before we before we start let's just talk a little bit since we have two cases one right after the other that are somewhat related we're going to go through them individually although the facts are obviously interrelated and i think you should be aware that we're pretty familiar with the facts you can obviously emphasize whichever ones you you would like but we'll call the first case we won't make you change tables for the second case but  obviously there's some connection between the two but let's try to argue them as we go along ok yes i recognize that and do you have a time breakdown for that case i'm here today on behalf of defense set number and randall for the trial court properly granted summary judgment to deputies number nor on all claims except for those related to mr peterson stethem on the evening of september third two thousand and eleven into the morning of september fourth two thousand simple reason this court when it comes to the moment claims premised on deliberate indifference requires actual knowledge of a serious risk to detainees health or safety there is no evidence at all the deputy number or deputy whore knew anything was wrong with mr peterson on the evening of september third into the morning of september fourth for the purposes of this appeal we have conceded that mr peterson was suffering obvious symptoms you know mr peterson was dying from a sudden cardiac event i don't  think this court can can sort of understand that anyone that's dying from something like that is going to exhibit obvious symptoms however obvious symptoms are not enough the fact that these defendants could have noticed something was wrong mr peterson or even that they should have noticed the the arrangement is the nerve of the medical staff is completely divided from the correctional staff that's standard practice for a lot of bigger jails as i'm sure this court knows there's a straight delineation medical staff handles all medical care request treatment diagnosis setting people up for physicals everything the deputies handle security in corrections distributing meals things like that there's no dispute about them recognize that no your honor mr peterson never reported the physical condition the medical staff who as we note in our briefs in this this is sort of germane to the other case i guess too but the medical staff as we noted in our brief had over a dozen contacts with him about once every two and a half days he was seen by a nurse or a doctor two different nurses three different different doctors none of them ever once noted observed call for treatment anything related to a physical health condition i will say for clarity there is one defendant his name is doug hahn who interacted with mr peterson during in or in taken throughout his stay at the jail who did it one point become aware that mr peterson had hypertension high blood pressure but there is evidence in the record that mr han informed the nursing staff of that twice and hypertension is not  soon basically says that he that he became critical from about three thirty to the time he died in the morning something like that and describes what a person had they observed the seed and would have presumably noticed your defendant say that they saw him during that time period and essentially the doctor seems to be saying that anybody that saw him during that period would have noticed that so we've got that on the one side your guys say they looked at him they didn't know anything in fact that defend the fact that a jailer says i didn't know does not ultimately dispositive of that if there is other evidence so it seems to come down to the doctor saying what had they actually done what they said they did they surely would have noticed that now why is that not enough that's not enough your honor because in cases before this court like switch this which reported on our briefs there's a lot of evidence of detainees or at the scenes close to death exhibiting horrible obvious symptoms but this court has still found that they weren't the particular defendants weren't deliberately indifferent because they either weren't aware of those symptoms or didn't draw an inference of any serious risk to health or safety i would also like to address the facts a little bit i mean we're conceding that mr peterson had obvious symptoms on that night however there is that they were enough that the that he was moaning and groaning and calling for help from his fellow prisoners for the purposes of this appeal yes your honor we will concede that i mean we have to however there is and there's no duty on our part to concede facts that aren't in the record and what's not in the record is that these symptoms actually were displayed in front of my clients or that my clients actually noticed them if i could be allowed to sort of explain the evidence the neighboring inmates talk about mr peterson calling out and moaning from about two thirty to four thirty in the morning after that time one of the neighboring inmates i believe it's inmate butler even says he was quiet we thought he was asleep and my my death my guys don't encounter mr peterson until five ten am around there for deputy number and nothing was wrong is entirely consistent with all the other evidence in the case and so yes he was exhibiting obvious symptoms mr peterson but there's no evidence that he was exhibiting them in front of my clients or that my clients noticed th the defendants did in response i don't think the point of just gets to say liar liar they're lying don't believe them you know the fact that these deputies lied about to head counts