[00:00:00] Speaker 02:
And the next case up is Brothers versus Johnson, docket 23-6127.

[00:00:15] Speaker 02:
Good morning still, I guess, counsel.

[00:00:19] Speaker 02:
Good morning, Your Honor.

[00:00:20] Speaker 02:
Please proceed when you're ready.

[00:00:21] Speaker 02:
Thank you.

[00:00:23] Speaker 01:
Jeffrey Taber on behalf of the plaintiff appellant, Equalo Brothers.

[00:00:28] Speaker 01:
Presently I'd like to reserve three minutes of my time.

[00:00:33] Speaker 01:
This is an appeal from a jury verdict rendered in the Western District of Oklahoma last August.

[00:00:40] Speaker 01:
This is a 1983 wrongful death case in the Oklahoma County

[00:00:51] Speaker 01:
today, I'm going to start with perhaps what is the simplest or cleanest issue, which is our post-trial attempt to contact the jury.

[00:01:04] Speaker 03:
Well, you go ahead, but I'd rather talk about why you never filed a Rule 50 motion, why you haven't argued plain error, and why you didn't file a reply brief.

[00:01:19] Speaker 03:
Because it seems to me,

[00:01:21] Speaker 03:
that you might not have any issues left.

[00:01:26] Speaker 01:
We did not seek 50A or be relieved.

[00:01:30] Speaker 01:
That's correct, Your Honor, and I would agree that... Why not?

[00:01:35] Speaker 01:
My co-counsel and I made a decision at a time not to.

[00:01:38] Speaker 01:
All right.

[00:01:52] Speaker 01:
in a court with prior case law from this court.

[00:01:59] Speaker 01:
Back to our jury issue, the Western District, like many districts, has a rule, a standing rule prohibiting post polling by the parties privately.

[00:02:12] Speaker 01:
Local rule allows motion practice to permit contact.

[00:02:17] Speaker 01:
We filed that the week after the verdict

[00:02:24] Speaker 01:
denied that relief.

[00:02:26] Speaker 02:
What's the standard?

[00:02:27] Speaker 02:
Abuse of discretion?

[00:02:29] Speaker 01:
Yes.

[00:02:29] Speaker 02:
Okay, so that's your burden is to show an abuse.

[00:02:32] Speaker 02:
It is.

[00:02:33] Speaker 02:
And the court abused its discretion, how?

[00:02:35] Speaker 01:
The court abuses discretion because one, the jury was not polled in court.

[00:02:41] Speaker 01:
They were dismissed immediately that evening.

[00:02:44] Speaker 03:
Was there a motion made to polled the jury or a request made?

[00:02:49] Speaker 01:
In court that evening?

[00:02:50] Speaker 01:
No, sir.

[00:02:51] Speaker 01:
All right.

[00:02:56] Speaker 01:
To speak plainly, I don't think we really had an opportunity to.

[00:02:59] Speaker 01:
It was done very quick.

[00:03:00] Speaker 03:
You always have an opportunity to stand up and say, I want the jury polled.

[00:03:05] Speaker 03:
Always.

[00:03:06] Speaker 03:
You didn't do it.

[00:03:07] Speaker 01:
We did not do it that evening.

[00:03:09] Speaker 01:
We did it the following week via motion.

[00:03:16] Speaker 00:
We believe that the fact is... Your motion didn't cite any reason that's anticipated for permitting

[00:03:24] Speaker 00:
contact with the juries under 606B.

[00:03:28] Speaker 00:
It basically just said, we want to talk to the jury about what they discussed, what items they focused on, and what they thought about deliberations, which of course is everything that you can't request under 606B.

[00:03:42] Speaker 00:
And now you've changed that approach on appeal and you're asking for other reasons, which of course those reasons are waived, but they also don't seem to

[00:03:53] Speaker 01:
apply with the limited reasons that you can seek to talk to a jury.

[00:04:27] Speaker 01:
was a lot in there that could have confused these folks.

[00:04:29] Speaker 00:
Certainly.

[00:04:30] Speaker 00:
And that's the argument that you make when you talk about whether there was error with the instructions and whether there was prejudice.

[00:04:36] Speaker 00:
You have to decide.

[00:04:39] Speaker 00:
Could that have impacted the jury?

[00:04:41] Speaker 00:
Did it?

[00:04:42] Speaker 00:
But you don't get to ask the jury, did it impact your decision?

[00:04:46] Speaker 00:
That's not how it works.

