is the jail the medical professionals in this case that they have sued should have done a better job but one of the striking things about this case is both in the trial court and here the only thing that they have to rely on  making that claim is to lay arguments of their own attorney's counsel help me on a preliminary issue before had to that is this motion to strike it looks like all the documents that are proposed to be stricken were considered by the district court so i don't understand what the motion to strike is all about your honor that that just is not accurate ok help me sure  sure after the briefing was closed the court said a scheduling order we had oral argument the matter was taken under submission are you talking about briefing in district court now that's true  summary judgment right the summary judgment briefing down in the trial court the matter was fully briefed in accord with the timeline issued by the truck or judge after it was done court said that she wasn't going to consider any of them that's exactly right and if you go back and you look at our notice of appeal we had included that in the notice of appeal but on further research we determined in house that's such a good reason to come to the th circuit it's this court court scheduling order abuse of discretion standard and so we left it alone so they have theirs that they had it from an expert from it that a doctor that sad that he would have that the deceased would have survived had he been taken well but he didn't say completely but what could a start a chance that there was a surgery that could be believe that that's down there but that's a causation issue this not so much in front of the court what he said that we wanted in front of the trial court was this individual died as the coroner said of an aortic dissection i good part is you never even get to causation and the judge says the district judge i don't need to look at the good part or the bad part is that what happened that's exactly what happened the trial court judge said briefing is closed i gave everybody my scheduling some level was it doesn't really help in saying whether there was deliberate indifference it basically would go to later why the person you know that it that the person died and damages and any number of things if you find if you find that that for analyzing for deliberate indifference we have to look at what each person knew at that particular time and we also then have to which it would seem to me that the analysis while we're looking at the same law and we're looking at at a serial type of thing it may not even be exactly the same as to each person that it's in the line i mean obviously if there was a person let's say if there was a person that didn't see the deceased didn't you know was just somewhere else in the office and their name were included and they had no information about anything they had no authority t weren't a nurse they weren't anyone well that person likely would not why would they be being sued but of the president of discord they would not have a clear right to say and i said but still when we look at the people that we have we have t  st nurse and then the nurse calls the doctor then the doctor says certain things then we have another nurse later so our neighbor ninety arguably and this occurs over a period of how many hours something like fourteen her something like that right something like that i have it and so the last person may or may not be in the same position as the st persons or their doctor that took a phone call and didn't actually so we have to look at all of what and give all inferences to the deceased about living in the lawsuit i'm having i'm having trouble understanding now i'm just talking about the doctor at this point not ok why he is and why there isn't a jury trial case on what the doctor was deliberately indifferent to your honor you got the object the part it was a serious condition you got the subjective part in that he had the calls from the nurses and a young woman if you're unable to come over and look in the calls or for what seems they may not know and he may not know exactly what the cardiac problem is but it's pretty obvious that there's some kind of cardiac problem unless the patient's faking it or not i you are going to try to help out those who are part of my job when i'm not in the th circuit is to listen up read and study this court's opinion because it's not just an academic exercise out there in the real world these things matter to the public employees in this circuit and when this court says something question about what needs to happen how it needs to happen that's clearly established law in my book and when we get that information whether it's the social workers for our clients could you come back to why deliberate indifference by doctor we was on a jury question this court has never said not even once that heart pain of the type that was presented by this individual with no prior history of heart problems or no reported health problems of any t he was thirty years old he came to the nurse and the nurse doing her job said well you know we don't have any good answers for your chest pain it was flu season it's middle of the winter the nurse says how can we help you have any explanation for what's going on here and he volunteers yeah i've got a lot of time to kill and i myself am awaiting sentencing i am nervous i am anxious and on top of that doing pushups well the nurse applying her medical knowledge and common sense with the job population that she deals with says here's a thirty year old in the individual and i asked him it intake and they asked and during the course of his complaints repeatedly she in fact thought if we can't just blow this guy off we have to call the doctor and that's why they're not deliberately and different because when you're out at the doctor's the one that i asked about your honor where is the clearly established case that told that doctor but that can answer because i tend to agree with you on the clearly established we can flesh that out but and maybe what judge kleinfeld asking i don't want to be presumptuous is is there an underlying constitutional violation because you could