the next case for argument is a state of jeremy hunter versus you and a county docket nineteen dash or d eighty six mr conduct when you're ready if i could start with a quote that's been attributable to the astronaut jim lovell amongst others someone there's three types of people in this world who make things happen those who watch things happen and those  reported that on friday at five o'clock he was seen by a nurse we took his blood pressure also when he was checked in he was told that he needed his medication for  blood pressure he told that i can't hear him so sorry i just opened it up put it straight up to your mouth there you go there we go ok you have to do is with hearing aids so and i can't hear either so that makes three of us anyway so three blood pressure medication he didn't have any wisdom he didn't have any with him he destroys will close stores were closed and going to get it in the morning that would be if they went through regular channels if they felt that it was an emergency situation they could of course get through other means such as the hospital but regardless so jackson thursday friday at five around five nurse mowen checks his blood pressure is elevated and she makes the note that for the st time she knows that he needs blood pressure medication and that she'll pick it up tomorrow morning being saturday so he's been there for her he got there thursday lots pressure medications going to be picked up saturday then there's a friday night is when things really start to go wrong the a defendant's name there's there's two groups there's those that work from six am to six pm and those that work from six pm to six am let's start with the six pm to six am because on friday night that's when things really went south for mr hunter around eleven do something but they don't do what needs to be done this is obviously a situation where somebody has got high blood pressure of this nature is clutching his test chest obviously in pain in needs emergent help that emergent help was not obtained form its own low pressure go down the blood pressure went down but still you've got the problem that if someone is going through emergency situations a heart attack or something of that nature there's go be possibility of two results well three results one mild heart attack two gets over the heart attack and lives but there's going to be damage to his heart or three he dies and this case symptoms we're mere dad of a heart attack that is pressure chest pains it's certainly one of those things that would be somebodies list of what's wrong with this person i go i see some here today somebody i see somebody crawling out for grabbing their chest spitting up and i know that they've got a blood pressure of one hundred and eighty eight or one hundred and thirty three i'm going to think this person needs help i need to and i need to act and indeed that's what the law says too is that they if they are aware of the risk of a sustained substantial risk these people need to abate that risk none of them abated the risk whatever they did it make you more comfortable trying get him to breathe slowly try and get him settled down whatever that was that's not updating this risk and unfortunately in the judge stewart found that no can find that there weren't facts supported a claim for deliberate indifference he just found that no reasonable jury could find in favor of the plaintiff which they did all they thought they could do didn't they they checked with  neck veins weren't distended nobody took any any heart sounds to see if there was muffled hort stands which being a classic cardiac temp an odd problem what more could they something going on like that and it's you're watching in a medical emergency that you need to act you need to do something reasonable to abate the situation they did nothing then in their minds the situation was abated later on because a seems like his blood pressure went down and it seemed like he was that he was doing better but again when that medical condition is growing up going on he's going to be suffering there's a significant serious chance that it's either a heart attack or something related to heart and something bad is going to happen to be a permanent damage to the heart or dad in this case it was the it was not a heart attack but it was a very cardio hempen and not  answer is yes because if the if the information that's being given is something that they don't that isn't reasonable then they don't need to rely on it but i don't believe that they were ever given any information from the nurse was the only information the only testimony was that of corporal robins gail robins he said that at at eleven o'clock he called nurse mo and he also said that when he got on that he didn't know anything about jeremy hunter or is condition until saturday morning when he got to work at seven am shortly before jeremy one hundred collapsed so there's all kinds of being consisten s with with corporal gale robinson testimony and whether he made that call at eleven o'clock is highly questionable i don't think and i don't there's no evidence that occurred it's just him saying that it occurred but that is not still not satisfying the requirement is not passing off the the test a deliberate indifference and that is if something is so obvious that the very fact that the risk was so obvious satisfies the subjective test of other inmates said he semed problems with chants paints the defendant didn't do anything that person died and this court said that conduct constitutes deliberate indifference that's