[00:00:01] Speaker 00: Case number 13-7082 at L, David Harvey individually and as personal representative of the estate of Curtis Suggs versus District of Columbia appellate. [00:00:11] Speaker 00: Mr. Schieffeli for the appellate cross appellate DC. [00:00:14] Speaker 00: Mr. Fiedler for appellate cross appellate, David Harvey. [00:01:00] Speaker 06: Good morning. [00:01:01] Speaker 06: Good morning. [00:01:02] Speaker 06: May it please the Court, Carl Schifferle, the District of Columbia. [00:01:06] Speaker 06: I would like to say three minutes for rebuttal. [00:01:09] Speaker 06: The district not the plaintiff was entitled to summary judgment on the plaintiff's substantive due process claims, which lacked three necessary elements, a special relationship, subject of deliberate indifference, and a municipal policy. [00:01:27] Speaker 06: Meanwhile, DC Code 12309 barred the statutory and negligence claims, and also the evidence was insufficient as to the statutory claim. [00:01:36] Speaker 06: And even assuming the plaintiff had somehow established liability as a matter of law, the district would still be entitled to a new trial on damages and to equal contribution against the settling co-defendants. [00:01:49] Speaker 06: On the Fifth Amendment claim, there was no special relationship, we submit, because there was not institutionalization or the equivalent of institutionalization, which is the type of restraint that would be required for the existence of a special relationship. [00:02:02] Speaker 06: Mr. Suggs lived in a private home in the community at all times. [00:02:06] Speaker 04: How is this different than Youngberg? [00:02:08] Speaker 04: How is this different than Young Bird? [00:02:10] Speaker 06: Well, institutionalization would be one essential difference, Your Honor, that in Young Bird, the individual resided at an institution as Mr. Suggs had at Forest Haven, an institution that's separate and isolated from the community. [00:02:26] Speaker 06: In this case, Mr. Suggs was in a private home living in the community in the least restrictive environment that was possible to provide him the services. [00:02:35] Speaker 06: The district did not limit. [00:02:36] Speaker 04: So is it your argument that once [00:02:38] Speaker 04: Once Forest Haven was done, the district doesn't have a special relationship with any of the folks that it previously had a special relationship with. [00:02:47] Speaker 04: Is that one of the consequences of the Forest Haven litigation? [00:02:52] Speaker 06: Yes, Your Honor. [00:02:52] Speaker 06: I mean, institutionalization is one key factor, and so we would agree with that. [00:02:58] Speaker 06: But also look at the facts of the situation that you moved to. [00:03:00] Speaker 04: That seems a little odd to me, doesn't it? [00:03:02] Speaker 04: I mean, I'm not certain that the courts that were involved in that had that in mind, right? [00:03:07] Speaker 04: I mean, going from a situation where there was a special relationship trying to address horrendous problems [00:03:14] Speaker 04: One of the results of that was to say that that special relationship between the district and the patients no longer exists. [00:03:20] Speaker 04: That's a way to address this special problem. [00:03:23] Speaker 06: Well, respectfully, yes, Your Honor. [00:03:24] Speaker 06: That's because the goal here was a major transformation of the system. [00:03:28] Speaker 06: It was from institutionalization to... Was it to get the district off the hook? [00:03:32] Speaker 06: I didn't think so. [00:03:33] Speaker 06: Well, it's not to say that the district doesn't have a duty under district law, for example, to provide services, but it goes to the question of whether there is a special relationship. [00:03:45] Speaker 06: DeShaney says it's incarceration, institutionalization, or similar type of strain. [00:03:51] Speaker 06: which is simply not present in this case. [00:03:53] Speaker 06: In an institution, for example, the individual is isolated from the community and is dependent on services directly from those in the institution. [00:04:02] Speaker 05: But in this case... Well, isn't the decision here dependent upon the, you don't want to use the word institution, but on the provider? [00:04:15] Speaker 06: Well, there was the group home provider, which was not a state actor. [00:04:20] Speaker 06: It was a private entity. [00:04:21] Speaker 06: He had his own private doctor, his own professionals that were contracted for him by the private group home operator. [00:04:31] Speaker 06: The district did not limit his care or assistance from any source. [00:04:35] Speaker 06: Because he was in a private home in a community, he could have his own