five dash three seven nine seven john ruiz boy no the third at all versus maxim healthcare services at all or argument fifteen minutes for the plaintiffs fifteen minutes to be shared by the defendants mr russell for the  is the click ability of equitable doctrines to toll or extend the statute of limitations and whether the underlying complaint was timely particularly with respect to the discovery rule this court recently determine the arena that once the plaintiff knows he has been hurt and who has inflicted the injury the claim accrues here the evidence that plaintiffs had at the time of the refining of the related lawsuit which related only to the deputies and only to their wrongdoing was a redacted i a b report that either made no reference to the defendants in this particular action or if it did indicated no involvement whatsoever with mr peterson it was through discovery under the federal rules of civil procedure in that related action that eventually an unredacted i a b report was produced and that was produced in the spring of two thousand and thirteen the case that you rely on is an unpublished case correct there are any published cases saying that you have to know the identity of the actual defend there are no published cases in the circuit that say that but i would note that what was quick what was quoted in the dollar was the united states supreme court's decision in which four forty four us one one eleven one at one twenty two why not if that i think the way that this court addressed the issue in arena as well even if it is an unpublished decision shows why the discovery rule should apply here because the net case says this is not a case where the identity of the defendants and at least the possibility that the shooting was wrongful were not known and i think it's important to remember here that we didn't have the identity of the defendants in this case and when you filed in two thousand and twelve against something like so if you name john doe's why couldn't those john doe's be filling in for these defendants here i think that's an interesting question but the difference between naming a doc john doe defend it and when a claim accrues i think is important because just because these defendants at some point in time in that litigation could have been substituted does not mean that the claim against them pursuant to the discovery rule had already accrued so it is true that but at that point in time there was no information available about these defendants now police have suggested that one things that could have been done was to file an action for discovery under  but plaintiffs in that action were already using the federal rules of civil procedure to obtain that discovery and equitable tolling for instance doesn't require maximum feasible tillage and requires reasonable  and that by using the federal rules to obtain it the identities of these defendants which occurred in the spring of two thousand and thirteen the action was filed within two years of that day so the discovery rules kind of has a tradition judicial policymaking embedded in it and one concern i have about your position is we want to create incentives once there's an injury for people to go figure out how this happened why who did it and it seems to me your way of looking at that discovery rule here would really remove quite a few of those incentives and that sudden seem that doesn't seem good for playing sort of sentence frankly i think there are two competing policies your honor i think on one hand you want to create incentive to investigate a claim on the other hand you don't want plaintiffs going out and filing claims with no factual basis and here there was an investigation the investigation did happen i think it's important to note that when this case started when mr peterson died nurses named in this second complaint were identified in the report they were identified in the unredacted complaint originally the only people who were there were a few nurses only whose identity is were revealed in the redacted i a b report so then you were put on notice that they were medical people and not simply deputies who had been involved in what happened to the deceased i disagree with that statement because there's no indication how could you disagree with it that there was no indication in that report that these people ever even encountered mr peterson all of their involvement was redacted it was names on a page well the next thing you do is ask what are you covering up here i need to know the names of those people i need to know what medical folks were invited into this who had a part of it i mean you don't fifty three deputies surely somebody figured out that there were medical people involved here i agree with you your honor that that did happen that's precisely what happened during the discovery process the related action it was the use of the federal rules to uncover that information once that information was procured then it has to go through our medical experts and as in what happened in acres which was a state court case involving medical malpractise which distinguish this decision and flowers one expert had concluded that this was a sudden medical emergency it was what our initial expert in that case it concluded meaning that the medical personnel this was a sudden cardiac event that was consistent with what the coroner's report said and what the franklin county sheriff's office originally told mr peterson's family about his death so our initial expert agrees with that conclusion that these medical personnel couldn't have prevented this sudden cardiac emergency through the attention of another expert in litigation when we have all of this information it later becomes the case that he put on this additional weight that this was not a sudden emergency and that there was neglect involved and at that point is when the people identified in the unredacted report were sued within two years of learning of their identity  years from that date would be the spring of two thousand and fifteen this lawsuit was filed in december two thousand when you got to discover when you got the unredacted copy of the investigative report you were still in weren't you about filing an amended complaint bringing these people land you now know who they are right there was another action to the discovery deadline by the time all of this wrongdoing in the claim is put together i didn't  amended complaint once you got the redacted report unredacted report right away because at that point frankly we were still going through the process of identifying the wrongdoing with our expert change when the claim accrued is it doesn't change the diligence that was being exercised in investigating the claim during that time period so let's just say you win here i don't understand why given our circuits recent action to me and i i would i don't even know how you what you're going to do about that and remember what rate received a condo would involve an identity of parties and interests you know it applies to every claim you did bring and should have brought that i mean that's why we're here but that's not a that doesn't prevent raised you caught it from applying you're not allowed you're not allowed to bring a case against one defendant one day lose then bring a whole new case against another defendant the next day if both cases arose in the same nucleus of operative facts right i mean you do agree with that i suppose that would take into account what the scope of the two cases are the issue hasn't been briefed in terms of claim or issue preclu but it would depend on