[00:00:01] Speaker 00:
May it please the court, I'm Michael Huston of Perkins Couey on behalf of NAFCAR.

[00:00:04] Speaker 00:
I'd like to respectfully request five minutes for rebuttal.

[00:00:08] Speaker 00:
Okay, what's your call?

[00:00:10] Speaker 00:
In Gordon versus County of Orange, this court held that, quote, where the record lacks evidence of any other event involving similar conduct or constitutional violations, Monell liability is not established.

[00:00:25] Speaker 00:
If it were true that there were a persistent and widespread practice at NAFCARES facility to use the medical watch floor for seriously ill patients who required advanced medical treatment, then it shouldn't have been too difficult for plaintiff to prove that fact.

[00:00:41] Speaker 00:
But plaintiff offered no evidence of that custom because that was not the practice at NAFCARES facility.

[00:00:48] Speaker 00:
There is no evidence in this record of any other event where a detainee at the jail was subjected to a substantial risk of serious harm.

[00:00:59] Speaker 00:
Ms.

[00:00:59] Speaker 00:
Hill's death was a tragedy, but it arose from a one-time mistake by a single NAFCAR employee who undisputably failed to follow NAFCAR's clear written instructions for how to treat severe abdominal pain.

[00:01:14] Speaker 04:
Was there any evidence in the record that she was aware of those instructions or had read them or been trained on them?

[00:01:21] Speaker 00:
Yes, absolutely, your honor.

[00:01:23] Speaker 00:
So the instructions are provided through the tech care form.

[00:01:26] Speaker 00:
This is the portal that nurses use to communicate what they are seeing and their observations and to receive instructions.

[00:01:35] Speaker 00:
The portal specifically describes that that is the correct standard of care.

[00:01:40] Speaker 00:
for severe abdominal pain, send them to an advanced medical provider.

[00:01:44] Speaker 00:
And she testified, I think this is best reflected at page 1225 at the record, that if the patient were experiencing a severe or urgent condition, she understood that she was supposed to send her to a hospital or call an advanced provider.

[00:02:00] Speaker 00:
The nurse did not do that in this particular case because she made a judgment, wrongly, tragically,

[00:02:06] Speaker 00:
that Ms.

[00:02:07] Speaker 00:
Hill's severe pain was attributable only to opiate withdrawal as abdominal pain is a relatively common symptom of opiate withdrawal.

[00:02:16] Speaker 00:
So that, again, that was a mistake.

[00:02:19] Speaker 00:
It shouldn't have happened.

[00:02:20] Speaker 00:
And NAFCARES policies, it's undisputed that NAFCARES policies are clear about what should have happened in this incident for 10 out of 10 abdominal pain.

[00:02:29] Speaker 00:
You send the person to the hospital or call an advanced provider.

[00:02:33] Speaker 00:
But I think that just reinforces that we're dealing with a case where NAFCARES written policy is clearly constitutional.

[00:02:40] Speaker 00:
I think that makes the burden even higher on the plaintiff to demonstrate

[00:02:44] Speaker 00:
that in the face of that expressly constitutional policy, NAFCAR actually had an unwritten custom to systematically violate the Constitution.

[00:02:54] Speaker 00:
And as I think this court's cases reflect over and over again, you have to have, you have to prove a pattern of incidents in order to demonstrate that custom.

[00:03:03] Speaker 00:
And certainly the absence of any testimony about any other evidence, any other incident in this record cannot establish Monell.

[00:03:10] Speaker 04:
Does the record say anything about

[00:03:13] Speaker 04:
people being received and then being evaluated and then sent out to urgent care or to other facility if they had an acute or urgent condition?

[00:03:25] Speaker 00:
Absolutely, Judge Collins, both with respect to this nurse and with more broadly.

[00:03:29] Speaker 00:
So Nurse Gubitz testified that she knew how to send patients to the emergency room.

[00:03:34] Speaker 00:
She felt comfortable doing so.

[00:03:35] Speaker 00:
She did so regularly.

[00:03:37] Speaker 00:
That's page 1273.

[00:03:39] Speaker 00:
in EER, Lieutenant Hooper testified that patients were sent out of the facility for medical services, quote, every single week.

[00:03:48] Speaker 00:
That's page 838.

[00:03:50] Speaker 00:
Officer Worth testified about the regular policies and procedures that were in place to send patients out for medical treatment.

[00:03:57] Speaker 00:
That's at page 741.

[00:04:00] Speaker 00:
So, and Dr. Alvarez, who is the supervising chief medical officer, testified that he instructs all nurses, quote, when in doubt, send them out.

[00:04:09] Speaker 00:
That's page 972.

[00:04:10] Speaker 03:
But didn't Nurse Gubitz say that she sent Hill to the medical watch consistent with NAFCARES policy?

[00:04:19] Speaker 00:
So Your Honor, she said that what she believed, she was asked by counsel for the estate, were your actions consistent with your usual practice when with NAFCARES policy?

[00:04:30] Speaker 00:
And she said, as far as I know, yes.

[00:04:35] Speaker 00:
So she clearly made a mistake.

[00:04:36] Speaker 00:
She was mistaken about her own, about what she was supposed to do.

[00:04:41] Speaker 00:
There's no dispute about that between the parties in the record.

[00:04:43] Speaker 00:
But that only goes to show it's not a matter of her own interpretation and what she thought.

[00:04:50] Speaker 00:
It's a question of what was the reality on the ground.

[00:04:52] Speaker 03:
This was a Saturday, all this occurred, right?

[00:04:55] Speaker 00:
That's correct, Your Honor.

[00:04:56] Speaker 03:
And hadn't she previously complained to NAFCA itself that they should have a medical professional on duty on weekends and they didn't?

[00:05:05] Speaker 00:
She had raised issues about staffing on weekends, but there's no question that I don't think there's any evidence in the record that that was the moving force behind this injury.

[00:05:14] Speaker 03:
In other words, didn't she say that if they had been a staffing on the weekend, she would have sent

[00:05:19] Speaker 03:
Hill to the professional?

[00:05:21] Speaker 00:
No, no, absolutely not, Your Honor.

[00:05:22] Speaker 00:
The testimony is very clear from the nurse about this.

[00:05:25] Speaker 00:
She sent Ms.

[00:05:26] Speaker 00:
Hill to medical watch as opposed to a hospital because she made a judgment that Ms.

[00:05:33] Speaker 00:
Hill was only experiencing withdrawal symptoms, not a more serious condition.