have an underlying constitutional violation but it's not clearly established and you seem to be focusing on it's not clearly established is there though an underlying constitutional violation even if it wasn't clearly established no because medical professionals are judged not by what we all know at the end of the movie under the constitution and under california tort law for that matter it's what they know in the moment and i agree with you but he it the one factual hang up i have is the nitroglycerin right they gave him nitroglycerin at one point that is inconsistent with thinking that this is just you know someone who's nervous or having an anxiety attack then when he comes back and says hey the nitroglycerin isn't working and then they sort of give him i think the game aspirin and  profound yeah and so it's dats where i'm hung up on there's something that didn't go right here now that doesn't mean it's a constitutional violation but it's different than just saying hey we could've figured this out somebody at one point during this time thought that it was pretty serious to give nitroglycerin so could you address how that all fits in to gather your honor but forgot the doctor again it's our job and other law firms that work for the county to read the court's opinion you clearly establish i'm telling you i'm sort of with you on the clearly established part i want to know is it an underlying constitutional violation when you acknowledge that it's a serious isn't giving someone natural glycerin isn't that acknowledging that it's a pretty serious condition you're in or that's the exact opposite of deliberate indifference deliberate that's not my point once you give it and recognize it's a serious condition then to go in and say well now we're just going to give you motoring they usually that works in reverse order start out with a motor and then we'll go up to when you start out with nitroglycerine and then you come back and say well that didn't seem to work so we'll go ahead and give you some motoring that's confusing to me and why isn't that deliberate indifference set aside the clearly established i got your argument clearly established i want to know is there an underlying constitutional violation here by treating it seriously recognising it's arm and drop rommany nausea shortness of breath hands and feet and it's hard also to divorce the case from just so ordinary knowledge that pretty much everybody has that you call a doctor's office with those with those symptoms or your wife or secretary or somebody reports those symptoms that the doctor just says send him to the emergency room immediately and that's what happens the ambulance comes and they take people to the emergency room i mean it's classic heart attack symptoms as for exactly what's the matter with the heart you know find out to have done a bunch of imaging but it's just classic heart attack symptoms i don't see how dr we as opposed to the nurses  isn't being deliberately indifferent when he doesn't say send him to the hospital your honor with respect i believe the court is addressing california state tort law and they have  not well i'm just addressing the federal constitutional question a deliberate indifference as i understand it has two components to it st of all there has to be a serious medical need there has to be an object of component of a serious medical concern and a subjective component of being more than negligent but had the really less than intentionally had hurting somebody if this individual what's complaining as he did pain radiating the way that it it doesn't work i think the nurse i don't see awful low or whatever however said that name for sad yeah i know we have a policy when the night charge doesn't work then we're supposed to send them to the hospital this is there some policy like that  internal orange county policy that was said to keep our people away from this court well ok but but what i'm saying if there is a subjective component and she acknowledged that she was aware of that and she said that she gave a nitrile it wasn't working wouldn't isn't that certainly make a triable issue as to whether she was deliberately and different at that point your honor i don't believe so and the what and the reason why  i'd say that is the constitutional law says that a nurse and i applaud as has been a lot of briefing in this case but i briefed at the other day to another court if a nurse reaches out to a higher level of care because she's practitioner the record shows nurse travail did the right thing she reset to a higher standard of care and said what do i do and she was told that that point cerin point doesn't that show the exact opposite of the type of callous indifference that deliberate indifference was meant to address is there a budget issue here or does the jail lose money out of its medical budget if it sends people to the hospital and has to pay a hospital bill your honor i don't know i was i was trying to figure i mean i everybody knows when we can pretend not to that you won't even get to the doctor with the symptoms because his nurse or his receptionist is going to say send them to the emergency room immediately we all know that and that's why it's so odd that doctor we didn't say that and i was trying to think of why and i you know i haven't read all the discovery in this case i don't know what everything is in the record in this case i just heard some of the excerpts and i was thinking point that the reason why they'll be less money for everything else in the medical department i think the problem for this individual is to see that was is you medical that it's here you cuts against them but a lot of people since cocaine became fashionable you get a lot of young people with heart problems and all doctors know it well your honor at that point he had been in the orange county jail and presumably away from that type of substance for somehow they don't have any dope in the jury health your honor no i problems even when he was repeatedly asked and his explanation he gave an alternative explanation  but it wasn't deliberate indifference that's exactly right your honor and they do have that claim in this case that's not up on appeal and maybe