Judge Richard Posner exhibited an extraordinary passion for justice when he wrote “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.” The prolific 7th Circuit judge was writing in Rowe v. Gibson. The court reversed the grant of summary judgment and dismissal to defendant prison officials who were alleged to have been deliberately indifferent to plaintiff’s medical condition in violation of the cruel and unusual punishment clause of the Eighth Amendment. Rowe claims prison officials callously withheld and administered the medication necessary for care of his reflux esophagitis – GERD.
Like his colleagues Posner found Rowe’s claims sufficient to reverse grants of summary judgment. Posner disputed the credentials of credentials of the prescribing physician – a defendant who testified as an expert in his own defense, in a field not his own. To reach and support his conclusions – and doubtless fueling his anger – Posner conducted his own independent research about the drug commonly known as Zantac. Posner gathered materials from the drug’s manufacturer GlaxoSmith Kline, and widely relied upon authoritative sources such as the National Institutes of Health, the Mayo Clinic, Web MD and Wikipedia in discussing the pro se plaintiff’s physical condition and legal claims.
Posner’s efforts were sharply criticized by his colleague David Hamilton. He took exception to Judge Posner’s reliance on the sources, finding them to be investigations of fact, beyond the scope of what is permitted of a neutral magistrate. – gwc