[00:05:38] Speaker 00:
And that's it.

[00:05:39] Speaker 00:
It's really just the one thing in this case.

[00:05:42] Speaker 00:
It all hangs on that.

[00:05:43] Speaker 00:
She made that judgment.

[00:05:45] Speaker 00:
And in reliance on that judgment, she determined that

[00:05:47] Speaker 02:
So what's the point of sending what the protocol was to send them to medical watch, but there was no, the protocol also was that there was no medical person actually watching the people when they were sent to medical watch on the weekend.

[00:06:07] Speaker 02:
So it appears from that testimony that NAF care, um,

[00:06:12] Speaker 02:
delegated to the guards its responsibility for providing medical care and medical attention.

[00:06:19] Speaker 00:
So, respectfully, I don't think that that is a... Isn't that a fair inference?

[00:06:22] Speaker 02:
I mean, we're talking about jury verdicts, right?

[00:06:24] Speaker 00:
Yes, we are.

[00:06:24] Speaker 00:
Absolutely, Your Honor.

[00:06:25] Speaker 00:
Okay.

[00:06:25] Speaker 02:
Isn't that a fair inference from the testimony of Dr. the expert, Dr. Roscoe, Nurse and Nurse Gubitz?

[00:06:33] Speaker 00:
No.

[00:06:34] Speaker 02:
And the actual evidence about

[00:06:37] Speaker 00:
what the guards did on the weekend no respectfully your honor that is not a reasonable inference from this record for a couple of reasons that you agree that's our standard i do agree that that's the standard whether a reasonable jury could conclude but i think as a matter of law remember that when we're not talking about

[00:06:53] Speaker 00:
Was there a mistake made here?

[00:06:55] Speaker 00:
There was a mistake made.

[00:06:56] Speaker 00:
There was a finding by the jury of negligence.

[00:06:59] Speaker 00:
NAFCAR has paid more than $2 million, and we are not here contesting the negligence verdict.

[00:07:04] Speaker 00:
We're talking about Monell liability.

[00:07:06] Speaker 00:
We're talking about whether there was a pattern or practice

[00:07:09] Speaker 00:
to systemically violate the Constitution that has to be persistent and widespread.

[00:07:14] Speaker 00:
I want to talk about Your Honor's reference to Laurie Roscoe's testimony.

[00:07:16] Speaker 00:
Laurie Roscoe, all she did was refer to the nurse's testimony.

[00:07:22] Speaker 00:
Laurie Roscoe did not do any independent investigation

[00:07:25] Speaker 00:
into what was the reality in the facility.

[00:07:28] Speaker 00:
All she's relying on is the nurse's deposition statement about what she did.

[00:07:34] Speaker 00:
So, and then I think with regard to the guards, the idea that, you know, my friend has said in her brief, there's nothing medical about medical watch.

[00:07:41] Speaker 00:
That's just simply not true at all.

[00:07:43] Speaker 00:
Guards, this testimony is in the record at page 1231.

[00:07:46] Speaker 00:
guards observing medical watch patients called for nursing assistants, quote, at least once per shift.

[00:07:53] Speaker 00:
It happened every single day.

[00:07:56] Speaker 00:
The guards were trained to make observation about patients who were on medical watch, and in the event that they needed additional assistance, to call for nurses or doctors, and they did so every single day.

[00:08:09] Speaker 00:
And again, the fact that there's not a single other incident in the facility where anyone

[00:08:16] Speaker 00:
was deprived of their constitutional rights.

[00:08:18] Speaker 00:
There's no other incident in this record where a person not only wasn't injured, but didn't even face a risk of injury.

[00:08:27] Speaker 00:
They haven't identified anybody who was on medical watch who was not medically fit to be there.

[00:08:34] Speaker 00:
I want to come back to your honor's question a little bit about what was the practice.

[00:08:37] Speaker 00:
It's very important to specify what, who medical watch was for and who it was not for the clear written policy.

[00:08:46] Speaker 00:
All the parties agree was that with a person who has severe abdominal pain, they should not see to firm a nail liability.

[00:08:54] Speaker 02:
The policy doesn't have to be written.

[00:08:56] Speaker 02:
It could be the informal practice that was followed.

[00:09:00] Speaker 00:
That's correct, Your Honor, but in order to demonstrate that practice and to show a persistent and widespread practice under the Supreme Court standard, you need to show, the plaintiff needs to show a pattern of incidents where that practice occurred.

[00:09:14] Speaker 00:
And I think that's the whole point of the court's holding in Gordon.

[00:09:17] Speaker 00:
You need multiple incidents in order to make a practice.

[00:09:21] Speaker 00:
There's no testimony in this record about any other incidents.

[00:09:26] Speaker 02:
The jury decided that NAFCARE had an unofficial policy of using medically untrained jail guards to monitor NAFCARE patients in need of medical monitoring.

[00:09:38] Speaker 00:
Now, that was the policy, right?

[00:09:42] Speaker 00:
May I make two points about that, Your Honor?

[00:09:44] Speaker 00:
Of course.

[00:09:45] Speaker 00:
The first is that, I think, Your Honor, is quoting the jury instructions.

[00:09:49] Speaker 00:
I think that before we get to the jury instructions, what we're really here talking about is NAFCAIR's Rule 50A motion that was denied.

[00:09:57] Speaker 02:
Can we presume that the jury followed the instructions?

[00:10:01] Speaker 00:
Yes, but my point, Your Honor, is that before the jury got the case, the district judge made an error of law.

[00:10:07] Speaker 00:
in submitting the case to the jury at all.

[00:10:11] Speaker 00:
And I do think that in this context specifically, the Supreme Court has instructed that juries are naturally going to experience a temptation to convert a negligence case and use that to impose respondeat superior liability that isn't permissible.

[00:10:26] Speaker 00:
And so I think it's really the function of the court.

[00:10:29] Speaker 04:
Could a jury have reasonably concluded that he was in need of medical monitoring?

[00:10:36] Speaker 00:
that this patient was?

[00:10:38] Speaker 00:
That she was in need of medical monitoring.

[00:10:39] Speaker 00:
Absolutely, Your Honor.

[00:10:40] Speaker 00:
She absolutely was in need of medical monitoring.

[00:10:42] Speaker 04:
Could a jury reasonably conclude that she was in need of medical monitoring by medical personnel?

[00:10:47] Speaker 00:
Ms.

[00:10:47] Speaker 00:
Hill clearly was, Your Honor.