[00:04:49] Speaker 01:
I understand your honor, but those things can still

[00:04:56] Speaker 01:
But you didn't ask for them to be pulled.

[00:05:00] Speaker 00:
So that was waived.

[00:05:02] Speaker 01:
We believe we preserved it by filing the motion immediately after the trial pursuant to local rule.

[00:05:09] Speaker 01:
And the court took our motion up, which was unopposed by the appellee.

[00:05:15] Speaker 01:
And we believe we preserved it in that manner through motion practice.

[00:05:18] Speaker 01:
We did that immediately, I believe, the Monday after the verdict was rendered Friday evening.

[00:05:29] Speaker 01:
why we want this, why we want to talk to this jury other than the reasons I've stated on the jury instruction issues on appeal.

[00:05:40] Speaker 01:
This is a police case.

[00:05:41] Speaker 01:
This is the death of a black man in a jail.

[00:05:44] Speaker 01:
We lived in heightened politicized times, particularly in matters as to police.

[00:05:51] Speaker 01:
I just think these cases present unique opportunities for heightened emotion.

[00:05:56] Speaker 01:
where juries consulting matters outside of what they're supposed to in the instructions and in the trial record.

[00:06:03] Speaker 01:
I just think these cases present a lot of room for extraneous activity and bias on behalf of the jury.

[00:06:13] Speaker 01:
We don't know that sitting here.

[00:06:15] Speaker 01:
We weren't able to hold them.

[00:06:17] Speaker 01:
I couldn't talk to them.

[00:06:19] Speaker 01:
I saw and I understand there is case law from

[00:06:25] Speaker 01:
the juror who we had perhaps potentially pegged as the foreperson came out crying from deliberation.

[00:06:36] Speaker 01:
I would want to know whether something improper happened there.

[00:06:41] Speaker 01:
And again, that fact in and of itself, this court has recognized, does not entirely augment the standard rule we have in the Western District.

[00:06:51] Speaker 01:
But again, taking the totality of those factors,

[00:06:55] Speaker 01:
this family believes it's entitled to at least just know something more as to why a jury found what they did for the death of their brother in that jail.

[00:07:05] Speaker 03:
Did you file any kind of a malpractice claim against the physicians that were involved?

[00:07:11] Speaker 01:
We did, Your Honor.

[00:07:12] Speaker 01:
We sued Turnkey Health Clinics, which is the medical entity that the county jail contracts with, and we sued

[00:07:23] Speaker 01:
What about the psychiatrist?

[00:07:28] Speaker 01:
What about the psychiatrist?

[00:07:35] Speaker 03:
He was supposedly the medical doctor on duty.

[00:07:42] Speaker 01:
He supposedly was and as he testified at trial in his video testimony, he only did a very brief mental evaluation

[00:07:53] Speaker 01:
Dr. King and the nurse staff were the hoops on the ground, so to speak, in terms of the physical injuries and the fractured cervical spine that killed Mr. Clinton.

[00:08:04] Speaker 01:
So we sued Dr. King and turned those claims were resolved with all of those parties before trial.

[00:08:17] Speaker 01:
argument on the jury polling issue.

[00:08:22] Speaker 01:
As I noted, I believe part of that overlaps into our jury instruction issue.

[00:08:28] Speaker 03:
Well, you're objecting to two instructions, 18 and 23.

[00:08:31] Speaker 03:
Yes, sir.

[00:08:36] Speaker 03:
It appears that you only objected to one sentence during the jury instruction conference, and now you've broadened that considerably.

[00:08:48] Speaker 03:
How do you square that with the rules?

[00:08:53] Speaker 01:
Two parts, Your Honor.

[00:08:54] Speaker 01:
The conversation we had in the actual conference went into more depth than the conversation we had on the record after the instructions were formulated the following day.

[00:09:06] Speaker 01:
I understand that we objected to the sentence regarding negligence or inadvertence.

[00:09:11] Speaker 03:
And what do we do with that?

[00:09:12] Speaker 03:
Do we just reach out and take whatever you said earlier and not on the record?

[00:09:18] Speaker 03:
Were we bound by the record that was made on the jury instruction objections?

[00:09:25] Speaker 01:
Two points on that.

[00:09:26] Speaker 01:
One, you have to go off of what we objected to in terms of reviewing the totality of those instructions de novo.

[00:09:38] Speaker 01:
But this court has also recognized even instructions that are not objected to at all.

[00:09:46] Speaker 01:
I believe under plain error.

