all right our second case for this morning is raymond king against newbold and others properly entered and that this court has no appellate jurisdiction so i would like you did spend some time on that i'm quite concerned about it because we have said that fifty four b doesn't allow you always necessarily just pick off defended by defendant it really depends on whether you know a separable litigation package has been resolved in the district court and i'm having trouble anguishing between the kinds of arguments and the kinds of facts that will come up with doctors chapman and go on the street gilbert newbold on the one side and the people who are now before us it seems are very interconnected there may be cross liabilities and all told maybe this really ought to await a final judgment a real final judgment and  kidney but all you're answering that question would be would you be kind enough to also explain what the extreme hardship was that allowed for the grant of fifty for the t and whether in the end this in the towns to deliberate indifference to a serious medical need correct although each individual defendant as he has a separate claim with respect to each individual that happens all the time somebody will sue the nurse and they'll sue a doctor maybe the medical director of the facility they'll sue a dentist and if one of those people is provided adequate care and the other two just weren't really that involved with it you don't find liability against the ones who weren't involved you say that overall the institution gave the appropriate care well the institution is not the client  is not the defendant here it is not as serious it is certainly works for it is is an institutional defendant but with respect to each other party we have individuals doctors newbold and chapman who were at menard and then we have  when we were at the district court the only remaining after the judge ruled in favor of dr newbold and dismissed his case based on statute of limitations the state defendants were entirely out of the case they were no longer for to spitting in the proceedings when we were participating in pretrial activities like defendants were not attending right that may be true but this is this is all one course of conduct over the the period of several years and we have different defendants you know mentoring different forms of treatment at different times and they all have you know a different set of their own individual conduct that forms the basis of the claim against them individually but it's all the same course of conduct and this this is just the classic case of piecemeal appeals rather than one final judgment coming up to this court for a look at the whole case but and if this is permitted thirteen months after the summary judgment decision and then we'd be seeing these all the time well i think the summary judgment  decision it's a bit it's a bit deceiving because the summary judgment of the decision that maintain nubile in the case much later in fact you know i believe it was two months before trial dr newbold mood for judgment on the pleadings based on the summary a number of ways and that's true it is certainly the case certainly mr king has t m t that has been treated by numerous defendants or heads or not treated by numerous defendants and he has a claim with respect to each individual and although his condition is a chronic and ongoing condition he has individual claims with respect to each of those individual rights and nothing is more common than that in the prison litigation setting we have these claims constantly and there are many defendants who are sued because of course it's the nature of prison medical care the prisoners will be seen by many different medical professionals and they sometimes sue the guards as well and you know there's always multiple defendants in these cases and district court resolves you know claims against each of them in individual distinct orders but if we allowed  on fifty four b certificate or fix for the judgments in these cases we we'd be doing piecemeal appeals all the time and i might add that when we have these different defendants it's a rare case when the facts don't vary a bit from descended to descent into guard may have refused to give somebody medication or the medical director may have failed to find a referral to a specialist and not me that the facts are slightly different and maybe sometimes  fact favored a fifty four b appealed because the problem that the court saw and that the wexford defendants also saw with this is that if we proceeded with the district court case from the final judgment covering both the institution wexford and all of the individual defendants wouldn't we be in a position to decide first of all on the mo nel type theory what make to make a final judgment with respect to each of the defendants that had been dismissed i don't understand now once there's a final judgment everybody's just s'posed out maybe you've just missed some people maybe you've had a trial and for all i know found by ability with respect to some people you it is what it is but i believe it is different because it is summary judgment so if there would be two separate inquiries one would be the disposal of the determination as to whether or not the jury correctly adjudicated his claims with respect to chapman and and then there would be a separate issue as to whether or not the district court properly granted summary judgment in favor of doctors newbold sample right and nothing is more common than that as well when you have a suit against multiple defendants and some are some claims are resolved on summary judgment against some the case proceeds to trial against others and then the whole thing comes up after final judgement so  all the time that is true but in a clue game that is fundamentally about the subjective what is in the mind of the individual defendant i would pose is different so when we have to look at there's no question that objective le mr king's condition was serious then we have to look at the subjective component which is right that's with an argument that's just an argument on the merits of the summary judgment decision that's correct but it is so it was an injury to the finality of the decision with respect to each individual defendant because it's not because it is such a you you have to really get the facts and course of conduct while not identical overlap to a significant degree i do not dispute that they're innocent yes i think that is true