[00:10:49] Speaker 00:
Absolutely.

[00:10:50] Speaker 00:
But that just goes to the point.

[00:10:51] Speaker 00:
She should not have been on medical watch.

[00:10:54] Speaker 00:
That's the point exactly.

[00:10:56] Speaker 00:
The clear written policy is she needed to go to an advanced medical provider or to the hospital.

[00:11:01] Speaker 00:
I think the best reading of the jury instructions

[00:11:04] Speaker 00:
that your honor quoted is that when we talk about people in need of advanced medical monitoring, we're talking about seriously ill people.

[00:11:13] Speaker 00:
We're not talking about people who are the kind of people where it is appropriate to send to medical watch.

[00:11:18] Speaker 00:
People who have the flu.

[00:11:19] Speaker 00:
people who have diarrhea, people who have mild intoxication, mild withdrawal symptoms.

[00:11:25] Speaker 00:
Those are the kinds of patients that were regularly sent to Medical Watch, but that's perfectly constitutional because putting somebody on Medical Watch who has those symptoms isn't facing a substantial risk of serious harm, this constitutional standard from Gordon.

[00:11:42] Speaker 00:
So that's what Medical Watch is for.

[00:11:44] Speaker 00:
It's not for people who have severe conditions, the clear written policy,

[00:11:49] Speaker 02:
is again, when in doubt, send those people out.

[00:12:01] Speaker 02:
ratio of punitive damages to actual damages that was awarded in this case?

[00:12:06] Speaker 00:
Absolutely, Your Honor.

[00:12:07] Speaker 00:
I appreciate the opportunity to do so.

[00:12:08] Speaker 00:
So I think there's a serious problem with the punitive damages, really, for three reasons.

[00:12:12] Speaker 00:
The first is that, I think, as we've discussed, plaintiff hasn't gotten over the line at all.

[00:12:17] Speaker 00:
The Monell claim was the only claim that could support punitive damages.

[00:12:20] Speaker 00:
But even if you find that plaintiffs sort of inched over the line of Monell by having this contested testimony from one witness about a single incident, the ratio here is really extraordinary on the punitive damages.

[00:12:34] Speaker 00:
This is the largest correctional healthcare verdict in the history of the United States as far as NAFCARE can tell that wasn't remitted by a court.

[00:12:44] Speaker 00:
So in order for this court to conclude,

[00:12:47] Speaker 00:
that you know the largest verdict ever in this space should be imposed I think you have to find that NAF under the constitutional standard and the federal common law standard as described by the Supreme Court of the United States you have to find that NAF care was the worst of the worst and I would just respectfully submit there is no way

[00:13:05] Speaker 00:
that we could get to that conclusion in a record where there's no testimony, that NAFCE decision makers knew anything about what was happening with respect to medical watch.

[00:13:15] Speaker 00:
They had no indication that there was a problem with how it was being implemented.

[00:13:19] Speaker 00:
There's no indication that the NAFCE policy for sending model.

[00:13:24] Speaker 02:
To back up, Nurse Gubitz testified that she told NAFCE they should have medical personnel on the weekend.

[00:13:33] Speaker 00:
Yes, Your Honor, but again, that was not the cause of Ms.

[00:13:36] Speaker 00:
Hill's death.

[00:13:37] Speaker 00:
The problem in her case, the reason why her death occurred was not because of a lack of adequate staffing.

[00:13:44] Speaker 00:
It occurred because the nurse made a mistaken judgment about what was causing her pain and thus made a decision contrary to NAFCAIR's policy to send her to medical watch as opposed to sending her to the hospital.

[00:13:57] Speaker 00:
Let me put it this way.

[00:13:58] Speaker 00:
If the policy that everyone agrees that NAFCAIR had, if that policy were followed,

[00:14:03] Speaker 00:
There would be no problem.

[00:14:04] Speaker 00:
Ms.

[00:14:05] Speaker 00:
Hill would be alive.

[00:14:06] Speaker 00:
That's a mistake.

[00:14:08] Speaker 00:
The jury made a determination.

[00:14:10] Speaker 02:
Can you go back to the damages?

[00:14:11] Speaker 02:
Yes.

[00:14:12] Speaker 02:
So what ratio does NAFCAR think is the appropriate ratio to use in this case?

[00:14:19] Speaker 00:
Well, so respectfully, I think in a case where the evidence just barely got over the line for Menell, and I really don't think there's ever been a case in this circuit that has found Menell liability on such a slim record, I think the appropriate punitive damages are zero.

[00:14:35] Speaker 00:
But the constitutional standard and the federal common law standard that the Supreme Court has set up in State Farm and in Exxon sets an absolute outer limit of one to one.

[00:14:45] Speaker 00:
The court in State Farm is talking about the fact that the national median is 0.65 to 1, and when we're talking about the Constitution, the Supreme Court says the median is going to be appropriate in most cases, and where compensatory damages are substantial, which $2.4 million clearly is, an upper limit of 1 to 1 will apply.

[00:15:06] Speaker 03:
The court said something very similar in Exxon as a matter of federal common law, and I think— It's also the 4.1, right, that's set forth in Planned Parenthood of Columbia, where it says if the behavior is not particularly egregious, a ratio of 4 to 1 serves as a good proxy for the limits of constitutionality.

[00:15:25] Speaker 00:
I think your honor, in that case, there was very different.

[00:15:28] Speaker 00:
The compensatory damages were very different.

[00:15:30] Speaker 00:
And this is reflected in the Supreme Court's case law.

[00:15:32] Speaker 00:
The Supreme Court says, look, if you have a case where compensatories are small, 100,000, 200,000, something like that, it may make sense to have a higher ratio.

[00:15:41] Speaker 00:
But where the compensatory damages are 2.4 million,

[00:15:44] Speaker 00:
I think the Supreme Court, again, both in State Farm and Exxon, both at the measure of constitutional law and federal common law, is suggesting that a one-to-one limit is really the upper limit for those cases where there is exceptional blameworthiness, which there isn't in this case.

[00:16:00] Speaker 03:
Well, in Hardiman v. Monsanto, which is a Ninth Circuit 2021 decision, a 3.8 ratio was upheld.

[00:16:07] Speaker 00:
So again, Your Honor, there are outlier verdicts.

[00:16:11] Speaker 00:
And I think what that just gets at is you have to look at the gore factors and determine, is NAFCARE the worst?

[00:16:19] Speaker 00:
Is it the most reprehensible that you could exceed the upper limit?

