[00:00:10] Speaker 00:
It is Leo versus Adamson 24-4594.

[00:01:07] Speaker 03:
Hi, my name is Chris Davis and I'm here for the panel.

[00:01:09] Speaker 03:
I would like to attempt to reserve two minutes for rebuttal.

[00:01:15] Speaker 03:
I'd like to thank the panel for the opportunity to present my arguments.

[00:01:22] Speaker 03:
To the extent Leo alleges any state law claims, both this court and the district court lack jurisdiction over these claims.

[00:01:29] Speaker 03:
Nevada has not waived its sovereign immunity, protected by the Eleventh Amendment and Nevada law, Leo cannot invoke the waiver of sovereign immunity.

[00:01:37] Speaker 03:
presented state law claims against the sentence without naming the state of Nevada which he cannot do the state of the district court erred when denying defendants motion did you wait wait those claims or are they not waivable because they're jurisdictional well only the legislature can waive sovereign immunity I mean in arguing and in the district court below no no you can't you don't because we asserted in as an affirmative defense in the complaint and therefore you can

[00:02:03] Speaker 03:
not wavable.

[00:02:04] Speaker 04:
Are those properly before us?

[00:02:07] Speaker 04:
Because all that's before us, right, is that you can only interlocutory appeal the denial of QI, qualified immunity.

[00:02:13] Speaker 04:
So are those claims properly before us, the state law claims?

[00:02:18] Speaker 03:
The state law claims yes, because the Supreme Court has expressly said that 11th Amendment immunity is such importance, even greater importance than qualified immunity, that you're entitled to an immediate appeal.

[00:02:28] Speaker 03:
In fact, the District Court in the Edelman case specifically said that.

[00:02:31] Speaker 01:
What about the qualified immunity, because I thought that was the focus of the appeal?

[00:02:36] Speaker 03:
Yeah, and that's what I was getting to, Your Honor.

[00:02:40] Speaker 03:
He's not plausible, in fact, showing an eighth of a minute of a violation, let alone... Sorry, I'm having a really hard time understanding you.

[00:02:46] Speaker 03:
Oh, sorry.

[00:02:46] Speaker 00:
Can you slow down just a little bit?

[00:02:48] Speaker 03:
I will try, Your Honor.

[00:02:48] Speaker 00:
That's okay.

[00:02:49] Speaker 03:
I apologize.

[00:02:50] Speaker 00:
That's all right.

[00:02:52] Speaker 03:
Go ahead.

[00:02:54] Speaker 03:
Let's violate a clearly established constitutional right, which is required to overcome qualified immunity.

[00:02:59] Speaker 03:
Defendants did not violate the Eighth Amendment when treating Leo's back, because Leo has merely alleged a difference of opinion between one NDOC doctor and the doctors on the NDOC Utilization Review Panel, or URP, which as a matter of law cannot establish an Eighth Amendment violation.

[00:03:17] Speaker 03:
Little admits that the medical providers ordered multiple x-rays,

[00:03:24] Speaker 03:
which revealed no injury to his back, and that Leo was provided with pain medication to treat the injury to his back.

[00:03:35] Speaker 03:
As set forth by the Supreme Court in Estelle, the decision to provide additional diagnostic tests or other forms of treatment other than pain medication is a classic example of a matter left to the doctor's medical judgment, which includes the judgment

[00:03:52] Speaker 03:
of the URP panel.

[00:03:53] Speaker 00:
So we're at 12b6, and we're just talking about whether or not he received adequate care and what his allegations are.

[00:04:01] Speaker 00:
So we're not going into any fact finding.

[00:04:04] Speaker 00:
He alleges that this was not the appropriate treatment, because he just got ibuprofen and it wasn't working, and it wasn't working, and they just continued.

[00:04:13] Speaker 00:
That's his argument.

[00:04:15] Speaker 00:
And that was the same?

[00:04:16] Speaker 00:
We're just looking at his allegations.

[00:04:18] Speaker 03:
Yeah.

[00:04:19] Speaker 03:
And that's the same argument that was made in Estelle.

[00:04:21] Speaker 03:
Estelle was the motion to dismiss the claim, too.

[00:04:23] Speaker 03:
And Estelle, I'm sure they made the same arguments.

