partial partial grants of a dobber motion filed by the finance limiting certain testimony by the plaintiffs expert stuart finkel because that testimony is based on sound scientific evidence you know the quick answer of why the court should reverse the lower court's decision is essential the court got it right the first time when they denied summary judgment and got it completely wrong the second time there are utter misstatements of fact in the recent grant of summary judgment by the court they reversed findings without explanation and the actions of the defendants in this case is not a typical case of to liberty difference this is a case of conscious and knowing disregard of a well known serious health risk when mr rymer was transferred to the cotton facility in jackson michigan it was for a very specific reason in two thousand and nine of september his doctor dr honey at the time found that he was advancing this liver disease he did and stage liver disease stage four or five from brosius it appeared that he was developing to the extent of cirrhosis at this point in time a surgical consul confirmed the primary concern was his liver issue and recommended a transfer to see a hepatologist and potentially and i'm college just because of this new mass that was discovered on his liver but the primary concern was his liver disease he arrived at cotton and nothing happened not for a week not for a month for two months and then in janet he gets there in late october two thousand and nine in january two thousand and ten his assigned physician dr stevenson who was advised in advance by dr pachauri of this expedited medical transfer made no arrangements to receive him and then in two thousand and ten of january when it's brought to his attention that mr reiner it's been sitting in itself for six weeks and hasn't even seen a doctor yet he still does nothing so come the following month he orders another doctor because he allegedly was too busy to go see mr reinhart instead and that was dr murray dr murray testified she likely didn't even have his medical while at the time mr rinehart grievance about that exact issue saying i've been sitting here a doctor finally comes to see me and they don't even know what's going on so mr rinehart still has nothing occurred to him as far as medical treatment none of the specialist referrals that were  him prior to his transfer are met and then a newspaper article comes in february documenting the lack of medical treatment and a c l u attorney who's one of the counsels in this case a little elizabeth alexander contacts the the michigan attorney general's office and flurries of e mails are spot then and only then does dr stevenson see mr ryan her for the first time so is that part of your complaint then the f during her during that period or is your complaint more focused on stevens saxon's later on it's both your honor and that's an excellent point because when mr ryan her first found this case in pro per that was the sole focus that for months the way the failure to st there's a century two different issues of deliberate indifference here the initial delay in treatment and the failure to see him and expedite his medical referrals and then everything that occurred after that date when nothing no further action was taken by dr stevenson when it was known he didn't receive these referrals and stage liver disease has very foreseeable well known complications that are separate medical conditions that every physician  and what happens is portal hypertension is caused because your liver is the compensating the blood pressure in your in your body is increasing it's being forced out through smaller veins  become swollen to the point of near explosion it's a deadly disease dr bronnie the one who transferred mr reiner recognized that right away shell so recognize that he did not have any and to scott the scoping to detect if these were to be in place with there was any various cities that were forming and as a result mr rinehart hit absolutely no treatment for that very well known high risk of harm that could have caused him death but he did ultimately get treatment for the various sees only on emergency basis you are yes when he was doubled over in pain in october of two thousand and ten that's the very first time he was i'm sorry june two thousand and ten that's the very first time he was ever sent i because these are going to likely reform if they're not closely monitored he also needs to be put on the supplemental bennett cation to help reduce the blood pressure but you're not appealing coing dr collins determination right because when he came back the rest but double that's that to me that's a different medical determination she said that i'm going to prescribe beta blockers and not refer him to a gastroenterologist right and that's part of your beef and yet you didn't e ok but cohen made that determination right and the case was pretty clear it's proper for other doctors to rely upon a medical determination made by a doctor well first of all we're not just another doctor we deal with a specialist who's an expert in the field and a disregard of the only known way to detect these various use and treat them is completely deliberately indifferent and dr stevenson based on all the testimony who had thought there was evidence that the beta blockers do work will be a blockers are a supplement to the treatment doctor and doctor finkel and all the medical literature i've provided to lower court and cited in the briefs support that that's a secondary treatment the scoping is what is needed beta blockers can't detect these viruses from forming and i think the court really needs to take notice that the hum which is i go back just to play because so cohen sees him is there any evidence in the record that stephenson was aware and red shock injures recommendation there is abundant evidence that he was made aware after mr rinehart's return that there were issues going on well you know there's that so i'm asking a