thirteen six three seven zero william sours minister of the state of james sours deceased versus the exam the regional jail already and others i'm here this morning on behalf of the estate of james sours who died in the big sandy regional detention center i have asked to reserve two minutes for rebuttal in this case and in this argument the district court below erred in two ways in dismissing all of the plaintiff's claim save one which for reasons described in our brief we considered to be a weakest first the district court from its opinion appeared to believe that what the plaintiff had to show was that the defendants needed to know that he was experiencing the risk of diabetic ketoacidosis in particular as opposed to simply recognizing that he had a serious medical need that mandated treatment and then did nothing the other error that the judge committed was disregarding the six circuits admonition in the philips vs roane county case in the case of the state of carter versus city of detroit circuit circuit expressly recognize that and i quote officials of course do not readily admit the subjective component of the deliberate indifference test and therefore it's permissible for the reviewing court to infer from circumstantial evidence that a prison official had the requisite knowledge the court got it even more particular in a state of carter it said in fact in most cases in which the defendant is alleged to have failed to provide treatment there is no testimony about what inference the defendant in fact drew in those cases a genuine issue of material fact as to deliberate indifference can be based on a strong showing of the objective component to two points with regard to that last authority first of all no dispute in this case that we've met the objective component the the defendants have conceded mr souers was a diabetic that he had a serious medical need so all we're arguing about here this morning is whether the the evidence a deuced in discovery below was sufficient to permit this case to go to a jury on many issues of the subjective component and here i want to to emphasize to the court that this is a wrongful death case mr souers was in isolation during the key part up to the time of his death the metallic case i have no plaintiff to come into deposition or to come to the court to say i told them this what they say was not true i was asking for help in this case mark proof on the subject development was dependent upon what the documents show and what i could get the defendants to admit in their depositions and it varies doesn't it so it does need to address the knowledge objective knowledge component and what subjectively might be drawn from that on on a defendant by defendant says that's correct your honor and if you please let me do that from the foundation that the six circuit stablished in the garrets case and in do it by way of comparison with garrett in gerritsen you had a situation where an individual came into the jail set on insulin dependent in a past due for a dose of insulin that's it there was no evidence that helped to belly the identified officer in gerritsen or the unnamed officer the gerritsen to hersel observed any symptoms of distress in this case in mr souers case when he came into the jail on tuesday july and let me be specific about this when he came into the day jail on tuesday july thirteenth he met with the nurse allison and he told her he was diabetic he took insulin he said he couldn't take care of himself and he would have that information conveyed to the deputy  there is no information that there is really no evidence of what she told the deputy general the deputy jailer after nurse alice unless the jail the next day for four days the deputy jailers all testified that they were under the assumption mr souers was a diabetic because they were asked to take his blood sugar so they knew that much they knew that much but just speaking pretty in particular nurse allison that he was a diabetic but he hadn't had any insulin and them approximately a month i have no evidence to dispute that your honor ok md do you do you would not i think your brief in your response briefing knowledge is that that is fairly significant in terms of the urgency he didn't bring any with him he said he can't take care of himself and he said he hasn't been seen in a long time and and hadn't had any insulin and what what we would think was a fair amount of time if you were seriously dependent on your insulin that's that's dennis correct your honor however there is no question but the given mr souers presentation he was not a reliable historian but the fact that he said that he took insulin hadn't been taking it certainly would raise in the mind of a medical professional whether he was past due for his insulin or it back parent me nurse alison question that was more about kids right dependency and how he was currently in there having taken a fair amount of drugs that's correct your honor but there's there's two points to that in the first one is nurse allison was not did not have the training the qualifications to distinguish after in the second day that mr sellars was at the jail that his condition began to deteriorate his blood sugar level went up it was already significantly high when he came in we could list mr souers i could you know i couldn't say in a in the value way in this case why did you do that i don't know your honor whether he had the competence and the  presence of mind to be doing that in an effort to force his being transported to the hospital or whether that evidence confusion on his part and frankly just like distinguishing between detox and diabetic ketoacidosis there was nobody at the jail that ever saw this man that could make that determination he never saw physician be treated period he saw he saw an r n with these high lines see her notes indicate the allisons notes indicated that he was in highlands about a month ago for diabetes hospital that's a hospital yes your honor issue or the other thing was that nurse allison in her deposition admitted that if in fact what mr souers was going through was evidencing primarily detox as opposed to diabetic ketoacidosis she admitted  she knew he had diabetes and that going through detox compounded with his liver problems could exacerbate his diabetic ketoacidosis now in so many in the gar that day in terms of mr souers condition she told the jailer that mr souers was a critical situation so we've got an infant we've got testimony as to the inference she drew there and when you put these facts together as to nurse allison and you consider what she knew the evidence indicating his deterioration in the limitations upon her ability to to make any conclusions as to what this gentleman was doing the fact that she left the jail on wednesday night having not even ordered insulin for this man which the court in believe it was in the natalee case is said in the third circuit that's common sense is just i think we've easily cleared the lid deliberate indifference bar with regard  to some of the the jailers where the evidence is a little bit different what is your best evidence as to why griffin should griffis group has