[00:00:00] Speaker 03:
So our first case is 24-761, Womble versus Christman.

[00:00:10] Speaker 03:
Mr. Cuff, you may begin.

[00:00:27] Speaker 03:
I should correct myself.

[00:00:28] Speaker 03:
This is also 257028.

[00:00:29] Speaker 03:
I'm glad to mention that.

[00:00:32] Speaker 03:
Go ahead.

[00:00:32] Speaker 01:
Good morning, Your Honors.

[00:00:36] Speaker 01:
My name is Sean Cuff and I represent Appellant Joseph Zee Womble and may it please the Court.

[00:00:41] Speaker 01:
I'm hoping to reserve some of my time for rebuttal.

[00:00:45] Speaker 01:
This court is no stranger to Mr. Wambel's case.

[00:00:47] Speaker 01:
In fact, to frame my argument this morning, it's helpful to recall what this court has already decided, specifically that Mr. Wambel's allegations met both the objective and subjective component of his food deprivation and inadequate facilities claims under the Eighth Amendment.

[00:01:03] Speaker 01:
Of course, while that's not dispositive on summary judgment here, that decision helps set the table for Mr. Wambel's opposition.

[00:01:11] Speaker 01:
Beyond establishing clearly established rights, Mr. Womble only needed to produce competent evidence of constitutional violations enabling a reasonable jury to return a verdict in his favor to avoid summary judgment.

[00:01:24] Speaker 01:
The record confirms Mr. Womble made that showing to be sure Mr. Womble's declaration and his deposition to his testimony, both competent evidence in their own right,

[00:01:34] Speaker 01:
are filled with excruciating details confirming Mr. Womble's constitutional violations.

[00:01:39] Speaker 01:
Now, if the court hasn't done so already, I encourage you to read the portion of Mr. Womble's direct examination from his deposition.

[00:01:46] Speaker 01:
It's at Appellate Volume 4, 915 to 28.

[00:01:48] Speaker 01:
This includes evidence that Mr. Womble looked down at his tray and saw evidence of rationing in front of his face.

[00:01:56] Speaker 01:
slots missing food on his tray, and how he lost 12 pounds in two weeks due to such ration.

[00:02:01] Speaker 01:
He also recalls exactly where he was in the prison when he asked defendant Sharp for more food, and he got a response, son, you should be grateful you get food.

[00:02:11] Speaker 01:
He also testified how it took days or up to a week to fix the lone bathroom available for 32 inmates when it was out of order, leaving standing feces and urine in the bathroom for days, and how he soiled himself waiting for the restroom three to four times.

[00:02:26] Speaker 01:
And while the district court and defendants dismissed Mr. Womble's evidence as, quote, his own word or conclusions or conclusory testimony, that doesn't mean that that evidence wasn't competent to create factual disputes to avoid summary judgment.

[00:02:40] Speaker 01:
It was.

[00:02:41] Speaker 01:
Because a reasonable juror could find that the evidence amounted to constitutional violations, the district court erred in entering summary judgment months before Mr. Womble was set to present his evidence to a jury.

[00:02:53] Speaker 01:
The district court further aired in awarding over $5,500 in litigation costs, despite defendants conceding Mr. Wambel's indigency.

[00:03:02] Speaker 01:
And while we're set for consolidated appeals this morning, my argument's going to focus on the constitutional claims dismissed on summary judgment, starting with Mr. Wambel's food deprivation.

[00:03:11] Speaker 04:
Before we do that, it's helpful to me to know what evidence we're looking at.

[00:03:17] Speaker 04:
And with respect to the expert report, I mean, in fact,

[00:03:22] Speaker 04:
It didn't have a lot of reliance on facts and data, did it?

[00:03:27] Speaker 01:
Well, it didn't rely on data produced in the record, specifically Mr. Womble's evidence.

[00:03:33] Speaker 01:
A large part of it was from his 2019 declaration, but that is evidence that she relied on in the record.

[00:03:40] Speaker 04:
She relied on his recollection of one day's meals.

[00:03:47] Speaker 04:
Correct.

[00:03:48] Speaker 04:
And she extrapolated that as if that was what he was served every single day for the entire period that's that issue.

[00:03:57] Speaker 01:
Correct.

[00:03:58] Speaker 04:
Is that problematic in terms of whether that expert report should have come in?

[00:04:05] Speaker 01:
No, for two reasons.

[00:04:06] Speaker 01:
First, I think Wambel's testimony is clear, both in his declaration and in his deposition,

[00:04:11] Speaker 01:
that was indicative of what he was served on a daily basis.

[00:04:15] Speaker 01:
It might not have been those exact portions, but his testimony is clear that the rationing is constant from May 2014 to August 2016.

[00:04:24] Speaker 01:
Now, whether that varied from the specific portions and foods served that she used in that one-day example, it may, and I think in his deposition, he recalls

[00:04:35] Speaker 01:
very well exactly what was served on certain days.

[00:04:38] Speaker 01:
There was bologna on certain days and there was chicken cutlet on different days.

[00:04:42] Speaker 01:
But I think that example for one day is sufficient here.

[00:04:46] Speaker 01:
And then disputes about, second, disputes about the underlying data in the report should go to the weight of the evidence here.

[00:04:53] Speaker 01:
And I don't think the admissibility of her report.

[00:04:56] Speaker 01:
So I think it should be considered.

[00:04:58] Speaker 04:
Well, her report is essentially a mathematical calculation.

[00:05:01] Speaker 04:
And if you say that he

[00:05:06] Speaker 04:
admits that it wasn't always the same.

[00:05:09] Speaker 04:
What would change the calculation if the meals that he had were a different number of calories, right?

[00:05:18] Speaker 04:
Sure.

[00:05:18] Speaker 04:
I mean, I find that we've got a four-page report that really doesn't have much of anything supporting that.

[00:05:27] Speaker 01:
Sure, and that's very right, I think.

[00:05:29] Speaker 01:
But what we're thinking about here is

[00:05:32] Speaker 01:
not only in terms of that specific example, but I think when you look at the other evidence in the record, it is indicative of what typically was served.

[00:05:41] Speaker 01:
So while I agree that there are difficulties in extrapolating that single day for the course of 18 months here,

[00:05:50] Speaker 01:
That example, I do think, bears enough relevancy and enough relation to what he was served.

[00:05:57] Speaker 01:
Week in, week out, that it can be considered.

[00:05:59] Speaker 01:
And again, I think it should go to the weight of her admissibility, of the testimony, not its admissibility.

