In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________

No. 16-1763
DONALD E. BEARD, JR.,
                                                Plaintiff-Appellant,
                                v.

WEXFORD HEALTH SOURCES, INC.,
                                               Defendant-Appellee.
                    ____________________

            Appeal from the United States District Court
                 for the Central District of Illinois.
           No. 11-CV-3360 — Colin Stirling Bruce, Judge.
                    ____________________

   ARGUED OCTOBER 30, 2017 — DECIDED AUGUST 21, 2018
               ____________________

   Before WOOD, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
    EASTERBROOK, Circuit Judge. Wexford Health Sources
provides medical care to inmates in Illinois’s prisons. Don-
ald Beard, Jr., an inmate, experiences chronic ankle pain. In
December 2010 he consulted with his prison’s doctors about
managing his condition. Beard wanted surgery, but the doc-
tors ordered conservative treatment. When Beard’s pain per-
sisted, the doctors considered referring Beard for surgical
2                                                   No. 16-1763

evaluation, a step that requires Wexford’s approval. It reject-
ed the doctors’ requests for surgical evaluation, though it
authorized Beard to see a podiatrist in September 2012 and
an orthopedist in January 2015.
    Beard filed a pro se complaint in September 2011. He al-
leged that members of the prison’s medical staff and admin-
istrative team were deliberately indifferent to his serious
medical need in violation of the Eighth Amendment (applied
to the states through the Fourteenth), and he sought damag-
es plus injunctive relief. The district court recruited counsel,
who added Wexford as a defendant and stipulated to the
dismissal of the individual defendants. Beard presented his
case against Wexford to a jury, which awarded him $10,000
in compensatory damages and $500,000 in punitive damag-
es.
    Wexford persuaded the judge that the punitive-damages
award violates the Fourteenth Amendment’s prohibition on
excessive or arbitrary punishment. The judge reduced puni-
tive damages to $50,000. Initially he offered Beard a choice
between retrying the issue of punitive damages and accept-
ing the reduced award but later withdrew the option and
entered a judgment that awarded only $50,000 in punitive
damages (plus the jury’s compensatory award).
    Beard’s first argument on appeal is that the district court
improperly prevented him from presenting an additional
theory of liability. Beard convinced the jury to find Wexford
directly liable; he contends that he should have been allowed
to argue that Wexford also is vicariously liable for its doctors’
violations of his constitutional rights. Beard maintains that
Iskander v. Forest Park, 690 F.2d 126 (7th Cir. 1982), which
No. 16-1763                                                    3

stopped him from pursuing vicarious liability, should be
overruled.
    Monell v. Department of Social Services, 436 U.S. 658 (1978),
holds that a municipal corporation cannot be vicariously lia-
ble if its employees deprive others of their civil rights. Is-
kander treats private corporations the same way, when their
liability depends on performing governmental functions.
Beard maintains that Monell should be limited to govern-
mental litigants. But Beard has not explained how Iskander
harmed him. We asked Beard’s counsel what additional
damages he would have sought if Wexford could be found
vicariously liable. He did not point to any. So we need not
decide whether Iskander should be overruled; anything we
say about the subject would be advisory.
    Beard also contends that the district court erred in reduc-
ing the jury’s award of punitive damages without offering
him a new trial. Punitive damages punish blameworthy be-
havior and deter defendants from committing future bad
acts—the more reprehensible a defendant’s conduct and the
more easily a defendant can conceal violations, the higher
the punitive damages. See, e.g., Zazú Designs v. L’Oréal, S.A.,
979 F.2d 499, 508 (7th Cir. 1992). But excessive punitive-
damages awards violate the Due Process Clause. See, e.g.,
State Farm Mutual Automobile Insurance Co. v. Campbell, 538
U.S. 408 (2003); BMW of North America, Inc. v. Gore, 517 U.S.
559 (1996). The Justices have instructed courts to review
whether an award of punitive damages exceeds the Due
Process Clause’s bounds by considering the reprehensibility
of the defendant’s conduct, the ratio between punitive and
compensatory damages, and any civil penalties that punish
similar behavior. See, e.g., BMW of North America, 517 U.S. at
4                                                   No. 16-1763

