guardian of mr finn's three minor children i would like to reserve three minutes for rebuttal all right briefly in a background of this case your honour's mr finn was a thirty four year old father of three minor children he entered the jail in bowling green kentucky the afternoon of march seventeenth two thousand and nine and shortly thereafter was diagnosed as suffering from alcohol withdrawal by the late evening of march nineteen the nurse responsible for mr finn's care testified that he was getting worse not better that his march twenty mr finn was described as very delirious by shift supervisor named william baker who moved him from a communal cell where his cell mates had been agitating in an effort to get him medical care for his condition and put him into an isolation cell when he did that he told the nurse this is approximately four o'clock in the morning he told her he had moved mr to the isolation cell between that time four o'clock in the morning and mr finn being found dead run response of it ten forty one am over six hours later lying face down in a pool of yellow woman nobody said anything to any of the medical professionals at the jail about mr finn his condition or what they were saying that was despite the fact that the jail had a very very clear what the jailer testified was a very clear and unambiguous emergency medical services policy that defined alcohol withdrawal not delirium tremens alcohol withdrawal as a medical emergency and required jailers who observe that condition  maybe you could tell us with respect to the defendants whose claims were not tried what went wrong there in terms of the summary judgments or the evan entry issues i know you have an issue with the jury instructions you can use your time however you want but i'd just be you might want to focus almost an absolutely yarn i just wanted to make sure i'd set the the proper stage very simply first of all before trial the district court erred by dismissing the jailer our state claims against the jailer for a negligent failure to train and supervise the jailers under his under his responsibility what the judge sa with concern to the jailer is he said then he was dismissing him because the jailers actions regarding the supervision and enforcement of the e m s policy were discretionary in nature this court in hedge path vs pelfrey this was another general case no other policy case specifically said that in i'm quoting here although deciding on the content of fallacies and training is a discretionary function the training of employees to adhere to their duties once that content is decided is a ministerial function and the supervision of employees is a ministerial act when it merely involves inforcing known policies so dealing with e m s policy when the judge below decided to grant summary judgment to the jailer and let him out finding that his duty to train and supervise on the e m s policy were discretionary that cannot be reconciled with this court's pelphrey and that requires the reversal of that decision just simply does the court was wrong there in addition that had a very prejudicial effect a trial the jailer took the stand after being called in our case in chief and testifying that the policy was clear ambiguous he didn't think anybody thought it was clear couldn't be misunderstood he came up was recalled to the stand in defense case in chief and he said and i quote he said what i do feel and what i've learned from this is that the policy i had in place i did a poor job of trying to convey that trying to write that out and i will take the blame for that that that it was a poor job of putting down instructions well so the jury has a situation where an individual gets on the stand and says i take the blame if there's a policy issue here my fault then when they go back to deliberate there's no instruction for them to assign responsibility to that individual because the judge had dismissed the ja prior to trial so it was air for the judge to dismiss the jailer to grant him qualified official immunity on our state claims finding that training and enforcing on that policy was discretionary when this  not to create the policy but to trying on the policy how does that impact the mona klein well your honor would go back it it would go back for trial on our state claims soley against the  those claims would be restored and it would go back for a trial against the jailer on that on that particular argument now that's our first argument with regard to the liability and as we said i just don't think that the district court's decision could be reconciled with what this court had previously said in his path versus bill for the second issue was the that as a matter of law all the jailers we're liable at least under our state negligence claims the elements of that claim or duty breach of duty and damages the judge properly will rule fifty they require us to the facts in the light most favorable to the provider ling party more than mad judge this this decision you court's decision in barry vs city detroit it says that the evidence has got to be so one sided as to warrant in this case what we're asking for is reversal in tree of motion for judgment matter law judge i believe we satisfy that  the e m s policy the provisions were clear they at least i mentioned there were four things that the jailers were required to do at least they had to tell with the nurse what they were s respectfully i think i did raise that issue the instructions that i submitted to the court directed a verdict on liability on both the deliberate indifference issues and on negligence in only left the question of causation  mckinley said i recognize that all the parties have submitted to me their proposed instructions and i recognize that you have an objection to the extent that my instructions differ from yours and that's my instruction the court said no well object to not getting my instruction but there's no discussion of the fact that the instruction given is just flat wrong on on what constitutes deliberate