Judge Posner Admonishes Lawyers (and Judges) to Pay Attention to Science

In case you missed it, Judge Posner of the United States Court of Appeals for the Seventh Circuit issued an opinion several weeks ago in which he takes to task lawyers — and judges — who shy away from addressing issues of science and medicine in their cases. 

The opinion, issued in case called Jackson v. Pollion, involved claims by a Illinois prison inmate that two prison employees committed a federal constitutional tort by depriving him of his hypertension medication for about three weeks.  The District Court dismissed the plaintiff’s claims on a motion for summary judgment, finding quite simply that there was no evidence that either defendant was “deliberately indifferent” to the plaintiff’s medical condition:  one defendant did not know that the plaintiff was not receiving his medication and the other defendant, who was not part of the prison’s medical staff, assumed that the medical staff was addressing the prisoner’s medications.

Pretty straightforward, right?  According to Judge Posner, it is, and his opinion notes that the entry of summary judgment by the District Court was “so clearly correct as not to require elaboration.”

So why is this opinion worth a read?  Because for the balance of the opinion, Judge Posner addresses what he sees as a “troubling” lapse by the lawyers in the case — as well as by the Magistrate and the District Court Judges — for failing to consider whether plaintiff could actually present any credible, scientific evidence that a deprivation of his hypertension medication for a period of three weeks could actually have caused him any harm. 

Judge Posner goes on to explain why he cares so much, explaining that “[t]his 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.”  In his view, it is no excuse that many legal professionals may have chosen that field because of an aversion to math or science.  Rather, “[t]he legal profession must get over its fear and loathing of science.”  Had the lawyers and judges in this case done so more diligently, suggests Judge Posner, the “time, effort, and paper” spent on “this plainly meritless suit” would have been much less.

David H. Schwartz, Ph.D., of Innovative Science Solutions LLC (website, blog) had this to say regarding Judge Posner’s decision:  “We applaud this decision by Judge Posner in which he aptly points out that ‘[t]he legal profession must get over its fear and loathing of science.’ As scientific consultants, we have worked with many attorneys who demonstrate unsurpassed respect and  aptitude for the scientific method. However, we have also seen our fair share of fear and loathing. The fact that legal cases often revolve around a scientific premise that is untenable (as it did in this decision) highlights the importance that lawyers roll up their sleeves and grapple with the science head on.”

The lesson raised by Judge Posner — and echoed by Dr. Schwartz — is, of course, a good one.  Medical and scientific issues arise in many types of cases, and practioners should devote the time and effort to understand them and, where necessary, ensure that judges are educated on the issues as well.  Doing so might just be the key to winning. 



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