morning your owners christopher desmond on behalf of the estate of gerry roster the plaintiff in this matter judge moore i'd like to reserve three minutes minutes for a little time please your honour's as you're aware this case involves two different issues that we've presented on appeal the first issue relates to our allegations of deliberate indifference regarding the three individual defendants who were each medical providers within the second a county jail the second issue is essentially a mono claim which is a municipal liability claim despite the fact that there's not really a municipality involved in this case but it's the same analysis that applies to a medical provider within the context of a jail setting my preference is to begin by speaking  regarding the deliberate indifference issue with deliberate indifference is your where your honour's there's two separate components of a deliberate indifference claim the first is an objective component and the second is a subjective come now in the present case the only component that's really at issue is that second component the subjective component defendants didn't didn't really dispute the existence of the objective component below nor did the trial court rule on the existence of the objective component but just very quickly the objective component requires showing that there's a sufficiently serious medical need that the plaintiff is suffering or in need of in this case there's really not much of a dispute considering that  and that's not the question what to make liability that's so that's a little bit of a overlap between the objective in the subjective components the subjective component speaks to whether or not these particular defendants had the facts that they needed to make the inference that there was a need whether or not they actually drew that inference and whether they then disregarded that as we know there's a need right so exactly so there is a need exhibited by the fact that unfortunately he the influence of alcohol at the time of his arrest so his first problems start when sometime around may ninth may ninth in the evening of may ninth approximately eight o'clock pm so he's already been in jail or under incarceration for more than two days correct slightly less than two days was there any evidence from your expert or otherwise as to when alcohol withdrawal symptoms manifests itself i don't believe there was your honor and that's because the position of our experts was that the symptoms that he was exhibiting didn't have anything to do with alcohol withdrawal their focus became when evidence of sepsis because he was septic at the time of the events at issue in this case when those symptoms would exhibit themselves and that they would be distinguishable from the other theories that apparently were going on around the deal jailhouse correct that that this it was on alcohol withdrawal you know correct that the symptoms of what he was actually suffering from were at least somewhat distinguishable from the symptoms of alcohol withdrawal which is what these defendants concluded for that is in regard in this is what i think judge cook was intimating at that evidence regarding the abdominal pain or was suffering from and this was the first symptom that he complained of at approximately eight o'clock p made an alcohol withdrawal no alcohol no the abdominal pain is not but the defendant's treated that they didn't ignore it but what did they gave you would argue that they essentially ignored it your honor for all intents and purposes i thought that some medication was given to help address it and it may not have been the right thing but he was given something for an antacid i thought correct he was provided with an antacid the  indicates that you don't need to show that you were literally ignored as a plaintiff or as an inmate your medical needs in order to satisfy the subjective component i believe our brief cites to the westlake case for that proposition for the moore i believe you are on the panel of right but the concern is what is there to show that there was a subjective understanding that he had a more serious problem when the gomez which i believe the trial court erroneous lee concluded that we were sol we relying on officer gomez's testimony that's not the case it's certainly a portion of our argument and that's because officer gomez testified and he used  specific word that it was obvious that jerry roster needed more medical care than what he was receiving and he further testified that it appeared that jerry roster was really sick during the the events at issue now lie i believe officer gomez's interaction with gerry roster would have began at the time that he was moved into the observation cell which would have been in the early morning hours of may the tenth at approximately two o'clock between two o'clock am and three o'clock drinking from the toilet that's approximately one o'clock am between one o'clock and two am is when we have four hours later yes correct and in the mean time prior to him drinking from the toilet and and  again this is the record shows this is a communal cell there's approximately fifteen other inmates in the cell with him using the toilet before he's eating there discarded food off of the floor and prior to that he was vomiting which nurse calmly was aware of now our expert witnesses we have three expert witnesses that it involved in this case we have two physicians we have dr golden soon who is our our jail physician expert he's testified that the abdominal pain abdominal pain that jerry roster was suffering from required calmly to refer him to a doctor when khan is commonly told about the drinking from the toilet in eating food that's on the floor yes your honor but then she had him to the observation and hearing that right correct after hearing that he was drinking from the toilet not after hearing about the discarded food but after hearing that he was drinking from the toilet at that point she can call you not yet at that point she concluded and she's got some interesting testimony regarding that issue where she indicates that as a medical professional you can't rely on the observations of a third party so she says that i didn't take further action right away because these reports about his bizarre behavior are coming from guards and are coming from inmates but i didn't actually see them so when i heard when i heard he was drinking from the toilet i decided to move him to an observation cell so i could closely see him what's now what's his blood pressure when you're in i'm not sure what it is when he was admitted i know it was one hundred i don't believe that's when he was admitted but that is when apparently for them it was not as your doctors say that some indication of the stomach ulcer ration i'm going to be frank i'm not sure if there's a connection i think the record will show whether there was or not i don't know if our experts testified regarding the blood pressure their focus was more regarding the abdominal pain and the mental status change really gets the right correct and it's somewhat me have miscalculated i believe the testimony and i think this was dr new tolly the physician and i could be wrong on that pronunciation i