indifference it gives both negligence portion and intentionality and ignore ignores reckless disregard it how do we even reach that if there was not then an objection  as well your honor the one you're giving is incorrect a yawner you the court has the right to reach that on the doctrine of the play near the fundamental error doctrine and we believe that the instruction is drafted with the problems that your honor has has emphasized satisfies that doctrine in and on that would you take the same position on the expert on doctor wieder i'm sorry witness stand he provided a written report in the united states i understand but let let's let's assume that the technicality of what he included in the written report could be satisfied by his testimony at trial is there any objection to the propriety of his use of reliable methods or standards or his speculation as to call zation speculative testimony in general is violat dahlberg no your honor there wasn't but after his testimony i requested that the court i told the judge and it's in the transcript as a judge he's trampled all over it skull that was the word i used and i asked the court to admonish the jury as to the standard on eggshell instruction i also tendered the appropriate eggshell instruction in my objections to the court's proposed instructions provided the court the appropriate instruction under the state's case of morgan that was discussed and the judge decided to give a different instruction and again recognize that we had submitted instructions in and recognized are objecting to the extent that what the court submitted didn't regarding i'd suggest that's because she put the jailer on the stand he says i take the blame but oh by the way i'm a man what jay were strode was of was explaining at the time the what this case what happened in this case is that the deceived was taken and receive medical care and was under the care and supervision of a nurse that nurse was an independent contractor with the jail who was following the the care and treatment of mr finn and mr fenn unfortunately died because of a non related  symptoms he had a heart issue that was did no one knew about and there was substantial evidence in the record that was in fact what caused his death not anything to do with alcohol withdrawal the two may have combined but that's that's what the evidence was at trial getting back to the jury were strode in the hedge path decision judge mckinley appropriately looked at that policy he appropriately applied the kentucky supreme court ral and vs sloss case that had specifically decided that the action of court's decision in hedge path that was an interlock a tory appeal on a summary judgment motion that involved a completely different policy and a completely different set of circumstances we believe that that is not arguing was that you should have done a better job supervising were found by the jury to be not negligent they didn't do anything wrong so how can you there come back and say oh jail or stroke you didn't do it good job supervising these people but the people who you were supposed to be supervising didn't do anything wrong so i think the argument fails on that stand point i also want to talk to you a little bit about the jury instructions and first of all what the appellant refers to is not the jury instruction what the appellant refers to as the verdict form please go back and look at the jury instructions that were actually given by the court in which the court set forth the various elements that have to be proven in this case please look at the deliberate indifference instruction in please note county jailer is a policy maker of war and killing that was in the instruction that was given all of that so the jury had that information in knew the position of j there was no failure to to properly and if you if you look at the instructions that were given by our judgment killing in this case they were they were correct under the wall help me help me with  struggling with the deliberate indifference instruction which i'm finding that page id twenty seven fourteen and speaking of the second element that you have to determine on deliberate indifference in other words you must find that the jet deputy jailer intentionally refused or failed to take reasonable measures to address his serious medical need and then the next sentence  mere negligence or a lack of reasonable care on the part of the deputy jailer does not constitute deliberate indifference it just seems to me that those are really contradictory statements one requiring  intentionality one then bringing in the negligent standard with i out any reference to reckless disregard tell me give me your best argument for why you think that that's an appropriate statement of the law regarding deliberate indifference we believe that that is that that is appropriate when you also look at the fact that there was these did did each of those jurors also received a or also the jury was also negligence instruction but i'm struggling with the deliberate indifference instruction we believe that this was was the appropriate in instruction there was no objection to this language that was included if you look at the language it's included in the most forms that are used by the court i think it is appropriately recites what the what the standard is that the jury  supposed to apply in terms of recklessness it is in order for there to be a a finding of a constitutional violation it can't just be a we could have done a better job it has to be more cards different from intentional refuse so or intentional failure to take it so i think that's a must struggle is the intentionality first is the reckless disregard is there any other part of the instruction you would direct us to  to bolster your argument that the entirety of the instructions was satisfactory well i believe that if you look at the elements of would what the jury had to find  instructions they were not accepted and therefore that's the objection that his instructor but he has to submit