proceed to our th case this morning james versus ha get i'm sorry but it was never meant to be some sort of substitute and relied upon as the only evidence to the case you know only meant to supplement or filling gaps that were never asked about his de basically catches for events there's no authority for this procedure of filing an affidavit at the summary judgment stage and indeed after you filed your response to some reject the s judgment motion that purports to a tester verify to the allegations in the complaint if there's no authority for us around i remember the castro decision beginning of the litigation as an affidavit at a later stage in the case there isn't any authority for this retrospective kind of process that you used as counsel for your client after all the discovery is closed to go back and say everything i said in the complaint is true and expect that to carry the day in summary judgment that would be unheard of no i don't see it any different than if you just  it because what he did was are you actually standing by what's in this affidavit complaint let's combine the retrospective affidavit and the allegations in the complaint because the allegations in the complaint are grossly at variance to what your client testified to in his deposition they don't just provide clarification they are just flat out wrong and different from what he testified to particularly as to the chronology well you know i can get into the the disputes but i wanted to just quickly address whether or not it was proper to to have a li do something that is in writing because this was written out he reviewed the writing and said everything in this writing is true and accurate you may know you stand by that as you stand here in front of us today you stand by the truth of every one of the allegations in the complaint that you had your client attest to in this after the fact affidavit that you in fact notarized no no you don't stand by i know so you're right i stand by the procedure i think what i'm asking about the specific allegations in the complaint you stand by those as facts yes there only i can go into the with the fact that as many of them are wrong and i can get into that but how did you then and how do you stand here in front of us and represent that these are true when in fact they're false because i can get you through the parts that were false that were  wrong st ok so now you're withdrawing the affidavit no you're here withdrawing the complaint because parts of it are wrong and in fact not true even though you tried to tell the district court that all of these things are true you had your client swear to it as true even though you knew and presumably he knew because it was a different chronology at the deposition that much of what was in the complaint was in fact false so you submitted a false affidavit no your honor i did not know it was false because  you had to know it was false because everything that had happened before that in the litigation demonstrated that the original allegations in the complaint were in fact false in several respects what look material respects that i get into those those facts one is the attempting to pass off the allegations in the complaint as facts based on this after the fact retrospective affidavit from your client your i did not that's not only sham it's just it's fraud your honor i did not i did not look at that at that date and say when he was released in jail and you should have i should say you're right this negligent is not fraudulent it's negligent that i should have notice client swear to it and you submitted it to the court to try to defeat summary judgment and you're defending that with that part of it had absolutely nothing to do doesn't matter so if let's see one set that aside i think you h lot to do with the substance of the claim but you're standing here admitting that you submitted a false affidavit no i'm i'm i'm saying that if i said we should maybe you should accept everything else that's in the affidavit under this affidavit says it must be done with great care the sham affidavit rule exists to prevent precisely what happened here which is an attempt to contradict what your client testified to certain chronology of events that differed markedly from the allegations in the complaint he never testified to when he got out and she only deposition yes he did there's passages in the deposition about when he was released from jail swear that all of these paragraphs from paragraph what six to the very end you know you excluded only the jurisdiction and venue allegations everything else you had your client swear to as a matter of did not focus on when he was released from jail because it had nothing to do with our claim now i should hope cross that absolutely i should have got it ok but that's negligent ok what i'm saying is and you're asking us to salvage you from this summary judgment against your affidavit that incorporates by preference the complaint and swears that everything in it is true multiple paragraphs that are false for example and contradict what he testified for example there are no other than when he was released from jail bad conduct that occurred which was in fact after he was release from jail no it was not all of that occurred before he was released from jail and it turns out what it says in the complaint no that is absolutely not true he alleges that all of aside for a minute i'll tell you what i think is a really difficult issue for you ok if we just move past all of that i don't know whether we can or we can't but let's look at on february th nurse hale declines to call an ambulance right warm or shut or make an arrangement for have to have him shuttled to the hospital ok and the reason that she does so is because she knows that he has a appointment with a surgeon the next morning right yes ok that's all agreed upon both we don't nobody is just disputing that fact i think it's very difficult for for you to say that that's just it's just objectively and reasonable under the you know the pretrial detainee standard and we have to have you know a trial here because we're what happened what happened is is bad i mean the facial swelling and all that but that some extent that's what it is right i mean he's not in because of that insufficient evidence mr james sought to verify his st of many complaint even past the last hour in this case we were three years into the case a year and a half after the st and that a complaint was filed district court properly questioned whether or not mr james should even have been afforded the opportunity to submit such an affidavit so early in the case and the nd is that this af castro but also one of four that was a pro se plaintiff and even still on a pro se plaintiff this court did not commend that practice for the exact reason that we're here today because it can create a sham and as the district court  on page six of the appendix specifically stated that this process that was used creates a mockery of the summary judgment process which is exactly what happened here we had just covering plaintiffs had the opportunity to conduct discovery and it is their burden of proof they simply could not meet that in this case your honour's to my nd point is that the creature is factual errors and also the procedural errors in this case is the exact definition of a sham gave it it was used for the sole purpose of sorting summary judgment in this if you know look at the cases that talk about same affidavits if we look at castro if we look interviews this case goes even further that the so called lapses in memory the so called in consistencies which actually point to conceded that there and accuracies but those occurred at the affidavit stage not at the deposition stage frankly mr james deposition is more accurate on some points than his affidavit that he had the availability of the medical records he had the availability of  be such and thereby excluded it that was not an abuse of discretion that analysis applies to mr james this affidavit but not the mothers because the mother was never deposed  look at what she is swearing to it doesn't give any information it swears that she talked to her son about his medical condition that doesn't provide any relevant material facts against nurse hale it does state that  point she did speak with nurse hale actually i believe nurse hale agree that she did speak with mr james as mother at some point but it doesn't give a timeframe and if it doesn't give a timeframe you know we're talking about between january or he was seen by another outside specialist on january th so we don't have any information so therefore it really is not a material fact for the purposes of summary judgment around it mr james counsel today has argued that there's only a couple specific instances in accuracies or even potentially inconsistent and that even those are not relevant to the issues here today but i want to point to one in particular that i found interesting it was that a statement of material fact number nine is that mr james never was seen by any medical staff not an inconsistency those are pretty absolute words never and which we know is not true we know that mr james testified at his deposition that he could see a nurse daily sometimes multiple times in a day nurses make these daily rounds i thought there was some he's trying to make some point about confusion about the definition of sick call your honor he did say mr james it say in his deposition that he the nurses make daily rounds and nurse and in fact if you look at the record on january th he actually was seen by two separate nurses one who he reported pain to and one who he reported no pain to so he does have the ability to see these medical professionals and request help if he needs that it's at that medical assistance when in fact he was he received care from three is it three or at least three times received care from outside  reasonable when he went to go see him he actually did not dr kraemer did not mr james with an infection or with an abscess at that time and there was a c t scan interestingly enough if you look at the statement of material facts that mr james presents he doesn't cite any of these medical records because there was no harm there was no infection that was diagnosed there was no abscess that was diagnosed either on february th or by same elizabeth soprano so yes but it was it was meant to be because as a backup plan in case there was a faction developing very common yes your honor so dr kramer who's a specialist did not feel that there was a need some urgency room and even then he wasn't so worried about plaintiff getting this medication that he didn't call the jail to speak to a live person i think everybody would understand a jail operates twenty four hours a day