In the United States Court of Appeals For the Seventh Circuit · United States Court of Appeals For the Seventh Circuit ... Case: 14-3316 ... Please indicate if you are Counsel of

No. 14-3316

In the United States Court of Appeals

For the Seventh Circuit

JEFFREY ALLEN ROWE,

Plaintiff-Appellant,

v.

MONICA GIBSON, et al.,

Defendants-Appellees.

Appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division

No. 1:11-cv-00975-SEB-DKL Hon. Judge Sarah Evans Barker, Presiding

RESPONSE TO PETITION FOR REHEARING EN BANC

Linda T. Coberly WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL 60601-9703 (312) 558-5600 Attorney for Plaintiff-Appellant Jeffrey Allen Rowe

Case: 14-3316 Document: 39 Filed: 11/06/2015 Pages: 21

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CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Appellate Court No: 14-3316 Short Caption: Jeffrey Allen Rowe v. Monica Gibson, et al. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing the item #3): Jeffrey Allen Rowe (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Winston & Strawn LLP (3) If the party or amicus is a corporation:

(i) Identify all its parent corporations, if any; and Not applicable (ii) List any publicly held company that own 10% or more of the party’s or

amicus’ stock: Not applicable

Attorney’s Signature: /s/ Linda T. Coberly Date: November 9, 2015 Attorney’s Printed Name: Linda T. Coberly Please indicate if you are Counsel of Record for the above listed party pursuant to Circuit Rule 3(d). Yes Address: Winston & Strawn LLP 35 West Wacker Drive Chicago, Illinois 60601 Phone Number: (312) 558-5600 Fax Number: (312) 558-5700 Email Address: [email protected]


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TABLE OF CONTENTS

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT .................................................... i

TABLE OF CONTENTS ................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................... iii

INTRODUCTION .......................................................................................................... 1

SUMMARY OF THE ARGUMENT .............................................................................. 6

ARGUMENT .................................................................................................................. 8

I. The lead opinion’s discussion and use of Internet research is far narrower than the Petition contends. ...................................................... 8

A. The lead opinion uses Internet research only to explain and underscore the dispute of fact shown in the record...................... 8

B. The lead opinion does not impose a requirement or an expectation that judges do independent factual research. ........ 11

C. The lead opinion does not require judges to appoint experts for the benefit of pro se litigants. ..................................................... 12

II. The discussion of Internet research is neither precedential nor necessary to the decision. ....................................................................... 13

CONCLUSION ............................................................................................................. 15


iii

TABLE OF AUTHORITIES

Page CASES

Berry v. Chicago Transit Authority, 618 F.3d 688 (7th Cir. 2010) .............................................................................. 9, 14

Carroll v. Yates, 362 F.3d 984 (7th Cir. 2004) .............................................................................. 9, 14

Catalan v. GMAC Mortg. Corp., 629 F.3d 676 (7th Cir. 2011) .................................................................................... 4

Cooper v. Casey, 97 F.3d 914 (7th Cir. 1996) ................................................................................ 9, 14

Greeno v. Daley, 414 F.3d 645 (7th Cir. 2005) .................................................................................... 9

Gregg v. Georgia, 428 U.S. 153 (1976) ................................................................................................ 13

Hayes v. Snyder, 546 F.3d 516 (7th Cir. 2008) .................................................................................... 9

Huang v. Gonzales, 403 F.3d 945 (7th Cir. 2005) .................................................................................. 10

Ledford v. Sullivan, 105 F.3d 354 (7th Cir. 1997) .................................................................................. 12

Marks v. United States, 430 U.S. 188 (1977) .......................................................................................... 1,7,13

Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003) .............................................................................. 9, 14

Pickett v. Sheridan Health Care Center, 664 F.3d 632 (7th Cir. 2011) .................................................................................. 10

Stephens v. U.S. Airways Group, Inc., 644 F.3d 437 (D.C. Cir. 2011) ................................................................................ 13

Trinity Homes LLC v. Ohio Cas. Ins. Co., 629 F.3d 653 (7th Cir. 2010) .............................................................................. 9, 14