although the facts i don't know if overlap is exactly how i would phrase it certainly the the fact of his condition and how  should have been treated is common across all defendants now how each individual whether they understood his condition and whether or not they were deliberately indifferent to the serious risk they that th r failure to treat would cause the harm is a different and separate set of facts with respect to each individual defendant and as i believe as mr harris argued at the district court he repeatedly or he has had similar cases where summary judgment is appealed after the trial and when it returns a brand new trial fast you have all of the witness being called again we would certainly call  shay all of the same witnesses would be called at the district court if we were to proceed there and then you know assuming that the summary judgment rulings are reversed we would then go back to the district court we would recall every witness that was virtually every witness that had been called previously and we would really litigate the issues with respect to each of those individuals did not want to say i would say that that in the jurisdictional issue that their failure to waive it or their failure to raise it at the time that appellant submitted their case statement is a waiver of the argument on appeal they you know instead of presenting their art jurisdictional argument at the outset instead they continued to file motions for an extension of time i believe there were six or seven motions for an extension of time filed by the state defendants in this court and and in no event did they ever raise the jurisdictional issue when they get finally get to brief g the case their principal argument which they had all along they i mean they argued to the district court was jurisdiction their jurisdictional argument now mr king who to this day suffers from extreme debilitating pain and in fact had surgery once again several months ago has been forced to wait this case has been going on for years and that conduct by the state to condone that sort of conduct where they they save the jurisdiction continue to file motions for extension of time to file their brief and then you know up to six to nine months later finally raise the jurisdictional issue i believe should not be condoned and i believe we cite cases that state that that talk criticize especially in the institutional defendants for exactly this kind of condo well right that a failure to raise the jurisdictional argument by motion early on in the case can be criticized but it doesn't absolve us of responsibility to consider whether jurisdiction is present that that's our responsibility so even if there was a failure to raise it as early as possible as should have been done by motion i do believe the fact that that wasn't done we still have an obligation i do believe there is no dispute here that the judgments against these individuals were final the case had been finally adjudicated with respect to each individual the court granted summary judgment favor so th really whether or not the court abused its discretion in granting the fifty four b so when you have a final judgment well there's a there's a broader issue than that and then i actually i'm going to ask you to if you have to take just a minute in the event we were persuaded by your jurisdictional argument to make whatever comment you want on the merits but that it's bigger than just abuse of discretion is just sex is saying it really goes to the question whether this sits within twelve ninety one fifty four b tries to carve out some situations that even though they seem non science all are actually final enough to fit within twelve ninety one so there is an appellate jurisdiction dimension to it is correct i certainly understand the court's concern and cases such as this where you have a patient with the serious chronic condition he is sitting here she is suing multiple defendants and there is summary judgment of adjudication with respect to one or more of those defendants i certainly can appreciate the concern of the port nevertheless i do not think it changes the fact that the the that's  the case was finally adjudicated with respect to each of those defendants and it really comes down to and they did and i believe this appellate court does have jurisdiction over these claims now we could have a dispute as to whether or not the  for in his claim and it has been denied him there is no and you know the district court has not resolved that specific motion for a plumber injunction in lieu of going to trial but trial is is delayed and  and apparently erroneous grant of it because of the time way mr king believes that he is unable to get a fair trial with just the defendants that are remaining that there are there are issues that will that are relevant and that a jury should hear everything together and the district court agreed with that as did the wexford defendants so i am currently in my re think our dispute with the district court's decision is that he both he fails to examine the totality of the care provided by the various defendants and in a very dismissive way without any kind of analysis  whatsoever the district court finds that to the extent and aptly provided some care it was sufficient under the to satisfy the requirements of the eighth amendment and we think that is contrary to peggy's we think that we think what was the serious risk of harm that was the police were aware of and and whether or not they disregarded that are so with that i will i will concede the you thank you very much well here first i believe from ms welch yes good morning your honour's i'm very well i'm here on behalf of the state defendants and obviously king about the jurisdictional notice of appeal but there's one very obvious chris decision the north of appeal was filed on the thirty first day there somewhere maine and claim and so on we've been instructed time and again by this court not to move to dismiss your honor that this sort of thing is that it is the kind of question that you have to look at the record you have to abuse of discretion and so on it's not the sort of clear cut it's the thirty first day question that would prompt i understand that it would be entertaining sometimes to ask for supplemental memos that have been struck it's right i mean i have to say i mean i've been practicing in this court for over twenty years i don't think i've ever had a motion granted it's always taken with the case and because