view the evidence in the light most
favorable to the opposing party, drawing all reasonable
inferences in its favor. Ibid.
In order for Bowman to have succeeded in her claim that
the defendants violated Anthony’s Eighth Amendment right,
she must have demonstrated “acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical
needs.” Estelle, 429 U.S. at 106. Mere negligence or
malpractice is insufficient to establish an Eight Amendment
violation. Id. at 106 n.14. The Supreme Court has further
explained that the Estelle standard contains both an objective
component – whether the deprivation was sufficiently serious
– and a subjective component – whether the prison official
acted with a sufficiently culpable state of mind. Farmer v.
Brennan, 511 U.S. 825, 838-39 (1994).
Bowman argues that Dr. Coble was liable on the theory that
he responded to the financial incentives in his contract with
CCA by denying appropriate care to SCCC inmates,
including Bowman. However, the defendant’s proof included
the testimony of two physicians who were familiar with the
treatment of sickle cell anemia, Dr. John Flexner and Dr.
Frank Thomas. Both of these physicians testified that Dr.
Coble’s treatment of Anthony was appropriate. With this
testimony, the jury could reasonably conclude that Coble was
not deliberately indifferent and, as we have stated above, we
will not second guess the jury’s determinations of credibility.
See Toth, 749 F.2d at 1194.
Warden Myers was liable, according to Bowman, on the
theory that he allegedly failed to investigate the medical care
Bowman was receiving after he received a telephone call
from TDOC Commissioner Campbell on January 2, 1996,
which put him on notice about concerns regarding Bowman’s
medical care. Warden Myers was responsible for the day-to-

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day operations of SCCC and only had supervisory authority
over Dr. Coble in relation to administrative matters, such as
the transportation and security of the inmates. According to
Myers’s deposition testimony, Dr. Coble’s medical decisions
were not reviewable by Myers. Furthermore, Myers testified
that he knew Dr. Coble to be familiar with Anthony and his
history of sickle cell anemia, and relied on the doctor to
provide Bowman with appropriate medical care. Based on
this evidence, the jury could reasonably conclude that even
after having received a concerned phone call, Myers’s
reliance on Dr. Coble did not rise to the level of deliberate
indifference. In sum, although there was evidence presented
to contradict the conclusion reached by the jury, there was
nevertheless sufficient evidence to support the jury’s findings
and they are not clearly erroneous. For these reasons we
agree with the district court that there was sufficient evidence
to uphold a judgment in favor of Dr. Coble and Warden
Myers.
Next, Bowman argues that even if Dr. Coble and Warden
Myers were not deliberately indifferent, and therefore not
liable, CCA’s policy, as embodied in its contract with Dr.
Coble, and its subsequent lack of investigation as the costs for
medical care for inmates at SCCC plummeted, was
nevertheless unconstitutional and, thus, CCA should be held
liable. However, on the basis of City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986), and our subsequent
decision in Hancock v. Dodson, 958 F.2d 1367, 1376 (6th Cir.
1992), the district court held that without a constitutional
violation of Anthony’s Eighth Amendment right by Dr. Coble
or Warden Myers, CCA cannot be held liable for its policy,
even if it were to encourage deliberate indifference. We
agree.
In Heller, the plaintiff brought a § 1983 case against the
City of Los Angeles, members of the city police commission,
and two police officers who had stopped and arrested him on
suspicion of driving while intoxicated. Mr. Heller claimed
12 Bowman v. Corrections
Corp. of Am.
Nos. 00-6719/6720
damages for having been arrested without probable cause and
having been the victim of excessive force by one of the
officers during the course of the arrest. The district court held
a bifurcated trial, hearing first Mr. Heller’s claims against the
police officer responsible for the alleged excessive force. The
jury found for the police officer. On that basis, the district
court dismissed the case against the remaining defendants.
The Ninth Circuit reversed, but the Supreme Court reversed
the Ninth Circuit, noting that if the police officer “inflicted no
constitutional injury on [Mr. Heller], it is inconceivable that
[the remaining defendants] could be liable to [Mr. Heller].”
Heller, 475 U.S. at 799. The court went on to state that “[i]f
a person has suffered no constitutional injury at the hands of
the individual police officer, the fact that the departmental
regulations might have authorized the use of constitutionally
excessive force is quite beside the point.” Ibid. (emphasis in
the original).
In Hancock, 958 F.2d at 1375, we dealt with a similar
situation. The wife of an arrestee brought a § 1983 action
against the city of Lake Orion and a police officer, claiming,
among other things, that a police officer had entered their
home without a search warrant, in violation of the Fourth and
Fourteenth Amendments. We held that the search was
justified by exigent circumstances and that “[b]ecause the
only city police officer present committed no constitutional
violation, the city cannot be held liable.” Id. at 1376.
Bowman argues that Heller is not controlling in this case,
and that we should instead follow a line of Eighth Circuit
cases that distinguish Heller, upholding direct municipal
liability without finding a municipal employee liable in his or
her individual capacity. Bowman points in particular to the
recent case of Speer v. City of Wynne, 276 F.3d 980 (8th Cir.
2002), in which a city police officer brought a § 1983 action
against the city and the mayor, alleging that the city’s failure
to conduct a name-clearing hearing prior to his termination
violated his procedural due-process rights. A newspaper