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United States v. Torres-Ramirez, 213 F.3d 978 (7th Cir. 2000) .................................................................................. 13

RULES AND STATUTES

28 U.S.C. § 1746 ......................................................................................................... 8–9

Fed. R. App. P. 35(a) ...................................................................................................... 2

Fed. R. Civ. P. 56 ..................................................................................................... 9, 14

Fed. R. Evid. 706 .......................................................................................................... 12


1

INTRODUCTION

En banc review in this Circuit is exceptionally rare, and it should not be

granted in this case. The panel’s decision does not purport to resolve the questions

on which the Petition seeks review (see Pet. 1), and it certainly does not do so in a

way that would require this Court to rehear the matter en banc. Nor is the resolu-

tion of these questions necessary to this case’s outcome. As both the lead and con-

curring opinions make clear, the panel held that the summary judgment record pre-

sented in the district court was sufficient to raise a genuine dispute of material fact

for trial. Viewed in that light, the panel’s decision to vacate the award of summary

judgment is both correct and unremarkable.

To be sure, the lead opinion and the dissent also engage in a lively debate

about the extent to which judges may cite non-legal authorities—and, specifically,

authorities found on the Internet. But the lead opinion does not purport to make

those authorities the basis of its decision. To the contrary, it cites them “only to un-

derscore the existence of a genuine dispute of material fact created in the district

court proceedings by entirely conventional evidence.” Slip Op. 14. And while the

Petition complains that the lead opinion requires judges to perform Internet re-

search and appoint experts, the lead opinion itself says otherwise. See id. at 22–25.

Moreover, to the extent the lead opinion calls for an examination of anything

beyond the summary judgment record, it is not precedential. The concurring opin-

ion by Judge Rovner contains the narrowest reasoning supporting the Court’s

judgment. As a result, under Marks v. United States, 430 U.S. 188 (1977), the con-


2

curring opinion must be understood to be the holding of the Court. That holding

does not call for en banc review in any respect.

Ironically, the Petition itself reflects an inappropriate emphasis on citations

to the Internet. After the panel issued its decision, a number of bloggers in the le-

gal blogosphere seized upon the disagreement between the lead opinion and the dis-

sent and wrote blog posts highlighting the debate. The Petition cites those posts

prominently. Pet. 2–3. But this Court’s evaluation of whether to rehear a case en

banc should rest not on what others have said about the decision but on what the

panel actually held—and on whether that holding presents a question of exceptional

importance or conflicts with prior decisions of this Court. See Fed. R. App. P. 35(a).

The panel’s holding in this case does not. To the extent this Court wishes to engage

in a broader assessment of the issue of Internet research in judicial decisions, it

should wait for a case where that issue makes a difference.

STATEMENT

Plaintiff Jeffrey Allen Rowe—an inmate in the Indiana prison system—

suffers from reflux esophagitis, a painful digestive condition. Without proper

treatment, he experiences severe pain after eating. The symptoms of this condition

can be managed safely and effectively with a drug called ranitidine. For nearly two

years, prison physicians provided Mr. Rowe with a prescription for ranitidine, in its

over-the-counter strength of 150 mg (sold under the trade name Zantac). When that

prescription ran out, however, a prison nurse refused to refill it, instructing Mr.

Rowe to buy it from the prison commissary instead. Because Mr. Rowe is indigent,


3

he could not afford to buy what he needed, so he continued to pursue the necessary

treatment from medical staff. Ultimately, prison physician and defendant Dr. Wolfe

agreed to refill the prescription.

Nevertheless, prison officials and medical staff denied Mr. Rowe the ability to

take his medication when he needed it—at mealtimes. During the relevant period,

his meals were provided each day at (incredibly) 4:00 am and 4:00 pm, but his med-

ication was delivered at 9:30 am and 9:30 pm—many hours after mealtimes, and too

late to prevent the onset of symptoms. Mr. Rowe filed a grievance on that basis, re-

porting that when he was not able to take the medication with his meals, he experi-

enced severe pain. The medical staff could have remedied this easily by providing

each dose of the medication to Mr. Rowe in advance, to keep in his cell and take

with his next meal as needed. Yet prison officials would not permit Mr. Rowe to

have the prescribed medication in his cell, nor would they deliver it with meals.

