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Thursday, August 20, 2015

Ind. Decisions - 7th Circuit decided one Indiana case yesterday, a must read on independent research by judges [Updated]

In Jeffrey Rowe v. Monica Gibson (SD Ind., Barker), a 47-page opinion with a majority opinion by Judge Posner, a concurring opinion by Judge Rovner, and a concur/dissent by Judge Hamilton. J. Posner:

An Indiana prison inmate named Jeffrey Rowe, the plaintiff in this suit under 42 U.S.C. § 1983, charges administrators and prison staff (actually employees of Corizon, Inc., which provides medical services to the inmates at Pendleton Correctional Facility, Rowe’s prison) with deliberate indifference to a serious medical need—that is, with knowing of a serious risk to inmate health or safety but responding ineffectually (as by departing substantially from accepted professional judgment) or not at all. See, e.g., Farmer v. Brennan, 511 U.S. 825, 837 (1994); Sain v. Wood, 512 F.3d 886, 894–95 (7th Cir. 2008). Such conduct was held in Farmer to violate the cruel and unusual punishments clause of the Eighth Amendment, deemed applicable to state action by interpretation of the due process clause of the Fourteenth Amendment. Rowe charges gratuitous infliction of physical pain and potentially very serious medical harm—cogent examples of cruel and unusual punishment. He has a subsidiary claim of having been retaliated against for filing this lawsuit, a claim we discuss briefly toward the end of our opinion. The district judge granted summary judgment in favor of the defendants on both claims, dismissing Rowe’s suit and precipitating this appeal. * * *

[continuing, J. Posner's opinion cites research from the Mayo Clinic website, Wikipedia, the PDR, then on p. 12]

In citing even highly reputable medical websites in support of our conclusion that summary judgment was premature we may be thought to be “going outside the record” in an improper sense. It may be said that judges should confine their role to choosing between the evidentiary presentations of the opposing parties, much like referees of athletic events. But judges and their law clerks often conduct research on cases, and it is not always research confined to pure issues of law, without disclosure to the parties. We are not like the English judges of yore, who under the rule of “orality” were not permitted to have law clerks or other staff, or libraries, or even to deliberate—at the end of the oral argument in an appeal the judges would state their views seriatim as to the proper outcome of the appeal.

We don’t insulate judges like that, but we must observe proper limitations on judicial research. We must acknowledge the need to distinguish between judicial web searches for mere background information that will help the judges and the readers of their opinions understand the case, web searches for facts or other information that judges can properly take judicial notice of (such as when it became dark on a specific night, a question we answered on the basis of an Internet search in Owens v. Duncan, 781 F.3d 360, 362 (7th Cir. 2015), citing WeatherSpark, “Average Weather On September 22 For Chicago, Illinois, USA: Sun,” https://weather spark.com/averages/30851/9/22/Chicago-Illinois-United-Stat es), and web searches for facts normally determined by the factfinder after an adversary procedure that produces a district court or administrative record. When medical information can be gleaned from the websites of highly reputable medical centers, it is not imperative that it instead be presented by a testifying witness. Such information tends to fall somewhere between facts that require adversary procedure to determine and facts of which a court can take judicial notice, but it is closer to the second in a case like this in which the evidence presented by the defendants in the district court was sparse and the appellate court need only determine whether there is a factual dispute sufficient to preclude summary judgment. * * *

[An appendix to J.Posner's opinion, begins at p. 21:]

We respectfully suggest that the dissenting opinion is misleading in certain respects that require a response; page references are to pages in the dissent. * * *

[p.27] J. Rovner, concurring.

A disagreement about the outcome of this relatively simple case has morphed into a debate over the propriety of appellate courts supplementing the record with Internet research. To be clear, I do not believe that the resolution of this case requires any departure from the record: as the majority opinion makes patently clear, * * *

[p.29] J. Hamilton, concurring in part and dissenting in part.

I agree with the majority’s disposition of most claims and issues: affirming summary judgment for defendants on several claims and reversing on Rowe’s retaliation claim and his claim for complete denial of his Zantac medicine for 33 days in July and August 2011.

I must dissent, however, from the reversal of summary judgment on Rowe’s claim regarding the timing for administering his medicine between January and July 2011 and after August 2011. On that claim, the reversal is unprecedented, clearly based on “evidence” this appellate court has found by its own internet research. The majority has pieced together information found on several medical websites that seems to contradict the only expert evidence actually in the summary judgment record. With that information, the majority finds a genuine issue of material fact on whether the timing of Rowe’s Zantac doses amounted to deliberate indifference to a serious health need, and reverses summary judgment. (The majority denies at a couple of points that its internet research actually makes a difference to the outcome of the case, see ante at 14, 16, but when the opinion is read as a whole, the decisive role of the majority’s internet research is plain.) * * *

[See especially, beginning at p. 33, "II. The Law on Judicial Research into the Facts"]

[Updated] The ABA Journal has a good discussion, by Debra Cassens Weiss, headed "Dissenter blasts Posner’s Internet research in inmate’s suit over acid reflux treatment."

Posted by Marcia Oddi on August 20, 2015 08:00 AM
Posted to Ind. (7th Cir.) Decisions