exactly what we have here we have some someone that is is is obviously so if the phone call occurred the steps that they took afterwards were not it was unreasonable to follow follow any advice that may or may not have a been given at eleven o'clock by nurse muan in a phone call that nobody knows exists contacted i don't know what that contact consisted of because when he calls at three am and calls kate smith that one is documented kate smith says yeah i just got a phone call and all they did was tell me what advice and asked for medical opinion he just informed or what the situation as he viewed it was then let's go back to kate smith lpn she thing comes on duty at six anything so now he's moved out the front and she comes in as an lpn at six am he says to her feels like it did when i had a heart attack so he's telling her now this this is a heart attack and what does smith's mind she said oh yeah if this was a member of my family i would call for a for an ambulance but she didn't in this case i don't know what more you can you can have or what more of a situation would call for finding and deliberate in dist difference then a medical personnel showing up at six am that has medical knowledge that sees a somebodies condition and has nothing whatsoever saying that yeah well if it was my family i'd call an ambulance but this is a this is a prisoner she also testified that she was new whether she was afraid to do anything or or what not or she was not appropriately instructed or how you can say that a reasonable jury could find that this was negligence when it's something that she in her mind would call for an ambulance issue it was anybody else but for this person she's not going to call an ambulance knowing that he's got a substantial risk knowing what the conditions are and she didn't do anything i've got one or two seconds left i want to save her for rebuttal good morning judges my name is frank myler and with me at the table is my associate and hopkins and we represent all of the u n a county defendants most of the material almost all the material raised in the  talents brief was not raised below and i think that's significant because it keys into some of the key issues even that we're just talked about for instance it was never denied that a physician assistant actually saw him but that's not what we 're trying to prove again the fact is it's not denied that and i'm quoting from his brief on summary judgment he puts the fact that corporal robins testified at the time he commenced to shift on december  was only told that your me one hundred was having problems had been seen by nurse mulan in the p a and was in g block and just needed to you just needed to kind of keep an eye on him it is his claim at that point is that he should have somehow done something more because that's what he claims here on summary judgment that corporal ople robards consider the situation an emergency you know at some point well so he considered it to be a concern when it is brought to him at eleven that he was st of all the p a is the one that said the panic attacks there's some confusion about that because clearly the p a and everyone else is is parroting the fact that  attacks all right so so he's given that information that they're supposed to watch him he's watching them and theirs is a there's a concern absolutely he gets he's from miller with people having high blood pressure and anxiety just by the mere fact that they're in jail  after that st time i call the nurse right but that's what you do that's what you do in the jail if you think there's a concern you call the nurse the nurse that's on call whoever you're supposed to call he called  and this is so important because what some of the things that he's told then is and st of all there's other officers that knew he called it and testified that they knew he had called in or smeal and true they don't know exactly what that conversation was but they had known he had called her smilin to check out this situation but what nurse mulan says it's not his heart that's the problem he'll be ok the p a has seen him and i have seen him you just need to keep an eye on him he'll get his medications in the morning that wasn't enough he was questioning he's in charge and he's going to question should i take him to the hospital she said no it's not his heart that's a problem i don't know what else he could do at that point especially one thing he could do and i'm curious whether you think he needed to do is mr hunter had been in this jail many a time and that of his or record that he had heart issues did somebody have an obligation when he's complaining about his heart to look and see beyond just saying maybe he's having an anxiety attack or in the morning well st of all there was an issue that he had heart hard heart issues it was specifically high blood pressure issues i'm talking about his previous right on his previous ones it was actually the high blood pressure issues but he had never had a problem when he was in there before there never been any incidents or whatsoever what he was exercises that have helped other inmates in the past and while he's doing that he's improving so at eleven his blood pressure was not terrible but it actually went down to quite a reasonable amount after they talked to him they gave him the breathing exercises they asked him look can i take you to a booking so we can keep a better eye and he says no i'll be fine that is so much different than the weatherford case cited by the plaintiffs where he was complaining other inmates  he had