and let me let me clear that up they lied about their head count that was admitted in their answers at the inception of the litigation we've never hid from that fact at all despite admitting that the answer despite two dozen depositions hundreds of iraq or tories a year's worth of discovery there's been no evidence at all that these deputies lied about their interactions with mr peterson that morning so i think it's a red herring i don't even know if it's something they could use to impeach these defendants but i don't think you get to say here's all this evidence this exonerates these guys but they lied about something else so don't believe anything they say i think that plaintiff's burden was to point out actual evidence of knowledge and i've invited i sort of asked for two or three before the trial court and this court would have by plaintiffs today where is the actual evidence where is there any testimony any video any document his feet being swelled up to three times normal size and that sort of thing well you can't say that they were obvious but they weren't obvious to your people well i mean the moaning and groaning knee we can argue about battle though we either have to believe one side or the other but in terms of the degree of his a demon the degree of the distortion of his body and that sort of thing but isn't that what you meant by obvious symptoms yes your honor in that regard i mean i would ask the court to look at dr seuss testimony where he says hey if somebody is wearing pants you might not notice their swarm legs or if they're short of breath you might not notice that they were breathing unless they made it to point but i would say with this obviousness issue obviousness is not enough obviousness in a lot of these cases is sort of talked about in terms of the objective and subjective element of deliberate indifference and there's sometimes in the cases not a conflation but they're not really broken down to say well obvious goes to objective or odds are some cases when we say step and the olsen is published case and i had another hard case where you say that we have said or we've up tell district courts that have said something was so obvious that that is evidence that it actually registered is that a fair statement of some cases not from the cases i read drawn or in not from more recent cases that are reported like ral story in jones where it says hey you have to be actually aware of the problem with this person if you look at real story most is what kind of evidence shows actual awareness if if you do you have to have a statement where the person says you know i looked at him and i saw that his arm was falling off no i mean that would certainly be enough i think your honor but i think you need something else i mean you've got a detailed inmate affidavit that says here's all these things that happened on this night but doesn't identify these defendants doesn't have identify any deputies as having been present when these symptoms were going on there's no evidence that these deputies were told about the symptoms that mr peterson reported them i'd also ask the court to consider this in terms of the obvious mr peterson was in an isolation cell because of his heart problems this isn't a case you know where someone's on a suicide watch in the deputies no they have to keep checking on this person or there's some reason to look in on this guy was in isolation cell for twenty eight some days before the day he died these deputies encounter him for just seconds or minutes not certain on that but i do know that for instance deputy benson work september third deputy neely work september third so there were different deputies some of the defendants in the in the four one five one appeal that worked at different times so  every day around mr peterson in the three days before he died to sort of directly answer your question i'd you know we've talked a lot about obviousness i would just say it can't be enough it cannot be enough on its own if you say every time that someone has obvious symptoms there's an issue of fact as to knowledge you're basically turning a deliberate indifference standard into negligence they had obvious symptoms you should have noticed you could have noticed no evidence that you did what you should have or could have because they were so obvious so there's an issue of fact just allude to deliberate indifference i don't think that's the law i think in the cases with obviousness such as smith versus len and we in the men as district court case cited by the district court in this case there's a lot of other evidence you're talking about detainees that come into jail extremely sick they die within days from rapidly progressing symptoms there's evidence on the record in those cases where the deputies or the corrections officers admit yeah i knew this guy was sick i knew they had d t s i knew they were shak so in the case of smith for instance there's a sergeant craig in that case which this court said it was a close call for craig on qualified immunity there was a video in that case showing sergeant craig entering the cell while the decision in that case was twitching and laying on the floor nothing none of that is present here all we know is that the night mr peterson died like you know a lot of people died he was in distress and that these deputies worked that night and encountered him that is not enough to find deliber indifference i'd like to address one more thing we've talked a lot about obviously is but the proximate cause issue you know in trying to pin the responsibility of mr peterson's death on these two