[00:06:04] Speaker 01:
And that should be something the jury should consider when this case gets remanded for trial.

[00:06:08] Speaker 02:
Counsel, do you need the expert report to succeed on your food deprivation claim?

[00:06:16] Speaker 01:
No, it certainly helps.

[00:06:17] Speaker 01:
And I think there is...

[00:06:20] Speaker 01:
The expert report in itself is evidence of the sufficiently serious condition under the objective component.

[00:06:26] Speaker 01:
But in terms of, you know, we disagree that it should have been excluded, but without it, there's more than enough in the record to meet both the objective and objective.

[00:06:36] Speaker 02:
Was there any medical evidence in the record that Mr. Womble was malnutrient, malnourished, excuse me?

[00:06:45] Speaker 01:
There is evidence of the medical report was attached in our opposition to summary or judgment.

[00:06:51] Speaker 01:
And you can see all of the various reports he made to medical in terms of what he specifically reported about food.

[00:06:59] Speaker 01:
There are a few instances in there.

[00:07:01] Speaker 01:
I think the best that we can glean from

[00:07:04] Speaker 01:
the medical reports is his consistent weight fluctuations because it shows a drastic timeline of the weight fluctuation that should be attributed to... Was he ever underweight?

[00:07:17] Speaker 01:
Was he ever underweight, excuse me?

[00:07:19] Speaker 02:
I mean, he did lose 20... No, I didn't ask how many minutes he lost.

[00:07:23] Speaker 02:
Was he ever underweight?

[00:07:25] Speaker 02:
I'm not sure what you're setting as the benchmark.

[00:07:27] Speaker 02:
Well, how about his BMI?

[00:07:29] Speaker 02:
Does it show a below average BMI?

[00:07:32] Speaker 01:
There's no evidence in the record of what his BMI is in particular that I'm aware of.

[00:07:37] Speaker 01:
We do know what he started at, right?

[00:07:38] Speaker 01:
And it was 210 pounds.

[00:07:40] Speaker 01:
Within two weeks, he was down to 198.

[00:07:43] Speaker 01:
And he was down to 191 at his lowest, which was... Well, he was trying to lose weight, right, for medical reasons, was he not?

[00:07:50] Speaker 01:
No, I disagree with that.

[00:07:52] Speaker 01:
I think the record shows that he did move to diet for health.

[00:07:57] Speaker 01:
That was to get healthier food in terms of the processed food.

[00:08:00] Speaker 01:
And he's clear in his deposition that he did seek diet for health because some of the food that was served in the main menu

[00:08:06] Speaker 01:
was disagreeable to him and caused him to get sick and have gastritis and particular digestive problems.

[00:08:13] Speaker 01:
But to suggest that Mr. Womble was dieting in any circumstance here I think is incorrect and inconsistent with the record here.

[00:08:22] Speaker 03:
So the diet was the same number of calories?

[00:08:25] Speaker 03:
The special diet that he was requesting gave as many calories as the ordinary diet?

[00:08:30] Speaker 01:
Yes, because I believe under the standards for the facility there needed to be baseline caloric food in each menu, but the problem was not only were slots empty in the diet for health because of the rationing, so he was receiving less food then, but then also at times there was two separate lines at the facility, sometimes three, one for kosher, one for diet for health, and one for the standard main line.

[00:08:54] Speaker 01:
At times, when he was signed up for diet for health and they weren't serving the diet for health menu that day, there's testimony in his deposition that Mrs. Vissotsky would not let him go through the line to get that food.

[00:09:06] Speaker 01:
So yes, and to your point, Your Honor, there's evidence in the record that Mr. Womble did voluntarily skip meals.

[00:09:14] Speaker 01:
But I think the reason for that is important and it's in the record.

[00:09:18] Speaker 01:
He missed these meals because oftentimes these meals were served constantly.

[00:09:23] Speaker 01:
He knew what days it was baloney, he knew what days it was chicken cutlet, he knew what days what they were serving.

[00:09:29] Speaker 01:
And on certain days, if he knew that it was chicken cutlet and there was no alternative, he knew that that was either processed or left out overnight and often spoiled.

[00:09:38] Speaker 01:
And so it was the choice for him whether I'm going to eat this that I know is going to make me sick,

[00:09:44] Speaker 01:
Or if I'm going to try to supplement my diet through the canteen and skip this meal.

[00:09:48] Speaker 01:
It wasn't a situation where he was actively trying to lose weight.

[00:09:52] Speaker 01:
I don't agree with that premise.

[00:09:56] Speaker 02:
Did the defendants know about his weight loss?

[00:10:00] Speaker 01:
His weight loss in particular, I'm not aware of that.

[00:10:02] Speaker 02:
Don't they need to know if they're going to be indifferent to his health condition?

[00:10:09] Speaker 01:
Well, they knew that he was receiving less food than

[00:10:15] Speaker 01:
that he wasn't receiving enough food.

[00:10:17] Speaker 01:
There's testimony in the record that he approached them two to three times that he wasn't receiving enough food, and that the food was falling below ACA standard.

[00:10:24] Speaker 01:
That's in the RTS's grievances.

[00:10:26] Speaker 01:
So he was alerting defendants to the fact that the food was falling below constitutional standards, and that is enough for the subjective component.

[00:10:36] Speaker 03:
When you say constitutional standards, what's your measure of that?

[00:10:41] Speaker 03:
Sure.

[00:10:42] Speaker 01:
I don't know that we can set a specific calorie number on it and I think to your point there's no clear definition of what a food

[00:10:56] Speaker 01:
deprivation sufficiently serious conditions for the ejective component.

[00:11:01] Speaker 01:
But I think if Ramos is going to have any meaning here, and some of the other cases from other circuits, we need to look at a sustained period of food deprivation, whether that is

[00:11:13] Speaker 01:
you know, deprive nutritionally adequate diet for 14 straight days.

[00:11:17] Speaker 01:
That's in the Phelps case we cited.

[00:11:19] Speaker 01:
Losing a certain amount of weight in a certain amount of time period we've seen in other cases.

[00:11:24] Speaker 01:
That's from Davis out of the Eighth Circuit.

[00:11:28] Speaker 03:
So it needs to be... You're referring to the objective component.

[00:11:31] Speaker 03:
Sure.

[00:11:32] Speaker 03:
For the subjective component, the defendants have to know this, right, that it's constitutionally inadequate diet.

[00:11:39] Speaker 03:
Sure.

