me please the court i wanted to emphasize three sort of salient things that occur to me ever after reviewing my notes on the briefs this would have been a different case at trial is a lot more to prove at trial secondly the notion that the motions for a directed verdict somehow moot questions about the respond you want for the supreme court and that's what you're doing with your mono argument because it's above our paygrade to change that particular rule unfortunately even if we were inclined to do it and secondly although there's the sort of second tier argument about private companies that our court has alluded to both in majority and separate opinions  doesn't seem really to be raised here either and just last week or a couple weeks ago maybe it's today the tents are right so twelve days ago in the gaston again scott's case we once again said look maybe there's a case somewhere to see if private companies should have a different rule but this isn't the case to do it well i was heading to gaston and why why isn't that also true here  hardly dry on the gas in case i understand the point you're making you know at the twelve b six stage discovery hasn't happened yet but this is not a situation where that's a problem at least and judge hamilton has some interesting comments he concurs by the way he's the one who's been carrying the the burden on this discussion but he doesn't see even gaston is a case where the underlying employees have done anything wrong that there would be anything to attribute to them the wexford people in this instance well that instance again i think that my sensibility in that opinion is that it came down on a misapprehension suggestion was what you haven't proved an individual person was accountable for this two week delay in the in getting the treatment yes but the point i made a moral argument there that didn't seem to make it in the opinion was in a defective manufacturing case should i sue the auto worker on the line or even identifying who failed to tighten the bolt down to loosen the what is it about this case that you think makes it right to overrule the president here starting from canter and up up and shields and gassed and all talk about why those cases weren't appropriate ones why is this appropriate well i think that my my theory is is the same in both i would i would grant you that but i also think that there is the notion of corporate personality that is being articulated in the supreme court you talked about the political rights of corporations to express themselves politically have the right to do that they have to exercise religare well i want to go to that this is a little bit broad for me so i want to go back to a question normally if you're thinking of respondeat superior you actually have to show the initial wrongdoing here you know williams whacked you know somebody somebody has done something wrong and then it's a tribute to the employer we do have saw all the time you get all seven cases right you know the supervisor discriminates and so the company is responsible for the supervisors discriminatory behavior whatever version of discrimination is has happened and in this case i think judge coleman got to the point of saying mr wilson isn't a doctor he doesn't know how to treat these particular kinds of hernias he said he was in pain they came back and said we exercise our medical judgment and handle it in certain way and he he doesn't really have anything to come back with so if nothing went wrong then why do we even care about works for the case well i guess the most glaring example to me is the the fact that works for it had a practice of routinely and they peer nowhere in his medical record we don't i don't know personally who shredded those it was certainly a wetsuit employee or maybe several and if that's important that there was nothing in the record indicate that he'd been complaining about this hernia then waits for trigger the ones they were going to grant because they weren't going to you know allow that treatment that was there that was the same i just disagree with that with gaston i think they've got turned on a zero on the discovery issue i mean and i'm trying to ask you even if we agreed with you even if we overrule why is this a case in which wexford would be liable on a respondeat superior bases if the underlying physicians were acting in a way that certainly does not display deliberate indifference it may not even reach the level of medical practice where there are differences of opinion in the way one treats her view as well if you have the differences of opinion might be meaningful n the other some assessment of whether it's a small i mean there's good medical records that indicate this was a rather small one and immediate surgery isn't it ok to obviously mr wilson thought he did need surgery that he wasn't the doctor so i guess i want to know even if you were to prevail on the responded superior argument why that takes you the next step down the road and says wexford  responsible for something the underlying people didn't do anything that met the eighth amendment standard then why did work for judge hamilton in his concurrence describes the three  dispute there are economic disputes i have always in my practice and i'm a tort were understood corporate reality to be the actions of the agents and the employees and that that's their state of mind and it can be it seems to me rise to a level of deliberate indifference over time that i get answered your question which is i care i think so i mean it sounds to me i mean i'm looking at the language judge hamilton used but when we see these cases i mean this is mr wilson's case fundamentally we need to find somebody did something wrong in other words  and the wrong has to be measured by the appropriate legal standard which here is an eighth amendment standards i would say no it's eighth amendment ok i would say that his report in january two thousand and  painful from the onset and the fact that it is urgent only means clinically it's gotten closer to a disaster and that the i would argue that that was was true here i mean he was  daily painfully but that deliberate a different standard is pertinent to his pain that occurred and i medically would not dispute that it was urgent or emergen i'd just like to briefly start by clarifying something that counsel addressed about the practice of shredding medical records there's no evidence on the record of this and further as to the allegedly submitted records mr to not report on issues that they couldn't or wouldn't treat every single witness denied this outright there's no one shred of evidence that things were shredded or ignored because of a watch for policy or practice as planned alleges no evidence  of some corporate wide document retention policy which actually many companies maintain there's evidence of how they retain documents but nothing sure way that plaintiff has presented you could say for example we keep documents as to the january two thousand and thirteen time period there was a lot of focus on from february forward february two thousand and fourteen for word and when he finally saw dr obey see when you previously seen ms williams wilson sent to dr obey c i understand the documentary evidence doesn't necessarily support what he testified to but looking at the trial testimony it was pretty