this is an extraordinary case first the case involves the extraordinary misconduct of five medical practitioners at the federal correctional institution polk who seriously delayed care for  treatable illness and then resulted in james davis bennett suffering from permanent disability it is also an extraordinary case because of extraordinary actions by the district court judge in its rulings throughout the course of this case which deprive the plaintiffs james bennett and pamela got it from their recognized ability to elect their remedies and i just ask you to terms of the in a relationship between these cases so if if this right you should have been able to dismiss it without prejudice at this point isn't it time board made and i say maybe because our first request for relief on the f t c a case is that the court reversed the district court's decision on the  let me let me let me i i was trying to be precise and the question let's assume that we find that the district court didn't abuse its discretion in not staying but did abuse its discretion in declining your request to dismiss without prejudice and then that's that point isn't your claim time barred if we send it back i agree ok and should the court do that i can't imagine any scenario where we would try to resurrect the f t c ok i'm just trying to figure out all of our options are exactly th exception and let me tell it this is a complex case procedure if the court were to reverse the district court on the ruling as to the time and us of the arizona based claims with a district court ruled that those claims were barred by the statute of limitations if the court were to reverse that claim and we have raised that issue is it not my problem is and we're now mucking with the procedure and i know you want to get to the merits i don't know how we get to the on that the arizona based claims because they a there in the f t c a case correct they are and so either either the judge correctly dismissed with prejudice in which case we don't get to them or if we find that he shouldn't have dismissed with prejudice the case is th we don't have a final order from which we can review those claims given how those claims were resolved on summary judgment i believe that the court could craft and you think you could just you think you could dismiss a case without without prejudice that's what you sought to do and let's say with the judge should have done that and then appeal a interlocutory summary judgment ruling in that case that's i believe that we can i could i could be correct i have some difficulty coming to that conclusion but let's get you out of the procedure and get thank you and i preach and in light of the way we presented the arguments i think that's probably an unlikely scenario i obviously we have pressed forward with the defense claims as our lead claims in fact if i could turn to that  now my submission to the court and this certainly was the message i intended to communicate at the beginning is that when you look at the way that they've been claims were litigated and you look at the district court's ruling on the defense claims that helps to explain what happened on the c claims the procedural problems that we had because the record that was established with regard to the balance claims was i would suggest to the court probably one of the more straightforward clay skate cases of deliberate indifference that you would see if you review that at the end of the day didn't do what it should have done but a lot of attention to your client tests were ron checking in with your client a granted we some of the medical professionals had some questions about whether or not there was going in the like but this is certainly not a case where no one paid attention to your client but that is not the fence that and this court has been clear for look back to lopez versus meth the court said the mere provision of medical treatment over time not constitute a defense to claims that delivered indefinitely we ask you've got five defendants right yes it's your case the same as to all we have we have non m d s early on in the process particularly the first practitioner who's dr bell regularly regularly beats with your client provides him with pain medication i don't know whether she's supposed to recognize a more serious problem when you see the first partition or you refer to the nurse there is yeah ok so it's seems to me that your key it's not this is not joint and several liability which are trying to talk about individual liability the breach so as to which of the five do you have a the best case of deliberate if would say as to dr kelly well and that is because of dr gully walls frank admission that as of april ninth of two thousand and twelve less than a month after mr bennett arrived at lompoc he knew and this is his deposition testimony he was explicit he knew that based on mr bennett's problem and complaints of back pain he said that he had had back pain since january that's number one and number two the unexplained weight loss knew at that time that there was a pathology you know he didn't say he knew he said this suggests a serious pathology ok and then that's i think that's that's that's a fair characterization of the testimony a jury can infer that he either this is and the critical problem that we see with the district court's ruling is that it did not evaluate assassin even considered any of the evidence that we presented the three key facts i want to boil this down to the simplest well and the simplest point one is that they knew each of the defendants knew at some different kind dr kelly what was the earliest that mr bennett had evidence of a spinal pathology number two they all acknowledged in their deposition testimony that when there is evidence of a spinal pathology or spinal infection that is a serious problem which can be disabling or even fatal and dr dhaliwal ticked off a list of diseases that woman i love my willing to for purposes of answer my question let's assume that your client had a serious that evidence the key diagnostic measure that you have to pursue is an m r i and we saw that there there's there's no question that that's what you're supposedly going to walk back on the on the practitioner that ordered the  bennett was also going to be seen by doctor and so well i'm trying to figure out how the i'm having a very great difficulty with your argument about the practitioners all of whom