[00:11:39] Speaker 03:
So how do we give them guidance?

[00:11:41] Speaker 03:
How can we say that

[00:11:43] Speaker 03:
their failure to provide this was a result of deliberate indifference?

[00:11:47] Speaker 01:
Well, when it comes to the evidence here, I think there is circumstantial evidence that they would see Mr. Womble on a daily basis and see what he looks like, see if he's losing weight.

[00:11:58] Speaker 01:
So I think they could observe him, they could observe his state, and they could observe what Mr. Womble looked like.

[00:12:04] Speaker 01:
And when we see the evidence here that he is pleading with them two to three times while

[00:12:11] Speaker 01:
that this ration was taking place, that he needed more food.

[00:12:13] Speaker 01:
I think he's doing everything he can to put them on notice of the fact that he is not receiving enough food.

[00:12:20] Speaker 01:
And whether or not he is alerted to the fact of his specific weight loss, I'm not aware of anything specific in the record, but I don't think that that necessarily needs to happen for us to get there in this objective component.

[00:12:41] Speaker 01:
inadequate facilities case.

[00:12:44] Speaker 01:
I also think this is another situation where the district court refused to accept the Wambles evidence, competent evidence in the record and weighed it inappropriately in favor of defendants.

[00:12:54] Speaker 01:
We see this time and again both in the district court's order and in defendants briefing.

[00:13:00] Speaker 01:
rejecting Mr. Wambel's competent evidence just as self-serving testimony of his own word.

[00:13:05] Speaker 01:
But this evidence was enough to defeat summary judgment and to create material factual evidence.

[00:13:11] Speaker 02:
Does the evidence show how many times the toilets overflowed?

[00:13:15] Speaker 01:
We have evidence in the record that at least five times in 2015 alone, there was one working toilet available.

[00:13:23] Speaker 01:
And that happened for up to a week.

[00:13:25] Speaker 01:
And Mr. Wambel's testimony is that

[00:13:30] Speaker 01:
when these toilets broke, they were down for two to three days or up to a week, right?

[00:13:36] Speaker 01:
So in those circumstances, there would be urine and feces on the floor.

[00:13:41] Speaker 01:
So up to two to three days or up to a week, five different times in 2015.

[00:13:49] Speaker 02:
And moving... Well, isn't there also evidence in the record, or at least I think the defendants say this, that the bathrooms were cleaned every day?

[00:14:01] Speaker 02:
and work orders were entered when they were backed up.

[00:14:04] Speaker 02:
So even with the overflow, how does that show that the defendants were deliberately indifferent?

[00:14:13] Speaker 02:
Maybe they weren't effective with the cleanup, but they weren't ignoring it either.

[00:14:19] Speaker 01:
So two points on that.

[00:14:20] Speaker 01:
One, I think it's a disputed fact.

[00:14:21] Speaker 01:
Mr. Womble has testimony that I believe his name, the name of the maintenance supervisor is escaping me right now.

[00:14:29] Speaker 01:
But these problems were so constant that he told me he just gave up on fixing them.

[00:14:33] Speaker 01:
And I think there's also evidence in the record that the... You're referring to his testimony or the maintenance supervisor's testimony?

[00:14:39] Speaker 01:
The maintenance supervisor's test, not testimony, it was Mr. Womble's testimony on things that the maintenance supervisor told him.

[00:14:46] Speaker 04:
And can we consider that?

[00:14:47] Speaker 04:
I mean, isn't that hearsay?

[00:14:49] Speaker 01:
It is hearsay.

[00:14:50] Speaker 01:
I think it's effect on the listener and what he was observing in these conditions.

[00:14:55] Speaker 01:
But I also think you can accept the evidence that what Mr. Wambel saw and also that he didn't see people fixing these toilets within the time frame in the maintenance reports.

[00:15:05] Speaker 01:
And I think what's important also about the maintenance reports is none of the inmates filled those out.

[00:15:11] Speaker 01:
That was all staff.

[00:15:12] Speaker 01:
So in terms of reporting instances of when these bathrooms were out, right,

[00:15:17] Speaker 01:
These things could have been going on for days as far as the inmate's concerned, but they had no control over when the maintenance reports were submitted.

[00:15:24] Speaker 01:
So in terms of when an inmate like Mr. Womble could have seen a toilet out, he didn't have the ability to go submit a maintenance request.

[00:15:32] Speaker 01:
These could have been out for days while the inmates were waiting for them to be cleaned.

[00:15:37] Speaker 01:
But yes, some of the maintenance reports did have quicker turnaround times.

[00:15:41] Speaker 01:
But I think the record is clear on that, that that is a disputed fact, whether those in fact

[00:15:46] Speaker 01:
We're fixed in that amount of time here.

[00:15:49] Speaker 03:
What is the evidence of the defendant's knowledge then?

[00:15:53] Speaker 01:
Sure.

[00:15:53] Speaker 01:
So there is several pieces of evidence here.

[00:15:57] Speaker 01:
It's in conversations.

[00:15:58] Speaker 01:
It's in RTSs and grievance.

[00:16:00] Speaker 01:
And I think there's circumstantial evidence as well that in Mr. Wambel's deposition, for instance, these defendants walked the facility.

[00:16:10] Speaker 01:
They walked through the pods.

[00:16:11] Speaker 01:
So these temporary bathrooms are in the A South

[00:16:15] Speaker 01:
Mr. Womble said from an advantage point, when these defendants are walking through A South Hall, they could see these temporary bathrooms.

[00:16:23] Speaker 01:
They could see into the temporary bathrooms and see the condition of them.

[00:16:27] Speaker 01:
They could see feces and urine on the floor.

[00:16:30] Speaker 01:
And I think the RTS and grievance record is also evidence that they were put on notice that the bathrooms were deficient here.

[00:16:37] Speaker 01:
But also the conversations they had are evidence that they knew

[00:16:41] Speaker 01:
They asked them to fix these things and they responded by saying, this is permanent.

[00:16:45] Speaker 01:
You're going to have to do your time.

[00:16:47] Speaker 04:
Let me ask you this.

[00:16:47] Speaker 04:
The testimony is that sometimes the bathrooms weren't unavailable because inmates were using them to do drugs.

[00:16:58] Speaker 04:
And Mr. Wambel said he never told staff about that because he didn't want to be a snitch.

[00:17:05] Speaker 04:
Does that affect whether they had knowledge

[00:17:09] Speaker 04:
of how many bathrooms were available?