that's a jury worthy claim on down the line to have doctors do we have talked are we saying the reason i didn't send him to the emergency room was his youth and so forth he yes that was part of it he was already said i want to read it in the excerpts your honor i would like to be able to point you to a page  but i can tell you that's what the man said i'd like to i just want to read it so if you can tell me where dr we are you know i'm sorry i'm sweet taken you over but this is an important case and there's obviously a lot of we have a lot of questions so should we have more questions now why don't you take a sate i'll give you some time for rebuttal after i hear from the other side and maybe you can find that page for us but i'm going to try ok this motion to strike does any of it matter if it sounds as though as judge callahan said it just goes to causation and damages it doesn't go to deliberate indifference i don't think it necessarily matters it's difficult to know for sure everything considered by the district court judge but those were part of the record the digital day she wasn't considering and that parts less clear to me but it didn't the district court when it denied i took it when they denied the motion for the supplemental briefing that that was then excluded from that but very well i don't think it really matters to the issue you have to decide here i don't think because he's let me get to my next question that's my next question is as you could probably  from my questions i'm interested in the possibility of deliberate indifference by dr lee for the nurses the whole bunch of it looks like they had a patient to look like he was in a dangerous situation acute distress so they call a doctor and ask the doctor what to do and then they follow his directions and as far as i'm aware that's what nurses are supposed to do and they did it they're supposed to ask the doctor what to do and do what the doctor says and i don't understand i understand your case against dr levy for deliberate indifference but it's hard for me to see the deliberate indifference by the nurses what did they do that's deliberately indifferent other other leaving out the theory that had was deliberately indifferent or well i'd like to address that because i think it's important to consider the context of the jail setting where the nurses are there and the doctors are not and the nurses and as it pointed out this one over on for fourteen hours and they all documented the symptoms themselves and observed the symptoms themselves i listed about twenty different symptoms indicated in the records which are their records and that's i think they did they just say i use a criminal forget about it he's lying or did they call a doctor and ask what to do they call the doctor and one of the nurses called the doctor but i think what's important and judge callahan addressed in a way as to judge nelson is that the nurses have the ability and the authority to call the paramedics and for someone to go so why should they could have sent him to the hospital by themselves what the doctor might things who doesn't even see the patient in this case in other words the conversation was over the phone look every i don't think it's disputed that they could have sent him to the emergency room themselves they were compelled to do what the doctor said but ordinarily nurses do do what the doctor says and the hard for me to understand why it would be a constitutional violation not for that i think the district court did a good job in the order and summary judgment breaking down both the objective component and the subjective component for each particular defendant the information they specifically had and what the evidence of deliberate indifference was nurse t f follow she had information of nausea vomiting hyperventilating chest pain pain increasing condition deteriorating a deceased asking for help saying his chest really bothers him was aware the nitroglycerin was given and that's a key point we believe here you don't give nitroglycerin to someone unless and you made that decision the nurses gave him nitroglycerin because there's aciphex training and policy says if you have evidence of a possible cardiac problem which i think the record is pretty clear we had you give nitroglycerin there's another thing they do typically if there is some group of symptoms that suggests a possible heart attack they take a blood sample and they test for a particular protein it's humid from the heart when there is damage to the organ and i think i can remember him where he saw it i thought they did that somebody gave him that test but i don't remember i don't believe you know the whole issue is but were there any results back from that test to take a blood test i don't not that i'm aware of judge nelson i think the whole issue which is pretty obvious what should have been obvious down to the nurses but even a lay person if anybody had the symptoms that we're talking about here even a nonprofessional if you had a family member or friend whatever their age you would take them to the hospital you call because at the hospital they can do things that we can't do  but that gets you as far as medical as negligence well i don't think we're way beyond that because why he came in and they met with him every time he came in i mean it doesn't show a deliberate indifference as if they weren't trying to figure it out they may not have been giving him the most competent medical care they virtually did nothing for the well they give nitroglycerin and the girls don't but that's the problem because their specific training says you give them the if it doesn't alleviate the problems you send them to the hospital that's it you send them to the hospital and it's not only did it pretrial detainee has a serious medical condition there has to be addressed it can't be ignored and if someone's having a penny on a vent that d is potentially life threatening do we really need a case to tell us that that person needs to go to the hospital do we really need that a nurse or doctor would know that too is that your argument that this is so clear that we don't need a case is that your argument is part of it that's not the whole