the scope of the cases i mean this case involves the negligence of the medical providers the focus of the first case was on two things in human conditions of confine unsanitary conditions of confinement violation the eighth amendment and the what happened on the day that he died what the time what care was provided to him on the day that he died by deputies case did not involve what medical personnel did throughout the course of mr peterson's monthlong jailing or the naming of the john doe in the first case were with respect to different wrongs and so they couldn't possibly have been these particular that's correct the reason the john doe's were named was in case additional deputies came up that we were unaware of and that's the reason those weren't utilized by the time that was always possible that there were on a den of medical people anything is possible but i think it goes back to the reasonable reasonably possible the diligence of investigating the claim you have to have some kind of basis particularly for suing a defendant for deliberate indifference where the the standard under former is something akin to criminal recklessness and if experts are telling us that various points in time it looks like this isn't this wasn't something the medical personnel could have prevented and then later it comes up late in the game that this was the case i mean by that point discovery is closed it was about to close everything was closed and we're getting involved in the summary judgment brief there's a supreme court case rotella versus wood that has the language discovery of the injury not discovery of the other elements of a claim is what starts the clock why is why isn't the death i think that language is is taken out of context a lot of the injury there has to be some element of wrongdoing to put someone on notice that something happened i think here the equitable factors involved to the coroner is saying this was a man who died of natural causes not neglect not something akin to criminal recklessness and all the sudden this nothing involving wrongdoing whatsoever comes out until much later in the ballgame with date that counsel was looking for was may thirty first two thousand and thirteen it certainly would have been a possibility that the opponents could have met at the combine and in fact they should have at that particular point in time but instead they waited the identity of the tortfeasor was discovered within the statute of limitations period if you take the assessment of either judge frost in the southern district or if you look from the cognizable event which would have been the death of mr edward peterson on argument equitable tolling suppose they get the unredacted report they realize they've got substantial medical claim possible they take it to an expert within a week or two and get an answer they file a motion to file an amended complaint you oppose it the district court denies the right to file an amended complaint then we might have september your theory that's correct the courts have been clear that death or the injury is certainly what starts the clock the purpose of the discovery rule this is to protect claims for those plaintiffs who don't have a identity of the toward something that the arena case is citing to the cooper case and if you look at the cooper case in its larger context what the court was doing in that particular portion of the analysis is drawing a distinction what they were saying is essentially the plaintiffs for group are now armed with the facts about the harm done to himself can protect himself by consulting people in the medical and legal community and to excuse him from promptly doing so by postponing their cool of his claim would undermine the purpose of the statute of limitations judge moore you noted rotella in two thousand the united states supreme court said concerning the discovery of cruel rule we have been at pains to explain that discovery of the injury not discovery of the elements of the claim is what starts the clock the court continued and said we have been emphatic about that particular point and that in the medical malpractise context where the cry for this coverage rule is the loudest that the justification for the discovery rule does not extend beyond the injury itself there were other things that opponents gave notice this particular redacted internal affairs report that was something that was aimed at the target  that was targeted at the deputies however the death of a forty eight year old man who was having his health manage this was a preexisting heart condition from two thousand and six there was an autopsy report that was made public on october twenty first of two thousand and eleven and in that report there's a toxicology report now the risp are down is a schizophrenia medication it was detected in his blood system but there was no heart medication present according to that toxicology report so certainly his family know at that particular point in time that he's died from a heart condition and he did not have his heart medication they had ample evidence there was a new story he was on the autopsy he had gotten to two hundred sixty pounds that's correct and i would just remind the court in the remaining time that i have that statute of limitations or are not merely tech the technique alys they've been long on notice to defend within a particular point in time and over time the right to be free from stale claims is triumphs over the the right to prosecute them in light of that i would think that it hard to see here how opponents reasonably pursue their claims with diligence even as judge frost said regardless of whether the ng prefocus on peterson's knowledge or that of his estate in regard to whether the statute typically begins to run of the injured person's death or at some other point it cannot be disputed that appellant's knew of and understood peterson's injury on september fourth two thousand and twelve when they filed the lawsuit for failure to provide an adequate medical care by that point opponents knew of the injury that peters by time a focus on our unique position in relation to the other appeal we provided at least three additional reasons showing why the state's claims are barred first the municipal court records regarding dr chiles competency exam were publicly available immediately after peterson's death second doctor chiles absolutely immune because competency exams are quantity additional functions third there are no facts that could plausibly show how a psychologist's failure to diagnose congestive heart failure is a breach of any medical center care much less a constitutional rights violation how many days before the death your client three or three days before the death yes so we could get ourselves into a situation where a layperson would have appreciated that the deceased was in dire straits and if the lay person was being employed in some fashion that the prison would have some duties right absolutely and those records were public records part of the municipal court docket and that's really what distinguishes my clients from the other pelleas and provide additional bases for a firm and is that there were two hundred twelve days from the time of mr peterson death until this redacted report on april sixth two thousand and twelve where those records were available they could have been requested and they weren't with respect to the grassley and i know it's not been briefed but any one race race to the cottage down below it was not raised in the region but i don't i don't disagree with that argument i think that's an additional