it's number sixteen there six four nine two donald nichols versus knox county tennessee by argument not to exceed fifteen minutes per side and mr wood there for the  it's a good morning may please the court i'm david wigg lurve the knox county law director's office representing knox county tennessee like to reserve seven minutes for rebuttal issue one in knox county brief goes to the courts the district courts subject matter jurisdiction and believe that the stipulation of dismissal of an official capacity claim against knox county's nurse amy lux verd with prejudice ended the litigation under article three there is no longer was a case or controversy why not there that didn't they sue knox county on a policy and custom basis absolutely so why would it suit against her have any but i mean they sue ever every civil rights suit i know of they sue people in official capacity we dismiss it we dismiss from all that our district courts dismiss them all the time and we've the policy in custom claim with one major distinction your honor and that is those dismissals are without prejudice a dismissal what you're what you're arguing really yeah the nurse where the policy making this so it could arguably be said that the dismissal was bad or maybe it could be said that the dismissal was based on a policy or custom but here's this there's not even are any argument about that because she's not a policy making individual he was the supervisor under the fact that drugs are not a she's not a policy making individual for knox county the argument you were making is one that would be valuable only if you could be lab based on responding at sapir ear and you can't be under the applicable law is the court for now is your honest point that the if the sheriff was sued in his individual not necessarily but i'm saying we would at least have a place to start talking we don't even have a place to start here i'm glad i'm prepared to discuss race the state law suit alleged exactly the same state set of material facts as the federal laws quoted in our brief the allegations of the state court lawsuit were cut and pasted in the allegations of the state court lawsuit were the same now the claims were different the claim that was raised in the state court lawsuit was focused on two things it was focused on the negligence in a bunker assignment to the upper bunk it looks at the facts alleged under tennessee law you look at the the factual allegations of the complaint i mean but post creech you do yes but even well even prior to creech you looked you looked at the allegation asking you know was more of a claims issue right and then creech came along and adopted the restatement second correct and so it least it seemed to mean did it change the nature of what you look at that's right and and but even if you don't look at the complaints and the identical facts played into complaints even if you don't look at that if you look at what went to trial the claim for pain and suffering for the first seventy days of mr nichols neck fracture was part and parcel and identical to the claim for pup pain and suffering that was brought in the state court and i ask that you go ahead i'm sorry but the source of the damage yes well the but i mean the but claimed sin by the county was the bunk assignment that's it's not quite different it's been the failure to do to diagnose or the  you know the inattention to the to the neck injury but let me answer your question this way what if mr nichols had prevailed in the state court negligence action and been awarded all of his think assignment yes all of his pain and suffering from the broken neck that was allegedly caused by the bunk assignment was awarded that would include necessarily all of his pain and suffering for the first seventy days all of that even if part of that was additionally caused i think i don't think that's necessarily the case i mean i think that if i had been representing the county in the state court i might i would have argued that his damages could be limited to the bulk of sand which resulted in the fall that it didn't because he could not be awarded damages in that case for the delay in diagnosis because that's not what was that issue in neck case under tennessee law that argument would not prevail because a a torrent of that tennessee law doesn't rejects should principles were spectral your honor if it is a normal causation principle that the original tortfeasor is responsible for all of the injury caused even if for example medical malpractise and hansen's the injury the original tortfeasor is under traditional tort law is responsible for the entire damage caused in this case by the bank assignment so under tennessee law mr nichols would have send it counsel the cause of the fall i mean that i was in the top bunk i mean and i fell out that's what happened it's attenuated to say and approximately cause the from was the failure to diagnose it could have been diagnosed right away but it was not that's the nature of this clinton proximately cause would be the pain and suffering that the plaintiff endured from the fall if the fall caused the neck injury then then the proximate cause would go to all of his pain and suffering from the neck injury he would have recovered if he if he prevails in steak or all of this pain and suffering that's the point and i knew a procedural question about this so you tried to amend yes and the standard was futility yes and it was denied yes why aren't we were viewing that claim rather in the merits because in your brief you say when when the opposing side says you acquiesced and argues it's a dissent defense you say they waived it but that doesn't make sense to me because if the claim of rez judicata was never amended they would never have to raise because they don't raise it until you've got a valid claim for reds giancana correct yes and we're raising it under the proper standard because after our motion to amend was denied the plaintiff was given leave to amend the complaint because the  nswer to the amended complaint and then so you'd put it in response to be amended complaint it was properly plaid that's correct and then did you file explain to me again the procedural posture you then file a motion for s judgment on it on  i believe this was on a rush to cut it was a it was a it was a previously decided issue the district court instructed us bring your aunt through to judge to our question t the you'll have your rebuttal time it's in our brief specifically with citation for the record i believe this was a summary judgment motion but it was understood that this recorded ordered me not to raise it again and it was understood