are operating in a system where there's a physician that's going to say mr bennett they order tests they provide stuff it's not enough for a practitioner to suppress them on to the physician and say here's what we've done no not not on that i thought i could i could see the court just a doctor because how was he would deliberately give dr gross knowledge in his deposition testimony that as the physician he knows that he has a responsibility to ensure a timely m r i particularly in the emergency situation he knew from mr document's the report that mr cotter prepared on the twenty fifth of two thousand and twelve that there was evidence of toxic neuropathy he knew and when a jury could certainly infer if he doesn't acknowledge it that that's a serious condition that  requires immediate treatment he knew that a timely m r i was needed and if he sees that a mid level practitioner operating under his supervision did not perform that necessary task of ordering a timely m r i that's his responsibility the in the in the malpractise syria i mean the you know the language of the cases this one is the jet case where it may appear indifference may appear were officials denied delay or intentionally interfere with medical treatment i mean that's not what's happening here at most at most these people are a bit asleep at the switch perhaps i thought they might not they're not doing in affirmative things to effectively interfere with medical care and that seems to be the standard at the money to put back on that if i could actually respectfully disagree as to whether the characterization that they're asleep at the switch if we look at this court's ruling in jet this is a man who had a no not the wrong test they did not take the emergency steps that were required everybody knew and if i could carry on with that move backwards if that's your and i think that is your best argument moving back to the first two people on the chain that's a that there was deliberate indifference to a serious spinal condition which which they knew to be dangerous potentially facebook understood as to just to finish the of the fact that she was handed information which should have set off alarm bells and that's the phrase that i would use all of these defend information which should have raised an alarm for emergency action it did not they failed to see what they knew was needed that is the quintessential case of delivering difference because of the rest of the time for  good morning there please the court assistant united states attorney garrett coyle along with my colleague this is the united states attorney keith stabb we represent the united states in the federal tort claims act appeal and the individual doctors nurses and physicians assistants in the and i'd like to begin with the dismissal of the f t c a case for failure to prosecute because that decision if affirmed resolves both appeals in their entirety so it wasn't a case last say that absent some showing of prejudice to the other side a party should be allowed to dismiss its case without prejudice it so if you were to get past the threshold issue of the the dismissal for failure to prosecute you know i'm moving back in time before the judge dismissed refer you to prosecute at least a month before and probably earlier than that because the stay application really involved the same issues the other side said judge will dismiss this case without prejudice and the judge said nope can't do that and our case law says that it's an abuse of discretion to refuse a request to dismiss without prejudice unless there's a showing of real harm to the other side i have i can't find that showing in this record so help me argument about prejudice can't be well we would have won the lawsuit and therefore consequences should have come from and they said we're willing to give up right now this case preserving a right to bring it in the future  nothing about the second lawsuit would have affected the first you could have won the second lawsuit and they still would have been able to pursue the first so other than the fact that you might have won it what's the prejudice to the government well it doesn't matter if we won or lost the  which case is tried first so even if they got what they wanted and tried the divisions case first if there's a subsequent f d a f t c a judgment that would retroactively sure and what they wanted to do as well as their right if they had a good eighth amendment case was to try to a jury and so they said judge we would prefer to try our recent case which is harder to prove to a jury rather the trial or a malpractise case to you and the judge said no and i'm trying to figure out why that's not an abuse of discretion the judge said it's too late to do that without prejudice because congress in an acting the judgment bar was trying to prevent duplicate of litigation and reduce the strain on employee morale in government resources cause but they were in that position only because of the denial of state there is a we're dilatory you know what do we make of the fact that it wasn't the government's position to stipulate to that at one point you know we were willing to stipulate to consolidate that the two cases together to try them together in the bennetts are challenging the denial of that consolidation here claim to the judge first no i don't think so i think the sequencing of the well so but that's that's your defense you're saying we have the way we were prejudiced was we lost the we lost the benefit of the judgment bar that might have arisen from the  once you take the f t c claims far enough into a suit that you are get of are going to get a judgment we don't want to buy peace for our employees but the government agreed to stipulate to consolidate the case were there discussions between the parties as to whether a or the eighth amendment claim was going to try first be tried first i think the discussion was that it would be a joint trouble we were still moving for summary judgment in the big case so we and we won summary judgment so then the f c c a trial would have proceeded  scheduled maybe you could move on to the bins comes across as i think your colleague candidly admitted unless we affirm the f t c a bar even if we reverse it on that one even if we send it back it probably makes no difference so why what is there enough evidence here to get past the summary judgment threshold at least as to the doctor whose name