Robbie Emery BURKE, as the Special Administratrix of the estate of Elliott Earl Williams, deceased, Plaintiff - Appellee, v. Vic REGALADO, in his official capacity as Tulsa County Sheriff, Defendant - Appellant, and Stanley Glanz, in his individual capacity, Defendant. Robbie Emery Burke, as the Special Administratrix of the estate of Elliott Earl Williams, deceased, Plaintiff - Appellee, v. Stanley Glanz, in his individual capacity, Defendant - Appellant, and Vic Regalado, in his official capacity as Tulsa County Sheriff, Defendant., 935 F.3d 960

MATHESON, Circuit Judge. Table of Contents I. Background...982 A. Factual Background...982 1. Mr. Williams's Arrest and Transfer to TCSO Custody...982 2. Mr. Williams's Injury and Lack of Treatment...982 a. October 22-Response to initial injury and transfer to medical unit...982 b. October 23-24-Continued paralysis and arrival of mental health staff...983 c. October 25-Transfer to monitored cell and visit from Dr. Harnish...984 d. October 26-Lack of medical examination or treatment...984 e. October 27-Mr. Williams's first medical exam...984 3. Mr. Williams's Death...985 4. McKelvey and OSBI Reports...985 5.

TCSO Policies and Practices...985 a. 2007 audit...986 b. 2009 inspection and Gondles Report...986 c. Prior inmate deaths...987 d. 2010 NCCHC probation...987 e. Homeland Security inspection...988 B. Procedural Background...988 1. Complaint...988 2. Pre-Trial Motions, CHC Settlement, and Replacement of Sheriff Glanz with Sheriff Regalado...989 3. Trial and Verdict...989 4. Post-Trial Motions...989 II. Discussion...990 A. Judgment as a Matter of Law...990 1. Denial of Judgment as a Matter of Law under Rule 50(b)...990 a. Additional procedural background...991 b. Standard of review...991 c.

Sufficiency of evidence showing underlying constitutional violation...991 i. Legal background...991 1) Deliberate indifference-Objective and subjective components...992 2) Gatekeeping function...992 ii. Analysis...993 d. Sufficiency of evidence showing supervisory and municipal liability...995 i. Legal background...996 1) Constitutional violations by TCSO or CHC employees as the basis for the Sheriffs' liability...996 2) Supervisory liability under § 1983...997 3) Municipal liability under § 1983...998 4) Supervisory and municipal liability-Same elements in this case...998 ii.

Analysis...999 1) Supervisory liability-Sheriff Glanz...999 2) Municipal liability-Sheriff Regalado...1001 2. Qualified Immunity...1001 a. Legal background...1001 i. Qualified immunity...1001 ii. Waiver...1002 b. Analysis...---- i. Denial of

summary judgment based on disputed issues of fact not appealable...1003 ii. Failure to raise qualified immunity in Rule 50 motions...1003 B. New Trial...1003 1. Challenges to Pretrial Order...1003 a. Additional procedural background...1003 b. Standard of review...1005 c. Legal background...1005 d. Analysis...1005 i. No objections to the complaint...1006 ii. Adequate notice of allegations in the pretrial order...1007 2. Challenge to Jury Instructions...1008 a. Additional procedural background...1009 b. Standard of review...1009 c. Legal background...1009 d. Analysis...1010 3. Evidentiary Rulings...1011 a.

Investigative reports and interview transcripts...1011 i. Additional procedural background...1011 ii. Additional legal background...1013 1) Hearsay...1013 2) Waiver and inadequate briefing...1014 3) Forfeiture...1014 iii. Analysis...1014 1) The McKelvey Report-Waiver...1014 2) The OSBI Report-Forfeiture...1015 3) Transcript of interview with Mr. Latham...1016 4) Transcript of interview with Mr. Johnson...1016 b. Sheriff Glanz's misdemeanors...1017 i. Additional procedural background...1017 ii. Additional legal background...1017 iii. Analysis...1018 c. Mr. Williams's background...1019 i.

Additional procedural background...1019 ii. Additional legal background...1019 iii. Analysis...1019 d. Insurance coverage...1020 i. Standard of review...1020 ii. Additional procedural background...1020 iii. Additional legal background...1021 iv. Analysis...1021 e. Branstetter email...1021 i. Additional procedural background...1022 ii. Analysis...1022 f. Wyrick memo and testimony...1022 i. Additional procedural background...1023 ii. Additional legal background...1023 iii. Analysis...1023 g. Redirect examination of Chief Robinette and memo about Dr. Adusei...1023 i. Additional procedural background...1024 ii.

Additional legal background...1024 iii. Analysis...1025 4. Closing Argument...1025 a. Additional procedural background...1025 i. Counsel's allegedly improper statements during closing argument...1025 ii. District court ruling...1025 b. Standard of review...1026 c. Legal background...1026 d. Analysis...1027 i.

First Whittenburg factor-Extent of improper remarks...1027 1) Statements urging the jury to award damages for deterrence...1027 2) Additional legal background...1028 3) Contested statements...1027 4) Statements contrary to the evidence...1029 5) Statements urging the jury to disregard the court's instructions...1030 6) Statements violating the Golden Rule...1030 7) Statements expressing counsel's own opinion...1031 8) Pervasiveness of improper comments...1032 ii. Second Whittenburg factor-Curative action...1033 iii. Third Whittenburg factor-Size of the verdict...1033 iv.

Balancing the Whittenburg factors...1034 C. Compensatory and Punitive Damages...1034 5. Remittitur as to Compensatory Damages...1034 a. Additional procedural background...1034 b. Standard of review...1035 c. Legal background...1035 d. Analysis...1035 6. Punitive Damages...1036 a. Additional procedural background...1036 b. Standard of review...1037 c. Legal background...1037 i. Degree of reprehensibility...1037 ii. Relationship to actual harm...1038 iii. Comparison to similar cases...1038 d. Analysis...1039 7. Setoff...1040 a. Legal background...1040 i. Preservation and waiver of setoff defense...1040 ii.

Setoff law in § 1983 cases...1041 iii. Oklahoma setoff statute...1042 b. Additional procedural background...1042 i. Settlement and dismissal of CHC defendants...1042 ii. Pretrial order and motion at trial...1042 iii. Post-trial motions for disclosure of the settlement and a setoff...1043 c. Standard of review...1044 d. Analysis...1044 i. Waiver...1045 ii. Error in application of step three of the § 1988 analysis...1045 1) Policy goals of § 1983...1045 2) State law consistency-Case-specific or categorical analysis...1046 3) Error in the district court's categorical rejection of setoff statute...1047 iii.

Disclosure of the settlement agreement...1047 D. Disqualification...1048 8. Disqualification of District Court Judge...1048 a. 28 U.S.C. § 455...1048 b. Additional background...1049 i. The Sheriffs' disqualification motion...1050 1) 2008 suit against the County and Sheriff Glanz...1050 2)

Summary judgment order...1050 ii. District court ruling...1051 iii.

Summary of factual background...1051 c. Standard of review and legal background...1052 i. Timeliness...1053 ii. Disqualification under § 455(a)...1053 d. Analysis...1054 i. Timeliness...1055 ii. 2008 Case...1056 1) The 2008 case was unrelated to this case...1056 2) The Sheriffs' other arguments...1058 9. Reassignment on Remand...1058 III. Conclusion...1059 The Tulsa County Sheriff's Office ("TCSO") runs the Tulsa County Jail ("the jail"). In 2011, Elliott Williams was jailed there. Shortly after his booking, he severely injured his neck, causing lower body paralysis. No one treated his injury.

Despite his frequent complaints of pain and paralysis, no one transported him to a hospital. He remained immobile for five days, lying on his back in various cells at the jail, and died of complications from the neck injury. The administrator of Mr. Williams's estate, Robbie Emery Burke, filed a complaint under 42 U.S.C. § 1983. It alleged detention officers and medical providers at the jail violated Mr. Williams's Fourteenth Amendment right by acting with deliberate indifference to his serious medical needs.

It further alleged Tulsa County Sheriff Stanley Glanz was liable in his individual supervisory capacity and in his official capacity for his subordinates' violations. During pretrial litigation, Sheriff Glanz resigned and his successor, Sheriff Vic Regalado, was substituted as the defendant on the official-capacity claim. By the time of trial, Sheriffs Glanz and Regalado ("the Sheriffs") were the only defendants remaining. A jury awarded Ms.