[00:09:48] Speaker 03:
But you haven't made a plain error argument.

[00:09:55] Speaker 01:
That is correct, Your Honor, because we've objected properly to 18 and 23 there that morning of trial when they were presented by the court.

[00:10:06] Speaker 01:
And the reason is the negligence or inadvertence qualifier, if you will, in

[00:10:21] Speaker 01:
a jail case that was tried to the jury.

[00:10:25] Speaker 01:
Most of the time what you see is the underlying constitutional violation usually carries an individual actor who's named.

[00:10:34] Speaker 01:
So oftentimes you see in a shooting death case, you would name the individual responsible individually and if you bring the Monella claim, those individual claims serve as your underlying constitutional

[00:10:48] Speaker 01:
With what was resolved for the trial, the only thing that we tried was the Modell Plan, and specifically within this court's framework of the systemic failure analysis.

[00:10:59] Speaker 03:
Well, on instruction 23, you objected only to the addition of or inadvertence.

[00:11:07] Speaker 03:
And on instruction 18,

[00:11:11] Speaker 03:
You only objected to one sentence stating that negligence in medical care does not constitute deliberate indifference.

[00:11:19] Speaker 03:
Now your argument now seems to be much, much bigger than and more far ranging than made in court, in that court.

[00:11:31] Speaker 01:
You made it in this court.

[00:11:37] Speaker 01:
brief or exhaust every reason why that language was problematic.

[00:11:42] Speaker 01:
There that morning at the court, it's that language that is the problem.

[00:11:47] Speaker 01:
And the reason is, and again, I don't think we had to say that morning in court, this is a problem because of the nature of our systemic failure claim.

[00:11:56] Speaker 01:
There's no individual underlying claims.

[00:11:58] Speaker 03:
Well, your argument in the district court was that no jury instruction from other Western District of Oklahoma cases

[00:12:07] Speaker 03:
contain the same language, namely, inadvertence.

[00:12:12] Speaker 03:
Now, we're way past that now.

[00:12:18] Speaker 03:
And I just don't know how we can come to grip with these various arguments that are being raised, really, for the first time.

[00:12:27] Speaker 01:
I respectfully disagree, Your Honor.

[00:12:29] Speaker 01:
We objected to those.

[00:12:31] Speaker 01:
And I don't know if this court has seen an appeal like this where the only claim that got tried was the systemic failure claim.

[00:12:40] Speaker 00:
Well, counsel, let me interrupt you because I think it's worse than what Judge Kelly's saying as far as you're not raising them.

[00:12:48] Speaker 00:
From what I can see, I looked at your instructions that you submitted.

[00:12:53] Speaker 00:
And in fact, you submitted an instruction

[00:12:56] Speaker 00:
that says exactly what you're saying to us now, which is that you should not be including, should not be telling the jury that they can need to find that any individual committed a constitutional violation, correct?

[00:13:10] Speaker 00:
But your instruction says plaintiffs must prove both of the following.

[00:13:14] Speaker 00:
Both, not either or, but both in order to succeed.

[00:13:18] Speaker 00:
One or more of the personnel working at the detention center displayed deliberate indifference and violated his constitutional rights.

[00:13:25] Speaker 00:
or the combined acts or omissions of multiple personnel working.

[00:13:28] Speaker 00:
So you yourself submitted an instruction that the language is almost worse than what the court gave.

[00:13:37] Speaker 00:
So I'm struggling to see how not only did you not raise this, you may have invited it.

[00:13:43] Speaker 01:
I respectfully disagree, Your Honor, because our instruction did not contain the negligence or inverse framework.

[00:13:48] Speaker 01:
It left room exactly what the systemic failure case law of this court

[00:13:57] Speaker 01:
I understand that.

[00:14:04] Speaker 00:
That's the second part of it.

[00:14:05] Speaker 00:
But what you're telling us now in your briefing is that that first part of it, which says you can find that one person committed a violation

[00:14:17] Speaker 00:
was confusing to the jury because this is a systemic claim.

[00:14:23] Speaker 00:
But I'm saying you submitted that instruction yourself.

[00:14:26] Speaker 00:
Can you address that?

[00:14:28] Speaker 01:
Yeah, we don't have a problem with our proposed instruction, that part that was carried over into the instruction given by the court.

[00:14:35] Speaker 01:
It was the negligence or inadvertence language in there.