i can't pronounce that begins with a d dr dollar well so i would emphasize three points in response to that deposition testimony that mr feinberg cited first of all things that deposition testimony was quote we need to investigate what was going on with mr bennett's back and the eighth amendment looks not only at what you knew but what you did in response and so on april ninth that's the date when he said he thought we needed to investigate he in fact ordered a lab tests a scan a new medication that was designed to treat what he thought was the underlying expectation is within sixty days he says right that's correct so what you're what your colleague on the other side is saying is that that was gross indifference or deliberate indifference to mr bennett's condition i and then you had non treating prison administrative officials saying who delayed it so that's different here you've got the trigger himself who or is no more right and in his exercise of his medical judgment determines that it's appropriate to order it on the standard to order an m r i correct correct because his pain was not getting better they were medicating him to no avail and then in june the following i think i think this was may twenty five when the m r i i was ordered by to we're talking about a week later he was wheelchair bound and couldn't even walk and then in july he basically was that britain right between june and july why wasn't in you have somebody who's suffering from severe progressive pain they're strong indicators that would have triggered an immediate m r i to be ordered and it wasn't ordered and so his  he increased during that time is what is at the heart of their deliberate indifference claim i would make two points the first is in a given claim there is no vicarious liability so so he had ordered the m r i at that point but he did not it again repeated and that's why i was focusing on separate people so let's assume that thought it was fine order the m r i that was and what dr dhaliwal continues to see i don't think and well as i see this he's visiting he's visiting somebody in the clinic in may and june in june he visits the clinic four times and he complains a very severe back pain now it's not quite clear to me during that period from the record who it is that se his gait is slow he can't walk and when he when he walks his head is almost close a level of his waist when walking that's not a market increase and severity of his condition i think that's similar to what he presented with on may twenty fifth but i think so is there any combination of symptoms that mr bennett could have presented between may when was there i would have made twenty five and joy twelfth when he was he had the m r i is there deliberate indifference like that you think what they knew and what they did so the more they know obviously then it calls for them why isn't what they knew here judge judge when it's read it to you from the record you had it somebody was in severe pain in a wheelchair was walking with his head down needed constant pain medication and injections why isn't that enough and they were already determined that his condition requires an m r i as a diagnostic tool why isn't that enough to say we  this guy in for this m r e a lot quicker i think that shows should have known the arguably should have known at that point but that's why i asked the question so what combination of evidence would be necessary in your view to get past the should of known to deliberate indifferen when mr bennett woke up in his bunk and he couldn't move his legs that was the kind of symptom that required in a margin so if they hadn't sent him for an emergency m r i at that point that would be in a cement while i think so yes but until that point you don't think it was no i don't think stuff that the difference is bedridden and paralyzed versus being a wheelchair at the waist losing an inability to walk within five days isn't enough i don't think it was enough in this case i mean i think maybe mr peer these facts jeff the fact of the case and tell me why this doesn't present a more compelling set of circumstances we're not talking about prevailing on the merits we're talking about creating a sufficient trial issue for purposes of sending it to trial so why is it enough and jeff and not in this case it wasn't it i think the difference is that the defendants knew exactly what that the plaintiff's condition was from day one and they knew what he needed and yet they still delayed it so they knew he had a broken thumb in jett here there's no dispute that that the defense did not know that mr bennett had this one in a million condition they knew that's true but but what i'm hearing from your counterparts is these medical professionals are treating mr bennett is they would treat someone who says my back hurts in there they're treating it whereas they had an indication that it was something more there was pathology that indicated it was something more than just his back hurt but all they did was treat him as if his back hurts isn't that essentially what they're i don't think so i do not think that is what the record shows the record is first of all pathology just means abnormality they knew there was something abnormal going on his back and they did something in response t order test they were at seventeen lab tests they ordered nine different medications and medications not just to treat and mask the pain but also medications to address what they thought was the underlying cause of this problem they ordered three x rays  thousand and twelve and comes to the clinic four times at least complaining what does he see he sees on june ninth right june twenty second as well i believe s him in early june correct after the m r i is ordered my wrong about that yes i think you are diagnostic tool and you're the doctor in charge of this patient you have some responsibility at that point to look at all this and say oh my gosh we need to move this stuff up where they they're not m d s have done as good a job as we can expect in an m d to do i mean charge of this case and once i see all this stuff as he says it suggests a serious pathology letting it wait for two months for an m r i is not it's not appropriate there is no evidence that  notes he did review the notes and he approved the treatment plan in the o t s so how is that not involvement that what triggered the responsibility it is involvement but he i'm saying