Burke $10 million in compensatory damages against Sheriff Glanz and Sheriff Regalado and $250,000 in punitive damages against Sheriff Glanz in his individual supervisory capacity. On appeal, the Sheriffs challenge the verdict, various evidentiary rulings, and several pre- and post-trial decisions of the district court. The following summarizes the 11 issues presented on appeal and our dispositions. We organize them under the four types of relief sought by the Sheriffs. A. Judgment as a Matter of Law 1. Were the Sheriffs entitled to judgment as a matter of law under Federal Rule of Civil Procedure 50(

b) on Ms. Burke's constitutional claims because the evidence for the verdict was insufficient? No. The evidence was sufficient for a reasonable jury to conclude that one or more jail detention officer or medical provider was deliberately indifferent to Mr. Williams's serious medical needs and that Sheriff Glanz maintained a custom or practice of neglecting to remedy deficient medical services at the jail. 2. Was Sheriff Glanz entitled to dismissal of the individual supervisory liability claim against him based on qualified immunity?

Sheriff Glanz has waived this issue for appellate review because he did not properly preserve it in district court. B. New Trial 3. Did the pretrial order impermissibly broaden the allegations against the Sheriffs from those contained in the Second Amended Complaint? No. The Sheriffs did not challenge the specificity of the complaint and both the discovery process and

summary judgment briefing provided adequate notice of the allegations in the pretrial order. 4. Did the jury instructions permit a finding of liability based on the collective actions of jail detention officers and medical providers? No. The jury instructions required the jury to find that one or more of the Sheriffs' individual subordinates was deliberately indifferent to Mr. Williams's serious medical needs. 5. Did the district court make erroneous evidentiary rulings that prejudiced the Sheriffs? No. We affirm each of the seven evidence rulings that the Sheriffs challenge. 6. Did Ms.

Burke's counsel engage in improper closing argument that affected the jury's verdict? No. Although some of counsel's comments may have been improper, they did not affect the verdict and did not warrant a new trial. C. Compensatory and Punitive Damages 7. Were the Sheriffs entitled to remittitur of compensatory damages? No. The district court did not abuse its discretion in denying remittitur in light of the evidence presented at trial. 8. Was the punitive damages award against Sheriff Glanz excessive? No.

Sheriff Glanz has failed to show that the award violated due process under the evidence and applicable Supreme Court precedent. 9. Are the Sheriffs entitled to setoff from the verdict in the amount of Ms. Burke's settlement with Correctional Healthcare Companies, Inc. ("CHC"), the company hired to provide medical services at the jail? We do not determine whether the Sheriffs are entitled to a setoff. We reverse and remand because the district court abused its discretion by failing to consider the terms of the settlement agreement and to order disclosure of the agreement. D. Disqualification 10.

Should the district court judge have recused himself? No. The judge did not abuse his discretion when he denied the Sheriffs' disqualification motion. 11. Should the case be reassigned to another judge on remand? No. The Sheriffs have failed to meet their burden for reassignment. Exercising jurisdiction under 28 U.S.C. § 1291, we therefore affirm in part, reverse in part, and remand to the district court for further consideration of whether the Sheriffs are entitled to a setoff to reflect Ms. Burke's pre-trial settlement with the jail's medical provider. I. BACKGROUND In this section, we describe

(1) Mr. Williams's arrest, injury, and experiences while in TCSO custody; (2) the TCSO's policies and practices regarding medical care at the jail; and (3) the proceedings in district court. A. Factual Background 1. Mr. Williams's Arrest and Transfer to TCSO Custody On October 21, 2011, Owasso Police Department ("OPD") officers responded to a call about Mr. Williams's disruptive behavior and arrested him for obstructing an officer. They took him to the Owasso jail. The booking report shows the officers believed Mr. Williams was "suicidal." App. at 11240-41. Early the next morning, Mr.

Williams was transferred to TCSO custody and booked into the jail. 2. Mr. Williams's Injury and Lack of Treatment a. October 22-Response to initial injury and transfer to medical unit After arriving at the jail, Mr. Williams was forcibly taken to holding cell #10 following a confrontation with staff over his refusal to change his clothes. Shortly thereafter, while alone in the holding cell, Mr. Williams hit his head and became partially paralyzed. Nurse Kimberly Hughes and two detention officers first observed Mr. Williams lying face-up, complaining that he "broke his neck." Id. at 11876; see also id. at 7327-30.

He said, "I can't move, I can't move" and "My neck hurts." Id. at 11899; see also id. at 7331. He told Nurse Hughes he had head-butted the door of the holding cell. Nurse Hughes said she "visually checked and there was nothing wrong with his neck." Id. at 11900. She did not provide Mr. Williams any medical treatment. More than ten hours later, Nurse Faye Taylor and detention officers found Mr. Williams in holding cell #10 still unable to get up. They declared a "medical emergency." Id. at 7349; see also id. at 7380-81. Nurse Earnie Chappell recorded a note, stating: "[Mr.

Williams] is awake, laying on floor in holding cell. states 'I cannot move my legs and there is something in my rectum.['] Asking nurse to cut him open & kill him. Admitted to medical ...." Id. at 10870. When Mr. Williams arrived in the jail's medical unit, Nurse Mary Hudson took his vital signs and blood pressure and scraped the bottom of his foot with a pen to test his reflexes. Mr. Williams moved his legs in response to this stimulus. Nurse Chappell also was present. At least one of the nurses stated she believed Mr. Williams was faking his paralysis. The nurses did not provide Mr.

Williams any medical treatment. They asked detention officers to take him to the shower because he had defecated on himself in the holding cell. Detention Officers Tommy Fike and Doug Hinshaw took Mr. Williams to the shower on a gurney. When Mr. Williams told them he could not get up, they laid him face up in the shower, removed his pants and shirt, turned on the water, and left. They left Mr. Williams in the shower for at least an hour, returning at some point to turn him over before leaving again. Detention Officer Christopher Leverich, who helped move Mr.

Williams from the shower to a cell in the medical unit, said Mr. Williams was screaming, "Help me." Id. at 6905, 11911. His skin was purple, suggesting oxygen deprivation. The officers remarked "that something's wrong with Williams." Id. at 11911. That night, Officers Carmelita Norris and Dakota Walsh were assigned to check on Mr. Williams. Officer Norris did not see Mr. Williams walk, stand, or sit up by himself during her 12-hour shift. Officer Walsh said Williams "was making it very clear through the whole night that he was unable to move." Id. at 11924. Nurse Raymond Stiles also checked on Mr.

Williams overnight. His notes reported Mr. Williams "state[d] that he cannot walk. However booking staff states he did not use wheel chair or any other walking aid when brought into jail. Continues to tell Nursing staff here that he just cannot walk, or even pull blankets over his shoulder. Wants to be waited on." Id. at 10865. b. October 23-24-Continued paralysis and arrival of mental health staff Mr. Williams received no medical treatment or evaluation on October 23. Detention Officer Leticia Glover recalled that during the night of the 23rd, Mr. Williams yelled out that he could not feel his legs.

Officer Glover informed "Nurse Paul or Nurse Ray" that Mr. Williams "wants something" and asked that they "at least go down there and look at him," but no one did. Id. at 11910; see also id. at 7449-50. Nurse Stiles's notes from the morning of October 24 recorded Mr. Williams "stat[ing] he cannot walk," adding, "[b]ut when his suicide blanket slides off he manages to get it back over his body without asst. Can't remembeif [sic] he is suicidal or not." Id. at 10866. Nurse Charity Chumley's notes from about the same time described Mr.

Williams's breathing as "even/unlabored" and his position as "lying on bed with out [sic] clothes refusing to answer any questions." Id. On October 24, Dr. Stephen Harnish, the jail's part-time psychiatrist, first learned of Mr. Williams's condition. He testified that other members of the jail's mental health staff informed him during a routine meeting that they "[had] some questions about [Mr. Williams]." Id. at 8479. Dr. Harnish did not see or examine Mr. Williams that day. Rather, John Bell, a counselor and member of the jail's mental health staff, visited Mr. Williams. He noted that Mr.

Williams would "lie on bed and not respond to ... questions," "acted as if paralyzed," and said, "I want water." Id. at 10866. Mr. Bell did not treat Mr. Williams but provided him "education" regarding "coping skills." Id. The same day, Dr. Harnish "set forth a plan" to determine whether Mr. Williams was paralyzed. Id. at 8489. He ordered Mr. Williams be placed in a video-monitored cell where detention officers and nurses could regularly check on him. c. October 25-Transfer to monitored cell and visit from Dr. Harnish At 8:27 a.m. on October 25, detention officers placed Mr.

Williams on a blanket and dragged him, naked, into Medical Cell 1. A few minutes later, a detention officer placed a small cup of water at his feet. Dr. Harnish met with Mr. Williams for the first time that morning. Patricia Benoit, a counselor and mental health team member, accompanied him. When Mr. Williams requested "a bucket of ice water and a tube to drink threw [sic]," id. at 11304, Dr. Harnish moved the water cup within reach of Mr. Williams's right arm. He described Mr. Williams as moving his arms, hands, and neck during the visit. Although Dr.

