of confinement and specifically a lack of the type of evidence this court looks to and distinguishing the two types of cases that is there is a lack of proof of a person pervasive pattern of deficiencies in the provision of medical care with just a sort of set the table a little bit as i understand it the jury found orange county the jury found unconstitutional conditions of confinement and an episod there are two other claims that are not before the court that were disposed of by the trial court the first is there is no claim before this court of an inadequate training or inadequate supervision of the all the the trial judge did not submit that claim to the jury there was no objection and there has been no appeal from that and the second issue your honor that is not being challenge is that all motion for summary judgment defendant's move for summary judgment that the detention itself was not unlawful and then response as he has me on the plane have said they do not assert claims that the count against the county for unlawful detention the importance that is and in response the trial judge says fine that's now a moot issue but you're not going to be permitted to raise that again and that isn't their statement to that effect is that seven three seven one of the a part of the public record more importantly in this case plaintiffs approved presented no evidence that orange county unlawfully detained other pretrial detainees there is no evidence of a pattern of all lawful the time and there is no challenge that pretrial detainees going through a detoxing process and the observations so were held beyond that which they are lawfully permitted to be held and in fact are there any evidence introduced at all  with respect to any facts that are similar here where one who was in the detox bubble suffered any kind of injuries or was neglected  in the same sense that this individual note they attempted to do that your honor but the two that they presented were not related to the observations and in fact the trial court referred to them  i say there is no evidence of a pattern of serious deficiencies your honor there is no evidence of a pattern period and that is the point that the trial judge made and i both the fake i mean it's the jury did find and did they found it in that they found that the county had a condition of placing the talks he had a custom had a custom of holding an incoherent pretrial detainees suspected of intoxicated intoxicated on alcohol or drugs and the observation sale until either of the detained he was able to communicate with also a sufficiently to allow the officers to fill out paperwork or into the next visit and that is the finding there and in fact when their detox thing if the condition worsens they are to call a doctor that is the instruction of the standing order that these nurses were following so when the what the what the county does is the first thing they do when of maybe fifty to one hundred years or so when they scream when they come in as intoxicated if they are too intoxicated that's the point i'm saying it which they're referred to the emergency room once they make the determination of that they're going to put them  you know take two days to five days to for the detoxification process to occur it could be alcohol it could be a combination it could be cocaine it could be any number of things and which and what they do your honor is they put  in the infirmary and it is the cell that is closest to the nursing staff it is a matter of feet from the nurses desk the infirmary is staffed twenty four hours a day by in the briefs it's a standard pattern when you're detoxing you throw up you have diarrhea you take off your clothes da da da da da so how can a nurse who sitting  outside and doesn't go into the detox to check on the person how do they know it's other than just the normal detox process again limit yourself to evidence in the record yes or no and the evidence and all the nurses testified  every situation is different it depends ok it depends on whether the individual took the drug or alcohol you know for they threw it right before they came in or some time before defense whether it's a heavy user it depends on whether you know it's their first time it's what they took it's a number of different factors that determine how fast the individual would detox but when they're going through detox you know by definition the poison is leaving the body they're going to they're watching them hopefully get better and what the testimony indicates and record is that some of these individuals on bath salts or other speed methamphetamines things like that they will stay awake and then at the end they will start to slow down and fall asleep and when they wake up they don't even hold all the time know why they're there what happened and so that is exactly what the nurses anticipated was happening here now the standing order that the nurses have and they all testify that they of the standing order and sometimes they're able to do this in this case they were not but it requires them to check the vital signs every four hours it provides them with what they get a drug that they can give them if the individual is having trouble with we testified to but actually i mean that fits your argument i mean because your argument is that it was pure negligence in this case correct that your honor and here's the here's the problem with with taking and it had some verses of which your answer is here w yacht or if i could address that in henson versus wichita county there were claims made for a condition of confinement based on the use of albion's and last year and this court specifically said it was not going to look at episodic f point to that as she went through a variety of of the people put into the bubble act starts screaming getting sick daria then after several wild things maybe their check provided signs maybe they're not but that is the custom just of with gardasil what's going on really inside the bodies of these individuals lived just watched and they do things that would frighten most of us but the nurses are the custom of the of the jail is to just let the inmates go through all that and that was much to the very big make mistake with town but it was the custom of the jail to do it that way were not that but not of the condition worsened your are all of the witnesses said all the nurses that they follow the doctor's standing orders if the conditions worsen that's what they're there observing him in the bubble and they no longer can actually watch him because they were offended by the fact that his conduct was not because their advantage they have this jail has both male and female inmates and so if a female isn't there who