case number one seven dash for two to one over campbell jr at all the john key search at all or arguments not to exceed thirty minutes per side this aaron barnhart for the good afternoon may it please the court hearing gallagher barnhart representing plaintiff appellant alba campbell and raymond ten minutes and i would like to reserve five minutes for plaintiffs appreciate the opportunity to present oral argument today in this important appeal we asked the court find that the district court abused its discretion when it held that plaintiffs had not shown a likelihood of success on the merits on the eighth amendment claims the court committed legal error in holding that psychological pain that unaccompanied by serious physical pain is immaterial to an eighth amendment challenge to a lethal injection protocol this error was significant because it infected both palm leaves of the glossop analysis but the district court meant what it said and in fact on december twenty seventh the district court quoted the plaintiff's arguments in their opening brief in this appeal and far from distancing itself from that characterization of its holding actually indicated that it was looking for the sport's guidance on the issue of the applicability of mental or psychological pain where where did the district court make that holding that you're claiming they made what page of the opinion the the holding of the psychological pain in the in the opinion that's on appeal yes so there's actually i think two portions where it talks about that and i can grab the opinion here so it it title psychological pain and the district court says they are in the middle and less unaccompanied by less accompanied by serious physical pain the mental suffering associated with being under sentence of death is not material and then can we read the because i think that's the crux of it right it's not clear to this court how a plane of could segregate anxiety from anticipated execution in general from anxiety about execution by a particular method and what i read that to be saying is that there's two types of anxiety you could suffer anxiety from what's known as death row syndrome right being facing death and anxiety from the protocol itself and what i think the district court is saying and you correct me if i'm wrong or the magistrate judge in this instance is that you have to segregate those if it's the former from death row then that's true for every person on death row in america and we know the death penalty is constitutional because supreme courts told us so and that's in the constitution so the second thing as well it's got to be anxiety from the protocol and you didn't prove that so he mental terror associated with the paralytic drug and also that is the protocol right i mean i understand you're picking a drug that's fine the paralytic drug how do we know that where in the record can we find evidence supporting that claim that those drugs are that the that being's ideas from that that the psychological pain relates to the protocol and not knowing you're going to be put to death well plaintiffs first never argue this in fear is that there is the potential for significant suffering from the drugs in the protocol so there's no question but that's that's what he's i understand judge him or saying there's a difference between psychological pain and physical pain which you agree with and that if what it is is physical pain you lose under for years and there's no evidence that anything's changed that's what that's how i read his opinion if what you're alleging is there psychological pain you haven't tied it to something that isn't true for every person in america that's on death row respectfully i don't think that's a fair reading of the district court's opinion or of the arguments or evidence presented because the arguments about the psychological pain were tied to the specific drugs used in ohio's protocol and the specific evidence how do we know that what evidence is there that at the time he was suffering from psychological pain which is shouldn't have been monitoring the question but that was the question i was wondering how on this record do we know that for so couple things as this court and the defendant's acknowledge medan as well and clinical doses cannot prevent both the physical and psychological pain from the second and third drug so that that's common ground the only hypothesis the defendants have offered is that a massive overdose of five hundred milligrams of madame can somehow do  was actively obstructing during the modafinil phase of his execution there is psychological pain associated with that suffocation from being to being unable to breathe so that's that's one type the psychological pain from the paralysis is there's also a suffocation component to that because unlike when an inmate he was convulsing and gasping in when you're paralyzed you're not moving but if you're disposed of that argument based on his early statement that we don't look at psychological pain or to go through and give other reasons for why it was not sufficient right so the magistrate i didn't read i didn't read that part of his opinion like it's a long opinion i didn't read that part of his opinion is just being disposed of by the earlier part on this page that you just read to us page eighteen we don't look at psychological pain but he doesn't kind of a nuanced way but then when he gets to the part that you say is psychological and that isn't affected by this blanket refusal to look at psychological pain that's the basis for his rejecting of that's it's not read it later in the opinion