The 7th Circuit Court of Appeals has a fascinating (to me) opinion that involves dueling visions of what sort of independent research by appellate court judges is appropriate in the context of a pro se claim of 8th Amendment cruel and unusual punishment due to inadequate medical care while in prison. (h/t Indiana Law Blog).
Some background information:
1. Mostly judges are supposed to decide a case based on facts established through properly designated evidence. In the context of motions for summary judgment, the judge is supposed to resolve factual disputes in favor of the non-movant. Some limited factual information is permitted to be admitted through “judicial notice.” Judicial notice is usually reserved for things that can’t reasonably be disputed (e.g. sunrise, sunset times; the authenticity of government records (though not necessarily the veracity of their contents)).
2. In the Eighth Amendment context, prisoners have a Constitutional claim if prison officials demonstrate “deliberate indifference to a serious medical need.” It is a higher standard than medical malpractice.
In this case, an inmate suffered from esophagitis. The prison doctor prescribed him Zantac but the inmate complained about the times he was able to get it (not close enough to meal times) and that he was restricted in his ability to get it from the prison pharmacy for periods of time, told that if he wanted it, he would have to get it from the commissary with his own money. The defendants submitted evidence from the prison doctor that giving him Zantac twice a day, regardless of the times, was appropriate. According to the dissent, the record established the following:
On Rowe’s claim that the timing of his Zantac doses showed deliberate indifference to his health, the evidence in the record consists of two items. First, plaintiff Rowe asserts in his verified complaint and in several affidavits that he believes the prison’s schedule for giving him two 150 mg Zantac pills each day left him in unnecessary and avoidable pain for hours every day after meals. Second, defendants filed an affidavit from defendant Dr. William Wolfe, who was a career physician in the United States Air Force and is now a contract physician for the Indiana Department of Correction. Dr. Wolfe testified: “It does not matter what time of day Mr. Rowe receives his Zantac prescription. Each Zantac pill is fully effective for twelve hour increments. Zantac does not have to be taken before or with a meal to be effective. Providing Mr. Rowe with Zantac twice daily as the nursing staff makes their medication rounds, whatever time that may be, is sufficient and appropriate to treat his heart burn symptoms.”
The District Court judge, based on the record before it, entered summary judgment in favor of the defendants, concluding there was not a substantial issue of material fact which, if the jury credited the inmate, would provide a basis for concluding that the prison staff acted with deliberate indifference to a serious medical need (which, remember, is something beyond mere medical malpractice.)
The majority decision, written by Judge Posner, includes a great deal of information obtained by the Court of Appeals from internet websites. It then, however, says that this information is not the basis of its decision to reverse the District Court. The majority decision says that the information is neither the result of evidence presented under the normal rules of evidence or as a matter of judicial notice. It characterizes the information as falling “somewhere between facts that require adversary procedure to determine and facts of which a court can take judicial notice.” Additionally, it cites the inmate’s inability to afford or locate an expert medical witness to contradict the expert testimony provided by the jail doctor as a basis for reversing.
Judge Hamilton, writing a dissent, complains that this is not how the judicial process works. He is very skeptical of the majority’s assertion that Internet research did not play a critical role in the Court of Appeals’ decision. If it didn’t matter, why spend all that time on information located online? Such independent research by District Court judges or juries, Judge Hamilton observes, is the basis for the Court of Appeals reversing the lower court. The Court of Appeals should not engage in such extrajudicial fact finding itself. Judge Hamilton observes that “the issue on summary judgment is whether the evidence in the record would allow a reasonable jury to find in favor of the non-moving party. (emphasis in the original). By reversing the district court, the majority is necessarily concluding that this record is sufficient to sustain a jury finding of deliberate indifference. By extension, this dramatically lowers the bar for establishing deliberate indifference under the 8th Amendment. (The majority seems pretty clearly to intend that, at trial, a more complete record be established — but, under traditional principles of the federal Court of Appeals’ role in reviewing an order granting summary judgment, giving the non-movant a second bite at the apple is not an option. The unsuccessful non-movant can’t protest that he or she was going to show the jury more than he or she submitted at the summary judgment stage.)
I was amused by this critique offered by Judge Hamilton:
To justify this venture, the majority asks a number of rhetorical questions and invokes the courage of the barons at Runnymede in 1215. Ante at 14. With respect, we are an intermediate appellate court. The Federal Rules of Evidence and Federal Rules of Civil Procedure that we apply are adopted and amended through processes established by the Rules Enabling Act, 28 U.S.C. § 2071 et seq. We simply do not have authority on our own to take the law into this unknown territory.
He then expands on the practical mess this creates for other cases — litigants will have to anticipate and respond to, not just the evidence presented by their adversaries, but by outside research the judiciary might do. There is also the issue of who has to pay for the expert witnesses the indigent inmate might want or demand. The courts don’t have the resources to pay for much of that. It is unfair to make the defendants incur such expenses, not just for themselves, but for the indigent inmates, in those cases when they’ve done nothing wrong.
