Judicial Fact-Finding Run Amok: Dr. Posner Cites MayoClinic.org To Contradict Expert Witness’s Testimony

August 20th, 2015

For years I have chronicled on this blog how appellate judges routinely go outside the record, and engaging in judicial fact-finding.  The most flagrant, and brazen offender is Judge Posner (see here, here, here, here, here, here, here, here, here, here–11 posts). Perhaps Posner’s most egregious violation was when he timed his law clerks as they doffed and donned protective gear in a case that turned on how long that process would take. I dubbed it the judicial fashion show. Judge Wood strongly rebuked this practice in her dissent in that case, finding that it was a violation of Rule 56.

I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a post‐ argument experiment conducted in chambers by a judge. Ante at 9–10. As the majority concedes, this cannot be con‐ sidered as evidence in the case. To the extent (even slight) that the court is relying on this experiment to resolve a dis‐ puted issue of fact, I believe that it has strayed beyond the boundaries established by Federal Rule of Civil Procedure 56. (This is quite different, it seems to me, from including an illustrative photograph whose accuracy presumably could not be contested.) I note as well that this experiment pro‐ ceeded on the assumption that washing is not essential for workers handling raw poultry—an assumption I have al‐ ready shown to be inconsistent with government regulations for hygiene within a meat processing plant.

Wood, joined by Rovner, Williams, and Hamilton later dissented from denial from rehearing en banc, citing Posner’s misfeasance.

By ex- plicitly rejecting Appellant’s affidavit and accepting the em- ployer’s time estimation (and confirming that with a court staff “experiment”), the majority ignored the evidence in the light most favorable to the employees and therefore did not conduct the proper Rule 56 analysis. In the light most favor- able to Appellant, how long it took to don and doff was an issue of fact that should have been decided by a jury.

Posner defended his extracurricular research in a opinion concurring in denial of rehearing.

In a different case, Judge Bauer faulted Posner for looking outside the record to resolve a medical issue.

I join the opinion insofar as it affirms the grant of summary judgment to the defendants. But as Judge Posner points out, many lawyers decided against medical school because of lack of interest in the clinical aspects of medicine or a deeper interest in the less scientific aspects of law. I was one of those who chose law as opposed to medicine. I think the opinion made the necessary legal point when it said that the record shows that summary judgment was clearly the right decision. That’s where I would stop.

Now we have a new fissure. The Seventh Circuit panel of Posner, Rovner, and Hamilton split on the issue of judicial fact-finding in Rowe v. Gibson. In this case, the plaintiff (a prisoner)  suffered from Gastroesophageal reflux disease (GERD). To discuss this disease, and the appropriate treatment, Posner cites to NIH, the Mayo Clinic, WebMD, and Wikipedia. (One time when I was in college, and wasn’t feeling well, I logged onto WebMD. After going through the symptom checker, I started panicking because it said I had a collapsed lunge. Turned out I just had a cough, which went away the next day.) When Posner discussed the prison doctor, who was also he expert witness, he referred to a medical rating website.

One of the main issues in this case was whether the prison allowed the plaintiff to take medicine with his meals, rather than hours beforehand. Posner finds that the Doctor’s opinion is contradicted by information on the pharmaceutical company’s and Mayo Clinic’s website.

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. …

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.

Posner goes on to cite other sources, explaining that medicine must be taken with food:

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.

Posner responds to charges that he is “going outside the record” by saying “what’s the problem?”

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 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.

Posner than offers a way to distinguish good internet research from bad internet research.

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.

In other words, where the record is “sparse” of any conflicting information, a reputable web site can be used determine that a genuine issue of material fact is in dispute. Posner explains:

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.

Next, in one of the more bizarre commemorations of Magna Carta, Posner writes that justice demands such internet research.

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? 

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.

Judges have the obligation (but not duty) to help the pro-se prisoner who cannot build a sufficient record. To do otherwise is “heartless.”

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.

In effect, where parity between the parties is lacking, the rules of evidence can and should be relaxed.

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.

Judge Rovner concurred, but cited the “debate” that erupted.

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.

Judge Hamilton wrote an 18-page concurring/dissenting opinion that ripped into Posner’s opinion. In response to Judge Hamilton’s dissent, Judge Posner issues a five-page “Appendix” starting on p. 21.

We respectfully suggest that the dissenting opinion is misleading in certain respects that require a response; page references are to pages in the dissent.

So let’s go point-by-point, shall we. Hamilton writes that Posner’s analysis is “unprecedented.”

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.)

Posner replies that the internet research is only used to preclude summary judgment:

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.

Hamilton takes issue with the “heartless” barb:

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.

Posner retorts:

Nowhere does the ma- jority opinion deny the validity of the federal rules of evi- dence or of procedure.

Hamilton explains that the bulk of the opinion would not be necessary if the internet research didn’t affect the outcome:

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 were accurate, moreover, the majority decision would amount to a significant rewriting of the Eighth Amendment law governing health care for prisoners.  … 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.

Posner has no reply here.

Part II of Judge Hamilton’s opinion focuses on the “law of 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 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  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).

What falls out of bounds is using the research to resolve dispositive issues.

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.

Such research is reversible error:

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)

Hamilton charges that Posner’s opinion faults judges for not doing such research.

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.

Posner is right here, but by a hair. He didn’t say that judges have a responsibility to do so, but failing to do so is “heartless.”

Hamilton also cites violations of Rule 201:

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.

Further, the medical information is beyond the scope of judicial notice.

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. …

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.” 

Hamilton further notes that the inquiry on summary judgment is limited to “the record,” not the internet.

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.

Any research that judges and clerks performed must be “legal.”

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 statutes to its independent factual research shows the majori- ty has entered unknown territory.

Not even Magna Carta can justify this incursion into “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.

What about the court’s role in helping the downtrodden?

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.

And when and how are judges supposed to conduct this research?

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.

Rubbish, Posner replies:

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.

Hamilton also raises an important point–judge-research moves the goal posts. Parties will now have to respond not only to arguments in the record, but arguments a judge may find himself.

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 research, opening up opportunities to save any losing case by offering new evidence on appeal.

Hamilton notes that parties are sanctioned for briefing about material outside the record.

Hamilton then compares law-office history to “judicial-chambers medicine.”

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, 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.  …

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 of him, especially when Dr. Wolfe has not been given any opportunity to respond or explain.4

In conclusion:

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.

To quote Taylor Swift, now we got bad blood in the Seventh Circuit.