[00:00:00] Speaker 03:
Start getting ready for 23-4122, Stella versus Davis County.

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May it please the court, Jesse Kennedy and Michael Homer on behalf of the defendants of felons.

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This case arises out of the death of Helen Miller.

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She died on December 21st, 2016, about 10 a.m.

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at KD Hospital of a ruptured spleen.

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She suffered that ruptured spleen in the fall at the Davis County Jail.

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It was never detected until her autopsy.

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She sued

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Her state and her mother sued the nurse who attended her, Marvin Anderson.

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Anderson's nursing supervisor, James Ondracheck, the sheriff, Todd Richardson in Davis County for state and federal civil rights violations.

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Ondracheck and Richardson prevail on both the state and federal claims.

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The jury finds against Anderson on the federal claim awards, $300,000.

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The fight against the county on the federal claim works were $3,850,000.

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They were the same amount on the state claim for the same injury against the county, $3,850,000.

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Why would the amount against the county be more than the amount against Anderson?

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I don't understand how that could happen.

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There's no, it's certainly not any punitive damage.

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I mean, there's so much about this case that is unusual.

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We raised a lot of issues on the appeal.

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I think a fair statement can be that when the court looks at those issues, we'll definitely come to the conclusion that the county and Anderson did not receive a fair trial.

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Now, I cannot address all of those issues on my time.

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I'm going to reserve five minutes, but I want to talk about five of them, and I want to talk about them because of the standard of review.

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The first four will deal with

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We believe this case should be the verdict and the judgment set aside remanded for entry of judgment in favor of Anderson and the county.

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The fifth one deals with an evidentiary issue.

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That is, the district court prohibited us from using impeachment and prudent evidence related to the quality of Miller's life and her relationship with her mother and sole heir and only witness.

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The first issue, again, is the de novo review, and that's why we chose it, the state claim.

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They award $3,850,000 against the county on the violation of the state civil rights claim.

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But they found, the jury did, that Anderson didn't violate her rights.

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Undertaken by her rights and knew that Todd Richardson.

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In other words, there was no violation of her rights, those rights, by his county employee.

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Does the jury have to find that?

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How about Nurse Leighton?

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Could they rely on Nurse Leighton?

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No, they can't.

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Why?

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Well, for a couple reasons.

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The Utah court says, Utah law is, you don't have to name a defendant.

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But you have to identify, and the jury has to find that they did in fact violate the plaintiff's rights.

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Blayton was never accused.

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There was no John Doe defendants in the complaint.

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The jury was instructed that the people to look at for a violation of state rights were Anderson, Omniček, and Richardson.

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And quite honestly, Blayton didn't do anything.

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Well, that's part of the problem.

[00:04:20] Speaker 01:
No, sir.

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The phone call comes in.

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He said, don't worry yourself.

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No, he didn't say that.

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That was what somebody else said.

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He said, if the call went into Deputy Lloyd, Lloyd and Leighton both said, when he described those conditions, Leighton says, keep an eye on her.

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If it changes, get a hold of her.

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And it was a clerk who said, I think he said, don't worry about it.

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But still, that wouldn't meet the test of the Utah law since they never identified him by argument.

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Why wouldn't the county be liable?

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If you had a sheriff who said, I'm not going to train any of these medical people.

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And it was clear that if you don't train the medical people, inmates are going to die for improper care.

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And then you sue the county when that actually happens.

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And you don't blame the individual employees at the jail

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because they didn't know any better, so they didn't have the requisite subjective intent to establish cruel and unusual punishment.

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But the county does.

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They sued the sheriff in the Honor Jack for failure to train and have policies under the state law.

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And the jury found in favor of them.

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And there was training.

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And they did have it.

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They sued the sheriff for that?

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Yes, they sued the sheriff.

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They sued the Honor Jack and the sheriff for training in medical policies.

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and the jury returned the verdict in favor of them.

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And the court's rationale when I pointed this out, post-viral John Moses, was, well, they must have found somebody violating the rights.

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That doesn't mean, that doesn't accord with due process.

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The way you trust the Supreme Court is you've got to identify who violated the rights, and the jury has to find that violation occurred.

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You don't have to name them.

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Maybe they thought all three did collectively.

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Well, I wouldn't say the record doesn't... All I can go on is what the verdict says.

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And it's your verdict form.

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You approved it.

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But what I'm saying is... But what I'm saying is, it's your verdict form and you approved it.

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If you wanted a line on there that said, or any collection of employees violated the rights, you could have asked for it.

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The plaintiff should have asked for that.

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That's not my prerogative to ask for.

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You're the one making the argument today.

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Well, what I'm saying is,

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They never identified anybody.

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The court never identified anybody.