Harnish conducted no medical evaluation, he recorded that he "doubt[ed the] medical etiology of [Williams's] claimed paralysis." Id. at 10868. Dr. Harnish testified he was aware Mr. Williams may be paralyzed. Ms. Benoit stated, "It was really hard to tell if [Mr. Williams's paralysis] was psychosomatic or if it was physical." Id. at 11939. Video showed that about an hour after Dr. Harnish's visit, a detention officer opened the door to Mr. Williams's cell and tossed a food container on the floor, out of his reach. The container remained untouched for two days. Mr.

Williams unsuccessfully attempted to lift the water cup and to open a second food container that landed within his reach. d. October 26-Lack of medical examination or treatment Nurse Hughes wrote a note shortly after midnight on October 26 reporting that Mr. Williams was "muttering, can't understand a word," and that he was "lying on the floor, covered by blanket-will not get up for [vital signs] & cannot understant [sic] his 'mutters.' " Id. at 10867. When she returned several hours later, she "could see on his mouth where he had slobbered something, a white residue, on the mouth." Id. at 11901. Mr.

Williams asked for water, but when Nurse Hughes told him to come to the door with his cup, Mr. Williams told her he could not move. Nurse Hughes asked Detention Officers Steven Smith and Crystal Rich to open the door to Mr. Williams's cell, but they refused, citing safety reasons. Nurse Hughes left without relaying her concerns to other medical personnel. The evidence regarding Mr. Williams's mobility during the night of October 25-26 consisted of

(1) Nurse Hughes's notes describing Mr. Williams lying on the floor of his cell;

(2) Ms. Benoit's notes relating that Mr. Williams "reportedly was given water by the [detention officer] overnight and was told to come to the [slot in the door] to get the water and he did," id. at 10867; and (3) a video that captured all movement in Mr. Williams's cell, which did not show he moved his lower body at all. On the morning of October 26, Ms. Benoit noted that Mr. Williams was "still refusing to move or admit he can move." Id. She thought Mr. Williams suffered from "psychosomatic paralysis." Id. Nurse Carmen Luca recorded that Mr. Williams was "stating that he cannot move." Id.

She administered no care and did not examine Mr. Williams or take his vital signs. That evening, Nurse Devorsha Stewart wrote that Mr. Williams was "laying on floor partially covered by blanket, shaking." Id. at 10868. e. October 27-Mr. Williams's first medical exam Detention Officers Carmelita Norris and Ronald Reynolds stated they checked on Mr. Williams 22 times between 7:00 p.m. on October 26 and 7:00 a.m. on October 27. When they asked if he was okay, Mr. Williams said he was. The officers delivered breakfast at 5:15 a.m. on October 27 and recorded that Mr. Williams was able to feed himself.

The video from Mr. Williams's cell refutes this account, however. The video showed a food container being dropped near Mr. Williams's feet around that time. It also showed that, when medical staff arrived three hours later, the container was untouched. Nurse Luca, Mr. Bell, and Dr. Khadga Limbu, a resident in family medicine who was assigned to a behavioral rotation at the jail, examined Mr. Williams. Mr. Bell's note reported that at 8:36 a.m. on October 27 Mr. Williams was "laying on floor with some spittle on cheek" and stated, "I want my phone, Iwant [sic] my phone." Id. at 10868.

The note also recorded that Mr. Williams's speech was unclear and his memory and "insight/judgment/impulse control" were "poor." Id. When Nurse Luca ran her pen across the bottoms of Mr. Williams's feet to test his reflexes, there was no response, but there was a little response when Dr. Limbu did the same. Dr. Limbu and Mr. Bell informed Dr. Phillip Washburn, the jail's medical director, that Mr. Williams needed medical attention. Dr. Limbu told Dr. Washburn, "I think we might need to get a CT Scan of the head or something like that just to rule out any medical conditions and [Dr.

Washburn] said he would look at him later." Id. at 11890. Dr. Washburn never followed up on Dr. Limbu's recommendations. 3. Mr. Williams's Death At approximately 11:30 a.m. on October 27, 2011, jail personnel discovered Mr. Williams was unresponsive. Several nurses, including Julie Hightower, attempted CPR until paramedics arrived. Attempts to resuscitate Mr. Williams were unsuccessful. The medical examiner determined Mr. Williams died from "complications of a [sic] vertebral spinal injuries due to blunt force trauma." Id. at 7567. The post-mortem examination showed Mr. Williams was dehydrated. Ms.

Burke's expert, Dr. Zeeshaan Khan, opined that the jail's failure to stabilize Mr. Williams's neck caused a hematoma that travelled up his spine and shut down his spinal cord, which in turn caused Mr. Williams's respiratory muscles to stop working. He testified that if the jail had stabilized Mr. Williams's neck and referred him to an appropriate medical facility, his death likely would have been avoided. 4. McKelvey and OSBI Reports After Mr. Williams's death, investigators produced two reports.

Officer Billy McKelvey, then a TCSO internal affairs investigator, authored the "McKelvey Report." It contained a statement of "undisputed facts," id. at 11880-92, and summaries of and quotations from interviews with OPD officers, TCSO employees, CHC medical providers, and inmates. The Oklahoma State Bureau of Investigation prepared the "OSBI Report." It similarly contained summaries of interviews with OPD officers, TCSO employees, CHC providers, inmates, and Mr. Williams's relatives. 5. TCSO Policies and Practices Stanley Glanz served as Tulsa County Sheriff from 1988 until 2015.

In 2005, TCSO retained a private contractor, Correctional Healthcare Companies, Inc., to provide medical care at the jail. The nurses and physicians working at the jail are employees of CHC, not Tulsa County or TCSO. CHC's contract provided that "TCSO is charged with the responsibility for administering, managing[,] and supervising the health care delivery system" at the jail. Id. at 11824.

Sheriff Glanz testified that he was "ultimately responsible for the inmate health care of those inmates at the Tulsa County Jail." Id. at 7676. a. 2007 audit In 2007, the National Commission on Correctional Health Care ("NCCHC") conducted an on-site audit of the jail's health services. Before the auditors arrived, Sheriff Glanz met with jail department heads.

Diane Maloy, who handled the jail's medical records, testified that Pam Hoisington, the jail's Health Services Administrator, told staff to alter medical charts to help the jail pass the audit: She originally gave us a list of charts to pull to basically hide because she didn't want the auditors to pull what was called the "troubled inmates" or the inmates that had a lot of medical issues. Then she had us pull another set of charts that were low-maintenance charts. And the low-maintenance charts, she disassembled and took out all of the sick calls or medications that had not been given.

Anything that wasn't addressed, she took it out, and we reassembled the charts and we placed them into a basket for the auditors to have these charts to pick from when they came. Id. at 8724. These manipulated charts were created to pass the NCCHC audit. Ms. Maloy added that one of the supervisors at the meeting stated that "heads were going to roll if [the jail] didn't pass this audit." Id. at 8723. After the audit, the NCCHC placed the jail on probation.

Its report identified several deficiencies in the jail's medical care, including: • "health needs identified during receiving screening ... are not addressed in a timely manner," id. at 12062; • "the follow-up of inmates with mental health needs is not of sufficient frequency to meet their needs," id. at 12066; • "once mental health issues were identified, ... there was no consistent follow-up by the mental health staff," id. ; and • "there was a noted delay in responding to routine mental health-related requests submitted by the inmates," id. Ms.

Maloy testified the jail submitted "corrective action statements" to NCCHC describing how it planned to fix the deficiencies, but the action plans were not implemented. At trial, Sheriff Glanz testified he did not know what was changed in response to the audit but said the jail ultimately received accreditation. b. 2009 inspection and Gondles Report In August 2009, the American Correctional Association ("ACA") conducted a "mock audit" of the jail. The ACA discovered the jail was non-compliant with "mandatory health care standards" and suggested "substantial changes." Id. at 12075.

Based on these and other "deficiencies" in the jail's medical services, TCSO sought advice from Elizabeth Gondles, a correctional consultant. In October 2009, Ms.

Gondles produced a report (the "Gondles Report"), which addressed: • understaffing of medical personnel, • deficiencies in "doctor/[physician assistant] coverage," • a lack of health services oversight and supervision, • failure to provide new health staff with formal training, • delays in provision of necessary medication, • nurses failing to document the delivery of health services, • systemic nursing shortages, • failure to provide timely health appraisals to inmates, and • 313 health-related grievances within the preceding 12 months. Id. at 12075, 12078-87. Ms.

Gondles concluded "[m]any of the health service delivery issues ... [were] a result of the lack of understanding of correctional healthcare issues by jail administration and contract oversight and monitoring of the private provider." Id. at 12090. Ms. Gondles made 16 recommendations to TCSO about how it could improve its medical services. According to Captain Rick Weigel, the jail implemented only three: (1) holding monthly meetings between jail administrators and CHC providers, (2) establishing a "kiosk" system for inmates to report medical issues, and (3) refurbishing and cleaning the medical unit. c.