[00:04:25] Speaker 03:
And they said, hey, we're just on the motion to dismiss stage.

[00:04:27] Speaker 03:
We're here, here.

[00:04:28] Speaker 03:
But the Supreme Court still says, you know, this is a matter for medical judgment.

[00:04:32] Speaker 03:
What he would need to do in alleging his complaints, he would have to follow the constraints of Edmo.

[00:04:39] Speaker 03:
Edmo provided a small exception to this claim.

[00:04:57] Speaker 03:
In EDMO, the district court affirmed the decision that differences of medical opinion, it says that's generally what's held.

[00:05:04] Speaker 03:
You have a difference of medical opinion?

[00:05:06] Speaker 03:
No 8th Amendment violation.

[00:05:07] Speaker 03:
But in EDMO, they made a small thing, small exception, which said, well, if you have a highly qualified expert that says that it is, that opines that he did not follow the accepted standard of care and it was medically necessary.

[00:05:21] Speaker 03:
In other words, the standard in,

[00:05:27] Speaker 03:
Here, Leo does not allege anything similar to that.

[00:05:32] Speaker 03:
He doesn't allege that any medical provider ever alleged.

[00:05:35] Speaker 00:
Wait, wait, wait.

[00:05:36] Speaker 00:
This just isn't right.

[00:05:37] Speaker 00:
What he alleges, it's not about the failure to give the MRI.

[00:05:41] Speaker 00:
He certainly takes issue with that.

[00:05:44] Speaker 00:
And I take your point about a difference of opinion about at what point an MRI was called for.

[00:05:50] Speaker 00:
What he alleges, which we don't

[00:05:52] Speaker 00:
know, we're not going to make a finding about this, he alleges that the appropriate course of treatment would have been physical therapy, epidural injections, and surgery, and that he did not receive that care.

[00:06:02] Speaker 00:
Right.

[00:06:03] Speaker 00:
And there was a very, in this case, a very significant delay, and that caused further injury.

[00:06:09] Speaker 00:
We don't know if any of that's right.

[00:06:10] Speaker 00:
We're just at 12b6.

[00:06:12] Speaker 00:
You really seem to be making summary judgment arguments.

[00:06:15] Speaker 03:
No, Your Honor, I'm not.

[00:06:17] Speaker 03:
If you really review our briefs, we are lying entirely on the allegations in his complaint.

[00:06:22] Speaker 00:
Okay, so let me do it this way.

[00:06:23] Speaker 00:
I created a timeline because I, for both of you, I think this would be helpful.

[00:06:27] Speaker 00:
I created a timeline because he saw so many different care providers.

[00:06:30] Speaker 00:
And it seems to me that there is a question about one of the allegations he takes issue with is that he wasn't given an MRI, right?

[00:06:37] Speaker 00:
And the Medical Review Board looked at that twice.

[00:06:40] Speaker 00:
And the first time they looked at it in June of 2019,

[00:06:43] Speaker 00:
which was less than a year after the injury, and they said no MRI.

[00:06:49] Speaker 00:
But again, it hadn't been all that long.

[00:06:52] Speaker 00:
And then in April of 2021, when they looked at it, they allowed the referral to the expert.

[00:06:58] Speaker 00:
There's another physician by the name of Dr. Pena and Dr. Sanchez.

[00:07:06] Speaker 00:
Dr. Sanchez in particular who saw him just one time.

[00:07:09] Speaker 00:
So if you're talking about deliberate indifference it seems to me and this person just saw him one time and only in October of 2018 which is very close to the time of the accident.

[00:07:18] Speaker 00:
It seems to me like that that allegation is going to fall short as to Dr. Sanchez.

[00:07:23] Speaker 00:
But as to the other care providers, there are a couple that saw him multiple times for many, many months and really just kept prescribing ibuprofen and that wasn't alleviating his pain, apparently.

[00:07:35] Speaker 00:
So why doesn't he have at least a colorable claim as to those care providers, sir?

[00:07:40] Speaker 03:
Because, as you said, if you review the timeline that's provided, Your Honor, what you see is

[00:07:45] Speaker 03:
Progressive care, progressive increasing more care provided.

[00:07:49] Speaker 00:
No, we don't.

[00:07:50] Speaker 00:
We don't see that.