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The court instructed, look at Leighton.

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It means, excuse me, look at Undertack, Richardson, and Anderson.

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Well, you need the employee for 1983, unquestionably.

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But you don't under state law, do you?

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Yes.

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You don't need the name.

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But they have to be identified under Utah law.

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On a verdict form?

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They have to be identified in the pleadings.

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They have to be identified in the trial.

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And then on the verdict form, I think they'd have to, well, yes, they'd have to find that this person violated the rights, even though they're not named as a party.

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You don't have to be named as a party.

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You've got to be identified and found to violate.

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Which brings me up to the second issue is Anderson's qualified immunity.

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The court said, standing along, the fact that Anderson

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had a reasonable belief that Mr. Miller was going through withdrawal from methamphetamine, based upon what she told him, based upon years of experience dealing with inmates with methamphetamine, wasn't enough for qualified immunity.

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But that's the ultimate test for qualified immunity, is was there a reasonable good faith belief on the part of the government official that what he was doing was right?

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Correct, not a violation.

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But you could have a reasonable belief

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that she was going to withdraw and still be deliberately indifferent to looking at other possibilities when somebody is very seriously ill and is acting, you know, is so weak that, okay, I still think she's going through withdrawal, but I better take some vitals because this woman looks bad.

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Maybe I better call a doctor.

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I think it's withdrawal, but I better call someone.

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That's not inconsistent to be,

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to have a reasonable belief about withdrawal and still being deliberately indifferent to her welfare, is it?

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It would not be inconsistent, but it would be inconsistent with the facts.

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Admittedly, he did not take her vitals.

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All the experts agreed that had he taken her vitals and it was required by jail policy, it would have been normal.

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And monitored.

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And monitored.

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That wouldn't have been normal.

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They said within an hour, it would have been abnormal.

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And they gave these readings of what it would have been within an hour.

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Well, when she finally was transferred to the hospital three hours later, they had not reached that level of alarm that plaintiff's experts said would have been there.

[00:09:14] Speaker 01:
Well, you've seen the video of her coming down the stairs and the dizziness and the nausea, which are not coming off of methamphetamine symptoms.

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Can't hold her head up.

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And of course, we're not the jury.

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We're just evaluating what happened and applying a standard of review to it.

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But Anderson testified that they are.

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He gave the symptoms of nausea, dizziness, weakness.

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He testified that he had helped hundreds of inmates on coming off a mass walk in that manner.

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That that is not unusual for him.

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It is what is in his mind.

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He has to be judged.

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That 20-minute window he was with.

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what he believed, and what he truly believed, and the judge said, yeah, he believed that, but that won't give him qualified immunity.

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We remember qualified immunities were different than deliberate indifference.

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We judged it on the reasonable belief the officer had, and he had it, and it was for the court to decide.

[00:10:11] Speaker 03:
I want to check one fact you said.

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Did you say that when her vitals were checked about three hours after she fell, they were OK?

[00:10:23] Speaker 02:
No, they were elevated, but that's what Anderson said you would expect from someone coming off of meth.

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Planes experts said their vitals were falling from the floor.

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And they weren't.

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They were elevated.

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And Anderson said, if you're going on meth, coming off of meth, your pulse is elevated.

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All everything is elevated.

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And those were vitals taken at the prison, at the jail?

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It was taken at the jail by the paramedics.

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Three hours after the fall.

[00:10:49] Speaker 01:
Yes.

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And how about the next measurement of the vitals?

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Then what happens with the rougher sprain, once you plummet, you plummet quickly.

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And how much after the time elevated?

[00:11:01] Speaker 02:
I think it was after she left the jail.

[00:11:04] Speaker 01:
So it raised the question about the validity of the first vitals.

[00:11:07] Speaker 02:
Well, not really.

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The testimony was that your body maintains until it can be home or maintained.

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Anderson, the federal claims against Anderson, I submit that this is controlled by the Manna case.

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This is right on point with Manna, where the nurse does the evaluation, writes a chart note, and this court said, you look at their state of mind when that happened, and that that state of mind was no heart attack.

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As you say, mine was meth.

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And it's in this chart note, which is in the record.

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The quality of the life and impeachment evidence, I think we've briefed that fairly clearly.

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We were not allowed to put on any evidence as to the quality of Miller's life or the lack of credibility by air and only damage witness.

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Still, that I'll reserve for the rest of my time.

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May it please the court, Michael Lutz for the Spence Law Firm.

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And I'd just like to introduce you all to trial counsel, Tad Draper and Dan Hysinski.

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And also with us today is Cindy Stella, mother of Heather Miller, the young woman who died in this case.

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Your Honors, I'd just like to sort of follow along with what opposing counsel did and address those points.

