district of nevada the reno division knowing that the court is familiar with the facts of this case i would like to turn on why the court erred in denying our motion in limine he as the pla  february eighteenth two thousand and fifteen banking of the shoe knowing that the court is familiar with the facts and certainly the issues of the surgery did not take place until after the briefing in the case i want to focus on why the court erred in denying our motion lemony dealing with the fact that mr john oliver snow is a death row inmate we brought the motion on because we knew of the volatile nature of the fact that although that we at the time of trial were going to trial on injunctive relief or at least we thought we were and also on the damage component of what if it occurred as a result of not receiving the surgery over a long period of time as a surgeon taken place i'm sorry has a surgery taken place yes or it took place on the left hip on january twenty ninth of two thousand and fourteen and when did he when did he say it's ok for the operation he had to approve it first when did he do that but he did that during the time of trial there was an issue and then we continued after the time of trial to try and get him the surgery it languished for a long period of time the left of was done at one point in time that he was moved back easily state prisons on the east end of nevada this is this is is not in the record i t it is not your honor it was done about a year afterwards we brought on a motion for an order to show cause it was denied because the case was of course i see it's not before us but at least we know he's now been operated on he has been operated on in terms of the injunction though your honor there's still residual issues in terms of the collateral in injuries because he didn't receive any type of physical therapy which was normally but at the time of the trial i'm sor to me at the time of trial it was our belief that if we could go to trial and the injunction because it had not been done it was still a factual question of whether it was a heart problem that was preventing him from getting the surgery whether it was obesity because he was heavy or whether the state of nevada department of corrections simply did not want to give him the surgery based upon a long history of the utilization review committee family doctors for the most part overriding the experts the orthopedic surgeons who he had been referred to at least two occasions as well as other doctors within the system stating that a chronic injury such as bilateral arthritic condition in the hips could come i understand that you're going we outside the record  that's how much we have on that so far right breath and then and we know the operation has taken place correct what's left of what's left is dealing with the the aftermath of it but he didn't get a fair trial and the court took umbrage because the court of appeals on the first occasion reversed this summary judgment and said that what i was just talking about and that is in the record your honor  through over this long period of time in addition to the long period of time even after the trial in this matter account of one of the essays on who's going to judge good just because i just think you may be talking past each other the issue on appeal that's left isn't the incentive relief question but i want you focus on types of i meant little let me tell you the concern i have as i understand it before the trial there were a number of motions back and forth and tell me if i have this right and i'm not sure i do my impression is that it was mr snow's theory that the department of corrections denies these kinds of operations to people who are and are on death row is that was that his  if i understand correctly then let's see we have judge judge jones said i'm not going to let you bring up what they do to other death row inmates but the fact that your on death row yourself is is in play is the really critical questions and our understanding from the record is there were several motions in limine and yes and i understand that your client had one theory going into trial but the prior to trial didn't judge jones ruled that that ever other evidence about other prisoners on death row or not was not going to come in and he did ok that point counsel at that point going into trial that's what judge silverman's trying to get at that's what i'm trying to get out at that point why was your client status as a death row inmate that's the whole point well the judge said it was background and he said it was context to what is your response to that please it isn't because what he wanted to do was and what he told counsel is you can't say that a death row inmate isn't going to get any money it's just going to go to his attorney and his heirs and that was the reason that i believe the court ruled as it did because no jury is going to give a death row inmate money damages if they know that he is on death row and the issue then became why did the court as instructed by the circuit united states versus curtain which was directly to the same district court judge judge wallace was on that panel and told him that you have to go through an analysis to determine whether in fact it's more prejudicial than probative he did not do that instead he substituted a test that he believed was the complete story i would submit to your honor that based upon that that is the error in the case that he offered to give a limiting instruction he did offer to give a limited instruction but the li instruction that was given which the attorney general has talked about throughout their brief deals with a general limited instruction in the office as usual for their instruction that you folks decline it did you like the rationale for that because of the fact that you can't unring a bell once you have it out there and once the death row he doesn't have no or no instruction in a limiting instruction the instruction that was given was the general instruction it also with was given i'm talking about the one that he offered you declined what the rationale for declining the rationale was not to put further impulses on upon the finding whether in fact an individual can receive money damages i don't component showing that was a pattern of packer actors of not only the director of medicine but the warden and the system warden as well as all the other people the cavanagh case which was a companion case dealt with the carrying out in that instance a death sentence he also served as guardian he did the same thing in terms of mr snow they then became his guardian when he went to get his treatment for his cardiac problems at th carson so based upon those we believe the systemic problems could be brought in with the utilization probably that was that when you stand with the american civil liberty union for a case against the conditions but why do you get all of that to show deliberate indifference don't you have to show deliver nudists to this defendant we did we did show it to him but it also bolsters and shows and we had the testimony of a whistleblower a lowering memory here if if there's any tendency to prove a fact and assume it had miscible judge jones didn't let them go into anything that they wanted to go into showing that this so called pattern and practice it strikes me that that is a problem that needs to be looked at bushehr response to his argument it does have a tendency to prove that there was deliberate indifference