instructions that are appropriate and in his instructions were not appropriate and so if yours were flat out wrong it's because he didn't object if he comes in and says this is this i have this problem with this disc language yes if he doesn't say anything then it is way is i think is the srodes obligations to appropriately or to to supervise number three i think you get to the point you have to look at the point well you want to look at the rounds  county versus slow us case which which was a specific case involving supervision of jail employees by a a a jailer number four i think you have to look at the jury's verdict which i think you can in this particular case in that the actual individuals who were alleged to have been negligent in not following that were found by the jury to th to not be negligent the jury found that there was no no issue there so i think taking that here a distinction though in the law between ministerial and discretionary  drafting or creating a policy am and training on the policy well yes there there is but the duties are different  at the same time there was more than in sufficient evidence this throughout the record about the train that the jet jail staff received on the specific policy and there was also testimony at trial with this court can consider that they were appropriately trained in that they followed the policy appropriately that they that they complied with with the policy which policy this is it in policy written policy policy just to leave it to the medical people the written policy there was ample evidence that was a disputed fact at trial that there was evidence on both sides and the record was complete with with with the examples and testimony of our expert of the jail staff of others that they followed the policy this was not a case where we came in and said oh this is really not what takes place but we looked at the policy there has to be a medical emergency and we followed it granted they had a graphic on the record that said that he that there was no training on this policy either before or jail stat goes through in house training on a proper procedure they receive training through the state through the state but there was also trying out a discussion on this particular  you know there again that was a disputed fact that that mr bell's lee did a heck of a job being us up on a trial i mean there was that was primarily his case they didn't follow their own policy in we said we did it and that's why we have a jury to decide those issues in  that that is true but it a bit of a do you think that in this particular case jailer strode was when you particularly look at the the training policy in the instruction that was given in the the people who he was supposed to have been supervising according to the jury was not were not negligent how can we then go back and say well your supervisor was negligent i think that's that's that's illogical and that's i don't think that that would be time in the specific findings that or not specific findings but but application of the kentucky law at that time then yes i think he you can hold that in can't say that that is your program of course that wasn't given to the jury with respect to to mr stroke they could have decided for example that writing a policy was a discretionary act but the training what was useful to say about that i think in this particular case when you apply can the law that was in that was decided at the time that this case was decided that the training of the policy was considered to be a a discretionary  on on page twenty nine when it's this was i'm sorry this is the walker versus davis case where that case it is a five supp case it was back in two thousand and supervision and training of step personnel was a discretionary function of the case that's walker versus davis you mean in that case but you don't have a case where it says that training is always  individual policy in the court has to make a decision based upon that particular policy i think the supreme the kentucky supreme court in round county versus slow ass came very very close to  it's when it's said that the train the train of staff of state prisons on the evidence at hand is case was a discretionary function that's a direct quote from from the kentucky supreme court hedge pass said the law on this issue is well settled when a policy is decided upon and it's written down the duty to train and supervise on that policy is ministerial not discretionary the jailer didn't have the right to ignore the emmaus policy in this case he didn't have the right to tell as his jailers to do something different the policies in this case specifically said that the jailer had a duty to establish and monitor each employee's training and fitness to help ensure satisfactory performance and e m s policy said that all officers are trained to respond to medical emergencies it's an inmate's life may depend on appropriate first aid to bring  laws will settle because in it cited the signal case out of kentucky you narrow versus davis for that position but the court said the law as well settled and it had been so we did bring that to the court's attention but it was  regard your honor to the issue of the effect of the policy their own jail expert said in testimony under cross examination he said if the jailers had followed the a m s policy to the letter mr finn would have been taken to the hospital eleven thirty the night before he died and that was their obligation to do so that was their ministerial duty as quickly found by the district court beyond the job training that counsel mentioned that was effective only to permit the deputy the deputy jailers to effectuate the a mess policy the jailer said they were they had they didn't have the training they did they weren't medical professionals they couldn't see an instance of alcohol withdraw and have the training to decide whether that was serious enough to merit an emergency response instead they had to at least tell a medical professional a nurse and let her do it