deputies the plaintiffs have a burden to present evidence of proximate ca here's the actions they took years the actions they didn't take here's how those affected mr peterson's chance of survival here's how he could have survived their expert was unable to do that you know defendants say in their brief well he didn't name names we had steam a bunch a ton of questions about who's responsible for what he couldn't delineate between medical staff and deputies he couldn't pinpoint any specific persons actions to say to a specific date he couldn't say any action that somebody should have taken that would have said mr peterson's life he didn't even say mr peterson's like life likely could have been saved i think that's also fatal to the points i don't understand it testified that if his condition had been notified by prison officials and appropriately related medical staff at the onset of this dramatic change around three thirty or over the next four and a half to five and a half hours he could have been successfully treated any could have survived you're right your honor and when i asked him about it i said is that likely or could he said well could i can't put a percentage on it and i said well paraphrasing but basically who's actions are he couldn't identify anybody's actions as bearing on that you can't just say well he was dying from three thirty seven thirty years but he's focusing on three thirty these two guys are the only ones who were around or that we have evidence as i understand it and that's probably the reason the district judge sliced it the way that he did that is this judge mckeague just read doesn't just say he's been sick for a month you should have saved him he at least says exactly that and then your proportion question kind of goes to the weight of the evidence of proximate cause doesn't it i don't think so judge i think your first statement that he said yeah i've got a thirty day window as he said we're talking about a thirty day progression of something whatever that's not that's not what that's not what it says with that particular statement but doesn't identify anyone as having a chance to intervene and he doesn't say five ten am he doesn't know about the deputies and he knows about the medicine sorry he's a doctor so he says during this four and a half hour period if anybody had noticed he would he could have been saved what why does he then have to say and therefore these guys were around his cell at that time so they could have saved him that's not his role in the trial he's a doctor i mean i think he has to they have to put verifying medical evidence in the room in the record that says here's the inactions or or or actions that either didn't take place or should have taken place that would have changed the outcome and i don't get i don't think they just get to say well something should have been different this night i mean is he talking about debbie nyberg five ten who sees mr peterson away converses with him or is he talking about deputy or who sees him asleep in him probably dead at seven thirty i mean that's a distinguishing thing there that everywhere here there are questions of fact is to what deputies neigbor and horse saw on the morning of his death and there are questions of fact about whether he mr peterson ultimately could have been saved if they had summoned medical attention for have evidence is there that they saw this man under conditions they should have known he was short and that's where we get into the difference between circumstantial and direct evidence the value of the evidence in a way that what we know is that they did see that's correct you're on it well that's what their account of the events you have that there isn't any other evidence in their account in terms of what there'd be if every time a deputy said well i didn't notice these obvious symptoms in a self serving manner essentially to be admitting to deliberate indifference like we had to do i thought take it these guys are doctors that's correct you're not registered nurses correct your honor or a period of thirty days three psychiatrists i think it was and i don't know how many nurses but the they's saw this man the nurses saw him three times a week the doctors i think saw among the three of them there in time to thank you for day yesterday so of these guys these people highly learned the medical profession didn't recognize he had congestive heart how do you expect these two guys who are basically caesar corporals to using army terms to recognize i would other part of the case right in terms of whether the county might be held liable for the actions of a third party medical contractors but more relevant to this case if we talk about the we're talking about a failure to diagnose instead of a failure to  know critical in key medical symptoms ok so we're not claiming that deputies nyberg or had any responsibility to diagnose mr peterson but i think like the district court said at that point in time he was in this acute state where he's mourning struggling to breathe his feet are swollen up to three times are normal size for his extremities are swollen fluid is leaking through his feet his cell is a total mess that you're getting a lot in there so let's let's take  step at a time you've got the other inmates that said that he was moaning and calling out but the way i read this the that all occurred at least a half hour that ended at least a half hour before the first of these two deputies arrive on the scene is that right well the timeline is kind of up in the air but it's somewhere in that area yes your honor question of in that