Dave Stafoord for www.theindianalawyer.com

An Indiana inmate’s lawsuit claiming prison staff showed deliberate indifference in denying him Zantac to treat a known esophageal reflux condition erupted in a war of words between two 7th Circuit Court of Appeals judges. Finger-pointing jurists accused each other of heartlessness and impermissible independent Internet research .

The court reversed summary judgment in favor of prison defendants on some of Jeffrey Allen Rowe’s claims against staff who at one time had allowed him to keep Zantac in his jail cell and take it as needed. Rowe typically took a pill 30 minutes to an hour before morning and evenings meals as recommended to prevent pain from acid reflux. Left untreated, Rowe’s condition can cause erosion of the esophageal lining and in some cases, cancer.

At some point prison staff and a doctor who prescribed the over-the-counter medication ceased providing it but told Rowe he could purchase it from the commissary at the Pendleton Correctional Facility. He could not afford it, and his purchases would be limited to a few days worth each month. At other times in the record, Rowe was allowed the medication, but it was administered several hours before meals, which he claimed did nothing to control his pain.

Circuit Judge Richard Posner consulted websites of the Mayo Clinic, Zantac’s manufacturer and other reputable sites to get background on Rowe’s condition and the recommendations for the drug’s use.

Circuit Judge David Hamilton of Bloomington attacked Posner’s research as “an unprecedented departure from the proper role of an appellate court” and said the majority “pieced together information found on several medical websites that seems to contradict the only expert evidence in the record.” This, Hamilton wrote, “runs contrary to long-established law and raises a host of practical problems the majority fails to address.”

Going outside the record, Hamilton wrote, “the majority actually based its decision on its (I)nternet research,” and “the majority’s factual research is unreliable when it looses the moorings to the law of judicial notice.”

Dr. William Wolfe, a Corizon contract physician for the Department of Correction, at one time prescribed Zantac to Rowe, but discontinued the medication at some point, then allowed it to be administered, but not at the time of Rowe’s choosing. Wolfe testified in the U.S. District Court for the Southern District of Indiana that it didn’t matter what time Rowe took the medication and that each pill was fully effective for 12 hours, which Rowe disputed. The District Court denied Rowe’s request for counsel and for his own expert witness to rebut Wolfe’s testimony, and it granted prison defendants summary judgment on all of Rowe’s claims.

The majority affirmed summary judgment in favor of some defendants. The panel ruled, however, that Rowe should have his day in court against Wolfe on his claim of deliberate indifference and his claim against Wolfe and a nurse who he alleges retaliated against him for filing suit by threatening to withhold medication.

Posner wrote a 21-page majority opinion invoking the 800th anniversary of Magna Carta, among other things, followed by a five-page appendix rebutting, page by page, what he called “misleading” statements in Hamilton’s partial concurrence and partial dissent. Hamilton would allow Rowe’s retaliation claim to proceed.

“We have decided to reverse the judgment,” Posner wrote for the majority, which was joined in a concurring opinion by Judge Ilana Rovner. “We base this decision on Rowe’s declarations, the timeline of his inability to obtain Zantac, the manifold contradictions in Dr. Wolfe’s affidavits, and, last, the cautious, limited Internet research that we have conducted in default of the parties’ having done so,” Posner wrote, reversing the grant of summary judgment in favor of the prison defendants by District Judge Sarah Evans Barker.

“We add that the judge erred not only by giving undue weight to Wolfe’s internally contradictory affidavit but also by relying on a defendant (Wolfe) as the expert witness. There are expert witnesses offered by parties and neutral (court-appointed) expert witnesses, but defendants serving as expert witnesses? — and in cases in which the plaintiff doesn’t have an expert witness because he doesn’t know how to find such a witness and anyway couldn’t afford to pay the witness? And how could an unrepresented prisoner be expected to challenge the affidavit of a hostile medical doctor (in this case really hostile since he’s a defendant in the plaintiff’s suit) effectively? Is this adversary procedure?

“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. To say for example that however implausible Dr. Wolfe’s evidence is, it must be accepted because not contested, is to doom the plaintiff’s case regardless of the merits simply because the plaintiff lacks the wherewithal to obtain and present conflicting evidence,” Posner wrote.

“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 insists Posner went too far, for example, by checking out claims that Zantac is best taken 30 minutes to an hour before meals to prevent pain. “The majority also points out that ‘judges and their law clerks often conduct research on cases without disclosure to the parties. … Such research has long been understood to involve only legal research. The majority’s effort to compare long-accepted judicial research into case law and statutes to its independent factual research shows the majority has entered unknown territory.

“In the end, whether Dr. Wolfe’s testimony about the timing for Rowe’s doses was right or wrong in some pure and objective sense, or in a case tried with ample resources and talent on both sides, is not the question for us. For purposes of summary judgment, Dr. Wolfe’s testimony was undisputed. We have no business reversing summary judgment based on our own, untested factual research. By doing so, the majority has gone well beyond the appropriate role of an appellate court,” Hamilton wrote.

Hamilton also took a swipe at Posner’s allusion in his opinion to British barons’ bravery 800 years ago when they forced Britain’s King John to sign the Magna Carta, which for the first time instituted a right to trial by jury.

“To justify this venture, the majority asks a number of theoretical questions and invokes the courage of the barons at Runnymede in 1215,” Hamilton wrote. “With respect, we are an intermediate appellate court” bound by Federal Rules of Evidence and Civil Procedure. “We simply do not have authority on our own to take the law into this unknown territory.”

Rovner needed just under two pages of the 47-page order to justify her decision to align with Posner and justify the independent research.

“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, Rowe has consistently maintained that he experiences hours of severe pain if he does not take Zantac with his meals, and at this stage of the proceedings his assertions of extreme pain must be credited,” Rovner wrote.

“That the manufacturer’s website and other reputable medical websites support the plausibility of (Rowe’s) testimony merely illustrates the factual dispute that exists within the record,” she wrote. “Although the standard for deliberate indifference is high, I have no trouble at this stage of the litigation giving Rowe the benefit of the doubt.”

The case is Jeffrey Allen Rowe v. Monica Gibson, et al.