Judge Posner and Internet Research

By Eric Segall

Judge Richard Posner has come under heavy fire this week for reversing the grant of summary judgment against a pro se prisoner who claimed that doctors at his prison violated his rights by refusing to prescribe the drug Zantac correctly. Judge Posner’s opinion relies to some degree on independent research the Judge performed on various websites including WebMD, the home page of the company that distributes Zantac, the Physician’s Desk Reference, and the Mayo Clinic. A strong dissenting opinion argued that it was improper for Judge Posner to go outside the record to send the case back to the trial court for more factual findings.

The issue of whether it is appropriate for appellate judges to perform internet research outside the purview of the parties' submissions is hotly contested and fraught with both practical and philosophical issues concerning the role of judges and the adversarial process. I am not writing to take a position on that question generally. The point of this piece is simply that in this particular case, Judge Posner was right to go outside the record.

The plaintiff is a prisoner without the ability to hire a lawyer or his own expert witness. He asked for both in the trial court and the judge denied his motion. The state’s expert witness in the case was the very prison doctor who allegedly refused to prescribe the plaintiff’s medicine correctly. His testimony was refuted by virtually all the sources that Judge Posner consulted and the panel (one judge concurred in the result without addressing the research issue) simply remanded the case back for a factual determination and did not conclusively decide the question.

In response the to the dissent’s blistering attacks, Judge Posner said that a refusal to go outside the record in this case would “fetishize adversary procedure.” This is no doubt correct. How would a prisoner with few resources go about proving his case when he is denied access to a lawyer and expert witnesses? Moreover, as many commentators have pointed out, appellate judges, including or maybe especially Supreme Court Justices, go outside the record all the time to find facts that the formal record in the case does not support. Perhaps most importantly, in this case the court simply sent the case back for further fact-finding. As Judge Posner wrote:

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 material fact created in the district court proceedings by entirely conventional evidence, namely [plaintiff] Rowe’s reported pain.

The availability of an enormous amount of reliable internet information is a phenomenon less than fifteen years old. How judges should use that vast repository is a difficult question that requires more study and thought. But, in this case, where the issue was one of correct medical procedure, where that question can be looked at through examination of numerous respected web sites, and where the adversary process involves a resource-deprived prisoner against a well-funded state defendant, it would be the height of formalism to prohibit appellate judges from consulting any source outside the formal and closed record of the case. At least in those circumstances, justice and a fair result properly trumped unnecessary legal rigidity.