court area but concerned slade sammy dealing with events that took place on january fourth two thousand and thirteen and marshall texas on a cold night i am aware of the fact that the issues that are presented to the court on the two points that have been raised actually asked in this court to pushed on low as it relates to the concept of causation on one point and i'm also asking the school to push dharma lope as it deals with adopting the common law of the jurisdiction of the state where the cause of action as a result i think to give the court a good feel what's going on obviously you're aware that agents of the march police department arrived at a location on the night of january fourth two thousand and thirteen where they found a new black male by the name of marcus lay just like everything else has been going on in america in reference to the aspect of videos being present the vents that i'm standing before you to discuss are captured by way and when a war lies by way of videos the primary issue before they arrived at that scene and when i make reference as to what they knew i make reference to the fact that each one of the officers were certified she used that taser device the record is clear that they received training utilizing the version fourteen taser training package a video tape compress with all when they arrived there on the tap five of our excerpt we're caught with the fact that they should have known by way of a power point presentation put together on the version fourteen of the taser training pakis that there was a specific section dealing with southern death syndrome and in custody def syndrome so they marcus slate was nude an individual who had super strength and indoors which is reflected in reports and in the video and individual who was  contact with what was called the florida neck at man walking down the street bizarre video they would come in contact with the fact of knowing that this individual was an individual based on the taser training that you would consider activating e m s prior to coming in contact with they've also would have been aware based on the same excerpt is that taser thought so highly of the fact that these individuals presented the possibility of death that the last section dealt with it basically back black a better term a protocol on how law enforcement should deal with these deaths and trying to capture evidence now this is what these officers who were certified utilizing version fourteen would have known prior to january fourth two thousand and thirteen so this is the obviously a tragedy that but what even if you are able that you feel that there was evidence of deliberate indifference and i understand that but we have to follow the law you know and you know so i'm just trying to figure it out on the run in my brief for to the o s b versus cincinnati case which was a case that outlined the premise that and a wrongful death matter that there are in reference to proximate cause but then there are other situations where it is so obvious that even a layman would appreciate the  the individual needed medical assistance does the gating the requirement of the expert causation if your question about the more sensitivity to it if you're if you're a drug or i think what the taser position is is that these individuals and i think this is this is really interesting is that the position that these individuals are displaying signs are symptoms that would indicate that they're already basically under the influence of something and as presented with an opportunity for medical assistance and you know when you start thinking about the universe of individuals that are law enforcement agencies i deal with this is a given universe difference basically is embedded in the fact that they knew based on the presentation of mr slade me based on the section that made reference to and claiming that this individual was at a higher wrist for some type of adverse effect that relates to di irony of it is is that when you read farmer in brown in detail you really realize that they may know after it at all and it was clear moving from the taser training should've been a medical not a police was right once he was restrained an video of officer roach and they were going through the procedure of pulling out the taser bob he was clearly under strain at that point in time and fifteen twenty five through fifteen twenty six states it's well known in the toxicology community that there are no define lethal level for drug good morning they please the court my name is darien coleman and i represent the city of marshall defendants in the civil action the plaintiffs two appeal points for issues pertaining to the denial claim under the fourteenth amendment alleged denial of medical care the plaintiffs did not appeal the dismissal of any of their other claims including the excessive force claim or any policy claims that were also dismissed before i addressed the two issues if i could just very briefly address what i think are some important background facts first the events that occurred on scoggins street that january for twenty thirteen i believe or are very well briefed in street which is approximately in relation to downtown if you were to drive about a two to three minute but two to three minute drive from downtown on the courthouse square the other background point that i would like to emphasize the testimonial first the fourteenth amendment claims asserted by the plaintiffs have only been asserted against lieutenant johnson and officer stacy roach the other officers in that were not made a part of th testimony of lieutenant johnson and officer roach as well as every other officer present as they arrived at this saying was that they did not observe mr slade to be in any type of medical distress they certainly have testified that he was highly agitated and was possibly higher or intoxicated on some type of substance but most importantly what they