that she was not going to reconsider her prior ruling and ruling on futility yes it was it was instructed that if i would if i pled it she told me and it's in the transcript cited in our brief she told me that if i played it in our answer that it would be stricken i somewhat complicated at least the briefing on this case from both sides and so i do believe that a brief recitation of five critical facts would be very important to the resolution scarcest we've got that firmly and i what's this over eleven years i don't believe i've ever asked for a requested to brief the court on a recitation of the facts but in any event first of all mr nichols did fall from his bunk almost four feet on august twenty seventh two thousand and ten and second a did not encounter any one a medical provider until november fifth two thousand some seventy days after his fall from the bunk and third i mean after almost five county about about these defenses it was made in the context of these multiple filings he would file a motion to amend his answer the court would did not on proper burial grounds and then in addition to that he would file a motion to re it was there an unfairness we're told there was he was allowed to assert those defenses and his amended answer he denied he couldn't move on i'm i'm not sure i understand so that's essentially saying you can assert if i say you can  defense but you can't raise that it's not a defense or head of the court had considered these arguments multiple times not just once not twice but at least three times the same defenses and the court got frustrated  i'm tired of hearing this this is this is these issues are settled for once and for all in this court court gives a very clear instruction from the bench and i would acknowledge that counsel for notts county actually forced the court's  hand during one of these hearings about making this grandstand about how the court could not or the kid the parties could not move forward in the case without a ruling that day so the court took a recess this is all in the transcript and then came back and then dismissed all of this way creech is not overturned massengill right creech has stayed stated the new test and if you look at the ten cases post creech that cite massengill they only cite it for the proposition that you can't race equally bring the same claim what they've gone to is the creech test in tennessee in every case post creech has gone to the restatement second and that test as i see it and you tell me if i'm wrong was not applied by the district judge to determine if to be cited and the district court judge read stated very clearly there was not a doubt in her mind with regard to this issue under tennessee state law that masculine maned good and effective law that creech did not overturn that but i think she said that there are there is no doubt with regard to the facts and the claims being different in this case the facts being that the facts in the state court case essentially ended once mr nichols fell off his bunk on august twenty seven x as presented to the jury what he would fax to me the facts that as they were pled and the resolution of the state law claim the negligence claim the negligence claim ended in state court from the moment out i think it would probably be too much to hope for the court jury instructions would be a part of our record there were no state court jury instructions this was a issue that was designed decided on a motion for summary judgment they were competing motions for summary judgment in the state court and the circuit court for knox county ruled against the motion of mr nichols on his partial motion for partial summary judgment with regard to the medical expenses and the dyster and the circuit court granted the county's motion with regard to the negligence claim and they relied on and the basis for that decision was a case of tennessee supreme court case king versus andersen c distinguishment and quite confident that the skilled lawyering on the side of knox county if we have gotten farther in the state law claim and the court had not dismissed the case that that would have been precisely the argument that the damages in the negligence case would have stopped as at least with regard to the fall and then the pain and suffering and i would be know for this court that we're not dealing with just pain and suffering we're dealing with mental anguish dignity  so it's not just pain and suffering when when i understood mr we were to indicate that the jury returned a verdict that included the damages that were it is huge here  jury finding it ever got that forbes decided on a motion for summary judgment and and the acquiescence issue is precisely why this is concerning you have a case that is litigated simultaneously in this is not unique  in this area of law where you have a federal claim and you litigated in the federal court and then you have a state law negligence claim and you litigate that in the state court happens all the time this is not some unique beast or bourbon here also happens all the time the people file nine hundred eighty three suits and colleagues may disagree is an issue and i don't know how comes out i'm just saying that this isn't tennessee supreme court as i read it was pretty clear and it's a later decision that says look we look at a common nucleus of operative fact and then you have to analyze this my colleagues decide the complaints next to each other to see if there's a common nucleus of operative fact that wasn't done by the district court at all and so a but what's the acquiescence argument become a nucleus of facts there are very distinct differences between the state law and the federal law and the federal claims in eighty three and the district court especially with regard to the amended complaint that was filed in the federal court it dealt specifically with the mon e claims against knox county at that point there howard had already been voluntary dismissals with regard to the individual nurses and so there was at least an effort on the part of the plaintiffs to attempt to try to narrow down and kind of refine the claim so that we had something that we were working with with regard to knox county in this liability and they were they filed a motion for judgment on the pleadings with regard to  complaint in the state law court as well but but none of those facts are the same the operative difference is i'm sorry to interrupt you but your argument is judge even if you apply creech we win yes but just to i want to go back to my that that we don't get to rave the right is the acquiesce issue until and unless the court actually allows them