clear the plaintiff said he told dr o p c about his hernia in january of two thousand and thirteen so and so my question is when the district court granted the directed verdict did the court address and why the directed verdict was appropriate from that january two thousand period up until the two thousand and fourteen period when she did address it at that point i think that the same argument applies as to why it was appropriate for the first time  that this isn't you know a twelve b six situation there's a jury you know everything's going on why not in light of what appears to be a conflict in the testimony just let the jury you know send it to the jury see what they say i mean he says he told dr b c he says he was in constant pain maybe it was physically small inguinal hernia but if he's in constant pain because of it is that mean wexford gets to sit by and say tough luck life is hard  that's not the standard no and the judge clement does address the pain and her directed verdict she says that mr wilson mentioned pain but he never discussed the extent of the pain as one of her testimony in the record all the complaints of mr wilson don't show that he ever actually had these complaints there's numerous complaints and letters and greenies and testifies that he was in pain that's testimony it's a direct personal account there's nothing with that is that piece of evidence true so if you know if this is to the jury that would be your argument but it didn't go to the jury the directed verdict was granted without anybody making that weightlifting but it was otherwise asymptomatic that was kind of last just impeachment evidence if he testifies i was in extreme pain then it would seem to me perfectly in provo appropriate impeachment evidence to come back and say you know what our contemporaneous record don't show you conveying that problem to the relevant doctors and everything so ladies and gentlemen of the jury you know we think he's exaggerating this court has previously held that when the testimony of a party is so blatantly contradicted by the records and a deliberate and different standard and standard it can be ignored no i don't i think you vastly overstated what we've said certainly when it comes to really a personal report of pain it was a summary judgment stage so would have the same or similar standard required of the court for this isn't a scott versus harris situation where you've got the video of the high speed chase or something of the sort this is a person reporting pain and as you are pointing out there's impeachment evidence in the record maybe was not constant maybe it wasn't as unbearable as he said it is i don't know how much pain people are supposed to live in that goes on back to the testimony of all the parties and the at the expense accept him right yes and the acceptance of the approach of watchful waiting by the medical community for a small reduce know what's missing in that story i'm not actually as concerned about you when did this surgery take place maybe that wasn't the right intervention there are all kinds of things you know this is you know years upon years of looking medical thing the there pressure belts that people can wear that help with her knees or there are other things or treatments that can be done if something's and pain is it your view that if it doesn't require surgical intervention you just say to them too bad you're in pain  but going back to her treatment miss williams did note that she gave him information on how to treat it he was also receiving pain medication during this time there's a number of letters that he sends where he request medication unrelated asked for claritin and nasal spray but he also is requesting pain medication and it shows that he did receive the pain medication at this time he was receiving pain medication throughout the duration of this whatever in january two thousand and eleven  certainly as r and his testimony is it wasn't working after his testimony is that he was in pain record so in other words whatever they were giving him wasn't doing the job in his hearing evidence that he was receiving the medication in january of two thousand and thirteen yes and no there was evidence and back in two thousand and twelve when he saw this williams and then subsequently but less there evidence to support that time period i believe so yes and referred him out to kleagle review on march tenth seven days later he was approved by clear your view for a surgical consultation ten days after that on march twenty seventh he was set to be seen at silver cross hospital by a sort of consul and i have this appointment again a delay in the surgery the doctor gave me states that based on the nature of this hernia and a delay did not impact his condition in any way he also noted that at the time of surgery the hernia was still reducible it was february twenty first two thousand and twelve she employed based on her medical judgment the watchful waiting approach she provided him with information in terms of how to take care of a producible hernia and she never saw him again for eternity after that this constitutional rights there is a guideline as to the treatment of abdominal wall and we don't have any else that has been referenced in this case we know that the guidelines state that the patients are to be evaluated on a case by case basis and that in general patients with a reduced will hernia are not candidates for surgery but again this is evaluate on a case by case basis and to find reducible does that mean you're poking him back in yes it's actually surgical consul dr abasing noted in his testimony that he ever since he came to stay till it's been in his practice and almost every patient with and reducible hernia out for surgery he estimates in the county are twenty fourteen he sent somewhere between fourteen and twenty patients out the only one he didn't send was an inmate who refused to have the surgery miss williams testified that she didn't know about the policies until she was presented with them but she also testified that she treats patients not paper heard opinion that was what tanya williams medical judgment for that reason we actually find that no works for policy or practice violated plaintiffs constitutional rights as to dr carter the district court properly dismissed the cases against dr carter based on a violation of the statute of limitations even leaves the picture pretty so right yes yes he was dismissed rather first it's important to note that the  argue because it's a firm it's unfair or inappropriate to extend it to private corporations the question about whether there was shredding of documents by the  explored employees i just want me to rebut counsel if you look at the record at three seventy six to three eighty three said he testifies that there was and that explains what happened to them to the medical requests and i would urge you to look  in terms of those are admitted evidence that mr wilson's contemporaneous complaints of pain regarding his her knee are fairly wrenching it was sufficient i think to establish pain in that case and finally testimony establish that he needed surgery and he did it so to say well i mean when he saw that we could put him in there but he still felt it justified surgery and i would say that is true for the whole two and a half years that he had to live with