Acting pro se, Mr. Rowe brought suit against prison officials and medical

staff under 42 U.S.C. § 1983. Among other things, he claimed that their insistence

on providing the medication on a schedule that made it ineffective to treat his con-

dition reflected a deliberate indifference to a serious medical need and thus violated

his constitutional rights.1 As the panel’s decision reflects, Mr. Rowe’s complaint

and declarations showed that he suffers severe pain from his condition, not just

“[o]ccasional ongoing heartburn,” as Defendants now contend. E.g., Pet. 4.

1 Rowe also brought a second deliberate indifference claim and a retaliation claim, but the Petition only addresses the Court’s decision on his claim relating to “the timing of Mr. Rowe’s doses of Zantac between January to July 2011 and after Au-gust 2011.” Pet. 4.


4

Ultimately, Defendants moved for summary judgment, arguing (among other

things) that the administration of Zantac at 9:30 am and 9:30 pm was sufficient to

meet the standard of care. In support of this motion, one of the defendants—prison

physician Dr. Wolfe—“opined” that Zantac is fully effective for 12 hours and need

not be taken with meals. Although Mr. Rowe moved for the appointment of an ex-

pert of his own, the district court denied that motion. Dist. Ct. Dkt. 36, 75. The dis-

trict court accepted and relied on Dr. Wolfe’s opinion about Zantac, stating (as an

established fact) that Zantac “is fully effective for twelve-hour increments” and

“does not have to be taken before or with a meal to be fully effective.” Dist. Ct. Dkt.

149, at 5. On that basis, the court granted summary judgment for Defendants on

the relevant claim. Id. at 6; Dist. Ct. Dkt. 108, at 4–5.

Again appearing pro se, Mr. Rowe appealed to this Court, which ruled 2-1

that the judgment should be vacated and remanded for further proceedings. A ma-

jority of the panel concluded that the summary judgment record was sufficient on

its own to raise a genuine issue of material fact. Slip Op. 10; id. at 27 (Rovner, J.,

concurring). As Judge Rovner explained in her concurring opinion, “Rowe has con-

sistently maintained that he experiences hours of severe pain if he does not take

Zantac with his meals, and at this stage of the proceedings his assertions of extreme

pain must be credited.” Id. (citing Catalan v. GMAC Mortg. Corp., 629 F.3d 676,

696 (7th Cir. 2011)); accord id. at 10 (lead opinion, Posner, J.) (concluding that the

district court should have “credited” Rowe’s “repeated attestation—in his verified

federal complaint and his declarations—that he experienced pain for [five and a half


5

hours after eating] when he was not allowed to take Zantac with or shortly before

his meals”). Further, both the lead opinion and the concurrence conclude that the

“off-the-cuff medical opinion” in Dr. Wolfe’s affidavit was insufficient to support

summary judgment, as this opinion was presented by a defendant in the case, was

inconsistent with that defendant’s prior conduct, did not disclose its basis, and did

not reflect any particular expertise in gastroenterology. Id.; see also id. at 27 (Rov-

ner, J., concurring). This analysis was and is sufficient to support an order vacating

the district court’s judgment.

In the course of its reasoning, the lead opinion also cites and relies on various

medical texts and Internet sources, including the Mayo Clinic’s definitions of reflux

esophagitis, its discussion of possible treatments, an online directory’s account of

the qualifications and expertise of Dr. Wolfe, and the instructions for over-the-

counter Zantac as published by the drug’s manufacturer. E.g., Slip Op. 2–3, 6–8.

