Eileen Traci Race, et al v. George Paul Smith, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11851
____________________
EILEEN TRACI RACE,
as Personal Representative of the Estate of Ashley Nicole Seifried,
Deceased,
on behalf of the Estate and on behalf of the Estate’s survivors,
EILEEN TRACI RACE,
Mother of deceased,
L.M.A., a minor of the deceased,
A.B.A., a minor of the deceased,
Plaintiffs-Appellants,
versus
GEORGE PAUL SMITH,
Sheriff, individually
and in his official capacity as
Sheriff of the Bradford County Sheriffs Office,
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 1 of 26

-- 1 of 26 --

2 Opinion of the Court 21-11851
and in his official capacity as
Chief Corrections Officer for Bradford County Jail,
CAROL STARLING,
Cpt. individually
and in her official capacity as
Jail Administrator for the
Bradford County Sheriff’s Office,
and in her official capacity as a
Corrections Officer for the Bradford County Jail,
RICHARD WALMSLEY,
LT., individually
and in his official capacity as
Operations Lieutenant for the Bradford County Sheriff’s Office,
and in his official capacity as a
Corrections Officer for the Bradford County Jail,
WILLIAM GOODGE,
Sgt., individually
and in his official capacity as a
Corrections Officers for the Bradford County Jail,
KAREN STARR,
LPN, individually
and in her official capacity as
a Licensed Practical Nurse for the Bradford County Sheriff’s Office,
SHIRLEY FORD,
LPN, individually
and in her official capacity as
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 2 of 26

-- 2 of 26 --

21-11851 Opinion of the Court 3
a Licensed Practical Nurse for the Bradford County Sheriff’s Office,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:18-cv-00153-BJD-PDB
____________________
Before W ILSON, B RANCH, and TJOFLAT, Circuit Judges.
PER CURIAM:
After a five-day trial, a jury found two Bradford County,
Florida jail personnel not liable for the November 2015 death of
Ashley Seifried following her detention in the county jail. Seifried
was a habitual intravenous (IV) drug user and suffered from
endocarditis as a result. Several years before her arrest, Seifried had
mitral valve replacement surgery. Post-surgery, however, Seifried
resumed using IV drugs. And in October 2015, she was arrested
following a traffic stop for drug possession.
During her pretrial detention at the Bradford County jail,
Seifried fell ill, complaining of chest pains and other symptoms, and
was eventually sent to a hospital for an echocardiogram (EKG).
Doctors concluded that the only way to save Seifried was a second
mitral valve replacement. Yet the hospital denied Seifried surgery
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 3 of 26

-- 3 of 26 --

4 Opinion of the Court 21-11851
because she had continued to use IV drugs after her first valve
replacement. Seifried died one day later.
Eileen Race, Seifried’s mother, sued several county officials
under 42 U.S.C. § 1983, alleging they were deliberately indifferent
to Seifried’s serious medical needs in violation of her Eighth
Amendment rights, resulting in her death. Only Nurse Starr and
Officer Goodge went to trial (the other defendants won summary
judgment). After the jury returned a verdict in the defendants’
favor, Race filed a motion for new trial raising an array of issues.
The district court denied her motion for new trial, and Race timely
appealed. After careful consideration, and with the benefit of oral
argument, we affirm.
I. Background
The relevant facts of this case—as reflected in the trial
record—are the following.1 On October 24, 2015, Seifried was
arrested following a traffic stop for possession of drugs and drug
paraphernalia. The arresting officer transported Seifried to the
Bradford County Jail. During her pretrial detention at the jail,
Seifried reported feeling sick and having chest pains to jail staff. Jail
medical staff, including Nurse Starr (one of the two defendants
here) evaluated Seifried several times. Her vitals were within a
normal range, and she never appeared to be in acute distress.
1 We give a general overview of the facts here, but provide additional
background below in discussing the specific issues on appeal.
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 4 of 26