just throws or if a male is and there is disrobed there are female pretrial detainees male days in the facility so what they do to protect the dignity of the individual as well as those who may be around them is to put up that they now have a screen that they use for the same purpose the record reflects they no longer use the paper but the purpose was your honor is that they would be able to see that their top of the and they but more than that your honor still even with that in place this is the best so for him to be placed in because it is the closest to the nurse they can even easily they can hear him they can easily access the door and they checked it every thirty minutes this is better than putting him in a medical isolation unit or some other use unit for the purpose is it talks and also correct that he stayed in there five days and was not allowed it was not taken to the bathroom and was not given any food well he was given food or water he was given food three times a day and he was given a large glass of drink and what what he through his drug was thinking is that they were trying to poison him and so he would throw the food but the the he would take steps of water and then throw the food saying they were trying to poison him but with their thinking to the bathroom or anything what they do your honor with an individual who's going to detox is they if they need of a bathroom they take them out if they if they can't get indict them out they try to entice them with cookies or something to get them out and his case he was afraid of them and so the choice was how do we get them out we go in with force and if they go in with force yana they have to go in  situation where they go in another individuals so they don't hurt him when the officers and that's the problem and so the decision this particular case was they did not bring him out they should have the pretense said at some point she would have been brought  out that was a mistake yes but it was not again they had a right to bring him out to be tried oh they did not in this case they did or your time is over would you state for our recording and also so that it can be directly addressed by counsel for plaintiffs what was the county policy that was found unconstitutional stated the county policy was placing an individual in a detox because which is an observation cell for feet or about that does not for me but a distance from right there in front of the nurses that is stationed is staffed twenty four hours a day by all the ends do check every and check all the detoxing him out boys every thirty minutes maids every thirty minutes to allow them to detox and if their condition worsens to call emergency room call a doctor seek medical help that is what they're there to do is to observe them to make sure that their condition anyone in need of emergency care be taken to the emergency room where it is a very lengthy health care plan that was approved by the state agency that inspects that approves these things and as this court this court looked at a very similar policy in cardenas an unpublished opinion but it looked at a very similar policy and said that was an explicit policy and expressed policy to provide medical care to detainees and i remember answered judge barksdale question i mean the jury doesn't even refer at all to the policy that you have stated but they found dred a custom of hold and incoherent pretrial detainees suspected of being intoxicated center in the bubble until the that in order to prove that policy they had to show prior instances in which the doctor was not call when someone can someone's condition worsened there is no evidence of that so you have to show a situation where there were failures of medical care failures to show take vital signs failures to provide other than this one particular case on there's a total lack of proof of a pattern of pervasive misconduct you know so you're saying there wasn't a policy of the custom now i'm saying there is an express policy this court a written policy yes well then how can you tell just jolly does if that's not the policy and i want to know what the policy is the written policy i guess about communicating there is a express written policy order it is a health care plan to provide medical care it is emerged to take them to a doctor emergency room the nurses all follow a standing written order there is a in place written health care plan what the plainest tried to prove was despite that plan to spite that expressed written plan there was a custom that is an unstated policy that is a practice that despite the custom to call a doctor i mean the policy to call a doctor despite that there was a custom and this court has always said that in trying to prove an unstated custom that is contrary to an express policy that the court looks for evidence of prior pervasive misconduct prior instances other than this particular case are you arguing that unless it can be shown that somebody else died even this was the call a doctor in another detox ing situation where the condition worsened whether they don't i don't know at least they'd that there was a failure to supervise and so i'm at least show that there was some other act or  l directly to answer judge barksdale question the written policy can you hold your horse up just a little bit the written policy of this county was  state approved and it required the nursing staff and the jailers to allow four to six forty eight hours for detoxing and what we proved to the jury eight good citizens of the of texas is that instead of the state approved written policy of forty eight hours for detox every single jail official testified that their custom was to bring in incoherent delusional deep pretrial detainees to put them in the bubble and leave them there until one of two things happened either they sobered up enough that they could communicate to jail officials that they needed a doctor or that they were fine or that the contracted jail physician might come by and i say might come by because the evidence in the record was very clear that there was no and he said he had a policy that was different from that quite different from that and you're not even arguing customs are you arguing that they had a policy or customs well i'm not arguing that they had a written policy that says put them in the detox facility and leave them there what every single jail official testified to including the sheriff was that it was their custom that's the way they did you show any other instance o anything some law to this instance occurring no we did not your honor and i do not believe that we're required to right then how could it be a custom if there is no pattern i mean the law to hold a county liable for