at the st cloud minnesota prison there are two issues for this court with regard to the district courts grant a summary judgment in favor of the findings and against my client martin roberts the first is are there questions of fact for a jury about whether mr roberts was exhibiting signs of a serious medical condition on monday september twenty eighth monday september twenty eighth is the important day because that's the day that the defendants in this case  inability to get out of bed excessive vomiting not eating all of that happened over the weekend and he interacted with several ceo's during that time asking for medical help but because of his condition having just had a stroke and being and having vertigo he can't remember any of the ceo's that he interacted with and through discovery in getting pictures and everything we were able to establish he was he was unable to say with certain kondracke that he felt like he was having a heart attack he didn't testify that he told him about the numbness at that time but when the pows then asked why he felt like he was having a heart attack he talked about numbness but he didn't say that obvious stroke symptom that would be an obvious stroke symptom as well as the extreme vertigo that gun deca did witness the inability to stand up which gun deck did witness mr roberts testify the gun that came to the cell to do what's called a stand up count mr roberts was unable to get out of what he described as a puddle of vomit on the floor down that saw him in this puddle of vomit unable to get up and that i will report it to medical staff there is no record and the fans have been able to produce no record whatsoever that there was ever any such report made to medical staff by any c e o he did subsequently see a nurse in a doctor who didn't diagnose this right and that is the second issue for the court which is whether or not if i got ahead then because aren't there a couple of cases that say if medical professionals are able to recognize it as a serious medical condition how can one expect lay people to do so there are cases that say that they're cited in the brief this there's actually four cases that have been cited by the parties carpenter christian scott versus carpenter which is a different carpenter case and aswegen a fail to get medical attention in this case the diagnosis is after the fact and the timing is critical and i say we contend because with regard to the christian case as argued in our briefs the facts are very muddled in the opinion and there is some dispute as to whether or not that what the exact timing was but the timing here is critical because what you are then saying is if at any time later on medical professional can't find evidence of a stroke or some illness that happened several days before then the intervening time when the c e o s got him no no no help is excused as a matter theory that the lay might be material to the diagnosis because the evidence in the record is that his improvement was happening on a very quick basis over over from day to day the evidence in the record is that as of any medical profession well that's the question for the jury and that didn't and that is also contention with regard to that first issue which is that it is for the jury to determine whether or not on monday versus tuesday given  improvement if he had gotten help on monday he might have gotten some relief for his stroke symptoms and if he had gotten relief for his stroke symptoms then his second stroke which he had later that week on friday would have been prevented that is the case in a nutshell and i understand that it's only twenty four hours but the fact of the matter is that it is twenty four hours and twenty four hours of improvement and we are saying the district court is saying that as a matter of law and the jury doesn't have to be consulted we can assume that what he exhibited on tuesday is the same as what he exhibited on monday and not because on tuesday and there was you know in a different facility washington county didn't catch that he was having a stroke that means that he had been sent to a doctor perhaps on monday not a nurse but a doctor that that doctor would not have recognized that he had a stroke and he needed immediate attention that's the assumption here that has been it's a finding of fact that has been made by the district court that is the basis of the appeal with regard to that issue that you cannot make that assumption that it's an improper finding of fact to make that assumption that the evidence to be presented to the jury is that even though it was only twenty four hours there was improvement and that if he had been presented to a doctor exhibiting the symptoms rather than a nurse taking notes on what he says his symptoms were there may very well have been what seems like was kind of a missed diagnosis so to speak of his name appearing on a dental call list and a subsequent examination suggesting that his symptoms were because of an abscessed tooth that needed to be pulled as opposed to a stroke if you've got medical professionals debating about the origin of these symptoms and connecting them to perhaps in the make misdiagnosis to dental issues how does that affect the responsibility of jail person there a couple of things on that iran are first of all just to make sure that the facts are straight on monday morning he asked inmate because he couldn't get out of bed make it down the steps to do it himself here's another inmate who simply identified as new york to go down and sign him up for medical medical visit new york for some reason signed him up for  the spite the fact that new york signed him up for a dental rather than a medical visit he got no attention that's the first thing the second thing is when he comes back from washington county on thursday the intake n him and says something's wrong here you've got to go to the doctor they send them to the doctor in the jail who says i think you have an abscessed tooth but now we're not twenty four hours we're seventy two hours after monday and we're one hundred forty four hours after friday when he had the stroke that doctor sends him to the dentist the dentist actually says i don't think this guy sometimes are caused by an abscessed tooth but the doctor insists that he pulled  so you've got now you do have several days to when that doctor misdiagnosis is sometimes as abscessed tooth although the dentist disagrees but that's not to be confused with the fact that on monday he wants to sign up for a medical visit the person who he has to do it makes an error but nonetheless he sees nobody the jail doesn't act on it in any way shape or form send them to either a dentist or howard jail personnel responsible for his ineffective agent and signing him up for a medical vision but you know personnel were not responsible for that however the fact that he was put on a dental request means he should