good morning ladies and gentlemen our first case for today and will be miranda against county of like so he's huffed thank you and good morning honors judges hamilton games was a fifty two year old national of india when she was detained at the lake county jail on a minor charge throughout her fifteen day incarceration she did not eat or drink while the medical and corrections defendants watched her obvious condition deteriorate when they finally sent her to the hospital she was in multiple organ failure and it was too late to save her life she died within a matter of days of dehydration and starvation this appeal raises the following four issues number one that the jury should been allowed to determine damages for wrongful death number two that the standard of care for violation of a constitutional right of a pretrial detainee is whether a defendant's conduct was objectively unreasonable and three that the jury should have been allowed to consider plaintiff's constitutional claim for failure to protect her while she was in custody and finally for that a jury should determine the liability of the corrections defendants i want to first focus on the dominant issue in this case which is cause a shunt and the district courts refusal to allow the jury to consider the damages for wrongful death cracks and that cause was a decision for the jury the circuit has repeatedly held that causation is the question is a question for the jury the defendants do not and cannot deny this general principle the district court below erred in limiting the damages in the case to the fifteen day incarceration period there was i was left out largely because the district court thought if the coroner's report needed further elaboration that was one of the issues that the district court  responded to the coroner's report however there was additional evidence it was the coroner's report it was the plaintiff's experts it was the testimony of the defendant's dr elizalde and dr singh themselves as well as the testimony of dr kim who upon returning from vacation took one look at ms golems and ordered her immediate transport to the hospital the coroner's court though on equivocally concluded that ms g cause of death was due to complications of dehydration and starvation now now the district court wasn't sure what complications he was talking about and i guess are two ways of approaching that one would be to say but bottom line it was starvation and dehydration it wasn't that she got an infection it wasn't that you know other things happen i take it there is other testimony in the record that she was going to organ failure or no there there was a testimony in the record from the vista east hospital records that indicated when she arrived at the hospital she was in liver and kidney failure so that is there ok and in addition to that the ambulance report indicates that when they arrived at the jail after being called by dr kim that they were they him they gave him they took a blood draw of ms go and they gave her an i v hydration and they activated lights and sirens from the scene at the jail to the hospital it and when she arrived at the hospital they determined it was a certified medical emergency now and now again back to the coroner's report the legislature of illinois has determined that a coroner's report is prima facie evidence of cause of death and the reasoning behind this legislation is not only because of that indeed of objectivity and reliability in such a report by a public fish official but also to protect those public officials corners from having to into court and provide testimony about cause of death and i can i ask you  i didn't see any statement anywhere to the effect of she had been deprived of both food and water for so long by the time she's transported to the hospital that she had passed the point of no return so something like that so monitoring whether your theory is that their failure to treat or whether there is any theory that their failure to treat either was the immediate cause of death or at the very least deprived her of a significant opportunity to survive this starvation yes i think particularly the latter and that was because what they did at the jail was merely observed her they couldn't monitor her consistently they had her on suicide watch and they had corrections officials observing her every fifteen minutes we don't really know what they were well they weren't told what they were to observe and what they were to report and merely watch this obvious condition of not eating and drinking that was clear to everybody get worse and worse so that at one  point farther down rather than giving her any treatment at all they put her on bedrest because she was unsteady on her feet and they were at that point they lost the opportunity and our internist at the jail should have transferred her out at least by december twenty third she'd been there since december fourteenth with the same  behavior continuing and the failure to eat and drink causing her can abby is condition to deteriorate more and more and more i don't know what point i mean dr singh is in this picture too and the time comes when he well two good things happen one thing that happens is isn't he the one who eventually says that she's not capable of making her own medical decisions that's correct on december twenty seventh i believe dr singh unequivocally documents that she's incapable of making medical decisions he's only seen or twice but he saw her on december twenty fourth two and at that time he determine that she was psychotic didn't do anything just then saw her again the next time he arrived at the jail and the plaintiff's expert dr gilligan specifically t singh's conduct contributed to ms gomez death and that she was certainly in an acute psychiatric rick emergency at the time that dr singh saw her there was a lot of testimony that everybody