574–75. Applying these guideposts to the jury’s verdict, the
district court concluded that an award of punitive damages
equal to fifty times compensatory damages violates the Due
Process Clause and must be reduced. The district court’s de-
cision is consistent with the Supreme Court’s caution that
“few awards exceeding a single-digit ratio between punitive
and compensatory damages, to a significant degree, will sat-
isfy due process.” State Farm, 538 U.S. at 425.
    So far, so good. But even taking the Court’s caution about
single-digit ratios as a rule, the district court had nine single
digits (and an infinite number of fractions) from which to
choose. From these options, the court selected: five. It con-
cluded that, because a ratio of five to one “better matches the
reprehensibility of Wexford’s conduct, the actual harm suf-
fered by [Beard], and the need for deterrence and punish-
ment of Wexford”, a punitive-damages award in excess of
$50,000 would offend the Due Process Clause. It also decid-
ed that the Seventh Amendment did not require it to offer
Beard the option of a new trial before it entered judgment on
the reduced award.
    The decision to limit punitive damages to five times
compensatory damages was arbitrary—why the district
court chose a multiplier of five, rather than seven, or three,
or nine and one-half, it did not say. But because the Justices
have declined to reduce the relation between compensatory
and punitive damages to a formula, any ratio the district
court chose would have been arbitrary, though doubtless
influenced by an appreciation of the case’s facts. See Mathias
v. Accor Economy Lodging, Inc., 347 F.3d 672, 678 (7th Cir.
2003). See also State Farm, 538 U.S. at 424–25; BMW of North
America, 517 U.S. at 582–83. So the prudent course when a
No. 16-1763                                                       5

district court reduces a punitive-damages award is to offer
the plaintiff a choice between the reduced award and a new
trial, for the jury rather than the judge has the principal re-
sponsibility for factual evaluations. If the plaintiff opts for a
new trial, the jury plays its traditional role. And if the plain-
tiff accepts the reduced award—after all, there’s no guaran-
tee that a second jury will award any punitive damages—
then the plaintiff has willingly forgone the jury option. Ei-
ther way, the jury participates in the process of applying the
law to the facts, cf. Pacific Mutual Life Insurance Co. v. Haslip,
499 U.S. 1, 15–18 (1991), and the court plays its part by polic-
ing the range of constitutionally acceptable awards. See Ma-
thias, 347 F.3d at 678.
    Instead of following that course and offering Beard the
option of a new trial, however, the district court entered an
amended judgment awarding Beard exactly $50,000 in puni-
tive damages. Doing so was a procedural misstep, which
calls for a procedural solution: the district court’s judgment
must be vacated and the case remanded for the court to offer
Beard the option of a new trial on damages.
    In remanding for the district court to follow prudent pro-
cedure, we do not decide whether the Seventh Amendment
prohibited the court from unilaterally reducing Beard’s
award on constitutional grounds. See, e.g., Ross v. Kansas
City Power & Light Co., 293 F.3d 1041, 1049–50 (8th Cir. 2002);
Johansen v. Combustion Engineering, Inc., 170 F.3d 1320, 1330–
33 (11th Cir. 1999). But see, e.g., Thomas v. iStar Financial, Inc.,
652 F.3d 141, 146–47 (2d Cir. 2011); Southern Union Co. v. Ir-
vin, 563 F.3d 788, 792–93 & n.4 (9th Cir. 2009). The Justices
have not resolved that issue, and the district court should
not have addressed it either. Neither party asked the district
6                                                 No. 16-1763

