fourteen he swallowed approximately one hundred and forty five hills of value in percocet with just surveillance in the presence of trooper tyndale he then confessed his attempt to commit suicide to jail he died thirty hours later of an overdose this case comes down to two issues one the erroneous barring of evidence regarding the elements of for the claim of deliberate indifference and number two misleading jury instruction which included the definition of negligence even though only one claimant made deliberate indifference thousand one hundred and fifty three cases and he's never been on qualified the order prior to the trial russin opinion at that stated that dr metzner was able to express an opinion as to whether an individual trained in conducting a suicide assessment should have believed mr grubbs when he said he had ingested the pills kristen hernandez didn't believe him when although there was a video evidence and surveillance of it she said she had nothing to go on dr metzner was prepared to testify in these disclosures that because of the staffing matrix that c c s had kristen hernandez had over eight hundred pa understand the information in the implications of what that information men when mr grubbs was having a crisis mr groves was sad because his son had died and he just got stopped for it just gotten arrested  after he and just the pills he didn't want to die and he told them that chris and hernandez didn't do a full set of vitals she didn't call the doctor and the court in refer to nurse hernandez at all there can be some indirect reference but the reason i'm going to preclude him from actually using her name is because i don't want the jury confused testimony about weld county with any implied testimony that nursery and is was negligent or deliberately deliberately indifferent basically the judge moments before jeffrey dr metzner took the stand completely gutted his testimony and that was conditions of confinement and inadequate medical claims brought by pretrial detainees the nd seven and seven have interpreted kingsley's displacing prior subjective requirements and i would encourage this court to do the same the th an eleven help kingsley applies only to excessive force cases and not in adequate medical care i think doing away with the subjective element is better for the country it's better for m grubs because in this context the nurse would have seen two empty pill bottles a video and what you do is you send him to the hospital that's what i did when i was a paramedic and sometimes you got fooled and sometimes you did but in any case you save somebody's life and that objective component should be endorsed if your is there's a reasonable belief that he had ingested the pills what's the harm in taking him to the hospital that you got duped ok maybe in and maybe in and additional expense however if you send him to his cell undeniable he dies well council play just stop you here so what is the issue though on appeal isn't  the exclusion of the expert testimony exactly ok so tell me maybe you can focus in on that tell me how that exclusion it was iranian theory well  court did not allow any of the witnesses on either side she set the parameters set the standard for what the liberal indifference is which understand what the expert would have testified to that was in your view erroneous lee excluded yes st of all in the  defined the standard of care what an lpn can do what an r n should be doing what a doctor does and he was going to talk about all of that and how this didn't work in this situation you had an lpn that should have been doing this in the  place and when the judge says you can't even mention her name how is he supposed to describe and opine on the standard of care regarding negligence and deliberate indifference if you can't even talk about the person who making the call at that time he said when when kristen hernandez was told certain facts by martin grubbs that he was having a crisis that he didn't want to die that he had ingested these pills she should have known right there that it was time to send him at least call the doctor and at least you call an ambulance if the doctor was an available and he wasn't allowed to testify to me about to that specific ok and then i  our trial if you said if if you had over rule if you hadn't sustain the objection we would put on this testimony by by the doctor  it completely changed moments before he stopped the stand ok the the sequencing of this type of care and when when presented with this kind of information it's so clear it should have been so pleader to nurse her in hand as to just send him to the hospital that she departed from that and didn't do that and there was and he there was a claim for negligence against the company and wrongful death and against her ok so but the doesn't the judge say well if it's so clear why do you need expert testimony is that what the judge that's at that point that definitely in there's case law that supports that but i think when you have the planes of negligence and deliberate indifference you have to you have to define what  if somebody has a gunshot wound you clearly send them if somebody is bleeding out of their eyeballs then you clearly send if if you don't believe them that they took the pills is that substantially party that's what he would talk about when did that's just whether or not somebody if somebody doesn't tell you that they're going to it if somebody asked will you tell me if you're going to commit suicide and that person says no red flag if that person says yes i would tell you then then you you don't necessarily  a suicide assessment and go to the next step which is a further evaluation to make sure this guy is safe in jail and going to that next step the risk assessment kristen hernandez her her that's and that's why she should have been in that position in the st place it should have been an r n or above and and dr metzger was going to talk about that and was all there is also a jury instruction issue that goes into the same the same point that was so misleading to the jury that they submitted a note because the language what happened that evening before closing arguments is all claims the negligence claims were dropped only claim that remain was deliberate indifference however the judge included the definition of negligence in the deliberate indifference instruction the jury came