relied on this phrase that dr l exactly said at one point or some unknown nurse said that she was medically stable well dr raber the plaintiff's expert categorically denied that when he looked at the vital records but beyond that dr singh knew and our expert dr gilligan testified that she was in an acute psychiatric emergency so she was clearly not psychiatric stable and the issues of the the medical defendant's own powerlessly said that not eating and drinking could be fatal within a few days and that preeminent thing that the medical personnel were to do was to determine what her psychiatric state was because of somebody is incompetent and not eating or drinking not because they're trying to get one over on the  jail but because they're not in their right mind then something needs to be done immediately and that i take it the records clear that the the jail physicians had the authority to transfer her to the hospital absolutely and that was borne out when dr king came back from vacation immediately saw her and sent around to the hospital and stayed with her until the ambulance came in order to make sure she did not go into cardiac arrest or respiratory failure and that was done immediately and dr kim above and beyond that started asking around how did she get into this condition how was she allowed to get in this condition so the testimony was also that anyone at any time could have called nine one one could have requested that an ambulance transport her to the jail and i mean transported the hospital i'm sorry  this was also borne out she she shouldn't have even been in custody and this was attested to by the corrections officials conduct when she finally was transported to the haskell they went right to a judge and sought her release important admission that this woman who had been originally taken into custody for failure to serve on a jury for failure to do something that it was illegal for her to do exactly and when the arresting officer who testified at the trial below said that he went to her home and told her about the warrant so this sounds like disagreement with the judge's decision to commit her and get the medical defendants are not liable for that i think we need to focus on the medical issues i'm i'm interested in the question what difference your fifth amendment theory makes it looks like everything that happened in this case adverse to the plate  relies on the district court's causation decision rather than any decision about the standards of liability so is there any issue before us about what is the difference between the eighth amendment and the fifth amendment and the fourth amendment me like it's the causation decision in the driving everything and not any decision about required mental states now if that's wrong i'd like to know why it's wrong you know we believe that the dominant issue in this case objective reasonableness standard as opposed to the deliberate and different standard borrowed from the eighth amendment that's i think the question i understand there when you have one where you lost right and we believe that in this case the the deliberate indifference for the fifteen days went to the jury on three defendants the social worker of bibiana and the doctors who are right issue of this appeal there were damages against bibiana which had been paid in so your opponent say well you can only get one recovery anyway so does that matter anymore what what would be different as we sit here my point was that this is the evidence was that this was by how the jury could not reach a determination on the deliberate indifference i do understand but they got they did deliver a verdict against it beyond no presumably for the same period of time may have had the damages she suffered were her up until the time she goes to the hospital were compensated right correct that and want to nineteen or so correct and the single recovery death issue i mean where's what more will you get if you prevail if we prevail on the standard that's appropriate and titled for pretrial detainees a jury would determine objective reasonable n'est rather than deliberate indifference and the fact that the jury below could not decide on this standard this higher standard of deliberate indifference against the doctors leads us to believe that if they were  effective my question and so i understand the truth drug use is would you get more money if you wouldn't get more money then the number of defendants against whom you get the same verdict doesn't matter since the hundred thousand nine hundred thousand has been paid is assuming that that's all there is for that period does the standard the choice of legal standards of death issue should go to the jury when you get a new trial on that claim the judge on remey and will need to decide how to instruct the jury on that claim and that's where we have to decide if if we go that path whether the instruction should be deliberate indifference or king of the variation kingsley or something else is that right absolutely ok so now obviously if we were to order the jury to instruct to be instructed on on the kingsley standard there's some legal risk for you in the long term but that's what you think ought to be done right that's correct and we believe that the dominant issue in the case is causation and i just want to say a few more is well is there is there and i need and then i need to take you to a second question which the briefs don't address in this case the supreme court held way back thirty years ago in daniel's that the fifth amendment does is not violate the due process clause is not violated by negligent conduct and given that rule  how can the fifth amendment help you here kingsley was very clear that it was dealing with an intentional use of force and then the question was was that intentional use of force reasonable there's no claim here of intentional use of