[00:14:39] Speaker 01:
And the reason we had a problem with it

[00:14:42] Speaker 01:
under this circuit's law, you can find a systemic violation if not a single person engaged in delivered indifference.

[00:14:51] Speaker 01:
Pre-trial, we're on her for all we knew.

[00:14:59] Speaker 01:
Right.

[00:15:02] Speaker 00:
I totally understand that, but my understanding of what you're complaining about now is that it included 1A, which is that one or more of the personnel working displayed deliberate indifference.

[00:15:15] Speaker 00:
I thought you were complaining now, as opposed to what you said below, that it should not have included that because that confused the jury.

[00:15:25] Speaker 01:
I've ran out of time.

[00:15:26] Speaker 01:
May I respond?

[00:15:26] Speaker 00:
Yes, please, yeah.

[00:15:27] Speaker 01:
Paired with the negligence or indifference

[00:15:32] Speaker 01:
becomes problematic.

[00:15:34] Speaker 01:
If you have 1A without what the court added in there about negligence or inadvertence, it is not deliberate indifference, I don't necessarily see that that on its own would be a problem.

[00:15:46] Speaker 01:
And that was in our jury instruction.

[00:15:48] Speaker 01:
Our jury instruction did not have the district court added in saying negligence or inadvertence cannot be deliberate indifference

[00:16:01] Speaker 01:
systemic violation if we have 15 different guards and not a single one of them individually met that.

[00:16:08] Speaker 01:
When you add that language in, I think it can create confusion, and it did in this case.

[00:16:14] Speaker 01:
Thank you.

[00:16:20] Speaker 04:
Members of the court, my name is Rod Hegge.

[00:16:23] Speaker 04:
My co-counsel is Kerry Rimmelauer.

[00:16:25] Speaker 04:
We are the assistant district attorneys that were assigned to defend the sheriff in official capacity in this case.

[00:16:33] Speaker 04:
The verdict is sacred.

[00:16:38] Speaker 04:
There's been no allegation of plain error.

[00:16:40] Speaker 04:
There's been no allegation of abuse of discretion.

[00:16:43] Speaker 04:
If the jury instructions taken as a whole are an adequate statement of law, there is no grounds for reversal.

[00:16:50] Speaker 04:
If there was an error in a jury instruction, reversal is not warranted unless there was substantial prejudice, which this court has typically defined as being outcome-determinative.

[00:17:00] Speaker 04:
In other words, if you can't find in the argument of the estate any error that the correction of which would change the outcome, there is no point in setting aside a jury verdict.

[00:17:12] Speaker 04:
Now I ask you the question of whether or not the jury should have been polled.

[00:17:17] Speaker 04:
We have a local rule, 47.1.

[00:17:19] Speaker 04:
It says at no time, but it has a relief valve.

[00:17:23] Speaker 04:
It says if there are certain circumstances, those were never presented to the trial court.

[00:17:28] Speaker 04:
What compelling reason was ever given?

[00:17:31] Speaker 04:
None.

[00:17:31] Speaker 04:
So that should not be a basis for appeal.

[00:17:34] Speaker 04:
As for the jury instructions, page limitations on briefs are a wonderful thing.

[00:17:39] Speaker 04:
But unfortunately, when you're talking about something like a jury instruction as to whether it should contain a reference to negligence or inadvertence, it's a bit much.

[00:17:51] Speaker 04:
I made the decision of quoting the recent cases that the circuit has issued regarding the use of that phraseology and that language.

[00:17:57] Speaker 04:
I should probably have gone all the way back to 1990 to quote Barry v. City of Muskogee, 900 F.

[00:18:04] Speaker 04:
2nd, 1489, in which this court reversed a trial court that failed to include a disclaimer that the jury instruction on deliberate indifference could apply to negligence and inadvertence.

[00:18:18] Speaker 04:
In fact, the court said specifically, thus we were mandated for a new trial with proper instructions that caution the jury that mere negligence

[00:18:26] Speaker 04:
is not sufficient to impose liability on the city.

[00:18:30] Speaker 04:
I have no doubt that the cases I cited and the cases I didn't cite, like Barry v. City of Muskogee, were well thought through by the judge and his staff, and that's the reason they included that in the instruction.

[00:18:42] Speaker 04:
And every form submitted by us included it, because that's in what's in the federal books, the federal form books.

[00:18:52] Speaker 04:
Now, there is no way to know

[00:18:59] Speaker 04:
Deliberations are closed, they're not filmed, they're not recorded.

