Jeffrey Rowe v. Monica Gibson

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-3316

JEFFREY ALLEN ROWE,

Plaintiff-Appellant,

v.

MONICA GIBSON, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:11-cv-00975-SEB-DKL — Sarah Evans Barker, Judge.

____________________

SUBMITTED MAY 26, 2015 — DECIDED AUGUST 19, 2015

____________________

Before POSNER, ROVNER, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge. 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 in-

mates 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

2 No. 14-3316

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 ex-

amples of cruel and unusual punishment. He has a subsidi-

ary 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.

In 2009, already an inmate at Pendleton, Rowe was diag-

nosed with reflux esophagitis, also known as gastroesopha-

geal reflux disease (GERD). See National Institutes of Health,

“Gastroesophageal reflux disease,” www.nlm.nih.gov/

medlineplus/ency/article/000265.htm (visited August 17,

2015, as were the other websites cited in this opinion). The

Mayo Clinic explains that “a valve-like structure called the

lower esophageal sphincter usually keeps the acidic contents

of the stomach out of the esophagus. If this valve opens

when it shouldn’t or doesn’t close properly, the contents of

the stomach may back up into the esophagus (gastroesopha-

geal reflux). … [GERD] is a condition in which this backflow

of acid is a frequent or ongoing problem. A complication of

GERD is chronic inflammation and tissue damage in the

esophagus.” Mayo Clinic, “Diseases and Conditions, Esopha-

gitis: Reflux Esophagitis,” www.mayoclinic.org/diseases-

conditions/esophagitis/basics/causes/con-20034313. As we

explained in a recent case in which, as in this case, a prison

No. 14-3316 3

inmate complained of failure to treat his GERD (and we re-

versed the grant of summary judgment in favor of the prison

staff), “GERD can … produce persistent, agonizing pain and

discomfort. It can also produce ‘serious complications.

Esophagitis can occur as a result of too much stomach acid

in the esophagus. Esophagitis may cause esophageal bleed-

ing or ulcers. In addition, a narrowing or stricture of the

esophagus may occur from chronic scarring. Some people

develop a condition known as Barrett's esophagus. This

condition can increase the risk of esophageal cancer.’

WebMD, Heartburn/GERD Health Center, “What Are the

Complications of Long–Term GERD?” www.webmd.

com/heartburn–gerd/guide/reflux–disease–gerd–1?page=4.”

Miller v. Campanella, 2015 WL 4523799, at *2 (7th Cir. July 27,

2015). Rowe complains of pain based on neglect of his need

for symptomatic relief; continued neglect will endanger him

more profoundly.

The prison physician who diagnosed Rowe with GERD

told him to take a 150-milligram Zantac pill twice a day.

Zantac inhibits the production of stomach acid and is com-

monly used to treat esophagitis (as we’ll abbreviate the

name of Rowe’s disease). Although technically “Zantac” is

merely the trade name for ranitidine manufactured by Glax-

oSmithKline (in prescription strengths) and Boehringer

Ingelheim (in over-the-counter strengths), it is often used as

a synonym for ranitidine, see Wikipedia, “Ranitidine,” http://

en.wikipedia.org/wiki/Ranitidine, because Glaxo was the

first, and remains the best-known, manufacturer. “Zantac” is

the only word for the drug that appears in the briefs, and so

we too will call the drug that Rowe received “Zantac.”

4 No. 14-3316

After the diagnosis Rowe was given Zantac pills and was

permitted to keep them in his cell and take them when he

felt the need to. This regimen continued for more than a

year. But in January 2011 his pills were confiscated and he

was told that he would be allowed to take a Zantac pill only

when a prison nurse gave it to him, and that would be at

9:30 a.m. and then at 9:30 p.m. He complained that he need-

ed to take Zantac with his meals, which were, oddly enough,

scheduled by the prison for 4 a.m. and 4 p.m. (why these

times, we are not told). The prison had decided that inmates

such as Rowe who take psychiatric medications should not

be allowed to keep any pills in their cells—yet the head of

health care at the prison told Rowe that he could keep in his

cell (and thus take whenever he wanted) any Zantac pills

that he bought at the prison commissary—which, however,

as we’re about to see, he couldn’t afford. No reason has been

articulated for forbidding him to keep Zantac given him by

prison staff while permitting him to keep Zantac that he

bought at the commissary and take it whenever he needs to

in order to prevent or alleviate pain. There is no suggestion

that Zantac is a narcotic or otherwise consumed for nonmed-

ical as well as medical reasons.

The defendants question Rowe’s inability to pay for the

pills. They point out that in one 13-month period he spent

approximately $60 at the commissary. But the prison com-

missary charges $3.28 for just four 75-mg Zantac pills (and

recall that Rowe was to take two 150-mg pills daily), mean-

ing that he would have to pay almost $1300 for a 13-month

supply. And he was forbidden to buy more than eight days’

worth of Zantac a month from the commissary, which was

only about a quarter of the amount that he needed.

No. 14-3316 5

To continue the narrative of what seems a senseless series

of decisions by the prison’s medical staff, as well as heartless

given what the staff knew about the disease and Rowe’s con-

tinuous claims of severe pain: at the beginning of July 2011, a

month after he filed suit, he ceased receiving Zantac because

his “prescription” (that is, his authorization to receive over-

the-counter Zantac free of charge on a continuing basis) had

lapsed. He made a series of requests for the drug beginning

on July 3, but the nurse defendants denied all of them be-

cause he had no prescription. When he complained he was

told by the administrative director of the medical staff:

“Your chronic care condition does not warrant the continued

use of Zantac. The continual use of over-the-counter medica-

tions can create further health problems in many instances.

You will have to purchase this off of commissary if you wish

to continue taking it.” Notice the contradiction (illustrating

the run around to which Rowe was continually subjected) in

denying Rowe free Zantac because it could create “further

health problems” but permitting him to buy and use it at

will, though he couldn’t afford to buy it. Nor is there any

suggestion that Zantac is one of the over-the-counter medi-

cations that can create health problems if taken daily for a

protracted period of time. And finally, if over-the-counter

medicines are to be barred, why wasn’t Rowe given a pre-

scription for 300-mg Zantac pills; these are not only prescrip-

tion rather than over-the-counter drugs but one such pill a

day may be sufficient to control one’s GERD, compared to

two or more when an over-the-counter strength Zantac is

prescribed.

On July 13, 2011, in response to Rowe’s continued re-

quests for a renewed prescription for Zantac, a physician

who works at the prison (though employed by Corizon)

6 No. 14-3316

named William H. Wolfe, whose professional specialty is

preventive medicine, about which see American College of

Preventive Medicine: Physicians Dedicated to Prevention,

www.acpm.org/, rather than gastroenterology, see

healthgrades, “Dr. William H. Wolfe, MD.,” www.health

grades.com/physician/dr-william-wolfe-2fgkl/background-

check, and who is a frequent defendant in prisoner civil

rights suits, reviewed Rowe’s medical records and opined

that his condition didn’t require Zantac at all—this despite

the fact that Rowe had been continuously prescribed Zantac

for almost two years and that Wolfe himself had been the

prescribing doctor for a quarter of that period. But though

initially refusing to provide a new prescription for Zantac,

Wolfe later relented and on August 2 prescribed it though he

later stated in an affidavit that he had done so as a “courte-

sy” to Rowe and not out of medical necessity. (Prescribing

drugs for prison inmates as a “courtesy” seems very odd; it

is not explained.) The upshot was that Rowe had no access

to Zantac for more than a month (between July 1 and August

3)—a significant deprivation. Even after Zantac was restored

to him, he continued to be allowed to take it only at 9:30 a.m.

and 9:30 p.m., both times being many hours distant from his

meals.