-- 4 of 26 --

21-11851 Opinion of the Court 5
After a physical examination, the jail physician ordered a
chest x-ray and bloodwork and arranged for Seifried to obtain an
EKG at Shands Starke Hospital. Personnel at Shands Starke
Hospital discovered that Seifried had an infected mitral valve,
including “a lot of vegetation around [the] heart” and, on
November 6, transferred her to the University of Florida (UF)
Health Shands Hospital. Seifried’s only hope for survival was a
mitral valve replacement. However, medical records showed that
Seifried had previously had mitral valve replacement surgery for
the same condition—endocarditis caused by IV drug abuse.
Doctors at UF Health Shands Hospital declined to perform a
second mitral valve replacement because of evidence that Seifried
continued to abuse drugs after her first mitral valve replacement.
Having been denied surgical intervention, Seifried died at the
hospital the next day.
In 2018, Eileen Race, Seifried’s mother and personal
representative of her estate and its survivors (Seifried’s minor
children), filed suit in federal district court against jail and county
officials for her daughter’s death. Relevant to this appeal, Race
sued Sergeant Goodge (the jail supervisor) and Nurse Starr (a jail
nurse) in their individual capacities under § 1983 on the grounds
that they were deliberately indifferent to the serious medical needs
of Seifried, resulting in her death. After discovery, Race’s
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 5 of 26

-- 5 of 26 --

6 Opinion of the Court 21-11851
deliberate indifference claim against Goodge and Starr proceeded
to trial.2
Before trial, Race filed several motions in limine to exclude,
among other things, references to Seifried’s drug use, the
circumstances of her arrest—including that she was found with
drugs and drug paraphernalia in her purse—and references to a
county personnel investigation into one of plaintiff’s witnesses, a
former jail employee. As explained in greater depth in our
discussion below, the district court denied the motion in limine as
to Seifried’s drug use, holding that the evidence was “relevant and
significant to much of the evidence that will be adduced at trial.”
The district court granted Race’s motion in limine regarding the
circumstances of Seifried’s arrest, calling them “irrelevant” and
“highly prejudicial.” And it granted Race’s motion to exclude
references to the investigation into her witness because the
defendants did not oppose it.
After a five-day jury trial, the jury returned a verdict for Starr
and Goodge. The verdict was returned on an interrogatory verdict
form, in which the jury found that Seifried did, in fact, have “a
serious medical need” and that Nurse Starr knew that “Seifried had
a serious medical need that posed a risk of serious harm.” But the
jury also found that Nurse Starr did not fail to provide necessary
medical care nor did her conduct cause Seifried’s injuries. As to
2 The district court granted summary judgment as to the other defendants, but
denied it as to Nurse Starr and Officer Goodge.
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 6 of 26

-- 6 of 26 --

21-11851 Opinion of the Court 7
Goodge, the jury found that he did not even know that Seifried had
a serious medical need.
After the verdict, Race filed a motion for new trial, raising
various issues. The district court denied Race’s motion for new
trial, and Race timely appealed.
II. Standard of Review
“We review a district court’s denial of a motion for a new
trial for an abuse of discretion.”
Lamonica v. Safe Hurricane
Shutters, Inc., 711 F.3d 1299, 1312 (11th Cir. 2013) (quotation
omitted). We also review the district court’s ruling on a motion in
limine for abuse of discretion.
MidAmerica C2L Inc. v. Siemens
Energy Inc., 25 F.4th 1312, 1325 (11th Cir. 2022). Under the abuse-
of-discretion standard, “we may reverse a decision of the district
court only if the court applies an incorrect legal standard, follows
improper procedures in making its determination, or makes
findings of fact that are clearly erroneous.”
Id. at 1325–26.
III. Discussion
On appeal, Race claims that she is entitled to a new trial,
raising the following issues for our consideration: (1) admission of
evidence of Seifried’s IV drug use was improper; (2) references at
trial to the circumstances of Seifried’s arrest was improper; (3) the
testimony of the defendants’ expert—Dr. Stemer—allegedly
exceeded his disclosed opinions; (4) the defense allegedly fabricated
the reference to an attorney visit to Seifried in jail; (5) improper
statements were made at closing argument by defense counsel on
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 7 of 26

-- 7 of 26 --

8 Opinion of the Court 21-11851
the deliberate indifference standard and damages; and (6)
testimony from defendant Goodge violated the district court’s
order excluding references to the personnel investigation into a
former law enforcement officer who testified in the plaintiff’s case.
We consider these issues in turn. Because Race’s challenges as to
each issue lack merit, we affirm.
(a)
Evidence of Seifried’s IV Drug Use
Race argues that the district court erred in allowing evidence
of and references to Seifried’s drug use at trial, asserting that it was
irrelevant and highly prejudicial. As explained below, however,
because Race did not object to any of this evidence at trial, she
failed to preserve the issue for ordinary appellate review.
Before trial, Race filed a motion in limine seeking to exclude
evidence relating to “intravenous drug use by Plaintiff’s decedent,
Ashley Seifried.” The district court denied Race’s motion,
concluding that “Ms. Seifried’s IV drug use is relevant and
significant to much of the evidence that will be adduced at trial,” in
part, because the defendants argued it was the cause of Seifried’s
endocarditis and the reason the UF hospital declined to give her a
second mitral valve replacement. The district court explained that
Seifried’s history of drug use was “certainly prejudicial” but “not so
prejudicial as to merit preliminary exclusion.” It noted, however,
that “the Court will entertain objections to cumulative or
unnecessary references to her IV drug use at trial.”
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 8 of 26