visitors, his own family come at any time, his own doctors come at any time. [00:04:47] Speaker 05: Did the district contract with the private homeowner? [00:04:50] Speaker 06: The district certainly did. [00:04:52] Speaker 06: Yes, Your Honor. [00:04:52] Speaker 05: That doesn't take us back to where we were in the last case, if you were around then. [00:04:56] Speaker 05: Can a state get out of being a state actor by contracting somebody else to do it for them? [00:05:02] Speaker 06: Well, not necessarily, but in this case, yes. [00:05:06] Speaker 06: There's no dispute here that Simral, the group home operator, was not a state actor. [00:05:12] Speaker 06: The district court specifically found the plaintiff accepts and actually relies upon that finding. [00:05:17] Speaker 03: Did anything in the DC code governing commitment and district responsibility for individuals change when the state-run facility was closed? [00:05:30] Speaker 06: Well, as I said, I mean, the entire system sort of transformed. [00:05:34] Speaker 03: But did the laws change? [00:05:35] Speaker 03: Did the actual code provisions change? [00:05:38] Speaker 06: Well, the specific act to protect the rights of the intellectually disabled that was enacted in 1979, it was part of the process by which the institutionalization had already begun in light of the consent decree in 1978 in Evans. [00:05:55] Speaker 06: So it was part of an evolution of the process. [00:06:04] Speaker 05: Is that the yes or no? [00:06:05] Speaker 05: Yes. [00:06:06] Speaker 03: The code provisions did change. [00:06:07] Speaker 03: It wasn't just that the district decided to shut down. [00:06:10] Speaker 03: Well, I understand that there's litigation going on, but that the facility closed down and then the care was contracted out to private facilities. [00:06:17] Speaker 03: It's actually that the legal architecture, the laws that govern changed. [00:06:22] Speaker 06: Yes, Your Honor. [00:06:23] Speaker 06: There's the 1979 Act. [00:06:24] Speaker 06: There was the whole system of licensing. [00:06:27] Speaker 05: What was the change in the 1979 Act that is relevant to the existence of a federal relief? [00:06:34] Speaker 06: It was the move to deinstitutionalization, the requirement that it be the least restrictive environment, the vision that services would be provided in the community. [00:06:49] Speaker 06: That was a purpose, key purpose of the act. [00:06:52] Speaker 06: And so the requirement of an annual IHP, Individual Abilitation Plan, the comprehensive evaluation, these were [00:07:03] Speaker 06: This was a shift from institutionalization and the government providing the services and controlling the services to a least restrictive environment where the individuals in the community, their services are being provided by private individuals. [00:07:18] Speaker 03: So if he doesn't develop to a point that he's competent, even in the ex post world where we're in the private facility, if he doesn't develop to a point where he's competent, he can't be discharged unless a court [00:07:32] Speaker 03: sanctions is discharged. [00:07:33] Speaker 03: Is that right? [00:07:35] Speaker 06: That may be technically true, but our point is that... What's technical about that? [00:07:40] Speaker 03: Why is that technical? [00:07:41] Speaker 03: Because he can't... In other words, the district is responsible for his care. [00:07:46] Speaker 03: He's committed. [00:07:47] Speaker 03: He can't be discharged from that commitment unless I take his family on the court. [00:07:52] Speaker 03: join and say that that's okay. [00:07:54] Speaker 06: Well, his admission was at the request of his family, so his family was always free at any time to take them back into its own care or make alternative living arrangements. [00:08:04] Speaker 06: The court could not prevent that, and nothing in the law could prevent that. [00:08:11] Speaker 06: Additionally, the D.C. [00:08:13] Speaker 06: Code also recognizes the group home director. [00:08:15] Speaker 03: And was that equally true when it was a public facility? [00:08:19] Speaker 03: Was that also true? [00:08:20] Speaker 06: In other words, the family... Yes, in fact, we have evidence from Mr. Sykes' sister, Ms. [00:08:30] Speaker 06: Weaver, that she would, whenever she wanted, even at the time Mr. Sykes was in Forest Haven, she would go there and take him back into her care. [00:08:37] Speaker 03: Right, so the fact that the family could take him out, nothing of consequence changed from the time that it was a public facility when you acknowledged that there was a special relationship to the time that it became a private facility when you contend that it was no longer a special