In another affidavit Wolfe stated that “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.” However, according to Boehringer Ingelheim, the

manufacturer of over-the-counter Zantac, while Zantac can

be taken at any time “to relieve symptoms,” in order “to

prevent symptoms” it should be taken “30 to 60 minutes be-

fore eating food or drinking beverages that cause heart-

No. 14-3316 7

burn.” Zantac, “Maximum Strength Zantac 150,” www.zan

tacotc.com/zantac-maximum-strength.html#faqs, and this

advice is repeated on the labels of the boxes in which over-

the-counter Zantac is sold. Were Zantac equipotent whenev-

er taken, the manufacturer would not tell consumers to take

it 30 to 60 minutes before eating, for having to remember

when to take a pill adds a complication that the consumer

would rather do without. There is thus no reason for the

manufacturer to be lying, and it would be absurd to think

that Dr. Wolfe, a defendant who is not a gastroenterologist,

knows more about treatment of esophagitis with Zantac

than the manufacturer does.

Rowe’s aim was pain prevention, so having to take Zan-

tac six and a half hours before a meal did not do the trick. It

left him in pain for five and a half hours during and after the

meal, until he got his next Zantac pill. Wolfe’s statement that

“each Zantac pill is fully effective for twelve hour incre-

ments” is also contradicted by the Zantac website, which

states that one 150-mg pill “lasts up to 12 hours” (emphasis

added). Thus a pill taken six and half hours before a meal

might not be effective in alleviating the pain caused by acid

secretions stimulated by the meal.

It might be thought that a corporate website, such as that

of the Zantac manufacturer, would be a suspect source of

information. Not so; the manufacturer would be taking

grave risks if it misrepresented the properties of its product.

In any event, the Mayo Clinic’s website, as we’ll see in a

moment, confirms the manufacturer’s claims.

Wolfe’s affidavit states that Rowe was complaining just

of “alleged heartburn [that] was not a serious medical condi-

tion warranting a prescription for Zantac”—but if so why

8 No. 14-3316

did he prescribe Zantac for Rowe during the very period in

which, according to the affidavit, Rowe’s condition was not

serious? (The affidavit fails to mention that it was Wolfe who

had prescribed Zantac for Rowe, but that’s conceded.)

It’s true that the Mayo Clinic’s website, at “Drugs and

Supplements: Histamine H2 Antagonist (Oral Route, Injec-

tion Route, Intravenous Route),” www.mayoclinic.

org/drugs-supplements/histamine-h2-antagonist-oral-route-

injection-route-intravenous-route/proper-use/drg-20068584,

after listing various drugs (including ranitidine) for treat-

ment of the cluster of ailments that includes esophagitis,

states that “for this class of drugs … patients taking two

doses a day are instructed: ‘Take one in the morning and one

before bedtime.’” But this dosing, Mayo goes on to state, is

appropriate “only for patients taking the prescription

strengths of these medicines.” The 150-mg pills that Rowe

was taking are available over the counter; a prescription is

required only for the 300-mg version. Both the Boehringer

Ingelheim and Mayo websites also say that the patient

shouldn’t take Zantac for more than two weeks unless di-

rected by a doctor—but Rowe was of course directed by

Wolfe, as well as by other doctors earlier, to take Zantac on a

continuing basis.

Not only wasn’t Rowe allowed to take Zantac with his

meals; he was not, as the Mayo website recommends, al-

lowed to take it with water a half hour or an hour before eat-

ing a meal or drinking beverages that might cause him

esophageal pain. As the Mayo website explains, for “adults

and teenagers—150 mg with water taken thirty to sixty

minutes before eating a meal or drinking beverages you expect

No. 14-3316 9

to cause symptoms. Do not take more than 300 mg in twen-

ty-four hours” (emphasis added).

Stomach acid is of course integral to the digestion of

food, and indeed thirty percent of total gastric acid secretion

is stimulated by the anticipation, smell, and taste of food,

before the food ever reaches the stomach. Thomas A. Miller,

Modern Surgical Care: Physiologic Foundations and Clinical Ap-

plications 344-45 (2006). “The foods you eat affect the amount

of acid your stomach produces,” and “many people with

GERD find that certain foods trigger their symptoms.”

Healthline, “Diet and Nutrition for GERD,” www.healthline.

com/health/gerd/diet-nutrition#Overview1. So it is no sur-

prise that Rowe experiences painful symptoms when he eats

without having been allowed to take a Zantac pill shortly

before the meal.

The Physicians’ Desk Reference, “PDR Search: Full Pre-

scribing Information: Zantac 150 and 300 Tablets,” www.

pdr.net/full-prescribing-information/zantac-150-and-300-tabl

ets?druglabelid=241, states that a 150-mg dose of Zantac in-

hibits 79 percent of food-stimulated acid secretion for up to

three hours after it’s taken. This implies that the drug’s effi-

cacy decreases over time and so supports Rowe’s claim that

a 150-mg dose does not suppress his food-stimulated acid

secretions when taken six and a half hours before a meal.

The Physicians’ Desk Reference also says that “symptomatic

relief commonly occurs within 24 hours after starting thera-

py with ZANTAC 150 mg twice daily,” which could be mis-

read to mean that it does not matter what time of day the

pills are taken, but which actually means that it takes a day

for the body to recognize Zantac as a source of relief from

esophageal distress. This interpretation is confirmed by

10 No. 14-3316

Mayo, which states (at the website cited earlier): “It may take

several days before this medicine begins to relieve stomach

pain.”

The evidence that Rowe was in pain for five and a half

hours after eating is his repeated attestation—in his verified

federal complaint and his declarations—that he experienced

pain for that length of time when he was not allowed to take

Zantac with or shortly before his meals. For purposes of

summary judgment his attestations of extreme pain must be

credited. See 28 U.S.C. § 1746; Fed. R. Civ. P. 56(c). There

was no plausible contrary evidence. The affidavits of the on-

ly expert witness on the proper times at which to take Zan-

tac, defendants’ witness Wolfe, were highly vulnerable.

Wolfe is not a gastroenterologist. He says that Rowe didn’t

need Zantac yet prescribed Zantac for him. He opined with

confidence about what Rowe needed or didn’t need—yet

never examined him—and offered no basis for his off-the-

cuff medical opinion. A court should not “admit opinion ev-

idence that is connected to existing data only by the ipse dix-

it of the expert.” General Electric Co. v. Joiner, 522 U.S. 136, 146

(1997); see also Finn v. Warren County, 768 F.3d 441, 452 (6th

Cir. 2014) (“the ‘knowledge’ requirement of Rule 702 re-

quires the expert to provide more than a subjective belief or

unsupported speculation”); Guile v. United States, 422 F.3d

221, 227 (5th Cir. 2005) (“we look to the basis of the expert’s

opinion, and not the bare opinion alone. A claim cannot

stand or fall on the mere ipse dixit of a credentialed wit-

ness”); McClain v. Metabolife International Inc., 401 F.3d 1233,

1242 (11th Cir. 2005).

Remember that Rowe had been diagnosed with esopha-

gitis back in 2009 and that for the ensuing two years physi-

No. 14-3316 11

cians had prescribed Zantac to treat his condition. Further-

more, the Indiana Department of Correction permits such

continuous treatment only to treat a serious health condition,

so presumably the prescribing physicians thought Rowe’s

condition serious. None of this evidence or inference is un-

dermined by Dr. Wolfe’s evidence.

A member of a prison’s staff is deliberately indifferent

and thus potentially liable to an inmate if he “knows of and

disregards an excessive risk to inmate health,” Williams v.

O'Leary, 55 F.3d 320, 324 (7th Cir. 1995), quoting Farmer v.

Brennan, supra, 511 U.S. at 837; see also Miller v. Campanella,

supra, at *2. Rowe makes two distinct claims of deliberate in-

difference; the evidence that we’ve reviewed tends to sub-

stantiate both. There is both evidence that defendants Wolfe,

Deborah Dotson, Melissa Bagienski, Chris Deeds, and Lisa

Gibson were deliberately indifferent to his pain when they

denied him access to free Zantac for thirty-three days, and

that defendants Mary Mansfield, Gibson, and Dr. Michael

Mitcheff were deliberately indifferent to his pain when they

insisted—for many months—on giving him Zantac only at

9:30 a.m. and 9:30 p.m., instead of at his prescribed

mealtimes. Regarding the first claim, if the nurse defendants

to whom Rowe complained about reflux pain were not au-

thorized to give him the free Zantac they should have

promptly referred the matter to a doctor.