-- 8 of 26 --

21-11851 Opinion of the Court 9
Race points to one statement that she says is an “example”
of an improper reference to drug use by the defendant. During the
defense’s opening statement, counsel remarked:
[T]he endocarditis condition that Ms. Ashley Seifried
had, it comes from IV drug use. It’s not the kind of
condition that you just happen to get or you happen
to contract it somehow. It comes from the individual
using syringes to inject drugs into their veins. . . .
They’re using dirty needles, in other words. And
when they do that, those dirty needles have certain
bacteria on them that once you shoot them into your
system—you’re inserting that bacteria into your
system—it gets into your bloodstream, and it goes to
your heart. . . . So when they talk about the IV drug
use, again, we’re simply talking about the fact and
that being an important fact as to the cause of Ms.
Seifried’s endocarditis. The experts will testify that
her IV drug use is the most likely cause of her getting
the endocarditis condition. . . . [And] even after her
open-heart surgery to replace her infected mitral
valve the first time, Ms. Seifried continued to do
drugs. She continued to smoke cigarettes. She would
not comply with her doctors’ orders.
Race did not object to the statements.
To preserve evidentiary errors, parties must raise timely
objections.
See Fed. R. Evid. 103(a)(1)(A). But after the court
“rules definitively on the record—either before or at trial—a party
need not renew an objection or offer of proof to preserve a claim
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 9 of 26

-- 9 of 26 --

10 Opinion of the Court 21-11851
of error for appeal.” Fed. R. Evid. 103(b). In ruling on an
evidentiary objection in the form of a motion in limine, the district
court “makes a definitive ruling if its decision is final or with
prejudice.”
Yates v. Pinellas Hematology & Oncology, P.A., 21
F.4th 1288, 1297 (11th Cir. 2021). On the other hand, if the court’s
ruling is tentative or without prejudice, the court has not ruled
“definitively,” and “the objecting party must renew its objection at
trial to preserve a claim of error for appeal.”
Id.
In the district court proceedings before trial, Race sought to
exclude introduction of evidence about Seifried’s prior drug use in
her motion in limine. The district court denied Race’s motion, but
that order was not “definitive.” The court found that Seifried’s
history of drug use was “certainly prejudicial” but also relevant to
the case and “not so prejudicial as to merit preliminary exclusion.”
It noted, however, that because Seifried’s drug use was not in
dispute “and not relevant to every facet of the case[,] [t]he Court
will entertain objections to cumulative or unnecessary references
to her IV drug use at trial.” This pretrial ruling was clearly
tentative, in that the court declined “preliminary exclusion” of the
evidence but invited Race to object to “cumulative or unnecessary
references” at trial. And because Race did not object at trial, she
failed to preserve the issue for appeal.
Generally, when a party fails to preserve an evidentiary
objection, we review the admission of evidence for plain error.
Plain error exists when a district court’s error was “plain”; affected
the substantial rights of the objecting party; and “seriously
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 10 of 26

-- 10 of 26 --

21-11851 Opinion of the Court 11
affect[ed] the fairness, integrity, or public reputation of judicial
proceedings.”
Rosales-Mireles v. United States, 138 S. Ct. 1897,
1904–05 (2018) (quotation omitted). An error affects a party’s
substantial rights if there exists “a reasonable probability that, but
for the error, the outcome of the proceeding would have been
different.”
Id. (quotation omitted). The “onus to demonstrate
plain error is on the party challenging the evidentiary ruling.”
Yates, 21 F.4th at 1298. Further, our decision to reverse under plain
error review when a party fails to preserve an evidentiary objection
is discretionary.
Id. at 1297–98;
see also Fed. R. Evid. 103(e) (noting
that “[a] court may take notice of a plain error affecting a
substantial right” (emphasis added)). And we have declined to
conduct a
sua sponte plain error review “when th[e appellant]
makes no effort to satisfy the standard.”
See, e.g.,
Yates, 21 F.4th
at 1298.
In this case, Race has made no effort to satisfy the plain error
review standard. Indeed, she does not even raise as an alternative
a plain error argument—opting instead to argue solely that her
objection to the introduction of evidence about Seifried’s prior
drug use was preserved for ordinary appellate review. So we need
not
sua sponte analyze this issue under plain error review.
But even if we were to review the introduction of the drug
abuse evidence at trial for plain error, Race’s claim would fail.
Seifried’s drug use was at the core of Race’s own theory of the case.
As Race frames it in her briefing on appeal, “the stigma
surrounding ‘drug seeking behavior’ was [the] reason Nurse Starr
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 11 of 26

