                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 14-3316
JEFFREY ALLEN ROWE,
                                               Plaintiff-Appellant,

                                v.

MONICA GIBSON, et al.,
                                            Defendants-Appellees.
                    ____________________

        Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
      No. 1:11-cv-00975-SEB-DKL — Sarah Evans Barker, Judge.
                    ____________________

    SUBMITTED MAY 26, 2015 — DECIDED AUGUST 19, 2015
                ____________________

   Before POSNER, ROVNER, and HAMILTON, Circuit Judges.
    POSNER, Circuit Judge. An Indiana prison inmate named
Jeffrey Rowe, the plaintiff in this suit under 42 U.S.C. § 1983,
charges administrators and prison staff (actually employees
of Corizon, Inc., which provides medical services to the in-
mates at Pendleton Correctional Facility, Rowe’s prison)
with deliberate indifference to a serious medical need—that
is, with knowing of a serious risk to inmate health or safety
but responding ineffectually (as by departing substantially
2                                                 No. 14-3316


from accepted professional judgment) or not at all. See, e.g.,
Farmer v. Brennan, 511 U.S. 825, 837 (1994); Sain v. Wood, 512
F.3d 886, 894–95 (7th Cir. 2008). Such conduct was held in
Farmer to violate the cruel and unusual punishments clause
of the Eighth Amendment, deemed applicable to state action
by interpretation of the due process clause of the Fourteenth
Amendment. Rowe charges gratuitous infliction of physical
pain and potentially very serious medical harm—cogent ex-
amples of cruel and unusual punishment. He has a subsidi-
ary claim of having been retaliated against for filing this
lawsuit, a claim we discuss briefly toward the end of our
opinion. The district judge granted summary judgment in
favor of the defendants on both claims, dismissing Rowe’s
suit and precipitating this appeal.
    In 2009, already an inmate at Pendleton, Rowe was diag-
nosed with reflux esophagitis, also known as gastroesopha-
geal reflux disease (GERD). See National Institutes of Health,
“Gastroesophageal reflux disease,” www.nlm.nih.gov/
medlineplus/ency/article/000265.htm (visited August 17,
2015, as were the other websites cited in this opinion). The
Mayo Clinic explains that “a valve-like structure called the
lower esophageal sphincter usually keeps the acidic contents
of the stomach out of the esophagus. If this valve opens
when it shouldn’t or doesn’t close properly, the contents of
the stomach may back up into the esophagus (gastroesopha-
geal reflux). … [GERD] is a condition in which this backflow
of acid is a frequent or ongoing problem. A complication of
GERD is chronic inflammation and tissue damage in the
esophagus.” Mayo Clinic, “Diseases and Conditions, Esopha-
gitis: Reflux Esophagitis,” www.mayoclinic.org/diseases-
conditions/esophagitis/basics/causes/con-20034313. As we
explained in a recent case in which, as in this case, a prison
No. 14-3316                                                  3


inmate complained of failure to treat his GERD (and we re-
versed the grant of summary judgment in favor of the prison
staff), “GERD can … produce persistent, agonizing pain and
discomfort. It can also produce ‘serious complications.
Esophagitis can occur as a result of too much stomach acid
in the esophagus. Esophagitis may cause esophageal bleed-
ing or ulcers. In addition, a narrowing or stricture of the
esophagus may occur from chronic scarring. Some people
develop a condition known as Barrett's esophagus. This
condition can increase the risk of esophageal cancer.’
WebMD, Heartburn/GERD Health Center, “What Are the
Complications of Long–Term GERD?” www.webmd.
com/heartburn–gerd/guide/reflux–disease–gerd–1?page=4.”
Miller v. Campanella, 2015 WL 4523799, at *2 (7th Cir. July 27,
2015). Rowe complains of pain based on neglect of his need
for symptomatic relief; continued neglect will endanger him
more profoundly.
    The prison physician who diagnosed Rowe with GERD
told him to take a 150-milligram Zantac pill twice a day.
Zantac inhibits the production of stomach acid and is com-
monly used to treat esophagitis (as we’ll abbreviate the
name of Rowe’s disease). Although technically “Zantac” is
merely the trade name for ranitidine manufactured by Glax-
oSmithKline (in prescription strengths) and Boehringer
Ingelheim (in over-the-counter strengths), it is often used as
a synonym for ranitidine, see Wikipedia, “Ranitidine,” http://
en.wikipedia.org/wiki/Ranitidine, because Glaxo was the
first, and remains the best-known, manufacturer. “Zantac” is
the only word for the drug that appears in the briefs, and so
we too will call the drug that Rowe received “Zantac.”
4                                                No. 14-3316


    After the diagnosis Rowe was given Zantac pills and was
permitted to keep them in his cell and take them when he
felt the need to. This regimen continued for more than a
year. But in January 2011 his pills were confiscated and he
was told that he would be allowed to take a Zantac pill only
when a prison nurse gave it to him, and that would be at
9:30 a.m. and then at 9:30 p.m. He complained that he need-
ed to take Zantac with his meals, which were, oddly enough,
scheduled by the prison for 4 a.m. and 4 p.m. (why these
times, we are not told). The prison had decided that inmates
such as Rowe who take psychiatric medications should not
be allowed to keep any pills in their cells—yet the head of
health care at the prison told Rowe that he could keep in his
cell (and thus take whenever he wanted) any Zantac pills
that he bought at the prison commissary—which, however,
as we’re about to see, he couldn’t afford. No reason has been
articulated for forbidding him to keep Zantac given him by
prison staff while permitting him to keep Zantac that he
bought at the commissary and take it whenever he needs to
in order to prevent or alleviate pain. There is no suggestion
that Zantac is a narcotic or otherwise consumed for nonmed-
ical as well as medical reasons.
    The defendants question Rowe’s inability to pay for the
pills. They point out that in one 13-month period he spent
approximately $60 at the commissary. But the prison com-
missary charges $3.28 for just four 75-mg Zantac pills (and
recall that Rowe was to take two 150-mg pills daily), mean-
ing that he would have to pay almost $1300 for a 13-month
supply. And he was forbidden to buy more than eight days’
worth of Zantac a month from the commissary, which was
only about a quarter of the amount that he needed.
No. 14-3316                                                   5


    To continue the narrative of what seems a senseless series
of decisions by the prison’s medical staff, as well as heartless
given what the staff knew about the disease and Rowe’s con-
tinuous claims of severe pain: at the beginning of July 2011, a
month after he filed suit, he ceased receiving Zantac because
his “prescription” (that is, his authorization to receive over-
the-counter Zantac free of charge on a continuing basis) had
lapsed. He made a series of requests for the drug beginning
on July 3, but the nurse defendants denied all of them be-
cause he had no prescription. When he complained he was
told by the administrative director of the medical staff:
“Your chronic care condition does not warrant the continued
use of Zantac. The continual use of over-the-counter medica-
tions can create further health problems in many instances.
You will have to purchase this off of commissary if you wish
to continue taking it.” Notice the contradiction (illustrating
the run around to which Rowe was continually subjected) in
denying Rowe free Zantac because it could create “further
health problems” but permitting him to buy and use it at
will, though he couldn’t afford to buy it. Nor is there any
suggestion that Zantac is one of the over-the-counter medi-
cations that can create health problems if taken daily for a
protracted period of time. And finally, if over-the-counter
medicines are to be barred, why wasn’t Rowe given a pre-
scription for 300-mg Zantac pills; these are not only prescrip-
tion rather than over-the-counter drugs but one such pill a
day may be sufficient to control one’s GERD, compared to
two or more when an over-the-counter strength Zantac is
prescribed.
   On July 13, 2011, in response to Rowe’s continued re-
quests for a renewed prescription for Zantac, a physician
who works at the prison (though employed by Corizon)
6                                                 No. 14-3316


named William H. Wolfe, whose professional specialty is
preventive medicine, about which see American College of
Preventive Medicine: Physicians Dedicated to Prevention,
www.acpm.org/, rather than gastroenterology, see
healthgrades, “Dr. William H. Wolfe, MD.,” www.health
grades.com/physician/dr-william-wolfe-2fgkl/background-
check, and who is a frequent defendant in prisoner civil
rights suits, reviewed Rowe’s medical records and opined
that his condition didn’t require Zantac at all—this despite
the fact that Rowe had been continuously prescribed Zantac
for almost two years and that Wolfe himself had been the
prescribing doctor for a quarter of that period. But though
initially refusing to provide a new prescription for Zantac,
Wolfe later relented and on August 2 prescribed it though he
later stated in an affidavit that he had done so as a “courte-
sy” to Rowe and not out of medical necessity. (Prescribing
drugs for prison inmates as a “courtesy” seems very odd; it
is not explained.) The upshot was that Rowe had no access
to Zantac for more than a month (between July 1 and August
3)—a significant deprivation. Even after Zantac was restored
to him, he continued to be allowed to take it only at 9:30 a.m.
and 9:30 p.m., both times being many hours distant from his
meals.
    In another affidavit Wolfe stated that “it does not matter
what time of day Mr. Rowe receives his Zantac prescription.
Each Zantac pill is fully effective for twelve hour increments.
Zantac does not have to be taken before or with a meal to be
effective.” However, according to Boehringer Ingelheim, the
manufacturer of over-the-counter Zantac, while Zantac can
be taken at any time “to relieve symptoms,” in order “to
prevent symptoms” it should be taken “30 to 60 minutes be-
fore eating food or drinking beverages that cause heart-
No. 14-3316                                                  7