back and said we would like you to provide clarity on the difference between deliberate indifference and negligence with regards to failure to act basically why the way this jury instruction was worded if they felt that if they found that she failed to act that it meant negligence and nothing more there was no other place for the jury to to really decide other than made widgets and that's exactly what happened as soon as the court did not answer this question they returned a verdict of not in favor of the question comes out by approving it again yet that that's a that's the echo case that a police cites and that's that's completely different in that case the judge at the st conference he had made some objections about that instruction at the final conference he had made additional proposals to that jury instruction and the court accepted both of them and then he appealed based on not  this the judge had ruled and there was no rehearing of that so he didn't revisit that the end according to the greenie reading case counsel must make points is points clearly so that the trial judge may see what they are and if you believe they're right follow them but he is not required indulge in reach and insistence in order to preserve his client's rights so we don't you know we don't need to object an object an object once once we object and make that clear on the record pursuant to rule fifty one dollars the record is preserved and it's my interpretation of the case law in the rule that we're no longer required to continue that may please the court i have nursed hernandez i'd like to begin where we left off with the jury instruction issue and specifically plaintiff's preservation of that issue for this appeal in your view of that issue  because i think it can be quickly and easily decided on that ground alone the record demonstrates that the court actually held five separate jury instruction conferences the parties initially jointly submitted their instructions to the to the  the court held a couple other conferences where the where the court discussed the pending preparation of the final instructions at the rd instruction conference which was at the close of evidence for that day  day before the parties were going to go into closing arguments the court raised the issue that the st order of business on the next court day was going to be the preparation of the final jury instructions at that time plaintiff's coun raised their intention of potentially dismissing the negligence counts the court then told plaintiff's counsel that if you do intend to do that you need to do that as soon as possible by that evening because it will quote trigger a wholesale revision of the instructions later that evening plaintiff indeed did dismiss those counts via email to the court in the party the following court day the court provided the parties with their drap with its draft jury instructions those instructions no longer included the definition of negligence but it still included the dillard indifference instruction that had that language in it that mere negligence does not constitute deliberate indifference  at that point there was a cloak with counsel where defense counsel raised a comment that it might be useful if the court incorporates the prior negligence instruction into the deliberate indifference instruction because it references negligence and the court the jury had been listening to evidence of negligence for the past week of the trial the court then turned to plaintiff counsel and said what are your thoughts case anymore and that the mere negligence language that was already in the deliberate and indifference instruction was sufficient to guide the jury and their deliberations the court then thereafter overrules plaintiff's objection because it stated that it was essentially concerned with the risk that the jury after that week long trial of hearing evidence of negligence alongside evidence of deliberate indifference that the jury may potentially without that instruction that additional negligence instruction return a verdict based on evidence of negligence rather than i have a heightened level of evidence required for deliberate indifference there after the court there when i'm sorry the parties the court of that new newly revised draft of instruction containing the negligence instruction and the statement about negligence of an lpn the court asked both parties at that time if they've had an opportunity to review that new instruction and if they have quote any problems with it both parties confirmed that they had reviewed it and that they had no problems with that new instruction we would submit that in order to preserve any claim of error with respect to that instruction plaintive had to object at that time to that new instruction company sure had them can you can i just get you to respond to the argument that they wast that objection so they weren't going to do it yet well i think i think we have a new instruction now and we have a new instruction that that that they didn't know that they were required to restate their objection for the record to the judge that judge for the record we still stand on our prior objection in order to do that but the but judge let me fast forward a little bit and this will probably answer your question because what actually ended up happening later shows that there was a complete abandonment of that prior objection and what i mean by that is as counsel referenced the jury did send out a note during their deliberations and the no essentially asked the court to define failure in terms of negligence and failure in terms of deliberate indifference and to use the court then turns to the parties and says what do you think about the jury's question how should we respond to what you say and plaintiff's counsel said i think the definition of deliberate and the definition of negligence are both contained within the instructions quote i think they are adequate and i think that this was covered thoroughly in the instruction conference on multiple occasions and and so i would say that these are the instructions that you are to rely upon the defense counsel agreed and the court there after at vies the jury to rely on the instructions that were given and no further instructions were provided plaintiff in that at that time explained to the court that he believed that the jury was not he didn't believe that