the court i see essentially this isn't the end and appeal of the denial of qualified immunity to the nurses whose treatment emperors ultimately proved to fail can i ask you judge or rogers order though not exactly that language uses very close to that language we've learned since then that the eleventh circuit has since then decided to control of the caldwell coldwell decided that interlocutory review remains of vailable where the denial of summary judgment is based quote even in part on a disputed issue of law this court struggled some with that issue and how to apply it to it and one of the cases that's relevant for us burnett detailer judge wilson wrote the dissenting opinion larry thought this is a disputed issue a fact case or it's fact issues that dealing with it and would have voted not to decide the case at all here's what i think is why i'm arguing that this case fits within the control of the coldwell rubric in up mr stevenson those stats are basically for lack of a better term controlled by the testimony of the defendants its nurse its don't close your brain a craft and the medical records themselves crew says that that device wasn't even working while the nurses notes indicate that they in fact used that device and i think your your colleague on the other side of the aisle has flagged that as as a discovery of the need for the application of the the device comes into play this man is already in cardiac arrest and so even if there is a disputed fact about it it does not yes but for that not to come back to do to the original question in my view when you get to the end to the view the opinions of dr hader i'm sorry nurse haider and dr stern when they start taking and undisputed facts and applying them to the principle of deliberate indifference i would respectfully suggest that they moved from fact issues to consideration of at a minimum mixed questions of fact of law but i would say argue that whether or not those facts could yield deliberate a difference is a conclusion of lot which puts us in kind of the sweet spot created by the rather large escape clause created by control versus caldwell so i guess my concern when i originally attacked these briefs was was first with what judge roger wrote in her concluding paragraph which you have accurately paraphrased you know as saying that she's denying summary judgment because there is a genuine issue of material fact and then in your brief the way that you present the issue to us whether there was a whether there was sufficient evidence to support a permissible inference and then again in the statement regarding oral argument the issue which arises is whether there was sufficient evidence of the subjective intent of the nurses to support an inference that any of them was deliberately indifferent that just sounds to me like disputed issue of fact there's no question about it if we assume for a moment that the that there is jurisdiction to consider consider this an appellate issue at this stage and under the collateral order doctrine i would argue that the court went into the court made four fundamental errors that yield an entitlement to reversal in the entry summary judgment for the nurses the first one is a page nineteen of the court's summary judgment order wherein first of all curiously she left to the defendants the duty to establish their entitle men to qualified immunity from suit my understanding of the law is once it is established by individual persons that they are acting within the scope of their discretionary authority basically on the job doing what their job pays them to do in their act and their acting under color of state law the burden of proof shifts from the defendants to establish the entitlement to the plaintiff to establish that they're not entitle to qualified immunity and later case campbell besides also was cited by the eleventh circuit but three and a half years later which prohibits experts from testifying about subjective the intent requirements no however if you look at what his order does he literally says the neon light phrases the one that got made the neon light phrase it stood there like a neon light what he's actually inevitably inferentially saying is anybody would have known they should have known therefore they subjectively did know and that classically is a bridge too far and is unsupport record not only is it does it not establish a sufficient disputed issue of fact there is no fact of of any type that gets raised there dr stern's opinion is pretty strong now he says that these nurses that the treatment that they gave was grossly incompetent it was grossly inadequate medical care that this care resulted in his death and so when we look at the components of the liberal and difference the first component is there a subjective knowledge of a risk of serious harm that's what we said in our opinion and farrow versus west they disregard that risk by conduct that is more than mere negligence it seems as if dr stearns opinion fits fits clearly with and that i've heard and different standard i have grit what it doesn't allow him to do harder is make the third step the one that says these people are the worst nurses in the history of the world they had no idea what their obligations were under the circumstances and he can go there he can even describe it as being deliberately indifferent what he can't go to but did go to and with that which is a scenic one non well of proceeding further is that they he made the subject of inference themselves to basically say the non lawyers interpretation of what deliberate indifference is if i was a non lawyer i would describe deliberated for since being accidentally on purpose she has gone with the they subjectively concluded and made a conscious choice not to do that and that expert cannot do that without some way of going there and it can be done i don't think a three ways that it could be done so this case goes to the right the court is going to try to understand that if it goes to the jury