burn.” Zantac, “Maximum Strength Zantac 150,” www.zan
tacotc.com/zantac-maximum-strength.html#faqs, and this
advice is repeated on the labels of the boxes in which over-
the-counter Zantac is sold. Were Zantac equipotent whenev-
er taken, the manufacturer would not tell consumers to take
it 30 to 60 minutes before eating, for having to remember
when to take a pill adds a complication that the consumer
would rather do without. There is thus no reason for the
manufacturer to be lying, and it would be absurd to think
that Dr. Wolfe, a defendant who is not a gastroenterologist,
knows more about treatment of esophagitis with Zantac
than the manufacturer does.
    Rowe’s aim was pain prevention, so having to take Zan-
tac six and a half hours before a meal did not do the trick. It
left him in pain for five and a half hours during and after the
meal, until he got his next Zantac pill. Wolfe’s statement that
“each Zantac pill is fully effective for twelve hour incre-
ments” is also contradicted by the Zantac website, which
states that one 150-mg pill “lasts up to 12 hours” (emphasis
added). Thus a pill taken six and half hours before a meal
might not be effective in alleviating the pain caused by acid
secretions stimulated by the meal.
    It might be thought that a corporate website, such as that
of the Zantac manufacturer, would be a suspect source of
information. Not so; the manufacturer would be taking
grave risks if it misrepresented the properties of its product.
In any event, the Mayo Clinic’s website, as we’ll see in a
moment, confirms the manufacturer’s claims.
    Wolfe’s affidavit states that Rowe was complaining just
of “alleged heartburn [that] was not a serious medical condi-
tion warranting a prescription for Zantac”—but if so why
8                                                 No. 14-3316


did he prescribe Zantac for Rowe during the very period in
which, according to the affidavit, Rowe’s condition was not
serious? (The affidavit fails to mention that it was Wolfe who
had prescribed Zantac for Rowe, but that’s conceded.)
    It’s true that the Mayo Clinic’s website, at “Drugs and
Supplements: Histamine H2 Antagonist (Oral Route, Injec-
tion Route, Intravenous Route),” www.mayoclinic.
org/drugs-supplements/histamine-h2-antagonist-oral-route-
injection-route-intravenous-route/proper-use/drg-20068584,
after listing various drugs (including ranitidine) for treat-
ment of the cluster of ailments that includes esophagitis,
states that “for this class of drugs … patients taking two
doses a day are instructed: ‘Take one in the morning and one
before bedtime.’” But this dosing, Mayo goes on to state, is
appropriate “only for patients taking the prescription
strengths of these medicines.” The 150-mg pills that Rowe
was taking are available over the counter; a prescription is
required only for the 300-mg version. Both the Boehringer
Ingelheim and Mayo websites also say that the patient
shouldn’t take Zantac for more than two weeks unless di-
rected by a doctor—but Rowe was of course directed by
Wolfe, as well as by other doctors earlier, to take Zantac on a
continuing basis.
   Not only wasn’t Rowe allowed to take Zantac with his
meals; he was not, as the Mayo website recommends, al-
lowed to take it with water a half hour or an hour before eat-
ing a meal or drinking beverages that might cause him
esophageal pain. As the Mayo website explains, for “adults
and teenagers—150 mg with water taken thirty to sixty
minutes before eating a meal or drinking beverages you expect
No. 14-3316                                                   9


to cause symptoms. Do not take more than 300 mg in twen-
ty-four hours” (emphasis added).
    Stomach acid is of course integral to the digestion of
food, and indeed thirty percent of total gastric acid secretion
is stimulated by the anticipation, smell, and taste of food,
before the food ever reaches the stomach. Thomas A. Miller,
Modern Surgical Care: Physiologic Foundations and Clinical Ap-
plications 344-45 (2006). “The foods you eat affect the amount
of acid your stomach produces,” and “many people with
GERD find that certain foods trigger their symptoms.”
Healthline, “Diet and Nutrition for GERD,” www.healthline.
com/health/gerd/diet-nutrition#Overview1. So it is no sur-
prise that Rowe experiences painful symptoms when he eats
without having been allowed to take a Zantac pill shortly
before the meal.
    The Physicians’ Desk Reference, “PDR Search: Full Pre-
scribing Information: Zantac 150 and 300 Tablets,” www.
pdr.net/full-prescribing-information/zantac-150-and-300-tabl
ets?druglabelid=241, states that a 150-mg dose of Zantac in-
hibits 79 percent of food-stimulated acid secretion for up to
three hours after it’s taken. This implies that the drug’s effi-
cacy decreases over time and so supports Rowe’s claim that
a 150-mg dose does not suppress his food-stimulated acid
secretions when taken six and a half hours before a meal.
The Physicians’ Desk Reference also says that “symptomatic
relief commonly occurs within 24 hours after starting thera-
py with ZANTAC 150 mg twice daily,” which could be mis-
read to mean that it does not matter what time of day the
pills are taken, but which actually means that it takes a day
for the body to recognize Zantac as a source of relief from
esophageal distress. This interpretation is confirmed by
10                                                    No. 14-3316


Mayo, which states (at the website cited earlier): “It may take
several days before this medicine begins to relieve stomach
pain.”
    The evidence that Rowe was in pain for five and a half
hours after eating is his repeated attestation—in his verified
federal complaint and his declarations—that he experienced
pain for that length of time when he was not allowed to take
Zantac with or shortly before his meals. For purposes of
summary judgment his attestations of extreme pain must be
credited. See 28 U.S.C. § 1746; Fed. R. Civ. P. 56(c). There
was no plausible contrary evidence. The affidavits of the on-
ly expert witness on the proper times at which to take Zan-
tac, defendants’ witness Wolfe, were highly vulnerable.
Wolfe is not a gastroenterologist. He says that Rowe didn’t
need Zantac yet prescribed Zantac for him. He opined with
confidence about what Rowe needed or didn’t need—yet
never examined him—and offered no basis for his off-the-
cuff medical opinion. A court should not “admit opinion ev-
idence that is connected to existing data only by the ipse dix-
it of the expert.” General Electric Co. v. Joiner, 522 U.S. 136, 146
(1997); see also Finn v. Warren County, 768 F.3d 441, 452 (6th
Cir. 2014) (“the ‘knowledge’ requirement of Rule 702 re-
quires the expert to provide more than a subjective belief or
unsupported speculation”); Guile v. United States, 422 F.3d
221, 227 (5th Cir. 2005) (“we look to the basis of the expert’s
opinion, and not the bare opinion alone. A claim cannot
stand or fall on the mere ipse dixit of a credentialed wit-
ness”); McClain v. Metabolife International Inc., 401 F.3d 1233,
1242 (11th Cir. 2005).
    Remember that Rowe had been diagnosed with esopha-
gitis back in 2009 and that for the ensuing two years physi-
No. 14-3316                                                 11


cians had prescribed Zantac to treat his condition. Further-
more, the Indiana Department of Correction permits such
continuous treatment only to treat a serious health condition,
so presumably the prescribing physicians thought Rowe’s
condition serious. None of this evidence or inference is un-
dermined by Dr. Wolfe’s evidence.
    A member of a prison’s staff is deliberately indifferent
and thus potentially liable to an inmate if he “knows of and
disregards an excessive risk to inmate health,” Williams v.
O'Leary, 55 F.3d 320, 324 (7th Cir. 1995), quoting Farmer v.
Brennan, supra, 511 U.S. at 837; see also Miller v. Campanella,
supra, at *2. Rowe makes two distinct claims of deliberate in-
difference; the evidence that we’ve reviewed tends to sub-
stantiate both. There is both evidence that defendants Wolfe,
Deborah Dotson, Melissa Bagienski, Chris Deeds, and Lisa
Gibson were deliberately indifferent to his pain when they
denied him access to free Zantac for thirty-three days, and
that defendants Mary Mansfield, Gibson, and Dr. Michael
Mitcheff were deliberately indifferent to his pain when they
insisted—for many months—on giving him Zantac only at
9:30 a.m. and 9:30 p.m., instead of at his prescribed
mealtimes. Regarding the first claim, if the nurse defendants
to whom Rowe complained about reflux pain were not au-
thorized to give him the free Zantac they should have
promptly referred the matter to a doctor.
   The evidence of Wolfe’s deliberate indifference to Rowe’s
pain and resulting need for Zantac is, as we’ve shown, sub-
stantial, and likewise the evidence that limiting Rowe’s tak-
ing Zantac to 9:30 a.m. and 9:30 p.m. for a protracted period
exhibited deliberate indifference to a serious medical need.
Wolfe never told anyone, so far as appears, when would be
12                                                  No. 14-3316


