[00:00:00] Speaker 01:
The clerk are we ready to proceed with the next case on the calendar?

[00:00:07] Speaker 01:
All right, then we'll take we'll take up the next case Pookie versus count County of Okanagan

[00:01:03] Speaker 01:
So my understanding first is that counsel for the appellees are going to be splitting their arguments seven and a half minutes each.

[00:01:09] Speaker 01:
Is that right?

[00:01:11] Speaker 01:
All right.

[00:01:11] Speaker 01:
And so when you're up there, the clock will show for each of you seven and a half minutes, not the entire 15.

[00:01:16] Speaker 01:
All right.

[00:01:18] Speaker 01:
When you're ready, counsel.

[00:01:32] Speaker 04:
Good morning and may it please the court.

[00:01:34] Speaker 04:
My name is Alex Dietz and I am here on behalf of Michelle Pookey as personal representative of the estate of Lori Langton.

[00:01:41] Speaker 04:
I would like to reserve five minutes for rebuttal.

[00:01:45] Speaker 04:
We're here today to ask that the court reverse the district court's order dismissing our federal civil rights claims brought by my client and in so doing also reinstate the state law claims that were dismissed when the court declined to exercise supplemental jurisdiction.

[00:02:01] Speaker 01:
So, counsel, I apologize for interrupting you so early, but just in terms of what you just said, could you tell us, is anything happening with the dependent, the supplemental claims right now?

[00:02:15] Speaker 04:
I assume by anything happening, you mean if there's been a separate filing or anything like that?

[00:02:18] Speaker 01:
Yes.

[00:02:19] Speaker 01:
Is anything going on?

[00:02:20] Speaker 01:
Okay.

[00:02:21] Speaker 01:
So that's just waiting for the disposition of this appeal.

[00:02:25] Speaker 01:
That's correct.

[00:02:25] Speaker 01:
All right.

[00:02:25] Speaker 01:
Thank you, counsel.

[00:02:26] Speaker 01:
Sorry to interrupt.

[00:02:27] Speaker 04:
No problem.

[00:02:28] Speaker 04:
So this case, as the panel knows, arises from the death of Lori Langton following her 21-hour incarceration at the Okanogan County Jail, during which time she was experiencing an episode of her diagnosed conversion disorder, which she herself has described as a pseudo-seizure, essentially, that resulted in her immobility, inability to speak, and incontinence.

[00:02:54] Speaker 04:
Instead of arranging for medical attention during this 21-hour incarceration, her jailers left her in a supine position on her back on the floor, on a mat on the floor, for nearly a full day.

[00:03:08] Speaker 04:
As a result, she developed pneumonia and a large blood clot which ultimately killed her.

[00:03:15] Speaker 04:
As part of her

[00:03:17] Speaker 04:
Experience at this jail it's important to remember that she was in the throes of this pseudo seizure conversion disorder The entire time and she herself has described what that feels like as essentially like I was dying That that's the position that she's in while she's in this jail

[00:03:35] Speaker 01:
And as I understand your expert reports, they indicate that lying in this type of position, unmoving for someone in the decedent's position, increases a known risk of both pneumonia and PE.

[00:03:54] Speaker 04:
That is correct, Your Honor.

[00:03:55] Speaker 04:
And not just our expert, but also the expert pulmonologist retained by the county.

[00:04:01] Speaker 04:
agreed that blood clots grow while there's a prolonged period of immobility and that the blood clots that resulted in the pulmonary embolism in this case did in fact grow while she was laying in the jail.

[00:04:17] Speaker 04:
The district court here determined that the defendants were all entitled to dismissal under qualified immunity for the 14th Amendment claims and this required the court to determine

[00:04:30] Speaker 04:
one of two things, either that her rights had not been violated, or that if they had, the rights were not clearly established in law.

[00:04:39] Speaker 04:
There wasn't really any dispute at the trial court level about whether or not the right was clearly established.

[00:04:46] Speaker 04:
The right to adequate medical care.

[00:04:49] Speaker 01:
So let me concentrate my question on one of the defendants, Mr. Kopp.

[00:04:57] Speaker 01:
So, what case clearly established that a person in Mr. Cop's position would be violating the constitutional rights of the decedent by his actions?

[00:05:16] Speaker 01:
And again, I'm not asking about any of the jail people, I'm asking about Mr. Cop.