different question i understand there's issues there were issues going on the entire time i think you've made that pretty clear was he aware of shocking there's recommendation that he see a gastroenterologist because you're shown stevenson not coalesce as we've just discussed we know cohen was aware of it kicks cohen made the medical determination to prescribe beta blockers rather than the gastroenterologist did stevenson know he had to have known your honor and here are some how to ask any whether he had to know given the evidence from which we can conclude he actually knew dr stevenson was his assigned physician and under farmer ignoring your job duties and responsibilities doesn't insulate you from deliberate indifference you can't just simply turn a blind eye so the answer to my question is there is no evidence not direct evidence that he read the report there's no testimony to that effect however he's being advised by nurses after mr rinehart's return that he's having these episodes of shortness of breath which is of course indication that he's not receiving the beta blocker medication well because he had asthma which is a relative contradiction indication to that but i think the court really needs to take note of the fact that the hum who's the highest m d o see a medical agent at that facility that's guarded unequivocally testified dr stevenson was assigned physician physicians at that facility were assigned based on the inmates number the inmate number range not only was that confirmed by the home but doctor for murray who repeatedly called dr stevenson her boss stated right in her report that this is dr stevenson's patient that i'm seeing here today because he ordered me to see him so how long was stevenson at the prison he had left the prison in august of two thousand and eleven two adelman a lot of troubling behaviors on his part this is the individual in utilization management for christ in the private company whose sole job is to serve as the gatekeeper when treating physicians want a specialist because there are no specialists in the prison they have to go to an outside facility mr dr adelman is the one who approved the expedited medical transfer for mr ryan hurt in the beginning and then in february of two thousand and ten when it's brought to sit tension through the series of e mails with the m d o c and other medical officials the mr writer never received any of these referrals he does nothing to follow up on that now later on as time goes on and dr ste gone dr edelman starts to become more and it lee involved in mr rinehart's care which is rather uncharacteristic he's almost stepping out of his role as a minister at this time in august of two thousand and eleven discontinues mr rinehart's pain medication a few days later on october twelfth he has a tele med conference with mr reinhardt were his severe cirrhosis his abdominal pain the distension all the conditions that indicated verities rupture he's rushed to the legions hospital again and this time the same doctor performs a second series of emergency banding and says this is it i cannot perform any more banding he needs to have this tips procedure and what it tips is is the court i'm sure is aware it's a surgical shunt that's placed in the liver to reroute the flow of blood and that does multiple things it eliminates portal hypertension which causes the viruses from forming and eliminates the formation of  testimony he can't even identify how the procedures performed let alone acknowledge that is a noninvasive generally an outpatient procedure after that procedure he suffered no more pleading correct as corrected did not suffer any more bleeding wasn't  but he got that he that that was prescribed for him no there was not there there was continuation of course of beta blockers intermittently but mr reiner couldn't tolerate them very well but he did continue to have the treatment that's what must they don't have to give the gold standard right if you give adequate medical treatment that's the standard it's not the gold standard i think the supreme court's been pretty clear about that yes your honor but there is there was no other way you can't see various fees from forming without side and the a sadie's are causing pain and he is in significant pain that is not being remedied by the pain medicine there is no question you're on it also all the medical literature supports it not only improve your quality prolong your life that based on his meld scores at the time mr ryan heard very well could have lived for another five years i see my time is up here thank you familiar with unlike many other deliberate indifference cases that this panel in this court has faced in the past this is a collection of discrete events throughout the course of this man's incarceration that have given rise to these various claims each claim must be addressed separately and dr stevenson and dr adelman cannot be held by curiously liable for the acts or missions of other doctors or medical providers and that of course is the carrots and case in the gibson case from this court your honors there are two events in particular that need to be analyzed under the obviousness test under blackmore those are the two occasions where mr reinhardt received isaf would receive treatment for  first time was in june of two thousand and ten he had no bleeding prior to this episode he had abdominal pain and generally speaking frankly he just didn't quite look right so we sent to the emergency room for an assessment and m r i revealed right her to a specialist after the scoping and banding procedure and the recommendation that he write her be sent to a specialist respectfully judge more of a believe it slightly out of order i did my understanding is that the  after june twenty of ten they're simply in this place there can be no vicarious liability if they wanted to sue dr cohen they had the ability to do that and they chose not to another stuck with that choice so you're saying that after june twenty ten