Mimesis Law
5 June 2020

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.


9 Comments on this post.

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  • Keith
    28 August 2015 at 9:42 am - Reply

    “[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?”

    I’m trying to understand what Judge Posner was trying to do here. Perhaps there wasn’t a second judge to sign on, but it would seem that a true correction for the “system” would have ruled that in all pro se cases, money and “two equal adversaries fighting to reach the truth” must be available.

    Instead we get: “There is a high standard for taking judicial notice of a
    fact, and a low standard for allowing evidence to be presented
    in the conventional way, by testimony subject to crossexamination,
    but is there no room for anything in between?”


    “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.”

    But if there’s no substantive right to obtain access available for the pro se prisoner, is the only option to appeal and hope for Judge Posner?

    • shg
      28 August 2015 at 10:52 am - Reply

      It’s a slippery slope problem. It’s good sometimes, not good others. Better to correct the underlying problem of defendants incapacity to fight false arguments than have judges ignore their rules, since it doesn’t always benefit the side one deems the “good guy.”

      • Andrew Fleischman
        28 August 2015 at 11:13 am - Reply

        That’s certainly true.

        Posner really didn’t have to go outside the record to rule for the plaintiff. He could have written a pretty uncontroversial opinion just like the concurrence. But he wanted to explain that Dr. Wolfe’s testimony was biased, contradictory and ad-hoc, possibly in an effort to persuade the District Court to give the plaintiff some counsel. The plaintiff’s ineffectual self-representation probably gave him very little ammo for that.

        Maybe the best solution would be to give indigent civil litigants some form of assistance–whether effective counsel or the right to a court-appointed expert witness. But I’d imagine that such a law would become deeply unpopular the second that some enterprising inmate filed a dumb suit.

        • bmaz
          28 August 2015 at 11:54 am - Reply

          So, Mr. Fleishman, are you seriously arguing that criminal appellate law should be controlled by what narcissistic publicity hound judges like Richard Posner “want”?

          Goodbye precedent, goodbye Stare decisis, we shall all live in Richard Posner’s little world, because that is what he “wants”? Good grief, I don’t think you have a clue of the rabbit hole you are in.

  • bmaz
    28 August 2015 at 11:32 am - Reply

    Um, NO, Posner going outside of the record by trolling the internet for information to support his desired conclusion is NOT simply a red herring. And the fact that, in doing so, this particular defendant/prisoner got better justice is simply not an excuse. Posner should have remanded for fact-finding with instructions instead of taking it upon himself to Google his own preferred decision into existence. This type of narcissistic crap by Posner (and occasionally SCOTUS) skews the rules and inures to the detriment of appellate law everywhere. It is disgraceful.

    Now, if Posner had found it fundamentally unfair for Rowe not to have had access to assistance of an expert, if not counsel and remanded with such instructions, THAT would be worth commending. But this article blithely cheers an egregious abuse of appellate law and practice because the result is feel goody and heartwarming. That’s intellectual garbage. The ends do not justify the means when it comes to criminal law, irrespective of which side of the equation is arguing they should.

    • Andrew Fleischman
      28 August 2015 at 11:53 am - Reply

      I couldn’t agree more.

      “[W]e reverse with regard to the remaining defendants 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.”

      “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 consideration to recruiting a lawyer to represent Rowe, appointing a neutral expert witness, authorized by Fed. R. Evid. 706, to address the medical issues in the case; or doing both.”

      • bmaz
        28 August 2015 at 11:57 am - Reply

        Right, but there were lots of ways to craft a remand without setting the precedent that it is okay for appellate judges to not just go outside the record, but create their own. And people are arguing that now to me, including a couple of fairly prominent law professors. God save us from the law professors, but they and Posner do influence the law immensely, for better or worse. I’d argue the latter often, but that is just me.

        At any rate, I am relieved to see you understand the problem here. Please disregard my rabbit hole comment above.

  • Bryan Gates
    30 August 2015 at 2:21 pm - Reply

    That case took four years to get to the appellate court. It is now going back to the trial court. Think how much time, effort and bullshit could have been avoided if the line attorney at the state attorney general’s office had read the complaint and made the following phone call:

    Attorney: This is Jones at the AG’s office. Put me through to the warden at Pendleton.

    Warden: What can I do for you?

    Attorney: I’m calling about that Rowe case, where the guy wants Zantac.

    Warden: Yeah that Rowe is a real pain in the ass.

    Attorney: I see here you can buy 65 pills at Walgreens for 21 bucks. Give him the damn pills save us all the hassle.

  • Max
    19 September 2015 at 12:48 pm - Reply

    “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.”

    I laughed.