[00:05:22] Speaker 04:
Yes, and Your Honor, I think part of the focus of the analysis for Mr. Kopp is understanding the factual disputes between the parties about what his role was and what he was capable of doing.

[00:05:33] Speaker 01:
But again, he was not on the jail staff.

[00:05:38] Speaker 01:
He had no ability to exercise the type of control in custody of a quote unquote jailer.

[00:05:50] Speaker 01:
Isn't that right?

[00:05:51] Speaker 04:
That's we think a disputed issue of fact in this case your honor explain to me how that can be an issue of fact and so based on the contract between the county and obhc Cop was essentially serving as for lack of a jail having its own in-house mental health services System they contracted with obhc to serve as that role within the jail so they're they're acting as

[00:06:19] Speaker 04:
under contract with a state actor, and I'm trying to find the exact case that says that that is exactly how that relationship is considered.

[00:06:28] Speaker 04:
We did cite them in our briefing.

[00:06:31] Speaker 04:
The cases that I'm looking at here include Collins versus Woman Care, 878 Federal Second, 1145, and then Lopez versus Department of Health Services, 939 Federal Second, 881, which

[00:06:47] Speaker 04:
explain that when a private actor is, you know, engaging in acts that are fairly attributable to the county or to the governmental entity, then those acts can be considered to have been under the color of state law.

[00:07:03] Speaker 03:
I guess I have the same question as my colleague.

[00:07:06] Speaker 03:
Let's tie Mr. Copp to that.

[00:07:09] Speaker 03:
Did he even know that this individual was in custody in the county jail?

[00:07:16] Speaker 04:
uh... yes your honor when and and

[00:07:18] Speaker 04:
Part of the distinction for these claims too is that while our briefing outlined the facts about his interactions with Lori Langton before she went to jail, the focus of the federal claims is on his interactions with her at the jail and in that time period where he's learning about her being at the jail, going to the jail, and what he's doing there.

[00:07:38] Speaker 04:
That's where the focus of the federal claims is.

[00:07:42] Speaker 04:
The stuff about what he did before is important context because it provides the background information of what he knew.

[00:07:48] Speaker 01:
But on the, I'm sorry, did I interrupt?

[00:07:52] Speaker 01:
No, you're fine.

[00:07:53] Speaker 01:
The Supreme Court on occasion has instructed our court when dealing with qualified immunity to look at cases and notice at other than a high level of generality and has on occasion criticized our court for not doing so.

[00:08:13] Speaker 01:
With regard to Mr. Kopp,

[00:08:16] Speaker 01:
How do the cases you cite do anything other than state a general principle at a high level of generality, which strikes me as insufficient to meet the Supreme Court's standard with regard to qualified immunity?

[00:08:33] Speaker 04:
Well, Your Honor, I appreciate this question because I had the same one when I was looking through the Ninth Circuit's case law, and my understanding of that case law body for

[00:08:44] Speaker 04:
this specific issue of narrowing to a more concrete example is that I was unable to find a specific ninth circuit case that said, yes, there is a DMHP who has this responsibility.

[00:08:58] Speaker 04:
What I was able to find is a series of cases in other circuits that address the issue of whether or not a mental health practitioner can be

[00:09:07] Speaker 04:
I think there's a couple of other cases we cited in the briefing from I think the 10th and 11th circuits that talk about

[00:09:25] Speaker 04:
how a mental health practitioner can be held responsible.

[00:09:29] Speaker 01:
I understand there is case law from other circuits.

[00:09:31] Speaker 01:
If I could, before you go into your rebuttal time, just ask you about another defendant.

[00:09:39] Speaker 01:
From your perspective, why don't you give me the best facts in the light most favorable to you to hold supervisor Stewart accountable under 1983?

[00:09:54] Speaker 04:
Yes, Your Honor, and there are two components to holding Chief Stewart accountable.

[00:09:59] Speaker 04:
One is his direct involvement, which is fairly minimal.

[00:10:02] Speaker 04:
It's at most half an hour additional delay in treatment, which

[00:10:09] Speaker 04:
You know in distinguishing between our different types of damages claims here There's the damage from the death and then the damage from the pain and suffering from the ongoing experience of the conversion disorder and He had an impact on the ongoing Experience of pain and suffering from the conversion disorder, but obviously by the time he's called.