he did not see mr bennett at that point because it bars them from challenging any earlier interlocutory order how do you think they've they have waived their challenge to that well they didn't oppose it below and they didn't raise it in their blue brief it's not any of the argument headings in the blue well no i've read the transcript  seems to me they vigorously opposed it in the sense that they said judge don't do it dismiss it without prejudice no no and then and you finally reach a point where the judge says to you several times stop i'm not going to do what you want do you have to when he says i'm going to do it you don't want to say i object i'm talking about a different order so they tried to voluntarily dismiss right out prejudice judge denied that then when we got to trial they'd just sat there they didn't put on a case they presented no witnesses and i agree if if if the earlier order was properly did not there in any doubt that the judge properly dismissed for failure to prosecute but that's a final order and they're peeling that final order they filed a notice of appeal from that final order so your argument is they waived it because at the time the judge said i'm dismissing for failure to just missing for you to prosecute they didn't stand up and say judge remember we moved to stay remember we moved they hadn't made enough of a record on that point to by letting the case but what were they supposed to do at trial if they wanted what they supposed to put on their case and then object to the to the failure to say they had three options the first one was to go to trial put on a case and win or lose they lost the case right win or lose they could have appealed jurors that would that be a great appeal you've already tried your case your point on everything now you're appealing the failure my failure to let me dismiss it before yes you can do that i mean then you lose and you lose that appeal so that's a terrible strategy what's their what you're going to do that's what you're going to do but we're going to appeal it if they'd said those words at trial with their preserve their right to appeal no i don't i don't think so but but even so once you got to that point the district court certainly didn't abuse its discretion by when they they didn't put on any witnesses evidence i've told you before i agree with you on that the question is whether the court abused its discretion at some earlier point in time in turning down there there were requests to dismiss without prejudice and what you're saying is that's effectively unreviewable yes w whenever that happens you've either got to come running up to us with an emergency discretionary application or in effect say i've lost that i must try my case yes you have to try to i mean that's what the final judgment rule is you have to complete all the proceedings in the each other we have a final judgment in this case do we not i don't think that would qualify we don't have a final judgment then we send a case and we say the case is still in the district court we must have a final judge i would direct the court to the supreme court decision in microsoft the recent one that we sa no i've read those cases they don't say that a dismissal with prejudice for failure to prosecute is not a final judgment you're making a different argument that in the appeal of that final judgment we can't take up interlocutory orders is there a case that says that that is not a final judgment for purposes of trial ninety one i think it's microsoft and microsoft said that the plaintiffs in that case voluntarily dismissed with prejudice and on appeal the supreme court said that is not a final judgment perhaps and i absolutely agree that's a voluntary dismissal the court hear over their objection and in order dismissing their case and you're telling us that order is not appealable that's your position no that is appealable but it was it should be affirmed and that bars earlier i understand that it was not what you just said you just said we had this this this dismissal by the court with prejudice is not is not appealable i think the courts rule is that you have you can appeal that but you first that's very different than what you said you just told us it wasn't an order we could review because and but it's a final order we can review it we may we may turn down their appeal for all the reasons you said but it surely is a final order for purposes of appeal is it no case with prejudice don't come up here and and appeal interlocutory orders makes perfect sense you chose to dismiss your case with prejudice you can't now come up and complain about what led to that but this is not a voluntary dismissed with prejudice says the first thing you have to do when you appeal that you would have to first show that the dismissal for you know the court of appeals you to first have to show exact you first have to show that to the court again and then you can get the i think i think we're missing each other on this this case is properly before we get to determine whether whether or not this order really have a final order what your position is even though the final orders in front of us we can't look at interlocutory orders we are we can only focus on that day when the judge dismissed ok now we've given the government plenty of time so let's put five minutes on the clock for about oh thank you roger i was about to say i plan to hustle through five points in under a minute that it's a relief to have a little bit more time i'd like to start briefly picking up  just her which is questions to counsel about how the end of october orders that before the court i could just touch on this briefly i'll torquey microsoft those cases are completely distinguishable from the situation we have there where the plaintiff was actively seeking i think we think so too ok i'll skip that point then but i'm just on i don't want to spend on time and on the dismissal with pride regulars issue but i am a little troubled if we have to review the judge's order for abuse of discretion when the judge had basically said i want you to be prepared to try both cases and or summary judgment in one of them he actually he never never said he didn't say that but surely his actions told you that he would not it wouldn't stay it he wouldn't dismiss it without prejudice so he he had a trial date and he knew you and you knew you had won so why don't you try to figure out why would you