argument judge nelson but that's part of it because you're right the supreme court has said that but those are very rare circuit but i would say this with all due respect to the call of the era of qualified immunity i think an argument could be made that it may be taking being taken by some to far the supreme court position issue with the supreme court well the supreme court in part but maybe more the way it's being apply by some i'm going to agree with you ok when at the point that he slumped over and he's non responsive i don't think you need a case for that ok then so i agree with you there the question is we do get criticized for describing things to generally as opposed to more specifically and so that i understand that and and at some point if let's just say the st hour with the  nurse i think you're in a different situation then you are at our th well i agree i think it's a sliding scale but i think the game changer is when you have the cumulative symptoms that he had and i hadn't listed all of them but i think you're aware of them from the record and then they give the nitrile when did the appointed they give that that was early on judge you know for that was like twelve thirty in the morning it's like ten hours before an hours where this guy and for four hours they never even saw him he never even went to sleep he literally thought he was going to die and did die and was crying out for help and this really isn't a regis case i'm just imagining this young man a pretrial detainee at thirty years old who just wanted to go to the hospital and see a doctor that's all they had to do is pick up the phone did he actually has to go to the hospital he asked to see a doctor now i don't know again he's dead and we have to scrutinize the record but but what i'm trying to say is that if we're going to get to a place where someone has twenty complaints consistent with a cardiac serious cardiac problem where the very defendants in the case know that a person could die from that and needs to go to the hospital their own training tells them that and we're going to say show me a case with these specific facts around us your out of court and all that and that's an overstatement but look you're this is a constitutional violation deliberate indifference is he is a high standard so everything that you've argued about there's no question i don't think you can find a lack of sympathy you know here i mean we're all very sympathetic to what happened here but the question is does it rise to a question of deliberate indifference and the answer is yes but i would just go one step further at this point that's all there has to be is a tribal issue a fact you don't have to conclude well we have to we have to deny qualified  a qualified immunity but there's even cases that we've cited where there's evidence of deliberate indifference if a jury makes that finding and we feel there's an abundance of that but you say that's what i want to know what cases do you primarily rely on as i read it it was the long  that's a different type of case in other words i could imagine judge nelson a situation where they didn't have the symptoms they didn't know it was a potential cardiac event death and life threatening and then you could say well this is kind of different we might need a case to put them on notice but through their own testimony when they're saying that yes based on our training this is life threatening this is cardiac that's why we gave them the nitrile and then leave in the dying over the next ten hours i would just say basic even the basic eight the men st principles of addressing obvious serious medical needs were covered this and we didn't cite long because it has a cardiac issue and others like to say that you would from our perspective you would need a specific case to let them know we don't believe that you do i mean that is we think it's so obvious in this case that he should have been sent to the doctor and i would hope in the future if they have a similar situation they'll send that person to the doctor because anybody has that right and i do think it's a subjective information each defendant had even the nurses judge kleinfeld what they had what they knew and why in her pinioned there was evidence under understand my question about the nurses is a little different from the one that you're addressing you're addressing whether the nurses knew enough to know that this guy's in serious danger of death on account of a cardiac condition of some sort that is not my question i'm saying assuming that why don't the nurses avoid the constitutional violation by telling the doctor what's happening and doing what the doctor says that after all is what happens when a patient goes to a medical facility or hospital and my response to judge kleinfeld would be the make up of what was happening in the jail because the separation is not that different when you go to a doctor's office or even a hospital often doctors don't see you just get a bunch of power medics and nurses and nurse practitioners and whatnot and if they don't think it's worth asking the doctor they don't get it but the what the distinction i would make judge kleinfeld is this there are no doctors at the jail facility there was one call made to a doctor there seems to be a dispute as to how much information he had he says he had limited the nurse as i told him everything but that has to be taken in your favor but given that the nurses are seeing him throughout a fourteen hour period there's fifteen minute phone call to a doctor and they should fired i agree with you there judge callahan it just doesn't seem like you can get off the phone with the doctor he tells you to do x and you try to run into why but if an hour goes by two hours three hours you have new symptoms you have an increase in pain you have increasing problems hours are going on you have the authority it's early in the morning to get this guy to the hospital now i know you think everyone should be included in this but which is a great that we have to analyze each person in term separately yes and that arguably and i'm not saying that that's what we would do or out because we haven't even talked about it that we could find that