relationship. [00:08:54] Speaker 06: That's true. [00:08:55] Speaker 06: We're not relying just on that point, obviously, to argue that there was no special relationship here. [00:09:01] Speaker 06: But the fact is that there was no limitation at all that was imposed upon Mr. Suggs by the district. [00:09:08] Speaker 06: Any limitation was that of his condition, which the district did nothing to cause. [00:09:16] Speaker 06: And so there's nothing that the district did or failed to do that resulted in any limitation on Mr. Suggs. [00:09:24] Speaker 06: the family could always request and in fact did take him back into his care whenever the family wished. [00:09:32] Speaker 06: And so for that reason there's no special relationship. [00:09:36] Speaker 06: The second element is that there was no deliberate indifference here, subject of deliberate indifference, which is another required element. [00:09:44] Speaker 06: There is no evidence that the case manager, the district employee case manager, knew of and disregarded an excessive risk to Mr. Suggs' health. [00:09:52] Speaker 06: She was not a health care professional. [00:09:55] Speaker 06: Mr. Suggs had his own doctor and his own team of professionals which were tending to him. [00:10:00] Speaker 06: She was not responsible for his day-to-day care, only to visit four times a year. [00:10:06] Speaker 06: This is in order for deliberate indifference to mean something and something more than negligence, which is required, then these facts here simply do not rise to the level of deliberate indifference. [00:10:19] Speaker 06: Mr. Suggs received numerous appointments with neurologists and neurosurgeons. [00:10:24] Speaker 06: The team considered the surgical recommendation, decided for a second opinion. [00:10:30] Speaker 06: Again, these are reasonable acts, not acts of deliberate indifference. [00:10:34] Speaker 06: we have Ms. [00:10:35] Speaker 05: Weaver's own refusal to consent to the surgery, which again supports the fact that... The timeline on that, when was the surgery first recommended? [00:10:48] Speaker 06: The surgical consult was in September of 1995 by a physical therapist at the day program that he attended. [00:10:57] Speaker 05: And when was the point at which Ms. [00:10:59] Speaker 05: Weaver did not consent? [00:11:02] Speaker 06: That's somewhat of a factual dispute. [00:11:05] Speaker 06: It was at least 1998. [00:11:08] Speaker 05: So minimum three years and perhaps more between the time the consult was recommended but not followed through. [00:11:22] Speaker 05: That would be correct, Your Honor, but... That could have been, in fact, the record would seem to support the proposition that his condition deteriorated during the period between the failure to follow through on the council and Ms. [00:11:36] Speaker 06: Weaver's decision, right? [00:11:40] Speaker 06: Right, there may be a factual dispute there, but the question is whether Ms. [00:11:44] Speaker 05: Jen... There's no factual dispute. [00:11:45] Speaker 05: I mean, it seems like the record would support the proposition that his condition was deteriorating that whole time, wouldn't it? [00:11:52] Speaker 06: Well, there was testimony of Dr. Falick, who was a neurosurgeon, and he opined that surgery would not have benefited Mr. Suggs because... What it means to not consent at the time of the consult, not being followed through on, and to not consent some years later. [00:12:14] Speaker 05: That's two different things, isn't it? [00:12:17] Speaker 06: Yes, I understand that, Your Honor. [00:12:18] Speaker 06: I understand that. [00:12:19] Speaker 06: But the test is delivered indifference by Ms. [00:12:22] Speaker 06: Jenkins. [00:12:22] Speaker 06: There are lots of actors involved, including private actors. [00:12:25] Speaker 06: It has to be specifically her delivered indifference, which would be the subject of deliberate indifference that would be necessary for the claim. [00:12:33] Speaker 06: There's also no policy in this case, another. [00:12:36] Speaker 05: How about practice? [00:12:39] Speaker 06: Or practice, Your Honor. [00:12:41] Speaker 06: There was the 1979 legislation, for example, which district policymakers, the Council enacted specifically to provide protections for individuals with intellectual disabilities and included traditionally enforceable rights. [00:12:56] Speaker 05: That was after the event with the litigation, right? [00:13:03] Speaker 06: That was after the evidence... Yes, that was after the evidence suit was brought, but it shows that the district acted in response to... Well, I don't think that is the test, respectfully, to tell that it's not only that there was... You can't just say, well, we passed a law