-- 11 of 26 --

12 Opinion of the Court 21-11851
did not provide Ms. Seifried necessary care for her serious medical
need.” Because Race placed Seifried’s status as a drug-user at the
heart of her case, she simply cannot claim a “reasonable
probability” of a different result without the allegedly improper
drug use evidence.
See Rosales-Mireles, 138 S. Ct. at 1904–05.
(b)
Evidence Surrounding Seifried’s Arrest
Race also challenges references at trial to the circumstances
of Seifried’s arrest made by defense counsel and a defense witness.
Race claims that a new trial is warranted because the evidence of
Seifried’s arrest—including that she had drugs on her person—was
highly prejudicial, excluded by the court’s order on her motion in
limine, and deprived her of a fair trial. We disagree.
Before trial, Race sought to exclude evidence relating to the
circumstances of Seifried’s arrest, including that she was carrying
used syringes and other paraphernalia containing drug residue.
The district court granted Race’s motion in limine, reasoning that
the “circumstances surrounding Ms. Seifried’s arrest are irrelevant
to the issues in the case and highly prejudicial.” Race points to two
times evidence regarding the circumstances of Seifried’s arrest was
nonetheless introduced by the defendants at trial. Defense counsel
described Seifried’s arrest in her opening statement, remarking,
among other things, that Seifried was carrying a pink purse
containing “three used syringes [and] a silver spoon with white
powder residue.” And later, Dr. Stemer—the defense’s medical
expert—referenced these facts when he testified as part of the
defendants’ case.
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 12 of 26

-- 12 of 26 --

21-11851 Opinion of the Court 13
However, before Dr. Stemer testified in the defendants’
case, Race herself introduced Dr. Stemer’s videotaped deposition
in her case in chief, during which Dr. Stemer stated that “[Seifried]
was arrested possessing drugs and drug paraphernalia.”
Dr. Stemer was then called, in person, as a defense witness
later in trial. During Dr. Stemer’s direct examination, defense
counsel asked why he did not think Seifried had stopped using
drugs before her pretrial detention. Dr. Stemer responded “[w]ell,
one week before being jailed, she had three syringes and a spoon
that was caked with a white powder.” At this point, Race objected
and called for a mistrial, claiming that “this is the second time that
this witness has gotten into the circumstances surrounding the
arrest of Ashley Seifried, and obviously this was something that
we’ve talked about.” The district court overruled the objection.
Race is not entitled to a new trial based on the introduction
of evidence related to Seifried’s arrest. First, Race introduced
evidence about Seifried’s arrest herself when she played Dr.
Stemer’s video deposition in her case-in-chief, including his
testimony about Seifried’s arrest. “A party introducing evidence
generally cannot complain on appeal that the evidence was
erroneously admitted.”
Ruiz v. Wing, 991 F.3d 1130, 1140 (11th
Cir. 2021) (quotation omitted). This is the rule “even when a party
preemptively introduces evidence that the party sought to exclude
in a motion in limine.”
Id. (quotation omitted). So, although the
admission of evidence previously excluded by a motion in limine
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 13 of 26