area they both say that by four thirty the calling out it stopped and i think the first that no but it does bear on the degree of the dog the degree of struggling that he was in at that point in time let's let's assume let's assume that he was struggling i don't see how it bears on it at all that it stopped by the time these two guys showed up but so we'll put that aside then you say that he had gained all of this fluid it sounds from the doctor that this occurred primarily at the at towards the end of his life in this about five hour period and it sounds like it was largely confined to his feet is that fair statement the feet in the legs your honor his lower extremities so i don't see anything in the record that indicates that with the exchanges that apparently occurred between these two jailers that they would why why do you say they would have or should have noticed what was going on in his legs or his feet given that he had pants on sure well he didn't have shoes on he did have pants on  submitted it's very hard to see anything so i'm just trying to figure out what your evidence that they would of or should of even noticed his feet they've conceded to the obviousness of it the fact that the feet were so swollen  fact that there's other evidence that this man was in a state of serious trouble in terms of the condition of his cell if believed there was vomit in the cell there was feces all over the cell certainly this was a man who was an obvious trouble with the time that these men would have looked into that cell and i think the guy had been messing up his cell for a good part of thirty days that's correct your honor so that doesn't mean that he was all of a sudden in distress well i think when taken in comb hung up on the feet i mean i will except for purposes of our disk that had they seen his feet they should have says they should have noticed the something dramatically rob i guess i get that but where is there any evidence that they saw his feet or given the way in which they were looking through the slot in his cell they would have his seat his feet even would have been visible to where if you look through the slide was in the cell and i can't point to a specific part in the record but there is testimony in the record about what is observable from where the deputies are looking into the cell and if you're looking into the cell you can see the bed and you can see the feet now there are obviously denying that they can't see the feet that they didn't see it but again that comes down to their credibility we have to assume that when they looked in the cell like this they did for breakfast and for the head count that they did see his feet and according to the doctor the feet would have been so large and leaking fluid that therefore they should have done something right and so what is the evidence upon which we base that assumption that they did see his feet they were there and it meant that they saw mr peterson and the medical evidence suggests that if they saw mr peterson they would have noticed that he was in an acute medical state the evidence suggests that in fact he wasn't breathing at the time that these men saw him and that the medical evidence suggests he wasn't breathing even at five ten correct what's that based on the expert testimony of dr soon that he went silent after these even the neighboring inmates say that the mooning stopped reading are two different things that he wasn't breathing he was dead and it wouldn't made any difference that doesn't mean he's dead i'm beyond saving and that's part of what dr soon as you know if you're going to come back then if you if medical attention had this contradict well it's self serving testimony i think what the district court research what the district court recently said in cracow is it's not surprising that people wouldn't admit to seeing this and doing nothing and i think again some of the opposing counsel has attempted to kind of dodge some of the credibility issues here but the fact of the matter is both of them were were convicted isn't the right word but cited a written up for not telling the truth about their actions that morning i want to make sure that you understand that is a district court decision that contains language in an opinion that came out after it was remanded to the district court because the disregard didn't make the individual eyes in korea that's the subject here it comes back up the panel did not endorse language whatsoever it simply found because it was a factual dispute there wasn't any jurisdiction decision and tolan in just you have to look at all the evidence the direct and circumstantial evidence the mere fact that they didn't admit to seeing it when there is evidence that suggests that there were obvious medical symptoms and that they looked into that cell and could have seen that the mere fact that they say they didn't i'm unaware of any case law that says that that's good enough we're not made of a mass specifically about the feet i'm sorry your honor that were either of the two defendants here and asked specifically about the feet i recognize they they say are there affidavits they were i didn't see anything didn't see any trouble were they deposed and asked specifically you know did you notice his feet i can't recall specifically of that precise question was asked it certainly was asked if they noticed anything wrong with his medical state which obviously was denied it's part of that if we agree with you in this what sort of standards would we be setting if any about how obvious something needs to be in connection with looking through a