[00:10:29] Speaker 04:
It's it's too late She's she's got the blood clot, so he's not going to be

[00:10:33] Speaker 04:
held liable under for the death for that but he can still be held liable for the pain and suffering extended.

[00:10:40] Speaker 04:
The more I think impactful responsibility for him is in his supervisory capacity as the person responsible for training and ensuring that qualified and competent medical providers and mental health practitioners are available to essentially screen pre-trial detainees.

[00:11:00] Speaker 01:
If as a theoretical or a hypothetical matter

[00:11:03] Speaker 01:
We were to disagree with you as to Supervisor Stewart, but again, hypothetically, we were to agree with you vis-a-vis Menell as to the jail.

[00:11:16] Speaker 01:
Is there anything you actually lose?

[00:11:20] Speaker 04:
Well, I think in terms of an ability to pursue damages, the only thing we would lose is the ability to seek punitive damages against Chief Stewart directly, because under the court's existing precedent, we cannot seek the punitive damages directly against the county that we could seek against Chief Stewart for his personal involvement in failing to train.

[00:11:41] Speaker 04:
And when I look at his personal involvement here, and I'll tap into my rebuttal time a little bit, I think it's important to reflect on the fact that this wasn't the first death at the jail.

[00:11:52] Speaker 04:
Well, this death took place after she left the jail, but related.

[00:11:55] Speaker 04:
There were several prior deaths, and after those, Chief Stewart testified and the county's 30B6 rep testified.

[00:12:02] Speaker 04:
We never did an investigation.

[00:12:04] Speaker 04:
We never disciplined anyone.

[00:12:05] Speaker 04:
We never did any retraining.

[00:12:07] Speaker 04:
We didn't improve our medical training for any of our

[00:12:10] Speaker 04:
people screening folks going into the jail after those deaths, and they didn't do it here either.

[00:12:17] Speaker 04:
And I think that supports both the Menell claim and also a claim directly against Chief Stewart, who was personally responsible for this.

[00:12:25] Speaker 04:
With that, Your Honor, I'll reserve my remaining time.

[00:12:27] Speaker 01:
Just one more question.

[00:12:28] Speaker 01:
You obviously concede we have no authority to overrule the Supreme Court on qualified immunity.

[00:12:34] Speaker 04:
I agree that you cannot overrule Supreme Court precedents, Your Honor.

[00:12:38] Speaker 04:
You're the Ninth Circuit.

[00:12:39] Speaker 04:
But I think there's a distinction to be drawn between overruling and basing a holding in this case on disagreeing with qualified immunity and recognizing, as the Fifth Circuit did, that there are serious problems with the foundation of qualified immunity jurisprudence.

[00:12:56] Speaker 04:
And essentially, the reason we included this in the brief is we think

[00:13:00] Speaker 04:
One, we think the argument is correct, that it's a Scrivener's error and there's a host of reasons to reject qualified immunity.

[00:13:07] Speaker 04:
But what I think about it doesn't matter.

[00:13:09] Speaker 04:
What the Fifth Circuit and what the Ninth Circuit and what the other circuit courts might say about it is more impactful.

[00:13:15] Speaker 04:
And if we're gonna bring this matter to the attention of the Supreme Court eventually, it's important to have courts such as yourselves consider this issue.

[00:13:23] Speaker 01:
All right, thank you, counsel.

[00:13:24] Speaker 01:
I've asked you a lot of questions, taken a lot of your time.

[00:13:26] Speaker 01:
We'll give you your full five minutes for rebuttal.

[00:13:28] Speaker 01:
Thank you, your honor.

[00:13:48] Speaker 05:
May it please the court?

[00:13:49] Speaker 05:
Nick Carlson for Appalee's David Copp in Okanagan Behavioral Healthcare.

[00:13:53] Speaker 05:
We ask this court to affirm the summary judgment dismissal of the Section 1983 claims.

[00:13:58] Speaker 05:
The district court got it right.

[00:14:00] Speaker 05:
No constitutional violation occurred.

[00:14:03] Speaker 05:
Plaintiff brought a claim for violation of Langton's constitutional right to adequate medical care as a pretrial detainee.

[00:14:12] Speaker 05:
against COP and OBHC, that claim boils down to this.

