Judges: Bauer concurs
Filed: Oct. 28, 2013
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 12-2682 MAURICE A. JACKSON, Plaintiff-Appellant, v. RASHONDA POLLION, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Illinois. No. 09-cv-688 — J. Phil Gilbert, Judge. _ ARGUED OCTOBER 8, 2013 — DECIDED OCTOBER 28, 2013 _ Before BAUER, POSNER, and EASTERBROOK, Circuit Judges. POSNER, Circuit Judge. The plaintiff, an inmate of an Illi- nois prison, has sued, under 42 U.S.C
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 12-2682 MAURICE A. JACKSON, Plaintiff-Appellant, v. RASHONDA POLLION, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Illinois. No. 09-cv-688 — J. Phil Gilbert, Judge. _ ARGUED OCTOBER 8, 2013 — DECIDED OCTOBER 28, 2013 _ Before BAUER, POSNER, and EASTERBROOK, Circuit Judges. POSNER, Circuit Judge. The plaintiff, an inmate of an Illi- nois prison, has sued, under 42 U.S.C...
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐2682
MAURICE A. JACKSON,
Plaintiff‐Appellant,
v.
RASHONDA POLLION, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 09‐cv‐688 — J. Phil Gilbert, Judge.
____________________
ARGUED OCTOBER 8, 2013 — DECIDED OCTOBER 28, 2013
____________________
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
POSNER, Circuit Judge. The plaintiff, an inmate of an Illi‐
nois prison, has sued, under 42 U.S.C. § 1983—the ubiqui‐
tous federal constitutional tort statute—a nurse practitioner
and a correctional counselor both of whom work at the pris‐
on. 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
2 No. 12‐2682
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 coun‐
selor was at worst negligent, rather than deliberately indif‐
ferent (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 (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 interrup‐
tion of his medication. This is mistaken, and (not surprising‐
ly) 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 oth‐
er technological issue. “As a general matter, lawyers and sci‐
ence don’t mix.” Peter Lee, “Patent Law and the Two Cul‐
tures,” 120 Yale L.J. 2, 4 (2010); see also Association for Molecu‐
No. 12‐2682 3
lar Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2120
(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 (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, mat‐
ters far afield from the expertise of judges”); Marconi Wireless
Telegraph Co. of America v. United States, 320 U.S. 1, 60–61
(1943) (Frankfurter, J., dissenting in part) (“it is an old obser‐
vation that the training of Anglo‐American judges ill fits
them to discharge the duties cast upon them by patent legis‐
lation”); Parke‐Davis & Co. v. H.K. Mulford Co., 189 F. 95, 115
(S.D.N.Y. 1911) (Hand, J.) (“I cannot stop without calling at‐
tention 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 with‐
out the aid of unpartisan and authoritative scientific assis‐
tance 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 ad‐
vance”); Henry J. Friendly, Federal Jurisdiction: A General View
157 (1973) (“I am unable to perceive why we should not in‐
sist on the same level of scientific understanding on the pa‐
tent 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
4 No. 12‐2682
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 ju‐
diciary, with science and technology is not a new phenome‐
non. 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 ad‐
vances that figure increasingly in litigation.
In 2007 the plaintiff, who was then 22 years old and serv‐
ing a 40‐year sentence for first‐degree murder, was diag‐
nosed 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 pe‐
riod beginning on February 15, 2009 (we’ll assume for pur‐
poses 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 Hypoten‐
sion,” http://my.clevelandclinic.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 Febru‐
ary 9, six days before his medication was interrupted. The
No. 12‐2682 5
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 inter‐
ruption, and was 142/78. “Ideal” blood pressure is consid‐
ered 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, be‐
cause blood pressure fluctuates even when the patient is tak‐
ing 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 dur‐
ing a three‐week period (we cannot say, on the basis of a
single reading, that he did experience it) would not have
produced the symptoms of which he complains or have en‐
dangered his long‐term health. “The prolonged elevation of
either the systolic or the diastolic blood pressure causes
damage. If mildly elevated over a long period of time, or if
highly elevated over a short period of time, damage results to
a variety of different ‘target’ organs in the body, primarily
due to arterial injury.” 2 Dan J. Tennenhouse, Attorneys Med‐
ical Deskbook § 24:4 (4th ed. 2012) (emphasis added); see also
Norman M. Kaplan, Clinical Hypertension 124–25 (9th ed.
2006); Cleveland Clinic, “Pulmonary Hypertension: Causes,
Symptoms, Diagnosis, Treatment,” http://my.clevelandcli
nic.org/disorders/pulmonary_hypertension/hic_pulmonary_
hypertension_causes_symptoms_diagnosis_treatment.aspx.
The plaintiff experienced not highly elevated blood pressure
for a short time or mildly elevated blood pressure for a long
time, but mildly elevated blood pressure for a short time.