[00:07:53] Speaker 00:
We see that what he alleges, and again we're at 12b6, is that he kept us getting ibuprofen.

[00:07:58] Speaker 03:
No, Your Honor, he also alleges that he was provided x-rays.

[00:08:01] Speaker 03:
That's not care.

[00:08:02] Speaker 00:
That's a diagnostic tool.

[00:08:05] Speaker 00:
An x-ray's not care.

[00:08:06] Speaker 00:
It's a diagnostic tool.

[00:08:07] Speaker 00:
And what he said is it wasn't working.

[00:08:09] Speaker 00:
Nothing was alleviating his pain.

[00:08:11] Speaker 00:
You started, let me do it this way, you started by saying that you don't think that he had a significant medical condition, right?

[00:08:20] Speaker 03:
He doesn't have objective evidence that serves a medical condition.

[00:08:23] Speaker 00:
We're not talking about objective evidence, we're talking about his allegations at the 12b6 level and he's alleged that a condition that significantly affects his daily activities or evidence of chronic and substantial pain.

[00:08:37] Speaker 00:
Would you agree he's alleged that?

[00:08:39] Speaker 03:
Yes, he has, but the evidence of, this court has ruled that claims of pain is a subjective phenomena.

[00:08:48] Speaker 03:
In other words, what you have to have is you have to have objective evidence.

[00:08:51] Speaker 00:
Right, and so what he's alleging is that he couldn't sleep, he couldn't stand, it affected his mobility and his ability to sit or to

[00:09:00] Speaker 00:
sleep or to stand, I believe.

[00:09:02] Speaker 00:
That says we're just at the allegation stage, sir.

[00:09:04] Speaker 00:
It seems to me he's clearly alleged what it takes to get over the hurdle under our case law.

[00:09:09] Speaker 03:
Well, Your Honor, I would respectfully disagree, because the cases what we cited in our brief all say that you have to have objective medical evidence of those phenomena.

[00:09:18] Speaker 00:
Not at the 12b6 level.

[00:09:20] Speaker 00:
So look at the, I think what you're really arguing is deliberate indifference.

[00:09:23] Speaker 00:
And that's where I think the timeline comes in.

[00:09:25] Speaker 00:
Because, for example, for Dr. Sanchez, he saw this person one time and only very shortly after the accident.

[00:09:32] Speaker 00:
That's qualitatively different.

[00:09:34] Speaker 03:
Well, Your Honor, but I would submit to you, Your Honor, what it's showing is at each level that the care gets progressively better.

[00:09:40] Speaker 03:
I mean, not progressively better, but progressively more aggressive.

[00:09:44] Speaker 03:
in treating him.

[00:09:46] Speaker 03:
He gets x-rays, right?

[00:09:49] Speaker 03:
And I respectfully disagree, Your Honor.

[00:09:51] Speaker 03:
Well, an x-ray is a diagnostic tool.

[00:09:52] Speaker 03:
They use the diagnostic tool in order to determine what treatment to provide.

[00:09:56] Speaker 03:
And the x-rays consciously show that there is no injury to his back.

[00:10:00] Speaker 01:
What discovery has been conducted so far?

[00:10:03] Speaker 01:
I know there was sort of a beginning of this, and then it got maybe stopped.

[00:10:07] Speaker 03:
Yes, Your Honor, because in the factual timeline of this, when this originally came out,

[00:10:14] Speaker 03:
that he was not represented by counsel.

[00:10:21] Speaker 03:
They do a couple of amendments to the case.

[00:10:24] Speaker 03:
Counsel comes in.

[00:10:25] Speaker 03:
They do a second amendment complaint.

[00:10:26] Speaker 03:
The complaint is no longer liberally construed.

[00:10:28] Speaker 01:
So what discovery, if any, has been conducted?

[00:10:30] Speaker 03:
I understand there's been some document production.

[00:10:35] Speaker 03:
I think there was a deposition

[00:10:37] Speaker 03:
I don't know if there was a deposition.

[00:10:38] Speaker 03:
I wasn't counsel at the time, so I'm not sure that there was a deposition conducted.

[00:10:42] Speaker 03:
There was a deposition, at least there were depositions scheduled, but I'm not sure if they went through.

[00:10:46] Speaker 00:
Would you like to reserve any time?

[00:10:50] Speaker 03:
Yes, two minutes if possible.

