him of these eight amendment rights the th circuit has remarked that overturning a jury verdict is not something that the court does lightly and it should do so only if no rational jury could have brought a verdict in the court shouldn't make any credibility determinations or weigh the evidence now probably the the most important thing is that about our case is two points the evidence was sufficient for a reasonable jury to find in favor of the plaintiff and it did it that the lower court overturned the jury incorporated oral arguments that had been made to the court and counsel for the fence argued among other things the plaintiff has not presented evidence that there was a widespread practice or policy or custom of the language deny and here the evidence shows there were far more approvals on the st time i assume refers to quit your review process than there was a specific need read a little bit garbled but was that not enough to preserve the issue for a fifty v motion no i don't think it was i think you had to i think what they're trying to do is  argument brought so i think it's a different argument additionally that was so so that suffices that issues that i think it's a new issue  th circuit it really shouldn't be tolerated it can't be fixed i think it's it's very clear i believe the lower court acknowledged that there were six referrals that had been recommended six different were for roles all of them denied by collegial review now i think it's important for this court to understand that there was the case  listen sided and if you look at the honorable judge woods dissent in the glisten case she even mentions the supreme court case him bar versus cincinnati but you do recall that that went in bank right and judge wood wrote the majority opinion for the in bank or i don't recall that your honor summary judgment in  was reversed in bank and the case was sent back for trial but but let me ask you about this this point mister because there are situations where  you've probably seen these cases we've seen them where the prisoner may present them with symptoms that maybe maybe may really require urgent care we'll be talking about  respect to mr donald's eyes no doubt little bit later this morning when we're talking about orthopedic injuries it seems to me one of the most significant facts relevant to your attack on the recommended that given the fact that where he was in prison he wasn't a good candidate to initially proceed with orthopedic surgery for the a c l but what dr cote did recommend was it was a specific type of operation that this specific type of rehabilitation and that didn't occur either it was months and months in i think it was eighteen months before the the  brace that dr coated originally recommended was ever given to the patient so it's our contention that even if he didn't have orthopedic surgery to correct that if war did some type of treatment i e the brace and the rehab and that was a problem in this case so i think under the supreme court pember versus cincinnati that even one instance can result in more male liability so our position is who's that the the court to take this out based on some belief that th ere was a requirement for multiple and multiple denials i think is misplaced dr droste himself requested outside specially consultation on six different you institutional liability can be proven in a number of ways including but not limited to repeated actions there were repeated denials here i don't think it's it's a wrong decision i think then we start stepping in front of the jury and deciding issues you know for replace the jury with the judge in that and that's probably my biggest problem with this particular case one other point and i wanted this to to mention how has consistently made the assertion that the river review process is flawed when you can have a non treating physician who doesn't even examine you decide the issues one other really important point the lower court referred to reference this is like an insurance company review insurance companies deny care around them than i payment all the time and that is clearly true but but the situation  real world or private world if a patient is unhappy and the insurance company denies it the basin is always free to just go and go ahead and have that treatment and then pay for himself in this particular case how couldn't do this his only option for care was was in the prison and he wasn't getting what the specialists had recommended he wasn't getting what dr trusted recommended and that was because this review process allowed one person who had never even seen him to make the decisions i was supposed to have a clock up and my thing but i don't see a clock i don't know where i'm at i think you've got about six minutes left defend it was law because they repeatedly denied referrals that tros to make and so i i think that i think that's the sum and substance of this particular case just briefly on punitive damages i believe the court improperly took that away from the from the jury as well we cited it i don't have to go any more on this case i'm happy to answer any question the judges might have i don't see any you have about five minutes left if i could you've been through with your patience i'd like to ask  about your her affidavit from these four other prisoners from the hill facility from two thousand and seventeen i really have two questions one i didn't quite understand the timing of their deliberate indifference you need at least some evidence that the decisions for treating those prisoners were medically inappropriate and i didn't see that being offered well i don't believe that's correct your honor with all due respect i mean to say then we would then have to have five trials or four trials within a trial meeting we have to bring experts in  from those cases to testify that here was improper for each of the the inmates that wanted to submit an affidavit saying that they'd been denied care based on this collegial review process i don't think there is such a requirement i think it would be entirely appropriate to have those individuals to support a claim of customer practice to testify what happened to them and i've run into that in a couple of other cases where the judges karsh you knew you were not going to get into this five different trials or if there's five witnesses four witnesses in debate and let the jury decide i think it would be enough just to submit the the witnesses but then the you know and then you the court brings up that the affidavits weren't allowed but that was based on the motion in limine the ruling that said she couldn't do it and then the court places the basis of partially that that you didn't present any evidence will that they're told they can present this in front