are you with me i hear what you're saying i  disagree you actually are in the two places later in the opinions of where so maybe the easier way to look at it is when he discusses the alternative the reduction in pain from a move all of the paralytic in the alternative is completely eliminating this entire class of psychological pain that is posed by the wrists from having a paralytic he doesn't acknowledge that at all as that that significant reduction of pain we believe because he doesn't consider that psychological pain to be material but when you find a gap later in his argument as not addressing it you're attributing that to the earlier part in you but he doesn't actually say that that's correct you're right i mean what he says the second instance in the beginning sort of the summary paragraph of crime his plymouth area assessment is where he says that you know in some of this is the eighth amendment test from fears proof of other perhaps associated phenomenon such as physical psychological pain or serious and illness is immaterial and then as i reply brief points out throughout the hearing the judge interjected multiple times with a real preoccupation about whether this testimony that was being offered about the terror of you know suffering from not being able to breathe and suffocation whether there was a physical component to it what's the physical scientists he asked one of the  discussion that's true i think that that evidence is though that that was on the judge's mind and you know in addition to going back to your question judge rogers about the part where he did discuss it i'm the the judge did not discuss the psychological pain he certainly mentioned testimony about obstruction because there were witness reports about obstruction but he didn't did paralytic and not from the impending death ok well we know it because we know that absent something that blocks the effects of the  would be intense psychological pain again that's sorry but her how do you know that we know that there was expert testimony in january from patients who are from reports of patients who were accidentally given a para caught the sized then yes we cannot meet our burden but in this case there were factual findings by the district court that shows that it that was not working so there's two main areas one is on the  timing the premise of glossop and fears was that the modality overdose defendants are going to use was going to be affective and friends since in oklahoma which was that the is the subject of glossop their protocol requires waiting five minutes after the minister in the nasm before putting on board the paralytic in the last execution ohio waited only a minute and ten seconds before starting to act the paralytic after finishing madame slim expert testimony shows them a dazzling these at least three to five minutes to be effective and so the it wasn't the answer just order a while to wait five minutes why doesn't that solve the problem that would that would solve a timing problem for sure and the monitoring that's proposed and plain alternatives would result in that because the monitoring would show that at a minute and ten seconds the men as long had taken full effect and so they would not go forward with the lethal drug and till until that sufficient time has passed so do we know it's psychological versus physical pain i mean it seems to me if you administer the paralytic before them and as a lamb it is working that would be physical pain it would be both your right it's a burning sensation will sure it be both but it be what i don't understand as you can see it at least in your amended complaint which isn't before us but i think it's gossip just as we don't mentions it a firing squad at this point is still constitutional and yet i can't imagine more psychological fear slash pain depending on how you define pain from standing there waiting to be shot a couple response to that first as you mentioned that's appellant campbell's amended complaint that is is not part of this appeal and just on that point although pla s agree that if they have proposed alternative in the class of analysis that the state adopts that they would be barred from then challenging that alternative as unconstitutional but judges you recognize an on bond argument the gloss standard is comparative it doesn't mean that the alternative itself has to be constitutional it simply has to be represent something that substantially reduces the risk of harm from the challenge protocol so just a kind of has to be constitutional to be feasible i don't know that the case law defines feasible in that way and it is kind of a side point because again you know we wouldn't challenge it if they adopted it but if you talk about the al you have to win on both parts that's correct now go ahead please is my question about the alternatives it assumes that if i understand the alternative i characterized different ways in the breeze for funders and the alternative the way it's better from your perspective is that if it makes it easier to see that the whole theory of the thing is failing well because that the idea no your honor i mean i don't understand the shores so the point of the alternative as we mentioned is removing entire category of risk of pain different kind of pain from the posed by potassium chloride it doesn't put us in core i point pose a risk of pain it does a different kind of pain so i mean you could be but still pain that pain like you would can see you would at least challenge unconstitutional yes but because we have these safeguards with the monitoring put in them and so that's