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The first issue, as far as whether there's some sort

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incompatibility between the finding with respect to the individual actors and then the county itself on the state law claim, I did want to set one matter straight.

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So in their brief, the appellants cite two different Utah cases that relate to this issue.

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The case they rely on is Cheek versus Iron County.

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That's a 2018 Utah Court of Appeals case.

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But I'd like to quote from another case they cite at page 22 of their reply brief, which is Kachinsky versus Vox Elder County, a 2019 Utah Supreme Court case.

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And at paragraph 14, the court said, a plaintiff need not identify a specific governmental employee in order to hold a municipality liable under the Utah Constitution

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So that was the case involving the truck driver who had some kind of inner ear problem.

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The cops pulled him over thinking that he was drunk, and they left him in jail longer than he should have been left there.

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And he had no idea what particular governmental employee or actor was responsible for that decision.

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But the Utah Supreme Court said, it doesn't matter.

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You know it was somebody from this governmental entity that can go forward.

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So here,

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We're substantially better than that.

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Sure, Nurse Layton isn't named to the complaint, but he testifies at trial, and we know exactly what he did.

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As far as his statement, don't think too much or don't worry too much about it, that is a statement that somebody who is also a party opponent, an agent of the defendant, is repeating while speaking to him on the telephone.

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So a jury could reasonably believe that Nurse Slayton, in fact, made that statement.

[00:15:05] Speaker 03:
Do we know that just by testimony about what this person was repeating?

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Or is there a recording?

[00:15:12] Speaker 00:
There is no recording.

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But there is actually a log that the clerk kept.

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And it's noted in the log and in his trial testimony.

[00:15:25] Speaker 00:
I'd also like to briefly address, as far as the issue of Nurse Anderson's qualified immunity, I don't think it ultimately matters whether or not the district court made some sort of finding that Nurse Anderson had a reasonable belief.

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But that's also simply not true.

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So I'd like to direct the court's attention.

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It was exhibit F.

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to the appellant's opening brief that's the decision on Anderson's motion for judgment as a matter of law or new trial.

[00:16:07] Speaker 00:
And on page 15 of the court's decision, the judge stated, additionally, the court rejects Anderson's strange assertion that it was, quote, uncontested at trial that he reasonably assumed that Miller was withdrawing from methamphetamine.

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And it cites the testimony from Nurse McQuillen, the plaintiff's expert, that dizziness is not a symptom of methamphetamine withdrawal.

[00:16:35] Speaker 00:
There's still the more fundamental point that it's not like being in methamphetamine withdrawal immunizes you and makes you invincible against internal injuries.

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We have a lady who's just taken a fall from a height, landed splat on the floor,

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seems initially to be doing pretty well, fixes her hair, gets dressed, and then suddenly is experiencing nausea and dizziness that are not symptoms of methamphetamine withdrawal per the expert testimony.

[00:17:09] Speaker 00:
In the appellant's brief, they're relying on the testimony of Laurence Lucia, a guard with CPR training, to say that those are symptoms.

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And she rapidly progresses to the point, by the time she's at the bottom of the stairs, she can't even hold her head up.

[00:17:23] Speaker 00:
a classic symptom that she's losing blood.

[00:17:27] Speaker 00:
On those backs, Nurse Anderson Cannon was held liable by a reasonable jury, and he's certainly not entitled to qualified immunity, which at this stage, that ship has sailed.

[00:17:41] Speaker 03:
Where is it unique?

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For the 1983, essentially, Amendment 8, quote, unusual punishment claim,

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Anderson had to have the requisite state of mind.

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He had to essentially know that he was risking her life by not taking her vitals.

[00:18:07] Speaker 03:
Do you agree on that?

[00:18:11] Speaker 00:
I would agree that subjectively he does have to know or fail to confirm a strongly suspected risk.

[00:18:19] Speaker 00:
not necessarily just about failing to take her vitals, that someone who is evidencing gross signs of an internal injury and blood loss, not that he needs to take her vital signs, but that he needs to get her to a higher level of medical care.

[00:18:37] Speaker 00:
But otherwise, I generally do agree, yes, there is a subjective component to that analysis.

[00:18:44] Speaker 03:
And you think there was sufficient evidence of that?

[00:18:48] Speaker 00:
Absolutely.

[00:18:48] Speaker 00:
I mean, Nurse Anderson says that witnessing her coming down the stairs scares him.

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He says that he realized she was, quote, really sick.

[00:19:00] Speaker 00:
And on top of that, the Supreme Court has said that this subjective mental state can be proved by all the usual methods of proof.

[00:19:10] Speaker ?:
And 10th Circuit case law is quite strong.