[00:16:22] Speaker 00:
And is this a case where the ratio

[00:16:25] Speaker 00:
where the nature of the compensatory damages can justify a heightened ratio.

[00:16:29] Speaker 00:
But this case clearly doesn't fall in that category, because you, again, have $2.4 million, very substantial compensatory damages.

[00:16:36] Speaker 00:
I'd like to reserve the rest of my time for rebuttal, if I might.

[00:16:39] Speaker 02:
All right.

[00:16:39] Speaker 02:
Thank you, counsel.

[00:16:41] Speaker 02:
Ms.

[00:16:41] Speaker 02:
Rahm.

[00:16:49] Speaker 01:
May it please the court.

[00:16:50] Speaker 01:
Megha Ran for plaintiff appellee, the estate of Cindy Lou Hill.

[00:16:54] Speaker 01:
Now, the jury found that Ms.

[00:16:56] Speaker 01:
Hill's excruciating and entirely preventable death was directly caused by NAFCARES custom of using medically untrained jail guards to monitor patients who needed medical monitoring.

[00:17:09] Speaker 01:
And Judge Wardlaw, as you noted, to override that unanimous verdict, NAFCARES must show that even after drawing every inference in the estate's favor and disregarding all evidence favorable to NAFCARES that the jury was not required to believe,

[00:17:22] Speaker 01:
the only reasonable conclusion is contrary to the jury's verdict, and it does not come close.

[00:17:28] Speaker 04:
I want to make sure I understand what the policy is that is alleged to be at issue here, because the phrasing used in the instructions is using medically untrained jail guards to monitor NAF care patients in need of medical monitoring by medical professionals.

[00:17:48] Speaker 04:
It seems to me that there's implicit in this

[00:17:52] Speaker 04:
phrase and how it was understood by the jury that it includes the concept that the person has been determined to be in need of medical monitoring by medical professionals.

[00:18:07] Speaker 04:
And if they had a policy where if you have determined that people are in need of medical monitoring by medical professionals and you send them to medical watch anyway,

[00:18:17] Speaker 04:
Well then, that would be Monell liability and significant punitive damages.

[00:18:24] Speaker 04:
But did you prove that they had a policy that persons determined to be in need of medical monitoring by medical professionals were sent to medical watch?

[00:18:35] Speaker 04:
And was that even the case here?

[00:18:38] Speaker 04:
So I wanna understand, is that what you're claiming the policy is or is it something else?

[00:18:43] Speaker 01:
So, Your Honor, I think there's a slight distinction there.

[00:18:46] Speaker 01:
So the jury found that people who needed medical monitoring by medical professionals were sent to this area of the jail where they didn't get it.

[00:18:52] Speaker 04:
People who objectively needed it but were not detected to have needed it.

[00:18:57] Speaker 01:
Not quite, Your Honor, just people who objectively needed medical monitoring by medical professionals.

[00:19:01] Speaker 04:
But what was the policy?

[00:19:02] Speaker 04:
Was there a policy to send people determined, or is it a policy?

[00:19:08] Speaker 04:
What is it?

[00:19:09] Speaker 01:
So, Your Honor, it could include people in both of those categories, people that nurses thought needed additional medical monitoring, or people that objectively needed it and did not receive it.

[00:19:19] Speaker 04:
Now, this is- Is it your view that policy would send everyone to medical watch?

[00:19:22] Speaker 04:
There's no triage?

[00:19:24] Speaker 01:
The policy was to send people who needed medical monitoring by medical professionals.

[00:19:28] Speaker 04:
Who had been determined to need that?

[00:19:30] Speaker 01:
Again, Your Honor, I think that that can be construed in two ways, right?

[00:19:34] Speaker 01:
Nurses decided people who needed medical monitoring by medical professionals were sent there.

[00:19:38] Speaker 01:
There is evidence to support that.

[00:19:40] Speaker 01:
The custom is also, though, that people who needed medical monitoring objectively, as you said, were sent to this area where they didn't get it.

[00:19:46] Speaker 01:
There is also evidence to support that.

[00:19:48] Speaker 01:
So let me start with what Nurse Gubitz herself said.

[00:19:51] Speaker 01:
And Nurse Gubitz said, you know,

[00:19:53] Speaker 01:
Everything she did, as it relates to Cindy Hill, was done pursuant to NAFCARE custom.

[00:19:58] Speaker 01:
And this court said, in both gravel at Blondin and in the unanimous decision issued just a couple of days ago in Nayaracha, that when an employee's belief

[00:20:06] Speaker 01:
that their conduct or someone else's conduct is consistent with a custom, that supports Monell liability.

[00:20:12] Speaker 01:
That is exactly what Nurse Gibbitt's testified here.

[00:20:14] Speaker 01:
Now, in addition to that, you know, my friend on the other side said, that's the only piece of evidence.

[00:20:19] Speaker 01:
That is far from true.

[00:20:21] Speaker 01:
After Nurse Gibbitt's made this decision, NAFCAR leadership, the Morbidity and Mortality Review Committee, looked at what Nurse Gibbitt's did.

[00:20:27] Speaker 01:
They decided.

[00:20:29] Speaker 04:
I still don't feel like I've gotten an answer to my question.

[00:20:33] Speaker 04:
Does the policy you're alleging

[00:20:35] Speaker 04:
and that you proved, and on which Menell liability rest, does it have as a component that there was a determination of need for medical monitoring by medical personnel?

[00:20:48] Speaker 04:
Yes or no?

[00:20:48] Speaker 04:
Is that an element?

[00:20:49] Speaker 01:
It does not.

[00:20:49] Speaker 01:
It does not.

[00:20:50] Speaker 04:
It does not, Your Honor.

[00:20:51] Speaker 04:
So what then is the policy?

[00:20:53] Speaker 04:
If determination of medical necessity plays no role in the policy, what is the policy?

[00:20:58] Speaker 04:
The policy is to send people when what?

[00:21:01] Speaker 01:
when they need medical monitoring by medical professionals.

[00:21:04] Speaker 04:
Now, Your Honor, I think what you're saying is- But you just said that a policy has to be applied.

[00:21:10] Speaker 04:
A person looks at the policy, makes a decision based on the policy.

[00:21:13] Speaker 04:
You're now telling me the policy doesn't include determination, but if it doesn't, then what is the policy to do what based on what determination?

[00:21:22] Speaker 04:
You have to make some decision with the policy.