to amend it and your honor it seems somewhat disingenuous to litigate two cases simultaneously in both courts here and not at least preserve this issue not at least take the effort to try to consolidate the issues if they had an issue with regard to be a best then you know two years after the district after the circuit court for knox county had dismissed the state local and then attempt to amend your answer and they baited us into that it's like a snake in the grass and that's what the court and that's did did they specifically acquiesces my question and what can we look to to find that well we can look directly to the answer in the state law plain that tunisia and the answer they never preserved any of these issues and they were preserved cotta none of these issues were how would they were ages are counted doesn't exist until you have a final judgment well they can still raise it in preserve it and they can i don't understand   but they could have attempted to amend it earlier when the case in the state law court is continuing to be litigated they could have asked at any time to try to consolidate these case they didn't do that they did nothing quite frankly until they had a final judgment and then two years after the district court had made its decision to dismiss the state law claim then they come into federal court and attempt to raise the issue which the court district court there was at least a motion to all term in the order and i believe that there was a time i will of that and then they filed another it was essentially same argument they would couch it in different procedure of  with regard to creech we believe that we still succeed on creatures well again we believe that these are different facts based on a comparison of the complaints we believe that these are different claims quite obviously with regard to a federal civil rights this court firm in all respects the judgment of the eastern district of tennessee thank you i've been scribbling notes and looking at the record i want to answer all the court's questions we filed first the motion to amend the answer that was denied second to rule fifty four b motion to revise that ruling raising creech and emphasizing the change in tennessee law that was denied when we had the opportunity to file an answer to the new amended complaint we raised these defenses we followed that up with a summary judgment motion trying to be very respectful to the district court that had instructed me not to raise these issues again but yet preserve them for for appellate review and summary judgment was denied so three times we raised it three times it was rejected the the one factual overlap between the two complaints that we haven't discussed was the claim for medical expenses there's a an identical claim in the state court action for two hundred forty thousand dollars in the plaintiff's medical expenses in both cases the state court the complaint of course is in the record it's a joke seven hundred seventy of the record it's document one five why didn't you move to consolidate the cases how would you consolidate a state court negligence claim in federal court there's no but there's no jurisdiction there's no you can't remove it how would you possibly consolidated how would you bring a federal action now the state court the state court has no authority to do that and the federal court has no authority to the  he decides to percy absolutely he was master of these complaints and the district court to answer your question judge never looked at the two complaints under under krege never compared the creech came later and so creech arguably controls that's what wrecked that's correct and i think it's very important for the for this court to address that and we've asked in two ways that that be done the most perhaps respectful way to the tennessee supreme court is to certify the question under rule twenty three we filed that motion in this court for certification of that of these questions to the tennessee supreme court and that was referred to this panel so the most respectful way might be to certify this question to the tennessee supreme court otherwise we think that creech clearly overruled that part of massengill that the district court relied on the the massengill opinion not me of what year creatures decided reach was i believe two thousand and nine right there we you know you've got on your right there  it wouldn't same a little odd to certify that question when we have a number of years subsequent to creatures of both the tennessee courts and this court applying can if they race judicata principles and they wouldn't one think that we would need to ask the tennessee supreme court but that we would be able to competently divan on our own what the state of the i certainly believe that's the case and i think the court could could find that the creature abrogated that statement one statement in massengill that's troubling and it's the definition of a cause of action  that's a little bit surprising to us were usually articulated in the complaint and the complaints here are entirely different often we think of a cause of action generically as a claim and that's what the supreme court did prior to polling vs goings federal claims under one thousand nine hundred three could not be brought in tennessee state courts or your county your your posing counsel argues ok apply creech even if you do and even if you look to whether the two suits arose from a common nucleus of operative fact they don't well they certainly do if you look to the complaints absolutely i urge you please look at the state court complaint in the record look  at the facts pled and compare that to the federal complaint they absolutely do their cut and paste with a word processor well i don't think it had to do it that i just continue why you are i'd be happy to i prefer to address your question than i know want to start you off set up at this point because you don't have enough time to address it well i do x where i was headed anyway your honor well take whatever time you have left but not anymore thank you thank you  this is a case involving an attempt to multiple bites at the apple had bites in state court bites in federal court then they had bites against the nurse and bites against the county  and when we discovered and when they filed the stipulation of dismissal we sought through discovery to get their release and find out the amount we're entitled to a set off we're entitled to due to t judgment to be dismissed to be the case be dismissed we asked of the district court be reversed we thank you both for your argument and will consider the case carefully thank you