have seen a dentist on monday and he didn't a medical professional a violation of that is not one nine hundred eighty three violation well if you're suffering from a serious medical condition an arc in our case is that he was suffering from a serious medical condition and that the the see if he had seen a dentist on monday this would we don't know that's another question for the jury but whether or not that's a claim that i'm not saying i'm just providing the facts here with regard that makes the case and in our brief we don't argue that that violation is is the case we argue that what the what the ceo's exam observed on monday creates questions of fact as to whether or not he was suffering from a serious medical condition that should get a jury on those issues with regard to the whole not going to see a doctor thing i think it's just one more piece of evidence which can be presented to the jury that nobody in the jail including the c i was were taking him seriously in fact were rated him for having not gone down and signing the medical form himself and paraded him for not being able to get out of bed to go down and get a t v remote that he had ordered several weeks ago and we talk about the causation expert d phillips and where did the district court go wrong in suggesting that his opinion was that he had to have treatment within hours before it could have prevented this second stroke yes your honor with regard to causation that mr thompson mr roberts remained at high risk for further strokes until you could get treatment and this two concepts and the first is that if you have a stroke you have to get treatment within several hours in order to reverse or mitigate the effect of the stroke but the second concept is that once you've had a stroke at some point you need to get some treatment to prevent a second stroke and that you remain at high risk of a second stroke and that's exactly what happened in this case you did not receive the treatment well when he did see and there is they didn't recognize the symptoms although that was our position that they had passed by then and he didn't fact have a second stroke is the expert ever say in a more clear way that had he had treatment as late as monday when when these defendants man that the second stroke was preventable what he says is that he remained at high risk and that treatment would net a difference isn't there a difference let's get the exact as he talks at some length about how getting treatment in the first few hours can reverse  the damage from the first one but i think i find it less than clear that he said saying if he got treatment on monday it would reduce or eliminate the risk of the second stroll he says he remained at high risk for further strokes until treatment was finally provided on october one two thousand and fifteen many days after his initial stroke and only after his a tiriel dissection had caused the second stroke further damaging his neurologic function so he says he remained at risk of further strokes until october first which was thursday which means on monday three days earlier he was at high risk of further strokes which would have been mitigated by treat it's the which which would have been mitigated by treatment that i find hard to decipher out of that well i think it's i think there's no reason to say well let's say provide cover for as many days after his illness was broken only after his arterial the section had cause a second stroke for the damaging his neurologic function i mean i think it's i think it's obvious that you would you have a better chance of preventing that second stroke if you get treatment in that period of time and he didn't to please the court my name is jason mair sam and i represent the correctional officers in this case i want to start right away by correcting major misstatement of what the record says with respect to this medical call issue on that monday and this is in the appendix of a thirty two it is the appellant own testimony and he was he did tell new york to report to the correctional officers that he could not make work he was asked this is on page eighteen of his deposition did you ask him to sign you up for sick call answer no i told him to inform you know whoever at the desk would to whatever question and you told him when using informant do whatever you mean inform the correctional officers that you could not go to your job to work right yeah so he was asked did you tell him the sign up for medical stick or no he testified that he understood that signing up for medical was the way to see a doctor so medical needs aren't out on the weekend at the facility they're only put out on weekdays so monday morning was his first time to sign up to see a doctor he had the opportunity to do it he testified that he knows that's why you go see a doctor he did not he said tell me i can't make it to work very different than saying i'm need to see a doctor i also want to point out some language about this being so obviously severe on page a forty five again his deposition page one eighty nine this is how he described his symptoms and i don't know exactly what was going on i don't know if it's like a flu bug or whatever you know but i did tell him something is going on that sort of friday night you know later in the deposition he does say he thought he had a heart attack but this record is rife with references to flu generally speaking people who experienced the flu or lay in a p of of their own vomit there i don't know your honor i mean they seem a little more serious than just the flow it may have been however his own deposition testimony was that the doctor told him he thought it was the flu the nurses note when he saw the nurse at washington county the nurses notes says the patient is concerned he has the flu that and asked about that it deposition as you recall telling the nurse that you had the flu he didn't deny it he said i recall telling the nurse all of my symptoms which of course goes to his point that the nurse and doctor didn't know the symptoms he testified he told them all the symptoms so it may have been more severe perhaps looking at this but we got to look at it the standard for the correctional officers is that it needs to be so obvious that even a layperson would recognize the necessity for a doctor to tension and the mental state needs to be akin to criminal recklessness on his best day we are nowhere near that standard we have a nurse and a doctor with references to the flu so even if you know the facts and it was worse we have getting to that standard we just don't have assuming these facts well isn't what relevant what's relevant is what the officers were able to observe and what was reported to them by that's the plaintiff correct your honor i also want to point out his testimony that he was starting to feel better on monday when they got there this is a thirty one page thirteen of this deposition