This is not particularly unusual; indeed, Internet sources also appear in the under-

lying decisions by the district court. See, e.g., Dist. Ct. Dkt. 159, at 3 nn. 3, 5 (citing

the online version of the American Heritage Stedman’s Medical Dictionary, as well

as the Mayo Clinic’s definition of esophagitis). For some of these materials—

specifically, the contents of the instructions published by Zantac’s manufacturer—

the Court would be entitled to take judicial notice. See Slip Op. 6–7. The other ma-

terials are all from reputable sources and served to corroborate the evidence that

Mr. Rowe had already presented.


6

The lead opinion explains that it cites these materials for a limited purpose:

“only to underscore the existence of a genuine dispute of material fact created in the

district court proceedings by entirely conventional evidence, namely Rowe’s report-

ed pain.” Slip Op. 14; accord id. at 16 (“The web sites give credence to Rowe’s asser-

tion[,] . . . [b]ut the information gleaned from them did not create a dispute of fact

that was not already in the record.”) (emphasis in original). Still, dissenting Judge

Hamilton took issue with the citation of Internet research and expressed several

concerns about that approach. The lead opinion addresses those concerns further in

a separate Appendix. It is that debate between the lead opinion and the dissent—

ancillary to the core reasoning and result in this case—that has drawn the attention

of various bloggers (Pet. 2–3) and is the focus of the current Petition.

SUMMARY OF THE ARGUMENT

This Court should deny Petitioners’ request for rehearing en banc. The Peti-

tion overstates the lead opinion’s reliance on Internet research and mischaracteriz-

es its holding, all in an effort to conjure up problems “concerning the operation of

federal courts.” Pet. 1. Additionally, Petitioners’ argument that the lead opinion

conflicts with prior decisions of this Court overlooks the opinion’s explicit state-

ments about how it is (and is not) using that research.

To be sure, the lead opinion discusses information gathered from medical and

pharmaceutical websites. But it does not hold that judges must conduct independ-

ent research, nor does it say that they must appoint experts for the benefit of pro se

litigants. To the contrary, the lead opinion specifically explains that it is citing In-

ternet research here only to “underscore” an issue of material fact already demon-


7

strated by the summary judgment record. Further, the lead opinion specifically ties

its use of Internet research to the circumstances of this case—where the plaintiff

lacked access to counsel or to an expert witness of his own to rebut an expert on the

defense side, thus impairing the usual function of the adversary process. Slip Op.

15. This is neither extraordinary nor concerning, and it does not require reconsid-

eration by this Court en banc.

In any event, the discussion of Internet research in the lead opinion was not

and is not necessary to the outcome of this case. Indeed, it is not even precedential.

As the Supreme Court explained in Marks v. United States, 430 U.S. 188 (1977),

“the holding of the Court may be viewed as that position taken by those Members

who concurred in the judgments on the narrowest grounds.” Id. at 193 (citation and

internal quotation marks omitted). Even if the lead opinion had actually found the

material obtained through Internet research to be an additional reason to rule in

Mr. Rowe’s favor, the concurrence did not. The concurrence thus contains the “nar-

rowest grounds” for supporting the judgment and, therefore, represents “the holding

of the Court.” Id. That holding does not raise questions of exceptional importance,

nor does it create a precedent that conflicts with this Circuit’s case law. This too

provides this Court with ample reason to deny rehearing en banc.


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ARGUMENT

I. The lead opinion’s discussion and use of Internet research is far narrower than the Petition contends.

The Petition rests on an overreading of the lead opinion. As discussed below,

the lead opinion uses Internet research for a limited purpose: to underscore and

explain the issue of fact that Mr. Rowe raised in the summary judgment record, us-

ing conventional evidence. The lead opinion does not purport to resolve any party’s

rights based on evidence that the party has not had an opportunity to cross-

examine. Nor does it require judges in pro se cases to conduct independent re-

search—on the Internet or otherwise—or to appoint experts for pro se plaintiffs. In

short, the lead opinion is far narrower than the Petition suggests.

A. The lead opinion uses Internet research only to explain and underscore the dispute of fact shown in the record.

As the lead opinion explains, this case presented an unusual circumstance.