[00:19:02] Speaker 04:
There's no way to know whether or not they were somehow got the word deliberate crossways with the word negligent or the word deliberate crossways with the word inadvertent.

[00:19:16] Speaker 04:
But the jury instruction tries to prevent that.

[00:19:21] Speaker 04:
And that has the way it's been as long as I can remember with regard to these types of clinics.

[00:19:30] Speaker 04:
is the standard.

[00:19:30] Speaker 04:
That's the systemic failure.

[00:19:32] Speaker 04:
Same thing.

[00:19:35] Speaker 04:
It's the same kind of argument.

[00:19:39] Speaker 03:
Well, do you have a rule in your district court that you don't have to object to any of these instructions on those grounds?

[00:19:46] Speaker 03:
Is this a special Oklahoma federal district rule?

[00:19:50] Speaker 04:
No.

[00:19:51] Speaker 04:
Rules are the same rules you've given everybody.

[00:19:53] Speaker 04:
That's why you thought.

[00:19:54] Speaker 04:
There has to be an objection, and the objection made is the one

[00:19:57] Speaker 04:
that is preserved for appeal.

[00:19:59] Speaker 03:
And do we have that here?

[00:20:01] Speaker 03:
That rule, yes.

[00:20:02] Speaker 04:
No, not the rule, the objection.

[00:20:04] Speaker 04:
Well, I'm still looking for it.

[00:20:06] Speaker 03:
Well, then what are you arguing?

[00:20:08] Speaker 04:
Well, I'm anticipating... That's a good point.

[00:20:15] Speaker 04:
Let me address that directly.

[00:20:17] Speaker 04:
I've tried to anticipate what I thought the arguments were going to be today because they've shifted from what they were in the trial court.

[00:20:23] Speaker 04:
And if I shouldn't do that, I'll be glad to sit down because I don't have anything to say that would add to what's in my brief regarding whether you can use the word negligence and inadvertence in a couple of jury instructions.

[00:20:37] Speaker 03:
How about on whether the verdict can be sustained without filing

[00:20:41] Speaker 03:
50, rule 50 motions.

[00:20:43] Speaker 04:
Well, obviously, in my brief, I argued that I could preserve the error, and it wasn't preserved.

[00:20:50] Speaker 03:
That's not a special rule in your district.

[00:20:53] Speaker 04:
I don't think we've got any special rule.

[00:21:06] Speaker 04:
everywhere, and typically the only instruction, the only objections that can make it to an appeal are the ones that are made before the trial court, giving the trial court the chance to address them.

[00:21:16] Speaker 04:
And Judge Paul was very meticulous.

[00:21:19] Speaker 04:
If you read that trial transcript, you'll see that he's very meticulous.

[00:21:23] Speaker 04:
If they'd made the objection, he would have addressed it.

[00:21:28] Speaker 04:
I have a whole lot of time left, but I have no further arguments.

[00:21:31] Speaker 02:
Are there any other questions?

[00:21:33] Speaker 02:
No.

[00:21:33] Speaker 02:
All right.

[00:21:34] Speaker 02:
Thank you.

[00:21:36] Speaker 02:
Was there a remaining time for a bubble?

[00:21:40] Speaker 02:
All right.

[00:21:42] Speaker 02:
I'll give you a minute if you want to.

[00:21:49] Speaker 01:
One very quick item, Your Honor.

[00:21:52] Speaker 01:
I did not mention on the jury polling issue, our local rule

[00:22:00] Speaker 01:
does not have factors.

[00:22:03] Speaker 01:
Our local rule, 47.1, reads, at no time including after a case has been completed, may attorneys approach or speak to jurors regarding the case unless authorized by the court upon written motion.

[00:22:15] Speaker 01:
We followed that local rule by filing a written motion.

[00:22:20] Speaker 01:
Secondly, one other item I wanted to mention on that file was

[00:22:27] Speaker 01:
This court has put out the green construction factors in this case about post-burden contact.

[00:22:33] Speaker 01:
You have to balance the jury process with harassment or invading that province.

[00:22:41] Speaker 01:
I believe we took the least resistant act possible.

[00:22:44] Speaker 01:
As you probably saw, we attached a form letter to our brief that we would send once in the mail.

[00:22:52] Speaker 02:
Thank you.

[00:22:52] Speaker 02:
Thank you, counsel, for your arguments.

[00:22:54] Speaker 02:
The case is submitted.

[00:22:56] Speaker 02:
And Counselor excused.