the best times for administering Zantac to Rowe. In very
large doses Zantac will remain in your blood stream long
enough to affect the stomach acid produced by meals eaten
many hours later, but the Mayo and Boehringer Ingelheim
timing recommendations suggest that this isn’t true for 150-
mg doses. Wolfe’s assertion that “it does not matter what
time of day Mr. Rowe receives his Zantac prescription” is
implausible as well as vigorously contested. Rowe’s pain
and the Mayo Clinic’s timing recommendations suggest that
giving 150-mg doses of Zantac five and a half hours after
one meal and six and a half hours before the next (and only
other) meal of the day may be a substantial departure from
accepted professional practice, preventing summary judg-
ment for defendants regarding Rowe’s claim of deliberate
indifference to avoidable pain caused by the timing of his
medication. See Sain v. Wood, supra, 512 F.3d at 894–95. Since
Rowe’s pain strongly indicated that he was experiencing re-
flux, the reflux could have had serious medical consequenc-
es (up to and including cancer) in addition to inflicting
chronic pain on him. Prisoners aren’t supposed to be tor-
tured.
    In citing even highly reputable medical websites in sup-
port of our conclusion that summary judgment was prema-
ture we may be thought to be “going outside the record” in
an improper sense. It may be said that judges should confine
their role to choosing between the evidentiary presentations
of the opposing parties, much like referees of athletic events.
But judges and their law clerks often conduct research on
cases, and it is not always research confined to pure issues of
law, without disclosure to the parties. We are not like the
English judges of yore, who under the rule of “orality” were
not permitted to have law clerks or other staff, or libraries, or
No. 14-3316                                                   13


even to deliberate—at the end of the oral argument in an ap-
peal the judges would state their views seriatim as to the
proper outcome of the appeal.
    We don’t insulate judges like that, but we must observe
proper limitations on judicial research. We must
acknowledge the need to distinguish between judicial web
searches for mere background information that will help the
judges and the readers of their opinions understand the case,
web searches for facts or other information that judges can
properly take judicial notice of (such as when it became dark
on a specific night, a question we answered on the basis of
an Internet search in Owens v. Duncan, 781 F.3d 360, 362 (7th
Cir. 2015), citing WeatherSpark, “Average Weather On Sep-
tember 22 For Chicago, Illinois, USA: Sun,” https://weather
spark.com/averages/30851/9/22/Chicago-Illinois-United-Stat
es), and web searches for facts normally determined by the
factfinder after an adversary procedure that produces a dis-
trict court or administrative record. When medical infor-
mation can be gleaned from the websites of highly reputable
medical centers, it is not imperative that it instead be pre-
sented by a testifying witness. Such information tends to fall
somewhere between facts that require adversary procedure
to determine and facts of which a court can take judicial no-
tice, but it is closer to the second in a case like this in which
the evidence presented by the defendants in the district
court was sparse and the appellate court need only deter-
mine whether there is a factual dispute sufficient to preclude
summary judgment.
   Rule 201 of the Federal Rules of Evidence makes facts of
which judicial notice is properly taken conclusive, and there-
fore requires that their accuracy be indisputable for judicial
14                                                  No. 14-3316


notice to be taken of them. 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 ma-
terial fact created in the district court proceedings by entirely
conventional evidence, namely Rowe’s reported pain.
    There is a high standard for taking judicial notice of a
fact, and a low standard for allowing evidence to be present-
ed in the conventional way, by testimony subject to cross-
examination, but is there no room for anything in between?
Must judges abjure visits to Internet web sites of premier
hospitals and drug companies, not in order to take judicial
notice but to assure the existence of a genuine issue of mate-
rial fact that precludes summary judgment? Are we to for-
bear lest we be accused of having “entered unknown territo-
ry”? This year the bar associations are busy celebrating the
eight hundredth anniversary of Magna Carta. The barons
who forced King John to sign that notable document were
certainly entering unknown territory, and risking their lives
to boot. Shall the unreliability of the unalloyed adversary
process in a case of such dramatic inequality of resources
and capabilities of the parties as this case be an unalterable
bar to justice? Must our system of justice allow the muddled
affidavit of a defendant who may well be unqualified to be
an expert witness in this case to carry the day against a pro
se plaintiff helpless to contest the affidavit?
   This is not the case in which to fetishize adversary proce-
dure in a pure eighteenth-century form, given the inadequa-
cy of the key defense witness, Dr. Wolfe. Let’s review: Wolfe
refused to continue Rowe’s Zantac prescription in July 2011
No. 14-3316                                                15


while Rowe was being kept waiting for three weeks before
being seen by a doctor. Wolfe knew Rowe had esophagitis:
he reviewed Rowe’s medical records, which contained the
2009 diagnosis and revealed nearly two years of physicians’
having prescribed Zantac for him continuously. Wolfe had
personally prescribed Zantac for Rowe for six months of those
two years and must have known that the Department of
Correction authorizes such treatment only for a serious
health condition. Rowe was complaining of continuing re-
flux pain; and while Wolfe denied a prescription renewal on
July 13, he demonstrated his awareness that Rowe might
need treatment by scheduling him for a later appointment
(the August 2 appointment) to evaluate his request to re-
sume taking Zantac.
    Against this background, to credit Wolfe’s evidence that
it doesn’t matter when you take Zantac for relief of GERD
symptoms (evidence that may well have failed to satisfy the
criteria for the admissibility of expert evidence that are set
forth in Fed. R. Evid. 702) just because Rowe didn’t present
his own expert witness would make no sense—for how
could Rowe find such an expert and persuade him to testify?
He could not afford to pay an expert witness. He had no
lawyer in the district court and has no lawyer in this court;
and so throughout this litigation (now in its fourth year) he
has been at a decided litigating disadvantage. He requested
the appointment of counsel and of an expert witness to assist
him in the litigation, pointing out sensibly that he needed
“verifying medical evidence” to support his claim. The dis-
trict judge denied both requests, leaving Rowe unable to of-
fer evidence beyond his own testimony that he was in ex-
treme pain when forbidden to take his medication with his
meals.
16                                                No. 14-3316


    The web sites give credence to Rowe’s assertion that he
was in pain. But the information gleaned from them did not
create a dispute of fact that was not already in the record.
Rowe presented enough evidence to call Dr. Wolfe’s assess-
ment into question—Rowe claims that after his medication
was switched to the 12-hour schedule he was in extreme
pain and Dr. Wolfe, without examining Rowe or disclosing
the basis for his opinion (as we require experts to do), stated
cursorily that the medicine would be effective for 12 hours.
It will be up to the factfinder to decide, on a better devel-
oped record, who is right.
   Nor is pain the only concern. Esophageal reflux disease
can lead to serious damage of the stomach or esophagus,
and even to cancer.
   It is heartless to make a fetish of adversary procedure if
by doing so feeble evidence is credited because the opponent
has no practical access to offsetting evidence. To say for ex-
ample that however implausible Dr. Wolfe’s evidence is, it
must be accepted because not contested, is to doom the
plaintiff’s case regardless of the merits simply because the
plaintiff lacks the wherewithal to obtain and present conflict-
ing evidence. Rowe did not move to exclude Wolfe as an ex-
pert witness on the ground that Wolfe neither qualified to
give expert evidence in this case (because he is not a gastro-
enterologist) nor, as a defendant, was likely to be even min-
imally impartial. But Rowe does not have the legal
knowledge that would enable him to file such a motion.
    We have decided to reverse the judgment. We base this
decision on Rowe’s declarations, the timeline of his inability
to obtain Zantac, the manifold contradictions in Dr. Wolfe’s
affidavits, and, last, the cautious, limited Internet research
No. 14-3316                                                   17


that we have conducted in default of the parties’ having
done so. We add that the judge erred not only by giving un-
due weight to Wolfe’s internally contradictory affidavit but
also by relying on a defendant (Wolfe) as the expert witness.
There are expert witnesses offered by parties and neutral
(court-appointed) expert witnesses, but defendants serving as
expert witnesses?—and in cases in which the plaintiff
doesn’t have an expert witness because he doesn’t know
how to find such a witness and anyway couldn’t afford to
pay the witness? And how could an unrepresented prisoner
be expected to challenge the affidavit of a hostile medical
doctor (in this case really hostile since he’s a defendant in the
plaintiff’s suit) effectively? Is this adversary procedure?
    Esophagitis is a common disease for which Zantac is a
common treatment, and it makes common sense as well as
medical sense that a drug for treating symptoms of stomach
acid backing up into the esophagus would be administered
shortly before or shortly after meals unless the massive 300-
mg pill was being administered to the patient, and it was not
in this case. Rowe claimed that the Zantac he took became
ineffective in treating his esophagitis pain symptoms when
the prison staff decided to give it to him only long before his
meals. His pain and the timing recommendation of the Mayo
Clinic that we mentioned earlier suggest that giving 150-mg
doses of Zantac six and a half hours before and five and a
half hours after meals may be a substantial departure from
accepted professional practice. But without his own expert,
Rowe couldn’t counter Wolfe’s assertion that Zantac does
not need to be taken shortly before, or with or shortly after, a
meal in order to be effective. As Rowe explained in his brief,
while he “provided evidence that Zantac does not ‘prevent’
reflux during its 12 hours of effectiveness, and that it was
18                                                No. 14-3316