[00:14:15] Speaker 05:
Designated crisis responders must obtain medical clearance any time they conduct an investigation under the ITA.

[00:14:24] Speaker 05:
And because COP did not do so, he violated Langton's right to adequate medical care.

[00:14:29] Speaker 05:
That's wrong.

[00:14:31] Speaker 05:
As Your Honor was addressing, there appears to be no duty here for COP to have provided for Langton's medical needs as a pretrial detainee.

[00:14:41] Speaker 05:
that duty.

[00:14:43] Speaker 01:
Is it correct that your client, while he was at his facility, did not consult the records to see that the decedent had been involuntarily committed several times or had been committed several times?

[00:15:03] Speaker 01:
Is that correct?

[00:15:04] Speaker 05:
I don't believe that's correct.

[00:15:06] Speaker 05:
If we look at his note from 3-24-18, so that's when he went to the jail, there's I believe a note that he discussed with Gary Lewis and he knew about her prior conversion disorder diagnosis.

[00:15:19] Speaker 01:
At that point?

[00:15:21] Speaker 05:
Correct.

[00:15:22] Speaker 05:
I also believe that's correct too on the day before when he was at the hospital that he

[00:15:27] Speaker 05:
Consulted with Gary Lewis who was the one who did the evaluation that resulted in But he indicated to a variety of people that he thought the decedent was malingering I Think that was the inference drawn.

[00:15:42] Speaker 05:
I'm not sure that he used that particular word, but he he had evidence that indicated volitional behavior which could support malingering, but not necessarily so it's

[00:15:56] Speaker 05:
It's unclear, but certainly it supported his evaluation under the IHTA that the statutory criteria was not met.

[00:16:06] Speaker 02:
Would it have supported his determination on his visit at the jail?

[00:16:14] Speaker 05:
that he saw volitional behavior.

[00:16:17] Speaker 05:
He was also told that by the jail staff of what they were observing.

[00:16:22] Speaker 05:
He saw they performed a drop test, lifted her arm above her head and presumably if she had no volitional control that would have, when you let go of her arm, it should have

[00:16:33] Speaker 05:
bonked her on the head, but it didn't.

[00:16:35] Speaker 05:
She stopped it from hitting her head.

[00:16:36] Speaker 05:
So he was seeing behavior that did support volitional control, which is part of the analysis under the ITA to determine, for example, if somebody is gravely disabled.

[00:16:48] Speaker 02:
So seeing all that and even if it was volitional, she was in a condition that at least some people inferred presented serious risks.

[00:17:03] Speaker 02:
I mean, even if she decided volitionally to stay in that position, that was not a safe position to remain in hour after hour, and later there were consequences.

[00:17:16] Speaker 02:
So my question is really aimed at is the universe of knowledge the first time is not necessarily the same as the universe of knowledge the second time, and why is it that

[00:17:32] Speaker 02:
He had a basis to conclude that she was not at risk and did not qualify for involuntary treatment the second time.

[00:17:43] Speaker 05:
Well, two things.

[00:17:44] Speaker 02:
Why isn't that a factual issue?

[00:17:46] Speaker 05:
Well, two things.

[00:17:47] Speaker 05:
First, that isn't the nature of their claimed constitutional violation here.

[00:17:51] Speaker 05:
It's the fact that he did not order a medical clearance.

[00:17:55] Speaker 05:
It's less about whether he should have found the statutory criteria met, and then we proceed with involuntary commitment.

[00:18:02] Speaker 05:
Regardless of that analysis, according to plaintiff, he had a duty to get a medical clearance here, and that's just not correct.

[00:18:10] Speaker 02:
That's really what I'm trying to reach to, because if he's in a position to observe

[00:18:16] Speaker 02:
a condition that could be inferred to be unsafe, wouldn't that heighten the obligation?

[00:18:25] Speaker 02:
He's not a doctor.

[00:18:27] Speaker 02:
I accept that he's observing the limited scope of his responsibility.

[00:18:33] Speaker 02:
Is there a point at which it crosses over where his universe of knowledge is such that

[00:18:41] Speaker 02:
heightens the need for medical clearance or examination or something because it's not safe to remain in the position that she was in even if she was doing it voluntarily.

[00:18:54] Speaker 05:
That is not part of the analysis under the ITA.