basis for affirming the sure course decision there's you're saying that that if there are two people who each cause some harm to some victim that the victim has to sue both people in the same lawsuit and cannot one of the times that what you're saying i'm saying that once the identity of the second party who could potentially be a fault is that you're saying there's a mandatory joinder if you're if you're if you're making that statement aren't you saying there's a mandatory joinder of defendants even though they may have independently acted to the harm to been the emphasis of the pellets arguments doesn't even contain dr to lease a name therefore there's no reason that the redactions may have redacted his wrongdoing he wasn't even mentioned the report rather the records showing his involvement were immediately available after mr peterson's death for over two years after the numerous events that mr davis mentioned the state was obligated to take steps to protect its rights at each point it could have collected the court and medical records and had them reviewed by experts and made no attempt to do this worst within within the session limitations in summer two thousand and thirteen the state admits that it received the medical records that disclosed the pelleas involvement between the van and the two year period they could have amended their complaint name the john doe defendants and asserted timely claims the state improperly focus on what information it was given what it realized and what it knew based on information of its provided this inattention idleness and indifference to fire is the purpose of the statue imitations which is designed to encourage diligence the state assumes a planet can take a completely passive role and learning of a claim until it receives in hand information regarding the injury the tortfeasor is identity and the wrongdoing this approach is unworkable it invites abuse and it could a step extend a defendant's potential within the limitations period and courts have repeatedly rejected equitable tolling when counsel has been retained of the limitations period dr phil is also absolutely immune from liability the limited scope of his an integral part of the criminal justice system absent immunity these representatives might not be inclined to take on those exams or do those evaluations it preclude suits in their official and individual capacity and as i mentioned before there's no facts that could plausibly show how a court how a psychologist failure to diagnose congestive heart failure custer's the breach of any medical center to care much less arise may please the court my name's tom himmel spy i'm here on behalf of maxim health care services and six of its nurses i'll be brief the posture of maxim and its nurses is somewhat different from the other defendants in that as has already been noted they were mentioned in the internal affairs report the redacted version that was that appellant concedes that he had received it were mentioned in the redacted version in the regarded version not only mentioned actually by my count mentioned twenty times that report also refers at twelve different places to identified nurses that refers to the medical staff and refers to mr peterson's medical record at page twelve of their brief appellant writes that they didn't even know that there were medical personnel involved in that statement doesn't fit the facts and when was the redacted version given i believe it was timed sometime around when the news report came out that i don't have that date before they filed the first lawsuit so what so that would mean then the two year statute of limitations had passed if you were using the redacted versions disclosure date as you great of a cruel is that the argument that you're making that that should be the date of a girl at the at the latest i think there's an argument certainly that the event of the death would would have been the injury if the appellant is claiming that mr peterson died as a result of having received inadequate medical care as they allege in their first lawsuit so what do you do with all this  cases that would indicate that there could be an argument that it is when you know the identity of the defendant's well i think in our case we have the identity of the defendants already disclosed you know and the nurses that were identified in that report they had the opportunity then to request the medical records there's no assertion that there was such a request made did they ever request the medical record or when did they request i don't know that they did but there's been no assertion that that request was made and refused they had the option to of bringing an action for discovery in the state court statute of limitations thank you not sure i didn't write down how much time you wanted for three minutes here thank you may please the court a lot of what i was hearing from the police in this case involve facts that are fact that are simply outside the record at this point in time on the on the face of the complaint there's no mention of what the family would have known had it noticed mr peterson gained weight or even that he knew they knew he was on any kind of medication mr peterson as it turns out was a mentally ill man who was trying to rekindle his relationship with his family but the idea that the estate would have noticed these things or those things what the heart problem was important right a heart problem is an important thing and if you thought of heart medication why isn't that it seems like a pretty relevant point but the question is what would the state have known what would these people have known about mr peterson and i mean they know he died and they have an autopsy and you have people assess the topsy that seems to me the not too much to ask the autopsy came up with no wrongdoing in the autopsy was obsessed and it was it was assessed and but i mean so you need to do is get a doctor to say if someone dies from a heart problem and there's not heart medication being administered or in the bloodstream wise and that suggestive of negligence and that's one thing that i'm getting at we did have a doctor who did look at this who did not see the thirty pound weight gain it was only when we hired a second doctor dr stuart crossin when these things were pointed out to our first doctor when everyone could go back and look and say ok there was this wrongdoing there was this this wrong associated with the people who were identified in the report but the first doctor was was a doctor hired by your client that's correct so isn't that a really fundamental problem that essentially you're going out later on finding a second doctor who may be a better doctor but shouldn't the fault be on your side as opposed to the various defendants the second doctor i would note was actually a psychologist he was not a he did not have the same specialties the original doctor but that's really not an answer to judge moore's question on sorry your honor can you if the fallout the fault of the in adequacy of the first expert that you hired should be your fault not the fault of the defendants in other words you shouldn't get extra time because you happened to hire a less than adequate expert the first time around i wouldn't agree with that because i think the function is on is on what's acceptable you know just because this been perfect the client was doing something to investigate this claim doing the right thing and retained additional experts along the way so i mean i don't think and keep in mind based on the court's decision the district court's decision