saying we're not going to follow that practice anymore, and then go ahead and follow the practice. [00:13:29] Speaker 06: If it were a meaningless law, I would agree with that, but the fact is the test is whether the municipality did not act in response to what it was on notice of. [00:13:39] Speaker 06: That is, notice that constitutional violations were likely. [00:13:43] Speaker 06: I'm taking that language directly from the Jones decision of this Court. [00:13:47] Speaker 06: There was also the licensing standards that were adopted by the district for these private homes. [00:13:53] Speaker 06: Those were strong standards. [00:13:54] Speaker 06: There's no question here that they were effective standards. [00:13:57] Speaker 04: Why do you think the standard is subjective deliberative indifference? [00:14:01] Speaker 04: Where do you get that from? [00:14:04] Speaker 06: Well, I'm going back then to the predicate constitutional violation, which does require subjective deliberative indifference. [00:14:13] Speaker 04: Where do you get that from? [00:14:14] Speaker 04: Why? [00:14:15] Speaker 04: That's the Eighth Amendment standard. [00:14:16] Speaker 04: I thought Youngberg told us that Eighth Amendment standard doesn't necessarily apply. [00:14:21] Speaker 04: It doesn't apply here. [00:14:24] Speaker 06: Well, there was no dispute when this was briefed below on summary judgment that the former subject of deliberate indifference standard applied. [00:14:31] Speaker 06: We cited specifically to the pages of the plaintiff's summary judgment papers where that standard was used and followed. [00:14:39] Speaker 06: So that was, I think, [00:14:42] Speaker 06: the accepted test. [00:14:44] Speaker 06: And so this court should not, we submit, permit plaintiff to argue on appeal some different standard. [00:14:50] Speaker 06: But in any event, there are the cases that we cited in our brief, the Caoso case from the Second Circuit, the Doe case from the Fifth Circuit, McGee, Moore, Ray. [00:15:02] Speaker 06: These are cases from other circuits where they extended the subject of deliberate indifference test. [00:15:06] Speaker 06: beyond just the Eighth Amendment context, to pretrial detainees, to civilly committed detainees. [00:15:14] Speaker 06: So we believe that not only was any such claim forfeited, that subject that did rule indifference was not the test, but it's well supported by the case law as well. [00:15:25] Speaker 06: And I see that I am into my rebuttal time. [00:15:30] Speaker 06: Unless there are further questions, I would like to save some time. [00:15:34] Speaker 06: Thank you. [00:16:08] Speaker 02: Good morning, Your Honor. [00:16:09] Speaker 02: Good morning. [00:16:10] Speaker 02: My name is Mark Feebler. [00:16:11] Speaker 02: I represent the appellee, David Harvey. [00:16:15] Speaker 02: I'd like to respond to some of the issues that were raised in the appellant's argument. [00:16:20] Speaker 02: First, as to the claim or the contention that there was no institutionalization once Curtis Subs was placed in the group home. [00:16:32] Speaker 02: Three quick points. [00:16:33] Speaker 02: First, the dictionary definition is a place where an organization takes care of people for usually a long period of time. [00:16:43] Speaker 02: That would certainly apply to the group home. [00:16:45] Speaker 02: Second, in the contract that the district had with Symbro, which was the operator of the group home, it described in the contract the services that Symbro was to perform as, quote, institution. [00:17:01] Speaker 02: And third, in Evans, the district admitted that the group homes had become, by virtue of the dysfunction of the murder system, mini forest havens. [00:17:21] Speaker 02: So it may have been a smaller facility, and it may have been out of the community, and it may have been owned by a private entity, but it was still, if not an institution, then at least analogous to an institution as referenced in Deshaning. [00:17:40] Speaker 02: As to the point that he could be [00:17:47] Speaker 02: discharged at the family's request. [00:17:51] Speaker 02: No, he couldn't. [00:17:52] Speaker 02: As a factual matter or as a legal matter, let's start with the legal matter. [00:17:57] Speaker 02: The 1978 Act specified circumstances under which a family could seek the discharge of a family member. [00:18:10] Speaker 02: But that applies only to the parent or the guardian who can make that request. [00:18:15] Speaker 02: His parents were deceased. [00:18:17] Speaker 02: His sister and his cousin, Mr. Harvey, were not ever appointed his guardian. [00:18:26] Speaker 02: So under that statue, they couldn't ask. [00:18:30] Speaker 02: as a factual matter, there