apologize but i believe he testified that had jerry roster had one point higher he would have been immediately taken to a away from the tremors and the shakes that people experience the anxiety that they experience during alcohol withdrawals judge when regarding your question about his initial scoring it's interesting that you know i don't know how the scoring accounts for this but this one of the questions that they are drug tests ask is whether or not they're disoriented regarding the date and they ask you to score the individual if they're disoriented by two days or more he was disoriented by i believe eight years this was two thousand and seven and he was insisting it was in one thousand nine hundred nine now that's consistent with the mental status change that he had been exhibiting throughout which our nursing expert nurse tennyson has said require dr and no tolling to be involved  she indicated that that registered medical assistant calmly had a duty to contact dr in a totally right when she observed the initial evidence of mental status change which was the drinking out of the toilet the eating the discarded food that evidence of course carries forward to nurse mars and hersman chaka because they were aware and they were informed of all of the behaviors that had been you know taking place within gerry roust or sell your honour's i see that my time is up  so i'm going to reserve the rest of my time for rebuttal unless you have further questioning at this point thank you thank you  a series of questions from judge when i'd like to make some corrections in the factual record at the time of jury roadsters arrest the arresting officer testified he was not falling down drunk the record then reflects that this officer makes the distinction between falling down drunk and otherwise intoxicated when he came under the nurse's care did they allow the initial assessment that he didn't earlier in fact i think less than two weeks and he was in the game for history at that time and of course this would have been available to the medical staff that he was intoxicated and drank at least one to two beers a day at the testified that this question is typically asked of the individual are you intoxicated we don't know what the individual who did the booking a valuation asked but the box is marked intoxicated secondly the only individual that was asked the following question and that information is available to the defendant nursing staff yes the only individual in this case that was asked when does alcohol hours later so two days before symptoms is not inconsistent in fact valerie tennyson point of sexpert admitted it was not only reasonable to observe kind of in the mid range may or may not be it's not a diagnostic test to see walk is an evaluation of how severe the tap the symptoms are it isn't a yes no this is alcohol withdrawal or not which is why lorem are mars who saw this individual after calmly and after he had been put me abzar patient room was given one critical piece of information that was calmly was not aware of and that was that mr roster he had a known history of drinking from me that i thought the record in that it's just some common of a correctional officer that he no knew he did some drinking well when you have a patient who you don't know me is there any did they know that he had gone through detox and had problems before now when in fact the saddest part of this case was a different nation somebody said that he had a couple beers on occasion i'm sorry a but you made reference to the fact that he was known to have had a couple beers you know that was not the common  a couple beers was taken from the booking form from approximately two weeks prior to this admission so that's the level of alcohol intoxication that would support a withdraw a couple beers no sir that's not what this says this is a history given by a deputy to mars that he was a known drinker you have alcohol withdrawal symptoms no drinker that runs the whole gamut doesn't that it does but it's a piece of information that markets didn't happen so that is why she also got on the phone and called dr natale now you're talking about mars i talked to her she gave me the results of the c walk and she gave me the pertinent positives and other information dr natale ordered the alcohol withdraw protocol and that includes thiamine and liberated and he remained in the observation south which i think you've seen the descriptions in the briefs it's glassed in so that second night unfortunately after which mr astor died and just in terms of the overall you know you know at the time he goes in that  when it's arrested he's not showing any signs of either alcohol withdrawal or showing signs of other illness i don't agree with that statement because the booking office search checked the box but some point in the analysis we also take into it in deciding whether or not these defendants had facts from which they could draw obvious an inference about the seriousness of this problem and they drew it at some point we have to also talk about the increase of the good to see been asking him how do you feel and his i thought he he brushed them off repeatedly about getting more attention not a doctor's care but are you ok i'm fine that kind of thing he didn't did in fact the statement that he was asking for medical care is incorrect he never did in fact the only demand we know he made is kicking the door and demanding to all of these are there are these features of the factual background yes important to the legal test about drawing the inference i believe so because of the underlying and i'm out of time unfortunately may finish your answer thank you because of the underlying test for the subjective component requires more th misdiagnosis which is what is going on in this case it requires more than gross negligence it rises to a higher level which i don't believe was the case here thank you very much thank you and i apologize if it's spent all my time asking answering questions rather than making a cogent argument we appreciate your answer and questions vance appearing on behalf of defendant kathleen calmly only at page twenty eight of my brief i'm not going to recite it but i point out all the affirmative steps miss conley took in treating and caring for mr rochester i would no i don't think it's been brought up yet that at the time she performed her assessment in the medical unit of the jail she did her physical examination she asked mr roster for any significant medical history in was given none and that is very important because he did have a have a history but at the time no one in the jail knew of that fact that could be kelly for by the state of his distress that he couldn't offer information like it could be but that thinks it's eight years earlier he may not be able to say all my medical history is  the that's the eight years comment was a separate comment during a c well which burst performed i believe on me ten the following day may ninth at eight twenty pm was that was the time of the initial assessment  but i believe that goes to whether or not miss cali was negligent and is not evidence of a deliberate indifference so that the may ninth at eight twenty the initial assessment