[00:18:58] Speaker 05:
And we're also, while she's in the jail, so she's already had her liberty interests curtailed, if we're talking about just generally the responsibility here under what he's supposed to be assessing,

[00:19:11] Speaker 05:
I think that's a good point.

[00:19:13] Speaker 05:
I think that's a good point.

[00:19:13] Speaker 05:
We if we're going to have a medical clearance every time somebody calls for an I T investigation.

[00:19:17] Speaker 05:
We're going to what have people taking in custody every time to the ER for medical clearances because a phone call was made.

[00:19:23] Speaker 05:
Now in this particular instance that that seems.

[00:19:33] Speaker 05:
The analysis that is being performed here is whether the condition that we're seeing this person in, is that being caused by mental health or not?

[00:19:42] Speaker 05:
And does it rise to the level of proceeding with involuntary commitment?

[00:19:47] Speaker 05:
Plaintiff cites no authority that a designated crisis responder may order a mental health evaluation, or not a mental health, a medical clearance strictly to address medical needs.

[00:20:03] Speaker 05:
separate and apart from a mental health evaluation for the statutory criteria.

[00:20:07] Speaker 05:
There's just, there's no basis to do that.

[00:20:09] Speaker 05:
And in this instance, it's also a little troubling because then we start to get into, well, if he's supposed to be looking for medical issues, now that's going against what he's actually supposed to be assessing, which is mental health.

[00:20:24] Speaker 05:
And is this a mental health situation?

[00:20:26] Speaker 02:
Completely opposed.

[00:20:28] Speaker 02:
If she has put herself in a position, especially if she has done so

[00:20:33] Speaker 02:
Volitionally, doesn't that raise some serious concern about her mental wellness?

[00:20:40] Speaker 05:
Perhaps, but again, it's not just that somebody has a mental health issue.

[00:20:44] Speaker 05:
It still has to, again, rise to the level of the statutory criteria.

[00:20:49] Speaker 05:
And there has to be, if we're talking about a incorrect diagnosis or evaluation that goes to negligence, does it not deliver indifference?

[00:20:59] Speaker 01:
So on that, if I may step with you.

[00:21:03] Speaker 01:
It's neither here nor there at this stage of the proceedings.

[00:21:07] Speaker 01:
But under Washington law, did Mr. Kopp owe a duty of due care to the decedent either through the interactions at the first facility or the interactions at the jail?

[00:21:22] Speaker 05:
Under the ITA?

[00:21:24] Speaker 01:
No, under Washington state law, did he owe a professional duty of due care?

[00:21:32] Speaker 05:
I believe the answer is no.

[00:21:38] Speaker 05:
I guess it's hard to address it outside of the ITA when the ITA itself includes a limitation on liability if somebody is acting in good faith.

[00:21:46] Speaker 05:
But I believe courts have viewed this not as almost a doctor-patient situation.

[00:21:54] Speaker 05:
We're talking about essentially an initial assessment where we're even deciding whether we're going to move forward into the ITA process.

[00:22:03] Speaker 05:
I would just like to flip back to if we're going to force a designated crisis responder at the jail to have to move forward with medical clearance strictly because perhaps there is a situation here that might present for medical needs.

[00:22:22] Speaker 05:
or is he in the position of needing to step on the toes then of the jail and be in the position of saying well you guys are doing a bad job providing for a medical need.

[00:22:31] Speaker 01:
From a policy sense counsel I suppose it would depend on how exigent the circumstances are and how much for example in this case it was generally known that lying supine in your own urine for 21 years or 21

[00:22:47] Speaker 01:
Hours significantly increases the risk that you're going to be seriously ill or die from pneumonia or pulmonary embolism.

[00:22:58] Speaker 05:
Correct, and just to sum up, we've got the jail staff telling him about this concern, so they're expressing their concerns from a medical perspective, and we're under the delivered and different standard, and he did tell them, well, follow your medical protocols, because addressing medical issues is outside the scope of my practice, and certainly that's not deliberately indifferent to trust that they're going to follow their protocols, which they did.

[00:23:26] Speaker 01:
All right, thank you, counsel.

[00:23:50] Speaker 00:
Good morning, your honors.

[00:23:50] Speaker 00:
My name is Mike Kylo, and I represent the county defendants here.

[00:23:54] Speaker 00:
May it please the court, I'll start out by stating that, most importantly here, the plaintiff, if this decision is upheld, is not left without a remedy.