Prior inmate deaths Inmates died in the jail in March, June, and December of 2010. In March 2010, an inmate reported chest pain over the course of a week. He went into cardiac arrest and died of a pulmonary embolus. A private consultant hired to investigate after Mr. Williams's death described this incident, noting there was "a 42 minute delay in calling [emergency medical services]" for the inmate, and adding the "[p]atient had medical criteria ... that should have prompted a 911 call." Id. at 11867.

Also in March 2010, an inmate committed suicide eight days after requesting someone to "talk" with him in the jail and two days after a mental health exam had ruled out suicidal ideation. In June 2010, an inmate died of cardiac arrest. The consultant's report noted "several standard of care issues." Id. at 11868. It stated the inmate should have had repeated blood tests after his first blood test showed an elevated potassium level that "could lead to cardiac arrest." Id.

It faulted "inadequate system protocols, and real time auditing of protocols, for treatment, monitoring, [and] referral" and concluded that "[w]ithout such protocols, risk of similar episodes for other inmates, in the future, is quite high." Id. On October 28, 2010, Assistant District Attorney Andrea Wyrick wrote an email to TCSO's "Risk Manager" voicing concerns about CHC's compliance with its contract. She stated, "This is very serious, especially in light of the three cases we have now-what else will be coming?" Id. at 12278. In December 2010, another inmate died at the jail.

Notes from more than five months before the inmate's death showed he had been prescribed medication for a heart condition. Although the jail contacted a hospital to confirm the inmate's prescription, jail notes did not show whether he received the medication. He died of cardiac arrest. d. 2010 NCCHC probation In November 2010, the NCCHC conducted another audit and again placed the jail on probation. The jail met only 65 percent of NCCHC's "essential standards." Id. at 11638. The NCCHC's report found: • "There have been several inmate deaths in the past year. ...

The clinical mortality reviews were poorly performed." Id. at 11643. • "[T]he responsible physician does not conduct clinical chart reviews to determine if clinically appropriate care is ordered and implemented by attending health staff." Id. at 11650. • "[D]iagnostic tests and specialty consultations are not completed in a timely manner and are not ordered by the physician." Id. • "[I]f changes in treatment are indicated, the changes are not implemented, nor is clinical justification for an alternative course noted." Id. • "Training for custody staff has been limited.

Follow up [with suicidal inmates] has been poor." Id. at 11653. Sheriff Glanz read only the first three pages of the 2010 NCCHC Report when he received it. At trial, neither Sheriff Glanz nor Michelle Robinette, the jail's Detention Chief Deputy, could name a specific change the jail implemented in response to the 2010 audit. NCCHC renewed the jail's accreditation in March 2011. e. Homeland Security inspection In 2011, the U.S. Department of Homeland Security's Office of Civil Rights and Civil Liberties ("CRCL") inspected the jail's medical system.

An Immigration and Customs Enforcement ("ICE") officer emailed the results in September 2011 to TCSO Undersheriff Brian Edwards. According to the ICE officer, "CRCL found a prevailing attitude among clinic staff of indifference ...." Id. at 11834. CRCL also noted that "[n]urses are undertrained" and were "[n]ot documenting or evaluating patients properly." Id. In one case, a lack of training had resulted in an inmate's appendix perforating. The inspection also "[f]ound two ICE detainees with clear mental/medical problems that have not seen a doctor." Id.

Although he did not receive the email, Sheriff Glanz discussed it with Undersheriff Edwards. The ICE supervisor also gave him a briefing on the audit, at which Sheriff Glanz "personally sat there and listened to all their findings." Id. at 7843. B. Procedural Background This

section provides a

summary of the district court proceedings. We provide additional procedural background where relevant to the issues on appeal. 1. Complaint On November 17, 2011, Mr. Williams's estranged wife, Elia Lara-Williams, filed a complaint under 42 U.S.C. § 1983 against Sheriff Glanz in his individual supervisory and official capacities, CHC, and 20 unidentified detention officers and medical providers. In April 2012, Robbie Emery Burke, the administrator of Mr. Williams's estate, replaced Ms. Williams as the plaintiff and filed a Second Amended Complaint (the "complaint"), the operative pleading on appeal.

It named Sheriff Glanz in both his individual supervisory and official capacities, CHC, Nurse Chappell, Nurse Luca, Nurse Hightower, four Owasso Police Department ("OPD") officers, and an unspecified number of unidentified detention officers and medical providers. Ms. Burke alleged the defendants violated Mr. Williams's rights under the Eighth and Fourteenth Amendments by acting with deliberate indifference to his serious medical needs.

She further alleged Sheriff Glanz was liable in his individual supervisory and in his official capacity for the constitutional violations committed by his subordinates because he had promulgated a policy that encouraged such violations. Ms. Burke sought compensatory and punitive damages. 2. Pre-Trial Motions, CHC Settlement, and Replacement of Sheriff Glanz with Sheriff Regalado On January 29, 2014, Sheriff Glanz filed a motion for

summary judgment asserting qualified immunity. While the motion was pending, Ms. Burke and CHC reached a settlement. The district court dismissed CHC and the individual nurse defendants on September 3, 2014. The settlement terms were not disclosed. Sheriff Glanz resigned from office on November 1, 2015. The new Sheriff, Vic Regalado, took Sheriff Glanz's place as the official-capacity defendant. Sheriff Glanz remained a defendant in his individual supervisory capacity. On July 20, 2016, the district court granted

summary judgment for the OPD officers, denied qualified immunity for Sheriff Glanz, and denied

summary judgment for both Sheriff Glanz and Sheriff Regalado. This left only Sheriffs Glanz and Regalado ("the Sheriffs") as defendants. On February 9, 2017, the Sheriffs moved to disqualify the district court judge on the ground that his impartiality could reasonably be questioned. The district court denied the motion. 3. Trial and Verdict Trial began on February 23, 2017, and lasted more than three weeks. At the close of evidence, the Sheriffs moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). The district court denied the motion. The jury returned a verdict for Ms. Burke.

It found Sheriff Glanz liable in his individual supervisory capacity and Sheriff Regalado liable in his official capacity, awarding Ms. Burke $10 million in compensatory damages against both Sheriffs and $250,000 in punitive damages against Sheriff Glanz. 4. Post-Trial Motions The Sheriffs filed two post-trial motions challenging the jury's verdict. The first was a joint filing arguing the compensatory damages verdict was the product of an inflammatory closing argument. In that motion, the Sheriffs sought a new trial under Federal Rule of Civil Procedure 59(

a) or, in the alternative, remittitur of compensatory damages. The second motion-filed by Sheriff Glanz alone-argued for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), a new trial, or remittitur of the punitive damages award. Although Sheriff Glanz's motion was styled as a challenge to the punitive damages award, it also asserted (1) no jail subordinate had violated Mr. Williams's constitutional rights and

(2) Ms. Burke had failed to establish Sheriff Glanz's supervisory liability. Finally, the Sheriffs filed motions (1) to disclose Ms. Burke's confidential settlement agreement with CHC and (2) to amend the judgment under Federal Rule of Civil Procedure 59(

e) by applying a dollar-for-dollar, or "pro tanto," setoff of the compensatory damages award in the amount of the CHC settlement. II. DISCUSSION The Sheriffs argue that each of their appeal issues entitles them to one of the following types of relief: A. Judgment as a Matter of Law 1. Were the Sheriffs entitled to judgment as a matter of law on Ms. Burke's constitutional claim because the evidence for the verdict was insufficient? 2. Was Sheriff Glanz entitled to dismissal of the individual liability claim against him based on qualified immunity? B. New Trial 3.

Did the pretrial order impermissibly broaden the allegations against the Sheriffs from those contained in the Second Amended Complaint? 4. Did the jury instructions permit a finding of liability based on the jail personnel's collective actions? 5. Did the district court make erroneous evidentiary rulings that prejudiced the Sheriffs? 6. Did Ms. Burke's counsel engage in improper closing argument that affected the jury's verdict? C. Compensatory and Punitive Damages 7. Were the Sheriffs entitled to remittitur of compensatory damages? 8. Was the punitive damages award against Sheriff Glanz excessive? 9.

Are the Sheriffs entitled to setoff from the verdict in the amount of Ms. Burke's settlement with CHC? D. Disqualification 10. Should the district court judge have recused himself? 11. Should the case be reassigned to another judge on remand? We affirm the judgment and all rulings except the denial of the setoff. We remand that issue to the district court for further consideration. A. Judgment as a Matter of Law 1. Denial of Judgment as a Matter of Law under Rule 50(

b) The Sheriffs argue on appeal they were entitled to judgment as a matter of law because there was insufficient evidence to support the verdicts against them. We disagree and hold that a reasonable jury could have found (1) at least three of the Sheriffs' subordinates were deliberately indifferent to Mr. Williams's medical needs, and (2) the evidence adequately supported the Sheriffs' liability on the individual supervisory and official-capacity claims. a. Additional procedural background At the close of evidence, the Sheriffs moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a).