said he wouldn't take the medicine that he was offering him and his testimony was had the nurse been here had she been here and i just had to walk to her office i would have told her and my argument is if you'd walk to her office in would have told her if she'd been there he should have called her that simple now the district court said that didn't make any difference because the medicine he was trying to give mr souers was well there's a variety of issues with regard to administrator man first of all your honor he was the one that nurse allison told this man's a critical situation bye bye he moved she was here an indication to him that critical situation had to do with his hill i think it was clear and i believe it could begin third from the testimony that it did there was no where the basis for that comment i mean she could then she knew it and if she failed to convey it that's her problem not hands of course he denies that she even said that to me but that's a that's a fact you've got an inmate in your jail critical health situation i'm leaving he knows he's not going to have a nurse there or a physician there he knows at that point it's up to him it's on him and his g with regard to man individually there is no evidence that he did anything about mr souers after he was told that nothing well and also as you as the court can say we've made the the failure to tr believe your honor we really didn't do a lot of stories to why he was he was brought in but here he was a very plain he was a pretrial detainee correct that's correct but in this particular case district court looking at all of service in looking at your you can tell the district court took an exhaustive review of the particular pages of the deposition testimony in the specific content of the records and concluded that the plaintiffs had failed to make out the facts sufficient to establish the subject e component of the deliberate indifference test me understand hilberg conclusion comes from the evidence to nurse allison who missed told when the guy walks in the door i'm a diabetic i haven't been taking my medicine but i was in the hospital for my diabetes a month ago i get confused at times and i can't remember if i've taken my insulin or not and i don't have anybody to bring me my insulin bought bottles and i'm not capable of caring for myself now what would that convey to a health professional would convey to a health care professional exactly the facts that he can make that he was having that he was a diabetic the not here treatment in some time did not take an insulin and some been serious enough to be in the hospital for it within the month or he could have gone to the hospital and emerge room for treatment which people which people do you don't know what's key here i think that should doesn't get when you're taking the evidence in the li most favorable to the point if the defendant doesn't get to put a gloss on that evidence the question is whether an a healthcare professional receiving that information is on notice that there's a serious risk they admit that objectively they were on notice so how is it that a trained professional who understands diabetes doesn't also subjectively abraha they serious danger where it comes from is yes we've agreed of a devout diabetes in this condition which support the objective component but what she did here is key what she did she drew the inference that he was detoxing that is diabetic condition was indication that he's in trouble on insulin that varies from individual to individual again this minute been maintaining and going without insulin for some period time people that are diabetics how do you know without insulin i'm just struggling with that is a conclusion because what he said to her was i am not sure when and if i have taken my insulin that's in her notes and she testified consistent with those notes that he had not tak in over a month that's what he told her when she interviewed him at length about her condition she then took her note and she faxed it to the part of deliberate indifference is and i when i try and put this in lay terms it's a new or something and i didn't give a damn it's there is a serious an unreasonable risk and i'm not doing anything about correct and that's the same as i know of it and i'm now i'm not going to do anything about it in the n c allison in this case did do things about it she took her note she sent it to dr bell he's in dr bill he's a never ordered insulin for james out never said get him on insulin and you need a prescription for insulin in order for nancy as a nurse to administer it nancy allison after she saw him followed up the next day she saw him four times in the course of twenty four hours she persuaded him to take the blood sugar test she interviewed him and talked to him and he says i'm not here about my blood sugar that's what she testified to he was talking about wanting to go home he claimed to her about chest pains a little bit about some vomiting which again within the prison setting is a common sign of someone who is under the influence of alcohol may be going through state put a stay under date time also a very common   of impending diabetic did it she should know as it is a medical professional she should know some of the key components of diabetes and what the risk factors are and she testified that she was where a diabetic ketoacidosis she knew what the symptoms were that would commonly exhibit such as extreme fatigue headache vomiting frequent urination extreme hunger thirst he never had those symptoms and she testified she never observe those symptoms and she testified the james hours was never problems in your position she just committed malpractise on the same committed any malpractise i'm saying that on the state law claims malpractise versus constitutional violations are two different things and in this particular case in  specifically told her those problems you were experiencing were not with his blood sugars he said it was him little bit of chest pain on when she saw him on july fourteenth that he wasn't feeling well and vomiting he was a little nauseous he said he specifically said her blood sugar was not the problem he wanted to go home he deny he specifically denied to nancy allison when she saw him on july fourteenth at five thirty five pm he specifically denied any witness extreme left  disorientation headaches extreme hunger thirst or frequent urination which are the common recognize signs for someone who might be at risk for diabetic ketoacidosis again she saw this man four times she talked with him tried to communicate with him maclay still in a medical observation cell or put him on the standing orders which were there for a low carb diet had to ask the deputies to try and draw it to get blood sugar test mr souers of course was refusing those when he refused in the one day the deputies brought her brought him to her and she was able to convince him to do the blood sugar test at that time she said you know it's a little high but i really thought still thought it was part of the detox process which is common for inmates when they're in brought into this into a prison setting within the first