if it goes to the jury qualified immunity is still an issue for the court and not the jury yes sir i will raise that a direct please the court last argument is any indication your honour's i'll address the jurisdictional question first if that's what you wish the johnson b jones case is abundantly clear that when the qualified immunity appeal focuses solely on whether there disputed issues of material fact instead of whether the law was clearly established that the court does not have jurisdiction even control of the caldwell which creates an enormous exception still doesn't swallow that up it's still ins in the control b caldwell opinion saying but if this is one of those cases where the facts turn so where there's where there's solely a factual dispute and that's what allows it to continue down the road that the court has no jurisdiction as the court correctly noted the judge's order points out many different material factual conflicts which go to the very heart of the issues in which can't be separated from any qualified immunity analysis that the court undertakes second the framework and the entire argument put forth by the defendant in both its initial appellant and both its initial brief and its reply brief focused only on three issues those three issues which the court can consider anything outside of is that first there was no sufficient evidence to prove and deliberate indifference second that it can't impart medical records collective knowledge on individual defendants and third that it can't consider the expert testimony all those go down to sufficiency of evidence questions and none of them turned on an analysis of whether the law was clearly established i don't actually recall any analysis in either of the briefs talking about whether the law was clearly established but at the same time i don't believe it matters either way even if this court does have jurisdiction it must affirm the lower court there are several reasons for this first and foremost you have to affirm the district court because the defendant in this matter clearly violated the constitution the eighth and fourteenth amendment rights mr stevenson that were clearly established at the time there are three cases that while not dealing with the exact same medical condition talk about the exact same kinds of delays in treatment of providing some care but completely ineffective care that's the miguel i got case that's the cars well case and that's the brown v johnson case in this case a thirty three year old father of two young boys died during a thirty day sentence at jail because it was evidence jacked event whereas the evidence of subjective intent well your honor the evidence of subjective intent is that the all of the defendants admitted that they knew the following ok i'm going to go through a list of symptoms here it is quite exhaustive they all admitted during the course of the depositions in this matter that they knew these were going on and they admitted each and every single one of them discreetly makes them know that there is a serious medical need ok first as he was diet had to buy diabetes with uncontrolled blood sugar ranging from four eleven all the way down to thirty eight we're tough and high rather than eat your time  that way i understand there's a whole list of symptoms that you can amass list assume you've listed continue ok so they have all of these they know that that is signaling to them  medical emergency a lay person as that as the clearly established law says that even if a layperson can understand that a person going through this litany of symptoms that this man was going through required medical attention that they darn well knew that medical attention was needed and i can assure you a man that is got nazia vomiting diarrhea has hives all over his body says he can't can't can't walk has pain all over his body has incredibly low blood sugars his blood pressure is abnormal and worsening i mean i can continue to want if you took a look at that person you would say there is no way that man is ok and there is no way that he doesn't need attention by a doctor and it's your argument that the nurses themselves have testified that they realized this amount that  he was in an emergency situation when questioned about whether hypoglycemia was a serious medical emergency does it require immediate medical attention they all answered yes when question about you know the blood pressure attack accordion all these things i said yes these are serious medical needs now when you go to the situation later on in the deposition of asking them well in this situation mr stevenson you know does this signal to you move no clearly it doesn't but i mean what defendant that's being sued for you know killing someone for lack of medical care is going to admit that subjectively i made a decision not to give this man medical care the the the point a in the deposition where they're admitting you know this is our duty we've got to know the medical records we've got  these conditions yes all these conditions are serious medical conditions and they require immediate medical attention and then later down the road saying that well we don't have to apply in this situation clearly you can tell that these people knew what they were supposed to be doing and they did not do it so  i'm guessing though that your opponent will take some issue during that argument you said they lots and these people lots and he says part of the error is that the district courts sort of lump these people together into a ball or don't we need to kind of parse them out one by one well the district court actually did parse them out one by one but then lump them back in together and there's all the reason in the world to lump them back together because they were asked in their depositions each of them discreetly as you can note in the record number one do you have a duty to know the medical records of the person yes we're sure to each and every one of them said that they also offered