not effective at relieving Rowe’s symptoms, the district court
accepted the word of a defendant [i.e., Dr. Wolfe], who was
speaking as an ‘expert,’ that the treatment Rowe received
was adequate and effective. Had an expert been appointed,
the expert would have confirmed Rowe’s factual representa-
tions, and would have supported Rowe’s objection that the
defendant lacks personal knowledge about the condition(s)
Rowe had because Wolfe never physically examined Rowe
or had diagnostic testing done on Rowe” (citations omitted).
   Rowe’s allegations alone were sufficient to preclude
summary judgment, and were enhanced by the defendants’
own evidence, which included both Wolfe’s contradictory
evidence (among other things, he asserted that Rowe does
not need Zantac and yet prescribed it for him) and the ab-
surd opinion by the medical director that over-the-counter
medications should not be provided to prisoners. Allowing
Wolfe to be an expert witness in the case despite his being a
defendant and not practicing the medical specialty at issue
was another boost to the plaintiff’s case, though again not
one that an unrepresented, indigent prisoner could exploit.
    We are coming to the end of this long opinion but we
need to change gears for a moment: Besides arguing deliber-
ate indifference to a serious medical need, Rowe accuses
several of the defendants, in particular Dr. Wolfe and Nurse
Bagienski, of retaliating against him for filing a lawsuit. He
says they told him that going without Zantac for a month
would make him “think twice about bringing lawsuits about
inadequate medical care.” If indeed they said this—an issue
that cannot be determined without a trial—Rowe has a solid
claim of retaliation. The retaliation claims against the other
defendants were properly dismissed, however, and likewise
No. 14-3316                                                  19


the deliberate-indifference claims against the following de-
fendants, who the district court correctly found were not re-
sponsible for the failure to treat Rowe’s medical condition
competently—Rose Vaisvilas, Wayne Scaife, and Kenneth
Hysell. But we reverse with regard to the remaining defend-
ants and remand the case for further proceedings consistent
with this opinion.
    Although reversing, we are not ordering that judgment
be entered in Rowe’s favor. As we’ve explained, we are not
invoking Fed. R. Evid. 201 and thus not taking judicial notice
of any facts outside the district court record. The remaining
defendants are entitled to try to rebut any evidence whether
or not presented in the district court, including any evidence
found on the Internet. Like the conventional forms of evi-
dentiary inquiry, Internet research must be conducted with
circumspection. In particular it must not be allowed to ex-
tinguish reasonable opportunities for rebuttal.
    Pure adversary procedure works best when there is at
least approximate parity between the adversaries. That con-
dition is missing in this case, in which a pro se prison in-
mate, incapable of retaining an expert witness (expert wit-
nesses usually demand to be paid—and how would this in-
mate even find an expert witness?), confronts both a private
law firm and the state attorney general.
    Because of the profound handicaps under which the
plaintiff is litigating and the fact that his claim is far from
frivolous, we urge the district judge to give serious consid-
eration to recruiting a lawyer to represent Rowe, see Miller v.
Campanella, supra, at *2; Perez v. Fenoglio, 2015 WL 4092294, at
*11 (7th Cir. July 7, 2015); appointing a neutral expert wit-
ness, authorized by Fed. R. Evid. 706, to address the medical
20                                                  No. 14-3316


issues in the case; or doing both. We are mindful that district
courts don’t have budgets for paying expert witnesses. But
the medical issues in the case are not complex; there should
be no difficulty in the judge’s persuading a reputable gastro-
enterologist to speak to Rowe and some of the prison medi-
cal personnel (Rowe’s prison is only 30 miles from Indian-
apolis, and there are 128 gastroenterologists in or near Indi-
anapolis, healthgrades, www.healthgrades.com/gastroentero
logy-directory/in-indiana/indianapolis), to sit for a deposi-
tion, and, if necessary, to testify. Rule 706(c)(2) states that a
court-appointed expert “is entitled to a reasonable compen-
sation, as set by the court,” and that “the compensation is
payable … in any … civil case [not involving just compensa-
tion under the Fifth Amendment] by the parties in the pro-
portion and at the time that the court directs—and the com-
pensation is then charged like other costs.” In light of
Rowe’s indigency, the court if it appoints its own expert
witness will have to order the defendants to pay the expert a
reasonable fee if the expert is unwilling to work for nothing.
Most prisons are strapped for cash, and this is something for
the district court to bear in mind in deciding on whether and
how large a fee to order the defendants to pay a court-
appointed expert witness in a case (such as this case) that
has sufficient merit to warrant such an appointment.
   A substantial academic literature identifies serious defi-
ciencies in the provision of health care in American prisons
and jails. See, e.g., Andrew P. Wilper et al., “The Health and
Health Care of US Prisoners: Results of a Nationwide Sur-
vey,” 99 Am. J. Public Health 666 (2009), and the studies post-
ed by the Academic Consortium on Criminal Justice Health,
www.accjh.org/. On the quality of treatment problems of
Corizon, the employer of Dr. Wolfe and the other medical
No. 14-3316                                                 21


staff members sued by Rowe, see David Royse, “Medical
Battle Behind Bars: Big Prison Healthcare Firm Corizon
Struggles to Win Contracts,” April 11, 2015, www.mod
ernhealthcare.com/article/20150411/MAGAZINE/304119981;
also Human Rights Defense Center, Prison Legal News,
“Corizon Needs a Checkup: Problems with Privatized Cor-
rectional Healthcare,” March 2014, www.prisonlegalnews.
org/news/2014/mar/15/corizon-needs-a-checkup-problems-w
ith-privatized-correctional-healthcare/. The present case il-
lustrates the problems that this literature has identified.
        AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


                            APPENDIX
    We respectfully suggest that the dissenting opinion is
misleading in certain respects that require a response; page
references are to pages in the dissent.
    Page 29: The dissenting opinion states that "the reversal
is unprecedented, clearly based on ‘evidence’ this appellate
court has found by its own internet research. … When the
opinion is read as a whole, the decisive role of the majority’s
internet research is plain.” No, the majority opinion endeav-
ors to make clear that Rowe’s allegations alone, coupled
with the affidavit of Dr. Wolfe and other defense evidence,
would be enough without any reference to the Internet to
preclude summary judgment for the defendants, and doubt-
less would have precluded summary judgment had Rowe
been represented. The dissent ignores this part of the majori-
ty opinion.
   Page 29: The reader is told that “the majority writes that
adherence to rules of evidence and precedent makes a ‘heart-
22                                                  No. 14-3316


less … fetish of adversary procedure.’” That is not what the
majority opinion says; it says: “It is heartless to make a fetish
of adversary procedure if by doing so feeble evidence is
credited because the opponent has no practical access to off-
setting evidence” (emphasis added). Nowhere does the ma-
jority opinion deny the validity of the federal rules of evi-
dence or of procedure.
    Page 32: The proposition in the dissent that the prison’s
response was adequate as long as it “provided at least some
treatment for pain” overlooks the fact that a 150-mg Zantac
pill given six and a half hours before one’s next meal pro-
vides, according to Rowe, no alleviation of pain caused by
stomach acid backing up into the esophagus, which is the
pain of which Rowe complains. Also, it can’t be correct that
providing “some” treatment of pain always gets a prison
doctor off the hook. Suppose Rowe were in agony from a
slipped disk; would it be enough for Dr. Wolfe to give him
an aspirin? To tell him, if he broke his leg, that it would heal
by itself, in time?
    Page 35: The statement that the majority opinion “holds
in essence that the district judge erred by not doing such in-
dependent factual research” is mistaken. There is no such
holding or suggestion in the opinion. The opinion merely
suggests that the district judge should have appointed, and
on remand should appoint, an expert witness who is a gas-
troenterologist (as Dr. Wolfe, the defendants’ principal wit-
ness, is not) and who also is not a defendant.
    Pages 35-36: The dissent’s citation of Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as a celebration
of traditional adversary procedure misses the significance of
Daubert, which is that it enlarged the role of the judge in po-
No. 14-3316                                                  23