this say about that we do believe we proved accustom to the jury judge clark agreed with us in his interpretation of the shepherd case that a custom if you are following th pattern of behavior the pattern evidence the pervasiveness evidence is necessary if you cannot under the hair case point to a rule or restriction but that judge clark understood that shepherd did not say that you must always approve of custom through a pattern of behavior so is that the legal issue here one has to prove a pattern in order to establish a custom that will hold  custom and we found that there was no pattern then you lose and were reversed the three and a half million dollar verdict well i suppose that's entirely possible for you to do so but i believe that if you follow the opinion in hair and it dictates for the bell test and of course we're talking about the bell test because we have a pretrial detainee who you may not punish right under bill versus  hair tells us is for the bell test to apply a jailer's act or a mission must implement the rule or restriction or otherwise demonstrate the existence of an identifiable intended condition or practice if a pretrial detainee is on able to point to such and established rules then he must show a custom or an act or a mission that was sufficiently as pervasive and what judge clark told us was he didn't read and nor do i shepherd to say that a the admitted testimony of a jail official would never be sufficient to show a custom and shepherd they didn't have the admission from the jail that this is how they provided medical care but we have that here each and every individual testified that when robert came in and anyone else like robert they were going to go in the bubble and they were going to stay there for as long as it took ten days where they say the policy issues i was contrary did was or evidence from either side of inmates in the bubble who did start to have serious medical problems and they were dressed in an ambulance was called is that in the record is all i'm asking i believe that some of the nurses attempted to testify that no one testified to any specific incident of when someone else was in the bubble and taken to the anything else that would fit within the policy as they say it exists no sir i don't believe so not from the record not from the testimony offered by the nurses or the jail officials you know what we were required to show in the condition of confinement case was three things evidence of their rule of restriction the condition that it wasn't related to a legitimate governmental objective and that it was the moving force behind a constitutional violation we believed and judge clark agreed with us that the admitted repeated and consistent testimony of the jail officials of their custom was sufficient to allow the jury to answer the question about was this in fact their custom then when we get to whether or not we put on sufficient evidence that this custom was not reasonably related to a legitimate governmental objective what we have before your honor's here now is a plain error review because as judge clark told the county failed in their rule fifty a to object to sufficiency of the evidence with respect to legitimate governmental objective we know that you're required to they brought it up in their rule fifty b but they did not bring it up in their rule fifty eight so now here on appeal the question is plain air was there any evidence of the absence of a legitimate government objective and what george clarke pointed to in his ruling on the rule fifty b was first the affidavit of probable cause which put the county on notice that you cannot continue to hold a pretrial detainee for just some unknown length of time but your honour's i think what the jury probably found most instructive on the fact that their custom was not related to illegitimate governmental objective is the fact that there i was so far removed from the state approved written policy of forty eight hours for detox each and every one of the jail officials acted as though that written policy was of no bearing whatsoever so on that evidence the jury certainly could have concluded that their their custom of holding someone for five six seven days waiting for essentially them to heal themselves was so far removed from the state approved policy that it was purposeless and they are still government did say that there were several instances and there was testimony to the effect that ambulances had been called doctors had been consulted  in instances that were quite different from this and they got immediate medical attention well i think what mr ball he was referring to was that at the screening process there were times and although i don't i don't recall there being any specific evidence at trial but i think what he was suggesting is that the screening process there were times when someone might be instead of admitted into the jail they would be sent to the hospital for medical clearance but it's very clear that once their custom was once they made it past that medical clearance they were going into the bubble and they were staying there until either they became coherent enough to communicate and finish the book in process or the doctor came by i don't believe there was any testimony of patient x or detainee y who after two or three days in the bubble we realized he was having some episode and we took him to the hospital i don't believe there's any record testimony of that so once we've gotten past the math to this is there any evidence of someone application this custom as you understand it existed having so many injuries short of death where is your emergency condition arise a serious medical condition arise was there any evidence of something short of what happened in his monta of it adversely affecting anyone else other than being put in that kind of condition being put in that kind of confined knows there i don't believe you're going to see any evidence in the record of someone else in robert's condition having had a serious injury or death but again once you've established that there is in fact a condition and the jury found there was a custom of holding incoherent delusional  pretrial detainees basically waiting for them to heal themselves once you've established that the custom exists that condition exists then the question under bell is whether that custom as it's as it is applied to a pretrial detainee is that punishment and we don't look at the intent it doesn't matter whether they intended to punish him or intended to harm him what herr tells us is this even if the state did not intend to harm him it is the imposition of the condition of custom alone that we get the presumption of punishment what was  to try to explain