[00:21:25] Speaker 01:
Your honor, what I'm saying is that whether or not the specific nurses said this person is at substantial risk of harm or not, people who needed medical monitoring, objectively speaking, were sent to this area of the jail, and that is a problem.

[00:21:38] Speaker 01:
Now, the 14th Amendment, to prove a 14th Amendment violation about medical needs, there is no knowledge component.

[00:21:46] Speaker 01:
You know, Nurse Gubitz did not have to know anything.

[00:21:48] Speaker 01:
Now, of course, there is evidence that she did.

[00:21:50] Speaker 01:
She specifically testified.

[00:21:51] Speaker 01:
She knew Ms.

[00:21:52] Speaker 01:
Hildes was in distress.

[00:21:52] Speaker 02:
Also, her notes, her contemporaneous notes says,

[00:21:56] Speaker 02:
Patient placed on 30-minute medical watch for severe abdominal pain and having to be dragged to door by cellmate to be assessed.

[00:22:06] Speaker 02:
Patient refused to get up to walk through the door, screaming and repeating, I'm sick, over and over.

[00:22:11] Speaker 02:
CO Terosian notified.

[00:22:13] Speaker 02:
And then she testifies.

[00:22:15] Speaker 02:
that was pursuant to the policy of NAVCARE.

[00:22:18] Speaker 01:
Absolutely, Your Honor.

[00:22:19] Speaker 01:
She wrote that in her contemporaneous medical notes.

[00:22:22] Speaker 01:
She also admitted at trial that she knew Ms.

[00:22:24] Speaker 01:
Hill was in distress.

[00:22:25] Speaker 01:
That's at 1201.

[00:22:26] Speaker 01:
That she knew Ms.

[00:22:26] Speaker 01:
Hill was not faking or exaggerating.

[00:22:29] Speaker 01:
That's at 1147.

[00:22:30] Speaker 01:
And then she sent that person in that state to this medical watch area.

[00:22:34] Speaker 02:
And when NAFTA cares... Was there testimony about the purpose of sending someone?

[00:22:40] Speaker 02:
That's a determination, by the way, the purpose of determining someone needs to go to medical watch and sending them there.

[00:22:46] Speaker 02:
What was the purpose of that?

[00:22:49] Speaker 01:
Well, Your Honor, NAFCARES own expert, expert Joshua, testified that medical watch was used for those people in between that didn't know, you know, that the nurses didn't know whether they needed to be sent out to the emergency room or not, and additional time was needed to see if they declared their symptoms.

[00:23:04] Speaker 01:
So that's NAFCARE's own expert explaining that medical watch was used for these people who were just shy of needing emergency room care to see how they declared their symptoms.

[00:23:14] Speaker 01:
Now, people who are declaring their symptoms who may need to go to the emergency room, certainly a reasonable jury could conclude that those people needed medical monitoring by medical professionals and yet were sent to a place in the jail where they did not receive it.

[00:23:26] Speaker 01:
And expert Roscoe testified to the same thing.

[00:23:29] Speaker 01:
She said it was a regular practice to send acutely ill inmates

[00:23:33] Speaker 01:
over to the security guards for this medical watch practice.

[00:23:37] Speaker 01:
And, you know, my friend on the other side says that was recycling Nurse Gubitz's testimony.

[00:23:41] Speaker 01:
That's not so.

[00:23:42] Speaker 01:
Expert Roscoe looked at a number of depositions, including from NAFTA care officials, people at the jail, policies and procedures of both the jail and NAFTA care.

[00:23:51] Speaker 04:
The policy of a proper subject for expert testimony.

[00:23:56] Speaker 01:
Your Honor, she reviewed a number of things, depositions and records.

[00:24:00] Speaker 04:
Does that require expertise beyond the ordinary knowledge of jurors?

[00:24:06] Speaker 01:
Your Honor, she was able to provide an eagle's eye view about what was happening at this facility, and NAFTA did not object to that testimony below.

[00:24:12] Speaker 04:
Well, but if it's just packaging up inferences from the underlying testimony, and it's not really expertise, it doesn't really add anything.

[00:24:21] Speaker 04:
Well, Your Honor, NAFTA made zero objection below, and once testimony... It's still in the record, but it doesn't add anything if it's just her opinion based on inferences that anyone else can draw that are not really a fit subject for expert testimony.

[00:24:37] Speaker 04:
Why don't you talk about the underlying evidence, is my point.

[00:24:40] Speaker 02:
Absolutely, Your Honor.

[00:24:40] Speaker 02:
And I think that's a fair point, because I mean, objectively, I looked at this case and thought, they sent her to medical watch.

[00:24:47] Speaker 02:
Why wasn't anybody who was involved in medicine watching her?

[00:24:50] Speaker 02:
What is medical watch?

[00:24:52] Speaker 02:
Absolutely.

[00:24:53] Speaker 02:
I did this informal policy of sending people to medical watch.

[00:24:57] Speaker 02:
And you have guards who are totally untrained in medicine watching.

[00:25:03] Speaker 02:
So to me, it's an oxymoron.

[00:25:05] Speaker 02:
I don't even get it.

[00:25:06] Speaker 01:
Your honor, I think that's correct.

[00:25:07] Speaker 01:
You don't need an expert to testify to this.

[00:25:09] Speaker 01:
It's obvious from the record, but an expert did testify to it.

[00:25:12] Speaker 01:
And in addition to that, your honor, NAFTA's own morbidity and mortality review committee looked at what Nurse Goebbitz did in this case.

[00:25:20] Speaker 01:
They saw that note she wrote about mishel screaming and in severe abdominal pain.

[00:25:23] Speaker 01:
They saw that she then sent her to medical watch, and they said zero changes were required to policy, that they did not need to discipline Nurse Gubitz.

[00:25:31] Speaker 01:
And a jury could look at that and say, hey, this shows that this custom did exist at NAFCE, if they're not going to discipline or make any changes after they saw someone act pursuant to that policy.

[00:25:42] Speaker 04:
Do you dispute that there are not other incidents in the trial record of similar violations of constitutional rights?

[00:25:51] Speaker 01:
So Your Honor, there were no specific prior incidents, right?

[00:25:53] Speaker 01:
No John Doe or Jane Smith that we pointed to, but there absolutely were evidence that this was a widespread practice, that this has happened before.

[00:26:01] Speaker 01:
Nurse Gubitz's testimony that she acted pursuant to custom supports that inference.

[00:26:05] Speaker 01:
The post-death approval by NAFCE supports that inference.