The evidence of Wolfe’s deliberate indifference to Rowe’s

pain and resulting need for Zantac is, as we’ve shown, sub-

stantial, and likewise the evidence that limiting Rowe’s tak-

ing Zantac to 9:30 a.m. and 9:30 p.m. for a protracted period

exhibited deliberate indifference to a serious medical need.

Wolfe never told anyone, so far as appears, when would be

12 No. 14-3316

the best times for administering Zantac to Rowe. In very

large doses Zantac will remain in your blood stream long

enough to affect the stomach acid produced by meals eaten

many hours later, but the Mayo and Boehringer Ingelheim

timing recommendations suggest that this isn’t true for 150-

mg doses. Wolfe’s assertion that “it does not matter what

time of day Mr. Rowe receives his Zantac prescription” is

implausible as well as vigorously contested. Rowe’s pain

and the Mayo Clinic’s timing recommendations suggest that

giving 150-mg doses of Zantac five and a half hours after

one meal and six and a half hours before the next (and only

other) meal of the day may be a substantial departure from

accepted professional practice, preventing summary judg-

ment for defendants regarding Rowe’s claim of deliberate

indifference to avoidable pain caused by the timing of his

medication. See Sain v. Wood, supra, 512 F.3d at 894–95. Since

Rowe’s pain strongly indicated that he was experiencing re-

flux, the reflux could have had serious medical consequenc-

es (up to and including cancer) in addition to inflicting

chronic pain on him. Prisoners aren’t supposed to be tor-

tured.

In citing even highly reputable medical websites in sup-

port of our conclusion that summary judgment was prema-

ture 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

No. 14-3316 13

even to deliberate—at the end of the oral argument in an ap-

peal 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 Sep-

tember 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 dis-

trict court or administrative record. When medical infor-

mation can be gleaned from the websites of highly reputable

medical centers, it is not imperative that it instead be pre-

sented 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 no-

tice, 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 deter-

mine whether there is a factual dispute sufficient to preclude

summary judgment.

Rule 201 of the Federal Rules of Evidence makes facts of

which judicial notice is properly taken conclusive, and there-

fore requires that their accuracy be indisputable for judicial

14 No. 14-3316

notice to be taken of them. We are not deeming the Internet

evidence cited in this opinion conclusive or even certifying it

as being probably correct, though it may well be correct

since it is drawn from reputable medical websites. We use it

only to underscore the existence of a genuine dispute of ma-

terial fact created in the district court proceedings by entirely

conventional evidence, namely Rowe’s reported pain.

There is a high standard for taking judicial notice of a

fact, and a low standard for allowing evidence to be present-

ed in the conventional way, by testimony subject to cross-

examination, but is there no room for anything in between?

Must judges abjure visits to Internet web sites of premier

hospitals and drug companies, not in order to take judicial

notice but to assure the existence of a genuine issue of mate-

rial fact that precludes summary judgment? Are we to for-

bear lest we be accused of having “entered unknown territo-

ry”? This year the bar associations are busy celebrating the

eight hundredth anniversary of Magna Carta. The barons

who forced King John to sign that notable document were

certainly entering unknown territory, and risking their lives

to boot. 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? 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?

This is not the case in which to fetishize adversary proce-

dure in a pure eighteenth-century form, given the inadequa-

cy of the key defense witness, Dr. Wolfe. Let’s review: Wolfe

refused to continue Rowe’s Zantac prescription in July 2011

No. 14-3316 15

while Rowe was being kept waiting for three weeks before

being seen by a doctor. Wolfe knew Rowe had esophagitis:

he reviewed Rowe’s medical records, which contained the

2009 diagnosis and revealed nearly two years of physicians’

having prescribed Zantac for him continuously. Wolfe had

personally prescribed Zantac for Rowe for six months of those

two years and must have known that the Department of

Correction authorizes such treatment only for a serious

health condition. Rowe was complaining of continuing re-

flux pain; and while Wolfe denied a prescription renewal on

July 13, he demonstrated his awareness that Rowe might

need treatment by scheduling him for a later appointment

(the August 2 appointment) to evaluate his request to re-

sume taking Zantac.

Against this background, to credit Wolfe’s evidence that

it doesn’t matter when you take Zantac for relief of GERD

symptoms (evidence that may well have failed to satisfy the

criteria for the admissibility of expert evidence that are set

forth in Fed. R. Evid. 702) just because Rowe didn’t present

his own expert witness would make no sense—for how

could Rowe find such an expert and persuade him to testify?

He could not afford to pay an expert witness. He had no

lawyer in the district court and has no lawyer in this court;

and so throughout this litigation (now in its fourth year) he

has been at a decided litigating disadvantage. He requested

the appointment of counsel and of an expert witness to assist

him in the litigation, pointing out sensibly that he needed

“verifying medical evidence” to support his claim. The dis-

trict judge denied both requests, leaving Rowe unable to of-

fer evidence beyond his own testimony that he was in ex-

treme pain when forbidden to take his medication with his

meals.

16 No. 14-3316

The web sites give credence to Rowe’s assertion that he

was in pain. But the information gleaned from them did not

create a dispute of fact that was not already in the record.

Rowe presented enough evidence to call Dr. Wolfe’s assess-

ment into question—Rowe claims that after his medication

was switched to the 12-hour schedule he was in extreme

pain and Dr. Wolfe, without examining Rowe or disclosing

the basis for his opinion (as we require experts to do), stated

cursorily that the medicine would be effective for 12 hours.

It will be up to the factfinder to decide, on a better devel-

oped record, who is right.

Nor is pain the only concern. Esophageal reflux disease

can lead to serious damage of the stomach or esophagus,

and even to cancer.

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 ex-

ample 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 conflict-

ing evidence. Rowe did not move to exclude Wolfe as an ex-

pert witness on the ground that Wolfe neither qualified to

give expert evidence in this case (because he is not a gastro-

enterologist) nor, as a defendant, was likely to be even min-

imally impartial. But Rowe does not have the legal

knowledge that would enable him to file such a motion.

We have decided to reverse the judgment. 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

No. 14-3316 17

that we have conducted in default of the parties’ having

done so. We add that the judge erred not only by giving un-

due 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?

Esophagitis is a common disease for which Zantac is a

common treatment, and it makes common sense as well as

medical sense that a drug for treating symptoms of stomach

acid backing up into the esophagus would be administered

shortly before or shortly after meals unless the massive 300-

mg pill was being administered to the patient, and it was not

in this case. Rowe claimed that the Zantac he took became

ineffective in treating his esophagitis pain symptoms when

the prison staff decided to give it to him only long before his

meals. His pain and the timing recommendation of the Mayo

Clinic that we mentioned earlier suggest that giving 150-mg

doses of Zantac six and a half hours before and five and a

half hours after meals may be a substantial departure from

accepted professional practice. But without his own expert,

Rowe couldn’t counter Wolfe’s assertion that Zantac does

not need to be taken shortly before, or with or shortly after, a

meal in order to be effective. As Rowe explained in his brief,

while he “provided evidence that Zantac does not ‘prevent’

reflux during its 12 hours of effectiveness, and that it was

18 No. 14-3316

not effective at relieving Rowe’s symptoms, the district court

accepted the word of a defendant [i.e., Dr. Wolfe], who was

speaking as an ‘expert,’ that the treatment Rowe received

was adequate and effective. Had an expert been appointed,

the expert would have confirmed Rowe’s factual representa-

tions, and would have supported Rowe’s objection that the

defendant lacks personal knowledge about the condition(s)

Rowe had because Wolfe never physically examined Rowe

or had diagnostic testing done on Rowe” (citations omitted).

Rowe’s allegations alone were sufficient to preclude

summary judgment, and were enhanced by the defendants’

own evidence, which included both Wolfe’s contradictory

evidence (among other things, he asserted that Rowe does

not need Zantac and yet prescribed it for him) and the ab-

surd opinion by the medical director that over-the-counter

medications should not be provided to prisoners. Allowing

Wolfe to be an expert witness in the case despite his being a

defendant and not practicing the medical specialty at issue

was another boost to the plaintiff’s case, though again not

one that an unrepresented, indigent prisoner could exploit.