6 No. 12‐2682
Hypertension is a serious condition. Untreated it can re‐
sult in strokes or heart attacks. But a slight elevation above
the normal range in an otherwise healthy young person (like
the plaintiff) for three weeks will not bring on a stroke or
heart attack or even materially increase the risk of a stroke or
heart attack forty or fifty years later.
The deposition of the physician who took the plaintiff’s
blood pressure on March 9 does not help the plaintiff’s case.
Regarding the March 9 reading of 142/78, she said (con‐
sistent with the medical literature that we’ve cited): “I can‐
not say it’s a very serious, you know, condition, but it is a
condition where the patient needs to take his medications.”
The record refers to readings of 146/90 on two occasions in
May. Although these readings were higher than the March 9
reading, the physician said that the plaintiff “would not
have any symptoms with this kind of blood pressure. Sel‐
dom do you see patients with symptoms with this kind of
blood pressure.”
Upon this very thin basis—the district court record con‐
tains not a single reference to medical literature—the plain‐
tiff’s lawyer (who acknowledged at oral argument that he
had not himself conducted any research into hypertension,
and whose brief contains no references to any medical litera‐
ture) builds an edifice of alarm. He says that his client “be‐
gan to suffer bloody noses, loss of vision and visual disturb‐
ances, and further could have suffered even more severe
ailments such as stroke or even death.” The proposition that
his client’s not taking his blood pressure medicine for three
weeks might have killed him has no medical support in the
record or the medical literature.
No. 12‐2682 7
The magistrate judge thought the plaintiff could in a trial
have presented evidence permitting “a reasonable inference
that [the plaintiff’s] need for medication between February
27 [we don’t understand the choice of that date rather than
February 15] and March 6, 2009, was objectively serious.”
The district judge agreed that the plaintiff “suffered from an
objectively serious medical condition.” These observations
are irrelevancies. Hypertension is a serious medical condi‐
tion because of the long‐term damage that it can do. But the
issue in this case is whether the withholding of treatment
during a brief period in the early stages of the condition in
an otherwise healthy man in his mid‐twenties was likely to
cause serious, or indeed any, harm. The disconnect between
the underlying condition and the interruption in medication
is underscored by the fact noted earlier that in May, two
months after the interruption had ended, the plaintiff’s
blood pressure was higher than it had been during the inter‐
ruption.
Like the lawyers, the two judges made no reference to
any medical literature. They could have skipped all medical
questions, relying entirely on the lack of evidence of deliber‐
ate indifference by either defendant. But if they were going
to venture an opinion on the “objective seriousness” of the
plaintiff’s “medical condition,” they had to get the condition
right—which was not hypertension but the medical conse‐
quences, in fact negligible, of a three‐week deprivation of
medicine for mild, early‐stage hypertension. No matter how
serious a medical condition is, the sufferer from it cannot
prove tortious misconduct (including misconduct constitut‐
ing a constitutional tort) as a result of failure to treat the
condition without providing evidence that the failure caused
injury or a serious risk of injury. For there is no tort—
8 No. 12‐2682
common law, statutory, or constitutional—without an inju‐
ry, actual or at least probabilistic. Rozenfeld v. Medical Protec‐
tive Co., 73 F.3d 154, 155–56 (7th Cir. 1996); Buckley v. Fitz‐
simmons, 20 F.3d 789, 796 (7th Cir. 1994); cf. Codd v. Velger,
429 U.S. 624 (1977) (per curiam). (“A probabilistic harm, if
nontrivial, can support standing.” Walters v. Edgar, 163 F.3d
430, 434 (7th Cir. 1998), and cases cited there.) As explained
in Williams v. Liefer, 491 F.3d 710, 714–15 (7th Cir. 2007), “In
cases where prison officials delayed rather than denied med‐
ical assistance to an inmate, courts have required the plain‐
tiff to offer ‘verifying medical evidence’ that the delay (ra‐
ther than the inmate’s underlying condition) caused some
degree of harm. That is, a plaintiff must offer medical evi‐
dence that tends to confirm or corroborate a claim that the
delay was detrimental” (citations omitted).
To determine the effect on the plaintiff’s health of a tem‐
porary interruption in his medication, the lawyers in the first
instance, and if they did their job the judges in the second
instance, would have had to make some investment in learn‐
ing about the condition. That could have taken the form of a
judge’s appointing a neutral expert under Fed. R. Evid. 706,
or insisting that the plaintiff’s lawyer obtain an expert’s affi‐
davit, or just consulting a reputable medical treatise. The le‐
gal profession must get over its fear and loathing of science.
As a detail we point out that this plainly meritless suit
was filed on September 2, 2009—more than four years ago.
The intervening years have been consumed largely by pro‐
cedural wrangling and protracted, tedious depositions. A
stronger judicial hand on the tiller could have saved a good
deal of time, effort, and paper.
AFFIRMED.
No. 12‐2682 9
BAUER, Circuit Judge, concurring in the result. 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 inter‐
est in the less scientific aspects of law. I was one of those
who chose law as opposed to medicine.
I think that 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.