it's not maybe that's your experience but great when they have when they have when they have some complexity that's what i'm saying when we have done many many jurisdictional memorandums and i say you know mailbox rule things of that nature and so on and those sorts of things where the facts are plain on the face the record those are those are entertained before briefing but but but a motion like this where you have to look at the record you have to see what the parties sad at the hearing and so on when you need all of that information before you that's the kind of motion that that i have always seen has been taken with the case but that doesn't excuse failing to flag the issue as whichever party spots the the thing so one of the cost of your not doing that is if one looks at the jurisdictional statement in the blue brief that was filed it's obviously not a motion that was taken with the case because he appellant had no idea this was coming  your brief they thought they have their theory that these are proper litigating units we can think about that we can discuss it but had you said we think this fails to satisfy will fifty four b the court either would have ordered supplemental mammals which again is i can tell you i but i'm i'm sure i must see sixty of these things a month because i review them with with a member of our staff as is chief judge taking it with the case and saying to the parties this is one of the issues we need you to brief in your briefs would have been more procedurally appropriate that that's true your honor and i apologize for that but certainly the plaintiff was on notice because we have checked in those separately in the district court the plaintiff brought this motion orally at a hearing we didn't even attend you know we weren't even supposed to attend the status hearing because it was about the trial that was coming up in two weeks and then the court instructed the plaintiffs counsel to bring us you know to let us know that this notion that you know that they were orally asking for this and we raised we raised every objection below that we were raising here that the order is and final there's there's an overlap the facts there's the bridge the recovery is the same and also that it's very untimely there was thirteen thirteen months is the court noted thirteen months sense since a summary judgment in order forty days since the twelve  order and the court even sat as by the way judge grosvenor asked about hardship the court even says you know that that there was no showing of hardship and it wasn't making a finding of hardship so so every issue that we're that we raised in the brief and the change in the jurisdictional challenge was raised below this is you know the plaintiff has not taken unawares by this yes i think you're right it would have been better practice i have to say i myself didn't realize that there had been all of these crimes because i didn't get the ask if we were to get over it is the one individual defendant that gives me the greatest concern is mitchell or  ibuprofen or whatever you know said just because you can say we did something isn't the end of the inquiry we tried to give examples there and it's not clear to me that summary judgment again if we just indulge s wasn't at the clinic during several periods of time when he was complaining that he what that she wasn't treating him she wasn't responding to the note she wasn't treating anybody she was only doing you know state bill has the intake the regional intake for everybody who comes into the department's custody and then they're sent you know they do x rays they do all of that stuff and make sure that every you know whatever someone's medical condition is coming in as a baseline and then they take you know and then they send the individual prisoner to because when he when when the plaintiff was transferred to states well for the evaluation for surgery that was dr goshes you know joe main he was the only one who could do the actual referrals he was the only one he was treating you know there were many many many many king talking about the use of these tongue depressor right tom de lay talking about you know different things we need to follow up that mean that bent her you know and  she there is this encounter so the facts aren't as clear in my mind as you may think about whether this is exclusively dr kostas problem here of course being one of the people we don't have the right  to open his mouth and so on as one of his as the attending surgeon who was one of the few people in the country who can do the surgery said this is good enough you can use these time depressors studio it and himself the surgeon  law she knew you know must have known i would think that other people were treating him during this period she only saw him she herself only saw him in i believe it was two thousand and ten a couple of times you physical therapy was not necessary and you know even if a particular doctor can't approve a particular treatment like seeing a specialist or ordering a tatts that doctor can certainly go to the was in two thousand and eight right so so she cannot be held responsible for something that her underlings might have john are not done i mean that's the responding at superior problem right that you can't director after dental after job was surgery takes it upon themselves to say well actually i'm better than the specialist i'm not going to do what the specialists no therapy i know i mean there's there's no evidence in the record device well it's it is true actually that dr edwards who was the president at the hospital one of the surgeons in fact i don't know that he went out and bought it but i think what he said was that the hospital would provide it and so the hospital apparently delayed in providing at and so we hates all of these to hospital delayed not not us i mean the hospital said it was going to provide us and we like the plaintiff were waiting for the hospital to provide what it said it was going to provide you know but again you know dr gauche i mean i don't mean to throw me under the bus but dr gauche was had taken over the plane i mean it was responsible for the plaintiff's treatment throughout i mean this everybody came to realize that this was a medical not a gentle problem that he had had you know after the surgery and we have like september ninth two thousand and eight dr edward snowden and again ordering physical therapy september twenty three this is what i'm thinking of page twelve of the opening