[00:10:53] Speaker 03:
I guess I got 30 seconds.

[00:10:55] Speaker 00:
I'll give you two minutes when you come back up, counsel.

[00:11:08] Speaker 02:
Good morning.

[00:11:08] Speaker 02:
May it please the court.

[00:11:10] Speaker 02:
I'm Ryan Norwood, representing Mr. Leal.

[00:11:13] Speaker 02:
If I could start by answering your last question, there was actually a lot of discovery that was conducted in this case before it was stayed for this appeal.

[00:11:21] Speaker 02:
There were documents provided by both sides.

[00:11:25] Speaker 02:
There were two depositions done of defendants, Landsman and Augustin, and they were experts.

[00:11:31] Speaker 01:
Which Augustin and who was the first?

[00:11:32] Speaker 01:
Dr. Landsman.

[00:11:34] Speaker 02:
And there were actually experts noticed by both sides.

[00:11:37] Speaker 02:
We provided a report.

[00:11:38] Speaker 02:
It's in the record because I put it there when we were arguing over the stay where our doctor had reviewed the records and determined that the course of treatment was medically unacceptable under the circumstances.

[00:11:50] Speaker 01:
So what other discovery do you think would need to be taken if the case was allowed to proceed?

[00:11:56] Speaker 02:
When the case was stayed, what we had pending was a notice deposition of their rebuttal expert.

[00:12:03] Speaker 02:
and some interrogatories that were before the individual members of the URC, in part to determine how they actually voted.

[00:12:14] Speaker 02:
I believe there was another notice deposition regarding another... Have you received records from the URC?

[00:12:19] Speaker 01:
Do you already have all those documents?

[00:12:21] Speaker 02:
We got discovery, again, that included the names of the URC members, but not a record of how they actually voted.

[00:12:33] Speaker 01:
Or the materials they reviewed in making that vote, things like that you think you still need.

[00:12:38] Speaker 01:
Correct.

[00:12:38] Speaker 02:
No, we still don't have that.

[00:12:39] Speaker 02:
I mean, it's still not a complete record.

[00:12:41] Speaker 02:
We came, we made some significant progress towards completing it, but there are still a few things that need to be done.

[00:12:49] Speaker 02:
Quite frankly, I think it would have been easier if we had just completed that discovery rather than come up here for this interlocutory appeal.

[00:12:57] Speaker 01:
I mean, one of the things about this case, there's a lot of people, and then it progresses along a timeline.

[00:13:03] Speaker 01:
And presumably, your argument is, as things went on, it got worse and worse, because the more time that went by, the more deliberate and different people were.

[00:13:13] Speaker 01:
I mean, this is kind of the nature of a case like this.

[00:13:16] Speaker 01:
Early on in the case, you have some doctors that are looking at him, but they only see him briefly, like Dr. Pena.

[00:13:25] Speaker 01:
The doctor Sanchez, I believe, is one.

[00:13:28] Speaker 01:
Dr. Pena, maybe.

[00:13:29] Speaker 01:
So why is there a deliberate indifference claim as to them?

[00:13:32] Speaker 02:
I believe our allegations are somewhat broader than that.

[00:13:36] Speaker 02:
It's true that in the complaint we refer specifically to one visit by Dr. Sanchez and one visit by Dr. Pena.

[00:13:43] Speaker 02:
But we say that it is specifically alleged that they were responsible for Mr. Leal's care during this early period.

[00:13:49] Speaker 02:
And we're talking about a period of months here.

[00:13:52] Speaker 00:
Do you think you have a complete record of all the times Dr. Sanchez saw your client?

[00:13:56] Speaker 02:
I'm not sure that we do.

[00:13:57] Speaker 02:
And that's, again, another thing that we might want to fully develop in discovery here.

[00:14:03] Speaker 02:
We are alleging what we knew at the point that we submitted the complaint about these two specific visits.

[00:14:11] Speaker 02:
but we are more broadly alleging that they were responsible for their care.

[00:14:15] Speaker 02:
So I would not, I'm not agreeing at this point that that's the only time that they are in a position to provide medical care for Mr. Wheel.

[00:14:24] Speaker 02:
Another point I want to make about these progressive providers is that there's a record that's available to them.