-- 13 of 26 --

14 Opinion of the Court 21-11851
could be grounds for a new trial, that is not the case when the
complaining party herself introduced the evidence.
Second, even if we were to consider Race’s challenge, the
references to the circumstances of Seifried’s arrest were harmless
error. The jury heard evidence that Seifried was a habitual abuser
of IV drugs. Indeed, as Race alludes to in her brief, a core aspect of
the plaintiff’s case was that “the stigma surrounding ‘drug seeking
behavior’ was [the] reason Nurse Starr did not provide Ms. Seifried
necessary care for her serious medical need.” Given that both
parties’ theory of the case implicated Ms. Seifried’s status as a drug
user, Race has failed to explain how the references to finding drugs
on Seifried at the time of her arrest for drug offenses were, as she
claims, “extremely prejudicial” or “deprived [her of] a fair trial.”
The allegedly prejudicial evidence was already assumed by the jury
or introduced by Race herself. Accordingly, the district court
properly denied Race’s motion for new trial on this claim.
(c)
Dr. Stemer’s Expert Testimony
Race also takes issue with Dr. Stemer’s testimony for the
defense, which she claims exceeded the opinions he disclosed
before trial.
During discovery, Race deposed Dr. Stemer, an expert
witness for the defense. Race then filed motions in limine to limit
Dr. Stemer’s testimony at trial to his opinions disclosed pretrial and
to bar him from testifying to matters lacking in factual basis. The
district court denied the motions as “premature and unripe,”
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 14 of 26

-- 14 of 26 --

21-11851 Opinion of the Court 15
because Race “merely asks the Court to correctly apply” the
Federal Rules of Civil Procedure and Evidence on expert opinions.
The court explained it was “not inclined to preliminarily exclude
opinions that [Dr. Stemer] may not seek to offer.”
Race maintains that Dr. Stemer’s trial testimony exceeded
his disclosed opinions or was otherwise not based in evidence. The
instance she describes as “most egregious[]” was when Dr. Stemer
testified that, after her mitral valve replacement, Seifried
“subsequently had a hospitalization related to an automobile
accident with a roll-over in which she may have actually sustained
an injury to her thoracic spine, but that confirmed that she was
back on drugs.” Later on in the direct examination, Stemer testified
that the car crash hospitalization was a significant finding in his
review of Seifried’s Shands Starke hospital records because the car
crash “can cause chest pain.”
Race also points to other instances of allegedly undisclosed
opinions (or those based on facts not in evidence): (1) the
circumstances of Ms. Seifried’s arrest (discussed above); (2) that
Shands Starke incorrectly failed to diagnose Ms. Seifried’s
endocarditis shortly before her pretrial detention; (3) that Shands
Starke incorrectly failed to diagnose Ms. Seifried’s blood clots
shortly before her pretrial detention; (4) that injection of powdered
drugs scars the veins and causes track marks; and, (5) that jail
personnel had trouble obtaining Ms. Seifried’s blood because her
veins were scarred from drug use.
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 15 of 26

-- 15 of 26 --

16 Opinion of the Court 21-11851
Dr. Stemer’s disclosed written opinion explains that he
based his opinion on a review of Seifried’s medical records. In it he
discusses, among other things, her complaint of blood clots while
in prison, and that “the patient’s very poor venous access secondary
to drug use resulted in multiple failed attempts to obtain[] blood
specimens or venous access.” He also opined on why Seifried was
not diagnosed with endocarditis at her hospitalization immediately
preceding her arrest, writing, “while this diagnosis [endocarditis]
was strongly suspected during her hospitalization earlier in the
summer of 2015, work up was ended prior to definitive diagnosis
by the patient’s discharge against medical advice.”
Dr. Stemer’s ultimate (written) conclusion was that
Seifried’s evidence of continued drug use meant she “was deemed
not to be a surgical candidate” and that she was accordingly offered
“only medical management which was effectively a death sentence
given her underlying disease.” “Even if the patient had been
referred to the hospital two weeks earlier, denial of surgical
intervention was an effective death sentence. This was beyond the
control of the medical staff at the jail.” Dr. Stemer’s opinion on the
futility of Seifried’s situation absent surgical intervention remained
unchanged at trial.
At trial, Race did not object to any of Dr. Stemer’s testimony
as exceeding the scope of his disclosed opinion or lacking basis in
fact, and instead raised the issue in her motion for a new trial,
which was denied.
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 16 of 26