did not observe is is any type of medical distress such as unconsciousness seizing bleeding labored breathing anything like that was absent at the scene of the arrest the drive from the scene of the arrest to the harrison county jail facilities only i think it was undisputed about three minutes the officers testified that had they observed any type of medical distress they certainly would have someone to emerge to the saying what also is very important is in the discovery phase of this lawsuit the plaintiffs retained two expert witnesses a law enforcement expert honor on the way to the jail the testimony from the officer who transported mr slade was that he continued to be agitated to yell in the back to see the car when they arrived at the harrison county jail there was a second police officer following harrison and upset the back seat of the car the two x parts of the plants retained the law enforcement expert was a mr grafton and his testimony was that there were no obvious medical issues much time lapse the law enforcement expert also stated this that the officers did not recognize that this was a medical of the it i say that because this court in an unpublished opinion bass versus throw which is cited in our brief  delves into that issue of the officers didn't recognize it and they could not have had subjective awareness necessary under the fourteenth amendment but also what's important is the plaintiff's medical expert agreed that the  unresponsiveness in the cardiac event did not occur until he arrived at the jail and that in his opinion that there was no evidence that any officer was aware of a serious medical condition or that any officer was intentionally denying mr slade that care so those expert opinions of the plaintiffs became important in the court's analysis the the last fact i want to talk about is the path ology report and it does indicate that also was no evidence although there is no appeal of the excessive force calling there was absolutely no evidence presented to the district court that the use of a taser caused or contributed to mr slade's untimely death and that differently depending on a lot of factors and so it's not the level of p c p toxicity necessarily that that causes or produces a death but in this case it produced a cardiac of being in a system for which he he passed for but in this case the officers did not witness anything that they would describe as a medical advantage again labored breathing and consciousness that's where think and i believe the standard that the plaintiffs have tried to invoke in the trial court  not on this appeal was that the officers should have known and should have known fall short of a deliberate and different standard and it is it is impacting negligence standard that the first issue that the place addressed is trying to dispose of the element of proximate cause between the alleged denial or delay of medical care and the death of mr slate and again they they make this argument because before the trial court and before this court in the pla briefing the plaintiffs have conceded that they have no evidence that the alleged failure to summon a t m s to the same cause were contributed to mr slate's debt there is no evidence of that so even if the officer should have known and there is evidence the record of that and even if should have known was the standard instead of deliberately indifferent use your position that the claim would fail as a matter of law nonetheless nonetheless your honor it's a proximate cause issue and i'll in just a moment i would like to say this that the trial court when this issue of no proximate cause between all the causal link between an alleged delay of medical care and the death of mr slate that really came to light at a pretrial conference before the trial court the trial court then allowed the plaintiffs and their medical expert to basically reopen discovery for that specific issue and to review additional very issue taser international was made an initial defendant in this case as well that was the allegation being made against taser there is there is abundant literature that was conducted during the discovery  and also your honor there was no evidence on the excessive force claim is not made a part there was no evidence that the use of the taser caused or contribute to the death as well and it was lacking as far as the the issue of disposing of the element of proximate cause this circuit has long held the proximal cause it is a part of a nine hundred eighty three cause of action a long history of cases it's included in this court's pattern jury instructions but also that would be my first argument a second argument of why it's necessary is this court and in the opinion of phillips versus monroe and this is very key stated a plaintiff seeking to recover on a wrongful death claim under not to ninety three must prove both the alleged constitutional deprivation and the causal link between the defendant's unconstitutional acts innovations and the death and here's the important part under the state's wrongful death statute the form states run for that statute of course  action so in this case that the trial court and the plaintiffs were using the texas wrongful death act and in that act the the it's pacifically states that liability may only be found when an injury causes the death and so plaintiffs have conceded to the trial court there was no evidence of that causation and the court relying on phillips versus monroe granted summary judgment the court also talked about and rightfully so texas common law as it pertains to the whether medical testimony is needed or not and in texas to establish a causal link between some event and injury or death medical testimony is is almost always required except in those very few cases in which the answer would a lay person's general knowledge expert testimony would not be needed here we're talking about the plaintiff's allegation of an