why i say sort of yes so the core of it is that there's a safeguard now that works will ensure that because we'll find out that it's not taking effect quite well we'll find out a minute and ten seconds it hasn't taken effect yet it hasn't shied away no other than by those additional well so what if it hasn't taken effect than how is that lol so then i asked if you can stop it was not well but or could wait like other states do wait for the full time for the pharma logical effect they would decide to do that based on on the on the test on the monitoring right if if ohio has the monitors they've injected them a dazzle and after a minute the monitor showed that the inmate was my mask i understand that to be your theory but when i ask if that's your theory you say no and that's why you're confused i thought the whole theory of why this alternative was better was would be able to tell that it's not working i mean us without the alternative we wouldn't be able to tell right that is one possibly one possibility is that we're wife and i need to know what key is i think maybe there's two keys i mean i think that's one possibility is that we'd find out the madame has them isn't working and if defendants aren't able with a second injection of a dazzling or something else to get the person to the place where they'd be impervious for the pain will of course continue in the execution at that point would be unconstitutional but you couldn't i mean your own acts were called experimental pharmacology to back it out right as well as doesn't that rely on us on assumptions about whether you could back off at the time of an execution was called off there would no longer be prohibitions on medical professionals if the point then is no longer to kill someone but to save their life then we're not in a situation where you might the point is that just far as me you might be risking worse stuff because than that and i took the point to be that it's that that particular reference that shows the part makes reference to suggest that it is as as we've said experimental pharmacology we simply don't have evidence of that and so i mean i don't does that have to be taken into account determining whether the alternative is something that invalidates the thing that it's alternative to yes i think it has to be taken into account and it at this point i mean there is a possibility of that but we have no proof of it and again you know plaintiffs i mean it think it would be strange if you have a procedure that's been used and you're challenging and challenging on the basis that there's something that is safer or less likely to cause pain presumably because we can catch any pain sooner and turn it off if that's based on the ability to turn it off and we have no real clear idea that you can turn it off i guess i would have undermines the idea that it's an alternative the validates that the first that's the trouble i'm having well i mean i guess what i would say to that is that there is a possibility there's a possibility that you can't turn it off there's a possibility that you can so this mere possibility that you'll be able to turn it off you'll be able to figure out exactly what's happening and turn it off meets the standard for an alternative that invalidates the proposed law that represents a substantial reduction in in the serious pain of the challenge protocol and it's eliminated entirely or it's really reducing the chance of such a pain road reducing the amount well if i think it's doing well that's reducing the chance if the situation that you proposed happens the potassium chloride wouldn't be in effect worth of or a small chance that it might fix things and you don't know and it might make things worse and seem to be that's what the district court relied on it's not it's not good enough to be a valid ballot may not be the word but an alternative that would cause the protocol to be invalid right so i guess it sounds like you're suggesting that plaintiffs not only would have to alter offer an alternative that is that is that they think they can prove substantially reduces the risk but somehow conclusively prove exactly how it all i mean yeah i mean i don't know i'm not really trying to get to to to create some sort of artificial hurdle just seems like if you're talking about an alternative and it's and and it's it contains a risk of being worse and the risk of being better to say therefore you can't do the protocol it's being challenged because of this alternative that's usually not a sufficient alternative i  practice standard words are for whether an alternative is is is sufficient or not but if it if it's if it if you have to look at how likely it is that it will either have a lesser chance of pain or have a smaller amount of pain if a testimony is it might or a mind the district court can look at and to lie on that can let me see if this helps i think we would all agree was available then we wouldn't be concerned about these questions if that was the alternative the one drug barbiturate method that ohio says it would rather use instead and plaintiffs would also prefer that as an alternative but you know the  sorry look at those for us as part of your about that's right so i mean that right there's always going to be risk that something infiltration somebody has a you know lots of times medical professionals or maybe professional scientists science professionals you have to go out with these risks but wouldn't risks have something to do with whether the alternative is something the one that invalidate a protocol you have to look at that yes there is this evidence that