intoxication and the lance city i think reflection that this is an important case for a number of reasons coincidentally the house of representatives address d minor dispute in a case filed today d in the supreme court with two justices one in the majority one in the minority claiming they yelled there was a gauge d from traditional activists which of course the doctrine of qualified immunity d is a product of this case is also important because the net result of this case to suggest that in a case where lansing acknowledges the existence there for not being subjectively aware of the need for medical care points to and then to immunize these individuals as a result of that claim traditionally immunize them why have jail chips why do them at all why do welfare checks at all you can ask yourself if the product of this traditional immunization is to  to disclaim responsibility and if they have liability for a man dying of the most of all drug overdose late is it in a cell for many hours by simply claiming they didn't see it or they thought he was sleeping and therefore d there is no subjective own that is to encourage no jail checks at all well i have so i have a question about kind of about that but more so about what is the specific evidence i agree with you they were it seems negligent and bast in not checking the jail cell when they were supposed to but i guess what's your best evidence that they actually saw him in the  bombing and who would that pertain to since liabilities individual and absolutely and that's a fair fair question and i was just about to address the overwhelming evidence because the trial court just ignore these facts and stated facts which are contrary to the record the trial court indicated quote that although ota kirk and kelly specifically not let me address your question over kirk and kelly were found guilty of failing to do their cell checks quote from trial court there is no evidence in the record that either of them knew or had any reason to know that phillips was in distress that's absolutely contrary to the record all the court had to do was site which you did not the internal investigation which i quote as to kelley at  but disc three is missing do you know why is the dismissing said disk three is the did ask where cali places the other in may the one that's dancing on the left i think in the cell right oh yeah i don't know why it's missed i can and we may have to supplement the record because we have an internal investigation report which says that you can clearly see in the internal investigators clearly saw quote phillips like motionless on the floor with a pile of it coming out of his mouth and kelly failed to you can see that i'm sorry to interrupt you but you consider that in disk four but that's not in the time period we're cally when in the south if that makes sense it does but it doesn't it does but it doesn't because the situation that the situation was always that well not always he didn't have vomit the whole time right because disc two shows him kind of i think it's he's wavering in things like that during the disc too so it's some point during descry the i think it is where you should correct me if i'm wrong he vomits and disc three is it least we don't have it you all may have it but we don't at least i could i didn't or ever sponsibility them to get to you but i am and i doing her job could not disclaim seeing it so we got so to kirk because i agree with you on cally based on the evidence in front of us when in your favor but on ota kirk there's no evidence like there is with cally there is evidence that she was negligent there's no evidence that she went in at least that i found and actually would have had to see him with the vomit isn't that accurate yes i know she not see that that's my point you have to submit affirmative evidence from which a reasonable jury could conclude she saw my point that the cell checks alone are not because at the same time you claim she wasn't doing her job no i don't agree i don't agree with that because her only job is to make sure that the detainee is ok if we are dying in a pool of parliament and you say i didn't look at it and i was doing my job then i guess there's two reasonable possibilities you don't do your job or actually you did see it and you're just lying to get out of the liability and that's a reasonable inference otherwise you are immunized my point is to say otherwise is to immunize all jail personnel from doing so checks all they have to do to convince a court of law is that states subjectively looked at nothing they were blinders that's  did that that's a policy argument and we have qualified immunity and you have a body of law that you're stuck with it least until the supreme court changes it but right are you saying that because she logged in and record and said effectively that i did myself check that is affirmative evidence that she in fact did it and if she did it she would have seen it and therefore the jury can draw the and conclude based and that's where she's supposed to performance while it's still jack's white that reader but apparently at least claims didn't look inside and we don't in the desk for you can't see anything correct as to her that's correct look she claims to have a one time done her job and then to defend herself in this case your honor says i didn't see or look which is preposterous and the jury concluded as a result of her will wait when kelly wammy and at three hundred and fifty seven it's undisputed he went into the cell and when you look at the video it's pretty obvious that bomb it is lying there are you saying he can see someone passed out in vomit and turn around and walk away and do nothing and there's no there's no constitutional violation potentially you know i responded to back to a basis when i answer the scene which explained was for her to come to that conclusion she had a look with me with you through the way i see it and then you tell me where i'm wrong lying on the floor vomit in front of them the plaintiff can submit a disk meaning discs six and seven showing the vomit we know kelly places another inmate in the cell at three  it and walked away to it again i think what a jury could do with respect that even if you're right that does not mean medical distress it is not mean that kelly has reason to believe that there's medical distress and this is what the plaintiffs in the case before the trial were conceded that none of that would include this is their words observed mr phillips in a medical crisis assume that a jury would conclude that yet he should have saw he did see this spot even though he says he did not see it the officer who's talking about it says it's a different view when you're referring to is from up on  camera versus someone who is down in there doing other tasks he's bringing