is record evidence that his sister, Carrie Weaver, had asked years before, I think in 1997, there are notes, and maybe even 1993, that she wanted him returned to South Carolina. [00:18:52] Speaker 02: He wasn't returned to South Carolina. [00:18:54] Speaker 02: This was not a situation where he was free to go. [00:18:57] Speaker 03: What typically happens as a practical matter, what typically happens in the situation then if the governing law requires parents or a guardian and there are no parents and no guardian has been named? [00:19:10] Speaker 03: Is it in fact true that we're just caught in a state of perpetual institutionalization without any avenue for voluntarily overcoming that status? [00:19:22] Speaker 02: I'm entering speculation land a bit here, but I would imagine [00:19:27] Speaker 02: that the family goes to court to have a member appointed as a guardian. [00:19:36] Speaker 02: But again, that's not as simple as making a phone call, you know, please release Curtis tomorrow, or just pulling up a van, packing up his stuff and leaving. [00:19:46] Speaker 05: There's not any sort of periodic, I guess I should have asked the Postal Council this, but you're the one that's here right now. [00:19:52] Speaker 05: There's not any sort of periodic automatic review of committee persons to determine if they feel it should be committee. [00:20:01] Speaker 02: Thank you for raising that, because that, under the 1978 Act, that's required. [00:20:05] Speaker 02: It was done here, and a Superior Court Judge each year reviewed and decided whether to continue his [00:20:16] Speaker 02: Quote, commitment, unquote, the 1978 Act expressly defines commitment as being without the individual's consent. [00:20:26] Speaker 02: So in no fashion was this a voluntary commitment. [00:20:31] Speaker 02: The Council of the District made that clear in its report discussing the statute. [00:20:39] Speaker 02: There is admission, which is voluntary. [00:20:42] Speaker 02: There is commitment, which is involuntary. [00:20:47] Speaker 02: So I think it's abundantly clear that there was a substantive due process duty owed to Curtis Sugs as to what the proper standard should be for determining the underlying constitutional violation. [00:21:06] Speaker 02: I want to make it abundantly clear that in the trial court, [00:21:11] Speaker 02: Council for Mr. Harvey never cited a subjective, deliberate, and different standard. [00:21:19] Speaker 02: Yes, in the papers, Farmer was cited, but for a completely separate proposition, namely that the constitutional violation had to be sufficiently serious. [00:21:29] Speaker 02: That's an objective standard. [00:21:31] Speaker 02: There was never an argument or an admission that the farmer's subjective delivery in different standards should apply. [00:21:39] Speaker 02: As to which standard should apply, we would submit that an objective delivery in different standard would be appropriate, largely for the reasons that Judge Griffith stated before in his question [00:21:54] Speaker 02: Namely that Youngberg indicated that persons such as Mr. Stokes were involuntarily committed are entitled to more favorable treatment than prisoners under the Eighth Amendment. [00:22:10] Speaker 02: And also, in Farmer itself, it acknowledged [00:22:14] Speaker 02: that it's impractical and inapplicable to apply a subjective standard to an institution or a municipality. [00:22:25] Speaker 02: It makes sense if there is a claim of official liability under 1983. [00:22:31] Speaker 04: What about using Youngberg's professional judgment standard? [00:22:35] Speaker 02: The same problem would apply. [00:22:36] Speaker 02: Which profession? [00:22:38] Speaker 02: Our claim doesn't rely solely on the wrong or the deliberate indifference of Sarah Jenkins. [00:22:47] Speaker 02: Other individuals were also involved, the bureau chief and so forth. [00:22:51] Speaker 02: So which profession? [00:22:52] Speaker 02: Hers, the bureau chiefs, other people in the chain of command. [00:22:58] Speaker 02: That's one of the reasons why this was an action against the municipality and not against any particular individual. [00:23:05] Speaker 02: More than one person that was responsible here. [00:23:10] Speaker 02: And so consequently, I don't think the professional judgment standard, the same reason that Barman said the subjective deliberate difference standard doesn't make sense when talking about immunity. [00:23:23] Speaker 02: Same thing would hold true for the professional judgment standard. [00:23:27] Speaker 02: We argued in our brief that regardless, the evidence would support a finding of subjective deliberate indifference. [00:23:38] Speaker 02: But if the court were to explore