cell window in a cell for example that then imposes a duty upon medically trained still deal person to then someone not only summoned medical staff but summon them immediately because of the degree of distress that it turns out it was actually in well i mean there are several things that i would say you know first of all if the autopsy photos show some pretty severely blister blow bloated feet and when these deputies can lister's on the top of the bottom of the bottom so how were they to have seen blisters on the by bottom of his feet  these two encounters in question in this particular case i get the fact you think they looked in therefore they must have seen his feet and they must have seen his feet were swollen they're not going to see the blisters they're not going to see feet leaking at that point are they  they very well could've it depends on how the feet were precisely position but you this is your burden if you're making that claim what i'm really asking you is are you saying that they would have seen the blisters and or the leaking or you or you're not saying that or you don't know this or i mean we're saying that they should have seen that and they should have noticed that he wasn't was that on scene what they should have noticed that the cell is a mess that his feet are blown up that the blisters were were there to saying that they didn't notice and you're bossing over this you raise the blisters i didn't races short you're saying that they also would have and should have seen something in this case blisters on the bottom of his feet yes yes looking in a cell door going through a head that's correct your honor why it doesn't even with all due respect him for trying to figure out how how that even makes logical sense well it well one thing that these deputies are trained to do during a head count is to actually security checks according to jail standards they're supposed to make sure that the inmate is responsive now they're saying that he was responsive that the medical evidence suggests that he was struggling at this time so the mere fact that they're saying with that got to do with the bottom of his feet because if they had if they had noticed whether he was responsible done anything to interact with him they would have known that i mean the evidence from the neighboring inmates suggests that this wasn't time out shortly you seem to be now saying it's had they noticed he was in distress then they would have gone in they would have examined and then they would have seen the bottom of his feet that's not the question what is the basis of saying they would have seen this blistering on the  they walked into the cell in that they should have were his feet up were his feet sticking towards the cell door or were they on the floor of the south he was on his bunk and the answer to a question is we don't know well one guy says he was sitting up with his back against the cell wall and and one jailer believed that he was asleep and that in that position now that person would have seen the bottom of his feet what he did depending on how the feet were hanging off i mean if the of the bunk is up against this is complete conjecture whether they would have seen the bottom of his feet isn't that i mean we don't know for sure whether they saw the bottom of his feet i can't prove to you that they spent enough time on the bottom of the s you say these conditions exist this man existed for a long time correct or other than they probably existed when the nurse less well not in the acute state that they would have existed at the time when he was seen and that's what the district court said that these symptoms became acute on the morning that's what the medical evidence suggests that on the morning he died was when this the symptoms became acute we weren't swollen before i mean they would have been somewhat swollen yes because the  the next i can be very quick i heard a lot of defendants could have they should have they maybe there they had the opportunity to notice i didn't hear anything about actual evidence that they did notice that is the record show in terms of what you can see a an inmate when you look through the window of the cell either for head count or delivering breakfast the record says that there's a window that is about a quarter of the size of the door that depending on the angle you're looking through the window may not show you the entire cell may not show you the floor of this and more than a food slot you know there's a food slot that's underneath it but rectangular window that sort of runs  is there a picture from outside the door and you are in the right there probably is in the i a e a report where mr peterson's body is found in there you there's the video of him approaching the cell that shows the door being opened when they find his body and that would that would show that it was a forty five minute cd that's basically the extraction of what turned right person right but it doesn't it's not focusing on looking through the window as i recall correctly it's not but i think there is a front view of the windows of the court could at least see that you're not you're not claiming that had somebody put their face up to the window and looked in that they couldn't have seen that the floor of the cell or somebodies feet not depending on the angle no i'm not pointing that  mr peterson died for an unforeseen event related to an unknown condition he was seen by a nurse last on september second just a day and a half before he died who noted nothing new she knew what brian to provide an affidavit under these circumstances the failure to