[00:19:12] Speaker 00:
For instance, in the Lucas v. Turnkey case, and indeed, in the Mata case,

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that the appellants are relying on, that you can also infer knowledge, particularly about internal injuries.

[00:19:25] Speaker 00:
That's what the Lucas case says, from the heightened knowledge of the medical profession.

[00:19:31] Speaker 03:
The jury was instructed on that subjective component of the claim, right?

[00:19:37] Speaker 03:
Yes.

[00:19:38] Speaker 03:
Was there any objection to those instructions?

[00:19:43] Speaker 03:
Insofar as they stated the objective.

[00:19:47] Speaker 03:
subjective component.

[00:19:50] Speaker 00:
I do not believe so.

[00:19:51] Speaker 00:
I couldn't promise you that there isn't, but I think there were barely any objections in the jury instruction conference.

[00:20:00] Speaker 03:
Were the interrogatory, the special interrogatories, was their purpose to

[00:20:09] Speaker 03:
Find out what fact finding the juries, the jury made about state of mind, and then those could be used to determine whether a subjective component was satisfied.

[00:20:20] Speaker 00:
Absolutely.

[00:20:22] Speaker 03:
So there were... And that was everybody's understanding.

[00:20:25] Speaker 00:
Right.

[00:20:25] Speaker 00:
That those two factual findings would resolve the qualified immunity issue.

[00:20:30] Speaker 03:
Was it either needed to be satisfied or both needed to be satisfied?

[00:20:34] Speaker 00:
I believe either is the way the test is articulated.

[00:20:38] Speaker 00:
Now, in the court, for those two findings on qualified immunity, the jury wasn't instructed to find the ultimate legal outcome.

[00:20:47] Speaker 00:
Right, right.

[00:20:47] Speaker 03:
There was no objection either to the statement of those two interrogatories, special interrogatories, or to the proposition that if either is satisfied, then the subjective component is satisfied.

[00:21:01] Speaker 03:
Is that correct?

[00:21:01] Speaker 00:
Well, out of respect to the appellant's argument, I do think they're saying that there should have been a third instruction about a reasonable belief about methamphetamine withdrawal, and they believed that was also a necessary component.

[00:21:15] Speaker 00:
So I think that's their argument, and therefore I don't think that's actually true.

[00:21:21] Speaker 00:
But I also think that argument is wrong, again, because whether or not Nurse Anderson believed

[00:21:29] Speaker 00:
Heather Miller was a methamphetamine withdrawal does not in any way disprove that he also believes she had a severe internal injury.

[00:21:37] Speaker 03:
I think that reasonable belief goes to the second component of qualified immunity.

[00:21:43] Speaker 03:
If there's no clearly established law that would tell a reasonable person you have to act such and such a way, then you're entitled to qualified immunity.

[00:21:54] Speaker 03:
But that argument wasn't made in those terms, was it?

[00:21:57] Speaker 00:
No.

[00:21:58] Speaker 00:
The idea that an inmate's right to adequate medical care is clearly established has never been disputed.

[00:22:06] Speaker 00:
The district court noted that it's never been disputed.

[00:22:09] Speaker 00:
It doesn't come up in the briefs at all.

[00:22:12] Speaker 01:
How about the second prong, the clearly established law prong?

[00:22:15] Speaker 01:
Is that ever opposed?

[00:22:17] Speaker 00:
No, I don't believe that there was ever any dispute that an inmate's entitlement to appropriate medical care is clearly established.

[00:22:28] Speaker 03:
Well, did the defendants make any argument that the law was not clearly established?

[00:22:40] Speaker 03:
No.

[00:22:42] Speaker 00:
And I want to briefly address, too, this idea about the one outlier reading.

[00:22:49] Speaker 00:
So when Heather Miller is first put

[00:22:52] Speaker 00:
into the ambulance and they get a blood pressure cuff on her, the very first reading off the cuff is elevated.

[00:22:59] Speaker 00:
And it was up to the jury to decide, hey, is this an outlier?

[00:23:03] Speaker 00:
Is this a bad reading?

[00:23:04] Speaker 00:
And there was testimony that yes, sometimes those automatic cuffs give a bad reading.

[00:23:09] Speaker 00:
Or does it show that she was actually just doing dandy at the time she's being loaded onto the ambulance?

[00:23:16] Speaker 00:
I mean, Nervous Anderson said to himself, they bought her to me dead.

[00:23:21] Speaker 00:
She's already, according to the testimony of Ken Starr in late stage hemorrhagic shock, where she's barely conscious.

[00:23:29] Speaker 00:
She's drenched in sweat to the point of her hair is drenched.

[00:23:34] Speaker 00:
And one minute later in those same ambulance notes, they note her as being cyanotic, which means her patient is blue.