As a pro se litigant, Mr. Rowe was faced with the prospect of challenging an “ex-

pert” opinion presented by one of the defendants—an opinion that had significant

vulnerability. Slip Op. 5–6, 14–16, 18, 24. Under the circumstances, he was at an

extreme disadvantage in trying to “challenge the affidavit of a hostile medical doc-

tor (in this case really hostile since [he was] a defendant in the plaintiff’s suit).” Id.

at 17 (emphasis in original). Nevertheless, Mr. Rowe was able to mount such a

challenge using his own allegations and declarations, which attested that he suf-

fered “extreme pain” when he “was not allowed to take Zantac with or shortly before

his meals.” Id. at 10. As the lead opinion explains, “[f]or purposes of summary

judgment his attestations of extreme pain must be credited.” Id. (citing 28 U.S.C.


9

§ 1746; Fed. R. Civ. P. 56(c)); see Cooper v. Casey, 97 F.3d 914, 916–17 (7th Cir.

1996) (a person’s reports of pain are “uniquely subjective” and raise an issue for the

jury). Accord Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (“a self-serving af-

fidavit is an acceptable method for a non-moving party to present evidence of dis-

puted material facts”); see also Berry v. Chi. Transit Auth., 618 F.3d 688, 691 (7th

Cir. 2010) (to survive summary judgment, a non-moving party does not need to

“provide corroboration of her firsthand observation”); Trinity Homes LLC v. Ohio

Cas. Ins. Co., 629 F.3d 653, 660 (7th Cir. 2010) (a self-serving affidavit based on

personal knowledge and providing factual details may establish a genuine issue of

material fact); Carroll v. Yates, 362 F.3d 984, 985 (7th Cir. 2004) (inmate’s self-

serving affidavit stating that he had no notice of a hearing was evidence controvert-

ing defendant’s assertion that plaintiff refused to attend the hearing); cf. Hayes v.

Snyder, 546 F.3d 516 (7th Cir. 2008) (to notify medical staff of a serious medical

need, an inmate need not corroborate his statement that he is in pain with objective

medical evidence); Greeno v. Daley, 414 F.3d 645, 655–56 (7th Cir. 2005) (same).

Based on the evidence of record, the lead opinion identifies an issue of fact:

whether over-the-counter-strength Zantac was a sufficiently effective treatment for

Mr. Rowe’s condition when it was administered many hours after mealtime. The

Internet research underscores this conclusion, confirming that the issue of fact

raised by Mr. Rowe’s affidavit was a “genuine” one. E.g., Slip Op. 14 (citing Inter-

net research “only to underscore the existence of a genuine dispute of material fact

created in the district court proceedings by entirely conventional evidence, namely


10

Rowe’s reported pain”). For example, the instructions provided by Zantac’s manu-

facturer confirm that the 150-mg version of Zantac should be taken “30 to 60

minutes before eating food or drinking beverages that cause heartburn.” Id. at 6–7

(quoting Zantac website). But while references like this may “give credence to

Rowe’s assertion[,]” the lead opinion states that “the information gleaned from them

did not create a dispute of fact that was not already in the record.” Id. at 16 (em-

phasis in original); accord id. at 28 (Rovner, J., concurring).

Similarly, the Internet resources cited by the lead opinion were not used to

resolve any party’s claim or defense. They were simply used to illustrate why it was

inappropriate to deny relief on Mr. Rowe’s claims as a matter of law, based on the

current summary judgment record. This case is thus markedly different from

Pickett v. Sheridan Health Care Center, 664 F.3d 632, 648–51 (7th Cir. 2011), cited

at Pet. 2, 13, where the district court actually resolved and quantified a claim based

on materials drawn from Internet research without giving either party the oppor-

tunity to be heard about the merits of those materials. Accord Huang v. Gonzales,

403 F.3d 945, 948–50 (7th Cir. 2005), cited at Pet. 2, 13. Here, before any damages

are awarded or liability imposed, Defendants will have a full and fair opportunity to

present their case and challenge any evidence presented against them.

