this course that reversed the entry of summary judgment in favor of defendants because the district court improperly disregarded mr johnson's evidence of his own subjective pain levels and instead inserted its own judgment on that issue to put it another way the district court ought to understood mr johnson's pain better than he did in doing so the district court made credibility determinations and weigh the evidence and deciding whether the defendant were deliberately indifferent to his serious medical condition resolving that issue of course presents a question of fact this necessitates reversal and remand for a trial to succeed on his claim mr johnson that he suffers from a serious medical condition and nd that defendants were deliberately indifferent to that serious condition the district court correctly agree that mr johnson presented sufficient evidence to create an issue of fact whether his hernia and the chronic pain from that hernia constitute a serious medical condition this decision should not be disturbed on appeal turning to the nd element which is really at issue here the district court disagreed that there was an issue of came from testimony at bench trial there is no such testimony in the records here instead the evidence from the court appointed expert dr toyama is that there is only one treatment for a hernia surgery review of the record he concluded there wasn't even any negligence right that the the care that was provided mr johnson didn't fall below the standard of care for treating someone with so it's the rare case is it not that you'd have a triable issue for a jury to resolve on deliberate indifference where you don't even have negligence respectfully your honor we read dr twenty ahmed's testimony differently dr that the only truth here for hernia is surgical repair moreover the record here is replete with factual issues regarding mr johnson's pain and it's true that the lane a surgery just going to necessarily continue prolong or exacerbate pain can be deliberate indifference in here there's enough issues of fact to put this before the jury i'll give you two examples st of all mr johnson presented an affidavit he complain about his pain at least twenty five times the district court simply disregarded this evidence that was improper instead it credited the defendant's medical records but even in doing so the district court found that these medical records establish that mr johnson's pain was increasing and not managed by the medication prescribed the st entry into district court's opinion on appendix page seventeen there's a chart in the opinion is a record from february two thousand and eleven in which mr johnson reported ibuprofen is an effective following month defendants prescribe him a lower dose of pain medication even though mr johnson complained of increasing four months later his pain is now to a seven or eight and the maximum dose of although the defendants disagreed this is an issue for the jury to resolve but this report reached its conclusion because it believes there's a difference between medical certainty and correctional medical certainty it seems that district court backed into this conclusion i don't know somebody one with a cleft palate or something but respectfully your honor this case is slightly different because there's evidence in the record that mr johnson's pain was increasing doctors testified that hernias can get worse and worse and the pain medication was being prescribed was not sufficient to just sort of manage his pain and that is why mr johnson at the very least should be referred for a surgical consultation to determine whether surgery would be appropriate or not and i think that's what disting surgery is a question for the surgeon not the defendant the general practitioners i'm not referring mr johnson for a surgery consultation and defendants left him in a catch twenty two they instructed him to exercise regularly to help is  indifference to a serious medical need johnson needed support or evidence that each of these defendants actually knew that he needed treatment to avoid a serious risk of harm but purposefully and deliberately withheld such treatment plaintiff has not  shelling it is just stupid in this case that johnson's hernia was never actually strangulated it was never incarcerated it was never in fact it there was never any indication part and urgent or emergent surgery to repair as hernia hernia would have been present for johnson's entire life dr two am i testified that the risks associated with the presence of the hernia do not increase over time the risks to the state and study explained johnson's hernia could be repaired on an elective basis with the expectation that the outcome of the surgery would be unchanged regardless of when it is performed critically a doctor did not testify johnson needed to undergo surgery to avoid a just schedule their elective operation and he confirmed that johnson's operation in this case would be considered elective store what if mr bradley's argument that separate and apart from all that you have a situation of pain and distress that's worse in over time and that trend line is what you know mitigates against the risk of any broad categorical rule medical providers in this case more than one hundred times johnson's affidavit states not that he complained of pain to medical providers twenty five times but that his medical record sometimes that gene is worse is described as worsening and sometimes it's described as near ten you're next in fact when you look at the records in this case you see that multiple months go moreover in september two thousand and fourteen i think the last time complains about pain to any of these providers here and that's that he's been bench pressing between one hundred and eighty five and two hundred pounds the records of this case condition how does that speak to whether or not he ought to have he generally the medical testimony in this case that would be inconsistent with a team with a patient who's experiencing severe pain from a hernia perhaps those two things are simply inconsistent with each other the medical records do show that the last time after that time  based on this record the court appointed aspart testified that he had no criticism of the management is the union of these provider that testimony would be insufficient to support a claim of negligence much less a claim of deliberate indifference and or order to show deliberate indifference a plaintiff must show more than a roni is judgement you must show that the medical professionals objective response is so inadequate that it demonstrated an absence of professional judgment such that no minimally competent professional would have so responded under those circumstances here the testimony from a general surgeon who has performed thousands of any repairs or injuries is that he had no criticisms of the management decisions of these providers as the expert testimony would be insufficient to support even negligence against these defendants is there are fully inadequate to exactly the point here this is the factual issue that the court determined on its own you left for the jurors on the subject of knowledge of the doctors is a subjective question which means it's an issue of fact of the  determine the argument that was made is that the the doctors the defendants so objective really determined that mr johnson's activity level was not consistent with the pain he was telling them he was experiencing but that's subjective knowledge of defendants that's a question of fact the jury must determine that the district court's determination of this objective fact is what constitutes reversible error therefore mr johnson request to support remand this case for a jury trial on these issues very well thanks to both parties mr bradley thanks for your comments and your briefing and will move now to