that's when he's complaining of abdominal pain correct ok was there any effort to get his medical history at any earlier time that is the first time that he made a complaint of abdominal pain and miss conley responded immediately took the call from the deputy and thereafter they went to the medical unit she performed her physical assessment also attempted to take an oral history from mr roster at that point in time based upon a both her physical exam and her actually mr auster she believed he had gas and diarrhea he complained of some loose stool and she provided him with medication advised him to land of medication meaning it's right yes over the counter medication but the being specific it was it was stumps correct and instructed him to lay on his left side to hope to help alleviate relieve discomfort it's also if i could just interrupt you for a second assistant is this more or less training than an lpn i believe it is a little less than an lpn but i'd not particularly certain but again i think any argument that  secure cara liability claims they they indicate that this kindly was making decisions outside of her ability was inexperienced and confused that's all medical she did not believe there was any reason that connally would have known or should have known of rosters medical condition specifically the bleeding also she also testified that miss cali was actually doing too much she thought to the toilet drinking yes and there were two separate two separate reports if i believe one was eating food off the floor the next was the toilet drinking once she got the second  on the food on the floor did she go observe and then yes she went three separate times to observe him and each time she did not see anything personally herself one of the time she went to check on him she asked if he had any was still in pain or discomfort he did not respond and she testified she took that to mean that the pain had resolved but on the report of  the drinking from the toilet she then decided that she should be sent to the observation unit so he could be observed every fifteen minutes to determine if you did in fact have some sort of mental status change but you  any of his by the measurements of your blood pressure or other you know testing that typically she did not at the time she responded to the complaints of eating off the floor or drinking molly was in there she did it was not her responsibility to observe him an obstacle to it at all after she put them in observation she did not she reported at the end of her shift to nurse mars what about seven hours later i think five hours later was at the end of her shift she doesn't go and take a look at him after she's put him in the know the way the observation unit is that it's in front of the deputy desk a big window there in the deputies are to observe and the checks every fifteen minutes they walk by and sign observe and then sign a sheet if every if everything appears to be but there was also a privacy screen in the observational cell is that right for some reason i recall reading that there was a privacy screen and that the deceased and it was actually behind the privacy screen from time to time well to prevent the deputies from seeing what was happening if that's the case there is not a privacy screen there is a i would say want one foot block concrete half a wall by the toilet but the do you know if the deputies were supposed to observe them every fifteen minutes i don't know but one of the problems in this case was th to punish there's really no evidence of this this the claims against mrs connally really are dressed up medical malpractise claims which are an attempt to claim that it's deliberate indifference and i just don't think the evidence is there in this case thank you thank you just a couple of quick points judge cook to go to one of the points that you had hit on regarding jury rosters denials of any continuing abdominal pain as nurse tennyson testified in this case at the point that he's making those denials and indeed from the very point that he's drinking out of the toilet in eating off the floor he's already septic his blood is infected because of his bleeding also in his brain isn't functioning correctly anymore but obviously you know better than we know that that's the issue is the perception of the nurses indeed in but since they don't know heath the question is whether they knew it was septic or should have known right correct correct but it's interesting to me your honor that i'm  based on their arguments and based on their testimony what evidence would be enough because when it comes to whether he's continuing to experience stomach pains they say that because he said no they believed him yet when he said no i'm not suffering from alcohol withdrawals no i don't have a drinking problem no i'm not intoxicated they didn't believe that they chose to believe some hearsay statement inside of the jail cell you know an off the cuff remark that oh yeah that guy's got a drinking problem so it seems very inconsistent in terms of when they want to believe jerry roasters words and when they don't want to believe jerry roster's words so i think that at a minimum your honor you know we see this in our brief as well this is an instance where we moved for summary judgment and said that no jury concluded could conclude that they did not know we're simply saying that based on circumstantial evidence here based on the expert testimony based on what they observed based on what officer testified a reasonable jury could conclude that directly observing jerry roster an individual would conclude that something is going on that requires more than tom's and there are symptoms here that aren't consistent with alcohol withdrawal judge when you had asked whether or not conley had observed jerry roaster after she moved him to the observation cell and counsel acknowledged that she did not what's interesting about that is calmly stated that the very reason for moving him is because she couldn't accept the word of third parties she couldn't accept that other people said hey this guy is acting strangely she said i needed to see it for myself so i moved him to this observation  yet it's so important that she sees it herself that she never even checks in on him as the panel indicated there was a partition inside the cell the jury roster was permitted to be to allow toilet privacy is it really your hon r i'm not it's a half wall i'm not sure whether or not it's situated next to the toilet or not guard with there's half a persons present is observable if it's only a half less well if they're above if they're above it the testimony was that he was laying on the floor concealed by it and you know if it is i see my time is up just to quickly address one more issue related to that question if it is indeed situated next to the toilet and if he's spending the majority of his time in that observation cell in that area it would speak further to the idea that maybe he's continuing to have abdominal issues that necessitate follow up so your honour's unless you have any other questions i see my time is up thank you very much for your time today in your consideration thank you thank you for your argument would be submitted with he