another cellmate there there's no evidence that the cellmate ever complained saying no this guy's needs help none of that and then get in the weatherford case yesterday seen thing is there was a nurse that weighed in on it early on but was never followed up with a nurse so so robbins is doing what he should do and is it the perfect thing to do after the fact parenting not what we believe so at the time it was reasonable what he did he took action he didn't he wasn't like that jailer in weatherford that heard all those complaints and and literally did nothing but look at him instead he helped him he helped him and he saw that blood pressure go down the next incident was two hundred and thirty he again had him he says ok you're moving your booking i'm going to watch you the rest of the night is testimony is that he put him right in front of his computer and he stared at him it is the rest of the night because he worked there at booking he so he could keep an eye on him but what he found then is normal blood pressure he called the nurse it was going to be coming on duty smith was an lpn she he reported back that blood pressure to her and she said what to do if there's anything else that happens that you're concerned about call me on  way right away if anything else happens what happens then everything is improving after two hundred and thirty he at two hundred and thirty he says can i get you can i have let you take a shower that's not normal can i get you new clothing and a new bedding he gets some of those things and he thinks i'm for any goes to sleep when he wakes up in the next season at five hundred and thirty before his shift ends he says i have not felt as good in a long time you know that's not like the weather ford case this is a case where he's feeling good that he's doing something that's helping this inmate and then what he's done is there's no terrible issues after that after two hundred and thirty but smith had to have that conversation with him in her due diligence she immediately comes to see him st thing checks amount no she can't get his medications all nine because that's when the pharmacy opens but she checks them out normal blood pressure normal everything he's moving around normally there's no whining and he's not in it's chest he's she's taking the information then what she does is to be reasonable she calls nurse mulan again and says what else should i do now that there's some question  that the council is confusing some things is why a nurse mulan didn't say that corporal robin said calder the reason is he's calling an incident report something that's a medical record there's snow and had a medical record that she entered when she was on shift she wasn't on shift after this during this time because she didn't put it in her medical record she didn't do another medical record so it's course the phone call from robbins was not in there but his phone call t testify to the station with nurse is that correct absolutely absolutely there was never any and even on the lower court there was really never any discussion that that didn't happen until this appeal it's in the record  that that conversation happened but he should have just not called her he should just simply called an ambulance that's what was what you below well let me ask you a different question why didn't  we ration permits expert create a triable issue because st of all he had no personal knowledge it never worked in a rural jail whatsoever he worked at the university medical center which is quite a bit you learn from that situation this is the st time that this had ever happened that actually some of the officers had seen him in the jail before no problems zero problems with this person he you know and so this is the backdrop that we have here very record so he doesn't have any personal knowledge to any of the information he has he actually misquotes and misunderstands what information people did have at the time you didn't say your own expert you know we did not in the hard part of the far problem is that expert doesn't get in someone's head an expert does not help on the issue of the subjective component of deliberate indifference it's what information each individual had what they did with it and there are some situations like weatherford where people had information and did nothing and that's the important thing here is is everyone did quite a bit they can't be said to say they just sat back and ignored his complaints it could they have done better  and twenty hindsight absolutely they asked for years later the nurse smith who's now a registered nurse would you if this were your you know relative would you call she said yes but that's not what she did then and that's not what she thought of doing instead she thought of calling  assuming did not tell her to call an ambulance that's in her affidavit she was not told by nurse me when she was told to keep watching them and get the medication and even nurse smith she leaves early for that pharmacy she want to make sure she got that medication right away hour at one hundred told her he was having chest pains and felt like he did when he had our attack that seems like an awfully big i don't think it actually says that in the record that he was having chest pains then but he says he made that comment and i do not know whether or not that precise statement was given however nurse mulan n p clark had already seen him that day before and so she's given him the information of a rundown she may have said that she may have not but we do not have that for citizen from the