[00:17:12] Speaker 01:
No.

[00:17:13] Speaker 01:
The reason why they weren't available, I don't think is material here.

[00:17:17] Speaker 01:
It's whether he alerted them to the fact that there was only one working bathroom or no working bathrooms because they were out of order, which I believe is supported by the record.

[00:17:28] Speaker 01:
If there's no other questions immediately, I'd like to reserve my remaining time for rebuttal.

[00:17:33] Speaker 01:
Thank you.

[00:17:51] Speaker 05:
Good morning, Your Honors.

[00:17:53] Speaker 05:
I'm Senior Assistant Attorney General Erin Moore, and I'm here on behalf of Chrisman and Sharp.

[00:17:59] Speaker 05:
Assistant Attorney General A.J.

[00:18:01] Speaker 05:
Redding is also here today, and he'll be presenting argument on the cost issue.

[00:18:06] Speaker 05:
I am only going to address the qualified immunity order by this Court, and I'm only going to reserve approximately 12 minutes of my time for the qualified immunity issues.

[00:18:16] Speaker 05:
So may I please the court, Christman and Sharpe, respectfully request that you affirm the qualified immunity order.

[00:18:21] Speaker 04:
Let me start you with the evidence that the district court decided it couldn't consider.

[00:18:26] Speaker 04:
Why was Mr. Womble's declaration not appropriate for consideration?

[00:18:33] Speaker 04:
at summary judgment.

[00:18:35] Speaker 05:
It was only portions of the declaration and it was the portions where he was relying upon Mr. Yoder's evidence.

[00:18:41] Speaker 04:
It didn't consider any of it.

[00:18:44] Speaker 05:
No, I think he said only the kitchen portions of the evidence.

[00:18:49] Speaker 04:
Well, Mr. Womble worked in the kitchen and some of his declarations

[00:18:53] Speaker 04:
are his own observations.

[00:18:55] Speaker 05:
And I think that gets to the timeline.

[00:18:56] Speaker 05:
Mr. Womble only worked in the kitchen in July of 2016.

[00:19:01] Speaker 05:
July of 2016 is 12 to 18 months after Chrisman and Sharp have both left the facility.

[00:19:08] Speaker 05:
So there is a timeline issue here.

[00:19:10] Speaker 05:
Chrisman and Sharp were only at the facility during these complaints between May 1, 2014 and either February of 2015 and June of 2015.

[00:19:20] Speaker 05:
And that's June 1.

[00:19:22] Speaker 05:
first of 2015.

[00:19:23] Speaker 05:
So anything after the date of June 15, neither Crispin or Sharp are at the facility.

[00:19:30] Speaker 05:
So they have no knowledge.

[00:19:31] Speaker 05:
They have no control.

[00:19:32] Speaker 05:
They are not there.

[00:19:34] Speaker 05:
So that also gets to a commentary on Mr. Cuff's discussion of the bathrooms.

[00:19:43] Speaker 05:
And this gets back to the timeline.

[00:19:44] Speaker 05:
Mr. Womble

[00:19:48] Speaker 05:
until June 23rd of 2015 was actually assigned to a cell between December of 2014 and June of 2015 to a cell.

[00:19:58] Speaker 05:
So he had a dedicated toilet.

[00:20:00] Speaker 05:
So he did not have to use the common toilet.

[00:20:03] Speaker 05:
So complaints about the common toilets in 2015 are presumably after June when he is reassigned to a common bunk.

[00:20:12] Speaker 05:
And Crisman and Sharp are no longer at the facility.

[00:20:16] Speaker 05:
I don't know how they could have known anything about those issues.

[00:20:21] Speaker 05:
Then back to the kitchen.

[00:20:22] Speaker 05:
I mean, that's not really what the district court relied on.

[00:20:26] Speaker 05:
He marks in one of the footnotes when they left the facility.

[00:20:30] Speaker 04:
But it's not what, if you look at the analysis, that's not what it's based on.

[00:20:33] Speaker 05:
Yes, but we're on a de novo overview of the record.

[00:20:36] Speaker 05:
And I wanted to highlight this, is that as an issue, that the knowledge issue, because there is a personal participation analysis by the district court that says they couldn't have personally participated in certain things.

[00:20:48] Speaker 05:
And the timeline does make this very important, because how do you control or do anything if you're not there anymore?

[00:20:55] Speaker 04:
So you're saying that the entire time Mr. Womble was in pod A,

[00:21:00] Speaker 04:
that Christman and Sharp were already gone.

[00:21:03] Speaker 04:
No.

[00:21:04] Speaker 05:
I'm only saying a portion of the time that they were there.

[00:21:09] Speaker 05:
They were there when he starts making his complaints of overcrowding.

[00:21:12] Speaker 05:
That is the date of May 1st, 2014.

[00:21:15] Speaker 05:
And then Christman leaves in June, June 1st of 2015.

[00:21:21] Speaker 05:
And Mr. Sharpe leaves February 1st of 2015.

[00:21:25] Speaker 05:
So we have a compressed timeline of what actually happened.

[00:21:28] Speaker 03:
Now... Are you saying he had his own cell during that period of time?

[00:21:31] Speaker 05:
A portion of the time.

[00:21:33] Speaker 05:
So between May 1st and December, he was in a common bunk.

[00:21:39] Speaker 05:
There's a brief period of time where he was in a shoe for four days.

[00:21:42] Speaker 05:
But for the majority of May 1 to December,

[00:21:47] Speaker 05:
He is in a common bunk, but after that, he is in an assigned cell with a dedicated toilet and sink.

[00:21:53] Speaker 02:
Where's that in the record?

[00:21:56] Speaker 05:
Which part?

[00:21:56] Speaker 05:
The dedicated cell?

[00:21:58] Speaker 02:
Yeah.

[00:21:58] Speaker 05:
The cell?

[00:21:59] Speaker 05:
Okay.

[00:22:02] Speaker 02:
He's trying to find where you're arguing this in your brief.

[00:22:06] Speaker 05:
There is a footnote also where it talks about his assignments to

[00:22:10] Speaker 02:
Different like your main argument today.

[00:22:13] Speaker 04:
It sounds like it's more than a footnote Well, no when the district court was addressing this and I just wanted to hire talking about your argument Yeah, I don't think your appellate brief or the district courts.

[00:22:23] Speaker 04:
I mean this seems new to me it's footnotes where I'm sorry.