licing expert testimony. The district judge in this case failed
to play the role envisaged in Daubert by treating Dr. Wolfe as
an expert on GERD despite his being a defendant accused of
neglecting Rowe’s GERD and also his not being a gastroen-
terologist. A Daubert hearing would doubtless have led to
his exclusion from an expert-witness role.
    Page 39: The dissent says that “when a prisoner brings a
pro se suit about medical care, the adversary process that is
the foundation of our judicial system is at its least reliable.
Few prisoners have access to lawyers or to expert witnesses
needed to address medical issues.” Right on! (And Rowe is
not one of the few who does have the necessary access.) But
affirmance of a quite possibly incorrect decision cannot be
the correct solution to the problem thus correctly stated by
the dissent. The majority opinion offers a modest solution—
a remand to enable a competent, impartial evidentiary ex-
ploration of Rowe’s claim.
     Page 40: On this page the dissent repeats its contention
that the majority is insisting that district judges conduct In-
ternet research: “The majority clearly implies, while denying
it is doing so, that the district judge herself should have done
the independent factual research the majority has done on
appeal, questioning an unchallenged expert affidavit … .”
No; the district judge should have recognized the existence
of a substantial issue of material fact, barring summary
judgment. Rowe’s evidence of pain contradicted Dr. Wolfe’s
affidavit.
    Page 41: The dissent expresses concern that the defend-
ants may have to pay most or all of an expert witness’s fee in
a case brought by an indigent prisoner, such as Rowe. But it
seems unlikely that a gastroenterologist would charge more
24                                                 No. 14-3316


than a nominal fee merely to testify that—what appears to
be obvious—in order to prevent serious esophageal pain
(and the even more serious consequences that can ensue
from untreated GERD) a 150-mg Zantac pill should be taken
no more than an hour before eating—not six and a half
hours. One has only to read the label on a box of 150-mg
Zantac pills to learn when the pill should be taken to prevent
pain—30 to 60 minutes before eating. In addition, an expert’s
fee, if any, would in a case such as this, with its numerous
defendants, be split many ways or, more likely, be paid for
by the Indiana Department of Correction, the State of Indi-
ana, Corizon or its liability insurer, or individual defendants’
malpractice insurance (depending on the contractual ar-
rangements between Corizon and the state, as well as the
parties’ insurance arrangements), or some combination of
these well-heeled entities.
    Page 42: The dissent states: “Without an expert witness
qualified to present the facts and opinions the majority finds
persuasive, that information does not come into evidence.”
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. It would be more likely
to believe him than to believe Dr. Wolfe.
    Page 42: The parade of horribles on this and other pages
of the dissent (such as page 35, discussed earlier in this Ap-
pendix) is based on a belief that the majority is ordering that
the district judge on remand do her own Internet research.
Not so. It is unlikely that any Internet research by anyone
will be necessary. All that should be necessary is testimony
by a qualified, impartial expert witness who is a gastroen-
terologist and is not a defendant in this litigation.
No. 14-3316                                                 25


   Page 43: The dissent again states that we are requiring
judges to conduct their own factual research. No. We are
even accused by the dissent of trying to turn judges into
substitutes for physicians. Again no.
    Page 45: The dissent appears to misunderstand the Mayo
Clinic’s advice to “take one [Zantac pill] in the morning and
one before bedtime.” As pointed out in the majority opinion,
this advice is intended “only for patients taking the prescrip-
tion strengths,” whereas Rowe was taking the 150-mg
strength that is available over the counter. The Mayo Clinic
provides different advice for the 150-mg pill: that it should
be taken 30 to 60 minutes before meals to prevent heartburn
symptoms (the mildest GERD symptoms). The dissent does
not mention Boehringer Ingelheim’s advice, also quoted in
the majority opinion, that while Zantac can be taken at any
time “to relieve symptoms,” in order “to prevent symptoms”
it should be taken “30 to 60 minutes before eating food or
drinking beverages that cause heartburn.” That is, if you
have pain, you take a pill right away to alleviate the pain; if
you foresee pain as a result of eating or drinking, you take
the pill before you eat or drink—but not six and a half hours
before.
    Page 45: The dissent’s reference to taking Zantac for more
than “two weeks” without a doctor’s permission is irrelevant
to the case because Rowe had a doctor’s permission—indeed
Dr. Wolfe’s permission—to take Zantac and had begun tak-
ing it long ago, always with permission.
   Page 45: The reference to symptomatic relief beginning
“24 hours” after taking Zantac could be understood to mean
that Zantac can prevent pain that far in advance. Not so. As
explained in the majority opinion, “24 hours” is the time it
26                                                No. 14-3316


takes for Zantac when first taken to begin to have a therapeu-
tic effect.
No. 14-3316                                                     27

   ROVNER, Circuit Judge, concurring.
    A disagreement about the outcome of this relatively simple
case has morphed into a debate over the propriety of appellate
courts supplementing the record with Internet research. To be
clear, I do not believe that the resolution of this case requires
any departure from the record: as the majority opinion makes
patently clear, Rowe has consistently 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 asser-
tions of extreme pain must be credited. See Catalan v. GMAC
Mortg. Corp., 629 F.3d 676, 696 (7th Cir. 2011). Given that, I
think this case can be decided on the fundamental and unre-
markable rule that we give Rowe the benefit of all conflicts and
draw all reasonable inferences in his favor as the nonmoving
party. E.g., Keller v. United States, 771 F.3d 1021, 1022 (7th Cir.
2014). Dr. Wolfe, himself a defendant, cursorily asserted that
the timing ought not to matter. But Dr. Wolfe’s self-interested
“expert” opinion on this fact is disputed by Rowe’s own
personal experience with the timing of the medication, as the
majority makes clear. If he informed prison officials that he
was in severe pain because he could not take his medication at
particular times and they did nothing about it because they did
not care about his pain, that is the very definition of deliberate
indifference. See Greeno v. Daley, 414 F.3d 645, 653-54 (7th Cir.
2005); Walker v. Benjamin, 293 F.3d 1030, 1039-40 (7th Cir. 2002).
    Treating the competing claims of Dr. Wolfe and Rowe as
disputed at the summary judgment stage is hardly holding that
a prisoner’s dissatisfaction with his treatment is always enough
to require a jury trial on whether the prison’s medical staff
were deliberately indifferent to his pain (dissent at 32). Instead,
I believe it falls more comfortably into the category the dissent
28                                                    No. 14-3316

itself recognizes (dissent at 32-33)—those cases in which
prisoners have shown that medical staff persisted in an
obviously inadequate course of treatment. E.g., Arnette v.
Webster, 658 F.3d 742, 754 (7th Cir. 2011) (prescribing inade-
quate pain medication for condition causing pain and swelling
in joints); Berry v. Peterman, 604 F.3d 435, 441-42 (7th Cir. 2010)
(prescribing over-the-counter medications that did not relieve
pain of severe toothache ultimately necessitating root canal);
see also Greeno, 414 F.3d at 649-54 (continuing to provide
ineffective antacid treatment for severe heartburn). Rowe
argued in the district court that he needed an expert precisely
because his medical condition is “complicated” and “can
appear to be non-serious to a lay person.” The district court
denied Rowe’s motion to appoint an expert, which left Rowe
with only his own testimony to counter Dr. Wolfe. That the
manufacturer's website and other reputable 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 necessary to the outcome. Although the standard
for deliberate indifference is high, I have no trouble at this
stage of the litigation giving Rowe the benefit of the doubt.
No. 14-3316                                                 29

   HAMILTON, Circuit Judge, concurring in part and dissent-
ing in part.
    I agree with the majority’s disposition of most claims and
issues: affirming summary judgment for defendants on sev-
eral claims and reversing on Rowe’s retaliation claim and his
claim for complete denial of his Zantac medicine for 33 days
in July and August 2011.
    I must dissent, however, from the reversal of summary
judgment on Rowe’s claim regarding the timing for adminis-
tering his medicine between January and July 2011 and after
August 2011. On that claim, the reversal is unprecedented,
clearly based on “evidence” this appellate court has found
by its own internet research. The majority has pieced togeth-
er information found on several medical websites that seems
to contradict the only expert evidence actually in the sum-
mary judgment record. With that information, the majority
finds a genuine issue of material fact on whether the timing
of Rowe’s Zantac doses amounted to deliberate indifference
to a serious health need, and reverses summary judgment.
(The majority denies at a couple of points that its internet
research actually makes a difference to the outcome of the
case, see ante at 14, 16, but when the opinion is read as a
whole, the decisive role of the majority’s internet research is
plain.)
    The majority writes that adherence to rules of evidence
and precedent makes a “heartless … fetish of adversary pro-
cedure.” Yet the majority’s decision is an unprecedented de-
parture from the proper role of an appellate court. It runs
contrary to long-established law and raises a host of practi-
cal problems the majority fails to address.
30                                                  No. 14-3316