We are coming to the end of this long opinion but we

need to change gears for a moment: Besides arguing deliber-

ate indifference to a serious medical need, Rowe accuses

several of the defendants, in particular Dr. Wolfe and Nurse

Bagienski, of retaliating against him for filing a lawsuit. He

says they told him that going without Zantac for a month

would make him “think twice about bringing lawsuits about

inadequate medical care.” If indeed they said this—an issue

that cannot be determined without a trial—Rowe has a solid

claim of retaliation. The retaliation claims against the other

defendants were properly dismissed, however, and likewise

No. 14-3316 19

the deliberate-indifference claims against the following de-

fendants, who the district court correctly found were not re-

sponsible for the failure to treat Rowe’s medical condition

competently—Rose Vaisvilas, Wayne Scaife, and Kenneth

Hysell. But we reverse with regard to the remaining defend-

ants and remand the case for further proceedings consistent

with this opinion.

Although reversing, we are not ordering that judgment

be entered in Rowe’s favor. As we’ve explained, we are not

invoking Fed. R. Evid. 201 and thus not taking judicial notice

of any facts outside the district court record. The remaining

defendants are entitled to try to rebut any evidence whether

or not presented in the district court, including any evidence

found on the Internet. Like the conventional forms of evi-

dentiary inquiry, Internet research must be conducted with

circumspection. In particular it must not be allowed to ex-

tinguish reasonable opportunities for rebuttal.

Pure adversary procedure works best when there is at

least approximate parity between the adversaries. That con-

dition is missing in this case, in which a pro se prison in-

mate, incapable of retaining an expert witness (expert wit-

nesses usually demand to be paid—and how would this in-

mate even find an expert witness?), confronts both a private

law firm and the state attorney general.

Because of the profound handicaps under which the

plaintiff is litigating and the fact that his claim is far from

frivolous, we urge the district judge to give serious consid-

eration to recruiting a lawyer to represent Rowe, see Miller v.

Campanella, supra, at *2; Perez v. Fenoglio, 2015 WL 4092294, at

*11 (7th Cir. July 7, 2015); appointing a neutral expert wit-

ness, authorized by Fed. R. Evid. 706, to address the medical

20 No. 14-3316

issues in the case; or doing both. We are mindful that district

courts don’t have budgets for paying expert witnesses. But

the medical issues in the case are not complex; there should

be no difficulty in the judge’s persuading a reputable gastro-

enterologist to speak to Rowe and some of the prison medi-

cal personnel (Rowe’s prison is only 30 miles from Indian-

apolis, and there are 128 gastroenterologists in or near Indi-

anapolis, healthgrades, www.healthgrades.com/gastroentero

logy-directory/in-indiana/indianapolis), to sit for a deposi-

tion, and, if necessary, to testify. Rule 706(c)(2) states that a

court-appointed expert “is entitled to a reasonable compen-

sation, as set by the court,” and that “the compensation is

payable … in any … civil case [not involving just compensa-

tion under the Fifth Amendment] by the parties in the pro-

portion and at the time that the court directs—and the com-

pensation is then charged like other costs.” In light of

Rowe’s indigency, the court if it appoints its own expert

witness will have to order the defendants to pay the expert a

reasonable fee if the expert is unwilling to work for nothing.

Most prisons are strapped for cash, and this is something for

the district court to bear in mind in deciding on whether and

how large a fee to order the defendants to pay a court-

appointed expert witness in a case (such as this case) that

has sufficient merit to warrant such an appointment.

A substantial academic literature identifies serious defi-

ciencies in the provision of health care in American prisons

and jails. See, e.g., Andrew P. Wilper et al., “The Health and

Health Care of US Prisoners: Results of a Nationwide Sur-

vey,” 99 Am. J. Public Health 666 (2009), and the studies post-

ed by the Academic Consortium on Criminal Justice Health,

www.accjh.org/. On the quality of treatment problems of

Corizon, the employer of Dr. Wolfe and the other medical

No. 14-3316 21

staff members sued by Rowe, see David Royse, “Medical

Battle Behind Bars: Big Prison Healthcare Firm Corizon

Struggles to Win Contracts,” April 11, 2015, www.mod

ernhealthcare.com/article/20150411/MAGAZINE/304119981;

also Human Rights Defense Center, Prison Legal News,

“Corizon Needs a Checkup: Problems with Privatized Cor-

rectional Healthcare,” March 2014, www.prisonlegalnews.

org/news/2014/mar/15/corizon-needs-a-checkup-problems-w

ith-privatized-correctional-healthcare/. The present case il-

lustrates the problems that this literature has identified.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

APPENDIX

We respectfully suggest that the dissenting opinion is

misleading in certain respects that require a response; page

references are to pages in the dissent.

Page 29: The dissenting opinion states that "the reversal

is unprecedented, clearly based on ‘evidence’ this appellate

court has found by its own internet research. … When the

opinion is read as a whole, the decisive role of the majority’s

internet research is plain.” No, the majority opinion endeav-

ors to make clear that Rowe’s allegations alone, coupled

with the affidavit of Dr. Wolfe and other defense evidence,

would be enough without any reference to the Internet to

preclude summary judgment for the defendants, and doubt-

less would have precluded summary judgment had Rowe

been represented. The dissent ignores this part of the majori-

ty opinion.

Page 29: The reader is told that “the majority writes that

adherence to rules of evidence and precedent makes a ‘heart-

22 No. 14-3316

less … fetish of adversary procedure.’” That is not what the

majority opinion says; it says: “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 off-

setting evidence” (emphasis added). Nowhere does the ma-

jority opinion deny the validity of the federal rules of evi-

dence or of procedure.

Page 32: The proposition in the dissent that the prison’s

response was adequate as long as it “provided at least some

treatment for pain” overlooks the fact that a 150-mg Zantac

pill given six and a half hours before one’s next meal pro-

vides, according to Rowe, no alleviation of pain caused by

stomach acid backing up into the esophagus, which is the

pain of which Rowe complains. Also, it can’t be correct that

providing “some” treatment of pain always gets a prison

doctor off the hook. Suppose Rowe were in agony from a

slipped disk; would it be enough for Dr. Wolfe to give him

an aspirin? To tell him, if he broke his leg, that it would heal

by itself, in time?

Page 35: The statement that the majority opinion “holds

in essence that the district judge erred by not doing such in-

dependent factual research” is mistaken. There is no such

holding or suggestion in the opinion. The opinion merely

suggests that the district judge should have appointed, and

on remand should appoint, an expert witness who is a gas-

troenterologist (as Dr. Wolfe, the defendants’ principal wit-

ness, is not) and who also is not a defendant.

Pages 35-36: The dissent’s citation of Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as a celebration

of traditional adversary procedure misses the significance of

Daubert, which is that it enlarged the role of the judge in po-

No. 14-3316 23

licing expert testimony. The district judge in this case failed

to play the role envisaged in Daubert by treating Dr. Wolfe as

an expert on GERD despite his being a defendant accused of

neglecting Rowe’s GERD and also his not being a gastroen-

terologist. A Daubert hearing would doubtless have led to

his exclusion from an expert-witness role.

Page 39: The dissent says that “when a prisoner brings a

pro se suit about medical care, the adversary process that is

the foundation of our judicial system is at its least reliable.

Few prisoners have access to lawyers or to expert witnesses

needed to address medical issues.” Right on! (And Rowe is

not one of the few who does have the necessary access.) But

affirmance of a quite possibly incorrect decision cannot be

the correct solution to the problem thus correctly stated by

the dissent. The majority opinion offers a modest solution—

a remand to enable a competent, impartial evidentiary ex-

ploration of Rowe’s claim.

Page 40: On this page the dissent repeats its contention

that the majority is insisting that district judges conduct In-

ternet research: “The majority clearly implies, while denying

it is doing so, that the district judge herself should have done

the independent factual research the majority has done on

appeal, questioning an unchallenged expert affidavit … .”

No; the district judge should have recognized the existence

of a substantial issue of material fact, barring summary

judgment. Rowe’s evidence of pain contradicted Dr. Wolfe’s

affidavit.