there is no direct action or inaction by stevenson it's only vicarious supervisory liability yes as a comes to plaintiff's claims there's no direct involvement the only involvement he had the weight stevenson leaves in august of two thousand and ten right yes your honor but in theory to when i'm sorry to use the numbers it's easiest for me in theory to i thought their claim was is that steve insanity ignored shocking errors instructions i understand i went back and forth with them on cohen but their claim and i mean he answered me and said under farmer he can't just totally neglect doing his duty so their claim is stevenson as i understand it neglected doing his duties between june and august by not reviewing shocking or medical report and that's not seeing the gastric gastroenterologist referrals so that's different than the earlier recommendation correct your honor and and as you pointed out in your questioning and as was pointed out this actually answers to two parts of this of this case the deposition testimony of dr steve who at the time was the chief medical officer for the m d o c and as well as beth garden the what is called the health unit manager she's the head nurse both of their testimony shows that it is the n d o scene nurses who are sort of this intermediary between outside medical care or  the custody of the inmates and the cries in medical providers that if a patient needs to be seen they even if they are new to a facility the nurses conduct intake and the nurses make a determination about follow up appointments with either providers or to make sure the outside appointments that have already been arranged are rescheduled appropriately for the new location and the same thing goes towards the june two thousand and ten issue when he comes back from the facility the very first person to lay eyes on those documents the nursing staff from there it's referred to the provider who has been providing treatment to the patient of course there's evidence in the record that technically stephenson was the assigned provider for this individual but the evidence also shows  t cannot be refuted there is no question of fact that dr cohen dr murray dr mcguire and several other medical providers were providing day to day follow up care were implementing a treatment plan following a treatment plan dr cohen is the one that received those instructions review them and made a medical judgment determination of what should happen next so years asserting that there's no evidence that stevenson received the recommendation for a lack  honor and that that there is no that's no direct evidence and there's no reason to in her that stevenson would have received that even though stevenson was the doctor who versus the north ill psychiatric hospital and several cases like it where someone has a duty to fulfill a like a policy maker job or a policy writing job or receives a grievance and is there any evidence as to why any of the doctors who were involved did not send him to a specialist and have further scoping and you're speaking directly about between june two thousand and ten and october twent because what i'm trying to figure out is whether this is a situation where stevenson would be expected to be aware of what is going on and so conceivably i'm just making up something somebody like stevenson could say to the lower level doctors who i assume cohen and the others who are we don't want to spend any money don't send anybody to a specialist well two things are on a personal that that didn't happen and second of all something the plaintiffs are sorry that the reinhart's gloss hospital he had more abdominal pain and again to put it frankly he wasn't looking well he was sent out to the emergency room for an assessment a doctor there assessed him in the emergency room and referred him to the g i specialist d at allegiance hospital dr yousef had the same opportunity as dr saw finger to make recommendations to do e g d scoping to do other things he chose not to he made in medical determination and he like the other allegiance doctors are not subject to the suit that fact shows that when he needed follow up care he received it and they cannot show verifying medical evidence that any alleged delay or inadequacy costs harm and the simple fact of the matter is there is no evidence in the record that shows that earlier scoping earlier banding or some other series of events would have completely prevented the june two thousand and ten banding the october two thousand and eleven banding or his subsequent death can i ask you a different question which is on the first theory at third i guess they set berhane sends him there to see a specialist in a sense because she discovers th mass on the liver yes there are so did they have no obligation then to send him to specialist at that point this is another point in plaintiffs in the reinhart's briefing that glosses over what really happened in the record something that they cannot refute when the when the two thousand and nine c t scan revealed some sort of mass or blockage in the bile docs between mr rinehart's liver and his gall bladder there were lab tests that were done between september october and january and i've been there may actually been more than that that measured mr reinhold hurts alkaline phosphatase that lab measurement goes up and up and up as a back in that time period in late two thousand and two thousand and ten they believe he had what was called a class skin tumor this bile duct blockage later on they thought he had a hypo cellular mass on the actual liver body there's no doubt that he has liver disease correct or are there is no dispute that he had hepatitis that he failed he received interferon treatment he failed that treatment unfortunately and as this court is well aware from prior cases on hepatitis c you can't simply continue interferon indefinitely that that could seriously harm the patient it must be stopped if it's proven ineffective so what we've focused on stephenson and i think