[00:14:30] Speaker 02:
We specifically alleged this, that there's a record of complaints made by Mr. Leal that would have been available to the subsequent providers.

[00:14:37] Speaker 00:
So if... That's why I'm a little confused about your response to Judge Bress's question, is that considerable discovery has been done.

[00:14:45] Speaker 00:
And I guess I'm envisioning, you know, a patient file where you'd be able to see which physician saw him when and how many times.

[00:14:51] Speaker 00:
Is that maintained electronically?

[00:14:53] Speaker 02:
Most of their files are not.

[00:14:55] Speaker 02:
They're on paper, and I receive copies of them in a PDF form.

[00:15:00] Speaker 02:
Frankly, they are very hard to read, a lot of it's handwritten.

[00:15:04] Speaker 02:
So even when I get the record, it's not always clear exactly who was doing what when.

[00:15:10] Speaker 02:
That's in part why we sought depositions of some of the providers to clarify and to frankly interpret some of the stuff that's in the record here, because you can't read a lot.

[00:15:24] Speaker 02:
Just a couple of other issues that came up that I'd like to address in my time.

[00:15:29] Speaker 02:
Defendants brought up the state law claims.

[00:15:32] Speaker 02:
There were state law claims pled.

[00:15:33] Speaker 02:
They were not the subject of the motion to dismiss.

[00:15:37] Speaker 00:
I mentioned in my... In front of us, right?

[00:15:39] Speaker 02:
No.

[00:15:39] Speaker 02:
They're certainly not.

[00:15:40] Speaker 02:
I would argue that the motion to dismiss has been waived at this point.

[00:15:43] Speaker 00:
Not in front of us.

[00:15:44] Speaker 00:
They're not in front of us.

[00:15:45] Speaker 00:
I take yes for an answer on that one.

[00:15:46] Speaker 00:
They're not in front of us.

[00:15:47] Speaker 00:
Yes.

[00:15:48] Speaker 00:
Okay.

[00:15:48] Speaker 00:
Is there another matter you wanted to raise?

[00:15:50] Speaker 02:
Just briefly, the Estelle case was mentioned.

[00:15:53] Speaker 02:
I wanted to point out that that's a very different factual circumstance involved there.

[00:15:58] Speaker 02:
Estelle noted that in that case, that the plaintiff had acknowledged that he received extensive medical care, and that what he was alleging there did amount to just a difference in a disagreement about treatment.

[00:16:13] Speaker 02:
That's not what's alleged here.

[00:16:16] Speaker 02:
This court has never interpreted Estelle to mean that

[00:16:19] Speaker 01:
just because you get

[00:16:38] Speaker 01:
you know, just in candor you see maybe more deliberate indifference than what's alleged here because he has a consistent pattern of treatment.

[00:16:45] Speaker 01:
There's an allegation that the treatment wasn't working, but at the end of the timeline we find out he has an MRI that reveals a congenital defect and it's not apparent what, from the face of the complaint, exactly what more one is claiming could have reasonably been done.

[00:17:02] Speaker 01:
And when you have a series of kind of ongoing review and ongoing doctors,

[00:17:06] Speaker 01:
It just may create some impediments to actually proving up this claim under the legal standards.

[00:17:12] Speaker 02:
I mean, I will agree with you that deliberate indifference is not supposed to be an easy standard to meet, but, you know, it just comes back to this is not the proper stage of the proceedings to be trying to resolve these questions.

[00:17:24] Speaker 00:
But you agree you're going to have to show, you will let, your client's going to, it is a tall order.

[00:17:28] Speaker 00:
You'll have to prove, right, that there was actual

[00:17:33] Speaker 00:
an exacerbation of the injury because of the delay.

[00:17:35] Speaker 00:
The delay alone is not going to be enough, right?

[00:17:38] Speaker 00:
I think that's pretty well established.

[00:17:41] Speaker 00:
And you've alleged, the complaint alleges that, I'll give you that.

[00:17:44] Speaker 00:
And my understanding, and this is kind of important given opposing counsel's comments, it's important to me anyway, that this is not a claim that is dependent upon difference of opinion about whether or when an MRI was warranted.

[00:17:59] Speaker 00:
The allegation, or at least it's not limited to that, the allegation and the complaint is that for this very, very persistent back pain that became symptomatic after this particular injury, that there was a different course of treatment that would have been called for, so that's going to require expert testimony.