[00:22:29] Speaker 02:
I missed it, too So okay, where where do we find this would be helpful to know okay, so on?

[00:22:37] Speaker 05:
I'm sorry.

[00:22:38] Speaker 05:
I have this all typed up, too

[00:22:49] Speaker 05:
Appellate page 227, it shows he is assigned to the cell from December 15th to June 23rd.

[00:23:00] Speaker 05:
And that record, and that's in the appellate appendix page.

[00:23:04] Speaker 05:
What year?

[00:23:05] Speaker 05:
Oh, 2014.

[00:23:08] Speaker 05:
December 15th, 2014 is when he is assigned to the cell.

[00:23:12] Speaker 05:
Until June 23rd of 2015.

[00:23:17] Speaker 02:
And how does that take the toilet issue out of the picture?

[00:23:21] Speaker 02:
Well, he had an assigned toilet.

[00:23:22] Speaker 02:
I understand, but he was in a common bunk during part of this, too, and he made these arguments.

[00:23:27] Speaker 02:
So tell us about that.

[00:23:28] Speaker 05:
OK, so during the other part, the first toilet incident that are recorded are the requests to staff, not requests to staff, the maintenance records.

[00:23:40] Speaker 03:
I'm going to get lost here.

[00:23:41] Speaker 03:
OK.

[00:23:42] Speaker 03:
Focus on the time.

[00:23:44] Speaker 03:
that he was in the common bunk and the defendants were at the facility.

[00:23:49] Speaker 05:
Okay.

[00:23:49] Speaker 05:
There are only five total incidents that can be associated with toilets that are the communal toilets in the records.

[00:23:56] Speaker 04:
Can you first give us the dates for when he's in PAW Day and either Christman or Sharp are still there?

[00:24:04] Speaker 05:
May 1st, 2014, when he starts making, when the inmates are, the influx of inmates occurs, he is assigned to PAW Day.

[00:24:14] Speaker 05:
He is in Pod A South from May 1st until he is transferred out of the facility.

[00:24:20] Speaker 05:
That's just later, August of 2016.

[00:24:25] Speaker 05:
So the first toilet incident that is in the record is on July 7th, and that is a communal toilet.

[00:24:33] Speaker 05:
And that's at 312.

[00:24:34] Speaker 05:
That's 2014.

[00:24:38] Speaker 05:
And then the next toilet instead, he is in the common area.

[00:24:43] Speaker 05:
And the record there doesn't actually identify the toilet, but I will give you that it could be the communal one.

[00:24:50] Speaker 05:
So, and then there's September 11th, there's a work order for the communal toilet at 322.

[00:24:57] Speaker 05:
And it was fixed the same day.

[00:25:00] Speaker 05:
So there was an intermittent loss of one toilet.

[00:25:03] Speaker 04:
Well, the one thing that the record shows is that only staff made the request for maintenance and so it depended on how long it was broken before staff made that request.

[00:25:20] Speaker 04:
So we don't know if it was broken for a period of time prior to the time

[00:25:25] Speaker 04:
that the September 11th request went in.

[00:25:28] Speaker 04:
Would you accept that?

[00:25:29] Speaker 05:
No.

[00:25:30] Speaker 04:
Why not?

[00:25:31] Speaker 04:
Because there are the unit managers, there's daily in... Do you have evidence in the record that shows that the toilet was not broken for any period of time before September 11th, 2014?

[00:25:44] Speaker 05:
I don't think there's evidence that it was broken before that either.

[00:25:48] Speaker 04:
There's no evidence either way.

[00:25:48] Speaker 04:
Well, there's testimony from Mr. Womble that the inmates

[00:25:54] Speaker 04:
couldn't report, make the request.

[00:25:57] Speaker 05:
They couldn't put it in writing.

[00:25:58] Speaker 05:
They could make oral requests.

[00:26:00] Speaker 05:
Mr. Womble testified that he was making oral requests.

[00:26:03] Speaker 05:
Yes.

[00:26:03] Speaker 03:
So you're relying on a habit, essentially.

[00:26:07] Speaker 03:
There's inspections daily.

[00:26:09] Speaker 03:
Yes.

[00:26:10] Speaker 03:
And you're relying on that evidence.

[00:26:12] Speaker 03:
He has testimony sworn statement to the contrary.

[00:26:17] Speaker 03:
At summary judgment, we've got to believe him, don't we?

[00:26:21] Speaker 05:
You don't have to if it's not credible.

[00:26:23] Speaker 04:
We can't decide credible.

[00:26:25] Speaker 05:
Not credible in the sense of that.

[00:26:27] Speaker 04:
You just said not credible and that's what the district court did, right?

[00:26:30] Speaker 04:
The district court said, I don't think a jury will believe Mr. Womble.

[00:26:36] Speaker 04:
I believe his statements are blatantly contradicted by the evidence.

[00:26:39] Speaker 04:
Oh, do we have a video?

[00:26:41] Speaker 05:
No.

[00:26:41] Speaker 05:
Okay.

[00:26:42] Speaker 05:
But we have other affidavits.

[00:26:44] Speaker 05:
We have people doing daily walkthroughs.

[00:26:46] Speaker 03:
They're not seeing this.

[00:26:47] Speaker 03:
You have evidence that may well prevail at trial, but that's not the posture of the case.

[00:26:53] Speaker 05:
Well, the posture of the case is qualified immunity, and he has to show constitutional violation.

[00:26:58] Speaker 04:
Well, so the first question is whether we have a serious condition, and if in fact there was, you know, the condition of the toilets were as he

[00:27:11] Speaker 04:
has reported, I think you would agree there's case law that would support him that that's serious.

[00:27:17] Speaker 05:
He's not confined in the filth.

[00:27:19] Speaker 05:
Those cases all require people to be actually confined in the near proximity of the filth for dedicated periods of time.

[00:27:27] Speaker 05:
He is not confined in the cell with the filth.

[00:27:30] Speaker 02:
Well, he had to clean off his boots a bunch of times.

[00:27:33] Speaker 05:
He voluntarily walked into a bathroom with that.

[00:27:36] Speaker 05:
There were other facilities that were apparently still operational.

[00:27:39] Speaker 05:
If someone met, might or might not have been locked in or using.

[00:27:42] Speaker 02:
Let's back up.

[00:27:44] Speaker 02:
How do you know he voluntarily?

[00:27:48] Speaker 02:
I mean, how can you even know that?

[00:27:51] Speaker 02:
How could the record even know that?

[00:27:53] Speaker 02:
He said he had to clean off his boots several times.