[00:26:08] Speaker 03:
But there's no proof in the record that anyone else died, like Miss Hill did, after being sent to medical watch.

[00:26:15] Speaker 01:
Again, Your Honor, it's not in the record, and there's all sorts of reasons not to point to specific prior instances.

[00:26:21] Speaker 01:
You need to access medical records of other people, do a bunch of mini-trials.

[00:26:24] Speaker 03:
I understand, but is there even in the record any evidence that anybody was permanently injured after being sent to medical watch?

[00:26:32] Speaker 01:
Your honor, what we have to show was that there was a widespread custom of sending people in need of medical monitoring to this area.

[00:26:38] Speaker 01:
And testimony, the medical watch form, expert testimony, all pointed to that.

[00:26:44] Speaker 01:
And this court, you know, in a series of cases spanning decades,

[00:26:47] Speaker 01:
has said there is enough evidence for a Monell custom when you have people testifying to that effect.

[00:26:54] Speaker 01:
So, for instance, in Navarro, there was zero prior incidents entered into evidence of the contested practice, but this court said that there was sufficient

[00:27:02] Speaker 01:
that was the department's custom, an employee of that department.

[00:27:11] Speaker 01:
And then again, in Wallace, zero prior incidents of harm, you know, naming specific prior people.

[00:27:17] Speaker 01:
There was none of that in the record.

[00:27:18] Speaker 01:
And again, there was none of that in the record.

[00:27:19] Speaker 01:
And again, there was none of that in the record.

[00:27:20] Speaker 01:
Three officers said, in that case, the practice was not unusual, it happened fairly often, and that was enough for Monell liability.

[00:27:28] Speaker 01:
And again, in Nahad, and again in Nayarecha, a case decided by a unanimous court just a couple of days ago.

[00:27:34] Speaker 01:
So over and over, this court has said, what you need to show is evidence of a widespread practice.

[00:27:40] Speaker 01:
Certainly that can be done by pointing to specific prior incidents, because that would allow a jury to infer the existence of a custom from the fact that it's happened before.

[00:27:47] Speaker 01:
But also, you know, you can show it with much more direct evidence, evidence of employees of NAFCARE saying, this was a custom, I followed it, evidence by jail guards who described the custom and said that the custom existed, evidence of two different experts, including one of NAFCARE's own experts, describing the practice, and then there's documentary evidence in the form of the medical watch form, which put this practice into effect.

[00:28:13] Speaker 01:
That form listed people, listed symptoms, like worsening chest pain,

[00:28:17] Speaker 04:
So if the practice is sending people who are objectively in need of medical monitoring by medical professionals and failing to detect basically that that's what it is and that's the practice and that's been done regularly, is that practice itself unconstitutional or do you need to show that it produced

[00:28:45] Speaker 04:
a pattern of unconstitutional violations.

[00:28:49] Speaker 01:
The custom was itself unconstitutional.

[00:28:51] Speaker 01:
As the district court found, the custom violated the Constitution with certainty because it led people who needed medical care to be denied it.

[00:29:00] Speaker 01:
And Your Honor, just to your earlier line of questioning, I think as... But if there's no examples of other people in the record,

[00:29:09] Speaker 04:
that suffered this kind of an outcome, how is it that the policy is per se unconstitutional?

[00:29:17] Speaker 01:
What the 14th Amendment says is reasonable measures have to be taken to a substantial risk of harm.

[00:29:24] Speaker 01:
And so certainly, where there is substantial evidence that there was this widespread practice sending people at substantial risk of harm to a place where they were not getting any sort of medical monitoring, that custom does violate directly the 14th Amendment.

[00:29:39] Speaker 01:
And Your Honors, if I may turn now to punitive damages, you know, the jury looked at this evidence and they concluded that NAFTA had this custom that caused a woman's death and they awarded an amount of punitive damages necessary to punish and deter that conduct.

[00:29:56] Speaker 02:
So going along with what you just said, that you just have to show this creates a substantial risk of harm, we have

[00:30:06] Speaker 02:
I guess I'm going to quote Judge Gilman.

[00:30:09] Speaker 02:
This, this is kind of a situation where it's an accident waiting to happen.

[00:30:13] Speaker 02:
Like you're creating the jury found they created the risk.

[00:30:16] Speaker 02:
Doesn't mean that other people have to die to prove the risk.

[00:30:22] Speaker 02:
You proved the risk because someone actually died, but okay.

[00:30:28] Speaker 02:
So that was, I would say that's pretty reprehensible under the proper tests.

[00:30:34] Speaker 02:
But the ratio of punitives to compensation in this case seems very high.

[00:30:43] Speaker 02:
Now maybe that was the jury being really angry.

[00:30:46] Speaker 02:
about this policy?

[00:30:48] Speaker 02:
I don't know, but I mean, what's your defense of that ratio?

[00:30:52] Speaker 01:
Sure, Your Honor.

[00:30:53] Speaker 01:
You know, I don't think it's high at all in light of this reprehensible conduct.

[00:30:57] Speaker 01:
The Supreme Court specifically said in State Farm that single digit multipliers, this is a single digit multiplier, that those are more likely to comport with due process than the much higher ratios the Supreme Court struck down, right?

[00:31:07] Speaker 01:
500 to 1, 145 to 1 ratios that were struck down.

[00:31:11] Speaker 01:
And then in State Farm itself, on remand, the Utah Supreme Court imposed a 9 to 1 ratio, and it said it was doing so in unwavering fidelity to that decision, and the Supreme Court denied cert.

[00:31:23] Speaker 01:
And that was a case involving a million dollars in compensatory damages.

[00:31:27] Speaker 01:
for 18 months of emotional distress.

[00:31:29] Speaker 01:
So here, where you have much more serious harm than that, a lower ratio is certainly appropriate.

[00:31:35] Speaker 01:
And that follows from this court's case law as well.

[00:31:39] Speaker 01:
As Judge Gilman noted, in the Hardiman case, that was a nearly 4 to 1 ratio in a case involving $5 million in compensatory damages.

[00:31:47] Speaker 01:
And where the physical harm, while serious, it was cancer,

[00:31:50] Speaker 01:
did not cause permanent injury.

[00:31:52] Speaker 01:
The court specifically noted the person was in remission, that it wasn't permanent harm.

[00:31:56] Speaker 01:
And so in a case like that, where there was more compensatory damages than in this case,

[00:32:01] Speaker 01:
and less physical harm, a four to one ratio is appropriate.

[00:32:04] Speaker 01:
It certainly follows from that that an 8.7 ratio to one is appropriate in this case.