-- 16 of 26 --

21-11851 Opinion of the Court 17
Under Rule 26 of the Federal Rules of Civil Procedure, a
party intending to call an expert witness at trial must provide a
written report containing, among other things, “a complete
statement of all opinions the witness will express and the basis and
reasons for them.” Fed. R. Civ. P. 26(a)(2)(B)(i). The Federal Rules
also set forth a district court’s options if a party violates Rule 26:
“[i]n addition to or instead of [the] sanction [of exclusion]” the
court may: (1) order payment of the expenses caused by the failure,
(2) “inform the jury of the party’s failure,” and (3) “impose other
appropriate sanctions.” Fed. R. Civ. P. 37(c)(1).
Race waived the issue by failing to object to Dr. Stemer’s
allegedly improper testimony at trial, after the district court denied
her motion in limine as “premature and unripe.”
See Yates, 21
F.4th at 1297. Contemporaneous objections are particularly
important in this context because they give the court “a chance to
correct [the error] on the spot” by giving the expert a chance to
explain apparent inconsistencies in his testimony and the court an
opportunity to “rul[e] on the accuracy and admissibility of the
challenged testimony.”
Christopher v. Cutter Labs., 53 F.3d 1184,
1192 (11th Cir. 1995). Accordingly, Race waived the issue.3
3 We note that Race makes no alternative argument that we should review
this issue for plain error. The “onus to demonstrate plain error is on the party
challenging the evidentiary ruling” and we can decline to conduct a review
sua sponte if the appellant does not attempt to satisfy the plain error standard.
Yates, 21 F.4th at 1298.
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 17 of 26

-- 17 of 26 --

18 Opinion of the Court 21-11851
(d)
Defendant’s Closing Argument: Attorney Visit
Race further takes issue with a reference to Seifried’s
attorney visiting her in jail made by the defense in closing.
Specifically, during closing argument, defendants’ counsel
discussed a video clip of Seifried in pretrial detention, which
counsel described as showing “Ms. Seifried walking with no
problem to her attorney visit—,” at which point plaintiff’s counsel
objected: “He’s not even commenting on the evidence.” The court
overruled the objection, stating, “it’s argument.” Defense counsel
then described Seifried’s visit with her attorney:
Even if we were to conduct plain-error review, Race’s claim would still fail.
Assuming
arguendo that a plain error occurred, Race cannot show that Dr.
Stemer’s testimony substantially prejudiced her, leading to a reasonable
probability of a different outcome at trial.
See Rosales-Mireles, 138 S. Ct. at
1904–05. Dr. Stemer’s main conclusion remained unchanged between his
written disclosure and trial testimony, which, if accepted by the jury, was fatal
to Race’s case against the jail officials. In his written report, Dr. Stemer
concluded that Seifried’s continued drug use meant she “was deemed not to
be a surgical candidate” and that she was accordingly offered “only medical
management which was effectively a death sentence given her underlying
disease.” In his report, he also stated, “Even if the patient had been referred
to the hospital two weeks earlier, denial of surgical intervention was an
effective death sentence. This was beyond the control of the medical staff at
the jail.” Dr. Stemer never wavered on his opinion about the futility of
Seifried’s situation absent surgical intervention. In light of this unchallenged
expert testimony, which, if believed, is fatal to Race’s claim, it is hard to see
how excluding the opinions Stemer allegedly failed to disclose would have led
to a different outcome at trial. Accordingly, even if Race had argued for plain
error review in the alternative, we would reject her claim.
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 18 of 26

-- 18 of 26 --

21-11851 Opinion of the Court 19
Ms. Seifried’s lawyer was her advocate. He met with
her in person. If she was in such need of medical care,
wouldn’t it be reasonable that as her legal advocate,
he would have done something, anything? Raise an
issue with the sheriff? File a motion with the court?
He did not. The plaintiff has not produced him as a
witness. The one man from the outside who was on
her team and who did, in fact, have a face-to-face visit
with Ms. Seifried, the one person outside the jail who
met with her in person four days into her stay at the
jail, he didn’t find anything necessary to do. That
failure to act speaks volumes of her actual condition,
and what this case is about is trying to rebuild what
her condition was six years ago.
In her motion for new trial, Race argued that the reference
to the attorney visit was “intentionally fabricated” and “a highly
improper and prejudicial story.” The district court denied her
motion for new trial on this issue because there was ample
evidence of an attorney visit—including plaintiff’s own trial Exhibit
8.
On appeal, Race argues that the existence of an attorney visit
during her pretrial detention is “completely unsupported by either
fact or evidence.” She also says the jury was misled by counsel’s
statement that someone “on her team” visited Seifried in pretrial
detention because the jury could believe that a member of Race’s
civil trial team visited Seifried when she was supposedly exhibiting
terrible symptoms and yet said nothing. We strongly disagree.
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 19 of 26