Defendants’ complaint that they must now “rebut[] the Internet” is over-

blown. See Pet. 7. Their position on remand will be no different than when they

were briefing summary judgment in the first place; they must rebut whatever evi-

dence Mr. Rowe presents, including his declaration that a dose of 150-mg Zantac


11

more than five hours after each meal was inadequate to control his pain. And they

must do so with more than simply an off-the-cuff medical opinion that lacks any

proper basis or proper expert qualifications. The very same “well-developed rules

and methodologies governing opinion evidence” that Petitioners now cite (Pet. 8)

should have led the district court to discount the suspect opinion evidence proffered

by their Dr. Wolfe on summary judgment (see Slip Op. 10; id. at 27 (Rovner, J., con-

curring)). Given that their opponent was pro se throughout the proceedings below

and may well be so again, Defendants are hardly in a position to complain that they

are at an unfair disadvantage.

B. The lead opinion does not impose a requirement or an expectation that judges do independent factual research.

Petitioners also overread the lead opinion when they claim that it “finds that

trial judges should perform factual research on behalf of pro se parties.” Pet. 7. In

fact, it says no such thing. The lead opinion could not have been more explicit about

this. See Slip Op. 22 (“The [dissent’s] statement that the majority opinion ‘holds in

essence that the district judge erred by not doing such independent factual research’

is mistaken. There is no such holding or suggestion in the opinion.”) (emphasis in

original); id. at 23 (“[T]he dissent repeats its contention that the majority is insist-

ing that district judges conduct Internet research. . . . No.”); id. at 24 (“The parade

of horribles on this and other pages of the dissent . . . is based on a belief that the

majority is ordering that the district judge on remand do her own Internet research.

Not so.”); id. at 25 (“The dissent again states that we are requiring judges to conduct

their own factual research. No.”). The lead opinion explains that the Internet re-


12

search was simply to “assure the existence of a genuine issue of material fact” (id. at

14), and that the district judge did not need to do outside research but instead

should have recognized the factual dispute about Zantac’s effectiveness (id. at 23).

In other words, the lead opinion explicitly does not—and cannot be reasona-

bly interpreted to—require judges to do their own factual research. Petitioners

therefore cannot seek rehearing en banc on that basis.

C. The lead opinion does not require judges to appoint experts for the benefit of pro se litigants.

The lead opinion also does not mandate that district judges appoint experts

to help pro se litigants. See Pet. 9–12. In fact, it is not even clear that the lead

opinion necessarily requires the appointment of an expert in this case. Although it

“urge[d]” that the district judge “give serious consideration” to appointing an expert

on remand (Slip Op. 19), the panel did not evaluate whether the denial of an expert

would or did represent an abuse of discretion.

Further, as Petitioners point out, the lead opinion “makes no change” in the

requirements set forth in Rule 706 and Ledford v. Sullivan, 105 F.3d 354 (7th Cir.

1997). See Pet. 10. Accordingly, it does not create a conflict in this Circuit’s case

law. At most, the lead opinion’s reasoning might suggest that in pro se cases where

the defendants intend to rely on expert opinions to defeat summary judgment, it

would be appropriate to ask the defendants to pay for an expert for their pro se op-

ponent as well. But that is far from a blanket rule requiring the appointment of ex-

perts in every case where the plaintiff is proceeding pro se.


13

Moreover, even if an independent expert would help Mr. Rowe, he does not

necessarily need an expert to survive summary judgment or to win at trial. Slip Op.

24 (“The dissent states: ‘Without an expert witness qualified to present the facts

and opinions the majority finds persuasive, that information does not come into evi-

dence.’ This implies that without an expert witness, a party cannot defeat a motion

for summary judgment. That isn’t true. If a jury believed Rowe, he would win.”).

In this respect too, therefore, there is no basis for en banc review.