force so i'm worried about the daniels rule and about its companion doctrine correct which is that when you claim up under the fifth amendment the due process is violated by on authorized wrongdoing the question is whether state more supplies a remedy and of course you believe that state what does supply remedy because you have a state bar claim joint with the federal  and i think what we're struggling with don't answer my fifth amendment question by referring to the fourth amendment please answer my fifth amendment question well we can talk about the fourth amendment separately ok with regard to the fifth amendment that applies in the federal context but similarly the fourteenth amendment that applies to preach are detainees the bell versus wolfish case which again is another case from thirty plus years ago that specifically found with regard to pre think talks about a liberty in interest if if i'm correct in that and and my point is this was not a negligence case the quote case where the conrad hears you do with a prison hobby kid it was property but it doesn't matter the supreme court agree that negligence conduct does not rise to constitutional violation or wait and counsel i had the problem is addressed in kingsley and i thought it was solved there where justice briar's opinion for the court explains that there are in essence true states of mind to think about one is whether the defendant was acting intentionally in changing the way the world is we're choosing not to change the way the world is such as do we apply force in that case or i would think your argument here is do we treat ms gomez or do we take her to the hospital or just continue watching those were intentional decisions were they not absolutely and then your argument is they were objective leon reasonable decisions is that right that's correct yeah they made a conscious decision to let her live there basically would be that as judge hamilton saying that on to king's absolutely that doesn't answer the absolutely not an accident and so if somebody had repeating the row oh and that leads to a collision and you would call that not an accident because the driver deliberately was exceeding the speed limit and so it's an intentional or for the negligence the negligence question i have always conceived is whether the person intended the outcome there's no claim here that the defendants intended gomez to die right well was like everybody knew where the conduct of not eating and drinking well i think diddly need that you is is is map kingsley on to daniel's because of course you could equally say that the officers in kingsley didn't intentionally want to use too much force cecille force the way justice briar breaks it down over the dissenting opinions by the way some other members of the court  standard applied the second maybe in the speeding example it's a negligence standard that applies to the outcome and you know you would have a constitutional problem there but you would certainly have a stable of torque and in kingsley the court  specifically said that a pretrial detainee can prevail by providing only objective evidence of a concerning the challenge governmental action that language indicates that the supreme court did not intend to limit its holding to excessive force cases only and prior to kingsley the issue of pretrial detention standard of care was set forth core constitutional claim you still have to deal with parappa problem so it was called parrot but about whether there is an adequate state remedy and whether that matters could you first address whether there is an adequate state remedy and whether that matters we don't believe there is an adequate state remedy the medical negligence is a separate claim similar to the fourth amendment where you might have state battery claims but you also have a constitutional fourth amendment claim so the issue is that it that it doesn't matter this cannot be compared to a who's in pretrial detention people who can't afford bail people are struggling with mental health issues and this is why the failure to protect claim was also so important because  you haven't really answered my question about her and i frankly don't understand what you well what the failure to protect claim adds is highlighting the whole duties and responsibilities in this case when the jury was sent an adequate medical care case  they were not told and it was not underscored that in fact defendants jailers have an obligation to those they take into custody is a separate claim or just something that you thought should have been included in the jury instructions that was not we believe it was a separate claim as the ninth circuit as a separate claim or separate theory for recovery of the damages that you  she suffered and this is a difference which is important and i think that it was a separate theory of recovery and an important one what is and this was the issue in the case below in the trial the defendant's montra where she had a right to refuse she had a right to refuse medical care she had a right to refuse food she had a right to refuse drink well she did not in the contests in the context of being in custody and detained in the lake chad county jail they had a duty to protect or and protect her from self harm  that was not in the jury instructions i don't believe and it was because the district court below claimed that well the family testified that she was a catholic and that they didn't know of any other mental health problems she had in the in the past but that didn't stop the lake county jail from putting her on suicide watch for eleven days just observing her seeing her condition to tear her obvious condition deteriorate see that she continued not to eat or drink and was on communicative and she was uncommunicative and non responsive and that you have i think you are in your  i do i do see that i just want to just