As is probably obvious from the way I have framed this blog post, I agree with Judge Hamilton. I don’t have much problem concluding that there was a good chance that the prison doctor exercised inadequate medical judgment. But that’s a medical malpractice claim, and if the inmate is going to make such a claim, he should bring it under that theory. (With respect to the deliberate indifference necessary to sustain a Constitutional claim, Judge Hamilton notes that even the extra-judicial information cited by the majority does not establish that “Dr. Wolfe was so thoroughly and obviously wrong that a jury could infer that prison staff were deliberately indifferent to Rowe’s health needs.” (emphasis in the original)).
That the judicial process presents difficulties for people without financial resources is beyond dispute, but this ad hoc decision by the majority is unworkable on the scale that will be necessary if this decision stands as precedent for other cases. My hope is that the 7th Circuit reviews this en banc and determines that the record is insufficient to permit a jury to conclude something more than medical malpractice took place.
Ben Cotton says
Hypothetically speaking, were the majority to have left out the extra research but kept the basics of the opinion intact, would you be more accepting of it?
Doug Masson says
More accepting, but I wouldn’t think they were correct to reverse the district court — I don’t think the record presented to the District Court states a case for deliberate indifference. I think it might state a claim for medical malpractice (but a med mal claim is something for state courts and I don’t think it was a claim made by this particular plaintiff.)
John M says
Hmm. I read the opinion after I read this post, and presumed I would agree with you. To the extent this sort of thing becomes commonplace, I tend to agree, and this case may prove the adage “hard cases make bad law.” But it seems to me that the majority opinion is 20 pages that could be summed up in a few words: “Come on. This is bullshit.” A governmental entity and its employees obtained summary judgment against a pro se inmate because one of those employees, a physician who (perhaps improperly) qualified as an expert, provided medical testimony that is both self-serving and directly contrary to the information on the instruction sheet of a widely available over-the-counter drug. While the court did not expressly say so, it in some ways reminds me of the “incredible dubiosity” doctrine under Indiana law, where a court can disregard evidence, even if undisputed, if it is transparently self-serving and improbable.
Like you, I find the notion that the internet research didn’t contribute to the decision to be implausible. I think it’s tough to get to deliberate indifference without it. A highly trained physician administered medication in a way directly contrary to instructions designed to be easily understood by laypersons, and the patient subjectively claimed the medication wasn’t working. It’s no exaggeration to say that many high school dropouts could have done a better job with this medication than Dr. Wolfe. I think such a fundamental failure by a physician goes beyond mere negligence, but I don’t think it’s possible to get there without the label information. But having considered all of the circumstances (governmental defendant, pro se plaintiff, non-frivolous claims, self-serving expert testimony, a plaintiff who understood the weaknesses of the record but was rebuffed in his request for representation and an expert, etc.) I’m not uncomfortable with what happened in this case. The court was left with a tough decision: consider the outside research or let a pretty significant abuse of power stand. I’m okay with what they did here, and I don’t expect this case to change the dynamic very much.
See, I do expect it to change the dynamic. Because you won’t know when you’re dealing with the “put up or shut up” summary judgment standard or this new, poorly defined standard where a record that’s insufficient to sustain a jury verdict will, nonetheless, get you past summary judgment.
Natacha Rambova says
First, in this age when direct marketing of prescription medications to the public is allowed, why shouldn’t the Court be allowed to research for itself the manufacturer’s published information about correct dosimetry? Zantac is also available without a prescription, making such research even more appropriate. Also, what did you expect the prison’s doctor to say, anyway?
Secondly, and I think most importantly, the prisoner said that the haphazard manner in which the drug was administered to him caused him unnecessary pain. It didn’t work for him in the manner they arbitrarily administered the medication, and they wouldn’t accommodate his needs. Esophagitis could be fatal if the inflammation resulted in erosion into a blood vessel. As everyone who has read a package insert or prescription information sheets knows, medications often must be adjusted for each individual, both as to dosage and timing. The manner in which prison was distributing this medication did not work for this man. Why shouldn’t this man be able to use the Courts to force the prison to accommodate this medical need? The 7th Circuit got it right.
Signed: R.N. with an M.S.N.
Carlito Brigante says
The standard for deliberate indifference is well satisfied in this case. A prison ” doctor” completely ignores drug labeling instructions is clearly indifferent to the patient’s clear medical needs, a patient that has no access to competent medical care.
It is not established that a non-movant must anticipate every argument that something that judicial notice makes obvious. When a movant’s arguments defy credulity, the movant must expect to be challenged, and overcome, by information that is within the realm of easily verified information and subject to judicial notice.
Even as an attorney, I am not a supporter of the English system of adversarial justice. It rewards the better liar, develops Etusran Bed rules of evidence and rejection of relevant evidence, and rewards litigants with greater resources.
When a party moves for summary judgement based upon utterly incredible assertions, it must anticipate reality to overcome its baseless motion.
John M says
I agree with your last sentence. I don’t think parties that are litigating in good faith are threatened much by this precedent. It’s unlikely that the government would have filed this nonsense affidavit if the plaintiff had been represented by counsel. If attorneys for the government have to ask themselves, “would I be filing this motion/tendering this evidence if this were a fair fight?”, that’s not a bad thing.
Carlito Brigante says
I meant Protruscean bed, not Etrucrean bed.
Carlito Brigante says
John your post states things well. I would imagine that government lawyers defending prisoner complaints see many baseless and absurd claims. Likely they take none of them seriously and figure that the courts will flush all of them on motion.