[00:32:11] Speaker 01:
And in similar.

[00:32:11] Speaker 03:
But then under the standard of Planned Parenthood of Columbia, the 2005 Ninth Circuit case, don't you have to show that it was particularly egregious conduct to get a ratio beyond 4.4 to one?

[00:32:25] Speaker 01:
Your Honor, the conduct here was reprehensible, and in assessing reprehensibility, this Court has to accept... But it's not enough to be reprehensible.

[00:32:33] Speaker 03:
I mean, Monsanto said the conduct of Monsanto was reprehensible, but not particularly egregious.

[00:32:40] Speaker 03:
And therefore, to prove the District Court's 3.8 to 1, to get beyond the 4 to 1, let's say, ratio of constitutionality, you've got to show particularly egregious conduct.

[00:32:51] Speaker 03:
What is particularly egregious here?

[00:32:53] Speaker 01:
Your honor, Miss Hill was a vulnerable person who was reliant on NAF care to provide her care.

[00:33:00] Speaker 01:
Not like you and me, we can go to the doctor.

[00:33:02] Speaker 01:
She was completely at the mercy of this business.

[00:33:05] Speaker 01:
whose entire purpose was to provide care for people.

[00:33:07] Speaker 01:
And instead, they sent people who needed medical monitoring to a place where they absolutely would not get any.

[00:33:13] Speaker 01:
And that custom caused a woman to die an excruciating, slow death, a death where she would have become confused and scared as her organs gave out.

[00:33:24] Speaker 01:
That's what Dr. Schubel testified.

[00:33:26] Speaker 03:
Wasn't this a sort of out of the blue cause of death?

[00:33:29] Speaker 03:
I mean, she was in there for heroin withdrawal.

[00:33:32] Speaker 03:
And she dies of a perforated intestine.

[00:33:35] Speaker 03:
I mean, that's a very atypical and nobody, it was sort of out of the blue and it never, this kind of thing had never happened before.

[00:33:41] Speaker 03:
So what makes this the worst of the worst?

[00:33:44] Speaker 01:
Your honor, this was a custom.

[00:33:46] Speaker 01:
that sent all people, not just people with conditions like this, but people who were at substantial risk of harm to this area of the jail.

[00:33:54] Speaker 01:
All people?

[00:33:54] Speaker 04:
I mean, you just said all people.

[00:33:56] Speaker 04:
It didn't send all people.

[00:33:57] Speaker 04:
There's a lot of evidence in the record that they were triaging people.

[00:34:01] Speaker 04:
Again, I go back.

[00:34:02] Speaker 04:
I don't understand what you're claiming the policy is at the triage stage.

[00:34:07] Speaker 04:
And what is the policy?

[00:34:09] Speaker 04:
Who gets shifted into this route?

[00:34:11] Speaker 04:
You just seem to be, it's a policy of making mistakes.

[00:34:14] Speaker 01:
Your Honor, it's a policy of sending people who need medical monitoring to a place where they're not getting it.

[00:34:19] Speaker 01:
That's what the jury found.

[00:34:20] Speaker 01:
That's the custom that NAFCA never objected to putting into the jury instructions.

[00:34:24] Speaker 01:
And that custom caused severe, irreparable harm in this case, and it has a risk of repetition.

[00:34:31] Speaker 01:
That's also what makes this so egregious.

[00:34:33] Speaker 01:
You know, the district court specifically found that there was a risk of repetition that's at 1 ER 58 to 59.

[00:34:38] Speaker 01:
And in assessing reprehensibility, we have to accept, this court must accept underlying facts found by the district court unless they're clearly erroneous.

[00:34:46] Speaker 01:
The district court found a risk of repetition.

[00:34:48] Speaker 01:
It found Ms.

[00:34:49] Speaker 01:
Hill vulnerable.

[00:34:50] Speaker 01:
It found that NAFTA acted in reckless disregard to the safety of people who needed medical care.

[00:34:55] Speaker 01:
Now that's three out of the five aggravating factors in reprehensibility.

[00:35:03] Speaker 04:
ExxonMobil's one-to-one federal common law rule in the maritime context applies in the 1983 context.

[00:35:11] Speaker 04:
Is any circuit waiting one way or the other on that?

[00:35:13] Speaker 01:
No, Your Honor.

[00:35:14] Speaker 01:
So to take that route would be breaking completely new ground, and this Court should not take that completely unwarranted step.

[00:35:22] Speaker 01:
And Your Honor, I would also just- Well, wait.

[00:35:24] Speaker 03:
The fact that no one's ever done it, why does that make it completely unwarranted?

[00:35:27] Speaker 03:
It's just an open quest.

[00:35:29] Speaker 01:
Sure, Your Honor, but here there's absolutely no reason to go there.

[00:35:32] Speaker 01:
Exxon was clear that it was about maritime law.

[00:35:34] Speaker 01:
And this court in Mendez said that any attempt to apply general federal common law rules for punitive damages in the constitutional tort context has to adapt to the purpose of 1983, when it's about deterrence and retribution.

[00:35:48] Speaker 01:
And imposing a one-to-one ratio in a case about 1983 torts would not further deterrence or retribution.

[00:35:55] Speaker 01:
It would basically be saying if you

[00:35:57] Speaker 01:
have a custom that kills a poor person, then there's going to be less deterrence, right?

[00:36:02] Speaker 01:
That is not what 1983 is about.

[00:36:04] Speaker 01:
But Your Honors, I also want to go back to this idea that this is some sort of completely out there punitive award.

[00:36:12] Speaker 01:
When practices cause death or substantial harm, courts have repeatedly approved, after doing constitutional due process review, have consistently approved multi-million dollar punitive awards.

[00:36:24] Speaker 01:
In Hardiman, it was a 20 million punitive award, in Moreland,

[00:36:28] Speaker 01:
Concerning the death of a prisoner, it was nearly 30 million impunitives.

[00:36:31] Speaker 01:
In Bokin, it was 50 million for cancer.

[00:36:34] Speaker 01:
In Union Pacific, it was 25 million for severe injuries.

[00:36:37] Speaker 01:
We have a range of these cases in our briefing.

[00:36:40] Speaker 01:
And to look to those cases as comparable penalties is, first of all, inconsistent with this court's case law, because the gore third prong doesn't look to comparable awards.

[00:36:52] Speaker 01:
It looks to comparable statutory penalties.

