and in this case are what we can tell us is what happens once he's transported from the scene of where he's detained into the station house that's where the real factual dispute occurs here in the most basic the most basic question in this case is what caused christopher's death christopher on his death was it as the government says  e intoxication or as we contend that it was the beating that he was subjected to as should be clear from the record the district court dismissed or or just tossed out our expert forensic report which pretty much had very consistent findings was the out topsy report of the forensic science institute of the commonwealth of puerto rico the only variation there was the causation what killed what caused the death and that's really the discrepancy in those two reports in that sense survive your claim survive with out consideration of the expert witnesses report is it your position that that to re question is is that report which does go to causation really indispensable to your case my understanding is yes because it controverts then  forensic science autopsy report which says cocaine intoxication trauma and caught in the trauma was an accident how the how the forensic science office determines accident it's not entirely entirely clear because there is no interview with anybody at the scene there is no interview with any of the police officers how that scientists how that doctor arrives back conclusion is suspect answer the flipside of that for how can you show it was intentional look at the photographs that were submitted and in the appendix we've got also an additional expert on police practices that says looking at those photographs this is indicative of excessive force  what those photographs reflects it looks like somebody that that was subjected to a chain gang initiation that's a material that the district court never considered those are correct in its decision pretty much ignored those photographs of what happened in there we also have your honor a part of the protocol was when there is a death a prosecutor and a homicide detective have got to come in and review the scene and investigative an investigative homicide detective came in and described violence and that was not considered by th in my right that the cause of death is not strictly speaking relevant to your claim and i think that the cause of death is very relevant can understand why because you're not bringing a all you're trying to show is that there was excessive force yes so there could be excessive force even if the reason he died was because of the cocaine well in the pictures are the pictures i don't quite understand what the relevance of the cause of death is on your theory while our expert our expert witness what he says is what caused the death but i'm indifferent why do we care what caused the death what we care about is whether there was excessive force mean you clearly even in the absence of death you could have brought an excessive force claim right yes but in a sense you're the the death i guess your point of view strengthens the proposition that there was excessive force he died because of what your point of view what happened what was done to him is that was excluded but your own expert said that rojas suffered from some injuries that showed body trauma correct yes so if if if that evidence is accepted this is further to my colleagues question what difference does it make that the actual cause of death was cocaine overdose w appropriately the use of excessive force by police agents and then he was found dead in a cell in an autopsy reveals that the cause of death was prostate cancer that doesn't rule out that he was in fact subjected to excess as well i think that's the point of the question is this is helpful to you i guess yeah i know under under that under that logic then you can beat him up but it doesn't matter or you can shoot him and it doesn't matter because the cancer was going to kill many of the sometimes judges ask a question that might actually help your case ok and i think you've just heard three of them i think what we're suggesting is you don't if we understand your claim correctly you needn't show that the cause of death was the trauma you only need to show that there was trauma that would support a finding of excessive force yes ok and then our question is what a sign of what caused the death what evidence is there that there was trauma sufficient to show excessive force the photographs of my son yes the photographs alone so that goes back to just the presence questions you do you even need the experts testimony in or could you win on the basis of the photographs alone i think i do believe that i do need that expert report and let me backtrack which i think will but rest my answer there is one eyewitness that is not a defendant who says at the time that he was arrested all he had was a small cut on his lip i mean this guy had no markings on him and then when you look at the photographs it's they're pretty to sir so i do believe that  the v i understand your question but i do believe that the expert witness report because of that the contest of what causes the death i do believe it becomes critical in this case also with respect to the expert report in the you know we do know that the of the deceased was acting out in a rather in a rather violent what a in there is testimony about his  his thrashing about resisting being put in the cell and there's nothing that i see in in the in this expert witnesses report that explains how he he talks about blunt trauma by officers how does he ever explain how he's able to distinguish from the bodily injury why they were inflicted through intentional blows by another party as opposed to injuries he might have inflicted on himself because of the way he was like you know out while not specifically the way you're asking it but what the expert report does say is it that you know looking at the markings  and in the photographs and the evidence of trauma that this is indicative of stomping of and of just impact and i mean once once he's restrained it's just unexplainable the amount of law of lesions that he's got all over his body isn't that why the district court excluded your expert because in the district court's opinion the your expert did not rule out other causes for the body yes that is correct but isn't that central to the case well not necessarily i think i think judge with all due respect i think that's subject for cross examination do you have to be able to categorically pinpoint the exact precise  cause the case law isn't necessarily suggests that you know once there's enough facts discuss it you provide the expert provides a plausible conclusion that it's subject to cross examination it was one point i think in the your expert's report that seems to diverge from the government's expert's account apart from the cause of death if i'm reading it right but i could be wrong i thought you were expert says that there was evidence of who  alone would not be a problem with just throwing out the expert support entirely because on that point he does explain a conclusion based on his review the court and his expert medical opinion it shows contra crew whereas the government says the opposite while i that's basically judge the way i read that those are reasonable minds differing to that goes that goes to a test under under cross examination in front