of jones day representing michael thomas mr thomas broke his hand in prison and the prison doctors did little to treat it they delayed nine months in giving him a permit to sleep in a lower bunk despite repeated requests by mr thomas that he needed such a permit and during that months long delay mr thomas had to climb painfully up and down the bunk using his broken hand mr thousand and fourteen when mr thomas requested every new all of his local permits and he made that request of a nurse who then said that a medical doctor needed to approve it and that's on page sup appendix forty eight to your honor and on the side of that medical chart you see what looks to be doctor ok signature indicating his his is review of it and yet at that time no kermit was granted and then on january two thousand and fifteen mr thomas makes another request this time more directly when he sees doctoral basic and still no pretty low bunk permit was issued at that time when i was only hold mr tung in on is any record evidence that you've identified that mr thomas says the injury to his hand was exacerbated by the delay or that pain was unnecessarily prolonged whether it be the nine month period of the six month period could you point us to any record evidence that type yes your honor so he missed mr and in january two thousand and fifteen he complains about the pain too and so we would argue your honor that during that time is pain was prolonging for a period of eight months and tell he received a low bunk from it in june of two thousand and fifteen but how do we know that is that the inference that you're asking us to make that the pain continue during that time frame i'm trying to discern whether or not if we're in a medical delay situation  what impact or consequence that delay may have had for mr thomas you're right your honor that is a reasonable inference that a jury could make in the light most favorable you'd most favorably to mr thomas the fact that he had asked for the low bunkum and multiple times and was denied it and also the fact that he complained of his pain which was a serious medical condition that opposing counsel does not dispute can i ask you to look at this for twenty three similar maybe related question from a slightly different point of view we have a lot of medical records in this in this case and they flop back and forth so they'll be a record that will say looks like the hand is now healed maybe there's some foreshortening but it's healed and then six or nine or months later year later there's another record that says well actually no it's not resolved there's a redemonstrate of the injury or it's not resolved so i want to know whether you're asking us to draw an inference from the seemingly conflicting medical records that maybe it never was completely resolved it was might have seemed resolved on an x ray but then a new x ray comes along and at a minimum whether that's a question of fact that requires exp your honor thank you a week that that at a minimum that does present a disputed question a fact that should not have been resolved by the trial court and you're right to point out that there are medical records that in some places say that there was some healing that was took place and that there was a re demonstration particularly in september two thousand and sixteen and that this that the fact so at my given that i had to judge wonder if this is enough evidence to meet that burden for you it certainly is your honor it certainly is and we have i would point your honor to sup appendix one  hundred and ten and also the energy report in sup appendix one o nine which discusses not only the fractures not having been healed properly but also the abnormal  results from the e m g testing which indicated some form of nerve degeneration and i think in light of this record we don't have to prove on summary judgment conclusively that there was permanent nerve damage we only at this i would point out your honour's that as an independent basis of for reversal so long as we can show that mr thomas from the delays suffered  is there any place in the record where we are told explicitly that during the period where your client did not have a lower on  upon granting a low bunk permit for mr thomas stated that quote mr thomas was unable to climb into the upper bunk due to his right hand problem so i think that that comes very close your honor to saying that it proves in our view that he did have to climb up and down the bunk bed without the low bunk from it and he had to do so with his broken hand and we can talk about the prostate problem later but said i'd have to use a park because i don't have one of these about that but i think that's where you are that that's right your honor i think on questions of credibility i mean at trial a jury could could could find mr thomas testimony not credible but that weighing of the your honor's it also exacerbated is broken hand and there's medical evidence in the record suggesting that his hand had not healed and in fact had gotten worse based on a read demonstration of the fractures but  blood really did not end there he also suffered from an enlarged prostate he had trouble you in aiding it and had frequent urination at night which disrupted his sleep and that's called not toria in in the record and the doctors knew that a particular medication namely flomax had just failed to work but a prescribed it anyway but that and under you know also prescribed at least your opponent just indicates that there are a number of other drugs that so that doesn't negate the fact that if the doctors knew that a particular form of treatment in this case it was primarily the flomax that the doctors knew ineffective yet they continue to prescribe afterwards the doctors continued to prescribe flomax so we do think and it didn't that situation a jury could once again draw a reasonable inference that the doctor's acted with deliberate indifference with respect to his p judgment on one grounds and that is that the dead man act precluded summary judgment clearly as a court has held that the dead man act does not apply in a case involving federal law that's basic civil procedure here and no surprise that not surprisingly opposing counsel does not raise that argument on appeal in fact he abandons it nor does he dispute that that was the only ground that was raised in the district court and you know no further briefing there no no further no further briefing either your honor i mean that it was unlike the custom of cases where at least the argument was raised in the reply and you're on a road i mean dr a base he has had since passed away but the tension with his deposition before he had passed and there were all kinds of things that could have been done but i think primarily it was the michael thomas was not given an opportunity to fully present his arguments on the merits and that is that violates principles of fair notice and party presentation that the supreme court and say name versus smith  you're you're looking at over those in council is really asking this court to resolve disputed issues of fact and he's drawing a very stringent in one charitable inference from the record and and the test is whether the jury can draw a reasonable inference that he needed the lower bunk permits and that standard is clearly max he asked repeatedly for a low d bun permit in october two thousand and fourteen and in january two thousand and fifteen and he didn't he didn't receive one and throughout this period of time continue to it's complain about pain in his hand mr tung let's zero in on that last statement of yours when you say that mr thomas continued to complain of pain in his hand what particular month or year are you referencing or record reference do you offer your honor i would i would say from october two thousand and sixteen when he sees dr marty anything from saying december of two thousand and fifteen when he sees dr mighty up for renewal anything between january of fifteen and december of fifteen when he sees  he get just generally in your june right so he's asked again he's asking dr bases again jim right in june of two thousand and fifteen that's when he gets the low bunk from and so one can infer from the record that he asked for it again and your statement was with regard to the pain the company continues complaints of the pain i'm asking that time from any record references or or statements to support your statement all show that he did ask for low bunker because he was in pain and generally in some appendix if you look at his deposition it he says that he's spoken with dr basi and dr marc martino on a consistent basis