Dissenter blasts Posner's Internet research in inmate's suit over acid reflux treatment
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Judge Richard Posner’s Internet research led to sparring in a divided opinion on Wednesday that reinstated a lawsuit filed by an Indiana inmate who claimed prison staffers failed to treat his acid reflux properly.
Posner defended his online research about the condition, saying it was used only to demonstrate the existence of a dispute sufficient to prevent summary judgment for prison officials. The case involved a pro se plaintiff, inmate Jeffrey Rowe, who was denied appointed counsel and a medical expert, and couldn’t afford to pay for help.
“Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice?” Posner wrote in his opinion for the Chicago-based 7th U.S. Circuit Court of Appeals. “It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.”
Concurring and dissenting, Judge David Hamilton said Posner’s research “falls outside permissible boundaries” and his decision using that research “is an unprecedented departure from the proper role of an appellate court.”
According to How Appealing, the decision “will no doubt rekindle the debate about the extent to which appellate courts can and should perform independent factual research in deciding an appeal.” Josh Blackman’s Blog has coverage here.
Rowe had alleged prison officials confiscated his Zantac, which meant he had to take the pills when the nurse dispensed them instead of the time he needed them—with meals. After he sued, his prescription lapsed and prison officials ignored his request for a new one, though they said he could purchase the medicine offsite and over the counter. A month later, a prison physician renewed the prescription, but the pills were still dispensed by a nurse on the prison’s schedule, five and a half hours to six and a half hours before Rowe’s meals.
Posner visited several websites for information on acid reflux and Zantac, including when the drug should be taken. Websites visited included the the Mayo Clinic, WebMD, Healthline, the National Institutes of Health, Wikipedia and Physicians’ Desk Reference. He also visited healthgrades for information on the prison doctor, a defendant who also served as an expert witness in the case.
According to Posner’s research, the dosage of Zantac prescribed for Rowe wouldn’t have remained in his blood long enough to treat stomach acid from the meals he received many hours after his twice-a-day pills.
“There is a high standard for taking judicial notice of a fact,” Posner wrote, “and a low standard for allowing evidence to be presented in the conventional way, by testimony subject to cross-examination, but is there no room for anything in between? …
“Must our system of justice allow the muddled affidavit of a defendant who may well be unqualified to be an expert witness in this case to carry the day against a pro se plaintiff helpless to contest the affidavit?”
Hamilton said Posner’s approach “turns the court from a neutral decision-maker into an advocate for one side” and raises unanswered questions. “When are district judges supposed to carry out this independent factual research?” Hamilton writes. “How much is enough? What standards of reliability should apply to the results?”
Concurring Judge Ilana Diamond Rovner noted the case had “morphed into a debate” about Internet research. In Rovner’s view, resolution of the case didn’t require any departure from the record because she had no trouble giving Rowe the benefit of the doubt.