alleged to lay or denial of medical care to a death a very complicated  complicated that even the plaintiff's expert twice being given the opportunity could not do they have so it's clearly outside a lay person's knowledge before moving to the to the second issue i want to address the the the opinion that pla is that there was that the element of proximate cause is not needed in determining whether a death occurred in one thousand nine hundred three cause of action i submit this to the court i really struggled with that opinion in trying to understand it so i would urge the court in looking at owings b is just a little blurb and i would say it but they rely on a case called blackmore versus kalamazoo county and when you read that case that that is a case where it's a fourteenth amendment denial of medical care but it's a case where the six circuit where a gentleman was in jail got appendicitis complained of pain for two days finally got to the hospital had an appendectomy had a great recovery no ill effects and so the question there before the sixth circuit in blackmore was is expert testimony or is proximate cause required in determining in cases where and they found that in that case the blackmore case that the inmates complaints of side pain in all this were obvious and he was obviously in pain in those circumstances the six circuit said you don't have to show proximate cause because it's so obvious but in cases where perhaps a person is in jail or incarcerated in the injury is minor and then manifest into something greater then they said  you probably will need expert testimony but here here's the point and here's where up with my conclusion on how o s b got to where it got him blackmore that whole causation analysis about you know what do you need expert the proximate cause element from ok did that did the constitutional violation cause damages in that case they were trying to argue did the constitutional violation cause the death of one species so in my opinion i respect that they went a little too far and is quite frankly misinterpreted the underlying premise and blackmore that's the only explanation that i have remind me about the record when people are that happens it's a matter of course it's a matter of course it's a matter of coughing up of just you know observation common sense police officers you know someone medical assistance if there's a medical need they arrest you you're not proactively checking to see if there's a mineral and generally not it's usually if it's something obvious like are they having difficulty breathing is or is their blood present you know they unconscious the things that you know and i think the case law is very clear police officers are not trying to mask personnel but you know they they do use their observation skills and of course the the records ever every day you know law enforcement arrests people who are are high and intoxicated and extremely violent and they go to jail unless they're experiencing some type of medical issue and of course when they go to jail they're monitored as well they are under those circumstances last i want to jump to the second issue and that is where  the plaintiffs are are asking the court to adopt the last chance of survival doctrine again because they cannot prove proximate cause not hundred eighty eight directs this back to the state courts form court and the issue was whether or not the the court was required to follow the state's survival wrongful death action or whether they're free to create some top of federal common law remedy if that would potentially in the case for the plaintiff and the supreme court said that looking at nine hundred eighty eight that the louisiana survival statute plainly govern the case and the fact that it ended the case for the plaintiff is of no consequence in fact the the the inconsistency rule that that a court would look at under that in eighty eight it does not include whether one party is advantaged over another under the state's wrongful death statute in this case the fact that the state of texas has chosen not to adopt the last chance of survival doctrine does not undermine the two purposes of nine hundred eighty three which is to compensate individuals who have been injured back constitutional violations and number two to prevent abuse of power neither one of those realize that it told them what to do and if you look under a additional tab in here that gets to step seven you will see a report from a martial law officer that came in contact with an individual that he wasn't wrong but was acting bizarre that he tell you found out that he was on where he took him to the emergency room so they knew it so what about that seems that this was an individual that basically had sickle cell anemia there's nowhere to world an officer would have known an individual has a sale is a mutation in the sale of individuals from massacre that has been formed for the purpose of dealing with malaria so yes that would not have been obvious and that goes back to the fact that owens be the concept is was it obvious there was to nothing the news media died so in america an individual that's nude in freezing temperatures acting bizarre supernatural strip and they got medicine for those of you that may not know marshall the issue came up on the location well the location unscarred in is less than five minutes from the major f station and less than five minutes for dust fast ation we're talking about a series more in less than two or three left and right for a paramedic to have gotten there to the hospital to the jail and even one other aspect of the jail the senate do you think they would take him like that and the same officer roach as he walks into the salad to it when this man is dan comes in boast no they're training an individual standing there would have known going would ask me that this guy marcus slaying should have been taken at least observed by a medical source and