[00:27:56] Speaker 05:
Because he went into a restroom that he... Did he have to go in there?

[00:28:01] Speaker 05:
Did someone say you have to use that restroom?

[00:28:04] Speaker 02:
He said occasionally he could use other restrooms.

[00:28:07] Speaker 02:
Did somebody say otherwise?

[00:28:09] Speaker 02:
He said he used the library restroom.

[00:28:12] Speaker 02:
All right.

[00:28:15] Speaker 02:
I'm beginning to realize that...

[00:28:19] Speaker 05:
He's going to come up and take over here in about 30 seconds.

[00:28:24] Speaker 00:
I think we've got some questions for you.

[00:28:26] Speaker 00:
We've got more questions here.

[00:28:27] Speaker 00:
OK.

[00:28:27] Speaker 00:
It's going to be a while.

[00:28:29] Speaker 04:
It seems to me the fees all arise with whether we affirm or reverse.

[00:28:34] Speaker 04:
Well, that's true.

[00:28:36] Speaker 02:
I don't know that we need more.

[00:28:37] Speaker 02:
Let me ask you this.

[00:28:38] Speaker 02:
I don't see your name on the brief.

[00:28:40] Speaker 02:
Is that right?

[00:28:40] Speaker 02:
That's correct, Your Honor.

[00:28:41] Speaker 02:
All right.

[00:28:42] Speaker 02:
And we're getting some arguments that

[00:28:43] Speaker 02:
really weren't highlighted in the brief.

[00:28:46] Speaker 02:
So I'm taking it.

[00:28:48] Speaker 05:
I think they were in the footnotes and things that the court was considering.

[00:28:51] Speaker 03:
He just didn't spend a lot of time with them.

[00:28:53] Speaker 03:
The facts might have been there.

[00:28:53] Speaker 03:
It wasn't presented to us this way.

[00:28:56] Speaker 03:
I'm glad the other members of the panel don't remember this either.

[00:29:00] Speaker 04:
No.

[00:29:01] Speaker 04:
And as a general rule, we don't take argument in the footnote as being adequately briefed.

[00:29:05] Speaker 05:
I understand.

[00:29:06] Speaker 03:
Or at least highlighted.

[00:29:07] Speaker 03:
Let me put this in perspective, because this happens a lot in these cases.

[00:29:12] Speaker 03:
The government is very

[00:29:13] Speaker 03:
frustrated because a prisoner is saying things that aren't true, and they're very confident that it's not true, and then they move for summary judgment.

[00:29:25] Speaker 03:
And we've got to take their allegations under oath.

[00:29:27] Speaker 03:
The prisoner's allegations under oath is true.

[00:29:30] Speaker 03:
I think there's a record.

[00:29:32] Speaker 03:
This is just

[00:29:33] Speaker 03:
It's a premature thing.

[00:29:35] Speaker 03:
I can understand your frustration if you think he's totally manufacturing this evidence, but the solution isn't to ignore evidence to obtain summary judgment.

[00:29:47] Speaker 03:
And you're putting up, you're mentioning you have good evidence to rebut him.

[00:29:51] Speaker 03:
That may well be so, but that's not, that's for the jury to decide, not for the judge and summary judgment.

[00:29:58] Speaker 05:
I think the judge got it correct at summary judgment.

[00:30:00] Speaker 05:
I don't think there was clearly established law at all points, especially on the processed food.

[00:30:05] Speaker 02:
I don't think there's a constitutional right on that.

[00:30:08] Speaker 05:
There's lots of different reasons on this case.

[00:30:09] Speaker 02:
Counsel, counsel, the judge didn't rely on clearly established law.

[00:30:13] Speaker 05:
He did at some points.

[00:30:14] Speaker 02:
No.

[00:30:14] Speaker 02:
He said what the law is is clearly established, and then he said there was no violation.

[00:30:22] Speaker 02:
Now, you're not making a clearly established law argument, at least in your brief.

[00:30:25] Speaker 02:
Are you making one today?

[00:30:26] Speaker 02:
Is this a new argument as well?

[00:30:28] Speaker 05:
No.

[00:30:28] Speaker 05:
I'm not.

[00:30:29] Speaker 02:
All right.

[00:30:30] Speaker 02:
So we're talking about the first step of qualified immunity and whether a reasonable jury could find the objective and subjective components of the food nutrition and the toilet overflowing claim.

[00:30:44] Speaker 02:
Isn't that what's before the court right now?

[00:30:46] Speaker 02:
Yes, Your Honor.

[00:30:47] Speaker 02:
All right.

[00:30:48] Speaker 05:
And I don't think that Mr. Wobble met that burden.

[00:30:51] Speaker 02:
And you're not making any argument about clearly established law on appeal?

[00:30:57] Speaker 02:
No, Your Honor.

[00:30:57] Speaker 02:
All right.

[00:30:59] Speaker 04:
Let's turn to the food deprivation part of this so that you don't run out of time on that.

[00:31:07] Speaker 04:
Mr. Womble says that there were blanks in the trays where they weren't filled in and he says that he told, he orally reported that he wasn't getting enough food and that the food was spoiled and making him sick.

[00:31:25] Speaker 04:
Is that enough?

[00:31:26] Speaker 04:
No.

[00:31:28] Speaker 04:
What more do we need or what's missing?

[00:31:31] Speaker 05:
I think the record just contradicts him completely.

[00:31:33] Speaker 05:
And it's not, the record just doesn't support that.

[00:31:39] Speaker 05:
The record shows that there were trays being maintained, three days worth of trays were being maintained by the kitchen so you could see what was served every day.

[00:31:49] Speaker 05:
The master menu was posted on the wall.

[00:31:52] Speaker 05:
Chrisman and Sharp were both going through the kitchen routinely.

[00:31:55] Speaker 05:
Mr. Sharp was eating in the kitchen routinely.

[00:31:58] Speaker 05:
He is not seeing these things.

[00:31:59] Speaker 05:
He is looking at these reports, not necessarily daily, but he's doing spot checks of these reports frequently.

[00:32:07] Speaker 05:
There is no blanking of the slots.

[00:32:09] Speaker 05:
Not all meals require all slots.

[00:32:12] Speaker 04:
One of the things that Mr. Wambel says is that the master menu was not accurate.

[00:32:18] Speaker 04:
Can we just disregard his sworn testimony?

[00:32:25] Speaker 05:
I think there's no basis for it.

[00:32:27] Speaker 03:
He just says it.