[00:24:02] Speaker 00:
They still have very viable state law claims.

[00:24:05] Speaker 00:
I'm not going to address the veracity of those claims or admit them at this point, but they certainly have a negligence claim and a wrongful death claim under Washington state law.

[00:24:16] Speaker 00:
The narrow issue that you are being asked to determine here

[00:24:18] Speaker 00:
is not whether there was negligence.

[00:24:21] Speaker 00:
The majority of plaintiffs' arguments are addressed directly at foreseeability, which is obviously an element of a negligence claim.

[00:24:29] Speaker 00:
It is not an element of the deliberate indifference standard, which is an extremely high standard to meet.

[00:24:38] Speaker 00:
What we're asking the jailers here to do is to be able to look at Ms.

[00:24:43] Speaker 00:
Langdon as she lays on the floor of the jail and determine that she's going to suffer a pulmonary embolism.

[00:24:49] Speaker 01:
I respectfully counsel, I have to push back on that.

[00:24:52] Speaker 01:
I think what we would be asking the jailers to do

[00:24:57] Speaker 01:
at some point, given the facts and the light most favorable to plaintiff of what they were aware, and see someone in the state that the decedent was in lying supine, whether or not there was some voluntary component in her own urine on a mattress for 21 hours, knowing that that increases the risk of pneumonia and a pulmonary embolism.

[00:25:23] Speaker 01:
whether in the light most favorable to plaintiff that rises to the level of deliberate indifference.

[00:25:28] Speaker 01:
And again, putting the supervisor aside, why doesn't it?

[00:25:34] Speaker 01:
I'm having a lot of trouble seeing why the facts in the light most favorable to plaintiff don't rise to the level of deliberate indifference given the undisputed facts here.

[00:25:47] Speaker 00:
Understood, your honor.

[00:25:48] Speaker 00:
And there is testimony in the record from the jailers that, yes, they did understand that lying in the supine position, not moving for a period of whether it's 18 to 21 hours in the light most favorable to the plaintiff will go with 21, even though that's disputed.

[00:26:03] Speaker 00:
That's not that much different than many other people who come in, people on drugs, people under the influence of alcohol, people sleep for hours and hours and hours.

[00:26:12] Speaker 00:
And these jailers didn't specifically think it was odd at that point.

[00:26:16] Speaker 00:
up until they finally had cop come back in, and then they decided, well, let's send her back to the hospital, because something's clearly not right here.

[00:26:24] Speaker 00:
And again, I think the argument that they knew that blood clots could form while lying supine in the urine, well,

[00:26:33] Speaker 00:
I must digress quickly, and that's that I don't think the urine is particularly apropos here.

[00:26:39] Speaker 00:
I think it's kind of a red herring, because urinating yourself is simply not a sign of a pending pulmonary embolism.

[00:26:48] Speaker 00:
People come into the jail incontinent all the time.

[00:26:51] Speaker 00:
So there's drunk people that sleep for 15, 20 hours or lay in their cell and don't move much.

[00:26:59] Speaker 00:
And honestly, the jailers here

[00:27:02] Speaker 00:
twice were entitled to rely upon David Copp's evaluation, which was that she was malingering.

[00:27:11] Speaker 00:
We heard about the arm drop test.

[00:27:13] Speaker 00:
There was other instances where the physicians at the hospital stated that she was moving her eyes.

[00:27:19] Speaker 00:
She was tracking them.

[00:27:21] Speaker 01:
Counsel, is it correct?

[00:27:22] Speaker 01:
that no entries were made in the jail record until after it was known that the decedent was likely to die.

[00:27:35] Speaker 00:
They did not do the initial fit for jail assessment, if that's what you're referring to.

[00:27:39] Speaker 01:
Or anything else, right?

[00:27:40] Speaker 01:
Any notes until after?

[00:27:43] Speaker 00:
That's correct, Your Honor, but again, I don't think

[00:27:46] Speaker 00:
Paperwork essentially is has any causation towards the miss Langton's death here nobody that she was left unobserved for 1821 hours She was in the one cell the one holding cell.