which standard should apply, we believe it should be an objective deliberate indifference standard. [00:23:52] Speaker 03: So on this question, in order to [00:23:56] Speaker 03: to warrant the entry of summary judgment in your favor, we'd have to conclude, as the district court did, that no, there's no reasonable juror that could find against you, right? [00:24:09] Speaker 02: On the record produced [00:24:11] Speaker 02: on summary judgment. [00:24:13] Speaker 02: And that's the problem. [00:24:14] Speaker 02: I understand that this is a bit of an unusual case where summary judgment is granted to the plaintiff on 1983. [00:24:23] Speaker 02: But the issue here is that the district [00:24:27] Speaker 02: failed at the summary judgment stage to effectively controvert the evidence presented by the plaintiffs. [00:24:37] Speaker 02: For example, on the issue of custom of deliberate indifference by the district, [00:24:49] Speaker 02: Evidence was submitted of court monitor reports saying that class members were not receiving adequate medical care. [00:24:57] Speaker 02: And that was cited and evidence was supplied in the statement of undisputed material facts in support of the plaintiff's motion for summary judgment. [00:25:11] Speaker 02: In response, the district said, and I quote, irrelevant. [00:25:17] Speaker 02: Where's the evidence to controvert it? [00:25:21] Speaker 02: On the issue of Jenkins and whether she acted with deliberate indifference, evidence was supplied, particularly of her notes, indicating that she was aware that Mr. Suggs was in declining health and was aware of the need for the neurological evaluation. [00:25:41] Speaker 02: And the response of the district was, her notes say what her notes said. [00:25:47] Speaker 03: But wasn't there really some evidence in the record that would... It's not to say that judgment should have been entered against you on the question of whether it should have gone to a jury. [00:25:58] Speaker 03: wasn't there at least some evidence in the record that would support the proposition, perhaps the jury might ultimately rule in your favor, but that would at least get the district to the jury to the effect that the deteriorating physical condition came about because of his cerebral palsy and that there were questions as to whether surgery was advisable given his age and the risks that were entailed by surgery in light of the nature of his, the advanced state of his condition. [00:26:24] Speaker 02: But that wasn't raised [00:26:26] Speaker 02: at least not properly at the summary judgment stage. [00:26:31] Speaker 02: And so much of that, much of those arguments were waived. [00:26:37] Speaker 02: And that's the problem. [00:26:38] Speaker 02: It's not that at a metaphysical level, there may not be some evidence that could have supported that. [00:26:45] Speaker 02: It just wasn't presented to the court on summary judgment. [00:26:48] Speaker 03: And what do you mean by that? [00:26:52] Speaker 03: in the opposition to summary judgment? [00:26:54] Speaker 03: Correct. [00:26:56] Speaker 03: There was just no reference to that at all? [00:26:58] Speaker 02: Or at least no admissible evidence submitted or cited that would support the conclusion that the district didn't act with deliberative difference or that [00:27:15] Speaker 02: his death and declining health wasn't caused by the failure to follow up on the medical recommendation. [00:27:26] Speaker 03: But was, for example, Dr. Plotkin, so was his statement to the effect that some people with cerebral palsy have late progression with decrease in tone and loss of ambulation, was that not in the summary judgment record? [00:27:40] Speaker 03: Because that would at least [00:27:43] Speaker 03: conceivably support the proposition that the deterioration condition was due to cerebral palsy. [00:27:49] Speaker 02: You may be referring to his initial consult where he asked for the MRI to be done to get to the bottom of that to determine what, I think he listed several possible diagnoses. [00:28:04] Speaker 02: But he said, let's get an MRI to determine what's going on. [00:28:09] Speaker 02: Once the MRI showed that there was cervical stenosis, [00:28:13] Speaker 02: He then said, well, let's run it by a neurosurgeon to see if surgery would be appropriate here. [00:28:21] Speaker 02: And although there were enormous delays in getting all that done, the neurosurgeon said, yeah, you know, cervical, there's cervical stenosis here and surgery would be recommended within the next few weeks. [00:28:35] Speaker 02: And Plotkin then filed, a month later said, when the surgery still wasn't done, a month later said, surgery ASAP. [00:28:44] Speaker 02: Which means that the issue