II. The discussion of Internet research is neither precedential nor necessary to the decision.

Even if the lead opinion here had reached farther than it did, there would

still be no reason to grant en banc review, as the opinion is not precedential. Judge

Rovner’s concurrence contains the narrowest basis for the panel’s resolution of this

case, and therefore her opinion states the Court’s holding. See Marks v. United

States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no

single rationale explaining the result enjoys the assent of five Justices, ‘the holding

of the Court may be viewed as that position taken by those Members who concurred

in the judgments on the narrowest grounds . . . .’”) (quoting Gregg v. Georgia, 428

U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)); United

States v. Torres-Ramirez, 213 F.3d 978, 982 (7th Cir. 2000) (applying Marks to in-

terpret an en banc decision of this Court); Stephens v. U.S. Airways Group, Inc., 644

F.3d 437, 442 n.1 (D.C. Cir. 2011) (applying Marks to interpret a decision of a three-

judge panel).


14

Judge Rovner’s concurrence relies entirely upon the record to vacate the dis-

trict court’s summary judgment decision. See Slip Op. 27 (“To be clear, I do not be-

lieve that the resolution of this case requires any departure from the record . . . .”)

(emphasis in original); id. at 28 (“That the manufacturer’s website and other repu-

table medical web sites support the plausibility of his testimony merely illuminates

the factual dispute that exists within the record as we received it; they are not nec-

essary to the outcome.”). Her opinion concludes that Rowe’s own assertions about

his pain are sufficient to counter Dr. Wolfe’s statement that Zantac is effective if

administered twice a day. This is an unremarkable application of Rule 56, particu-

larly in light of this Court’s precedent holding that a self-serving affidavit is suffi-

cient to defeat summary judgment if it is based on personal knowledge and sets

forth specific facts showing there is a genuine issue for trial. E.g., Payne, 337 F.3d

at 773; Berry, 618 F.3d at 691; Trinity Homes, 629 F.3d at 660; Carroll, 362 F.3d at

985; see also Cooper, 97 F.3d at 916–17. Here, Rowe’s assertion that he experienced

more pain when he took Zantac five and half hours after eating than when he took

Zantac with his meals was based on his own personal knowledge and experience

and contradicted Dr. Wolfe’s statement that Zantac is equally effective no matter

what time it is taken. Under this Court’s cases, that assertion should have been

credited and was enough by itself to defeat summary judgment.

As the “holding” of the Court under Marks, Judge Rovner’s concurrence rep-

resents a straightforward and uncontroversial application of Rule 56 and this


15

Court’s precedents with respect to summary judgment. For this reason too, rehear-

ing en banc should be denied.

CONCLUSION

Petitioners overread the lead opinion and overstate its implications for the

federal courts. Because Mr. Rowe had limited resources and the defense’s evidence

was “highly vulnerable,” Slip Op. 10, the lead opinion looks to medical and pharma-

cological references on the Internet to better understand and reaffirm the genuine-

ness of an issue of fact already evident in the record. The lead opinion does not re-

quire judges to conduct independent factual research, nor does it require judges to

appoint experts to help pro se litigants. And in any event, Judge Rovner’s opinion,

which states the narrowest grounds for the decision, does not consider any materi-

als outside the record and is sufficient on its own to support the judgment. Internet

debates aside, this is not one of those rare cases that warrant consideration by this

Court en banc.

Respectfully submitted.

____/s/ Linda T. Coberly________

Linda T. Coberly WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL 60601-9703 (312) 558-5600 Attorney for Plaintiff-Appellant Jeffrey Allen Rowe

NOVEMBER 9, 2015


i

CERTIFICATE OF SERVICE

I hereby certify that, on November 9, 2015, I caused the foregoing

RESPONSE TO PETITION FOR REHEARING EN BANC to be electronically filed

with the Clerk of the Court for the United States Court of Appeals for the Seventh

Circuit by using the CM/ECF system.

All participants in the case are registered CM/ECF users and will be served

by the CM/ECF system.

DATED: NOVEMBER 9, 2015 /s/ Linda T. Coberly

LINDA T. COBERLY


In the United States Court of Appeals For the Seventh Circuit · United States Court of Appeals For the Seventh Circuit ... Case: 14-3316 ... Please indicate if you are Counsel of

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