They argued the TCSO detention officers had relied on the CHC medical providers' judgment in declining to seek treatment for Mr. Williams and that no evidence established subjective knowledge that Mr. Williams was paralyzed. As to the CHC medical providers, the Sheriffs contended Ms. Burke had presented evidence that might establish medical malpractice but not deliberate indifference to Mr. Williams's medical needs. They also contended that Ms. Burke had presented a "collective case" that did not establish deliberate indifference on behalf of any individual. App. at 10525. The district court denied the motion.

After trial, Sheriff Glanz moved for judgment as a matter of law under Rule 50(b), again arguing the evidence did not support the jury's supervisory liability verdict. The district court also denied that motion. We affirm. b. Standard of review "We review de novo a district court's decision to grant or deny a motion for judgment as a matter of law, applying the same legal standards as the district court." Etherton v. Owners Ins. Co. , 829 F.3d 1209, 1224 (10th Cir. 2016).

"Judgment as a matter of law is appropriate only if the evidence points but one way and is susceptible to no reasonable inferences which may support the nonmoving party's position." Elm Ridge Exploration Co. v. Engle , 721 F.3d 1199, 1216 (10th Cir. 2013) (quotations omitted). "When a new trial motion asserts that the jury verdict is not supported by the evidence, the verdict must stand unless it is clearly, decidedly, or overwhelmingly against the weight of the evidence." Ryan Dev. Co. v. Indiana Lumbermens Mut. Ins. Co. , 711 F.3d 1165, 1172 (10th Cir. 2013) (quotations omitted).

"We draw all inferences from the evidence in favor of the non-moving party, and do not weigh the evidence or judge witness credibility." Henry v. Storey , 658 F.3d 1235, 1238 (10th Cir. 2011). c.

Sufficiency of evidence showing underlying constitutional violation Under 42 U.S.C. § 1983, a person acting under color of state law who "subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." Courts have found § 1983 liability for the type of constitutional claims asserted in this case. See, e.g. , Estelle v. Gamble , 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ; Lopez v. LeMaster , 172 F.3d 756, 764 (10th Cir. 1999). i.

Legal background "A prison official's 'deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment." Farmer v. Brennan , 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ; see also Estelle , 429 U.S. at 104, 97 S.Ct. 285. The constitutional protection against deliberate indifference to a pretrial detainee's serious medical condition springs from the Fourteenth Amendment's Due Process Clause. See Bell v. Wolfish , 441 U.S. 520, 535 n.16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ; Lopez , 172 F.3d at 759 n.2.

In evaluating such Fourteenth Amendment claims, "we apply an analysis identical to that applied in Eighth Amendment cases." Lopez , 172 F.3d at 759 n.2. 1) Deliberate indifference-Objective and subjective components The "[d]eliberate indifference [standard] has objective and subjective components." Callahan v. Poppell , 471 F.3d 1155, 1159 (10th Cir. 2006). The objective component of deliberate indifference is met if the "harm suffered rises to a level 'sufficiently serious' to be cognizable under the Cruel and Unusual Punishment Clause." Mata v.

Saiz , 427 F.3d 745, 753 (10th Cir. 2005) (quoting Farmer , 511 U.S. at 834, 114 S.Ct. 1970 ). We have held that "death, [is], without doubt, sufficiently serious to meet the objective component." Martinez v. Beggs , 563 F.3d 1082, 1088 (10th Cir. 2009). To satisfy the subjective component, the plaintiff must show the official "knows of and disregards an excessive risk to inmate health or safety." Farmer , 511 U.S. at 837, 114 S.Ct. 1970. The official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Self v.

Crum , 439 F.3d 1227, 1231 (10th Cir. 2006) (quotations omitted). "Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence ...." Farmer , 511 U.S. at 842, 114 S.Ct. 1970. "[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id.

A medical professional's "accidental or inadvertent failure to provide adequate medical care, or negligent diagnosis or treatment of a medical condition do not constitute a medical wrong under the Eighth Amendment." Ramos v. Lamm , 639 F.2d 559, 575 (10th Cir. 1980) (citing Estelle , 429 U.S. at 105-06, 97 S.Ct. 285 ); see also Whitley v. Albers , 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (holding Eighth Amendment liability requires "more than ordinary lack of due care for the prisoner's interests or safety").

"Where the necessity for treatment would not be obvious to a lay person, the medical judgment of the physician, even if grossly negligent, is not subject to second-guessing in the guise of an Eighth Amendment claim." Mata , 427 F.3d at 751. 2) Gatekeeping function We distinguish a medical professional's negligent failure to treat a serious medical condition properly, which does not constitute deliberate indifference, from "prison officials [who] prevent an inmate from receiving treatment or deny him access to medical personnel capable of evaluating the need for treatment," which may constitute deliberate indifference.

Sealock v. Colorado , 218 F.3d 1205, 1211 (10th Cir. 2000). In the latter scenario, if the official knows "his role in a particular medical emergency is solely to serve as a gatekeeper for other medical personnel capable of treating the condition, and if he delays or refuses to fulfill that gatekeeper role due to deliberate indifference, ... he also may be liable for deliberate indifference." Id. We have found deliberate indifference when jail officials confronted with serious symptoms took no action to treat them.

In Sealock , for example, a jail employee refused to drive an inmate experiencing severe chest pain to the hospital. Id. at 1210. He instead offered the inmate an antacid. Id. at 1208. We held the facts "demonstrate for

summary judgment purposes that [the employee] knew of and disregarded the excessive risk" to the inmate's health. Id. at 1210 ; see also id. at 1211-12 (stating that if an employee was aware of the chest pain, "failure to summon an ambulance would have disregarded" the serious risk to the inmate's health). By contrast, we held a jail nurse who misdiagnosed the source of the inmate's symptoms after conducting a physical examination was entitled to

summary judgment. See id. at 1208, 1211. In Mata , an inmate sought medical attention for severe chest pain. 427 F.3d at 750. The nurse on duty told the inmate to return in the morning because the infirmary was closed for the evening. Id. In the morning, a second nurse assessed the inmate, performed an EKG, and, after determining the results were normal, gave her no treatment beyond permission to skip work for the day. Id. The inmate's chest pain did not subside, so she returned the following day.

Two more nurses conducted tests on the inmate before referring her EKG results to a doctor, who ordered her to go to the emergency room. The inmate had suffered a heart attack and permanent heart damage. Id. We held that the first nurse, who turned the inmate away, acted with deliberate indifference because she "was ... aware Ms. Mata was suffering from severe chest pains and required medical attention." Id. at 756. "More importantly," the nurse "refused to perform her gatekeeping role in a potential cardiac emergency by not seeking a medical evaluation for Ms. Mata" as required by state standards. Id.

Rather, she "completely refused to assess or diagnose Ms. Mata's medical condition at all." Id. at 758. By contrast, we held that the other nurses were not deliberately indifferent because they either observed that the inmate's EKG results were "normal" and thus did not have subjective knowledge that the inmate was at risk of a heart attack, id. at 760, or "fulfilled [their] gatekeeper dut[ies]" by communicating the inmate's symptoms to a higher-up, id. at 759-60. Benavides v.

County of Wilson , 955 F.2d 968 (5th Cir. 1992), involved an inmate who banged his head and shoulder on a cell door and ultimately suffered a "fractured spinal column that rendered him a permanent quadriplegic." Id. at 970. When detention officers came to check on the inmate, he told them several times that "he was paralyzed and request[ed] hospitalization" and "that he could not move and wished to go to the hospital." Id. The detention officers "left him lying in his cell." Id.

The Fifth Circuit held that "a jury could reasonably conclude that the three ... deputies purposely denied Benavides due process of law and his right to be free from cruel and unusual punishment under the [E]ighth [A]mendment." Id. at 972. ii. Analysis The Sheriffs' liability depends on one or more of their subordinates having violated Mr. Williams's constitutional rights. See , e.g. , Dodds v. Richardson , 614 F.3d 1185, 1194-95 (10th Cir. 2010) ("To impose § 1983 liability the plaintiff first had to establish the supervisor's subordinates violated the [C]onstitution." (quotations omitted)).

The trial evidence permitted the jury to find that various jail personnel-both detention officers and medical providers-were deliberately indifferent to Mr. Williams's serious medical needs and thereby violated his Fourteenth Amendment rights. The parties agree that Mr. Williams's death was sufficiently serious to satisfy the objective component of deliberate indifference. An inmate's death meets this requirement "without doubt." Martinez , 563 F.3d at 1088. As to the subjective component, a reasonable jury could find both detention officers and medical providers understood that Mr.

Williams was experiencing a medical crisis. Despite his obvious need, they either dismissed Mr. Williams as a malingerer without undertaking any investigation into his condition or abdicated their gatekeeping roles by failing to relay the problem to medical staff. A few examples will suffice. On October 26, Mr. Williams's fourth day at the jail, Nurse Luca wrote that he "stat[ed] that he cannot move." App. at 10867. As in Benavides , an inmate told her he was experiencing paralysis. But Nurse Luca did not attempt to determine Mr. Williams's condition or administer care.