the vomiting you know subsided by you know probably the monday you know i quit throwing up but i had thrown up for two days  and that supported by what he in the doctor's note and the doctor reviewed and he said the same thing i was starting to feel better and he doesn't dispute any of that so we have i think several facts here are important so first they're not on duty for the whole weekend they don't get time to monday when his own testimony is he started to improve second he has the opportunity to sign up to see a doctor that monday morning he testified he knows how sick call works he doesn't do it doesn't ask anyone to do it contrary to what mr most using later isn't examined by the nurse and the doctor who found nothing serious and we talk about the effort to say it's you heard my discussion with mr macho on the four cases yes that sort of exonerate the your clients where a nurse or a professional is unable to diagnose what about his argument though that the distance occurred after and allows for the possibility of some recovery during that period of time do you think that distinguishes those cases i do not your honor announce i make two points on that point the principle in those cases is not that correctional officers are lying on a prior diagnosis that's a whole separate line of cases the principles that have trained health care professionals are aware of the symptoms and don't detect anything serious when you can't find the lake correctional officers were deliberately indifferent it is undisputed and we cited all here that he told the doctor and the nurse his full symptoms there's the doctor's note from the examination it was read to your point is that what was relied on was not just his condition when he was was interviewed by the doctors but he it was his report of his prior symptoms absolutely your honor and the doctor made the diagnosis so this is a thirty page ten and eleven of the deposition it's a question  back to the weekend he said the same thing about the nurse too and it's in the record that he told the nurse all of the symptoms was there ever any any report to anyone about numbness the numbness comes up on thursday october emergency and is immediately taken to the hospital where he diagnosed with one stroke at that time his expert comes in and says he thinks what happened friday night was also a stroke that was not diagnosed by the hospital the time nobody is saying that we had there been treatment within a few hours of the first stroke that could have been reversed but that even after that he remained highly susceptible and treatment still would've appropriate and timely medical care if provided at the onset of his initial stroke on september twenty sixth twenty fifteen so it's ambiguity about when the second stroke and prevented the specific conclusion says if provided at the onset it's his burden to put in verifying medical evidence that if the seals are taking him to the doctor monday it would have been prevented and you get to question three which was more explicit to whether it's preventable it says it further deteriorated with a second prendes likely preventable stroke occurred affecting which also it's just less than clear to me whether he's saying it has to be the treatment had to be within hours or any time before the second one would have helped that's a fair point your honor in that cuts against him it's his burden to put very far in medical evidence that shows if you've gotten to the doctor on monday if they've taken him there it would have been prevented and i don't read that  the fact that it was a day later or three days later means it doesn't matter so what he's trying to say is these correctional officers should have detected it when a nurse and doctor apprised of all the symptoms that he'd suffered throughout the weekend didn't detect anything serious and there's no evidence in the record in the argument that they were faulty at all how can we hold the correctional officers to a standard where they should have detected this when the perfectly professional examinations by the nurse and doctor did not detect so taken together your honor you've got the symptoms beginning to three days before the correctional officers are there some of it subsiding by the time they get there you have an opportunity to sign up to see the doctor on monday morning testified he knows it's how you get to see the doctor didn't ask didn't sign up for asking undersigned him up to see a doctor he sent examined by a nurse examined by a doctor they don't see anything serious records replete with references to the flu the doctor's talking to him about the flu the nurses notes as the patient brought up that he's concerned he has the flu all those facts together we don't get close to deliberate indifference by lay correctional officers here showing something kinda criminal recklessness and then on the last point the causation argument which i believe we've discussed nothing  not you i think we used up all your time we were bajan you pretty good but we'll give you a minute to reply to something very here thank you your honor first of all i would like to apologize for the court i did misquote with regard to the monday  court that we hear on any we're asking for reversal of a summary judgment these facts have to be taken in the light most favorable to mr roberts that includes the fact that symptoms being presented and seeing the doc a doctor seeing the person who is suffering the symptoms is different from somebody who's a non medical professional mr roberts who thinks he might have the flu later relating those symptoms a medical professional and to equate those two i believe is in effect taking those facts in the light most favorable to the defense second of all also eliminate can i ask you but i think you're addressing the s cases where exonerated by the by the medical professional situation and i think your argument was look there seeing him a day later when he may have recovered somewhat  i think the counterargument was no they're relying on on the client your client's report of the symptoms that occurred to him at the time probably in addition to how he appeared at the time so he in light of that are ninety still had some vomiting over the weekend i'll betcha had had he said to them and i had numbness on the left side of my face i'll betcha there would have been a different outcome from the medical professionals and all we can guess at is whether or not that question or that inquiry an answer would have been given on monday and we don't know the answer to that and that's what we need a jury to decide rather than making the assumption that no it would not happen on monday it would have happened just like it happened counsel for your presence and the arguments you've provided to the court it has been helpful we will take the case hundred vice meant when the decision in due course thank you both may be excused