Jackson v. Pollion

• Decision Date: 28 October 2013
• Docket Number: No. 12–2682.,12–2682.
• Parties: Maurice A. JACKSON, Plaintiff–Appellant, v. Rashonda POLLION, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

733 F.3d 786

Maurice A. JACKSON, Plaintiff–Appellant,

v.Rashonda POLLION, et al., Defendants–Appellees.

No. 12–2682.

United States Court of Appeals,Seventh Circuit.

Argued Oct. 8, 2013.

Decided Oct. 28, 2013.

Jacob Z. Goldstein, Attorney, Hall, Prangle & Schoonveld, Chicago, IL, for Plaintiff–Appellant.

Brad A. Elward, Attorney, Heyl, Royster, Voelker & Allen, Peoria, IL, Douglas R. Heise, Attorney, Heyl, Royster, Voelker & Allen, Edwardsville, IL, Linda Boachie–Ansah, Attorney, Office of the Attorney General, Chicago, IL, for Defendants–Appellees.

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff, an inmate of an Illinois prison, has sued, under 42 U.S.C. § 1983—the ubiquitous federal constitutional tort statute—a nurse practitioner and a correctional counselor both of whom work at the prison. He accuses them of having been deliberately indifferent to his serious medical condition—hypertension (high blood pressure)—for which he was not receiving his prescribed medication. They thus were guilty, he charges, of inflicting cruel and unusual punishment on him. The district judge granted summary judgment in favor of the defendants and dismissed the suit. The judge's ground, so clearly correct as not to require elaboration by us, is that neither defendant was deliberately indifferent to the plaintiff's condition: the nurse practitioner didn't know the plaintiff wasn't receiving his medication and the correctional counselor, who is not a member of the prison's medical staff, though he knew about the plaintiff's problem assumed the medical staff would deal with it. In failing to ascertain whether the medical staff was dealing effectively with the problem, the correctional counselor was at worst negligent, rather than deliberately indifferent (that is, reckless—knowing there was a serious risk unless he acted, yet failing to act; see Farmer v. Brennan, 511 U.S. 825, 836–37, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)).

What is troubling about the case is not its disposition but that both the district judge, and the magistrate judge whose recommendation to grant summary judgment the district judge accepted, believed that Jackson “can present evidence permitting a reasonable inference” that he had experienced a serious medical condition as a consequence of the interruption of his medication. This is mistaken, and (not surprisingly) has no support in the record. But it is not only repeated in the plaintiff's brief in this court, as one would expect; it is largely ignored by the defendants.

This lapse is worth noting because it is indicative of a widespread, and increasingly troublesome, discomfort among lawyers and judges confronted by a scientific or other technological issue. “As a general matter, lawyers and science don't mix.” Peter Lee, “Patent Law and the Two Cultures,” 120 Yale L.J. 2, 4 (2010); see also Association for Molecular Pathology v. Myriad Genetics, Inc., ––– U.S. ––––, 133 S.Ct. 2107, 2120, 186 L.Ed.2d 124 (2013) (Scalia, J., concurring in part and concurring in the judgment) (“I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief”); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 599, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (Rehnquist, C.J., concurring in part and dissenting in part) (“the various briefs filed in this case ... deal with definitions of scientific knowledge, scientific method, scientific validity, and peer review—in short, matters far afield from the expertise of judges”); Marconi Wireless Telegraph Co. of America v. United States, 320 U.S. 1, 60–61, 63 S.Ct. 1393, 87 L.Ed. 1731 (1943) (Frankfurter, J., dissenting in part) (“it is an old observation that the training of Anglo–American judges ill fits them to discharge the duties cast upon them by patent legislation”); Parke–Davis & Co. v. H.K. Mulford Co., 189 F. 95, 115 (S.D.N.Y.1911) (Hand, J.) (“I cannot stop without calling attention to the extraordinary condition of the law which makes it possible for a man without any knowledge of even the rudiments of chemistry to pass upon such questions as these.... How long we shall continue to blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some such advance”); Henry J. Friendly, Federal Jurisdiction: A General View 157 (1973) (“I am unable to perceive why we should not insist on the same level of scientific understanding on the patent bench that clients demand of the patent bar, or why lack of such understanding by the judge should be deemed a precious asset”); David L. Faigman, Legal Alchemy: The Use and Misuse of Science in Law xi (1999) (“the average lawyer is not merely ignorant of science, he or she has an affirmative aversion to it”).

The discomfort of the legal profession, including the judiciary, with science and technology is not a new phenomenon. Innumerable are the lawyers who explain that they picked law over a technical field because they have a “math block”—“law students as a group, seem peculiarly averse to math and science.” David L. Faigman, et al., Modern Scientific Evidence: Standards, Statistics, and Research Methods v (2008 student ed.). But it's increasingly concerning, because of the extraordinary rate of scientific and other technological advances that figure increasingly in litigation.

In 2007 the plaintiff, who was then 22 years old and serving a 40–year sentence for first-degree murder, was diagnosed with hypertension. The drugs hydrochlorothiazide (25 mg—a low dose) and amlodipine (5 mg—a normal dose) were prescribed. Later verapamil (180 mg) was substituted for the amlodipine. (Those two drugs are calcium channel blockers; hydrochlorothiazide is a diuretic.) The plaintiff claims not to have been given the drugs for a three-week period beginning on February 15, 2009 (we'll assume for purposes of this appeal that this is true), and that as a result he suffered loss of vision, nose bleeds, headaches, and light-headedness upon standing up (actually a symptom of low blood pressure, see Cleveland Clinic, “Orthostatic Hypotension,” http:// my. cleveland clinic. org/ disorders/ orthostatic_ hypotension/ hic_ orthostatic_ hypotension. aspx (all websites cited in this opinion were visited on Oct. 18, 2013)).

The plaintiff's blood pressure had been taken on February 9, six days before his medication was interrupted. The reading on that occasion was 112/82 (the top number is the systolic pressure, the lower the diastolic). His blood pressure was taken next on March 9, at the end of the period of interruption, and was 142/78. “Ideal” blood pressure is considered to be below 120/80, but the top of the normal range is 140/90. The systolic pressure was thus slightly above the normal range. A single reading has little significance, because blood pressure fluctuates even when the patient is taking his medication. A week after the plaintiff resumed his medication, his blood pressure was taken again, and this time it was 114/72.

Unless our plaintiff has some serious medical condition unmentioned in the briefs or record, the slight elevation above the normal range that he may have experienced during a...