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article quoted the mayor concerning allegations that the
officer had traded sex with suspects for favors, yet at trial
several people recanted their earlier allegations, and the city
eventually conceded that the allegations were false. The court
held that the officer had a right to a name-clearing hearing in
order to protect his liberty interest in his good name and
reputation and that the city could not deprive him of that
interest without due process, and thereby found the city liable.
Id. at 984-85. Nevertheless, the court concluded that if the
Mayor was not the city official who refused to give the officer
the opportunity to clear his name, the Mayor was not
individually liable. Id. at 987. The court distinguished
Heller, stating:
The outcome of the inquiry depends on the nature of the
constitutional violation alleged, the theory of municipal
liability asserted by the plaintiff, and the defenses set
forth by the individual actors. We do not suggest that
municipal liability may be sustained where there has
been no violation of the plaintiff’s constitutional rights as
a result of action by the municipality’s officials or
employees. . . . However, situations may arise where the
combined actions of multiple officials or employees may
give rise to a constitutional violation, supporting
municipal liability, but where no one individual’s actions
are sufficient to establish personal liability.
Id. at 986.
Ultimately, it is not necessary to choose between the Eighth
Circuit’s reasoning and our own in Hancock, following
Heller, since they are entirely reconcilable. In Speer, the
Eighth Circuit held that there must be a violation of the
plaintiff’s constitutional rights in order for liability to attach
to either the individual defendants or to the municipal
authority under § 1983. In Speer, the plaintiff’s constitutional
rights were violated, but not by the Mayor. Here, if we
uphold the jury’s findings as to Dr. Coble and Warden Myers,
14 Bowman v. Corrections
Corp. of Am.
Nos. 00-6719/6720
there was no violation of Bowman’s rights by anyone, even
if CCA’s policy implicitly authorized such a violation. The
similarity between this case and Heller is that the
constitutional violation claimed either occurred or did not
occur as a direct result of the actions of at least one person, in
this case Dr. Coble. This is not a scenario in which the
“combined actions of multiple officials” could give rise to the
violation at issue. For these reasons, we affirm the district
court’s denial of Bowman’s motion for a judgment as a matter
of law against the defendants in this case.
B. Motion for a New Trial
Bowman argues that she is entitled to a new trial because
the district court improperly admitted the testimony of four
medical expert witnesses for the defense, erred in excluding
the testimony of Father John Paris, and improperly allowed
Warden Myers to testify in contradiction to an admission he
made during a pretrial interrogatory and allowed him to
testify as to his “habit” without having raised the issue prior
to trial. We review all evidentiary rulings for an abuse of
discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141
(1997); United States v. Schreane, 331 F.3d 548, 564 (6th Cir.
2003).
Bowman first contends that the defendants were improperly
allowed to call four medical experts whose testimony she
alleges was cumulative and redundant under Fed. R. Evid.
403. However, these witnesses possessed expertise in the
distinct areas of hematology, pulmonary medicine and critical
care, infectious disease, and pathology. These experts were
used to rebut the testimony of Bowman’s experts that
Anthony could have died from various causes, including
sickle cell anemia, a bacterial infection, or a pulmonary
infection. Furthermore, the jury was instructed that the
number of witnesses for one side was not to be considered in
weighing the proof. District courts have wide discretion in
managing the quantities of evidence admitted. The district