the jury was confused instead you believe that the jury was struggling with the quote tough question of whether the nurses nurse fern offered at trial was that initial objection three here are to the jury instruction conferences prior at the penultimate instructions conference and was never renewed either following t recess when the instruction was given it wasn't renewed at the time the jury sent out this instruction in fact question in fact again instead of renewing that objection and pointing out that this is what i was worried about when i made my or national objection he thought it would actually clarify matters because there'd been a lot of testimony about negligence and the jury needed to hear what negligence was so they know how to distinguish it from deliberate indifference is that right the way the judge is apparent reason as best as i can tell was that he believed he believed that if the jury wasn't told the definition of negligence and they were left with that one sentence they wouldn't be out of the can instruct on how to differentiate between the two standards the players council respond to that comment by the judge i don't i don't believe he did did he have an opportunity to resign he had multiple opportunities to respond not only at the time that the judge made the decision to overrules objection and add it but also at the next after the recess when the instruction was provided to the parties for  u so based on this procedural backdrop that we have with the preparation and tendering of the instruction you know we it is our position as justice i'd raise or judge i and because of that hit the their prior waiver their prior objection was was waived under any standard of review plain or otherwise now even if we say if we set aside the waiver issue there are still was no error in the instruction itself the there doesn't seem to be any dispute that the negligence language that was added was a correct statement of law and in fact again this was the same instruction that was tendered to the court by both parties at the beginning of trial there was no material change to that instruction that was ultimately added to the dealer in difference instruction to seeing how it could be read by the jury to mean if you simply did nothing that was negligence and then look at the deliberate indifference instructions say well it's got to be more than mere negligence to  indifference you can see the up the possibility even likelihood of confusion that well judge i don't i don't i respectfully disagree because what we have here is that we do have we did have a case that was going on for a week that was the jury was presented with two claims and so at the end of the trial it was it was i believe vital for the judge to advise the jury even more than an ace standard deliberate difference case what the difference conscious disregard you know for that person safety in this and to deny them that medal kick there which it was important in the context of this case for the just do that and that brings me to my next point which  is you know this is ultimately in the context of where the instruction was revised and why it was revised it was a proper exercise of the court's discretion to do that given the trial of these multiple claims  the the jury from finding deliberate indifference but that's not at all what the instruction says the instruction doesn't say that at all it just defined what negligence is what negligence by an lpn would be and so the jury is  what is the definition of deliberate differ it's what's required to find the word reference and what the definition of negligence is and how negligence is not enough to meet that standard you need to address the exclusion of evidence yes i do see my time because by dr messrs own test deposition testimony he was he has never supervised license nurses he has never received any formal training in meissen in nursing standards of care he know and  has also never worked in such close proximity with nurses to have become familiar with the a playable standards of care for nurses in that setting and so given these admissions and given the chords wide latitude under seven  proof you know there was no offer of proof of what the actual testimony would have been from dr metzger on either the standard of care issue or on the next issue his opinions concerning causation so we opinions was also because by his own deposition testimony it established that he could not remember the last time he had ever prescribed vallium or oxy code on the two drugs that were the two prescription medications that  mr gross had ingested he his estimates for peak absorption time for valuing were not supported by even the literature he was relying on and he said that he would have to look at other sources in order to determine that and he hadn't extensively researched the issue he also testified that he could not identify peak absorption time for oxy code on and would have to look that up and he was also not familiar with current methods for delaying absorption of these drugs  and pumping of the stomach of an overdose patient and so alternately he testified that he could not he had he did not consider itself an expert in resuscitative measures for overdose situations so given this these here i could just get a few things in really quickly the language that was inserted is deliberate and different jury instruction instructs the jury that if nurse hernandez fails to do an act that reasonably careful licensed practical nurse would do then  difference doesn't take into account the st it was the you said what was said right here where you just quoting what you had said and objecting to the instead yes assumes that language was submitted this is what was said immediately to the court  of my wife objected she added the additional negligence languaged deliberate indifference jury instructions she stated it could pose to be very confusing to the jury and then stated deliberate indifference doesn't take into account a license professional nurse and instruction of a thirteen as it stands seems to be very specific towards an lpn and the standard and that would seem to be pretty confusing especially since there are no order of affirmative or comparative negligence and if i can if i can finish that point very quickly that language never changed so when plaintiff is made that jackson contrary to the echo case where the judge