court to decide whether the Seventh Amendment allows a
judge to reduce punitive damages without offering a new
trial as an alternative. The district court created a constitu-
tional issue by taking a step neither party requested: though
Beard and Wexford disputed whether Beard should have the
option of a new trial on both compensatory and punitive
damages, Wexford never asked the district court to reduce
Beard’s award without offering him any choice at all. Courts
must avoid unnecessary constitutional adjudication, see, e.g.,
Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 104–05
(1944), and whether the Seventh Amendment prohibits a
judge from reducing punitive damages on constitutional
grounds without offering a new trial is a question the district
court did not need to answer. Beard must be given the op-
tion of a new trial as a matter of sound procedure, not con-
stitutional law.
    If Beard chooses a new trial, the jury must be allowed to
consider both compensatory and punitive damages. Cf. Gas-
oline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500
(1931). The constitutional limit on punitive damages de-
pends on the reprehensibility of the defendant’s conduct and
the ratio between compensatory and punitive damages. See,
e.g., BMW of North America, 517 U.S. at 574–75. Because com-
pensatory and punitive damages are correlated, they must
be considered jointly. But a second jury need not reconsider
Wexford’s liability. Damages and liability present distinct
issues, and the jury’s award does not suggest that it held
Wexford liable based on passion or prejudice or otherwise
disobeyed the district court’s instructions. See Cobige v. Chi-
cago, 651 F.3d 780, 785 (7th Cir. 2011).
No. 16-1763                                                  7

    Though we remand to correct the district court’s proce-
dural mistake, Beard asks that we also decide whether he is
entitled to punitive damages exceeding five times the com-
pensatory award. When a plaintiff challenges both the pro-
cedure and substance of a district court’s decision to reduce
an award of punitive damages, procedural errors do not stop
us from evaluating whether the reduction was otherwise
proper. See Adams v. Chicago, 798 F.3d 539 (7th Cir. 2015). See
also Ash v. Georgia-Pacific Corp., 957 F.2d 432, 438 (7th Cir.
1992). But in Adams the district court reduced the jury’s
award because it lacked evidentiary support; the panel in
Adams could evaluate the substance of the district court’s
opinion without making a constitutional decision. That’s not
true here: because the district court held that the jury’s
award of punitive damages violated the Due Process Clause,
reviewing the merits of the district court’s decision to cap
punitive damages at five times compensatory damages
would require unnecessary constitutional analysis, which is
to be avoided. Spector Motor Service, 323 U.S. at 104–05.
    And not only by us. The parties assume that only the
Constitution limits a jury’s award of punitive damages.
Their appellate briefs dispute whether the jury’s award vio-
lates the Due Process Clause and cite cases such as State
Farm, BMW of North America, and Mathias. Yet because those
cases arose under state law the Constitution imposes the on-
ly federal restraint. Beard’s complaint arises under a federal
statute. As a result, State Farm, BMW of North America, and
Mathias matter only if the Due Process Clause is the least
upper bound on an award of punitive damages under §1983.
See Exxon Shipping Co. v. Baker, 554 U.S. 471, 501–03 (2008);
Perez v. Z Frank Oldsmobile, Inc., 223 F.3d 617, 625 (7th Cir.
2000).
8                                                     No. 16-1763

