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Tuesday, December 08, 2015

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

On August 20th, the ILB quoted at length from a 2-1 7th Circuit opinion, Jeffrey Rowe v. Monica Gibson, where Judge Posner, who authored the opinion, had performed extensive internet research. Judge Hamilton, in dissent, wrote in part:

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.)
As the Wisconsin Appellate Law blog reported yesterday, there was a vote to rehear the case en banc:
The results are in this afternoon in the Seventh Circuit’s vote to rehear en banc Rowe v. Gibson, No. 14-3316 (Aug. 19, 2015), and it was a close one, a 4-4 tie, which means that the majority’s opinion stands, though not without an extraordinary exercise in defensiveness by the panel majority (but more on that below).

A vote of the majority of the judges in regular active service on the Seventh Circuit was required to rehear the case en banc, leaving the petitioner one vote short.

There are currently nine judges in regular active service on the court, but Judge Joel Flaum did not participate in the vote, creating the potential for a deadlocked court since there were only eight votes left to be cast. Judges Frank Easterbrook, Michael Kanne, Diane Sykes, and David Hamilton (the last of whom wrote a stinging dissent in Rowe) voted to rehear the case en banc. Chief Judge Diane Wood and Judges Richard Posner, Ilana Diamond Rovner, and Anne Claire Williams voted to deny the petition for rehearing.

The post continued with an interesting discussion of how, in "what we think was a highly unusual and defensive move, the panel majority (Judges Posner and Rovner) used the court’s order denying the petition for rehearing en banc today" to defuse the issue, to explain "that the panel’s debate over internet research, while “lively,” was not essential to its decision to overturn the district court’s grant of summary judgment."

Read the entire post, by Eric G. Pearson, here

Posted by Marcia Oddi on December 8, 2015 08:28 AM
Posted to Ind. (7th Cir.) Decisions