of maybe it was something else that was causing this is now by the courts. [00:28:55] Speaker 05: Unless the court has... You're across the field. [00:28:57] Speaker 05: Is that still before us? [00:28:59] Speaker 05: Nobody's mentioned that at all. [00:29:00] Speaker 05: Pardon me? [00:29:01] Speaker 05: You're across the field? [00:29:03] Speaker 02: We're going to withdraw that. [00:29:05] Speaker 05: I thought that was probably a good idea. [00:29:14] Speaker 05: appellant is raising. [00:29:16] Speaker 05: I'm not sure what, do you have a position on that? [00:29:21] Speaker 02: The issue beyond, beyond what we presented in the brief, I would only say that allowing the district to take a fifty percent credit on the settlement with symbol [00:29:42] Speaker 02: would be inequitable because the district's liability was so much more egregious and simple, but also it would discourage plaintiffs from settling into these kinds of circumstances, contrary to the salutary policy of encouraging settlements. [00:30:03] Speaker 03: Can I ask a question about the D.C. [00:30:04] Speaker 03: negligence statutory claims? [00:30:05] Speaker 03: So what's your argument as to why the notice provision, the 12-309 provision, doesn't bar those claims in light of the way that D.C. [00:30:16] Speaker 03: courts have construed that, particularly in the Brown decision? [00:30:23] Speaker 02: Well, in terms of the timing... Yeah, on the timing, just on timing. [00:30:26] Speaker 02: Yeah, I'm not talking about the adequacy of the... Again, the district... [00:30:31] Speaker 02: asked the court under 12-309, had the relief that it sought was to bar claims for injuries before December 23, 1999. [00:30:46] Speaker 02: And that's what the court granted. [00:30:48] Speaker 02: Now the district is arguing, but that after that ruling, [00:30:55] Speaker 02: Judge Lamberth clarified his ruling on deliberate indifference to say the deliberate indifference under the 1983 claim was from 1995 to 1998. [00:31:07] Speaker 02: The district then came in and said, wait a minute, if the wrongdoing was 1995 to 1998, then you're ruling on 12309 being, you know, [00:31:22] Speaker 02: December 23, 1999, and after is inapplicable. [00:31:26] Speaker 02: But that's wrong for two reasons. [00:31:29] Speaker 02: One, the clarification by Judge Lambert applied to the 1983 claim, not the negative claim. [00:31:37] Speaker 02: And second, his clarification went to the timing of the district's wrongdoing [00:31:47] Speaker 02: Whereas 12-309 is concerned with the timing of the injury, which Brown points out, it wasn't when the doctor misdiagnosed, it's when the plaintiff [00:32:02] Speaker 02: suffer the consequences. [00:32:03] Speaker 02: And that's on the face of 12309. [00:32:05] Speaker 02: It's when the injury occurred, not when the wrongdoers occurred. [00:32:09] Speaker 02: So there's a disconnect. [00:32:11] Speaker 02: So as a consequence, the district is barred from presenting a claim that, or an argument now, that Judge Lamberth was wrong and is ruling for adhering to the district's position. [00:32:29] Speaker 03: It necessarily goes to the district's conduct. [00:32:34] Speaker 03: I know that the letter of 12309 refers to injury, but it has to be the injury that's caused by the alleged misconduct on the part of the district. [00:32:43] Speaker 02: Yes. [00:32:45] Speaker 03: And under Brown, it seems like then the fact that the injury may have manifestations subsequently isn't what gives rise to the, it doesn't prolong the period within which the claim has to be brought. [00:33:00] Speaker 02: For the sake of argument, if Brown had been raised at the district court level, we would be in a very different position. [00:33:09] Speaker 02: But they didn't raise him. [00:33:11] Speaker 03: So you think if Brown did apply, if I take it, I understand that you're making an argument. [00:33:17] Speaker 02: I'm making a procedural argument rather than a substantive 12309. [00:33:20] Speaker 02: Argument 12309 is not jurisdictional, so this court is held. [00:33:26] Speaker 02: So they waived it. [00:33:28] Speaker 02: They waived the argument they're trying to make now. [00:33:30] Speaker 03: But I don't know the procedural history of this, but do you have to invoke a decision? [00:33:36] Speaker 03: If you make the argument and then you have a decision later that supports the argument, haven't you preserved the argument? [00:33:41] Speaker 02: They didn't make the argument. [00:33:42] Speaker 03: They didn't make the argument at all. [00:33:43] Speaker 03: It's your position. [00:33:45] Speaker 02: Like I said, they said December 23, 1999, and Han is the only thing that he could recover under, well, 