someone's entitled to qualify immunity and someone hasn't care and when it's not it's not it's not one size it's possible but from our perspective well i know from your perspective what you're going to leave it all aside have to look at every one separately absolutely i absolutely agree because we think the law was clearly established i understand judge nelson's concern show me an exact or very similar fact pattern i get that but we believe this is the court outlined in her order there was sufficient evidence on each defendant because they were there they were observing it they have the specific and we think at a minimum for each defendant it's a tribal issue of fact for the jury i'm trying to find out what they should have done that they were that their deliberate indifference caused them not to do it was it so we had to send him to the hospital or fail to call the doctor  time or what i would say three things number one they should have gotten right to the hospital should have called the paramedics after the nitrile and thank you all the paramedics you mean down nine hundred and eleven call nine hundred and eleven and said hey we got a we gave him the ni there's no one he didn't not only did he not be entered into the hospital said in the hospital that's number one number one they should have called the doctor back at some point or try to enduring this ford think it was about ten hours judge nelson in between and i think that's important in this case the length of time and the length of complaints as opposed to just one visit with a couple complaints and that was it and the rd thing is if you look carefully judge kleinfeld at their training and protocol on the nitroglycerin they didn't fall that because they're supposed to give a nd i can't remember right now did they tell the doctor about the patient before or after they gave the patient the night  well yeah there's a lot of interesting points here so now i'm just trying to think in terms of because the night travel it said if the nature doesn't work then but that can't be i think the night before the call to the doctor was looking at  show protocol which they failed to do and at a minimum to call the doctor back because looking at from the doctor's point of view he got the one phone call in for ten hours i don't know how long he was on the who were the next stop there for ten hours with honour's thank you and follow up math is not my strong suit but i did try to do some on the fly i believe that this entire event from his initial presentation to the nurses to the man down call was about fourteen court says what information that he had what he did why he did what he did which included a suspicion that what mister russell was experiencing was a mental health problem and so in the middle of the night they arranged for mental health treatment for him in the middle of the night this was done he was transferred to another facility so they could see if there was a psychological explanation that explain the chest pain dizziness other concerns that he was expressing and all that was done by dr lead that's not the mark i would respectfully submit of nurses that are operating to figure out the motivations because that really is the subjective commit it is of deliberate indifference and i just can't imagine why the doctor would start with mental health until he ruled out the most dangerous possible reasons for the symptoms your honor i believe if there was medical testimony expert medical testimony in the record they would tell you with that somebody with thirty years old it's a differential usually thirty year olds don't have heart attacks but since they started using cocaine it's not that uncommon anymore but we have an individual that has everything he's done at the panic attack right he is saying that he's good maybe he's nervous about his sentiments and rightly so could be on the other hand you don't die of panic attacks doctors and nurses are trained like when lawyers have clients you listen up you see what's on their mind what can you tell us how you can help when you see the doctor could not listen and make a judgment because he wasn't there he didn't go to the jail or your honor and maybe that's something they say in their medical malpractise trial if they have one but this is deliberate indifference this is the united states constitution there are some businesses where you're deliberately indifferent if you don't just you don't put on your shirt and pants and drive the fifteen minutes your honor we would have to liberate in difference if a doctor at least said it's too late i don't care i'm not going to pick up the phone i'm not going to listen but he did why is that a fair jury in prin on i mean you don't need subject you don't need somebody with personal knowledge like the doctor's wife to say that that's what he said when he was called the middle of the night if you could a jury can draw an inference from circumstantial evidence that that's why you didn't go but this is why that we have qualified immunity if all these trials if they all went if there was no screaming by senate confirmed trial court judges by this court oh i do know the problem with it being arguably negligence but there definitely be qualified immunity if say all this pain was due to a compressed cervical nerve which can cause the same pain the same symptoms and if there was if the doctor had thought based on a full symptom report that that's what the problem as well that might be negligence but not deliberate in indifference matters progressed the nursing defendants that are being sued in this case they reached out to a higher level of care nurse practitioner and that was at ten forty three in the morning nearly two hours before this individual unresponsive suddenly and let's also look at what the nurses were doing to he didn't go unresponsive well i guess the question is i think that we know what the facts are and we've taken you way over as  well it's a question whether it's a tribal issue as to whether it's deliberate indifference or not that's that's and you're saying it's not they're saying it is an then we've got to go from there but do there my colleagues have any additional questions all right