going back to causation for a moment the plaintiff's experts i think we've talked about them but the defendants themselves with regard to causation death could result dr ellie zagg documented on december twenty second and december twenty seventh that her liver and kidneys could fail and she could die dr singh also similarly  recognized that this was life threatening behavior when dr kim found her non responsive severely dehydrated and immediately sent her out he and i think we talked about d kim too in terms of causation but all of this and the only other thing i want to say about the coroner's report was that it wasn't a report of a single public official it included the report of the autopsy and physical examination of the body signed by a doctor mine tez there was a narrative of a corner investigator that indicated a hearing had been held on the manner and cause of death and the conclusion the ultimate conclusion on cause and manner of death was side not only by the coroner but artist fiancee but also the deputy coroner michael dunn are worth so that was strong evidence of causation and in all of the taking all of the evidence together the jury should have been allowed to consider damages for the wrongful death and i'll reserve my one forty four kids last fine thank you certainly all right we are ready to hear from the apple e's who would like to be and was correctly entered for all of the medical defendants both on the roof fifty judgment on the rule on the wrongful death claims and on the judgment following the jury verdict against one of the other medical defendant s and in both respects whose judgment should be affirmed first with respect to his own difficulty counsel with the idea that the evidence didn't even create a jury issue of causation of the death in part that's because i find it hard to reconcile with the jury's actual verdict and in part because if indeed gomez was he an organ failure by the time she arrived at the hospital it does make some sense to attribute the de to the decisions made at the jail it is important to read a why is this note jury issued at all it's important to recognize your honor what the the the status of the evidence concerning multiple organ failure and that requires the court to recognize that appeals and that's in the important importance of that distinction your honor is that the the evidence that the claims counsel refers to about multiple organ failure evidence that was in the summary judgment record is not evidence that was presented at trial and that that that was because of the court's somewhat difficult to understand ruling about the wrongful death claim the court was perfectly aware that that evidence existed the evidence of the organ and had the plaintiffs been permitted to go forward to the jury on the wrongful death claim the jury would have heard it the wrongful death claim was was entered in point in trying in trial after the plaintiff's case had been closed i believe and therefore that the record of the evidence presented at trial defer to the coroner portman when asked what was the cause of death was he simply turn of the car's report and said as it says well you know so they really are with the whole record and the whole record seems to point to already starting to show signs of organ failure needed to be someplace where she could be treated he said she needed to be someplace where she could be monitored and he doesn't speak at all to what the treatment for her case would have been but is it a sound organ failure that's ok organ failure is certainly a bad thing your honor we wouldn't pretend to be different but the question of causation depends upon the question of what could have been done to treat her condition whatever it was  well so we know she's not eating we know she's not drinking we know she's becoming badly to be hydrated these ten things are getting more and more alarming we have expert testimony that the inaction that the failure to do anything is contributing to her alternate demise and death and we have the coroner's report that say she died of starvation garner for suicide the coroner's report says that she died of complication which is organ failure and we have the evidence of that but that evidence is not what is not contained in the record of what the evidence was presented to the jury so what more do you do you know i mean i understand you think you might want to get into more detail if you wanted to  but you know but what is the play of have to do more and overly complicate what seems like a for only straightforward if horrifying path here because the caseload dressing both both the state law medical malpractise claims and the federal constitutional claims requires a causal link and it requires particularly as evidence by the state law concerning causation requires something considerably more than a stated in fairly conclusory form and allows in essence the back up in the probing to come in cross examination why isn't the combination a coroner's report and dr raber his opinion sufficient to get to the jury and let you take take shots at it in with contrary evidence and gross examination you know you could say somebody came into a room and shot her and that's what killed her not the starvation well for two reasons one is that there is no evidence in the record of what was presented to the jury of anything that happened in the hospital those six days as far as the jury if you want to do you want to put it in did you try to put it in there was no need for the defense to put it in that was not to be having here if yes to put it in because the coroner thinks that what happened intervention would have made a difference in her condition coroner says no the coroner says she dies at the starvation well and that it already happened by the time she gets to the hospital well but the the question though is what would happen at the