[00:36:55] Speaker 01:
But if this court were to look to comparable awards, there are a host of multi-million dollar awards in cases where a corporation, an entity causes either death or severe injury.

[00:37:08] Speaker 01:
And so this would be not an outlier, it would be a less than nine to one ratio, so within the

[00:37:16] Speaker 01:
kind of well-worn path of ratios approved by this court and the Supreme Court in a case of extreme reprehensibility.

[00:37:24] Speaker 01:
Your Honor, if there are no further questions, we ask this court to affirm.

[00:37:27] Speaker 01:
Thank you.

[00:37:28] Speaker 02:
Thank you, counsel.

[00:37:30] Speaker 02:
All right, Mr. Houston.

[00:37:34] Speaker 00:
Thank you, your honor.

[00:37:34] Speaker 00:
Much of my friends presentation is about proving that Cindy Lou Hill should not have been on medical watch.

[00:37:42] Speaker 00:
That is right.

[00:37:43] Speaker 00:
That was why the jury found negligence and we have accepted and paid that verdict.

[00:37:48] Speaker 00:
We're not here contesting it.

[00:37:49] Speaker 00:
Menell is about something different.

[00:37:51] Speaker 00:
It's about a widespread and persistent, to use the Supreme Court's phrase, custom.

[00:37:56] Speaker 00:
And to do that, as I think Judge Collins's questions illustrate, you must have evidence of at least other incidents where this occurred.

[00:38:05] Speaker 00:
Judge Gilman, you are exactly right.

[00:38:07] Speaker 00:
Not only did no one else die in NAFCARES facility that this record suggests, no one was injured.

[00:38:13] Speaker 00:
There's no testimony that there was ever a near miss.

[00:38:16] Speaker 00:
There's no evidence that anyone was ever sent to the medical watch floor who was seriously ill.

[00:38:24] Speaker 00:
So it's not even the case that NAFCAR subjected anyone else to a risk of having their constitutional rights violated.

[00:38:32] Speaker 00:
And Gordon holds that you cannot find a Monell pattern or custom based on a single incident.

[00:38:39] Speaker 00:
There is no test, my friend refers to experts, the expert testimony, they're doing nothing but reciting the, from reviewing the depositions of the fact witnesses, the people who worked at the facility, and could testify what actually happened there.

[00:38:54] Speaker 00:
But there's no testimony from any guard, from any nurse, from any employee, that any seriously ill person, besides Ms.

[00:39:01] Speaker 00:
Hill,

[00:39:02] Speaker 00:
was ever sent to medical watch.

[00:39:04] Speaker 00:
Contrast the Nayarecha case that my friend refers to.

[00:39:07] Speaker 00:
The court found Minnell liability based on 26 separate incidents of constitutional violations performed by at least six different officers.

[00:39:16] Speaker 00:
That's how you prove a persistent and widespread custom.

[00:39:21] Speaker 00:
Judge Wardlaw, medical watch was for people who were mildly ill, people who had the flu, people who had diarrhea,

[00:39:28] Speaker 00:
not concerning symptoms, the kind of stuff that if you took it, you called your doctor.

[00:39:33] Speaker 02:
Well, I did five days of the week, it was NAPF CARES policy to have medically trained people conducting the medical watch, but over the weekend, they didn't.

[00:39:42] Speaker 00:
There's no, Your Honor, respectfully, that's just not quite what happened.

[00:39:46] Speaker 02:
That's what Nurse Gubitz did.

[00:39:47] Speaker 00:
No, no, no.

[00:39:48] Speaker 00:
No, she did, respectfully, that's not right, Your Honor.

[00:39:50] Speaker 00:
There's no difference in how medical watch was conducted.

[00:39:54] Speaker 00:
The policy was always the same, mildly ill people, we can put them on medical watch where they're going to get extra monitoring as compared to the general population.

[00:40:02] Speaker 00:
Seriously ill people, we send them out of the hospital.

[00:40:05] Speaker 00:
That was the policy.

[00:40:06] Speaker 00:
That was followed on weekdays and on weekends.

[00:40:09] Speaker 00:
There's no difference about that.

[00:40:12] Speaker 00:
These, it's also important to note, these people, when they went to medical watch, and Ms.

[00:40:17] Speaker 00:
Hill should not have been there, but people on medical watch, they were monitored.

[00:40:21] Speaker 02:
But people without medical training, how could they determine whether it was mild or serious?

[00:40:26] Speaker 00:
So two points, first of all, Your Honor, the determination whether it's mild or serious, that's being made by a nurse.

[00:40:31] Speaker 00:
This nurse just made a wrong judgment, but there's no evidence that it had ever.

[00:40:35] Speaker 02:
That was the predicate thing.

[00:40:37] Speaker 02:
She said she was suffering from abdominal pain, and that's why she put her on,

[00:40:42] Speaker 02:
medical watch and then she then the Miss Hill was looked at at 3 p.m.

[00:40:48] Speaker 02:
that Saturday but not again except for by these untrained guards.

[00:40:52] Speaker 02:
So how could the untrained guards make a determination of whether she should be sent to the ER?

[00:40:58] Speaker 00:
Your Honor, what that shows is that the nurse made a critical, awful mistake.

[00:41:04] Speaker 00:
And we accept that.

[00:41:05] Speaker 00:
We're not here contesting it.

[00:41:07] Speaker 00:
But there's no incidence that it had ever happened again in any other case.

[00:41:11] Speaker 00:
And so you simply can't find a persistent and widespread practice.

[00:41:16] Speaker 00:
Even on medical watch, people were monitored by nurses, not by guards.

[00:41:20] Speaker 00:
Nurses checked on patients every shift, plus additional checks in accordance with their particular.

[00:41:26] Speaker 02:
But not on the weekends.

[00:41:27] Speaker 00:
No, respectfully, Your Honor, that's just not correct.

[00:41:29] Speaker 02:
But Gubitz testified to.

[00:41:30] Speaker 00:
No.

[00:41:31] Speaker 02:
I don't want to argue with you about that.

[00:41:32] Speaker 02:
The record's the record on that.

[00:41:34] Speaker 00:
I think the record demonstrates that there was no different, that Nurse Gubitz was concerned about staffing, but there is not a question that nurses monitored patients on medical watch at least once a shift.

[00:41:48] Speaker 00:
Nurses, not guards.

[00:41:51] Speaker 02:
All right.

[00:41:53] Speaker 02:
Thank you.

[00:41:53] Speaker 02:
Thank you.

[00:41:55] Speaker 02:
You're over your time.