it's it's risk of being worse rather than better i guess they would disagree with say that there's evidence that it would be worse because it's experimental and the guy says i wouldn't want it to happen to me right but that taken into account by the judge i  don't think it was i don't think the judge took into account the alternative fairly at all and if i could so i just want to make sure that i make the point go ahead i'm sorry so we were discussing judge the part like how we know that we have pain here and i mentioned one we had the timing problem but two other significant evidence was the tears that inmate only produced during his execution and the district court found that the tears existed and then he had two other really important facts will findings he rejected the fence theory that at the massive overdose madame's them could block pain and he also said that the tears showed that inmate was not in a state akin to general assume for a second it it doesn't work the way it's supposed to yes it doesn't matter if you cut out the middle drug because you're going to claim that the third drug in ministering it when it's not working if we skip went as lyman did a one drug protocol in this game the third drug would be and is working as it's supposed to as the state of your eyes as it does right then it why does it matter whether there's two more drugs three more drugs ten more drugs doesn't matter it doesn't matter if my timing those are two new factual developments that have happened since spears and they both what is the timing true ask one more question is the timing true for every execution that they only wait a minute in ten seconds well they've had to the first execution they waited i want to say a minute and forty years something like that was less than two minutes and then the next execution they waited a minute and ten seconds and you're saying if they wait five minutes they're  e thank you thank you severe pain including failure to show air hunger as plan just continued reliance on the air hunger argument shows plaintiffs have failed to close that gap second this court held that they had not presented a available alternative method and their current alternatives plaintiffs had not proof first that it was equally effective space requires second that it would significantly reduce serious pain as glossop baze both mention or three that it was available feasible and able to be readily implemented let's begin with prong one and this question about psychological pain can be readily implemented eyebright you have both drugs now i think that's correct and i would i would lump those three available feasible and readily implemented together and when it's available and it's readily implemented it's just a question of feasibility right well i think that our brief argues feasibility the question about availability and readily implemented would be a question of whether the the list of monitors required by the alternative could in fact be purchased and acquired by the state of ohio but i agreed to our argument in the briefs on feasibility and whether those on their sole argument is wait five minutes what's the problem with waiting five minutes i'm sure well i think there are a couple reasons first of all i would not concede the five minute timeline i think that that is incorrect it comes from the package insert which says this is a document four hundred it states that to induce sedation it would take three to five minutes and then sentence continues and says that the time would vary depending upon the dosage but explain to me why because i'm lost if all they want five minutes why not just say you wait five minutes and then presumably you don't get these challenges i think internally we could certainly consider the amount of time the question before the court today is anthony's expert report when he's looking at this question of timing says look this is quite inconsistent with what their expert dr pretty easy was arguing earlier in this case when he suggested that part of the problem it and i would go back to that how the package insert the package inserts is three to five minutes to undo sedation i think you need to look at the full context of that quote the first page of the package insert explains how you undo sedation you give one milligram over the course of two minutes then you wait two more minutes and if depression is not to dated yet you give them another quarter dose one one milligram to two and a half and we're going to hear we are giving five hundred milligrams and we're giving it at a rate of four to five milligrams per second and so we're really comparing apples to oranges here both as a matter of total dose but doesn't that mean it'll last longer and so you don't have the back end problem i think that it it could very well mean that and i think the state would say the drug we're giving here is quite effective quite quickly and for more than long enough time i wouldn't want to be misunderstood on that point but it does mean also as dr anthony explained in his expert report that you have what is called an induction dose of medicine within five to six seconds when we begin giving the first drug so even if you accepted their experts timing argument you've given it what was called  induction dose which is enough to induce general anesthesia maybe maybe not to maintain it but enough to induce it and then there is at least three point two minutes before the second drug even begins and remember that the pain allegedly caused by the second drug would be its final effect not simply when it enters the arm but its eventual per paralytic