you know given your limited time we should address edelman as well edelman essentially fails to refer him for the tips procedure in there my understanding is that is the basic claim regarding at others you're your honor yes and i would only point out that the idea here is that dr softened or made a recommendation  indisputably in the evidence if he has additional bleeding he needs to be evaluated for attempts at the hospital is sort of like a game of telephone got the message slightly altered he said he needed to have a tips and got very upset with doctors without or edelman and dr steve about their medical judgment that disagreed with that recommendation at the end of the day what ended up happening was that dr steve and dr adelman had a conversation d that recommendation no your honor he passed away i believe in two thousand and thirteen after hip surgery complications from hip surgery oh even though you arguably needed the tips it made no differences that right arm i'm missing so that's correct around about the doubt that he had to say these where he had huge quantities of fluid removed your honor the record shows that on several different occasions mr rinehart had a site and that site is was drained with a parasite as i believe is how it's pronounced a procedure i believe cajun four hundred fifty milliliters were removed that is actually not a significant amount prior case law from the sixth circuit has identified situations where over three leaders were removed from other inmates admin in the past and in those situations this court has not found to lo cases that believe that's indeed it's several pro se cases where it's like orders but i believe that having to go to prison there's first of all hauser says hickey of the eastern district of kentucky that's chief judge caldwell's decision that's on published at two thousand and eleven u s district lexus sixteen twenty one seven that's a district court right then there's two from the federal appendix johnson versus million sixty federal appendix five forty eight two thousand and three and edmunds vs robin sixty seven federal appendix eight seventy two two thousand and three which i believe chief judge caldwell from the eastern district of kentucky referenced in her rather well thought out decision making on whether or not the disagreement with a recommendation interferon treatment would give rise to that can i go back so they made a determination what you're saying a medical determination that parents and i'm not going to write but training was better or was sufficient versus tips correct and that goes to the second half of addressing judge morris question that the tips procedure like so many things in the field of addressing hepatitis c have changed rapidly over the years unfortunately mr reinhardt died before the availability availability of her voting something that's totally changed the the landscape of hepatitis c treatment but back at that time during the relevant time period to procedure was new it was not as effective as it is today shortly after mr ron heard stuff medical literature that plaintiff submitted shows that the tips procedure became much more efficient effective and safer to implement but at that time it had something like a sixty percent effectiveness it may not work at all it's like the what was the draining paracentesis what was that effectiveness like but that's completely effective that if you if you have a society as that's the build up of fluid in the abdomen and if it strained it goes away it's as if you have an orthopedic knee injury and you have swelling a doctor may drain that swell the tips prevented the of societies from forming or you know the liquid from pooling or whatever and the the problem that pain that he had during this period would have been alleviated as opposed to saying well wait until you have enough pain and then we'll see if you have enough of sight of them love do that paracentesis and drain it judge moore two points or address or question first of all the record reflects that it various times throughout the course of mr rinehart's incarceration he was given a variety of pain medications from all tran to methadone to morphine so the the idea that he went without pain medication there  eliminated the record reflects that mr reinhardt may have still had a site he's may have still had a soft verities develop even with the tips procedure that decision making is reflect there that that fact is reflected in the decision thank you thank you cancer has never been the issue with mr ryan her and he made that very clear and grievances the fenice like to talk about the cancer issue because he didn't have cancer but that was never the concern it was always his and stage liver disease that was diagnosed and known about you agree the first referral was about cancer correct biber i know it was not your honor and if you look at the recommendation from your hand it was for a hepatologist and an oncologist referral doua hepatologist is a liver specialist and she indicates on the otitis wasn't the issue either the fact that he failed hepatitis treatment is just even more of a red signal that he needs to be monitored for the formation esophageal there sees because now his liver is compensating to the point of cirrhosis also contrary to what defense counsel represents if the court looks at all the medical literature that was cited to the lower court and also said in our briefs tip's was not new in two thousand and eleven tips was a well established procedure by the time that was gaining more and more popularity and was recognized to have incredibly good result and dr shafer sugar and dr finkel testified based on mr rinehart's medical records that he would have a very excellent chance ample issues of material fact here for trial as to both defendants we have some a court to reverse the decision as well as reverse the decision a doctor feels da promotion thank you thank you both for your argument the case will be submitted and when the clerk a