Page 41: The dissent expresses concern that the defend-

ants may have to pay most or all of an expert witness’s fee in

a case brought by an indigent prisoner, such as Rowe. But it

seems unlikely that a gastroenterologist would charge more

24 No. 14-3316

than a nominal fee merely to testify that—what appears to

be obvious—in order to prevent serious esophageal pain

(and the even more serious consequences that can ensue

from untreated GERD) a 150-mg Zantac pill should be taken

no more than an hour before eating—not six and a half

hours. One has only to read the label on a box of 150-mg

Zantac pills to learn when the pill should be taken to prevent

pain—30 to 60 minutes before eating. In addition, an expert’s

fee, if any, would in a case such as this, with its numerous

defendants, be split many ways or, more likely, be paid for

by the Indiana Department of Correction, the State of Indi-

ana, Corizon or its liability insurer, or individual defendants’

malpractice insurance (depending on the contractual ar-

rangements between Corizon and the state, as well as the

parties’ insurance arrangements), or some combination of

these well-heeled entities.

Page 42: The dissent states: “Without an expert witness

qualified to present the facts and opinions the majority finds

persuasive, that information does not come into evidence.”

This implies that without an expert witness, a party cannot

defeat a motion for summary judgment. That isn’t true. If a

jury believed Rowe, he would win. It would be more likely

to believe him than to believe Dr. Wolfe.

Page 42: The parade of horribles on this and other pages

of the dissent (such as page 35, discussed earlier in this Ap-

pendix) is based on a belief that the majority is ordering that

the district judge on remand do her own Internet research.

Not so. It is unlikely that any Internet research by anyone

will be necessary. All that should be necessary is testimony

by a qualified, impartial expert witness who is a gastroen-

terologist and is not a defendant in this litigation.

No. 14-3316 25

Page 43: The dissent again states that we are requiring

judges to conduct their own factual research. No. We are

even accused by the dissent of trying to turn judges into

substitutes for physicians. Again no.

Page 45: The dissent appears to misunderstand the Mayo

Clinic’s advice to “take one [Zantac pill] in the morning and

one before bedtime.” As pointed out in the majority opinion,

this advice is intended “only for patients taking the prescrip-

tion strengths,” whereas Rowe was taking the 150-mg

strength that is available over the counter. The Mayo Clinic

provides different advice for the 150-mg pill: that it should

be taken 30 to 60 minutes before meals to prevent heartburn

symptoms (the mildest GERD symptoms). The dissent does

not mention Boehringer Ingelheim’s advice, also quoted in

the majority opinion, that while Zantac can be taken at any

time “to relieve symptoms,” in order “to prevent symptoms”

it should be taken “30 to 60 minutes before eating food or

drinking beverages that cause heartburn.” That is, if you

have pain, you take a pill right away to alleviate the pain; if

you foresee pain as a result of eating or drinking, you take

the pill before you eat or drink—but not six and a half hours

before.

Page 45: The dissent’s reference to taking Zantac for more

than “two weeks” without a doctor’s permission is irrelevant

to the case because Rowe had a doctor’s permission—indeed

Dr. Wolfe’s permission—to take Zantac and had begun tak-

ing it long ago, always with permission.

Page 45: The reference to symptomatic relief beginning

“24 hours” after taking Zantac could be understood to mean

that Zantac can prevent pain that far in advance. Not so. As

explained in the majority opinion, “24 hours” is the time it

26 No. 14-3316

takes for Zantac when first taken to begin to have a therapeu-

tic effect.

No. 14-3316 27

ROVNER, Circuit Judge, 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, 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 asser-

tions of extreme pain must be credited. See Catalan v. GMAC

Mortg. Corp., 629 F.3d 676, 696 (7th Cir. 2011). Given that, I

think this case can be decided on the fundamental and unre-

markable rule that we give Rowe the benefit of all conflicts and

draw all reasonable inferences in his favor as the nonmoving

party. E.g., Keller v. United States, 771 F.3d 1021, 1022 (7th Cir.

2014). Dr. Wolfe, himself a defendant, cursorily asserted that

the timing ought not to matter. But Dr. Wolfe’s self-interested

“expert” opinion on this fact is disputed by Rowe’s own

personal experience with the timing of the medication, as the

majority makes clear. If he informed prison officials that he

was in severe pain because he could not take his medication at

particular times and they did nothing about it because they did

not care about his pain, that is the very definition of deliberate

indifference. See Greeno v. Daley, 414 F.3d 645, 653-54 (7th Cir.

2005); Walker v. Benjamin, 293 F.3d 1030, 1039-40 (7th Cir. 2002).

Treating the competing claims of Dr. Wolfe and Rowe as

disputed at the summary judgment stage is hardly holding that

a prisoner’s dissatisfaction with his treatment is always enough

to require a jury trial on whether the prison’s medical staff

were deliberately indifferent to his pain (dissent at 32). Instead,

I believe it falls more comfortably into the category the dissent

28 No. 14-3316

itself recognizes (dissent at 32-33)—those cases in which

prisoners have shown that medical staff persisted in an

obviously inadequate course of treatment. E.g., Arnette v.

Webster, 658 F.3d 742, 754 (7th Cir. 2011) (prescribing inade-

quate pain medication for condition causing pain and swelling

in joints); Berry v. Peterman, 604 F.3d 435, 441-42 (7th Cir. 2010)

(prescribing over-the-counter medications that did not relieve

pain of severe toothache ultimately necessitating root canal);

see also Greeno, 414 F.3d at 649-54 (continuing to provide

ineffective antacid treatment for severe heartburn). Rowe

argued in the district court that he needed an expert precisely

because his medical condition is “complicated” and “can

appear to be non-serious to a lay person.” The district court

denied Rowe’s motion to appoint an expert, which left Rowe

with only his own testimony to counter Dr. Wolfe. That the

manufacturer's website and other reputable medical web sites

support the plausibility of his testimony merely illuminates the

factual dispute that exists within the record as we received it;

they are not necessary to the outcome. 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.

No. 14-3316 29

HAMILTON, Circuit Judge, concurring in part and dissent-

ing in part.

I agree with the majority’s disposition of most claims and

issues: affirming summary judgment for defendants on sev-

eral 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 adminis-

tering 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 togeth-

er information found on several medical websites that seems

to contradict the only expert evidence actually in the sum-

mary 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.)

The majority writes that adherence to rules of evidence

and precedent makes a “heartless … fetish of adversary pro-

cedure.” Yet the majority’s decision is an unprecedented de-

parture from the proper role of an appellate court. It runs

contrary to long-established law and raises a host of practi-

cal problems the majority fails to address.

30 No. 14-3316

To explain my disagreement, Part I reviews the facts in

the record before us and shows that the majority has actually

based its decision on its internet research. Part II explains

why the majority’s reliance on its own factual research is

contrary to law. Part III addresses the practical problems

posed by the majority’s decision to do its own factual re-

search. Finally, Part IV points out problems with the reliabil-

ity of the majority’s factual research and shows that the en-

terprise of judicial factual research is unreliable when it loses

the moorings to the law of judicial notice.

I. The Facts in the Record

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 be-

lieves the prison’s schedule for giving him two 150 mg Zan-

tac 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 ca-

reer 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 symp-

toms.”

The record thus shows a prisoner’s diagnosed disease

and complaints of pain that prison staff treated with an ap-

No. 14-3316 31

propriate medicine. The prisoner is not satisfied with details

of the treatment’s timing, but a physician testified that the

timing change the prisoner wanted was not called for be-

cause the medicine was equally effective as long as he was

receiving two doses per day. This evidence does not support

a reasonable inference of deliberate indifference.

Proof of deliberate indifference is much more demanding

than proof of even medical malpractice. E.g. Petties v. Carter,

— F.3d —, 2015 WL 4567899 (7th Cir. July 30, 2015); Ray v.

Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir. 2013);

Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008); see

generally Estelle v. Gamble, 429 U.S. 97 (1976). This record ev-

idence would not let a reasonable jury find that the prison’s

schedule for giving Rowe his medicine departed so far from

professional standards to find that any prison staff acted

with deliberate indifference to his health. The district court

therefore properly granted summary judgment for defend-

ants on this claim. See, e.g., Norfleet v. Webster, 439 F.3d 392,

396 (7th Cir. 2006) (reversing denial of summary judgment),

citing Estate of Cole v. Fromm, 94 F.3d 254, 262 (7th Cir. 1996)

(affirming summary judgment); see also, e.g., Pyles v. Fahim,

771 F.3d 403, 409 (7th Cir. 2014) (affirming summary judg-

ment; physician’s refusal to order MRI for prisoner’s back

pain did not show deliberate indifference).

As noted above, the majority claims twice that its deci-

sion does not actually depend on its independent factual re-

search, at pages 14 and 16. See also ante at 27–28 (Rovner, J.,

concurring). These denials contradict the rest of the majority

opinion. If they were accurate, the majority’s long discussion

of its research and its justifications for it would amount to a

long essay not necessary to the court’s decision. If the denials

32 No. 14-3316

were accurate, moreover, the majority decision would

amount to a significant rewriting of the Eighth Amendment

law governing health care for prisoners.

Where prison medical staff just refuse to treat serious

pain or disease, a prisoner may well have a viable claim that

should go to trial. E.g., Miller v. Campanella, No. 14-1990,—

F.3d —, 2015 WL 4523799 (7th Cir. July 27, 2015) (no treat-

ment of prisoner’s GERD); Hayes v. Snyder, 546 F.3d 516, 524–

26 (7th Cir. 2014). Where the evidence shows, however, that

medical staff have provided at least some treatment for pain

we almost always hold that the prisoner is not entitled to a

jury trial on a claim for deliberate indifference based on a

claim that the pain treatment was not adequate. E.g., Pyles v.

Fahim, 771 F.3d 403, 409, 411 (7th Cir. 2014); Holloway v. Del-

aware County Sheriff, 700 F.3d 1063, 1073–76 (7th Cir. 2012).

If the majority decision did not depend on its own factual

research, then the majority would be holding that the pris-

oner’s dissatisfaction with pain treatment is enough to re-

quire a jury trial on whether the prison’s medical staff were

deliberately indifferent to his pain. We have not found be-

fore this case that such evidence is sufficient to infer deliber-

ate indifference. But we will see a lot more cases like this

one. As the average age of the prison population increases,

so will the incidence of painful, chronic conditions that can-

not be treated to the complete satisfaction of the prisoners.

The fact that a treatment for pain is not as effective as the

prisoner would like should not be enough to support an in-

ference that the prison staff are deliberately indifferent to his

pain.

In fact, the majority’s reversal on this claim is based on a

small but important category of cases in which prisoners

No. 14-3316 33

have shown that medical staff persisted in obviously inade-

quate courses of treatment. In those cases, we have found

triable issues of deliberate indifference. E.g., Arnett v. Web-

ster, 658 F.3d 742, 754 (7th Cir. 2011); Berry v. Peterman, 604

F.3d 435, 441–42 (7th Cir. 2010); Greeno v. Daley, 414 F.3d 645,

654 (7th Cir. 2005) (treatment prisoner received was “blatant-

ly inappropriate”). As we explained in Pyles, these decisions

were based on evidence showing that the need for special-

ized expertise or different treatment was either known by

the treating physicians or would have been obvious to a lay

person. 771 F.3d at 411.

The problem for the majority here is that Rowe himself

has made no comparable showing. Only by relying on its

independent factual research can the majority establish an

arguable basis for applying this theory that the course of

treatment was so clearly inadequate as to amount to deliber-

ate indifference. The majority decision to reverse summary

judgment on this claim thus depends on that independent

factual research.

II. The Law on Judicial Research into the Facts

The ease of research on the internet has given new life to

an old debate about the propriety of and limits to independ-

ent factual research by appellate courts.1 To be clear, I do not

1 See, e.g., Layne S. Keele, When the Mountain Goes to Mohammed: The

Internet and Judicial Decision-Making, 45 N.M. L. Rev. 125 (2014); Allison

Orr Larsen, The Trouble with Amicus Facts, 100 Va. L. Rev. 1757 (2014);

Richard A. Posner, Judicial Opinions and Appellate Advocacy in Federal

Courts—One Judge’s Views, 51 Duq. L. Rev. 3 (2013); Frederick Schauer,

The Decline of “The Record”: A Comment on Posner, 51 Duq. L. Rev. 51

(2013); Elizabeth G. Thornburg, The Lure of the Internet and the Limits on

Judicial Fact Research, Litig., Summer 2012, at 41; Brianne J. Gorod, The

34 No. 14-3316

oppose using careful research to provide context and back-

ground information to make court decisions more under-

standable. By any measure, however, using independent fac-

tual research to find a genuine issue of material, adjudicative

fact, and thus to decide an appeal, falls outside permissible

boundaries. Appellate courts simply do not have a warrant

to decide cases based on their own research on adjudicative

facts. This case will become Exhibit A in the debate. It pro-

vides, despite the majority’s disclaimers, a nearly pristine

example of an appellate court basing a decision on its own

factual research.

The majority’s factual research runs contrary to several

lines of well-established case law holding that a decision-

maker errs by basing a decision on facts outside the record.

If a district judge bases a decision on such research, we

reverse for a violation of Rule 201. E.g., Pickett v. Sheridan

Health Care Center, 664 F.3d 632, 648–51 (7th Cir. 2011) (dis-

trict court erred by relying on independent internet research

on attorney fees without giving parties opportunity to ad-

dress information).

If jurors start doing their own research during a trial, a

new trial is likely. United States v. Thomas, 463 F.2d 1061,

1062–65 (7th Cir. 1972); see also United States v. Blagojevich,

612 F.3d 558, 564 (7th Cir. 2010) (noting concern that messag-

Adversarial Myth: Appellate Court Extra-Record Factfinding, 61 Duke L.J. 1

(2011); Elizabeth G. Thornburg, The Curious Appellate Judge: Ethical Limits

on Independent Research, 28 Rev. Litig. 131 (2008); Coleen M. Barger, On

the Internet, Nobody Knows You’re a Judge: Appellate Courts’ Use of Internet

Materials, 4 J. App. Prac. & Process 417 (2002).

No. 14-3316 35

es to jurors would tempt them to engage in “forbidden re-

search and discussion”).

If an immigration judge or administrative law judge ba-

ses a decision on facts without record support, we reverse it.

See, e.g., Huang v. Gonzales, 403 F.3d 945, 948–50 (7th Cir.

2005) (reversing immigration decision based on alien’s an-

swers to questions based on judge’s personal beliefs about

alien’s religion); Nelson v. Apfel, 131 F.3d 1228, 1236–37 (7th

Cir. 1997) (ALJ’s reliance on evidence outside record was er-

roneous but harmless).

We are in no better a position to go outside the record for

decisive facts. Our job is to reverse in cases where the deci-

sion-maker has gone outside the record. The majority in this

case, however, not only does what we treat as reversible er-

ror when others do it; it holds in essence that the district

judge erred by not doing such independent factual research.

What was forbidden is now required.

In addition to the case law holding that a decision-maker

is not permitted to base a decision on evidence outside the

record, another body of law is relevant to this issue: Federal

Rule of Evidence 201 and the law of judicial notice. The ma-

jority opinion runs contrary to that law and misunderstands

how Rule 201 and judicial notice fit together with the ordi-

nary, adversarial presentation of facts.

The vast majority of facts that courts consider when de-

ciding cases comes from the familiar, adversarial presenta-

tions of evidence by opposing parties. The foundation of our

legal system is a confidence that the adversarial procedures

will test shaky or questionable evidence: “Vigorous cross-

examination, presentation of contrary evidence, and careful

36 No. 14-3316

instruction on the burden of proof are the traditional and

appropriate means of attacking shaky but admissible evi-

dence.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579, 596 (1993). Those protective procedures are not available

when a court decides to do its own factual research and ba-

ses its decision on what it finds.