-- 19 of 26 --

20 Opinion of the Court 21-11851
First, Race herself introduced evidence of an attorney visit,
making her claim that the existence of an attorney visit as
“completely unsupported by either fact or evidence” curious.
Plaintiff’s Exhibit 8 includes the jail log entries for Seifried’s pretrial
detention. Page 1 of the log clearly states “attorney visit” on
October 29, 2015. Second, two defense witnesses testified that
Seifried was visited in jail by her lawyer. So it is simply untenable
to claim that the visit was fabricated by defense counsel.4
Moreover, Race’s contention that the jury might have
thought that someone “on [Seifried’s] team” meant a member of
Ms. Race’s civil trial team, and not Seifried’s criminal defense
lawyer is baseless. Just before the excerpt from closing quoted
above, defense counsel stated (without objection): “The second
4 Note: Race tacks on another allegation onto this claim. She says that defense
counsel referred to medical records from Shands Starke that are not in
evidence and possibly do not exist. Specifically, defense counsel stated that
“the Shands Starke records from October 18 and 19[] made no mention
whatsoever of Ms. Seifried’s visit only weeks earlier” and “[t]hey did not send
records from Ms. Seifried’s admission in Shands Starke in late July and early
August of 2015 for cardiac related issues.” However, the record reflects the
existence of the documents. Among other instances, Dr. Goldstein, one of
plaintiff’s experts, testified in his deposition and at trial that he reviewed the
July 2015 medical records but could not recall “what was in that.” And Dr.
Stemer’s written report discussed reviewing Seifried’s Shands Starke hospital
records relating to treatment from “July 1, 2015 to October 27, 2015” and
specifically referenced her “hospitalization earlier in the summer of 2015.” Dr.
Stemer also referenced July 2015 hospital records at trial. Accordingly, we are
not persuaded by Race’s contention about the medical records allegedly not
in evidence.
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 20 of 26

-- 20 of 26 --

21-11851 Opinion of the Court 21
thing that’s only been mentioned a little bit is that on October 29,
Ms. Seifried had an in-person visit with her
criminal defense
attorney.”
As a result, Race is not entitled to a new trial on this ground.
(e)
Defendants’ Closing Argument: Deliberate Indifference
Standard
Race also objects to two aspects of defense counsel’s closing
arguments: her articulation of the deliberate indifference standard
and a comment she made about Seifried in the context of damages
available to her minor children.
As to the deliberate indifference standard, Race points to
several statements she claims suggested to the jury that Race
needed to prove intentional conduct, not deliberate indifference.
She gives several examples from defense counsel’s closing
argument: “This is about the intentional conduct, the deliberate
indifference, of two specific individuals, Karen Starr and Bill
Goodge”; “[Y]ou have to believe that Ms. Starr deliberately
withheld or delayed help for Ms. Seifried because Ms. Starr
considered Ms. Seifried a drug seeker, a drug addict, and a junkie”;
“But the jury instructions . . . will require you to determine
whether . . . Ms. Starr deliberately decided not to send Ms. Seifried
to the hospital.” Notably, Race did not object to any of these
alleged misstatements nor did she propose that the district court
provide the jury a curative instruction.
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 21 of 26

-- 21 of 26 --

22 Opinion of the Court 21-11851
The district court subsequently charged the jury: “To
succeed on this claim, Ms. Race must prove each of the following
facts by a preponderance of the evidence . . . that Sergeant Goodge
or Karen Starr knew that Ashley Seifried had a serious medical need
that posed a risk of serious harm” and “that Sergeant Goodge or
Karen Starr failed to provide or get necessary medical care for
Ashley Seifried’s serious medical need and—in deliberate
indifference of the risk of serious harm.” The district court
explained that the jury needed to determine whether the
defendants “actually knew Ashley Seifried had a serious medical
need and required immediate attention.”
In her motion for new trial, Race first raised defense
counsel’s alleged misstatement of the deliberate indifference
standard. And, of course, the district court denied her motion.
Because Race failed to object at trial, we review the district
court’s denial of Race’s motion for new trial on these grounds for
plain error review only.
Higgs v. Costa Crociere, S.P.A. Co., 969
F.3d 1295, 1307 (11th Cir. 2020). Her claim fails because she cannot
show prejudice—
i.e., that the alleged error affected her substantial
rights.
See Rosales-Mireles, 138 S. Ct. at 1905. Even if defense
counsel’s repeated references to “deliberate” or “intentional”
conduct arguably misstated the standard, the record establishes
that the district court properly instructed the jury on the
appropriate standard—in open court and in writing. And “in this
Circuit a jury is presumed to follow jury instructions.”
Brink v.
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 22 of 26