if there's been deliberate indifference to all other prisoners for the last forty years under the supervision of the current people or whatever the facts may be what's your response thank you your honor mr potter brought up the cavanagh case you brought up the  case he said that they wanted to show a pattern of press practice and custom that certain inmates were treated certain way or did not receive treatment however when it came to actually establishing the evidence that's necessary under mon el to be able to present to a jury policy and practice type of arguments it will fully fail mr snow was unable to show that there would be any significant evidence that would not be tainted by one reason or another and the cavanaugh case and mr potter knows this because he was involved in it and to some extent isn't a perfect example of why that kind of evidence should not have come out and let me also mention before hand the riker case was alternately settled there was not a consent decree it was found that at worst on a red light yellow light green light basis the nevada department of corrections was in the yellow in a few places we retained the number one expert in penal medical treatment to advise us we ended up settling where for three years there would be supervision we would do whatever the supervising doctors told us and that was it some payment was made to the a c l u for their attorney's fees and nothing else no consent decree in and was refusing to eat no one can convince him to act or say or do differently a lot of different things were tried with mr cavanaugh in order to get him to take his medicines in order to get him to start eating and be better tragically he ended up dying and that case was settled as well but that was so off the pale so unique such an outlier of a case and as judge jones says i don't want to parade of death row inmates coming into my court room you know in the reasons i think are pretty obvious forget the security everyone has a tale everyone has of an argument everyone has a bone but castle then said i'm not going to parade them in i' experts i'm going to use that are going to read the records and give testimony well he had an opportunity to bring experts in he had an opportunity to have whatever testimony he wanted presented as to jon snow and as i think is your honor pointed out during your questioning of my esteemed colleague and opponent this is a case about deliberate indifference as to john oliver snow if it's only a case about deliberate indifference as to this one defendant and it was after judge jones ruled that that's what it was going to be why was his status as a death row inmate relevant why did it make any fact that issue more or less likely to be true counsel judge jones explained and you used the correct phraseology your honor it was necessary for context what context well death row inmates are segregated from the rest of the inmate population so are other some other inmates who are in segregation you don't need to know that they're on death row to know that they're segregated right but also that creates some unique issues and complications at times for the provision of medical care and before you say years of my god he's giving his case away he's pointing out that there is some kind of problem with giving time it is a waiting for a relevant answer the answer is it was for context but when you read what he what is that that's what the judge said for context and i think he said background i he seventy one years old the jury would not hear that one reason that he was going to have a surgery was because when he got out of prison he wanted to go snowboarding or whatever a jury would be entitled to know that this person is never getting out of prison and that may or not i'm not sure they would be but even if they would be that's a different having a sentence of many years or even life imprisonment is it is different than death row and i'm not saying that you convince me that they're entitled to know the length of  sentence but they even if they're going to hear these been intense one nine hundred eighty they would know he'd been a very long period of time so what well your honor all i can say is that the judge agreed that there would be context we didn't ask you what do you mean by context but we have an inmate is going to be coming into the court room and he's been incarcerated for a long period of time and the judge felt it would be appropriate to let the members of the jury know what his status was the real question i think is let's assume for some reason that that was not the most correct a decision the judge jones could have made the issue is was it reversible error was it so prejudicial that it affected the outcome of the case i mean that's really the standard review that we have here and let's also remember that had they won their motions they would have been talking about death row throughout the entire case they didn't win counsel and they knew them before trial so before trial everybody knew that that their theory wasn't go wasn't going to but the trial was about the child was going to be about as you said just the care that was it was not provided to mr snow and they recognized that the prejudicial value was so miniscule that they mentioned the word death row during the trial more than we did counsel thing you know that the response they've made in their briefing is that they knew it was coming in because you know one of the pretrial ruling on that that the state was going to be allowed to introduce it and he wasn't going to be able to keep it out so he simply in engaged in a very common trial tactic one of the bad news to come out from his side of the podium first that that that's not unusual well you're right in the opening statement but i mean and we all know this is trial lawyers you know you prefer bad news come out of your mouth rather than your opponent's mouth but you keep bringing it up time and again day to day three day forty five of the trial it shows something else that there was not a fear of bringing death row information before the jury in terms of getting him to judge jones as mine and why he thought that it was all right to let the jury know about that i'm not sure he said context we were fine with that the question is was it prejudicial did it significantly affect the outcome of the trial and that was going to be my opening comments your honor now we had we had we had a jury trial the system worked after i stood before  different panel and had one of the most difficult oral arguments of my forty two year career judge betty fletcher wrote an opinion that i still get hate mail and nasty phone calls from from other dads in other states and you know what can i do so we went to trial and as mr potter pointed out they had a massive variety of witnesses that testified they had the rain memory and they had boy a lemon who told the jury all these horrible things that they was centrally wanted to bring in about policy and custom and practice at the prison the jury heard all of that they heard all of the nasty stuff really that they would have wanted to have the jury hear under a policy and practice theory under the case my now the jury didn't buy it that's how the system works that's how it is supposed to happen the constraints and the instructions from the ninth circuit published opinion were followed fully in this case all of the theories all of the arguments all of the comments about a jury could find a three reasonable