Judge Posner Meets Zantac, And Fixes The Game
Aug. 28, 2015 (Mimesis Law) — America has created one of the fairest and most equitable institutions in the world. Each side is given equal resources and adequate counsel, the arbiters are neutral and closely scrutinized, and when a mistake is made, it is quickly caught and remedied. It’s a marvel of transparency, completely open to the public. It’s too bad that we reserve it for refereeing professional football games.
But once we move outside the dome and into the criminal justice system there is very little of the parity and enforced sportsmanship that NFL fans require to feel the game’s not rigged. To the contrary, the government possesses nearly limitless finances, ample time, often friendly (or fearful) referees and the ability to change the rules to keep on winning, while facing opposition with only a fraction of those resources. There are not a lot of sports fans who would watch a game where one team was 94-97% likely to quit before the contest started.
As unequal as the resources may be in a typical criminal jury trial, things are far more lopsided once a citizen has actually been convicted, gotten past his direct appeal, and now has to settle in for a long stretch behind bars. For a truly pitiful example, take Jeffrey Rowe. Rowe, a prisoner at Pendleton Correctional Facility, had a simple request: he wanted to be able to take over the counter heartburn medication with his meals, to stave off “persistent, agonizing pain and discomfort” caused by a diagnosed medical condition often known as GERD. For a year or so, common-sense prevailed, and he was allowed to keep the medication in his cell and take it as needed.
Then the prison made a series of decisions. Rowe could only take the medicine at 9:30 am and 9:30 pm, but he could only eat at 4 am and 4 pm. That meant that the medication wouldn’t effectively treat his pain. He couldn’t keep the medicine in his cell unless he bought it from the commissary, at a yearly cost of $1300.00, and only eight-days supply per month. Why was free medicine off-limits in his cell while paid medicine was allowed? The prison didn’t have to explain, and so it never did.
So Rowe sued both the prison and his treating physician, Dr. William H. Wolfe. Suddenly, Wolfe decided that Rowe’s prescription should end, and for more than a month, he received no heartburn medication at all until Wolfe offered him another prescription, Wolfe said, “as a courtesy.” The prison moved for summary judgment, and when Rowe got his day in court, only one witness testified against him, through affidavits so he couldn’t be questioned.
It was Dr. Wolfe, who swore under oath that Rowe had never needed the medication in the first place, that it didn’t matter when Rowe took his medication, and that Rowe must be faking his pain. The court, finding that Rowe had failed to present any expert testimony to the contrary (because his motion for counsel and funds to hire an expert had been denied), made an easy call and ruled that Rowe would get no relief.
Prisons can be arbitrary and capricious places, and for all the public talk about cable television and easy access to a gym, it still made national news when the Supreme Court said the Arkansas Department of Corrections couldn’t stop prisoners from growing a half-inch beard. Prisoners trying to get a prison to accommodate their religious or medical needs face tremendous hurdles, from a three strikes and you’re out filing policy to the risk of retaliation from guards and other staff. Given all that deference, the government likely expected a slam dunk victory when Rowe appealed to the Seventh Circuit. That’s not what happened.
Judge Posner refused to defer to the views of an “expert” who was defending himself from a lawsuit, particularly when those views were unsupported by the medical literature.
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. [H]ow 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?
How indeed? In a system of justice premised on two equal adversaries fighting to reach the truth, it might make sense to say that one side simply didn’t do a good enough job. But Rowe had no money (asides from the sixty dollars a year in commissary costs the government said proved he was wealthy), no expertise, and no access to an expert. So Posner did something unusual. He checked to see if Wolfe’s testimony made sense. It didn’t.
Were Zantac equipotent whenever 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.
The dissent disagreed. “Responding to the evidence actually offered by the other side is often the biggest challenge and expense in a lawsuit. Now parties need to anticipate the evidence the judge might turn up on her own and prepare to meet it.” But in criticizing Posner’s use of sources like the Mayo Clinic and the manufacturer’s web page, the dissent may have accidentally summed up the single most important point of the case.
[W]hen 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.
As Posner responded, “right on.”
Ultimately, the issue of whether to look outside the record for medical evidence is something of a red herring. Rowe said he was in pain, Dr. Wolfe said he wasn’t, and that was a genuine dispute of fact. The Seventh Circuit remanded the case for a new hearing, preferably one where Rowe would have access to a lawyer and maybe someone with some expertise in gastroenterology.
As nice as it is to see the underdog win one, Posner’s decision is an anomaly. Generally, courts are quite comfortable punishing a party for having inadequate counsel or insufficient evidence. While on any given Sunday, any team can win the Superbowl, it’s a rare day when a prisoner prevails.