twenty four to forty eight hours it's consistent with what tony allen said when he saw mr souers tony allen was the deputy who started it midnight in one through eight a on july fifteenth ok nancy allison sees him four times in twenty four hours leaves about nine or ten o'clock watches him in the medical observation cell before she leaves tells the deputies that she's got a note from dr bill hazen to take him to the hospital the next here's prescription ok never said that she had left the sliding scale information or an expected the nurse to comply with what she indicated was the procedure is to follow a sliding scale of ministration and nine insee allison indicated that she did not have a prescription for that particular insulin for mr souers and that's why she could not administer insulin to him she had to have a prescription for him and again it's what i asked the doctor that she did not ask the doctor she faxed the new to dr bill hazen dr bill hazen sent back the next day instructions to get get some blood work done on this man and put him on the list made a mistake there i guess correct what they diagnosed but it was a you're basically saying here your defense is it was a roni is diagnosis but it was  my insulin shot in the deputy in that case deny or the insulin she then asked for i'm just struggling with that comparison because here we've got a guy who comes in and says i was in the hospital about a month ago for my diabetes i don't think i'm at and then there's questionable language of not been taking my medicine and then i get confused at times and this is from her notes and is not sure when and if he has taken insulin says he is not capable of caring for himself what what would she as a health care professional the light of day at it mission or that statement about his ability to say what he needs or what he's even taken and in light of her knowledge of what the symptoms are  for ford for diabetic problems is your statement that she just i'm just really i'm struggling to understand their sense and what she did was that she got that information just as you said and we have to construe that in  testimony that's what she indicated she did she also said get rid of it lots of russians from the doctor did she get is blood tested and i'm going to look at him when i'm getting on and then nurse allison lee him alone no health care professional in the facility for four days she leaves him and she leaves at some time nine ten o'clock on the fourteen she tell she leaves instructions for the deputies in terms of take him to the hospital get the blood sugar work done blood work done today or tomorrow he's on the list to see the doctor keep an eye on the deputies also know that there's a medical emergency she's on call twenty four seven not was the testimony so if they went into a medical emergency they could call her in order to find out what they should do or if they recognize all or when they walked in and he was unresponsive affectively unconscious on the floor of the jail you know they exercised the other option because at that point when the deputies came in at ten forty five or so on the evening of the fifteen ok at that point sal your saw him and said you know he was breathing he was awake but his own response of immediately calls the supervisors blanton and montgomery immediately come into the into the cell in in contrast to assess the situation tried to see if you could get him to respond touched him to see if he was you know what was going on here and then within a matter of minutes made the decision to call an ambulance to take care of him so you know the deputies in these particular situations if there's not somebody on staff if there's not somebody on site they can call the jail nurse at the you know in this case which they're supplying call twenty four seven for calls or were they did the other option they called an ambulance well that i guess you've got a guy on the floor he's reading at that time seven minutes before the other people it's it's ten fifty two which is where it twelve minutes before they call an ambulance the hospitals five minutes down the road it's eleven o six before the paramedics arrive and he's not breathing by eleven thirty seven he's dead explain to me why there was appropriate action under those circumstances it was appropriate action and circumstances because you get deputies doing the best they can and they're making judgment calls they get these are deputies they're not trained nurses they're not medical professionals and i don't think the constitution requires that the but instead they came in when souders checked again they were checking on the evidence is they were checking on him throughout the night and when sauer spending the ten forty his eyes were open he was breathing was unresponsive he merely calls a supervisor and it takes them five or six minutes according to the time records to get into that cell from where they were i think the testimony was blunt was in the bathroom when the call came out they get there ok within six minutes according to the record within six minutes they make the decision to call the engines and again they went through a depressive deciding is it do we call the ambulance w come right in assess him and get him to hospital we were do we try and get a guy who's unresponsive ok do we try and get him onto a cart onto a cot into a cruiser and transport yourself they made the better they made the judgment call that was better in a case to get the t's there now they couldn't help the fact that the it took the mts longer than normal to respond that's something they can't control and again it's a critical in distinguishes our case from these other cases and you know like fifteen minutes i think i'm close i might be off but it's close and what five minutes away but it is you know they expected a quicker response but again that was out of their control and it's a situation where again if you look at what the test was they were looking at diagnosis in got it wrong and they said that's exactly right the problem was there was nobody in that jail that was qualified to make that diagnosis and they knew it erroneous diagnosis is deliberate indifference if they don't have somebody they are is a mix bird and who could have figured out in advance what the problem i think it is your honor and i agree with all your points but i think it is in this case when there is no one there they can that has the qualifications to figure out what's going on and when there is a doctor a phone call away and there's a hospital four minutes down the  that's what she said but that's why i think summary judgment in this case is particularly inappropriate first of all given the the evidence that we have a deuced in discovery and second of all a jury needs to see these people on the witness stand and make that credibility assessment when all i've got to go on is their documents and their admissions in discovery under these types of circumstances i think there's plenty of  argument for the fact that a jury has the right to see these people and decide and assess their credibility determine whether they're telling the truth thank you thank you thank you