[00:32:28] Speaker 03:
People believe a word he says and maybe you're right about that.

[00:32:32] Speaker 03:
But we have to believe what he says unless it's blatantly contradicted by video evidence or something like that.

[00:32:39] Speaker 05:
But his is just generalizations.

[00:32:41] Speaker 05:
He says he has one menu thing and then he admits in his deposition about bean day, spaghetti day, chicken patty day, and bologna day, and yet none of that is accounted for in his menus.

[00:32:54] Speaker 05:
or anything.

[00:32:55] Speaker 05:
What do you mean his menus?

[00:32:57] Speaker 05:
He provided one menu of he's routinely getting eight ounces of gravy and whatever and a piece of two biscuits and things that are in the nutrition report.

[00:33:07] Speaker 05:
That's the one thing he puts in his declaration but then in his deposition testimony he commits to five other different menus that are very different than what he has put in his declaration and then he says that's what I'm getting all the time it's just not

[00:33:21] Speaker 05:
based in reality, because those bean days and everything show up on the master menus.

[00:33:25] Speaker 04:
He doesn't testify that that's what I'm getting all the time.

[00:33:28] Speaker 04:
What he testifies to is that whatever they were giving me, it was either spoiled or inadequate in terms of the caloric intake.

[00:33:38] Speaker 05:
I don't think he knows what it was supposed to be.

[00:33:41] Speaker 04:
Well, and that is, again, I mean, I think, like Judge Hartz, I understand your frustration.

[00:33:51] Speaker 04:
It's apparent the district court is frustrated too.

[00:33:55] Speaker 04:
And he may lose at a trial.

[00:33:57] Speaker 04:
He may have a very weak case, but that's not what we do on summary judgment.

[00:34:06] Speaker 05:
I don't think he made a question a fact.

[00:34:10] Speaker 04:
And the reason you don't think that is that you would discount everything he said because it's not credible.

[00:34:15] Speaker 05:
It doesn't actually tell you anything.

[00:34:17] Speaker 05:
It's very vague and generalized.

[00:34:19] Speaker 05:
It doesn't give you particularities or specifics, whereas the evidence in the record that is in documents and other things is particularized.

[00:34:30] Speaker 02:
Can I just switch to the toilet?

[00:34:34] Speaker 02:
Yeah.

[00:34:34] Speaker 02:
So let's assume, for the sake of discussion, I know you

[00:34:38] Speaker 02:
probably don't agree with this, but let's assume for the sake of discussion that the objective component of that claim is satisfied.

[00:34:49] Speaker 02:
And on the subjective part of it, that the defendants were aware of a problem with toilet overflow.

[00:34:59] Speaker 02:
Okay.

[00:35:02] Speaker 02:
But the plaintiff still has to show that they were deliberately indifferent.

[00:35:07] Speaker 02:
And what I'm interested in

[00:35:09] Speaker 02:
is what's your best argument that they were not deliberately indifferent?

[00:35:16] Speaker 05:
Well, I don't agree with the knowledge aspect.

[00:35:19] Speaker 05:
We're assuming that's true.

[00:35:21] Speaker 05:
We're assuming.

[00:35:22] Speaker 05:
I don't think it was deliberate because they were trying to have maintenance daily done.

[00:35:27] Speaker 05:
Based on when it came to their attentions, repairs were done on a daily basis for the most part.

[00:35:33] Speaker 05:
There were a couple of incidences where it took longer than a day.

[00:35:36] Speaker 05:
where pants were shoved down the toilet or down a drain.

[00:35:39] Speaker 05:
And that was a shower, so that wasn't a toilet.

[00:35:41] Speaker 05:
And then there was one toilet incident where there was a towel shoved down the toilet.

[00:35:45] Speaker 05:
And that may have taken a little longer to get out.

[00:35:48] Speaker 05:
But they apparently had a practice of trying to have maintenance done the same day as a request came in, especially on toilets.

[00:35:57] Speaker 05:
That's what the evidence appears to say.

[00:35:59] Speaker 03:
Well, his testimony, which is contrary to that, is that the defendants saw what was happening.

[00:36:05] Speaker 03:
They would have known that there had been an inordinate amount of time before something was repaired.

[00:36:15] Speaker 05:
I think they would testify that they, based on their testimony, they weren't seeing what Mr. Wambel says he says they were saying.

[00:36:21] Speaker 05:
So there is not an agreement on what they were saying.

[00:36:23] Speaker 05:
So you'll win a trial, you're saying.

[00:36:24] Speaker 05:
Well, I'm saying Mr. Wambel says these were things going on.

[00:36:28] Speaker 05:
They're walking there.

[00:36:29] Speaker 05:
They're not seeing it.

[00:36:30] Speaker 04:
But isn't that a dispute of fact?

[00:36:33] Speaker 05:
I don't think, based on the record, he has created a dispute of fact.

[00:36:38] Speaker 05:
You can say a lot of things.

[00:36:39] Speaker 05:
Because you think he's lying.

[00:36:41] Speaker 05:
No, I think he's got some generalizations, and he doesn't have a good grasp of time.

[00:36:46] Speaker 05:
Because I think some of this is after they're gone.

[00:36:49] Speaker 04:
Well, but we have a period of time when they're there.

[00:36:51] Speaker 04:
We established that early.

[00:36:52] Speaker 04:
Yes, but he also- So that's what we're focusing on.

[00:36:54] Speaker 05:
Yes, but he also testified that in May, the toilets were being operated fine.

[00:37:00] Speaker 05:
And then he also said the toilets were being operated fine in June.

[00:37:03] Speaker 04:
So we have two months as in his deposition.

[00:37:06] Speaker 04:
Is that 2014?

[00:37:07] Speaker 04:
Yes, that's when he's dealing with a lot of years.

[00:37:10] Speaker 04:
It's helpful.

[00:37:10] Speaker 04:
Yes, I'm sorry.

[00:37:11] Speaker 05:
But at the beginning of the problem with the overcrowding, he said two months of it, they were operating fine in his deposition.

[00:37:22] Speaker 05:
So then we have August where it may be starting to be a problem for him or July.

[00:37:32] Speaker 05:
It's just not enough.

[00:37:35] Speaker 04:
So how many months, if we take it that there was this problem with feces and everything else, how many months before it becomes severe enough to be a constitutional violation?

[00:37:48] Speaker 04:
I don't think it ever did.

[00:37:50] Speaker 04:
I'm not asking you that.