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

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Nos. 00-6719/6720 Bowman v. Corrections
Corp. of Am.
17
5Bowman states in her Rep ly Brief at 33 that she did object to “the
admission of Myers’ ‘habit’ testimony.” However, we find no such
objection on the record. Instead, Bowman objected to the entirety of
Myers’s testimony, stating that it was an attempt to “get around” his prior
admission.
the jury that Myers had in fact taken action in response to the
phone call from Commissioner Campbell.
We reject Bowman’s arguments. First, Bowman did not
object to the admission of what she describes as “habit”
testimony by Myers at trial. Bowman has, therefore, waived
any objection she may have had to such testimony. Fed. R.
Evid. 103 (error may not be predicated upon a ruling that
admits evidence “unless a substantial right of the party is
affected, and . . . a timely objection or motion to strike
appears of record, stating the specific ground of objection, if
the specific ground was not apparent from the context.”). See
also American Anodco, Inc. v. Reynolds Metals Co., 743 F.2d
417, 424 (6th Cir. 1984).5 We, therefore, review only for
plain error pursuant to Fed. R. Civ. P. 52(b), which allows us
to consider a plain error that affects the substantial rights of
the party, even if it was not brought to the court’s attention.
There is no such error here. Habit evidence is entirely
admissible under Fed. R. Evid. 406, which states in relevant
part: “Evidence of the habit of a person . . ., whether
corroborated or not and regardless of the presence of
eyewitnesses, is relevant to prove that the conduct of the
person . . . was in conformity with the habit.”
Bowman contends that the district court erred in admitting
this evidence and relies on a Seventh Circuit case for the
proposition that before a court may admit habit evidence, the
offering party must establish a degree of specificity and
frequency of posited response. See Simplex, Inc. v.
Diversified Energy Systems, 847 F.2d 1290 (7th Cir. 1988).
However, Simplex dealt with a particular subset of habit
18 Bowman v. Corrections
Corp. of Am.
Nos. 00-6719/6720
evidence that is not present in Myers’s testimony. In Simplex,
a supplier had brought an action against its purchaser,
alleging anticipatory and actual breach of various contracts.
The purchaser answered and counterclaimed, asserting breach
of agreement by failing to meet contract specifications.
During the subsequent trial, the purchaser sought to introduce
evidence of the supplier’s allegedly routine practice of “late
deliveries and defective performance pursuant to Rule 406."
The district court excluded this evidence and the Seventh
Circuit affirmed that decision on review, recognizing that
such evidence was likely to conflict with Fed. R. Evid. 404,
which expressly prohibits the admission of prior bad acts used
to establish a party’s propensity to act in conformity
therewith, except under narrowly prescribed circumstances.
The court in Simplex held that, under these circumstances,
“before a court may admit evidence of habit, the offering
party must establish the degree of specificity and frequency
of uniform response that ensures more than a mere ‘tendency’
to act in a given manner, but rather, conduct that is ‘semi-
automatic’ in nature.” Id. at 1293. The testimony offered by
Myers does not conflict with Rule 404 and is not otherwise so
prejudicial as to outweigh its probative value under the
circumstances. The district court did not commit error in
allowing it to be admitted. We therefore affirm the district
court’s denial of Bowman’s motion for a new trial.
III
The Injunction
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
live “case or controversy”; 2) was precluded from awarding
injunctive relief by the Prison Litigation Reform Act of 1996,
18 U.S.C. § 3626 (PLRA); and 3) erred in finding that CCA
violated its Eighth Amendment duty to Anthony. We need

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

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Nos. 00-6719/6720 Bowman v. Corrections
Corp. of Am.
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only empowered to adjudicate “cases” or “controversies.”
U.S. Const. art. III, § 2. Accordingly, Bowman must have a
“concrete private interest in the outcome of the suit.” Lujan
v. Defenders of Wildlife, 504 U.S. 555, 573 (1992). To
possess standing for the award of an injunction, even though
she never asked for one, Bowman must show that 1) she has
suffered an “injury-in-fact” that is concrete, particularized,
and actual or imminent; 2) the injury is fairly traceable to the
conduct of the defendants; and 3) the requested relief would
likely redress the injury suffered. Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000).
Bowman cannot meet the third requirement of this test with
respect to injunctive relief, since enjoining Dr. Coble’s
contract with CCA will not affect her in any way and will
certainly not redress the alleged injury.
Bowman argues that the Supreme Court’s decision in
Helling v. McKinney, 509 U.S. 25 (1993), provides a basis for
the district court’s injunction. In Helling, a prisoner brought
a civil rights action against various prison officials, alleging
a violation of the Eighth Amendment due to his exposure to
tobacco smoke. Although the Court of Appeals held that the
defendants were immune from liability for damages under
§ 1983, the Supreme Court nevertheless found that
McKinney, the prisoner, had stated a valid Eighth
Amendment claim on which prospective relief could be
granted through an injunction, by alleging that his compelled
exposure to smoke posed an unreasonable risk with respect to
his future health. The defendants argued that unless
McKinney was able to prove that he was currently suffering
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
22 Bowman v. Corrections
Corp. of Am.
Nos. 00-6719/6720
Anthony were still alive or if there had been other prisoners
who were parties and would still have been subject to the
medical policy at issue in this case, that is not the situation
here, and thus Helling is not applicable.
Attorney’s Fees
Bowman petitioned for an award of attorney’s fees under
42 U.S.C. § 1988 as a prevailing party in a § 1983 case. The
district court awarded Bowman attorney’s fees and costs pro-
rated for the grounds on which she had “prevailed.” Since we
now reverse the sole ground on which Bowman succeeded,
Bowman is no longer entitled to an award of attorney’s fees
or costs, as she is no longer a “prevailing party” for purposes
of the statute. See 42 U.S.C. § 1988; Hensley v. Eckerhart,
461 U.S. 424, 433 (1983). The district court’s award of
attorney’s fees and costs should therefore be reversed.
IV
For the reasons given above, we AFFIRM the district
court’s denial of Bowman’s motion for judgment as a matter
of law or a new trial. We REVERSE the district court’s
holding with respect to the unconstitutionality of CCA’s
medical policy, along with the injunction awarded on that
basis, since this issue is moot for Bowman and she has no
standing upon which to bring such a claim for prospective
relief. Finally, we REVERSE the district court’s award of
attorney’s fees to Bowman, as Bowman is no longer the
prevailing party.

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