[00:28:00] Speaker 00:
It's a you know a tank where you put people who are unable to who will not you know participate in the in booking process, and it's the one cell that actually had a video camera So she was observed the entire time

[00:28:14] Speaker 00:
And there were multiple officers that went in the cell and saw her moving her eyes, tracking them to check if she was more or less deciding, in their mind, deciding whether this was volitional or not, and more or less deciding whether or not she was fit for jail at that point, or whether she needed to go back to the hospital.

[00:28:38] Speaker 00:
I think as far as the Monell claims against the county goes,

[00:28:44] Speaker 00:
The plaintiff's theory here is more or less vicarious liability with regard to the county's responsible because an employee to tort fees are more or less and it is possible that a jury could determine on

[00:28:57] Speaker 00:
the state law claims that the county employees were negligent.

[00:29:00] Speaker 00:
That is very possible.

[00:29:02] Speaker 00:
But under, let's see, it's under Monell itself, a municipality can't be held liable solely because it employs a tortfeasor, or in other words, a municipality cannot be held liable under section 1983 on a respondeat superior theory.

[00:29:18] Speaker 00:
And that's Monell at 691.

[00:29:21] Speaker 01:
Instead in order to establish municipal or county So council I'm looking for example Expert Stewart's report And I think it's at 341 of the ER and he said he talks about that after cop arrived OJ OCJ staff informed cops

[00:29:45] Speaker 01:
that if Ms.

[00:29:46] Speaker 01:
Langton remained in the prone position for an extended period of time that she might develop blood clots or pneumonia, what policies or training did the jail have with regard to implementing due care requirements when somebody was lying supine for a very extended period of time?

[00:30:13] Speaker 00:
It's an understandable question, and we have to put this into context somewhat that we're dealing with a very rural county here.

[00:30:18] Speaker 00:
It's a very small jail.

[00:30:19] Speaker 00:
This is out in OMAC.

[00:30:21] Speaker 00:
I'm not sure if you've been to OMAC, but it's very small.

[00:30:25] Speaker 00:
They had drafted policies, but none of those policies had actually formally been adopted when this occurred.

[00:30:31] Speaker 00:
It's my understanding that they now have different policies, but that's not before you, and that's not the issue we're here to decide today.

[00:30:38] Speaker 00:
Regarding the manel claim they have to the plaintiff here has to actually or the appellant has to actually point to a Policy that was in place that was violated at the time and here.

[00:30:50] Speaker 02:
There's no policy that was in place whatsoever so the manel claims argued that The county did not provide health training or provide guidelines and sites who they describe a dr. Ray who they describe as a

[00:31:06] Speaker 02:
As the county's own expert is acknowledging that fell below the standard of care, is the lack of a policy something that the county could be held responsible for?

[00:31:17] Speaker 00:
I don't believe so under Manel, but maybe under a negligence theory or a wrongful death theory, your honor.

[00:31:25] Speaker 00:
It looks like I'm just about out of time.

[00:31:27] Speaker 00:
But the last point I want to make here is that you have to be aware that the

[00:31:34] Speaker 00:
Jailers themselves have to be aware of the particular harm that they disregard wantonly.

[00:31:40] Speaker 00:
And that's not negligently, that is wantonly.

[00:31:43] Speaker 00:
It's above reckless.

[00:31:44] Speaker 00:
It's deliberate indifference, which is an extremely high standard.

[00:31:49] Speaker 00:
And there is no sign, even from the ambulance medic on the way back to the hospital after she left the jail, there were no signs that a pending pulmonary embolism was about to occur.

[00:32:02] Speaker 00:
Thank you.

[00:32:03] Speaker 01:
All right, thank you.

[00:32:12] Speaker 04:
Appreciate your honors indulgence with the extra couple minutes to get my five here I want to start by I'll go in reverse order of what you just heard here I have to address a couple things The first is is kind of this explanation of what the jailers thought about what was going on and and as clear evidence as you could get that they knew there was a problem from the moment she arrived and

[00:32:39] Speaker 04:
is that they put her in the crisis holding cell.

[00:32:42] Speaker 04:
Has that written on the door?

[00:32:44] Speaker 04:
And they did that because obviously something was wrong with her.

[00:32:50] Speaker 04:
Whether it was volitional or not, something was clearly wrong and they thought we need to monitor this.