[00:37:51] Speaker 04:
I'm saying assume that you have the feces and urine and the condition he describes.

[00:37:58] Speaker 04:
How many months would a prisoner be required to walk through that

[00:38:02] Speaker 04:
before it would reach the level of a constitutional violation.

[00:38:05] Speaker 04:
I don't know.

[00:38:05] Speaker 05:
We don't have a case law.

[00:38:06] Speaker 04:
Well, we do have case law.

[00:38:07] Speaker 04:
We have case law of 36 hours.

[00:38:09] Speaker 05:
Trapped in a cell.

[00:38:11] Speaker 04:
He's not trapped in a cell.

[00:38:12] Speaker 04:
But it's the exposure to the filth, right?

[00:38:18] Speaker 05:
It's the trapped in the cell with the filth and not being able to clean it or escape it.

[00:38:26] Speaker 03:
And you said, you said something about the library restroom.

[00:38:29] Speaker 03:
Was that always available?

[00:38:31] Speaker 05:
He said he worked in the library and that he would use that restroom, too, while he had, when he was working in the library.

[00:38:37] Speaker 05:
It's unclear how long he was working in the library, but it was for a period of time.

[00:38:41] Speaker 05:
And we don't know whether that period of time coincides with the May 1st through his time in the common box.

[00:38:51] Speaker 04:
And again, I don't remember that argument from the briefs, but maybe I'm

[00:38:56] Speaker 04:
Getting old and forgetful.

[00:39:00] Speaker 03:
Well, your time has expired.

[00:39:02] Speaker 03:
Thank you.

[00:39:02] Speaker 03:
I think we get the gist of your argument.

[00:39:04] Speaker 05:
Thank you.

[00:39:20] Speaker 01:
Before I pick up on a few points from Council's argument,

[00:39:24] Speaker 01:
The main point of what I just heard is indicative of the largest problem of the district court's order here is that the district court did not want to credit Mr. Womble's testimony on summary judgment.

[00:39:36] Speaker 01:
That is the largest source of error here.

[00:39:39] Speaker 01:
Getting into some of the specifics and just where we followed up, there is testimony from Mr. Womble about when these bathroom conditions got worse.

[00:39:50] Speaker 01:
He testified that in September, October of 2014 that they got worse.

[00:39:54] Speaker 01:
If we think about the timeline here, and this is in the record and in our briefing, there was 328 days total when Mr. Womble was in the temporary box.

[00:40:03] Speaker 01:
And just to put that into perspective also of when defendants worked there or when he was in the temporary cells, that also means from May 2014 through December of 2014, Mr. Womble was in the temporary situation that caused these constitutional violations.

[00:40:19] Speaker 01:
There was an adequate time period.

[00:40:21] Speaker 01:
of Mr. Womble to do this.

[00:40:22] Speaker 01:
And I also think the conditions of confinement are important here.

[00:40:26] Speaker 01:
I think both the district court and defendants appear to fault Mr. Womble for walking into these feces-filled bathrooms and not having a notepad with him to note the date and time of every time he was exposed to feces and how long.

[00:40:40] Speaker 01:
And I think on the subjective component, we do have guideposts.

[00:40:49] Speaker 01:
We have 36 hours from dispensing.

[00:40:51] Speaker 01:
for taking and crediting Mr. Womble's evidence here.

[00:40:55] Speaker 01:
Two to three days at a time, these were not fixed.

[00:40:57] Speaker 04:
Well, it is true that in the 36-hour case, it was in the actual cell.

[00:41:04] Speaker 04:
Sure.

[00:41:05] Speaker 04:
So, you know, he's sleeping there.

[00:41:08] Speaker 04:
It is different, isn't it?

[00:41:12] Speaker 01:
It is different.

[00:41:13] Speaker 01:
One point that I did disagree with from defense counsel is that Mr. Womble voluntarily

[00:41:21] Speaker 01:
use these facilities filled with feces.

[00:41:23] Speaker 01:
He didn't voluntarily do that.

[00:41:25] Speaker 01:
It was the only bathroom that he had available to him.

[00:41:29] Speaker 01:
And the Eighth Amendment requires that if these prisons are going to confine individuals, they at very least need to be of constitutional standards.

[00:41:38] Speaker 01:
So yes, he went into that bathroom because it was the only bathroom that he could use.

[00:41:43] Speaker 01:
And there was feces on the floor.

[00:41:45] Speaker 01:
And he had to clean his boots off after he used it.

[00:41:49] Speaker 01:
One point that I wanted to make quickly from when I was first up here with you Judge Hartz, I do think on the weight loss, there's testimony of defendants were in the mess hall every day.

[00:42:02] Speaker 01:
Defendant Sharp said he ate these meals.

[00:42:05] Speaker 01:
He would have known that there was less food on these trays, and he also heard

[00:42:09] Speaker 01:
Mr. Wong will ask him for more food, and that's when he responded, you should be grateful you get food.

[00:42:14] Speaker 01:
So I do think that there is evidence that he told them about the lack of food that was leading to his weight loss.

[00:42:20] Speaker 04:
But there's a big difference between I'm hungry and I'm starving.

[00:42:25] Speaker 04:
I mean, what evidence is there in the record that

[00:42:30] Speaker 04:
that it was the latter.

[00:42:32] Speaker 01:
Right.

[00:42:32] Speaker 01:
First, I don't think there needs to be evidence of starvation for there to be a constitutional violation here.

[00:42:38] Speaker 01:
It's clear that Mr. Womble was telling them several times, I'm not getting enough food.

[00:42:43] Speaker 01:
And while Mr. Womble may have not characterized that as starvation, per se, I think he was credible in his testimony on this, his expert did say it was starvation.

[00:42:57] Speaker 01:
At the end of the day, I think it's important to remember how long we've been here.

[00:43:02] Speaker 01:
This is 12 years in the running now.

[00:43:04] Speaker 01:
I think defendants clearly dispute Mr. Wambel's record of events.

[00:43:08] Speaker 01:
But I think the best course of action here is for a jury to hear the evidence and finally decide this case.

[00:43:13] Speaker 01:
Thank you.

[00:43:14] Speaker 01:
Thank you, counsel.

[00:43:17] Speaker 03:
Sorry.

[00:43:20] Speaker 03:
It's not unusual.

[00:43:24] Speaker 03:
Thank you, counsel.

[00:43:24] Speaker 03:
Case is submitted.

[00:43:25] Speaker 03:
Counselor excused.