    The Supreme Court has not addressed whether there is a
nonconstitutional limit on punitive-damages awards under
§1983. But in Exxon Shipping it concluded that a jury’s award
of punitive damages in admiralty cannot exceed compensa-
tory damages as a matter of federal law. The Justices derived
the limit by taking the median of the ratio of compensatory
to punitive damages in verdicts actually issued by juries. See
554 U.S. at 512–14. Cases such as Smith v. Wade, 461 U.S. 30
(1983), Howlett v. Rose, 496 U.S. 356 (1990), and Browning-
Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S.
257, 278 (1989), imply that, if there is a nonconstitutional lim-
it on punitive damages in suits under §1983, it is also sup-
plied by a uniform federal rule, not the law of the forum
state. See, e.g., Wilson v. Garcia, 471 U.S. 261 (1985); United
States v. Kimbell Foods, Inc., 440 U.S. 715 (1979). But none of
these cases tells us how the limit should be derived.
    Courts could follow the Supreme Court’s approach in
admiralty and establish a nonconstitutional limit on puni-
tive-damages awards under §1983 empirically. In Exxon
Shipping, however, the Justices sat as “a common law court
of last review”. 554 U.S. at 507. Section 1983 is a statute, so
any nonconstitutional cap derived by courts also must re-
spect the limits on punitive damages chosen by Congress.
See Kunz v. DeFelice, 538 F.3d 667, 678–79 (7th Cir. 2008).
   The text of §1983 does not mention punitive damages. So
the Justices have looked to the common law to fashion rules
for awarding punitive damages under §1983, just as they
have looked to the common law to establish rules of absolute
and qualified immunity. See Smith, 461 U.S. at 34. When
§1983 was enacted in 1871, many states did not impose
bright-line caps on punitive damages; juries had considera-
No. 16-1763                                                   9

ble discretion in awarding them. See, e.g., Williamson v.
Western Stage Co., 24 Iowa 171, 172 (1867); Schneider v. Hosier,
21 Ohio St. 98, 113 (1871); Myers v. San Francisco, 42 Cal. 215,
217 (1871). And because verdicts and written decisions often
awarded total amounts rather than separating compensatory
and punitive damages, see, e.g., Dalton v. Beers, 38 Conn. 529,
531 (1871), it is difficult to determine at what point courts
considered punitive-damages awards excessive. Nor does a
single method of limiting punitive damages prevail among
the states today. By our count (and with some simplifica-
tions), twenty-nine states impose a generally applicable cap
on punitive damages. Some rely on ratios, see, e.g., Alaska
Stat. §09.17.020(f) (ratio of 3 to 1); Colo. Rev. Stat. §13-21-
102(1)(a) (ratio of 1 to 1); and others on dollar caps or formu-
las, see, e.g., Va. Code §8.01-38.1 ($350,000 cap); Kan. Stat.
§60-3701(e) (limit depends on defendant’s annual gross in-
come); twenty-one states impose no generally applicable
limit on punitive-damages awards. Fashioning a uniform
federal rule from the states’ diverse approaches is not an at-
tractive prospect. See Exxon Shipping, 554 U.S. at 509–11.
    Because state law does not provide a clear limit that
could be adopted as a matter of federal common law, courts
could consider how other federal laws handle damages that
exceed the compensatory amount. Congress has capped
supplemental awards at twice compensatory damages in an-
titrust (15 U.S.C. §15), racketeering (18 U.S.C. §1964(c)), and
patent law (35 U.S.C. §284), and at compensatory damages
for violations of the Fair Labor Standards Act (29 U.S.C.
§216(b)). This might suggest that punitive-damages awards
under §1983 also should be limited to treble damages or less.
We have not found any federal statute that authorizes a mul-
tiplier greater than three, though some statutes establish dol-
10                                                 No. 16-1763

lar limits in lieu of multipliers. For example, 42 U.S.C.
§1981a(b)(3) sets a limit for the combination of punitive and
certain compensatory damages that runs from $50,000 to
$300,000, depending on the defendant’s number of employ-
ees.
    We need not choose which of these options is best. We
raise the subject only to call attention to it so that statutory
decisions precede constitutional adjudication. Both legal and
factual issues are open on remand.
    Because we vacate the judgment and remand for the dis-
trict court to offer Beard the choice between a reduced puni-
tive-damages award and a new trial limited to damages, we
also vacate the award of attorney’s fees and costs. Until we
know whether Beard prefers to take his chances on a new
trial (and, if he does, the measure of his success), saying any-
thing about fees would be premature. See Hensley v. Ecker-
hart, 461 U.S. 424 (1983). Still, we remind the district court
that any award of attorney’s fees must comply with Murphy
v. Smith, 138 S. Ct. 784 (2018).
                                     VACATED AND REMANDED