[00:18:16] Speaker 00:
We don't have that yet, but that's why I'm seeing the trajectory of this case going.

[00:18:20] Speaker 00:
Do we have a difference of opinion on that?

[00:18:23] Speaker 02:
I agree with you that if at the end of the day we're only able to show that there's a reasonable difference of opinion, then that's not going to meet the standard.

[00:18:32] Speaker 02:
But what we're alleging here is that the failure to give the MRI was medically unacceptable under the circumstances.

[00:18:37] Speaker 00:
Because it became, as Judge Bress said, because this went on and on and on.

[00:18:41] Speaker 02:
That's one of the reasons, yes.

[00:18:42] Speaker 00:
Well, that's why I think he and I both are calling your attention to Dr. Sanchez, who from what we can tell only saw the

[00:18:51] Speaker 00:
plaintiff one time and within the first month after the injury.

[00:18:55] Speaker 00:
Maybe two months or six weeks or so after the injury.

[00:18:59] Speaker 00:
So that's really tough to show deliberate indifference.

[00:19:03] Speaker 02:
I would agree if we're ranking

[00:19:04] Speaker 02:
People, you know, as far as, say, you know, Dr. Augustine, who saw Mr. Leal numerous times over the course of the year before he finally referred him to the orthopedist, that there might be a difference there.

[00:19:16] Speaker 02:
But that doesn't mean that it couldn't meet, that it's not implausible that it could meet the deliberate indifference standards.

[00:19:22] Speaker 00:
I think it is implausible if he only saw him the one time.

[00:19:25] Speaker 00:
Hence my question.

[00:19:26] Speaker 00:
I think we both asked the question.

[00:19:27] Speaker 00:
Was he seen again?

[00:19:28] Speaker 01:
The same with Pena.

[00:19:29] Speaker 01:
I mean, we just wouldn't want to keep people in a case if there's not a fair allegation against them.

[00:19:34] Speaker 01:
And some of these doctors, there's very limited mention of them in the complaint.

[00:19:39] Speaker 02:
With Dr. Pena, again, he would have the benefit of Dr. Sanchez, who I believe was the first.

[00:19:45] Speaker 02:
Maybe I have the order mixed up.

[00:19:47] Speaker 00:
Dr. Pena saw him first.

[00:19:48] Speaker 00:
He saw him on September 4, so right after the

[00:19:52] Speaker 00:
He's the one who ordered an x-ray of the foot.

[00:19:56] Speaker 00:
Apparently there are other potential injuries there, but not an x-ray of the back.

[00:20:01] Speaker 00:
And then Dr. Sanchez saw him on October 10th.

[00:20:05] Speaker 02:
I understand what you're saying, and I understand the concern, but my respectful view is that they should stay in the case at this point under the 12b6 standard, and if we're ultimately unable to show after discovery is completed that there was deliberate indifference, that would be the proper time to remove them.

[00:20:23] Speaker 01:
Have those doctors been deposed?

[00:20:25] Speaker 01:
No, they haven't.

[00:20:26] Speaker 01:
Is it your intention to do that?

[00:20:28] Speaker 02:
I might do so, yes.

[00:20:32] Speaker 02:
Yes, I think if we would want to keep them in the case, it would be important to get more information.

[00:20:36] Speaker 01:
Can I ask you one last question?

[00:20:37] Speaker 01:
So how about the warden?

[00:20:38] Speaker 01:
I mean, the warden is not a doctor, so what is the basis for the warden being deliberately indifferent?

[00:20:46] Speaker 02:
There are some very specific allegations by Mr. Leal that he specifically notified the warden of the ongoing situation in person once.

[00:20:55] Speaker 02:
And in writing, on another time, there is case law holding that a warden can be responsible, under some circumstances, for knowledge, given the specific allegations that we have here.

[00:21:10] Speaker 04:
So, just personal curiosity, I guess.

[00:21:12] Speaker 04:
Why has the federal public defender

[00:21:15] Speaker 04:
doing doing a nineteen eighty three actions that normal or no it's not normal we we were we represented mister leo in another action the court ruled that this this proceeding was ancillary to it and pointed us it was a habeas action you guys are sort of another habeas action this is a in nineteen threes ancillary to that that was the district court appointed you for this yes how often do you do nineteen three actions not very often

[00:21:43] Speaker 04:
Okay.