The law of evidence allows a narrow exception permit-

ting some judicial research into relevant facts, under Federal

Rule of Evidence 201 and the concept of judicial notice. Judi-

cial notice “substitutes the acceptance of a universal truth for

the conventional method of introducing evidence,” and as a

result, courts must use caution and “strictly adhere” to the

rule before taking judicial notice of pertinent facts. General

Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081

(7th Cir. 1997); see also Hennessy v. Penril Datacomm Networks,

Inc., 69 F.3d 1344, 1354 (7th Cir. 1995) (“In order for a fact to

be judicially noticed, indisputability is a prerequisite.”).

The majority says twice it is not taking judicial notice of

all the cited medical information from the internet. Ante at

13–14, 19. I agree it could not properly take judicial notice of

this information under Evidence Rule 201(b) and (e). The

proper timing of a patient’s doses of Zantac is not “generally

known within the trial court’s territorial jurisdiction” and is

not beyond “reasonable dispute,” nor can it be “accurately

and readily determined from sources whose accuracy cannot

reasonably be questioned,” as Rule 201(b) requires. And the

majority has made no effort to comply with the procedural

requirements of Rule 201(e), essential to basic fairness, of

giving the parties an opportunity to be heard on the evi-

dence.

No. 14-3316 37

If the majority is not taking judicial notice, what exactly

is it doing? It seems to have created an entirely new, third

category of evidence, neither presented by the parties nor

properly subject to judicial notice. The majority writes:

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 infor-

mation 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.

Ante at 13 (emphasis added). In other words, the majority

acknowledges that its “evidence” neither comes from adver-

sarial presentation by the parties nor meets the strict sub-

stantive and procedural standards for judicial notice under

Rule 201.

Before this decision, American law has not recognized

this category of evidence, which might be described as “non-

adversarial evidence that the court believes is probably cor-

rect.” Compare the comments of the authors of Rule 201, the

Advisory Committee Notes from 1972:

The usual method of establishing adjudicative

facts is through the introduction of evidence,

ordinarily consisting of the testimony of wit-

38 No. 14-3316

nesses. If particular facts are outside the area of

reasonable controversy, this process is dis-

pensed with as unnecessary. A high degree of in-

disputability is the essential prerequisite.

In other words, the Federal Rules of Evidence allow no room

for the majority’s innovation. Adversarial evidence and judi-

cial notice are not opposite poles on a wide spectrum, with a

middle ground for the majority’s evidence that has neither

been subjected to adversarial testing nor a proper subject of

judicial notice. These are two distinct categories. To be ad-

missible, evidence must fall within one or the other. “Close”

to judicial notice does not count.

The majority has not offered any precedent from the law

of evidence to support its reliance on its own factual re-

search. Instead, it tries to downplay the unprecedented step

it takes, including its emphasis that it is “not ordering that

judgment be entered in Rowe’s favor” and that defendants

will be entitled to rebut the majority’s factual research on

remand. Ante at 19. The majority’s modest demurrer loses

sight of the stakes. 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. See Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 149–50 (2000);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). By

reversing, the majority is necessarily finding that this record

is sufficient to support a jury verdict for Rowe. I disagree.

The majority also points out that “judges and their law

clerks often conduct research on cases without disclosure to

the parties.” Ante at 12. Such research has long been under-

stood to involve only legal research. The majority’s effort to

compare long-accepted judicial research into case law and

No. 14-3316 39

statutes to its independent factual research shows the majori-

ty has entered unknown territory.

To justify this venture, the majority asks a number of rhe-

torical questions and invokes the courage of the barons at

Runnymede in 1215. Ante at 14. With respect, we are an in-

termediate 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 un-

known territory.

III. The Practical Problems

The majority points out correctly that prisoners must de-

pend entirely on the government for their health care. If they

turn to the federal courts for help, the combination of the

constitutional standard under the Eighth Amendment, de-

liberate indifference to a serious health need, and the system

of personal liability under 42 U.S.C. § 1983 can make it very

difficult for a prisoner to hold anyone accountable for seri-

ous wrongs. See, e.g., Shields v. Illinois Dep’t of Corrections,

746 F.3d 782 (7th Cir. 2014). When a prisoner brings a pro se

suit about medical care, the adversary process that is the

foundation of our judicial system is at its least reliable. Few

prisoners have access to lawyers or to expert witnesses

needed to address medical issues.

These conditions pose important challenges to federal

courts doing their best to decide these cases fairly. Yet the

majority’s solution—to research available medical infor-

mation on its own and find a genuine issue of material fact

40 No. 14-3316

on that basis—raises problems much more serious than a

possible error in the resolution of one prisoner’s case.

The majority’s approach turns the court from a neutral

decision-maker into an advocate for one side. The majority

also offers no meaningful guidance as to how it expects oth-

er judges to carry out such factual research and what stand-

ards should apply when they do so. Under the majority’s

approach, the factual record will never be truly closed. This

invites endless expansion of the record and repetition in liti-

gation as parties contend and decide that more and more in-

formation should have been considered.

In addition to the abandonment of neutrality, consider

the problems from the district judge’s point of view. The ma-

jority clearly implies, while denying it is doing so, that the

district judge herself should have done the independent fac-

tual research the majority has done on appeal, questioning

an unchallenged expert affidavit by looking to websites of

the drug manufacturer, the Mayo Clinic, the Physician’s

Desk Reference, and Healthline.

The practical questions are obvious: When are district

judges supposed to carry out this independent factual re-

search? How much is enough? What standards of reliability

should apply to the results? How does the majority’s new

category of evidence fit in with a district judge’s gate-

keeping responsibilities under Rule 702 and Daubert? The

majority offers no answers.

The majority essentially orders the district judge on re-

mand to find an expert witness on the medical issues, either

for plaintiff or as a neutral expert under Rule 706. That

might well be helpful, but as the majority concedes, district

No. 14-3316 41

courts do not have budgets for that purpose. Even if a few

experts might be willing to volunteer in unusual cases, the

demand of prisoners for free medical or other expert wit-

nesses will far exceed the supply, especially in the rural areas

where so many prisons are located and smaller towns where

the nearest district courts are located.

The majority’s solution for this problem is to have the dis-

trict court use Federal Rule of Evidence 706 to order defend-

ants, and only the defendants, to pay for an expert witness

for the plaintiff or the court. See ante at 19–20. That approach

is not foreclosed by the language of Rule 706, and there is

some case law supporting it. See Ledford v. Sullivan, 105 F.3d

354, 360–61 (7th Cir. 1997). Nevertheless, the majority’s reli-

ance on this solution in this ordinary case further threatens

the neutrality of the courts. It is worth recalling that damag-

es under 42 U.S.C. § 1983 must be sought from state employ-

ees only in their individual capacities. Will v. Michigan Dep’t

of State Police, 491 U.S. 58 (1989). Indemnification by their

employer is a matter of state law and policy, and sometimes

grace. See Ind. Code § 34-13-4-1; Estate of Moreland v. Dieter,

576 F.3d 691, 694–96 (7th Cir. 2009). Is it fair to impose on in-

dividual guards, prison administrators, staff, nurses, and

doctors the cost of finding evidence to build a case against

them? At the very least, such one-sided burdens should be

imposed only in extraordinary cases.2

2 I share the concerns expressed by the district court in Martin v.

Cohn, 1999 WL 325054, at *1 (N.D. Ind. April 5, 1999), about the funda-

mental fairness of imposing this financial burden on one side solely be-

cause the opposing party is indigent. The defendants will end up having

to foot the bill for the expert even if they win the case. One partial but

creative solution to this problem can be found in Goodvine v. Ankarlo,

42 No. 14-3316

Further, if the case goes to trial, how is the district judge

supposed to present to a jury the information the majority

has found? My colleagues and I agree it is not suitable for

judicial notice because it is not indisputable, as required un-

der Rule 201(b). Without an expert witness qualified to pre-

sent the facts and opinions the majority finds persuasive,

that information does not come into evidence. On appeal

would the majority’s approach lead us to remand for a new

trial with instructions to look harder for the right evidence?

Or what should we do if the district judge did not find or

rely on the information that our research turns up? As long

as the factual record remains open for judicial supplements,

parties will try to use the quest for the perfect record to keep

any loss in litigation from being final.