inference that one thing or another occurred that prompted those were all litigated now in terms of the four o three the rule for three and this kind of goes to what you were saying as well your honor there were no offers a proof you know at the very least make a record so that this court can decide whether or not an injustice had been done of a group of what of what they would have hoped that the policy and practice and custom evidence would have been and where it would have gone at what it would have shown and how  bore on the issues that were raised by the published opinion from this court they didn't do that just ask one of the members of this panel pointed out they were given an invitation judge jones express come up with a curative instruction or protective instruction for all these things which are upset about it anymore bother they didn't even propose any it's sort of like asking for an instruction that says don't think about the eight hundred pound gorilla don't think about the fact that he's on death row how in the world would you do that his argument the briefings you can't unring the bell what is your response please you cannot unring a bell and as experience jurists you know that you can give the instruction but there's only so much you can do but a good judge is able to convince a jury i believe that these instructions mean something and that when we ask you to follow your duty and you took an oath your duty includes to the extent humanly possible put what i said you cannot consider it out of your mind i mean why do we bother if it has no effect at all we bother because we know that most jurors take their jobs very seriously curative instruction course we'll never know because we never got to propose one from the other side consequence and it's why i think you're right there we recognise that there's problems with instructions and with curative instruction to something many cases we say gee it's the best we can do under the circumstances much easier to come to that conclusion when there is something some relevance some probative value to weigh against the prejudicial nature of the of the evidence that's why i struggle to find some for  line relevance here again i think the context is somewhat important because death row inmates are different they have a different mindset they have a feeling of segregation in the transcript in the excerpts of record we find evidence where mr snow was offered certain accommodations that are very rare for death row inmates for example he was offered a lower bunk for example he was offered to be placed closer to the nurses station very unusual for it that may not ring or have much resonance with the juror and that's they realized this guy is the in the most maximum secure portion of the prison so it does resonate it does have relevance well and he refused those accommodations which then bolstered our argument that he was not nearly in as much discomfort as he claimed to be when you understand that something other inmates that are in medium or or close unclosed security these sort of things are taken for granted but any accommodation you get in death row is very special so maybe you think i'm stretching here i really don't i think that would be the relevance the fact that death row inmates are unique and to give them some idea of he's not just a prisoner he's a prisoner that's being placed and watched under maximum security if the case went back what would be what would be left to try it would he get a new trial in this and then mr potter said there's still injunctive issues to consider do you get a feel for what would still be in play if the case goes back to trial i think they'll probably retire because they're here's what's left he's got his surgery he was offered it first in two thousand and twelve he said no i don't want to do it he was offered again he said no  to lose weight finally he got the surgery i guess the only thing left would be whether or not there was deliberate and difference between march of two thousand and six and the approval by the you are people handle for the t replacement in two thousand and nine so we'd have a closed period of around three and a half years where it could be argued that he he experienced undue pain and discomfort but as the jury determined and as we argued it was not deliberate indifference to provide conservative care to this gentleman by the way if we put him on the table and done the th a without having done the cardiac testing he would have died on the surgery table so we did our due diligence we provided very expensive ok sort of ok even if you didn't get a fair trial and what the jury found isn't particularly relevant if it went back you say he would get it he would get a new trial on the damages for that three year period anything in the injunction is still open not that high i know of and i think that was a pretext to begin with just something about physical therapy or there will be some therapy but that's let me tell you what the attorney general at the time of trial said he said ladies and gentlemen of the jury i don't know about you but i've got to tell you i'm a little offended at the notion that a death row prisoner common man comes before you i objected your honor this is a personal valjean at this point it's inappropriate the eyes should be struck the court as to the second comment are granted as the fact that he's on death row i won't strike it yet let's see what the conclusion of his sentence is there was no conclusion because that was the entire purpose of the statements it was the entire purpose of the ruling of the court was to die this practice as to john snow and these other maximum security in the days and i would say that in fact this alone gets you doesn't get you very far because you have to show deliberate indifference road so pattern and practice his you're in this is your evidence that leads to that we should be given that opportunity because it shows not only as to john snow i don't see all these other individuals that they did not intend to give treatment they were deliberately and different to the serious medical needs of about two hundred inmates in so you wonder the show this whole case of two hundred inmates when there's no no case having to do with them but just to show what happened for your client correct and that's what that's what shows the subjective component there wasn't just for john snow we just forgot about him it a situation where they deny intentionally the night in major medical treatment and producer is chronic conditions and what was your offer proof our offer of proof was in the motion about the cavanagh case the court didn't cavanagh case i'm in this case well he is or isn't the cascades me let me ask my question for you answer please where in the record do i find your offer of proof that you made in this case when face when the judge said you can't do the pattern case and the guardianship that i pointed out you that they were utilizing some type of guardianship method to either deny treatment or give treatment and that was what happened in the cavanagh case ok so that was your office it was it was a part of the motion and you have to understand also is the hostility that was shown throughout the proceeding of the of the court not to me but to my co counsel mr picker who argue that the motions in limi and have a chance to visit with you i think our law clerks and maybe ms butterfield book will visit with you in the meantime so see a little bit