[00:23:43] Speaker 00:
They're not perfusing.

[00:23:44] Speaker 00:
And very soon, the blood pressure cuff is reading zero for zero.

[00:23:49] Speaker 00:
She has no blood pressure at all.

[00:23:51] Speaker 01:
Is that the next reading of the vitals?

[00:23:54] Speaker 01:
It goes from elevated to zero?

[00:23:56] Speaker 00:
It was not the very next reading.

[00:24:01] Speaker 00:
I know it was within the ambulance ride that she had already coded.

[00:24:06] Speaker 00:
So she is, medically speaking, dead in the ambulance.

[00:24:11] Speaker 00:
And obviously, they keep working on her.

[00:24:14] Speaker 00:
They declare her dead once they realize she'd been down for too long to resuscitate.

[00:24:23] Speaker 00:
But I just would urge the court to leave it to the jury to decide what to make of the blood pressure cuff readings.

[00:24:34] Speaker 03:
Now, let me ask you about the amount of damages awarded against the county under the two claims.

[00:24:41] Speaker 03:
I don't understand that.

[00:24:43] Speaker 03:
That looks like a duplication.

[00:24:45] Speaker 03:
Explain how that's possible.

[00:24:47] Speaker 00:
Absolutely.

[00:24:48] Speaker 00:
And first of all, I'd like to remind the court of the standard of review.

[00:24:52] Speaker 00:
And the standard of review, when trying to determine if there's some sort of inconsistency in these outcomes, is that it has to be metaphysically impossible to resolve them.

[00:25:03] Speaker 00:
That's the Johnson versus ABLT trucking case.

[00:25:06] Speaker 00:
And so the argument that we make in our brief

[00:25:10] Speaker 00:
We're trying to peer into the mind of the jury who's already been dismissed.

[00:25:13] Speaker 00:
That gets into our waver argument, but I'll put that on hold for a second.

[00:25:17] Speaker 00:
You know.

[00:25:18] Speaker 03:
Go to that first.

[00:25:21] Speaker 03:
The argument about inconsistent verdicts or excessive verdicts wasn't made until the jury had been dismissed.

[00:25:28] Speaker 00:
And I do think those are two separate issues and do have a separate legal analysis.

[00:25:33] Speaker ?:
So just excessiveness.

[00:25:37] Speaker 00:
Shall I address inconsistency first?

[00:25:39] Speaker 00:
Yes, yes, yes.

[00:25:41] Speaker 00:
Just address inconsistency.

[00:25:42] Speaker 00:
Okay, so yes, inconsistency between two general verdicts has to be addressed when the jury is still there because you can pull them, you can re-instruct them, you can fix whatever problem and not have to have an entire new trial.

[00:25:59] Speaker 00:
And that's why it's important to do that.

[00:26:02] Speaker 00:
And there was no objection made?

[00:26:04] Speaker 00:
There was no objection made until

[00:26:07] Speaker 00:
the post-trial motions long after the jury is gone, and that bill cannot be unbroken.

[00:26:12] Speaker 00:
What about the excessiveness then?

[00:26:16] Speaker 03:
Is that argument made?

[00:26:18] Speaker 00:
You know, in fairness, I don't think the excessiveness argument does have to be made.

[00:26:24] Speaker 00:
It's still an extremely deferential standard of review, where as far as deciding whether this verdict

[00:26:30] Speaker 00:
Keep in mind, we're in 1983 land.

[00:26:35] Speaker 00:
That means we're evaluating Heather Miller's own loss of her life.

[00:26:39] Speaker 00:
How much would she value her own life?

[00:26:45] Speaker 00:
First of all, we defer to the jury.

[00:26:47] Speaker 00:
Their verdict is inviolate unless the defense can establish that passion, prejudice, corruption, or other improper motive led them to come up with those numbers.

[00:27:00] Speaker 00:
And then second of all, we defer to the district court judge for abuse of discretion.

[00:27:07] Speaker 00:
So not only do we have this tremendous deference to the jury that heard and decided the issue of damages, then we defer to the district court judge and only overturn her decision upholding the jury verdict if it was arbitrary, capricious,

[00:27:24] Speaker 03:
or manifestly unreasonable.

[00:27:26] Speaker 03:
Did the district judge rely on the untimeliness of this argument about the verdict?

[00:27:32] Speaker 00:
The district court in the footnote said it wasn't going to decide general versus special because it still found for the plaintiff on the merits, but it did not ever say, yes, I'm finding that this was a special verdict and you didn't have to preserve it.

[00:27:49] Speaker 00:
So it just punted on that question, but that's still.

[00:27:56] Speaker 03:
The way I read the district court's analysis of these two verdicts was that they were different causes of action, which is irrelevant.