record actually why is that not deliberate indifference on nurse mess per well st of all she's she's seen normal blood pressure readings she's not seen any abnormalities he's walking and moving appropriately and fine and she's been told that what he needs is his medication and she's there to get it as soon as she can't but cheat question ok i'm an lpn i've only been working a couple months which was the truth i need to call the nurse and so this it and deliver indifference to subjective component takes into account who you are what your experience is if this is somebody that had been working for years and it probably was a registered nurse i think maybe that would be a different question but it's not it's an lpn who just started working there two months before and she does the right thing she calls her boss who's over her or her supervisor which was  situation and she did not tell her to call the m o you say the situation but you can't say that she told her smile and he said he felt like he did honey and a heart attack that's true i cannot say that if they well i think that the question is is that when you're presenting yourself the patients presenting self as someone that seems normal and is not i don't think it was there was any evidence that he was feeling that that minute you know that he was somehow feeling that way it was documented by the physician assistant that he has ngs id and panic attacks and at in the chest pain in the chest pain from that and so i think she's she's legitimately going on what that information was and and acting on it and so she's observing them she's noticing them she's watching them she's keeping them here they're in the booking area so he can be closely watched in fact high blood pressure had nothing whatever to do with his situation well that's  another good question and even hitting his head could have had a huge impact on the feel he had cardiac tampa not an so that i mean nobody nobody trip to that and they didn't until the autopsy right which is when they usually find cardiac damp that's true and so he was somebody that was actually from two hundred and thirty dollars on was appearing very normal he said he had never felt so good i should say he hadn't felt this good in a long time i mean this is not like i said it's not like the weather for chase is not like some of these other cases where there's all these complaints hey help me help me help me know there are he's actually fully satisfied with what the kelp that they're giving him and this is the this is a hard problem again what this evidence was is it had not happened before at this jail if there had not been you know this wasn't a jail where there's a high volume of people you know having these kinds of difficulties whatsoever but he had been in before and those officers had had seen him before her present is hearsay objections in district court absolutely not there was an in any of his brief and it was not in the argument in the transcript interestingly they didn't request a transcript that's not my fault but the fact is is that there is zero evidentiary issues relating to hearsay whatsoever in the trial court in any of the briefing or in the oral argument and in fact it's not hearsay plain in place like i just read from that comb comment he's almost the plaintiff's basically agreeing that the p a and smeal and that that that she's me that robbins is told that the p a and smilin had seen him there's lots of documentation that snowden had seen him in fact she had her own record saying that she had seen him a check his blood pressure and had passed that along so we feel that those issues were not raised but it's not here see any way it could have said anything she could have said he's already been checked out of the hospital they're not going to know that they're not going to talk to the p a it's the nurses that talk to the p a not the actual individuals and so what we have here is essentially somebody trying to respond appropriately to what's already been given to them by the pm the nurse thank you thank you whatnot with the sollie county jail with the utah state prison and it goes on and one hundred and fifty eight secondly yes i admit it at robbins testified to those things and never said that those things were true or anything of that nature thirdly we're looking at each defendant individually so if gail robin somehow had this conversation which it the evidence doesn't seem to portray if he had that conversation that doesn't absolve these other individuals because they you look at what they did they saw this dramatic event and did nothing well they they notified corporal robins didn't  they notified corporal robins so i mean did they go along the chain chain of authority d the chain of authority has to be fault but the their own policies and procedures says if it's an emergency you call an ambulance or yes call an ambulance and tell you the higher up there's two different things you do one of which is to call the ambulance but that's common knowledge that doesn't even need to be in the policies and procedures look and we're talking about the events that occurred as they were observing at eleven pm and one thousand one hundred and twenty four when he's calling on his anthonys and to then say well later on everything's great and then to finally kate's miss mind is so you can see what cern in her mind because she would have called an ambulance if it would have been her own family member but she didn't so the idea that oh everything's fine and dandy and he was doing just great that argument doesn't work