another person into the cell so he's not just looking at mr philips in that position so again i even if you can see that there is if you do find that that is something the jury could term that doesn't mean it's medical crisis and i think what we're missing here is the undisputed that here we have a situation where the mr philips teenie who was asked at booking and this is on the videotape as well we have testimony we have the videotape he's asked that booking specifically if he has taken drugs he jury i guess the one question i keep going back to or maybe i'm struggling and you can explain it to me is we view the evidence in the light most favorable to the plaintiff in this point you look at the fact that he's lying on the ground with bombing by him and a reasonable jury could be out evidence in the light most favorable conclude that he was aware of the problem and disregarded at the question that we have to answer not we waive the totality of the evidence and say look this was object subjectively he couldn't have because he had all this other stuff in his mind that's a jury question is and i don't believe this ultimately is a jury submit if you think i'm an officer sees someone passed out or asleep whatever they are with bombing by their mouth coming out or next to their mouth they have no obligation to do anything that's the opposite thing prisoner you know says i'm not feeling well they go they vomit and sure but that that's not this case when we've given you more facts he's vomiting he's bonded and he's lying in it which questions on this we're looking at officer charlie apparently at this point that's where the focus is and not on these other officers and again with respect to officer kelly what we have here is that he has this so checked himself and he did not begin that's a test more he says he did that you're saying it's a fact question whether you saw it or not in what i'm specially submit is that you know it so does not trigger this constitutional violation to me that the perfect kind of like it might be negligent conduct but it does not rise to the constitutional violation that is required it's not but my main point that i'm trying to explain is that this notion of vomit does not in of itself trigger the need for more medical attention that  i understand that but it but not enough when looked at with the rest of the facts that are not in dispute that he's asked specifically about whether he's ingested drugs he says no i did not again we've got other  in to the jail itself was transported there there was no sign of any sort of intoxication drug problem or otherwise at booking there was no sign of that and swapper to who was responsible there was no indication of any of that and kelly also us i'm sorry to have the three drugs that were mentioned he was taking pursuant to a prescription right i don't know i know he had prescription drugs i don't know  it again that you would never been in the jail itself had he responded that he indeed had taken those drugs so i mean mr mandela i agree with you that prior condition or i don't know that you said this was much more serious or at least obviously serious based on the way we described the facts in that case but it this is the sentence about vomit that i found on more than one occasion prior bomb it had a large amount of green vomit on the floor which was a clear manifestation of an internal fiske physical disorder that sounds like a serious medical mean to me in private i'm reading right from all how is i guess i don't see that as saying what you said it's urgent you agree if you say rather this circuit's cases it consider the presence of vomit as being a manifestation of a serious it says serious physical disorder that sounds like a serious medical need to me ok my understanding is it's the bum that is not object serious is a medical leave in of it cause what is your what do you believe is the proximate cause of his death they are to provide medical care treatment in a timely fashion so that he doesn't die of medical of multiple drug overdose i believe that that the sooner you medical treatment are now better and assuming it wasn't all by mr let me interrupt you i'm sorry but if you look at your expert report that you submitted because we have to look at what you submitted to district judge gets as had any of the jail staff properly reviewed the monitors and properly conducted it gone hour but this isn't a medical expert this is a law enforcement officer and then you that's for a state right by election that is not occurring oh yeah that's the two sure if maybe a bit rocks that caused the ok and maybe i'm wrong i thought you were bringing both i'm not talking about the constitutional violation i the evidence from which we can conclude that one of the officers or one of the jail staff tell us who and then once the evidence became point to to show they are the you know the most immediate  the supreme court of michigan why would that be the proximate cause versus the in gestation of drugs which led to his death why wouldn't that be the most as he the autopsy itself says and you quoted multiple drug intoxication not our call go ahead john well i was going to say i was going to suggest that when you start talking mr tigers yes well that's all right mr krugman let me ask you one other question  so the way i read michigan law and you probably know it a lot better than me is under ray we look at the negligent act errors and then we say what's the most immediate cause of death and on summary judgment we look at the evidence and the evidence here is only the autopsy that says he was he died of multiple drug intoxication so that does support the defendants here and we don't have any evidence that a specific actor had they intervene for example out kirk it three hundred and twenty six dollars or something someone intervened at a specific time that would have saved him if that makes sense and so without the only evidence that the the most immediate cause of death is multiple drug intoxication which is ingestion of that which obviously we don't have any evidence the officers gave him drugs and wouldn't conceive but that wasn't even an issue in the court below so you would be deciding an issue that haven't been addressed in the court will the court below decide that the issue gross negligence that they're trying to did not rise to that level d in light of but i can go back and check going to have one other question all right mr piper do you agree that the report that was prepared included that the officers or that an officer doing randoms and cell checks would not have seen the bomb it from from that angle not that's th i don't think a rational absalom i'm sorry that's not exactly true because you have different angles but the question i asked was whether there was a conclusion in the report that an