[00:28:06] Speaker 03:
You get damages for the injury, not for the cause of action.

[00:28:11] Speaker 03:
So the analysis of the district court did not make sense to me, and I wanted to ask you about that.

[00:28:17] Speaker 03:
What you're arguing here, which I hadn't noticed before, maybe you raised it in your briefing here or below or both,

[00:28:24] Speaker 03:
But your argument here is much more persuasive that if there was a problem, you needed to bring it up while the jury was still there.

[00:28:36] Speaker 03:
But I don't see where that argument was made or accepted by the district court at any time.

[00:28:42] Speaker 00:
So it was made that these were general verdicts and the jury, they had to be raised before the jury was discharged.

[00:28:51] Speaker 00:
In the footnote, though, the district court says,

[00:28:54] Speaker 00:
I don't even need to address the waiver question, because I'm finding for you on the merits.

[00:29:00] Speaker 03:
And I do think that the merits- Did you mention that in your brief on appeal?

[00:29:06] Speaker 03:
Did you raise the timeliness issue on the brief on appeal?

[00:29:09] Speaker 00:
Absolutely, yeah.

[00:29:10] Speaker 00:
We went into quite a bit of detail with the Zane case out of the Ninth Circuit.

[00:29:18] Speaker 00:
And I do.

[00:29:22] Speaker 00:
the district court's reasoning to, if they get past the waiver issue, I think there's, you know, a couple problems with the inconsistency arguments, so more.

[00:29:37] Speaker 00:
You're over by two minutes.

[00:29:39] Speaker 00:
Oh gosh.

[00:29:40] Speaker 00:
Okay, so I'd like to direct the court's attention to question 12 on the verdict form itself about duplicative damages.

[00:29:49] Speaker 00:
where it goes into detail saying, don't reward the same damages twice.

[00:29:53] Speaker 00:
So what the jury could have done, it could have put 3.85, 3.85.

[00:29:59] Speaker 00:
And on this third question, question 12, it could have said, ah, there's some overlap.

[00:30:04] Speaker 00:
So it's only five total.

[00:30:06] Speaker 00:
Or it's only if the overlap is complete.

[00:30:09] Speaker 00:
It's only 3.85.

[00:30:11] Speaker 00:
They said, there's no overlap.

[00:30:13] Speaker 00:
It's 7.7.

[00:30:15] Speaker 00:
And seeing that my time has expired, I thank the court and have nothing further.

[00:30:19] Speaker 00:
Thank you.

[00:30:21] Speaker 00:
Mr. Trent, do.

[00:30:27] Speaker 03:
I'll give you five minutes since we went over.

[00:30:29] Speaker 02:
Thank you, sir.

[00:30:31] Speaker 02:
Right to the number of the question waiver, they raised all of these arguments in front of the district court.

[00:30:36] Speaker 02:
District court rejected them all except one.

[00:30:39] Speaker 02:
They said we waived an instruction on

[00:30:44] Speaker 02:
advocacy remedies in the state law.

[00:30:46] Speaker 02:
We didn't believe it was our obligation to ask for that instruction, but we didn't appeal that.

[00:30:51] Speaker 02:
The court, they raised a special verdict, general verdict.

[00:30:56] Speaker 03:
Well, just from an overall viewpoint, the verdict looks strange to me, that it be identical under the two claims against the county.

[00:31:07] Speaker 03:
The amounts.

[00:31:07] Speaker 03:
The amounts.

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

[00:31:09] Speaker 03:
That looks strange to me, but the time to worry about that is while the jury

[00:31:14] Speaker 03:
It's still there, so you can ask him.

[00:31:16] Speaker 02:
No, this was a special verdict.

[00:31:18] Speaker 02:
And the judge addresses that.

[00:31:20] Speaker 02:
In footnote one of her decision against the count.

[00:31:23] Speaker 03:
What difference does it make whether it's a special verdict or a general verdict?

[00:31:26] Speaker 02:
You don't have to raise it on a special verdict.

[00:31:29] Speaker 02:
A general verdict can deal with a special verdict.

[00:31:31] Speaker 02:
You don't.

[00:31:32] Speaker 02:
You're not locked into that.

[00:31:35] Speaker 02:
And the judge says, rather than take up the contestant issue of whether the jury verdict form was special or general,

[00:31:42] Speaker 02:
in order to decide whether the defendant waived his rights to dispute the verdict.

[00:31:45] Speaker 03:
The court assumes that the verdict was a special verdict.

[00:31:49] Speaker 03:
Why is an answer a question about how much damage is to a ward against a party?

[00:31:55] Speaker 03:
Why would that be considered a special verdict?

[00:31:58] Speaker 03:
The form was a special verdict form.