brief dr edwards procured if there were five device himself and gave it to mr king on a follow up visit but that's too late because by september twenty ninth only days later mr king's joy of locks shut you know so so i was remembering correctly this this is a story of an utter failure to follow up me please the court i'm michael church and i'm here for what's recalled sources i'll try to be brief i think that the issue with regard to expert is fairly straightforward we know that there's no respondeat of superior viability this court has said that on multiple occasions results in a constitutional provision in and i think importantly the conduct is stomach in nature it's not an isolated event it's not individual to mr king so what do we do with the fact that this is a problem that seems to stretch across at least t institutions minority and state phil i think mr king's problems alleged to have stretched across to institutionalise not getting proper wexford provides the medical care both of those institutions right there is correct right and so he's he's shown more than just you know i showed up at the clinic at stake hill and i didn't get good treatment that i could certainly see as a one off but he's he's got some reason to make you think that it's a broader issue than one visit one clinic one day and this with mr king's cause of action against his individual done tests as individual physicians as individual physical therapists is all about that is long enough to survive the claims against belief or their subjective awareness of the liberty and difference of those cases in his individual case that's different than if there is a powerless even which is systemic which is more than just this point across the board which they are acting pursuant to as opposed to just being allegedly individually deliberately indifferent that's different because the if you dispose of that then you just pose of the subjective element of deliberate indifference with regard to a corporate  professional is only responsible for a prisoner's health at the very moment he or she sees them and treat them then isn't that a sufficient system i mean is that a is that i don't believe that it shows that the violation is systemic and what i was getting to how would you show that i still extensive discovery of wexford looking into the corporate policies looking a good job and you know obviously there's some slippage is but there's no deliberate policy that would lead to that that's theory one theory two is that  have a very bad record of treatment whatever and you could imagine so in theory number two wexford itself that's responsible i don't see how you resolve that without facts very very simply i those specs and again this is on summary judgment plaintiff had the ability to ask questions how many times have you done this in other cases how many times you do a giant physical therapy on the probably save course at this time no your honor i believe that there was sufficient time to conduct discovery when he had counsel to be able to say is this systemic if you've done this book or have you done this with other people who have my condition have you done this with other people who have my niece that's what you have to show because then th objective element of deliberate indifference of the corporate level it shows that they're aware of it and they're just regarding it otherwise what you have are individual treatment decisions and he has his day in court on those he's going to trial against doc to go he is going to trial and not doing anything to try to have continuity and knowledgeable staff or to get medical records  of course it's terribly difficult to demonstrate a policy or or or or or practice of your honor i believe you can i believe all you have to do is conduct discovery on that issue and to ask the question what have you done in other cases how many prisoners have had my condition how many prisoners have been sick in situations that are similarly situated so do you know i believe that the argument your honor just made reference to his first raised in the briefs there was judgment mr king did file a motion for a fifty four b certification but because mr king was represented by counsel the district court disregarded that motion and i think that that was part of the consideration of the district court in determining whether or not it was appropriate was this wasn't the the a fifty four p motion well he was he was filing it on his own behalf but he was seeking certification and he was seeking an appeal of that decision i thought it was a request for an extension of time  you know i believe i don't have to the actual document right in front of me but i believe that what the district court was relying on was a previous request for certification this is the january twenty third twenty fourteen filing didn't by him january twelfth again your honor i apologize i do not have that particular document right in front of me and i also was not involved in the case so i don't have it and from memory i can and the only thing that i was able to find is request for an extension of time i'm certainly happy to look for that and see if i can locate the document he just report referring to the second point on jurisdiction i would make is that even if the court finds that certification was not proper with respect shea you know your honour's referred the deposition of the tour bruno dr for toward renaud and certainly she said many things and one of the things seventy nine sixteen two eighty two she explicitly stated that she when she left which was two months after mr king surgery when she left the responsibilities for mr king's physical therapy was transferred to dr mitchell let's say also she specifically discussed this with dr because she was very concerned that mr king would quote unquote fall through the cracks so i think there is absolutely a factual dispute as to whether or not dr mitchell lish a was really responsible for physical therapy and whether she failed to provide i mean i think you have to wrap up now ok if i might say just one last thing with respect to certainly we believe that the that there was a policy or there was no specific policy in place and we think that is part of the problem that with chronic conditions such as this the way that the system is set up is that there is no inevitable responsibility for anyone to create a treatment plan to prevent deterioration of the individual's  court thank you thank you very much and thanks to the other counsel