309. [00:33:53] Speaker 02: And Judge Lambert said, yes, that's right. [00:34:00] Speaker 02: If there are no other questions, we would urge the court to affirm the judgment. [00:34:04] Speaker 02: Thank you very much. [00:34:05] Speaker 04: Thank you, Mr. Vita. [00:34:21] Speaker 06: At a minimum, there are genuine issues on the claims of substantive due process and the other claims as well, whether there was subjective delivered indifference, whether there was a municipal policy, whether that municipal policy has an affirmative link to the damages claimed in the case. [00:34:41] Speaker 06: These are demanding standards that are imposed. [00:34:43] Speaker 06: In order for them to mean something more than negligence and respond to yet superior liability, we think that we're entitled to summary judgment, but at the very least that makes it a jury issue. [00:34:54] Speaker 06: It's not only a high standard, but whatever inferences from the evidence would have to be drawn in the district's favor. [00:35:00] Speaker 06: And based on the record in this case, which is what the district court judge decided summary judgment on, not any sort of waiver issue, there was certainly evidence. [00:35:09] Speaker 06: There was Dr. Felix's testimony that I mentioned that Mr. Suggs would not have benefited from surgery. [00:35:14] Speaker 06: There was evidence of the team's view of the surgical recommendation. [00:35:18] Speaker 06: They thought that the risks would outweigh the benefits in light of Mr. Suggs' age. [00:35:23] Speaker 06: There's Ms. [00:35:24] Speaker 06: Weaver's own refusal to consent to the surgery, which makes it reasonable not to have provided the surgery. [00:35:29] Speaker 06: There was a new argument raised. [00:35:33] Speaker 03: Did you rely on this in your opposition to summary judgment? [00:35:39] Speaker 06: Yes, I often can't point to specific places, but certainly it was in the summary judgment papers and that record evidence was included in the record at summary judgment. [00:35:53] Speaker 06: There was also, and the plaintiff has the burden of proof, so the fact that [00:36:01] Speaker 06: It means that they're not entitled to judgment as a matter of law when the jury could simply discredit the plaintiff's evidence. [00:36:07] Speaker 06: There's no need even for the district to present affirmative evidence, but it was there. [00:36:11] Speaker 06: There was a new argument just raised about whether the family could have asked for Mr. Suggs to be released. [00:36:17] Speaker 06: That was not an argument that was made in the briefs. [00:36:19] Speaker 06: It's always been the district's position which was not contested. [00:36:22] Speaker 06: The family could always take him back into his care at any time. [00:36:25] Speaker 05: You make that proposition. [00:36:29] Speaker 05: I raised the question that would come with a new argument on behalf of the FLE. [00:36:36] Speaker 05: It was my question he was responding to. [00:36:38] Speaker 05: But aren't you misstating the state of the law to say that the family could take him back out at any time? [00:36:45] Speaker 05: Wouldn't it take a process for them to take him out of the commitment? [00:36:50] Speaker 06: uh... if you can make any use that that that's why i said i think technically that there would be a court order required or the statute also provides the group home director could release individual even without a court order as long as there was notice and opportunity to object but as a factual matter as well we know that ms weaver would take mr sykes back into her care and even at the time back in two thousand [00:37:16] Speaker 06: when Mr. Harvey, who had power of attorney represented, requested that Mr. Sucks be moved to South Carolina. [00:37:24] Speaker 06: The district implemented that request, actually went down to South Carolina, visited nursing homes there, waitlisted him on several. [00:37:32] Speaker 06: So it's clear from the factual record as well that there was no limitation on the family's ability to take Mr. Sucks back into his care. [00:37:40] Speaker 06: On the delivered indifference standard, I think that we kind of did argue below that it was a subjective delivered indifference standard. [00:37:46] Speaker 06: At the very least, they did not articulate below an objective delivered indifference standard as an alternative. [00:37:52] Speaker 06: And so that would be improper now to raise it on appeal. [00:37:56] Speaker 06: If I could just stress the 12th 309. [00:37:59] Speaker 04: Your time's up. [00:38:00] Speaker 04: Okay. [00:38:00] Speaker 04: Sorry. [00:38:01] Speaker 04: Thank you very much. [00:38:02] Speaker 04: Case is submitted. [00:38:03] Speaker ?: Thank you.