-- 22 of 26 --

21-11851 Opinion of the Court 23
Direct Gen. Ins. Co., 38 F.4th 917, 924 (11th Cir. 2022) (quotation
omitted).
Even under ordinary appellate review, “[w]e are reluctant to
set aside a jury verdict because of an argument made by counsel
during closing arguments.”
Vineyard v. Cnty. of Murray, 990 F.2d
1207, 1214 (11th Cir. 1993) (per curiam). And “statements made in
oral arguments must be plainly unwarranted and clearly injurious
to constitute reversible error.”
Showan v. Pressdee, 922 F.3d 1211,
1216 (11th Cir. 2019) (quotation omitted). Accordingly, we cannot
say that Race has shown error—let alone plain error—and the
district court did not abuse its discretion in denying her motion for
new trial on these grounds.
Race also challenges a comment by defense counsel when,
in describing the damages available to Seifried’s minor children,
counsel suggested Seifried was a bad or nonexistent parent to her
children.5 We need not consider whether this statement was
improper because any error was harmless: the jury never reached
damages, having concluded that neither defendant was liable for
Seifried’s death.
5 Defense counsel’s statement was, “[t]he point is that the judge’s instructions
only allow you to award damages for parental companionship, instruction,
and guidance, which begs the question, was Ms. Seifried a parent to her two
children? And the evidence, I will tell you, does not support that.”
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 23 of 26

-- 23 of 26 --

24 Opinion of the Court 21-11851
(f)
Sergeant Goodge’s Testimony
Race also complains about two aspects of the defendant
Sergeant Goodge’s trial testimony. First, Goodge testified that
Seifried told him in jail that “[a]s soon as I get out of here, I’m
heading to the nearest drug house that I can.” On cross-
examination, Goodge acknowledged that he did not mention
Seifried’s drug house comment in his deposition, commenting that
“I really didn’t think about it until after we talked, but . . . . I may
have misspoke [sic].”
Contrary to Race’s claim, we cannot say that Goodge
“contradicted” his deposition testimony because he did not discuss
his conversations with Seifried in his deposition. Indeed, Race’s
counsel never asked Goodge at his deposition about what Seifried
told him in jail. Furthermore, Race cross-examined Goodge about
the “drug house” comment, attempted to impeach him with the
prior deposition testimony, and had ample opportunity to argue
against Goodge’s credibility in closing. Accordingly, the district
court did not abuse its discretion in denying Race a new trial due
to the “drug-house” comment.
Second, Race argues that she is entitled to a new trial
because Goodge’s testimony violated the district court’s pretrial
order excluding discussion of a county investigation into one of her
witnesses. That order excluded reference to a county investigation
into Corporal Holmes, a former employee who was supervised by
the defendant Officer Goodge. Holmes, serving as a plaintiff’s
wintess, testified that there was a stigma in the jail surrounding
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 24 of 26

-- 24 of 26 --

21-11851 Opinion of the Court 25
“drug seeking behavior,” which plaintiff argued led jail personnel
to ignore Seifried’s serious medical need.
At trial, however, Race’s counsel invited the discussion of
Corporal Holmes’ investigation. Specifically, in cross-examining
Goodge, plaintiff’s counsel asked whether Goodge “ever ha[d] any
problem with [Corporal Holmes]?,” who Goodge supervised.
Defense counsel objected and requested a sidebar. At the sidebar,
defense counsel argued that the plaintiff should be bound by her
own motion in limine excluding reference to the investigation.
The district court warned plaintiff not to open the door to the
subject of the investigation into Holmes. Then plaintiff’s counsel
asked Goodge about Holmes’ credibility asking, “Can you think of
any ulterior motive he would have to have testified as he did?”
Goodge answered: “Other than he was under investigation after
that, and that’s the only reason I could think.” At this point,
plaintiff’s counsel moved for a mistrial, which the court denied,
reasoning “I think that [counsel’s question] invited the response.”
In other words, Race flagrantly invited any error, which
dooms her claim on appeal.
United States v. Jernigan, 341 F.3d
1273, 1289–90 (11th Cir. 2003) (“[T]he accepted rule is that where
the injection of allegedly inadmissible evidence is attributable to
the action of the defense, its introduction does not constitute
reversible error.” (quotation omitted)). We reject her claim,
accordingly.
See id.
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 25 of 26

-- 25 of 26 --

26 Opinion of the Court 21-11851
* * *
For these reasons, we AFFIRM the district court’s denial of
Race’s motion for new trial.
AFFIRMED.
USCA11 Case: 21-11851 Date Filed: 08/24/2022 Page: 26 of 26

-- 26 of 26 --