Her nursing note did not reflect any effort to examine him or gather vital signs. And she did not alert anyone that he could not move. Indeed, the video of Mr. Williams's cell does not show anyone entering it on October 26. Instead, Nurse Luca left Mr. Williams immobile in his cell. A reasonable jury could find her inaction was deliberate indifference. A reasonable jury could also conclude that Detention Officers Smith and Rich acted with deliberate indifference. They refused to allow Nurse Hughes to enter Mr. Williams's cell despite her telling them she needed to tend to Mr. Williams.

Contrary to the Sheriffs' assertions, Officers Smith and Rich did not defer to medical staff. See Aplt. Br. at 36-38. Rather, the officers summarily disregarded Nurse Hughes's request for unspecified safety reasons and made no attempt to determine the severity of Mr. Williams's medical need or the safety risk he might have posed. A reasonable jury could conclude that, in so doing, Officers Smith and Rich failed to fulfill their gatekeeping role. The evidence was therefore sufficient to find that at least Nurse Luca, Officer Smith, and Officer Rich were deliberately indifferent to the serious risk that Mr.

Williams was suffering from a medical issue that demanded attention. As in Benavides , Mr. Williams complained to each of these three individuals about his paralysis. They failed to act on his obvious need for medical attention. And like the first nurse in Mata , Nurse Luca disregarded Mr. Williams's complaints of paralysis without performing any examination or offering any treatment. The jury had sufficient evidence that a subordinate of the Sheriffs violated Mr. Williams's constitutional rights. d.

Sufficiency of evidence showing supervisory and municipal liability Neither of the Sheriffs' two post-trial motions challenging the jury's verdict addressed the liability of Sheriff Regalado or Tulsa County. The Sheriffs' joint filing under Rule 59(

a) sought a new trial based on an allegedly inflammatory closing argument. It did not argue there was insufficient evidence to support the Sheriffs' liability. And although Sheriff Glanz's Rule 50(

b) motion asserted (1) no jail subordinate had violated Mr. Williams's constitutional rights and

(2) Ms. Burke had failed to establish a policy or custom of providing deficient medical care, neither Sheriff Regalado nor the County joined that motion. Because the Sheriffs did not challenge municipal liability in the district court, they have forfeited this issue. See Paycom Payroll, LLC v. Richison , 758 F.3d 1198, 1203 (10th Cir. 2014) ("[I]f [a] theory simply wasn't raised before the district court, we usually hold it forfeited."). They also may have waived their argument on appeal because their briefing does not explicitly challenge municipal liability, see Anderson v. U.S.

Dep't of Labor , 422 F.3d 1155, 1174 (10th Cir. 2005) ("The failure to raise an issue in an opening brief waives that issue."), or argue plain error, see Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1131 (10th Cir. 2011) (hereafter short-cited as Richison ). As we explain below, however, the elements of supervisory and municipal liability merge in this case, and our discussion of the former benefits from comparison with the latter. Moreover, because we conclude the evidence supported supervisory liability, we would reach the same conclusion with regard to Sheriff Regalado's municipal liability.

We therefore discuss municipal liability despite the Sheriffs' forfeiture in the district court to shed light on our supervisory liability analysis. i. Legal background 1) Constitutional violations by TCSO or CHC employees as the basis for the Sheriffs' liability The Sheriffs' supervisory and official-capacity liability may be premised on the constitutional violations of either TCSO or CHC employees, provided the remaining elements for these theories of liability are met. The Sheriffs do not argue otherwise on appeal.

In analyzing supervisory or municipal liability, courts generally refer to the person who committed the underlying constitutional violation as a "subordinate." See , e.g. , Dodds , 614 F.3d at 1194-95 ("To impose § 1983 liability the plaintiff first had to establish the supervisor's subordinates violated the [C]onstitution" (quotations omitted)); see also Perkins v. Hastings , 915 F.3d 512, 524 (8th Cir. 2019) ("The plaintiff must show that the supervisor ... had notice of a pattern of unconstitutional acts committed by subordinates ...." (quotations omitted)); Starr v.

Baca , 652 F.3d 1202, 1216 (9th Cir. 2011) ("Starr specifically alleges numerous incidents in which inmates in Los Angeles County jails have been killed or injured because of the culpable actions of the subordinates of Sheriff Baca."). Black's Law Dictionary defines "subordinate" as "[s]ubject to another's authority or control." Subordinate , Black's Law Dictionary 1562 (9th ed. 2009). This reading of subordinate is consistent with cases holding that a private citizen who works with law enforcement is acting "under color of state law for purposes of § 1983." West v.

Atkins , 487 U.S. 42, 56, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) ; see also Carswell v. Bay County , 854 F.2d 454, 456-57 (11th Cir. 1988). As the foregoing applies here, Sheriff Glanz's control over CHC providers at the jail in October 2011 leaves little doubt they were subordinates whose constitutional violations could be the basis for supervisory and municipal liability. Under the contract between TCSO and CHC, "TCSO is charged with the responsibility for administering, managing[,] and supervising the health care delivery system" at the jail. App. at 11824.

CHC providers worked at the jail only with TCSO's permission, and TCSO sometimes revoked this permission for policy violations. Moreover, TCSO (1) could require CHC to terminate medical providers; (2) "own[ed] and retain[ed] custody and control of all medical records," id. at 11828; (3) allocated space for CHC medical providers to work; and (4) provided equipment to CHC staff. In an email sent before Mr.

Williams's death, Assistant District Attorney Andrea Wyrick recommended an audit of CHC's performance in the jail and said, "The bottom line is, the Sheriff is statutorily ... obligated to provide medical services." Id. at 12278. Finally, TCSO Detention Chief Deputy Michelle Robinette testified that CHC employees providing care at the jail "work for [her]." Id. at 9696. 2) Supervisory liability under § 1983 Ms. Burke based the claim against Sheriff Glanz in his individual capacity on supervisory liability.

Section 1983 does not authorize respondeat superior liability for a supervisor based solely on the actions of his subordinates. See Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). "[T]he three elements required to establish a successful § 1983 claim against a defendant based on his or her supervisory responsibilities [are]: (1) personal involvement[,] (2) causation, and (3) state of mind." Schneider v. City of Grand Junction Police Dep't , 717 F.3d 760, 767 (10th Cir. 2013) ; see also Dodds , 614 F.3d at 1199.

Under the first element, the plaintiff "must show an 'affirmative link' between the supervisor and the constitutional violation." Estate of Booker v. Gomez , 745 F.3d 405, 435 (10th Cir. 2014) (quotations omitted). The plaintiff can show such a link by establishing "the [supervisor] promulgated, created, implemented[,] or possessed responsibility for the continued operation of a policy," Brown v.

Montoya , 662 F.3d 1152, 1164 (10th Cir. 2011), or "the establishment or utilization of an unconstitutional policy or custom," Dodds , 614 F.3d at 1199, provided the policy or custom resulted in a violation of the plaintiff's constitutional rights. "The second element requires the plaintiff to show that the defendant's alleged action(

s) caused the constitutional violation by setting in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights." Estate of Booker , 745 F.3d at 435 (quotations omitted). As to the third element, "in the context of a Fourteenth Amendment claim" involving injuries to an inmate, a plaintiff can "establish the requisite state of mind by showing that [a supervisor] 'acted with deliberate indifference.' " Perry v. Durborow , 892 F.3d 1116, 1122 (10th Cir. 2018) (quotations omitted).

" '[D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Bd. of Cty. Comm'rs v. Brown , 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). "[A] local government policymaker is deliberately indifferent when he deliberately or consciously fails to act when presented with an obvious risk of constitutional harm which will almost inevitably result in constitutional injury of the type experienced by the plaintiff." Hollingsworth v.

Hill , 110 F.3d 733, 745 (10th Cir. 1997) (quotations omitted). 3) Municipal liability under § 1983 Ms. Burke's § 1983 official-capacity claim against the Sheriff (first Glanz, then Regalado) "represent[s] only another way of pleading an action against an entity of which an officer is an agent." Monell , 436 U.S. at 690 n. 55, 98 S.Ct. 2018 ; see also Douglas v. Beaver Cty. Sch. Dist. Bd. , 82 F. App'x 200, 203 (10th Cir. 2003) (unpublished) ("[I]n an official-capacity suit, however, the real party in interest is not the named official but rather the governmental entity itself.").

Under Monell , a municipality "is a 'person' subject to § 1983 liability." McDonald v. Wise , 769 F.3d 1202, 1215 (10th Cir. 2014). This is why the official-capacity claim here is effectively a claim against Tulsa County and also why, when Sheriff Glanz left office in 2015, the official-capacity claim transferred to his successor, Sheriff Regalado. As with supervisory liability, a municipality may be liable only if a municipal actor committed a constitutional violation. Martinez , 563 F.3d at 1092 (rejecting the argument that "the county can be liable, even if no individual government actor is liable").