hospital all that the plaintiff's ex wife demographics and i mean the corner rules out hospital based defense by saying that she dies of the starvation and suicide you know her the self induced starvation so the core having ruled out any hospital based things it seems to me you would be the one to say actually the reserve raging mers infection going to the hospital or there was you know the nurses you know decided to omit her room or you know  whatever hospital based thing that the corner rules that out but what the coroner doesn't speak to and wouldn't be expected to speak to is what sorts of medical intervention would have been possible to get is it your theory that she got poor care at the hospital the he just testified that way that's what he said that well it's not testimony first of all it's only the coroner's report and the report speaks only of complications that aren't identified in the report so it's there's no and there's no witness who smoot testified to explain the coroner's report so there is respectfully no way of knowing what those complications were and whether they occurred before or after she was in the hospital and that is the reason that you're going to is it your position that in illinois the medical staff it's all is permitted to allow a prisoner to commit suicide on their watch now in some states suicide is a voluntary choice and you can opt for it and one could say that that's what gomez was doing she was committing suicide slow is that the case in illinois your honor i don't know if that's the case and you know the the fact was it wasn't an argument at any time in this case that have gone as wanted to commit suicide then the defendants had no duty to stop or i don't believe so here are it certainly is is known that because she was in the process of committing suicide and the coroner's report does state that as the manner of death that that that if anything is the causation involved and that because there is no evidence regarding what happens in those six days in the hospital it would have been impossible for the jury to render a verdict to say saying that the cause that included a and as an element that that was starvation suicide and of course we do have the evidence in the record even if competent people can decide to commit suicide the doctor saying i didn't think she was one of those people and again you're out of the question though is what could have been done for her in the meantime why is it decided that the question we have plenty of law to suggest that if the doctors take steps that significantly increase your risk of injury or death that's enough the doctor doesn't have to you know unplug the machine so to speak it's not an all or nothing situation so i don't see why you know your your theory basically is if there's some evidence that the hospital could have turned all of this around which of course implies that the hospital was negligent by not doing that but  if there was some evidence of that then your clients get off the hook for the wrongful death well and likewise if that seems to be very problematic position to take when you think of this risk unhandsome and theory but the question i sufficient that case sets forth very specific evidence of what could have been done in a case identical to the one it was issued before that court right but of course in a case where you're already an organ failure position i understand your position on the terms of the real trouble with it but let me ask you about a related factual point if i understand this correctly part of the defense was in essence well we we can't intervene too quickly here because she may have first amendment rights issue that was argued in the trial court and you know sometimes fasting can be a form of political protest and so on although i gather there's no real indication she was communicating such a purpose but wasn't there also evidence that some of your clients the medical staff said they were needed to consult the legal department there that is correct is there any evidence about whether they did so in fact and whether they got any response i believe the evidence there is no evidence that they did it that answers your honest question  should we be troubled by that then that they they they thought well we've got to make this decision here we think we need legal counsel and then they never bothered bother to get it i think that would have gone to the question of simply of  that that again doesn't go to the causation you know actually doesn't it's not the only issue in the case so i know that that might have gone to see the question of deliberate indifference certainly may have played a role in the jury's understanding of the claims that did go to it and recall that the jury did have that evidence and while it was able to render a verdict as to the doctors it did return a verdict against jennifer beyond a verdict that has in fact been  paid and that in turn renders all of the issues that were at issue at trial any of the trial errors that the planet complains of harmless or well not really because if the wrongful death should have gone to the jury the verdict against ana was based on the cutoff point that the district court posed and so there could well be additional liability and if there were to be an issue at a trial if there were to be and new trial on this issue  certainly we maintain there should not be but were there to be a new trial that would be an issue for the district court to determine a new based upon the evidence placed before it is not issued before this court certainly not innocent and certainly the measure of damages if it's just pain and suffering for a few weeks in the hospital that's one thing if it's loss of life the measure of damages typically much larger and would have required additional evidence again regarding that connect right if any of course at that stage of the trial