of the jury i do not believe that the case law then would support excluding an expert witness report because of a discrepancy between between two experts unless you want to keep this issue on the deliberate indifference there was obviously an altercation at the scene of the arrest as soon as the sergeant disappeared the ranking officer arrives at the scene who's who should in my understanding is that he should come in cold dispassionate he sees what's going on there he sees that christopher rojas is already under restraint he's acting bizarre his description was incoherent aggressive and violent and says take him to a medical facility and he allowed at that point in time for the two officers that had the heat of passion at that moment to override and to veto his instruction and to take him and set into the station into the station house right there in each police officer and there's on statement right after this occurred they're describing christopher rojas as incoherent looking purplish bu instead of taking him into a police station a theory is what if there was such a risk of a deadly overdose at that point that they should have taken him overdose or are just a psychosis whatever the case they may be they say that they didn't know that he was intoxicated or if it psychosis i'm just trying to figure out what the deliberate indifference is was he was either at risk of a physical problem in which case i understand the need to go to medical attention if it's just  psychosis which is a bad thing i don't fully understand what the argument is for why it was deliberately indifferent to restrain him in the holding cell rather than taking him to the hospital i would have thought your argument was that he needed medical attention because he was manifest himself in a way that showed yes health was at risk that's exactly like that's exactly the argument i mean even even the physical characteristics that these police officers are describing was enough for a douglas dynamic that hermann after an analysis that the report was insufficient and unreliable to support an excessive use of force claim because it was replete of unsubstantiated conclusions the then he applause those general medical propositions with the facts of the case now it could have been done more fully perhaps more area but there is a term to apply the general medical propositions to the facts of summarizes the injuries and he jumps to the conclusion without any connection as to why that was the cause of that it is our contention that he include medical factors trauma based on his observation as an expert of the pictures yes your honor in my opinion i believe that he saw the picture when he made me so what is the significance of the fact that these things aren't mentioned in the autopsy report he's a medical doctor didn't see any of that at all but i'm not understanding what the sequence of that is for determining whether the report comes in the expert report sorry another was you keep suggesting that because the autopsy report doesn't identify those injuries the expert is not allowed to draw the conclusion from the pictures that those injuries occurred well your honor is nowhere in the autopsy report and if they should doesn't show any the patient don't show and i invite the court to see the pictures me to his head well that's a very serious in the face but not in the head i guess that's what i'm asking is is the the experts allowed to base his expert report on his conclusions about the pictures he's not held and he basically and i have direct the court's attention to the appendix at eight hundred to eight hundred three where the court makes the analysis as to the fact that there was no reliable reports out we still have the pictures the pictures show on their face significant injuries we also have a separate report from someone who says that in his experience in the way floor they told him to calm down and when he refused to come down they have to put ties in his ankles to control him that's the have and it's once that happened they went out of the cell and they call paramedics and everything happened and with respect to the parking lot the plaintiff is not contending it was an excessive force you know not only not only that it's just based on speculation and conclusion there's an evidentiary gap that they're filling with speculation and conclusions there's nothing whatsoever he was not injured at all to the extent he that he was when his body isn't found him in the cell so there if that is correct if there is such a witness there is a basis for the inference that something was done to him something happened to him and the time he was put in that cell until his body is found and there is a i mean that's  the evidence shows that he sustained injuries we're not saying that were serious and in fact plaintiffs are not stating that medical care because he had a physical incapacity or he was hurt physically evidence that he sustained injuries there's evidence in the record that he had a laceration in his chin that he had abrasions on his body that he had a cot in his lip so obviously not all when you when you get hurt when you get hit expert view of the kind of forces used to restrain prisoners or detainees there's a question when those injuries occurred did they occur in the parking lot or did they occur in the jail cell i'm trying as in your argument is your argument that we don't know where they occurred or is your argument that it doesn't matter where they occurred because those injuries simply don't support a reasonable inference that they were of a level that suggests reasonably excessive force my contention is defendant's contention is that the injury only possible inference is that the arrest when there was a struggle with the police officers because the evidence i got a suppose i disagreed with you on that just considering the pictures of the injuries in combination with the experts testimony about the kind of force that needs to be used to restrain a detainee what is the government what is your position with respect to whether the pictures plus that expert suggests excessive force there is no way that it is that it was beaten anywhere there's no evidence we're basing everything on speculation those don't know no good beef could be from self inflicted injuries the person was also reference as they did in argument in their brief various physical manifestations that might cause one to have concern he is skin was pale his lips were black there was purple bulging at the temples  and it was enough to leave the sergeant to think that he needed medical attention so why don't those physical manifestations of concern support a reasonable inference that he was at risk serious medical risks in which one could think means he was at risk of an overdose which is a medical physical problem why is that not a reasonable inference your honor because there is nothing in the record there is no evidence in the record the paramedics the only problem was and i remind the court there's qualifying immunity in this case i remind the court that in fact the only issue is that we have a very violent person a belligerent person and the officers were concerned about the safety of the people of the city all they wanted to do was control you know the the of the person on the control and then under a can stroll circumstances we cuesta medical care let's have it as that they did not