And like supervisory liability, the plaintiff must prove "(1) official policy or custom[,] (2) causation, and (3) state of mind." Schneider , 717 F.3d at 769. The custom or practice giving rise to liability must be "so well settled and widespread that the policymaking officials of the municipality can be said to have either actual or constructive knowledge of it yet did nothing to end the practice." Bordanaro v. McLeod , 871 F.2d 1151, 1156 (1st Cir. 1989) ; see Cannon v.

City & Cty. of Denver , 998 F.2d 867, 878 (10th Cir. 1993) (recognizing that a practice "so permanent and well settled as to constitute a custom or usage with the force of law" can give rise to municipal liability (quotations omitted)); David W. Lee, Handbook of

Section 1983 Litigation § 3.02 (2019-3 Supp.) ("An official policy can also be a persistent, widespread practice for the city officials and employees, which, although not authorized by officially adopted or promulgated policy, is so common and well-settled as to constitute a custom that fairly represents municipal policy."). 4) Supervisory and municipal liability-Same elements in this case Supervisory and municipal liability differ in that the former is imposed on an individual and the latter on an entity.

But as one leading commentator put it, "A claim asserted against a supervisory official in both her individual and official capacities can serve as the basis for imposing both personal liability against the supervisor, and municipal liability (the official-capacity claim) if the supervisor is a municipal policymaker." Martin A. Schwartz,

Section 1983 Litigation Claims and Defenses § 7.19 (4th ed. 2019-1 Supp.). Our cases support this point. In Brown , for supervisory liability we required the supervisor to have "promulgated, created, implemented[,] or possessed responsibility for the continued operation of a policy" that resulted in a violation of the plaintiff's constitutional rights. 662 F.3d at 1164. And in Schneider , for municipal liability we required "a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker, or deliberately indifferent training or supervision." 717 F.3d at 770. Ms.

Burke does not allege and the record does not show that Sheriff Glanz personally participated in an underlying constitutional violation. Supervisory liability here is therefore predicated on his maintaining a policy or custom that resulted in the underlying violation. The same policy-or-custom element is required for municipal liability. Both supervisory liability and municipal liability also require (1) a causal relationship between the policy or custom and the underlying violation and (2) deliberate indifference. See id. at 768-70.

Accordingly, the elements for supervisory and municipal liability are the same in this case. ii. Analysis The trial evidence supported the jury's verdict that Sheriff Glanz maintained a policy or custom of insufficient medical resources and training, chronic delays in care, and indifference toward medical needs at the jail, and that he did so knowing of an urgent need for reform.

This evidence was sufficient for a reasonable jury to find against the Sheriffs on both the individual supervisory and the official-capacity claims. 1) Supervisory liability-Sheriff Glanz Because a reasonable jury could conclude that one or more of Sheriff Glanz's subordinates violated Mr. Williams's constitutional rights, supervisory liability for Sheriff Glanz was proper if Ms. Burke also demonstrated that (1) he maintained a policy or custom that (2) led to the underlying constitutional violation and (3) that he acted with deliberate indifference.

Here, too, a reasonable jury could conclude that the evidence was sufficient.

a) Policy or custom of deficient medical care Between 2007 and 2011, inspectors identified recurring issues with the jail's medical care. This evidence showed Sheriff Glanz maintained a policy or custom of providing deficient medical care at the jail. First, the jail's medical operation was understaffed. The Gondles Report addressed this concern in 2009 and recommended increased staffing. Ms. Gondles also stated that the lack of well-qualified nurses required better pay. But there was no evidence the jail acted on these recommendations in any meaningful way. Second, the staff were inadequately trained. Ms.

Gondles addressed this concern. Jail management had told her it was frustrated at having to rely on nurses without correctional training. In 2010, the NCCHC put the jail on probation because, among other issues, "[t]raining for custody staff [regarding suicidal inmates] ha[d] been limited." App. at 11653. The issue recurred in the 2011 CRCL inspection, which found a lack of training had resulted in the perforation of an inmate's appendix. Third, jail personnel failed to timely address or follow-up on inmates' medical issues. This theme appeared repeatedly in jail inspection reports.

In 2007, the NCCHC audit revealed that "health needs identified during receiving screening ... are not addressed in a timely manner." Id. at 12062. In 2009, the jail asked Ms. Gondles to help address a failure to provide timely health appraisals to inmates. In 2010, the NCCHC again placed the jail on probation in part because "diagnostic tests and specialty consultations are not completed in a timely manner and are not ordered by the physician." Id. at 11643. Delays in follow-up care were communicated to Sheriff Glanz one month before Mr. Williams's death.

In September 2011, he was briefed on the CRCL inspection, which "[f]ound two ICE detainees with clear mental/medical problems that have not seen a doctor." Id. at 11834. Further, in 2010 an inmate died after the jail failed to follow up on his required medications.

b) Causation A reasonable jury could find these deficiencies resulted in Mr. Williams's death. Despite the serious injury Mr. Williams sustained in the early hours of Saturday morning, no physician saw him until Tuesday. After his initial screening with Dr. Harnish, no other jail physician checked on Mr. Williams's condition. After Nurse Hughes first encountered Mr. Williams in holding cell #10 and determined, solely through an external visual examination, that nothing was wrong with his neck, jail personnel left him alone for 10 hours. When Nurse Hughes later observed Mr.

Williams through his cell door and noticed he was not moving and had spittle on his cheek, she never followed up or reported the issue to her supervisors. For days, Mr. Williams received no medical screening or testing even as nurses came by his cell to record their observations that he could not move or walk. These events were consistent with the chronic deficiencies identified above. A reasonable jury could infer that understaffing, inadequate training, or poor follow-up-or a combination of all three-explained why jail personnel left Mr.

Williams in holding cell #10 for ten hours, took three days to send a physician to examine him, and declined for more than a day to enter his cell to examine him. Likewise, a reasonable jury could find one or more of these deficiencies, especially lack of training, contributed to

(1) Nurse Luca's failure to act on Mr. Williams's complaints of pain and paralysis,

(2) Nurse Hughes's incorrect conclusion that Mr. Williams was not injured solely based on an external physical examination, and

(3) Officers Smith's and Rich's refusal to allow Nurse Hughes to enter Mr. Williams's cell upon request.

c) Deliberate indifference As to state of mind, a reasonable jury could conclude Sheriff Glanz was deliberately indifferent to the risk that deficient medical care would result in a constitutional violation like the one Mr. Williams suffered. The evidence that Sheriff Glanz neglected to remedy deficient medical care would permit a reasonable jury to find he was deliberately indifferent to the risk that poor care would result in Mr. Williams's constitutional injury. Between 2007 and Mr.

Williams's death in 2011, outside auditors and consultants informed Sheriff Glanz, the official responsible for the jail's medical care, of understaffing, inadequate training, or poor follow-up on at least four occasions: (1) the NCCHC's 2007 audit report;

(2) Ms. Gondles's 2009 report, which opined that the issues with medical staff "[were] a result of the lack of understanding of correctional healthcare issues by jail administration and contract oversight and monitoring of the private provider," id. at 12090; (3) the 2010 audit report placing the jail on probation; and (4) the CRCL inspection highlighting similar issues in late 2011. Sheriff Glanz repeatedly told auditors he planned to improve the quality of the jail's medical care, but at trial he could not point to any changes that were made.

In short, Sheriff Glanz and the TCSO-which was contractually responsible for supervising medical care at the jail-allowed numerous deficiencies to go unaddressed for years. A reasonable jury could find those same deficiencies contributed to Mr. Williams's death. * * * * We must affirm the district court's denial of the motion for judgment as a matter of law unless the evidence allowed "no reasonable inferences which may support the nonmoving party's position." Elm Ridge , 721 F.3d at 1216 (quotations omitted). It was reasonable for the jury to find

(1) Sheriff Glanz was responsible for "an unconstitutional policy or custom," Dodds , 614 F.3d at 1199, of poor training, inadequate staffing, and lack of urgency surrounding jail medical care; (2) that this policy or conduct resulted in a violation of Mr. Williams's right to adequate medical care under the Fourteenth Amendment; and

(3) Sheriff Glanz acted with deliberate indifference toward the risk that the policy or conduct of providing inadequate medical care would result in an injury like Mr. Williams's. Accordingly, the evidence was sufficient to support the jury's verdict against Sheriff Glanz holding him liable for supervisory liability. 2) Municipal liability-Sheriff Regalado For substantially the same reasons that we find sufficient evidence of supervisory liability, a reasonable jury also could find official capacity liability. See Larez v.