never happened i'm sure that would have been additional evidence that in there was but that was the claim a at issue before the court when that when the the jury was presented with evidence wrongful death was still in issue and yet that evidence of a connection to the death was not presented by the district court determined that there was evidence situation yet as to pain and suffering i see that i've consumed both my time and the time that mr given was tending to use no what we said this for fifteen minutes i'm sorry and i'm misinterpreting proverbial fifteen minutes of fame i was thinking that this may please the court good morning jeff given on behalf of the county defendants there is a lot to talk about i only have fifteen minutes and it's hard not to want to  kingsley was not applied in the state of clarke to a medical peer care claim in the sense that the state of clarke did not apply the objective reasonableness standard that was adopted by the supreme court so i want to talk kingsley there's also the vienna convention claim there's also the mo nel claim but i think first there were a couple of factual questions that he raised and if i could just add to the record i do want to point out that there is judge hamilton evidence in the record that c c s did call their legal counsel and i know that because in fact scott fish one of my clients when he was consulting and checking in with c c s to make sure they were following that their policy part of their policy is to call legal counsel and he asked mr keegan and nine defendant by the way if in fact legal counsel had been called and he was told yes filed by the defendants so much was sought daniels were paraded what do you think the consequence of that is it had not occurred to me to address the fifth amendment but i don't think it's so consequently it's pretty important mind requirement for fifth amendment due process claims certainly isn't forfeiture any reason why we should reach these issues on argued by the defense i would argue yes because the daniel issue of the fact that negligence is not enough is also addressed in the cases that we do talk about in the briefs is still moving forward  kingsley which discusses the fact that negligence is not enough so whether it's a fifth amendment due process claim or a fourteenth amendment due process claim i think without having examined daniel's  would be essentially analogous the issues raised with regard to the state of mind which are that the plaintiffs ever argued that negligence was enough what they were arguing jumping right to that perhaps the second part of was that an objective test should be applied to the reasonableness of the conduct the conduct itself had that having been undertaken somehow intentionally negligently recklessly you know viciously you know whatever whatever it is that their argument has focused on whether once you've got the conduct established an objective test applies here whether you go back to the farm or against brennan sort of standard which is part of the eighth amendment everybody agrees that applies to people in prisons who've been convicted for whom the presumption of innocence is no longer there so i'm not sure jumping right to negligence helps you too much well there's there's a lot to address in your comments  honor first thing i would say is that in fact plaintiff did not raise objective reason melissa at all in the lower court with regard except in the context of they said the fourth amendment should apply because get i must say i get completely confused by saying the fourteenth amendment didn't apply the fourth or fifth or eight the minutes are replying through the fourteen the fourteenth amendment is the thing that applies and then we talk about the legal standards of those other amendments so the plaintiffs were surely not saying the fourteenth amendment doesn't apply in that sense of course your honor but since the lopez case in the williams vs rodriguez case this actually applying that tripartite as we are due to this circuit has not fared very well in the supreme court and in the last couple of years on the claims by people taken into custody we are back at ground zero here so what i wanted so first of all so there with regard to crushing you know the time to look with regard to the question about legal counsel i do think the record includes evidence of that also i just want to clear up very quickly a factual misstatement or misunderstanding ms gomez was not in jail for the failure to appear for jury duty that's the resisting i understand when she's arrested for th unfortunate and mistaken jury duty problem right she pushes somebody and she gets charged with resisting and then she doesn't show up when she's supposed to and then that's what pops are into the jail she is still a pretrial detainee however n there has never been adjudicated of her guilt at this misdemeanor of resisting correct and she's dead but under the law as it certainly existed at the time she detainee and there's been some very significant thought in other circuits and signals from the supreme court in any event from kingsley one might think pretty strong signals that pretrial date detainees are subject to a different legal standard than people who have been convicted certainly on the other hand the supreme court has a mention in county of sacramento versus lewis which by the way was not a medical care case but the supreme court where you know went out of its way to mention medical care claims in the context of deliberate indifference and city of revere wish pre dates i'm going to remind you you probably know caressed supreme court didn't have before it that issue in the lewis case and you know and yet they and yet they reached out to talk about medical care claims in lieu is just as they could have been  deduce from the discussion of the excessive force context or whether that rationale