[00:32:55] Speaker 04:
However, as we've identified in some of the cases, monitoring is a start, but it is not sufficient after a certain point, and when that point is reached is usually an issue of fact for the jury to consider, and we've submitted, I think, significant evidence that would support a jury concluding that it was not reasonable to do that at any point, and definitely not reasonable to do it after hours of time passed.

[00:33:24] Speaker 04:
I also just want to note that when we're talking about what she was doing, she was being watched by these jail officers the whole time, and she was not asleep.

[00:33:33] Speaker 04:
She went through the night, but she did not go to sleep.

[00:33:35] Speaker 04:
She was awake with her eyes open the whole time, at least according to the testimony of the officers.

[00:33:41] Speaker 04:
I also want to address briefly the point that we still have a remedy under state law if this court affirms the district court's ruling.

[00:33:51] Speaker 04:
I take some umbrage with that because of the nature of the district court's ruling, which was very absolutist.

[00:33:57] Speaker 04:
If you read the order, it says things like, she did not display any signs of medical distress at any point, which, given this record, I don't understand, frankly, how that was a conclusion that the court could reach.

[00:34:10] Speaker 04:
But I imagine the county would assert that that conclusion was binding on us in any subsequent state case if this court were to affirm.

[00:34:20] Speaker 04:
I want to now turn to the issues addressed by Council for OBHC and David Kopp, and I want to start by correcting some of the record.

[00:34:31] Speaker 04:
There isn't any evidence that David Kopp looked at records about her prior commitments before either of his times seeing her.

[00:34:40] Speaker 04:
David Kopp himself testified he didn't know whether or not he'd done that.

[00:34:44] Speaker 01:
That was my recollection, counsel.

[00:34:46] Speaker 04:
Yes.

[00:34:46] Speaker 04:
He did not know whether he had done that.

[00:34:48] Speaker 04:
And his records, which he was required to note in them if he had done that, do not say that he did it.

[00:34:54] Speaker 04:
So from our perspective, there's at the very least a dispute of fact about that issue.

[00:35:00] Speaker 04:
The next issue I want to address is this idea that there's some parade of horribles that will happen if jails are required to have medical clearances of detainees prior to having a mental health evaluation done and frankly that should be happening in every jail already because there should be a screening process happening at every jail when someone arrives and

[00:35:22] Speaker 04:
The parade of horribles council alleged isn't even going to happen because the legislature amended the statute after this incident took place and reduced the requirement for medical clearance.

[00:35:33] Speaker 04:
They didn't do it in a jail.

[00:35:36] Speaker 04:
That requirement they did not touch.

[00:35:37] Speaker 04:
But in the community setting, there's now a specific provision in the statute saying you don't have to get medical clearance first.

[00:35:45] Speaker 04:
And to briefly draw your honor's attention to the actual statute,

[00:35:49] Speaker 04:
on the point that there is no obligation to get a medical clearance first.

[00:35:55] Speaker 04:
One, we think that's contrary to their own policies.

[00:35:58] Speaker 04:
But two, in the statute itself, when it defines a medical clearance, that definition states as follows.

[00:36:05] Speaker 04:
A physician or other health care provider has determined that a person is medically stable and ready for referral to the designated crisis responder.

[00:36:15] Speaker 04:
That means that's happening first before they are referred to the crisis responder.

[00:36:21] Speaker 04:
And finally, I want to note that the idea that there is no duty under state law, that's just incorrect.

[00:36:34] Speaker 04:
There is a duty.

[00:36:34] Speaker 04:
Whether or not that duty is one of avoiding simple negligence or an elevated standard, there is an elevated standard under state law for

[00:36:45] Speaker 04:
DMHPs, but there is a duty.

[00:36:48] Speaker 04:
That is absolutely part of this.

[00:36:50] Speaker 04:
And to the extent the court ultimately decides to reverse in part or doesn't grant total relief that we're requesting here, the state law claims that the court declined to consider through supplemental jurisdiction

[00:37:06] Speaker 04:
If any of the federal claims come back, those should all come back as well.

[00:37:10] Speaker 04:
Otherwise, we're going to be in this awkward claim splitting position of filing in two courts, and that's just not appropriate here, we think.

[00:37:17] Speaker 04:
So with that, Your Honors, I thank you for your time and ask that you reverse.

[00:37:21] Speaker 01:
All right.

[00:37:21] Speaker 01:
We thank counsel for their arguments, and the case just argued is submitted.