the agreed just calm down or absence of any response to this man's condition i mean it just seems like an all for awful thing that happened  but yet is there an effort to try to explain why it happened that he did not have happened before well while i was there their effort to explain why they did what they did was that they were following their custom we job description ok there were three l b ends and a supervising l b n so you have nursed plenty nurse per mentor and nurse dickerson and over the course of five days robert had a fair amount of interaction with each one of these then there was an l b and supervisor and her name was patricia waters she was a supervisor but she was just simply unable to get then you have the officers officer luciana an officer towns who had some participation in his book in process once they brought him in and made the decision not to call a doctor not to call his mental health care provider not to send him to the hospital despite his condition they really didn't have much more contact with  certificate program for example here in there in beaumont texas they would attend lamar institute of technology and they would have about a nine month program where they're trained to take down medical information they're not allowed to diagrams they're not allowed to treat but somewhere between lpn and and orally i mean i've read typically an r n would have a four year  right now these were basically information gatherers assess and reports of the physician as we can we can take judicial notice of what and they'll be and it was but i understand an l b n is just a special term used in texas and california it's the same as a lpn licensed practical nurse well i apologize i don't know what it license practical nurses and what all of its definitions are but but you're right of holding a delusional incoherent pretrial detainees his testimony was we were going to hold them as long as it took until they detoxify and if you are looking for his testimony that would unlike an episodic or admissions claim confinement is different that to prevail on a condition that can vomit claim the plaintiffs do not have to show that the sheriff or the state or whoever as a policy maker was deliberately and therefore there's going to be very very important and the hair said true jail condition case starts with the assumption that the state intended to call the pretrial detainees alleged constitutional deprivation and they said that this standard is a functionally equivalent to the liberty and the end and difference and why is that important because the owners show where i think judge clark play it said that the defendant has conceded the causation issue in the jury or he might and which you can do that in the jury are going to make a judicial and mission and then if you follow the court's reasoning it goes over and it says thus when analyzing the action or admission of a particular jailers or nurses the test is not whether it's negligence caused the death but rather the issue is deliberate indifference to robert manne tanos medical needs caused the death of robert mcdonald i read that wrong rather the issue is rather whether the deliberate indifference to robert manne tunnel's medical needs cause the death of robert mcdonald that's incorrect because herr says you don't have to pull proof in different deliberate indifference and if you go one step father own judge clark's  you know our review is to know so obviously we read the opinions of the district judges but we don't give deference to her and i want you to tell us why but for this what you call unconstitutional  for the issue is that when the council got up to discuss it on a jury argument after we put on a nurse who said the conditions of confinement cost because they weren't treating the detainees that that caused her death but the defense counsel in an effort to mitigate the damage the damage it was caused by the testimony in the judge ali you're correct the testimony was they put this man they stripped him put him in this sale without toilet paper water and left him for five days and he slowly deteriorated in front of where he was crawling on all fours with faeces and all kind of mass owning prine moan and saying help me get me out call nine one one and let me stop you we're not a jury i understand but you've got very little time so tell me why didn't you put on evidence at trial by medical expert that but for this confinement he would have lived i think we did you're on a what if the nurse and the dr goldstein they said that but for the the lack of medical care he would have lived who as negligence he said it was grossly negligent he says it was caused by renal failure it was in our hands and he should have died what does the judge in the jury got that they said that we caused and what what what counsel did is was trying to mitigate the testimony that's exactly what the county did they tried to mitigate the testimony against him and so they conceded proximate cause in an effort to try to get to the deliberate indifference the particular argument that he made was specifically that the condition did not cause the death and that's that's the condition of compound did not did not cause the death that's the language that was council was making just trying to distinguish between a condition and constitutional violation and something that doesn't rise to the level of due process violation specifically your honor you ask about whether there is anything in the record about someone actually being provided care plaintiff offered three false there is one and i wish i could remember the name out right now where an individual was already in the jail ok and he reported problems and told the nurse in addition that he had been on cocaine observation bubble you're ok and we didn't but that and slated the the other thing i would say is this is not a lack of effort on their part you know they were provided three hundred forty in my files and they did not so show a single one to either one of their inspected every year by the state the state inspector testified in this case when they go in there they pull twenty or thirty thousand actually they report show they sometimes pull forty medical files randomly and they look through and if there had been a pattern they w the inspection they did not they passed the inspection every year your honor this was a tragic situation but this is not a cost to tional violation this is the county has a system of of monitoring by two doctors they have two doctors that supervise the infirmary that are there once a week at least once a week they are to be there they have father albion's unlike in the henson case where when the all the ins went home the corrections staff