flies to other contexts the court itself suggests a few others but it's not doing a comprehensive treatise that's not the way they work and that's correct of course but i do think it's important to put point out that even in the context of the eighth amendment discussions about medical care planes by the supreme court on the seventh circuit and in the cases which apply the eighth amendment standard truth fourteenth amendment due process but such but she stood up i'll just call it the due process claims that's fine but they do talk about a rationale for why a scientist or element is important well for medical care yes and no need we have tried and i will be the first to admit not always successfully that we have frequently said something along the lines of pretrial detainees are certainly entitled to at least as good as the prisoner and so if you apply the eighth amendment standard and you discover that that's been violated fact noted that exact same language you just pointed out and in each and every instance that i have found have punted said ultimately they say we don't need to decide it cure and that well it'll be hard to put in this case well except with regard to my clients your honor it isn't because as the discussion started earlier you don't need to reach the issue in this case with regard to the correctional officers both because of the waiver issue of what was argued below in the issues of judicial restraint having to do with the single recovery rule having to do with qualified immunity and while i don't have a lot of time to get into the details i think if you look at the record if you read the briefs you will see that even under look at the standards that are laid out you will find that the correctional officer that the correctional defendants in this case who by the way are not the correctional officers who were with ms goans for fifteen days it's the sheriff who had no personal involvement with her in fact was neither deliberately indifferent nor was he on reasonably relying on the medical staff he went he looked at or he talked to the nurse the nurse said he was she was medically stable that she was being monitored every four hours and that if anything changed she would be sent to the hospital and so i believe chief honor would meet the elements of the objective reasonable test as laid out in kingsley and its progeny same with scott should be avoided as in collins the result in this case would not change regardless of which standards applied and under the judicial restraint doctrine that's why i said i don't think you need to address the kingsley issue in this case if you didn't want to i do think going back with regard to if you would if this court in fact wants to address whether it should applied medical care i would add this or i'm sorry we may or may not have to decide with respect to your clients it's hard to avoid it with respect to medical care and and i would add that in this where i started a little earlier and i got i got sidetracked by myself the eighth amendment cases and the other cases which talked about is still and the rationale behind that do talk about the need in evaluating medical care claims and having a science or or a mens rea element and that's at bottom line but the line that's been used by the supreme court and other courts is they don't want to constitutionalized medical malpractise and by removing the science or that could well happen which has a real problem with regard to correctional staff who if  if there was no science or element we would be creating a system where jail staff who has no medical training at all would be in fear out of out of a protective self interest would passively be in the position of second guessing medical staff and saying oh i know they say they're doing ok and she looks all right to me but just to be safe i should send her to the hospital and that's not a good thing and there's no evidence although i wouldn't i mean i assume you're not served and there and in those cases i don't know why there's this giant chilling effect if that rules in place i see your point your honor i'm have twenty eight seconds left and rather i'm start something new if there are any other questions otherwise i would ask that this court affirmed the judgment of the district court in granting summary judgment to the county defendants on all things thank you very much thank you  huffed with regard to the liability of the corrections defendants i won't belabor those points we will stand on the issues raised in our briefs i would just say with regard to chief hunter who did actually personally observe ms goans confined to the bed in her cell lifeless and non responsive and did not act and with regard to the issue of bringing up negligence versus constitutional violation and thankfully i think the case law says it's not fatal if you don't pick the right constitutional amendment to argue that legal theories need not be argued i would fourth amendment in response to summary judgment and cited kingsley but as you say that that is of no matter now but in curry versus chandra the specific issue of the defendant and  the court held that the defendants countered that we should recognize a special carve out for doctors and nurses because of the fourth amendment subjectively reasonable standard resembles the standard for the common law tort of negligence and this argument was rejected in that context and we would argue that it should be rejected in this context to we seek a remained of this case that for a jury to determine wrongful death damages in this case for consideration of plaintiff's failure to protect theory and the claims against the corrections defendants and that the jury consider these claims under an objectively unreasonable standard pursuant to the supreme court and kingsley all right thank you very much to all counsel we will take the case under advisement