    To explain my disagreement, Part I reviews the facts in
the record before us and shows that the majority has actually
based its decision on its internet research. Part II explains
why the majority’s reliance on its own factual research is
contrary to law. Part III addresses the practical problems
posed by the majority’s decision to do its own factual re-
search. Finally, Part IV points out problems with the reliabil-
ity of the majority’s factual research and shows that the en-
terprise of judicial factual research is unreliable when it loses
the moorings to the law of judicial notice.
I. The Facts in the Record
    On Rowe’s claim that the timing of his Zantac doses
showed deliberate indifference to his health, the evidence in
the record consists of two items. First, plaintiff Rowe asserts
in his verified complaint and in several affidavits that he be-
lieves the prison’s schedule for giving him two 150 mg Zan-
tac pills each day left him in unnecessary and avoidable pain
for hours every day after meals. Second, defendants filed an
affidavit from defendant Dr. William Wolfe, who was a ca-
reer physician in the United States Air Force and is now a
contract physician for the Indiana Department of Correction.
Dr. Wolfe testified: “It does not matter what time of day Mr.
Rowe receives his Zantac prescription. Each Zantac pill is
fully effective for twelve hour increments. Zantac does not
have to be taken before or with a meal to be effective.
Providing Mr. Rowe with Zantac twice daily as the nursing
staff makes their medication rounds, whatever time that may
be, is sufficient and appropriate to treat his heart burn symp-
toms.”
   The record thus shows a prisoner’s diagnosed disease
and complaints of pain that prison staff treated with an ap-
No. 14-3316                                                   31

propriate medicine. The prisoner is not satisfied with details
of the treatment’s timing, but a physician testified that the
timing change the prisoner wanted was not called for be-
cause the medicine was equally effective as long as he was
receiving two doses per day. This evidence does not support
a reasonable inference of deliberate indifference.
    Proof of deliberate indifference is much more demanding
than proof of even medical malpractice. E.g. Petties v. Carter,
— F.3d —, 2015 WL 4567899 (7th Cir. July 30, 2015); Ray v.
Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir. 2013);
Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008); see
generally Estelle v. Gamble, 429 U.S. 97 (1976). This record ev-
idence would not let a reasonable jury find that the prison’s
schedule for giving Rowe his medicine departed so far from
professional standards to find that any prison staff acted
with deliberate indifference to his health. The district court
therefore properly granted summary judgment for defend-
ants on this claim. See, e.g., Norfleet v. Webster, 439 F.3d 392,
396 (7th Cir. 2006) (reversing denial of summary judgment),
citing Estate of Cole v. Fromm, 94 F.3d 254, 262 (7th Cir. 1996)
(affirming summary judgment); see also, e.g., Pyles v. Fahim,
771 F.3d 403, 409 (7th Cir. 2014) (affirming summary judg-
ment; physician’s refusal to order MRI for prisoner’s back
pain did not show deliberate indifference).
    As noted above, the majority claims twice that its deci-
sion does not actually depend on its independent factual re-
search, at pages 14 and 16. See also ante at 27–28 (Rovner, J.,
concurring). These denials contradict the rest of the majority
opinion. If they were accurate, the majority’s long discussion
of its research and its justifications for it would amount to a
long essay not necessary to the court’s decision. If the denials
32                                                  No. 14-3316

were accurate, moreover, the majority decision would
amount to a significant rewriting of the Eighth Amendment
law governing health care for prisoners.
    Where prison medical staff just refuse to treat serious
pain or disease, a prisoner may well have a viable claim that
should go to trial. E.g., Miller v. Campanella, No. 14-1990,—
F.3d —, 2015 WL 4523799 (7th Cir. July 27, 2015) (no treat-
ment of prisoner’s GERD); Hayes v. Snyder, 546 F.3d 516, 524–
26 (7th Cir. 2014). Where the evidence shows, however, that
medical staff have provided at least some treatment for pain
we almost always hold that the prisoner is not entitled to a
jury trial on a claim for deliberate indifference based on a
claim that the pain treatment was not adequate. E.g., Pyles v.
Fahim, 771 F.3d 403, 409, 411 (7th Cir. 2014); Holloway v. Del-
aware County Sheriff, 700 F.3d 1063, 1073–76 (7th Cir. 2012).
    If the majority decision did not depend on its own factual
research, then the majority would be holding that the pris-
oner’s dissatisfaction with pain treatment is enough to re-
quire a jury trial on whether the prison’s medical staff were
deliberately indifferent to his pain. We have not found be-
fore this case that such evidence is sufficient to infer deliber-
ate indifference. But we will see a lot more cases like this
one. As the average age of the prison population increases,
so will the incidence of painful, chronic conditions that can-
not be treated to the complete satisfaction of the prisoners.
The fact that a treatment for pain is not as effective as the
prisoner would like should not be enough to support an in-
ference that the prison staff are deliberately indifferent to his
pain.
  In fact, the majority’s reversal on this claim is based on a
small but important category of cases in which prisoners
No. 14-3316                                                            33

have shown that medical staff persisted in obviously inade-
quate courses of treatment. In those cases, we have found
triable issues of deliberate indifference. E.g., Arnett v. Web-
ster, 658 F.3d 742, 754 (7th Cir. 2011); Berry v. Peterman, 604
F.3d 435, 441–42 (7th Cir. 2010); Greeno v. Daley, 414 F.3d 645,
654 (7th Cir. 2005) (treatment prisoner received was “blatant-
ly inappropriate”). As we explained in Pyles, these decisions
were based on evidence showing that the need for special-
ized expertise or different treatment was either known by
the treating physicians or would have been obvious to a lay
person. 771 F.3d at 411.
    The problem for the majority here is that Rowe himself
has made no comparable showing. Only by relying on its
independent factual research can the majority establish an
arguable basis for applying this theory that the course of
treatment was so clearly inadequate as to amount to deliber-
ate indifference. The majority decision to reverse summary
judgment on this claim thus depends on that independent
factual research.
II. The Law on Judicial Research into the Facts
   The ease of research on the internet has given new life to
an old debate about the propriety of and limits to independ-
ent factual research by appellate courts.1 To be clear, I do not


    1 See, e.g., Layne S. Keele, When the Mountain Goes to Mohammed: The
Internet and Judicial Decision-Making, 45 N.M. L. Rev. 125 (2014); Allison
Orr Larsen, The Trouble with Amicus Facts, 100 Va. L. Rev. 1757 (2014);
Richard A. Posner, Judicial Opinions and Appellate Advocacy in Federal
Courts—One Judge’s Views, 51 Duq. L. Rev. 3 (2013); Frederick Schauer,
The Decline of “The Record”: A Comment on Posner, 51 Duq. L. Rev. 51
(2013); Elizabeth G. Thornburg, The Lure of the Internet and the Limits on
Judicial Fact Research, Litig., Summer 2012, at 41; Brianne J. Gorod, The
34                                                           No. 14-3316

oppose using careful research to provide context and back-
ground information to make court decisions more under-
standable. By any measure, however, using independent fac-
tual research to find a genuine issue of material, adjudicative
fact, and thus to decide an appeal, falls outside permissible
boundaries. Appellate courts simply do not have a warrant
to decide cases based on their own research on adjudicative
facts. This case will become Exhibit A in the debate. It pro-
vides, despite the majority’s disclaimers, a nearly pristine
example of an appellate court basing a decision on its own
factual research.
    The majority’s factual research runs contrary to several
lines of well-established case law holding that a decision-
maker errs by basing a decision on facts outside the record.
    If a district judge bases a decision on such research, we
reverse for a violation of Rule 201. E.g., Pickett v. Sheridan
Health Care Center, 664 F.3d 632, 648–51 (7th Cir. 2011) (dis-
trict court erred by relying on independent internet research
on attorney fees without giving parties opportunity to ad-
dress information).
   If jurors start doing their own research during a trial, a
new trial is likely. United States v. Thomas, 463 F.2d 1061,
1062–65 (7th Cir. 1972); see also United States v. Blagojevich,
612 F.3d 558, 564 (7th Cir. 2010) (noting concern that messag-



Adversarial Myth: Appellate Court Extra-Record Factfinding, 61 Duke L.J. 1
(2011); Elizabeth G. Thornburg, The Curious Appellate Judge: Ethical Limits
on Independent Research, 28 Rev. Litig. 131 (2008); Coleen M. Barger, On
the Internet, Nobody Knows You’re a Judge: Appellate Courts’ Use of Internet
Materials, 4 J. App. Prac. & Process 417 (2002).
No. 14-3316                                                 35

es to jurors would tempt them to engage in “forbidden re-
search and discussion”).
    If an immigration judge or administrative law judge ba-
ses a decision on facts without record support, we reverse it.
See, e.g., Huang v. Gonzales, 403 F.3d 945, 948–50 (7th Cir.
2005) (reversing immigration decision based on alien’s an-
swers to questions based on judge’s personal beliefs about
alien’s religion); Nelson v. Apfel, 131 F.3d 1228, 1236–37 (7th
Cir. 1997) (ALJ’s reliance on evidence outside record was er-
roneous but harmless).
   We are in no better a position to go outside the record for
decisive facts. Our job is to reverse in cases where the deci-
sion-maker has gone outside the record. The majority in this
case, however, not only does what we treat as reversible er-
ror when others do it; it holds in essence that the district
judge erred by not doing such independent factual research.
What was forbidden is now required.
    In addition to the case law holding that a decision-maker
is not permitted to base a decision on evidence outside the
record, another body of law is relevant to this issue: Federal
Rule of Evidence 201 and the law of judicial notice. The ma-
jority opinion runs contrary to that law and misunderstands
how Rule 201 and judicial notice fit together with the ordi-
nary, adversarial presentation of facts.
    The vast majority of facts that courts consider when de-
ciding cases comes from the familiar, adversarial presenta-
tions of evidence by opposing parties. The foundation of our
legal system is a confidence that the adversarial procedures
will test shaky or questionable evidence: “Vigorous cross-
examination, presentation of contrary evidence, and careful
36                                                   No. 14-3316

instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evi-
dence.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 596 (1993). Those protective procedures are not available
when a court decides to do its own factual research and ba-
ses its decision on what it finds.
    The law of evidence allows a narrow exception permit-
ting some judicial research into relevant facts, under Federal
Rule of Evidence 201 and the concept of judicial notice. Judi-
cial notice “substitutes the acceptance of a universal truth for
the conventional method of introducing evidence,” and as a
result, courts must use caution and “strictly adhere” to the
rule before taking judicial notice of pertinent facts. General
Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081
(7th Cir. 1997); see also Hennessy v. Penril Datacomm Networks,
Inc., 69 F.3d 1344, 1354 (7th Cir. 1995) (“In order for a fact to
be judicially noticed, indisputability is a prerequisite.”).
    The majority says twice it is not taking judicial notice of
all the cited medical information from the internet. Ante at
13–14, 19. I agree it could not properly take judicial notice of
this information under Evidence Rule 201(b) and (e). The
proper timing of a patient’s doses of Zantac is not “generally
known within the trial court’s territorial jurisdiction” and is
not beyond “reasonable dispute,” nor can it be “accurately
and readily determined from sources whose accuracy cannot
reasonably be questioned,” as Rule 201(b) requires. And the
majority has made no effort to comply with the procedural
requirements of Rule 201(e), essential to basic fairness, of
giving the parties an opportunity to be heard on the evi-
dence.
No. 14-3316                                                  37

    If the majority is not taking judicial notice, what exactly
is it doing? It seems to have created an entirely new, third
category of evidence, neither presented by the parties nor
properly subject to judicial notice. The majority writes:
      When medical information can be gleaned
      from the websites of highly reputable medical
      centers, it is not imperative that it instead be
      presented by a testifying witness. Such infor-
      mation tends to fall somewhere between facts that
      require adversary procedure to determine and facts
      of which a court can take judicial notice, but it is
      closer to the second in a case like this in which
      the evidence presented by the defendants in
      the district court was sparse and the appellate
      court need only determine whether there is a
      factual dispute sufficient to preclude summary
      judgment.
Ante at 13 (emphasis added). In other words, the majority
acknowledges that its “evidence” neither comes from adver-
sarial presentation by the parties nor meets the strict sub-
stantive and procedural standards for judicial notice under
Rule 201.
    Before this decision, American law has not recognized
this category of evidence, which might be described as “non-
adversarial evidence that the court believes is probably cor-
rect.” Compare the comments of the authors of Rule 201, the
Advisory Committee Notes from 1972:
      The usual method of establishing adjudicative
      facts is through the introduction of evidence,
      ordinarily consisting of the testimony of wit-
38                                                   No. 14-3316

       nesses. If particular facts are outside the area of
       reasonable controversy, this process is dis-
       pensed with as unnecessary. A high degree of in-
       disputability is the essential prerequisite.
In other words, the Federal Rules of Evidence allow no room
for the majority’s innovation. Adversarial evidence and judi-
cial notice are not opposite poles on a wide spectrum, with a
middle ground for the majority’s evidence that has neither
been subjected to adversarial testing nor a proper subject of
judicial notice. These are two distinct categories. To be ad-
missible, evidence must fall within one or the other. “Close”
to judicial notice does not count.
    The majority has not offered any precedent from the law
of evidence to support its reliance on its own factual re-
search. Instead, it tries to downplay the unprecedented step
it takes, including its emphasis that it is “not ordering that
judgment be entered in Rowe’s favor” and that defendants
will be entitled to rebut the majority’s factual research on
remand. Ante at 19. The majority’s modest demurrer loses
sight of the stakes. The issue on summary judgment is
whether the evidence in the record would allow a reasonable
jury to find in favor of the non-moving party. See Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 149–50 (2000);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). By
reversing, the majority is necessarily finding that this record
is sufficient to support a jury verdict for Rowe. I disagree.
    The majority also points out that “judges and their law
clerks often conduct research on cases without disclosure to
the parties.” Ante at 12. Such research has long been under-
stood to involve only legal research. The majority’s effort to
compare long-accepted judicial research into case law and
No. 14-3316                                                  39

statutes to its independent factual research shows the majori-
ty has entered unknown territory.
    To justify this venture, the majority asks a number of rhe-
torical questions and invokes the courage of the barons at
Runnymede in 1215. Ante at 14. With respect, we are an in-
termediate appellate court. The Federal Rules of Evidence
and Federal Rules of Civil Procedure that we apply are
adopted and amended through processes established by the
Rules Enabling Act, 28 U.S.C. § 2071 et seq. We simply do
not have authority on our own to take the law into this un-
known territory.
III. The Practical Problems
    The majority points out correctly that prisoners must de-
pend entirely on the government for their health care. If they
turn to the federal courts for help, the combination of the
constitutional standard under the Eighth Amendment, de-
liberate indifference to a serious health need, and the system
of personal liability under 42 U.S.C. § 1983 can make it very
difficult for a prisoner to hold anyone accountable for seri-
ous wrongs. See, e.g., Shields v. Illinois Dep’t of Corrections,
746 F.3d 782 (7th Cir. 2014). When a prisoner brings a pro se
suit about medical care, the adversary process that is the
foundation of our judicial system is at its least reliable. Few
prisoners have access to lawyers or to expert witnesses
needed to address medical issues.
   These conditions pose important challenges to federal
courts doing their best to decide these cases fairly. Yet the
majority’s solution—to research available medical infor-
mation on its own and find a genuine issue of material fact
40                                                 No. 14-3316

on that basis—raises problems much more serious than a
possible error in the resolution of one prisoner’s case.
    The majority’s approach turns the court from a neutral
decision-maker into an advocate for one side. The majority
also offers no meaningful guidance as to how it expects oth-
er judges to carry out such factual research and what stand-
ards should apply when they do so. Under the majority’s
approach, the factual record will never be truly closed. This
invites endless expansion of the record and repetition in liti-
gation as parties contend and decide that more and more in-
formation should have been considered.
    In addition to the abandonment of neutrality, consider
the problems from the district judge’s point of view. The ma-
jority clearly implies, while denying it is doing so, that the
district judge herself should have done the independent fac-
tual research the majority has done on appeal, questioning
an unchallenged expert affidavit by looking to websites of
the drug manufacturer, the Mayo Clinic, the Physician’s
Desk Reference, and Healthline.
   The practical questions are obvious: When are district
judges supposed to carry out this independent factual re-
search? How much is enough? What standards of reliability
should apply to the results? How does the majority’s new
category of evidence fit in with a district judge’s gate-
keeping responsibilities under Rule 702 and Daubert? The
majority offers no answers.
   The majority essentially orders the district judge on re-
mand to find an expert witness on the medical issues, either
for plaintiff or as a neutral expert under Rule 706. That
might well be helpful, but as the majority concedes, district
No. 14-3316                                                            41

courts do not have budgets for that purpose. Even if a few
experts might be willing to volunteer in unusual cases, the
demand of prisoners for free medical or other expert wit-
nesses will far exceed the supply, especially in the rural areas
where so many prisons are located and smaller towns where
the nearest district courts are located.
    The majority’s solution for this problem is to have the dis-
trict court use Federal Rule of Evidence 706 to order defend-
ants, and only the defendants, to pay for an expert witness
for the plaintiff or the court. See ante at 19–20. That approach
is not foreclosed by the language of Rule 706, and there is
some case law supporting it. See Ledford v. Sullivan, 105 F.3d
354, 360–61 (7th Cir. 1997). Nevertheless, the majority’s reli-
ance on this solution in this ordinary case further threatens
the neutrality of the courts. It is worth recalling that damag-
es under 42 U.S.C. § 1983 must be sought from state employ-
ees only in their individual capacities. Will v. Michigan Dep’t
of State Police, 491 U.S. 58 (1989). Indemnification by their
employer is a matter of state law and policy, and sometimes
grace. See Ind. Code § 34-13-4-1; Estate of Moreland v. Dieter,
576 F.3d 691, 694–96 (7th Cir. 2009). Is it fair to impose on in-
dividual guards, prison administrators, staff, nurses, and
doctors the cost of finding evidence to build a case against
them? At the very least, such one-sided burdens should be
imposed only in extraordinary cases.2


    2 I share the concerns expressed by the district court in Martin v.
Cohn, 1999 WL 325054, at *1 (N.D. Ind. April 5, 1999), about the funda-
mental fairness of imposing this financial burden on one side solely be-
cause the opposing party is indigent. The defendants will end up having
to foot the bill for the expert even if they win the case. One partial but
creative solution to this problem can be found in Goodvine v. Ankarlo,
42                                                       No. 14-3316