[00:32:00] Speaker 03:
On a special verdict, you don't have to object.

[00:32:03] Speaker 03:
Well, you mean whether it's the form it's on makes all the difference?

[00:32:08] Speaker 03:
No.

[00:32:09] Speaker 03:
You have the jury saying,

[00:32:11] Speaker 03:
The county owes this much on this claim and this much on this other claim.

[00:32:15] Speaker 03:
That sounds to me like a general verdict, no?

[00:32:18] Speaker 03:
No, sir.

[00:32:19] Speaker 02:
We went in a big fight with this before the trial.

[00:32:23] Speaker 02:
And they came out with that verdict.

[00:32:24] Speaker 02:
And I said, that's a general verdict.

[00:32:27] Speaker 02:
And the judge and plaintiff said, no, it's a special verdict.

[00:32:31] Speaker 02:
And I said, okay.

[00:32:32] Speaker 02:
And so I proceeded as though it was a special verdict, and she agrees with it.

[00:32:36] Speaker 03:
And that was at what stage?

[00:32:38] Speaker 03:
Was that after the jury had been excused?

[00:32:39] Speaker 02:
No, sir, that was before the trial.

[00:32:41] Speaker 03:
Before the trial?

[00:32:42] Speaker 02:
Yes, sir.

[00:32:43] Speaker 02:
And the point is, everything they claimed was waived, the judge considered, weighed the evidence, issued a ruling on the merits, and the law is very clear that you have full appellate review once the court does that.

[00:32:58] Speaker 02:
I don't think there's any doubt about that.

[00:33:00] Speaker 02:
A couple of other things I think is important.

[00:33:11] Speaker 02:
She was not declared dead until after 40 minutes at the KB Hospital working on her.

[00:33:16] Speaker 02:
And they did an ultrasound, but they didn't go two inches far enough.

[00:33:21] Speaker 02:
They went across the chest here.

[00:33:23] Speaker 02:
If they'd gone another two inches, they would have picked up the bleed.

[00:33:26] Speaker 02:
gave her a couple units of blood, and she would have survived.

[00:33:30] Speaker 02:
She was not damp.

[00:33:32] Speaker 02:
Yes, she had a low pulse, no pulse, because of loss of blood.

[00:33:35] Speaker 02:
And no blood pressure.

[00:33:36] Speaker 02:
No blood pressure, but alive.

[00:33:38] Speaker 02:
And they couldn't find it.

[00:33:41] Speaker 01:
Isn't the question of oxygen to the brain?

[00:33:43] Speaker 01:
Is that why they gave up?

[00:33:45] Speaker 01:
Is there just going to be too much damage?

[00:33:47] Speaker 02:
No, sir.

[00:33:49] Speaker 02:
They considered she was dying of overdose.

[00:33:53] Speaker 02:
That was what they put down as a possible cause of death was awareness.

[00:33:57] Speaker 03:
That was before the autopsy.

[00:34:01] Speaker 03:
That was what they said is possible cause of death before they conducted the autopsy.

[00:34:04] Speaker 03:
Yes.

[00:34:06] Speaker 02:
They said, well Anderson was here.

[00:34:07] Speaker 03:
So no one had diagnosed the ruptured spleen until the autopsy, is that right?

[00:34:12] Speaker 02:
Yes, sir.

[00:34:13] Speaker 02:
OK.

[00:34:13] Speaker 02:
And so they said Anderson was scared when he saw her go to slide down the stairs.

[00:34:17] Speaker 02:
He said, no, he was scared.

[00:34:17] Speaker 02:
He was a spray chief when we were trying to walk down the stairs since she's dizzy.

[00:34:21] Speaker 02:
He had a wheelchair for her.

[00:34:23] Speaker 02:
They said Anderson said she was really sick.

[00:34:25] Speaker 02:
Well, she was sick from what he thought was meth withdrawal, and that's why he scheduled her to see the doctor.

[00:34:30] Speaker 02:
Meth withdrawal is not life-threatening.

[00:34:33] Speaker 02:
You don't die from withdrawal from meth.

[00:34:34] Speaker 02:
You throw up, you're sick, you're miserable.

[00:34:36] Speaker 03:
But aren't you raising issues that are for the jury to decide?

[00:34:42] Speaker 03:
No, this goes to his state of mind.

[00:34:45] Speaker 03:
Doesn't the jury have to decide his state of mind?

[00:34:47] Speaker 02:
No, on the qualified immunity.

[00:34:50] Speaker 02:
Non-unqualified immunity is his subjective state of mind that you focused on.

[00:34:54] Speaker 02:
And that's why that chart note is so important.

[00:34:57] Speaker 02:
Same note that this court said showed the state of mind of nurse Quintana and Manna.