of the court so again you know i don't think the court can have it both ways issue in this case therefore it was not whether the process was unconstitutional in of itself but it was the application of that process by the individual doctors and physicians who were a part of  u second the court correctly granted white's byrds judgment as a matter of law because how build a set or sufficient evidence that there was a widespread custom and practice of delaying medical prisoners and after you get the verdict i'm going to strike it down because you didn't present evidence from other prisoners now the problem that i'm looking at there mis that's the rule it may well be but if that's the rule it means that both discovery and trial of these sorts of cases will be much more expansive and expensive  entitled to look at the medical records of other prisoners with similar conditions and to explore their experiences with timing of the issue the timing the affidavit is at issue because they had the ability to conduct that discovery for three and a half years and churros not to do so there was actually appointed counsel in this case that has nothing to do with as kate's physical therapy was not an issue as part of the college or of the process that was presented at trial nor in the pleadings beforehand and it was at a different correctional center  position because he received an m r i which had to be through culture of you because it was orthopedic not emergency and he also received at least two orthopedic consuls he received one because he had to receive a follow up you know that's not relevant to the issue that we had in this matter so with respect to the kleagle review process in mr howell's case i gather dr ritz appears to have played a decisive role in a number of these referrals that were denied frank that is correct would it be appropriate in discovery for a plaintiff in the case if we were doing this case all over again would it be appropriate for a pla to seek discovery of not to reduce his compensation arrangements with wexford and his personnel file to see in essence is this fellow being reprimanded for these sorts of decisions or is he being rewarded for making these sorts of received any compensation for approvals or denials in fact wexford is actually not the one who pays for outside medical earlobes under the affordable care act medical furloughs are now being paid through denials these were alternative treatment plans one of them was to receive a follow up m r i which is and hire only reasonable and plan to have hasn't even provided any expert testimony that such a recommendation such an alternative treatment plan was unreasonable in this case additional eight the other two dr ribs simply stated that he needed more information regarding the care that was being provided for example like it was supposed to be doing physical therapy plaintiff admits that he did not abide by the home exercise program that he was given i personally know from experience physical therapy is an important part of rehabilitation after an injury plaintive and made it he rest not doing that i'm so that does play a factor into the care that will be provided so dr richards although he did play that role these were not outrage in the aisles these were to provide to obtain more information in order to provide them medically necessary treatment that plaintiff needed at that time frankly or hours if dr coast's would have said from the beginning of this that plaintiffs should have decided the a c l surgery want to be here at all but it was actually the outside specialist who recommended this more conservative course of treatment they're out there care mr howell which then in turn from the date of the original injury until the date he received two separate olive appointments after his a c l reconstruction surgery plant everett seed or team collegiate or a pearl's one of them resulted in x ray to m r i two surgeries and six orthopedic consuls it was obvious that he was receiving care he weighs when you look at the totality of the circumstances and th it was receiving more treatment than frankly someone of low income who's on medicaid would have received on the outside so the fact that council wants to now say that this is not  related to this is not akin to an insurance issue this is what insurance companies deal every day this is actually what medicaid does this is way other medical providers do want to daily basis actually the difference review is that there are safeguards to ensure that it's all the medically necessary treatment that is required is going to be provided one of the safeguards actually occurred in this case dr rit said he needed more information dr cho's decided to heal that decision and dr garcia another un physician decided to approve that orthopedic consols and winds dr bar this has nothing to do with the collegial process as a whole it's the application about process and in this case when you look at it it was applied as  appropriate for the treatment that howell needed at that period of time where there this case is not whine that the instances are so numerous that it can be of hell as a widespread custom in practice and in of itself typically widespread custom practice keyword widespread applies to more than one individual if you look at the un realization management or clearer view policy employs two illinois department of correction facility as a whole we're talking about thirty or forty thousand dollars inmates in a given year that this policy and procedure would apply to so if this was so right spread plaintiffs should have had absolutely no difficulty finding other inmates that had issues with his care the only ones that we have issue here of are dr richards now that's not to say that doctor it's been anything wrong he was using his medical judgment but what that does implicate is that if there is an issue you know it's against bacteria it's not against vick leader of the process and it still so based on the arguments that have worked so far in this case one point is need to do is sue everybody in sight single decision by its properly constituted legislative body so this this business about what we've got to have multiple instances across multiple multiple institutions certainly  flies in the face of the supreme court decision here i think just the other follow up here the court said plaintiff didn't present sufficient evidence for the jury to conclude that   about this subject and then now what they're saying is they should have presented such testimony you just can't have it both ways it's very rare as the courts know to get a favorable planers verdict by a jury on these section one hundred and eighty three cases and i think it sets a bad precedent when there is such a verdict for a court