Appeals Court Says Inequality Should Not Bar Justice

There is a persistent myth in America that our adversarial court system gives every litigant an equal chance for justice.

In fact, research overwhelmingly shows that federal courts are like casinos where the government and big business usually have the edge by virtue of their greater resources. They can easily drive individual plaintiffs out of the courthouse through the use of technicalities, strategic delays, and procedural sleight of hand. Meanwhile, the supposed “leadership” of the federal court system has shown little willingness to innovate or experiment  to improve the judicial process or even to engage with the public!

So it is refreshing that a panel on the U.S. Court of Appeals for the Seventh Circuit in Chicago recently acknowledged the bleak circumstances of an Indiana prisoner who filed a federal lawsuit after being denied timely access to a prescription drug to treat gastroesophageal reflux disease (GERD), which can lead to esophageal bleeding or ulcers, chronic scarring, and increased risk of esophageal cancer.

A prison physician in 2009 ordered inmate Jeffrey Allen Rowe to take an over-the-counter strength Zantac pill twice a day. However, after two years, Rowe’s pills were confiscated and he was told he could only take a pill if he bought it or when it was dispensed by a prison nurse at 9:30 a.m. and at 9:30 p.m.  His prescription was dropped altogether for a month in 2011 on the theory that he had a chronic condition that did not warrant the continued use of the drug. He says the prison doctor and nurse eliminated the prescription in retaliation for his complaints.

Rowe alleged he suffered extreme pain because he couldn’t afford to buy the drug and was forbidden to take the prison-dispensed medication with his meals. He filed a lawsuit charging the prison with deliberate indifference to a serious medical need in violation of the U.S. Constitution’s prohibition against cruel and unusual punishment.

U.S. District Court Judge Sara Evans Barker summarily dismissed Rowe’s lawsuit because he failed to present an expert witness to dispute an affidavit submitted by the prison. The affidavit was from a doctor,  who was not a gastroenterologist, who stated that Zantac was effective for 12 hours after it was taken.  The appeals court noted  the manufacturer of Zantac states the drug must be taken within 30 to 60 minutes of eating food or drinking beverages that cause heartburn “to prevent symptoms.”

Circuit Judge Richard A. Posner wrote the 2-1 ruling, which states: “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.”

Posner said Judge Barker denied Rowe’s requests for appointment of counsel and to hire an expert witness to assist him in the four-year court battle, leaving Rowe at a “decided litigating disadvantage” and unable to offer evidence beyond his own testimony.

 “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?” asked Posner.

The majority cites  research from “highly reputable medical websites” on the Internet to show that Rowe raised a significant issue of material fact which warranted going forward with the case. By conducting independent research, the majority acknowledged that “we may be thought to be ‘going outside the record’ in an improper sense.” However, the panel noted that Rule 201 of the Federal Rules of Evidence permits a judge to consider certain facts without requiring the testimony of an expert witness. The panel did not accept its research as “true” but construed it to be sufficient to raise a question of fact that barred dismissal on a motion for summary judgment. The panel said it is appropriate for a judge to do research when it is conducted “with circumspection. In particular, it must not be allowed to extinguish reasonable opportunities for rebuttal.”

The dissent criticized the majority for expecting Judge Barker to challenge an unquestioned expert’s affidavit and to conduct independent factual research instead of relying solely upon the official record.  The majority responded that Judge Barker had failed to “recognize the existence of a substantial issue of material fact, barring summary judgment. Rowe’s evidence of pain contradicted (the prison doctor’s) affidavit.”

The case is JEFFREY ALLEN ROWE, Plaintiff-Appellant, v. MONICA GIBSON, et al., No. 14-3316 (August 19, 2015).

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