up in their deposition testimony that during their shift changes they share all of the care information from from phase one to  that in this shift this is how we do it we tell them from ation from the person from that shift to the next shift and then tatum the one that was on the phone hold time is being updated all along the way she knows exactly what's going on they know what's exactly going on they said that they have a duty to understand what continuity of care is from one shift to another so it is completely obviously within the purview of the district court to lump them together in this situation because they knew they knew and they admitted that they knew except for when you get to the direct questioning  depositions well didn't you know this well we didn't but they've told you earlier in the deposition that they know these things they were just playing a game for the purpose of avoiding liability and what about what about your opponent's contention that the experts testimony might have been fine so far as it went in step one and steps two but that in stepping in to say these individuals in that believed in fact intended thus and such that he's just really in the position respect to my opponent my opponent has waived any argument he has about the expert at this stage your honor according with the rules of civil procedure on summary judgment fifty sixty four allows affidavits number one to be submitted in support motion for summary judgment and then in two thousand and ten the federal rules of civil procedure were changed creating fifty sixty two which required that if you were going to object to something in support of a motion for summary judgment that you were to file a motion with the court notifying them of the objection as opposed to the old motion to strike the defendant in this case ms mr jolly number one did not take the experts deposition had every opportunity to do so number two he did not file any kind of motion to strike in the pre teen two thousand and ten way and number three he didn't file any kind of notice of objection and will just add a number fourth let's say a downer of motions even a further fourth discreet thing he did not file a doubt remember motion as a result this court shouldn't pay any credence to the argument made forth by the other side unless they can support it with the plain error standard or review there's been no argument in his brief about the plain error standard to review and that is one of the toughest things to overcome because he would have to show that it would cause a manifest injustice if this cas were allowed to go forward even with the expert issue set aside the state of the medical records themselves they provide some basis for a piquant subjective in town the i'm sorry i don't quite understand that question you're looking at the whole eighty and seven is it your contention that that provides a glimpse of a subjective in town that a nurse refers to using a device that upon reflection up her her horrendous negligence as well as probably the jail's negligence because they kept faulty equipment there i mean there's notes and that e m s report that they are not noted in anybody else's testimony that he was for that entire day period he was in the infirmary he had nazia vomiting and diarrhea my word that should have been included in one of the medical records for that entire day and it is not anywhere to be found they noted that one of the one huge discrepancy which i didn't understand the importance of until a doctor told me was that craft in her report that last morning at like four am after they've taken mr stevenson out of the jail and he's dead and she knows he's dead she writes that his vomit was pink colored well what we found out through the e m s report is it was coffee ground emesis is what they describe it to or that is some medical term that's known and what that indicates is that this man had dried blood in his in his vomit and that that is a sign of something very serious going on and if this man has been experiencing nazia vomiting and diarrhea and nursed clouser nurse craft and tatum who's been told all the information do not put that anywhere in the medical records i believe it shows a clear subjective intent to cover up the fact that i think an order is necessary concerning that remaining cross appeal the undisputed is the judge rogers had it right when she ruled she doesn't have it right as a result of what the supreme court does it has to be reversed as gently as possible but the case law changed the first one is judge newsome correctly pointed out a the fourth of my points that i wanted to make as to where judge rogers went wrong and that was that during the initial part of the summary judgment or she went line by line indifference each individual defendant must be judged separately and on the basis of what he or she knows another thing that i think is it is much of the case law and much of what you are talking about here has been under the assumption that the nurses did nothing in the face of the catalogue of symptoms being shown on one of the last two days but that's a mischaracterization allowed only with the benefit of hindsight would by the time she went home in her last shift the condition that she thought she was attacking she shots thought she'd gotten a one twenty eight blood sugar which is very close to normal she attacked it all day long to treatment regimen regimen regimens alternately unsuccessful but those behaviors don't logically allow for an inference of subjective intent nurse craft had never seen this guy except for one shift and when she made the subject of inference the oh moment immediately went into a recognition of the need to act differently  testimony was admissible the inferences that were drawn from it couldn't been predicted by me the inferences made by the court of subjective and different are not subject to would objection advance and i thank you for the court's courtesy has been appr thank you and the court will be