[00:21:44] Speaker 04:
Interesting.

[00:21:44] Speaker 04:
All right.

[00:21:45] Speaker 00:
Thank you for your patience with our questions.

[00:21:46] Speaker 00:
We'll give opposing counsel two minutes.

[00:21:58] Speaker 03:
Thank you, Your Honors.

[00:22:00] Speaker 03:
There's been some discussion about the difference between summary judgment standard and the motion to dismiss standard.

[00:22:05] Speaker 03:
And I think that the court should remember

[00:22:08] Speaker 03:
The principal difference between summary judgment and a motion to dismiss is at summary judgment there has to be evidence.

[00:22:14] Speaker 03:
At the motion to dismiss stance is that there has to be, there only has to be allegations.

[00:22:17] Speaker 03:
There doesn't have to be evidence.

[00:22:18] Speaker 03:
But there still has to be allegations.

[00:22:21] Speaker 00:
But, counsel, this is an extraordinary record that we have here.

[00:22:24] Speaker 00:
In the district court there was a motion filed by the state.

[00:22:29] Speaker 00:
It is page 11 in particular where there was a citation in the state's brief to an online article.

[00:22:37] Speaker 00:
that from the Cleveland Health Clinic, and it was cited at page 11, the state argued congenital narrowing of the spinal column is genetic, meaning it is not part of the normal biological process and was not caused by the defendants.

[00:22:53] Speaker 00:
It's entirely extraordinary that the state would be making that argument in response to a 12b6 and then argue later that we should take judicial notice of the article, sir.

[00:23:05] Speaker 00:
I'm a little aghast that you're reminding us of the standard between 12b6 and summary judgment, which we're very mindful of.

[00:23:11] Speaker 03:
Well, Your Honor, I'm just trying to counter the argument because it's not alleged to complain either that they were trying to make the argument.

[00:23:17] Speaker 03:
They were trying to speculate what the congenital narrowing of the thing of the... But we don't know all... And we certainly don't.

[00:23:24] Speaker 00:
Right.

[00:23:24] Speaker 00:
And that's kind of the point I was making there.

[00:23:25] Speaker 00:
We just know that he's alleged.

[00:23:27] Speaker 00:
We just know that he's alleged that he had an injury.

[00:23:29] Speaker 00:
And then this became symptomatic.

[00:23:30] Speaker 00:
That's all we've got.

[00:23:31] Speaker 03:
And then the other thing I'd like to remind the court of is that

[00:23:35] Speaker 03:
misstatement that Estelle was not about extensive healthcare.

[00:23:41] Speaker 03:
The only thing they did at Estelle was they gave pain medication.

[00:23:45] Speaker 03:
They didn't order x-rays, they didn't do anything else.

[00:23:47] Speaker 03:
That's the only allegations in Estelle.

[00:23:49] Speaker 03:
So I think Estelle is full on court.

[00:23:51] Speaker 03:
And the other thing I'd like to remind the court is that these are individual defendants.

[00:23:55] Speaker 03:
You can't collectively sue them and say, hey, you know, this doctor, over the course of there, we're looking at this.

[00:24:00] Speaker 03:
And so if we look at all of the care he got, then we're going to say it's deliberate indifference.

[00:24:05] Speaker 03:
But what you have to do is what the individual doctors did.

[00:24:07] Speaker 03:
And you have people like a doctor who ordered the XRI and MRI, and they're suing him.

[00:24:13] Speaker 03:
I think the courts pointed out that Warden is not a doctor.

[00:24:18] Speaker 03:
The medical records, if he even could understand or review them, they would have come up and said, hey, the panel has already made a decision.

[00:24:26] Speaker 03:
I can't override the panel's decision.

[00:24:30] Speaker 03:
That's early doctors who couldn't possibly have anything.

[00:24:34] Speaker 03:
Finally, you have Dr. Augustine, who's orthopedic surgeon, who they admit.

[00:24:38] Speaker 00:
So you're well over time.

[00:24:39] Speaker 00:
I'm going to ask you to stop there.

[00:24:40] Speaker 00:
Thank you both for your arguments.

[00:24:42] Speaker 00:
We'll take that matter under advisement.