City of Los Angeles , 946 F.2d 630, 646-47 (9th Cir. 1991) (relying on evidence of a police chief's inadequate investigation of officers' use of force to support liability for the chief in his individual and official capacities). Sheriff Glanz-then the Tulsa County official charged with managing the jail-furthered a "policy or custom," see Schneider , 717 F.3d at 769, of deficient medical care at the jail characterized by inadequate training, understaffing, and chronic delays.

A reasonable jury could find his continuous neglect of these problems "was the moving force behind the injury alleged." Brown , 520 U.S. at 405, 117 S.Ct. 1382. And as explained above, Sheriff Glanz acted with deliberate indifference toward the risk that the policy or custom of providing inadequate medical care would result in an injury like Mr. Williams's. * * * * We affirm the district court's denial of the motion for judgment as a matter of law. 2. Qualified Immunity Sheriff Glanz contends the district court erred in failing to grant him qualified immunity at

summary judgment or after trial regarding the individual-capacity claim against him. Much of this argument repeats the Sheriffs' contention on appeal that there was insufficient evidence to show any subordinate violated Mr. Williams's constitutional rights. We affirm. First, the court denied

summary judgment on qualified immunity due to disputed issues of fact. Sheriff Glanz thus cannot "appeal an order denying

summary judgment after a full trial on the merits," Ortiz v. Jordan , 562 U.S. 180, 183-84, 131 S.Ct. 884, 178 L.Ed.2d 703 (2011) ; see Haberman v. Hartford Ins. Group , 443 F.3d 1257, 1264 (10th Cir. 2006) ("[T]he denial of

summary judgment based on factual disputes is not properly reviewable on appeal from a trial judgment issued after trial.") Second, to the extent Sheriff Glanz argues for qualified immunity based on the trial evidence, he failed to preserve this argument in his post-trial motions. a. Legal background i. Qualified immunity "Individual defendants named in a § 1983 action may raise a defense of qualified immunity, which shields public officials from damages actions unless their conduct was unreasonable in light of clearly established law." Henderson v. Glanz , 813 F.3d 938, 951 (10th Cir. 2015) (quotations, citations, and ellipses omitted). A defendant's motion for

summary judgment based on qualified immunity imposes on the plaintiff "the burden of showing both (1) a violation of a constitutional right; and (2) that the constitutional right was clearly established at the time of the violation." Felders ex rel. Smedley v. Malcom , 755 F.3d 870, 877 (10th Cir. 2014). "[Q]ualified immunity protects 'all but the plainly incompetent or those who knowingly violate the law.' " Mullenix v. Luna , --- U.S. ----, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ). ii. Waiver When, as here, a district court denied qualified immunity at the

summary judgment stage because there were disputes of material fact, a defendant must preserve the issue of qualified immunity for appeal based on the trial evidence by raising it in a post-trial motion under Federal Rule of Civil Procedure 50. Ortiz , 562 U.S. at 190, 131 S.Ct. 884. In Ortiz , an inmate sued jail officials under § 1983 for failing to prevent her sexual assault by a corrections officer and for retaliating against her when she reported the assault. Id. at 182-83, 131 S.Ct. 884. The officials moved for

summary judgment, claiming qualified immunity. The district court denied the motion, "[f]inding that the qualified immunity defense turned on material facts genuinely in dispute." Id. at 183, 131 S.Ct. 884. A jury returned a verdict for the plaintiff. Id. The officials had sought judgment as a matter of law under Federal Rule of Civil Procedure 50(

a) before the jury returned its verdict but did not renew their motion after judgment under Rule 50(b). Id. at 187, 131 S.Ct. 884. The Supreme Court held that, without raising qualified immunity in a Rule 50(

b) motion, the defendants had not preserved their qualified immunity argument. "Questions going to the sufficiency of the evidence are not preserved for appellate review by a

summary judgment motion alone ...." Id. at 190, 131 S.Ct. 884 (quotations and alteration omitted). The Court reasoned that because the district court denied qualified immunity on factual grounds, "the officials' claims of qualified immunity hardly present 'purely legal' issues" that would otherwise be susceptible to appellate review. Id. ; see also id. at 191, 131 S.Ct. 884 ("What was controverted, instead, were the facts that could render [the defendants] answerable for crossing a constitutional line."). Thus, "[f]ailure to renew a

summary judgment argument-when denial was based on factual disputes-in a motion for judgment as a matter of law ... at the close of all the evidence is considered a waiver of the issue on appeal." Copar Pumice Co. v. Morris , 639 F.3d 1025, 1032 (10th Cir. 2011) (quotations omitted). In Copar Pumice , the defendants' withdrawal of their 50(

b) motion meant they had not adequately raised the qualified immunity issue post-trial to preserve it for review. Id. ; see also Tortu v. Las Vegas Metro. Police Dep't , 556 F.3d 1075, 1083 (9th Cir. 2009) ("When a qualified immunity claim cannot be resolved before trial due to a factual conflict, it is a litigant's responsibility to preserve the legal issue for determination after the jury resolves the factual conflict."). b. Analysis By failing to raise the issue of qualified immunity in his Rule 50(

a) or 50(

b) motions, Sheriff Glanz waived any argument for qualified immunity on appeal. i. Denial of

summary judgment based on disputed issues of fact not appealable The district court denied Sheriff Glanz's motion for

summary judgment based on factual disputes, not a "purely legal" ground. It held: [A] reasonable jury could find that, in the years prior to Mr. Williams's death in 2011, then-Sheriff Glanz was responsible for knowingly continuing the operation of a policy or established practice of providing constitutionally deficient medical care in deliberate indifference to the serious medical needs of Jail inmates like Mr. Williams. App. at 4055. The

summary judgment order repeatedly referenced factual determinations a reasonable jury could make, including about Sheriff Glanz's state of mind regarding deficient medical care at the jail-one of the core disputes in the case. As noted above, Sheriff Glanz may not challenge this

summary judgment ruling on appeal after a merits trial. Ortiz , 562 U.S. at 183-84, 131 S.Ct. 884. ii. Failure to raise qualified immunity in Rule 50 motions Sheriff Glanz failed to preserve a qualified immunity argument based on the trial evidence because he did not raise it in a post-trial motion. At the close of evidence, the Sheriffs jointly moved for judgment as a matter of law under Rule 50(a). They argued Ms. Burke's evidence "has not supported the cause of action" under § 1983 and the evidence at most could establish "medical malpractice." Id . at 10525. The motion did not mention qualified immunity. After trial, the Sheriffs filed a joint motion under Rule 59(

a) asking the court to order a new trial or reduce the compensatory damages verdict based on inflammatory statements made during Ms. Burke's counsel's closing argument. The motion did not reference any arguments made in the Sheriffs' Rule 50(

a) motion. It also did not mention qualified immunity. Sheriff Glanz's separate motion under Rules 50(

b) and 59(

a) likewise did not address qualified immunity. Thus, at no point after the district court's

summary judgment decision did Sheriff Glanz renew his request for qualified immunity. Although Sheriff Glanz, by filing a Rule 50(

b) motion, did more than the defendants in either Ortiz or Copar Pumice , he did not address qualified immunity. He preserved his argument that there was insufficient trial evidence of a constitutional violation. But he did not argue for qualified immunity. As a result, he has waived any qualified immunity argument on appeal. See Haberman v. Hartford Ins. Grp. , 443 F.3d 1257, 1264 (10th Cir. 2006) (explaining that denial of

summary judgment based on factual disputes is not properly reviewable on an appeal from a final judgment after trial). B. New Trial 1. Challenges to Pretrial Order The Sheriffs contend the district court denied them due process when, through its pretrial order, it "permitted Plaintiff to expand the basis of her supervisory and official capacity claims beyond the individuals, actions, and policies identified in the Second Amended Complaint." Aplt. Br. at 14-15. We discern no error. a. Additional procedural background Ms.

Burke's complaint, filed in April 2012, named as defendants Sheriff Glanz (in both his individual supervisory and official capacities), CHC, Nurse Chappell, Nurse Luca, Nurse Hightower, four Owasso Police officers, and "Does I through X." (the "Doe Defendants"). Ms. Burke alleged that each of the Doe Defendants "was employed by the Tulsa County Sheriff's Department, CHMO/CHC/CHM and/or the OPD/City of Owasso" and that each "was deliberately indifferent to Mr.

Williams' medical needs and safety, violated his civil rights, negligently and wrongfully caused his death, and/or encouraged, directed, enabled and/or ordered other Defendants to engage in such conduct." App. at 145. Dr. Harnish and Officer Fike were the only other subordinates working at the jail who were mentioned by name in the complaint. The complaint alleged deliberate indifference by four subordinates: "Defendants ... Chappell, Luca, and Hightower[ ] ... and Captain Fike's deliberate indifference to Mr.

Williams's serious medical needs was in furtherance of and consistent with ... policies which Sheriff Glanz promulgated, created, implemented, or possessed responsibility for the continued operation of; ...." Id. at 152. It also alleged that "Tulsa County Jail personnel and employees and/or agents of [C

[…]