judge abuses his discretion by saying i want to get both cases ready i just i now grant summary judgment one of them only one remains try it what's what's why isn't it abuse of discretion the abuse of discretion is in completely disregarding this court standards for a dismissal without prejudice which require a showing of legal prejudice on the part of the defense the only way we lose on a motion to dismiss without prejudice is if the defendant can make a showing of such legal prejudice and your honor pointed out in your question and the bar you think is not enough yes i agree completely the judgment bar is not a defense and the way the government characterizes the judgment bar something akin to a qualified immunity defense that we can raise at any time we have the ability to use this defense to guide what the plaintiff does that's not of all the case if you look at the supreme court's decision in will versus halleck that's the case where the government took the position that the denial of a judgment our motion to dismiss was not immediately appealed and i don't i don't i said i don't want to keep your views to have one of the question on i've looked in the record the government didn't say at that point and we have witnesses that are ready and memories will quite right that you want to do with this case do you you would like us to reverse the order dismissing the f t c a case with prejudice to send it back so that it can be an order can be entered dismissing it without prejudice w you want as the sun the vivants claim back for a trial that is correct there is a a request for relief that i would rank higher than that in terms of our order of priorities and that is for the court to rule i did not have an opportunity to mention before that the denial of the stay was improper now acknowledge this is an abuse of discretion standard when judge klausner denied a request to stay the f t c case pending this court's review of the defense appeal but the record of that time given that the district court order granting summary judgment did not consider any of the plaintiff's evidence given that the plaintiff at that point had produced a record which as suggested to the court had exceptionally strong evidence of the liberty difference that should be presented to a jury given also the pla view of this particular district judge record in the court of appeals now let me stop you with you asked to reassign this case perhaps i'm wearing my district judge hat and so i have to ask you about this and your basis for saying this should go to a different district judge is that you say in your briefs this district judge has been reversed many times by the by the ninth circuit in relatively similar cases or something on that lines don't you think that's a pretty thin showing to make what i think is a very serious request to reassign to another judge you know there's nothing in there that tells us how many times you've been affirmed or how it's related to other district judges you just say this judge has been reversed a lot by the ninth circuit and so you should send it to a different district judge don't you think that's not really much of a basis to make that pretty significant request i mean i think your honor may be combining the let me say it this way a reference to the previous reversals is only a small part or a secondary totenberg you got to show bias that's right and part of the district judge and what biased you have in this case what showing other than the fact that you you got what you consider to be unfavorable rule if because otherwise we'd have to reassign every reversal i guess district judge that the bias of the appearance of bias comes in the district court's repeated statements in its in the court's rulings maybe incorrectly he's saying look i've got these two cases on my car on my docket i want to dispose of them i've disposed of one by summary judgment let's take the other one to trial and will sort and so why is that such bias that it that's not buy it is error plus and that's and that's i mean that's not so replies district judges all the time in the course of a case come to conclusions about the positions that the parties are taking and whether or not they're taking positions in good faith or bad faith or what have you and they may be wrong in that decision but that's not bias that's simply decisions that they're making that are then reviewed by the appellate court but to then suggest that every time a judge says for example i don't think you're proceeding properly or i don't think that this is appropriate strategy or what have you to say aha that judges suddenly become biased against that side would wreak havoc and would also frankly be an insult to the district judges  and i disagree as to the specific showing in this case i do think that there was actual facts but i think it's a showing of personal animosity by the judge to you to anybody in this case to you know when you know you don't have any showing of  the judge having extra judicial influences on the case you know i read in the paper that your client's a bad guy or something like no but what we do what you have is a bunch of rulings and look you you you chose to well as i said your colleague with respect to it's not an appealable order argument i don't buy it i understand that and let me if i can just defend that the reason for the request it's not necessarily the shelling that we need to make a showing of actual b of the appearance the appearance of bias must arise from something more than the fact that you didn't prevail on each of your idea and even given the combination of factors here that's i'll rest on that it's the combination of factors the summary judgment ruling followed by the denial of the stay followed by the denial of the motion to dismiss without prejudice in a completely unprecedented ruling not supported by any authority all the while suggesting that it's the plaintiff's fault it's the plaintiff's fault for exercising their election of remedies which they have a question that you don't have to give an answer to your statement about prolonged negotiations always leads me to a case like yours to ask whether or not the parties would benefit from mediation i suspect you're too far down the road in this case for that to be all right thank you very much about site and if you are interested in entering mediation if you can notify us within seven days  right when recess for the day