Then consider the problems parties and their lawyers

will face. If we permit such independent factual research by

district judges—even expect such research from them—

parties will need to plan for it. Responding to the evidence

actually offered by the other side is often the biggest chal-

lenge and expense in a lawsuit. Now parties need to antici-

pate the evidence the judge might turn up on her own and

prepare to meet it. The time and expense devoted to such

preventive measures will be substantial and should be un-

necessary. And if the district judge does her own research

and gives the parties an opportunity to respond to it, the ma-

jority’s approach here is an open invitation for parties to add

to the record on appeal. The parties will also need to antici-

pate on appeal that our court will undertake its own factual

2013 WL 1192397, at *2 (W.D. Wis. March 22, 2013) (providing for long-

term assessments of plaintiff’s prison trust account to pay for court-

appointed expert if plaintiff did not prevail).

No. 14-3316 43

research, opening up opportunities to save any losing case

by offering new evidence on appeal.3

From the larger perspective of our judicial system, the

independent factual research the majority endorses and even

requires here is not something that federal courts can carry

out reliably on a large scale. History is probably the academ-

ic field closest to the practice of law and judging. Yet histori-

ans regularly scoff at the phenomenon called “law-office his-

tory.” See Velasquez v. Frapwell, 160 F.3d 389, 393 (7th Cir.

1998) (Posner, J.) (“[J]udges do not have either the leisure or

the training to conduct responsible historical research or com-

petently umpire historical controversies. The term ‘law-office

history’ is properly derisory and the derision embraces the

efforts of judges and law professors, as well as of legal advo-

cates, to play historian. * * * Judges don’t try to decide con-

tested issues of science without the aid of expert testimony,

and we fool ourselves if we think we can unaided resolve

issues of historical truth.”), vacated in part, 165 F.3d 593 (7th

Cir. 1999).

Law-office or judicial-chambers medicine is surely an

even less reliable venture. The internet is an extraordinary

resource, but it cannot turn judges into competent substi-

tutes for experts or scholars such as historians, engineers,

3 If parties on appeal try to supplement the record as the majority

does here, they are rebuked and may even be sanctioned. E.g., Hart v.

Sheahan, 396 F.3d 887, 894–95 (7th Cir. 2005) (stating general rule but

finding no violation because appeal was from dismissal on pleadings);

Holmberg v. Baxter Healthcare Corp., 901 F.2d 1387, 1392 n.4 (7th Cir. 1990)

(striking portions of appellee’s brief). Under the majority’s approach, we

could not take such steps in response to parties’ invitations to our court

to repeat what the majority does here.

44 No. 14-3316

chemists, psychologists, or physicians. The majority’s in-

struction to the contrary will cause problems in our judicial

system more serious than those it is trying to solve in this

case.

IV. How Reliable is Our Research?

Thus far I have avoided debating the details of the major-

ity’s research, but they deserve closer attention. The specific

details highlight the more general criticisms I have directed

at such factual research by judges.

First, on the websites the majority relies upon, we find

important disclaimers that emphasize the need for filtering

their information through qualified medical advice, which

no member of this court is qualified to provide. The Physi-

cian’s Desk Reference site says it is to be used “only as a ref-

erence aid. It is not intended to be a substitute for the exer-

cise of professional judgment. You should confirm the in-

formation on the PDR.net site through independent sources

and seek other professional guidance in all treatment and

diagnosis decisions.” www.pdr.net (last visited August 19,

2015, as were all websites cited here). The Mayo Clinic and

Zantac websites have similar disclaimers advising readers to

talk to a physician or other health care provider before act-

ing on the information on the websites. See

www.mayoclinic.org/about-this-site/terms-conditions-use-

policy; www.zantacotc.com/zantac-maximum-

strength.html#faqs.

Second, after we get past the disclaimers, the content of

the majority’s websites simply does not give clear support to

the majority’s views (a) that Dr. Wolfe was wrong in saying

that the 150 mg pills Rowe was receiving twice a day could

No. 14-3316 45

be equally effective even if not given shortly before meals, let

alone (b) that Dr. Wolfe was so thoroughly and obviously

wrong that a jury could infer that prison staff were deliber-

ately indifferent to Rowe’s health needs. The majority’s web-

sites instead show that some degree of medical judgment is

needed to decide when best to administer which size pills

for patients with different needs, especially patients like

Rowe with chronic conditions.

The Mayo Clinic site says that patients taking prescrip-

tion strength Zantac twice a day should take one in the

morning and one at bedtime. The majority discounts that

advice because Rowe was taking an over-the-counter dosage

of 150 mg pills rather than the prescription dosage of 300 mg

pills. Ante at 8. Yet that explanation overlooks the advice

from both the manufacturer and the Mayo Clinic that a pa-

tient should not take the over-the-counter pills for more than

two weeks unless directed by a doctor. For patients like Rowe,

taking Zantac long-term to treat GERD, the Mayo Clinic of-

fers more specific guidance. It advises that adult patients

with GERD take the 150 mg pill two times a day without

specifying that the pills should be taken shortly before

meals. www.mayoclinic.org/drugs-supplements/histamine-

h2-antagonist-oral-route-injection-route-intravenous-

route/proper-use/drg-20068584. That advice from the Mayo

Clinic seems identical to Dr. Wolfe’s view.

Similarly, the PDR advises that for treatment of GERD,

“Symptomatic relief commonly occurs within 24 hours after

starting therapy with ZANTAC 150 mg twice daily,” again

without indicating any need to take the pills before meals.

www.pdr.net/full-prescribing-information/zantac-150-and-

300-tablets?druglabelid=241#section-standard-1.

46 No. 14-3316

The “full prescribing information” on the Physician’s

Desk Reference website says that for treatment of GERD

with the 150 mg and 300 mg pills, “Symptomatic relief

commonly occurs within 24 hours after starting therapy with

ZANTAC 150 mg twice daily,” again without saying any-

thing about taking pills before meals. www.pdr.net/full-

prescribing-information/zantac-150-and-300-

tablets?druglabelid=241. And again, that was Rowe’s diagno-

sis and those were his pills in 2011.

The majority draws on the PDR website and “common

sense” regarding how long the pills remain effective. Ante at

17. The PDR website, however, simply does not provide suf-

ficient data on absorption and clearance rates for the medi-

cine to allow us to exercise our own (non-expert) judgment

about whether the timing of Rowe’s pills was appropriate. It

certainly does not allow us to conclude that the timing could

have amounted to deliberate indifference to his serious

health needs or to find that Dr. Wolfe’s uncontradicted affi-

davit did not support the district court’s entry of summary

judgment on this claim.

Of course, the point of this discussion of the websites is

not to debate the majority on the medical fine points. The

websites the majority relies upon tell us themselves that their

information needs to be interpreted by a qualified physician.

None of this information is in the record. None was before

the district court, nor is it properly before us.

The majority’s interpretation of its internet research is not

a reliable substitute for proper evidence subjected to adver-

sarial scrutiny. And while Dr. Wolfe’s affidavit is far less de-

tailed than the information the majority has explored on the

internet, I also see no basis for the majority’s harsh criticism

No. 14-3316 47

of him, especially when Dr. Wolfe has not been given any

opportunity to respond or explain.4

* * *

In the end, whether Dr. Wolfe’s testimony about the tim-

ing 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 undisput-

ed. 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. I respectfully dissent from the reversal of

summary judgment on Rowe’s claims based on the timing of

his medication.

4 The majority criticizes Dr. Wolfe’s affidavit for not providing an

explanation for his opinion about the timing of the Zantac doses. The

majority overlooks Federal Rule of Evidence 705, which permits conclu-

sory expert testimony unless and until the conclusions are challenged,

which Dr. Wolfe’s affidavit was not in the district court. He has not yet

been called upon to explain his opinion in this case. The fact that he is a

defendant does not disqualify him from offering an affidavit; we often

affirm summary judgment based on a moving party’s testimony. The

majority points out that Dr. Wolfe is “a frequent defendant in prisoner

civil rights suits,” ante at 6, as if that reflected poorly on his professional-

ism. Virtually any physician serving large numbers of prisoners will be

“a frequent defendant in prisoner civil rights suits.”