    Further, if the case goes to trial, how is the district judge
supposed to present to a jury the information the majority
has found? My colleagues and I agree it is not suitable for
judicial notice because it is not indisputable, as required un-
der Rule 201(b). Without an expert witness qualified to pre-
sent the facts and opinions the majority finds persuasive,
that information does not come into evidence. On appeal
would the majority’s approach lead us to remand for a new
trial with instructions to look harder for the right evidence?
Or what should we do if the district judge did not find or
rely on the information that our research turns up? As long
as the factual record remains open for judicial supplements,
parties will try to use the quest for the perfect record to keep
any loss in litigation from being final.
    Then consider the problems parties and their lawyers
will face. If we permit such independent factual research by
district judges—even expect such research from them—
parties will need to plan for it. Responding to the evidence
actually offered by the other side is often the biggest chal-
lenge and expense in a lawsuit. Now parties need to antici-
pate the evidence the judge might turn up on her own and
prepare to meet it. The time and expense devoted to such
preventive measures will be substantial and should be un-
necessary. And if the district judge does her own research
and gives the parties an opportunity to respond to it, the ma-
jority’s approach here is an open invitation for parties to add
to the record on appeal. The parties will also need to antici-
pate on appeal that our court will undertake its own factual

2013 WL 1192397, at *2 (W.D. Wis. March 22, 2013) (providing for long-
term assessments of plaintiff’s prison trust account to pay for court-
appointed expert if plaintiff did not prevail).
No. 14-3316                                                              43

research, opening up opportunities to save any losing case
by offering new evidence on appeal.3
     From the larger perspective of our judicial system, the
independent factual research the majority endorses and even
requires here is not something that federal courts can carry
out reliably on a large scale. History is probably the academ-
ic field closest to the practice of law and judging. Yet histori-
ans regularly scoff at the phenomenon called “law-office his-
tory.” See Velasquez v. Frapwell, 160 F.3d 389, 393 (7th Cir.
1998) (Posner, J.) (“[J]udges do not have either the leisure or
the training to conduct responsible historical research or com-
petently umpire historical controversies. The term ‘law-office
history’ is properly derisory and the derision embraces the
efforts of judges and law professors, as well as of legal advo-
cates, to play historian. * * * Judges don’t try to decide con-
tested issues of science without the aid of expert testimony,
and we fool ourselves if we think we can unaided resolve
issues of historical truth.”), vacated in part, 165 F.3d 593 (7th
Cir. 1999).
    Law-office or judicial-chambers medicine is surely an
even less reliable venture. The internet is an extraordinary
resource, but it cannot turn judges into competent substi-
tutes for experts or scholars such as historians, engineers,


    3  If parties on appeal try to supplement the record as the majority
does here, they are rebuked and may even be sanctioned. E.g., Hart v.
Sheahan, 396 F.3d 887, 894–95 (7th Cir. 2005) (stating general rule but
finding no violation because appeal was from dismissal on pleadings);
Holmberg v. Baxter Healthcare Corp., 901 F.2d 1387, 1392 n.4 (7th Cir. 1990)
(striking portions of appellee’s brief). Under the majority’s approach, we
could not take such steps in response to parties’ invitations to our court
to repeat what the majority does here.
44                                                  No. 14-3316

chemists, psychologists, or physicians. The majority’s in-
struction to the contrary will cause problems in our judicial
system more serious than those it is trying to solve in this
case.
IV. How Reliable is Our Research?
    Thus far I have avoided debating the details of the major-
ity’s research, but they deserve closer attention. The specific
details highlight the more general criticisms I have directed
at such factual research by judges.
    First, on the websites the majority relies upon, we find
important disclaimers that emphasize the need for filtering
their information through qualified medical advice, which
no member of this court is qualified to provide. The Physi-
cian’s Desk Reference site says it is to be used “only as a ref-
erence aid. It is not intended to be a substitute for the exer-
cise of professional judgment. You should confirm the in-
formation on the PDR.net site through independent sources
and seek other professional guidance in all treatment and
diagnosis decisions.” www.pdr.net (last visited August 19,
2015, as were all websites cited here). The Mayo Clinic and
Zantac websites have similar disclaimers advising readers to
talk to a physician or other health care provider before act-
ing on the information on the websites. See
www.mayoclinic.org/about-this-site/terms-conditions-use-
policy;                 www.zantacotc.com/zantac-maximum-
strength.html#faqs.
   Second, after we get past the disclaimers, the content of
the majority’s websites simply does not give clear support to
the majority’s views (a) that Dr. Wolfe was wrong in saying
that the 150 mg pills Rowe was receiving twice a day could
No. 14-3316                                                  45

be equally effective even if not given shortly before meals, let
alone (b) that Dr. Wolfe was so thoroughly and obviously
wrong that a jury could infer that prison staff were deliber-
ately indifferent to Rowe’s health needs. The majority’s web-
sites instead show that some degree of medical judgment is
needed to decide when best to administer which size pills
for patients with different needs, especially patients like
Rowe with chronic conditions.
    The Mayo Clinic site says that patients taking prescrip-
tion strength Zantac twice a day should take one in the
morning and one at bedtime. The majority discounts that
advice because Rowe was taking an over-the-counter dosage
of 150 mg pills rather than the prescription dosage of 300 mg
pills. Ante at 8. Yet that explanation overlooks the advice
from both the manufacturer and the Mayo Clinic that a pa-
tient should not take the over-the-counter pills for more than
two weeks unless directed by a doctor. For patients like Rowe,
taking Zantac long-term to treat GERD, the Mayo Clinic of-
fers more specific guidance. It advises that adult patients
with GERD take the 150 mg pill two times a day without
specifying that the pills should be taken shortly before
meals. www.mayoclinic.org/drugs-supplements/histamine-
h2-antagonist-oral-route-injection-route-intravenous-
route/proper-use/drg-20068584. That advice from the Mayo
Clinic seems identical to Dr. Wolfe’s view.
    Similarly, the PDR advises that for treatment of GERD,
“Symptomatic relief commonly occurs within 24 hours after
starting therapy with ZANTAC 150 mg twice daily,” again
without indicating any need to take the pills before meals.
www.pdr.net/full-prescribing-information/zantac-150-and-
300-tablets?druglabelid=241#section-standard-1.
46                                                  No. 14-3316

    The “full prescribing information” on the Physician’s
Desk Reference website says that for treatment of GERD
with the 150 mg and 300 mg pills, “Symptomatic relief
commonly occurs within 24 hours after starting therapy with
ZANTAC 150 mg twice daily,” again without saying any-
thing about taking pills before meals. www.pdr.net/full-
prescribing-information/zantac-150-and-300-
tablets?druglabelid=241. And again, that was Rowe’s diagno-
sis and those were his pills in 2011.
    The majority draws on the PDR website and “common
sense” regarding how long the pills remain effective. Ante at
17. The PDR website, however, simply does not provide suf-
ficient data on absorption and clearance rates for the medi-
cine to allow us to exercise our own (non-expert) judgment
about whether the timing of Rowe’s pills was appropriate. It
certainly does not allow us to conclude that the timing could
have amounted to deliberate indifference to his serious
health needs or to find that Dr. Wolfe’s uncontradicted affi-
davit did not support the district court’s entry of summary
judgment on this claim.
    Of course, the point of this discussion of the websites is
not to debate the majority on the medical fine points. The
websites the majority relies upon tell us themselves that their
information needs to be interpreted by a qualified physician.
None of this information is in the record. None was before
the district court, nor is it properly before us.
    The majority’s interpretation of its internet research is not
a reliable substitute for proper evidence subjected to adver-
sarial scrutiny. And while Dr. Wolfe’s affidavit is far less de-
tailed than the information the majority has explored on the
internet, I also see no basis for the majority’s harsh criticism
No. 14-3316                                                                 47

of him, especially when Dr. Wolfe has not been given any
opportunity to respond or explain.4
                                  *    *    *
    In the end, whether Dr. Wolfe’s testimony about the tim-
ing for Rowe’s doses was right or wrong in some pure and
objective sense, or in a case tried with ample resources and
talent on both sides, is not the question for us. For purposes
of summary judgment, Dr. Wolfe’s testimony was undisput-
ed. We have no business reversing summary judgment
based on our own, untested factual research. By doing so,
the majority has gone well beyond the appropriate role of an
appellate court. I respectfully dissent from the reversal of
summary judgment on Rowe’s claims based on the timing of
his medication.




    4  The majority criticizes Dr. Wolfe’s affidavit for not providing an
explanation for his opinion about the timing of the Zantac doses. The
majority overlooks Federal Rule of Evidence 705, which permits conclu-
sory expert testimony unless and until the conclusions are challenged,
which Dr. Wolfe’s affidavit was not in the district court. He has not yet
been called upon to explain his opinion in this case. The fact that he is a
defendant does not disqualify him from offering an affidavit; we often
affirm summary judgment based on a moving party’s testimony. The
majority points out that Dr. Wolfe is “a frequent defendant in prisoner
civil rights suits,” ante at 6, as if that reflected poorly on his professional-
ism. Virtually any physician serving large numbers of prisoners will be
“a frequent defendant in prisoner civil rights suits.”