[00:35:05] Speaker 02:
Quintana says she's not suffering from a heart attack.

[00:35:08] Speaker 02:
I examined her.

[00:35:09] Speaker 02:
I told her to call in if there's a problem.

[00:35:13] Speaker 02:
And she wrote that note as she examined Manna.

[00:35:15] Speaker 02:
As the rationale is he examines Miller, you know Since he's coming off math or a roommate says she's been lying down for a day a day and a half I told her to there's an intercom in the cell.

[00:35:29] Speaker 02:
Please call me if you have any change in your condition in That's his state of mind.

[00:35:36] Speaker 02:
That's what she says of course doesn't matter

[00:35:38] Speaker 02:
You can't look what happened before Anderson got involved with her, what happened after he was involved with her.

[00:35:44] Speaker 02:
You have to focus on that 20-minute window when he was dealing with her.

[00:35:49] Speaker 01:
And this court said that's the best evidence.

[00:35:51] Speaker 01:
What about the finding of fact?

[00:35:53] Speaker 01:
That's pretty solid, the jury verdict form.

[00:35:57] Speaker 01:
Defined by proponents of evidence that Anderson was aware that Miller faced a substantial risk of serious harm, or is there enough circumstantial evidence to support an inference that Anderson

[00:36:07] Speaker 01:
failed to verify or confirm a strongly suspected serious risk Miller answer, yes.

[00:36:13] Speaker 01:
Well, I would say two things to that.

[00:36:14] Speaker 01:
That's cement.

[00:36:16] Speaker 01:
No, no cement.

[00:36:17] Speaker 01:
OK.

[00:36:17] Speaker 02:
You've got to divide them up.

[00:36:18] Speaker 01:
Tell me why it's oatmeal then.

[00:36:20] Speaker 02:
You've got to divide them up between qualified immunity and deliberate indifference.

[00:36:24] Speaker 02:
Qualified immunity, and the court refused to instruct on it, refused to submit the jury verdict on it, did he have a reasonable belief that she was going through meth withdrawal?

[00:36:34] Speaker 02:
And in fact, when the caution was challenged on that, the court said, I can't believe something about it wasn't enough.

[00:36:43] Speaker 02:
Well, for quantified immunity, it is enough.

[00:36:46] Speaker 02:
And as for in the cement, as we pointed out in the brief, the evidence we objected to,

[00:36:53] Speaker 02:
introduce malpractice evidence.

[00:36:56] Speaker 02:
They introduced evidence of what happened to Miller when she was in the Lima unit, where Anderson knew nothing about it.

[00:37:04] Speaker 02:
No one focused on it.

[00:37:06] Speaker 02:
The court did not restrict it just to that 20 minute window when Anderson was involved with her.

[00:37:13] Speaker 01:
That's part of the point, though, is that he didn't know what was going on in Lima.

[00:37:18] Speaker 01:
He didn't.

[00:37:18] Speaker 01:
Yeah, that's part of the point.

[00:37:20] Speaker 01:
She was put in the back room there

[00:37:23] Speaker 01:
We'll get you a doctor tomorrow.

[00:37:25] Speaker 02:
No, so the evidence doesn't show that.

[00:37:28] Speaker 02:
The evidence was she had no place to put her in the medical unit.

[00:37:31] Speaker 02:
He put her where she could be watched.

[00:37:33] Speaker 02:
He wanted a 30-minute watch on her.

[00:37:36] Speaker 02:
Disputed.

[00:37:38] Speaker 02:
Thank you, Mr. No, that's not disputed.

[00:37:44] Speaker 02:
That he ordered that is not disputed.

[00:37:46] Speaker 02:
Whether or not it was conducted, that may be disputed.

[00:37:50] Speaker 02:
But that's not answered.

[00:37:52] Speaker 02:
OK, thank you.

[00:37:53] Speaker 02:
And that's the key.

[00:37:55] Speaker 02:
Anderson, what he did.

[00:37:57] Speaker 02:
And he followed them.

[00:37:59] Speaker 02:
The jail's policies were violence, assess.

[00:38:05] Speaker 02:
We had a policy against falls.

[00:38:07] Speaker 02:
If you have doubt, call the doctor.

[00:38:09] Speaker 02:
I'll call 24-7.

[00:38:10] Speaker 02:
And in any kind of injury, eventually had the inmate cleared by a physician.

[00:38:15] Speaker 02:
They were all in place.

[00:38:19] Speaker 03:
Thank you, Mr.

[00:38:21] Speaker 03:
Thank you, counsel.

[00:38:23] Speaker 03:
Case is submitted.

[00:38:23] Speaker 03:
Counsel, excuse.