effect on the tire for him so you have easily those three or five minutes even if you took dr stevens arguments and else ok do you concede that the plaintiff is entitled to prove if if they could again they're entitled to prove that they were suffering from psychological pain so i would ask i would put that into two questions the first is whether psychological pain legally fits within the cruel and unusual punishment clocks and i would point the court to  justice thomas concurrence in days where he discusses the original intent of the cruel and unusual clause and i think that he would say it certainly includes some of these questions about historic methods of execution that involve public humiliation and these kinds of what could be characterized as psychological or in id but remember you still have to follow through with the same set of assumptions that basing gloucester making about physical pain that is there has to be some kind of element of intentionality or something that looks like objective intentionality like i might say that it's not time to say might say it's not intentional but we can all agree objectively speaking that it must have been intentional and that's where we get the sure very likely risk of severe pain standard derives from that objectively intolerable standard that basing glossop discuss where you think the district court was right to the extent they were saying the only way to prove psychological pain is through physical pain well no i would not say that i would i would serious i'm sorry physical pain and he actually bolded physical i think that's right but he in the next sentence the sentence you highlighted he is very clearly talking about into support or anxiety and i would make two points sensation of suffocation that's not a question of anxiety that's a question of pain second you point to that first phrase that is not accompanied by physical pain this court in fears described their hunger as the type of mental awareness that is accompanied by physical pain in places point to their own expert who answer judges judge merz question on this point that says this is a kind of psychological pain air hunger that would be accompanied by physical pain if it weren't for the effectiveness of the first drug and so i think i think for all of these reasons what we're looking at in this paragraph that he highlights as psychological pain is not about here hunger or the type of psychological pain that plans are emphasizing on appeal patient right that's not no that's that's fair and and i think that the i would point you to the package insert which again is a document fourteen hundred which doesn't what they call a black box warning on the front that it talks about  high dose and under the alternative that's proposed that's before us the determination is all the sudden made that heinous occurring then it might be that you bell is that is that i just wonder if that's all we need to know i mean is there is if there's no alternative and you have to have an alternative it's one of the two steps in order to challenge the so the district court on the alternative protocol the phrases that they struggle to to take this will turn of it's being offered in good faith and the reason is the reason judge the part was discussing with my friend the other side at the end of her argument which is required to do two things legally and you can't do the second one why do you have to decide whether you can do the first one i agree with you i think there are absolutely alternative arguments well if they're absolutely alternatives wildly why do you have to go and assume the first one is resolved well because that's that's the presumption of the second prong in other words plants us don't have to simply show that they can prove a better alternative they have to show that they can prove an alternative that in the words of bays effectively addresses the use of the risk of severe pain from the state would suggest where we where we start with problem to you start with the assumption that the judge department in a few minutes ago which is ok if we're on prostitute and were assuming that the state's policy causes severe pain and the reason it would cause severe pain the only way that the state's policy would cause severe pain is if the first drug was not working and if that's the case then this is not an alternative at all which was what the district court said we can't take this policy as an alternative in good faith because either you're proposing an alternative that would cause the same kind of unconstitutional pain that they would argue the state's policy causes and i think that doesn't works and would be fine under the state's policy and really under this alternative as a matter of causing pain but if you take that as an alternative argument you can make the alternative argument it doesn't matter how you resolve the first argument i completely writes in a special kind of alternative argument that the one is being offered today in days they are considering another three derived alternatives the one that ohio used ten years ago that involve the same second and third drugs but a different first driver pitcher a drunk and the court and days no we're not going to consider third the both bays and workman made the point that the paralytic is included so that involuntary movement isn't interpreted as voluntary movement workman uses the term convulsions in other words when you give these kind of drugs you're going to you know it's it's not a way of saying that if if this alternative this put forward somehow base that aspect of base is nothing wish on the theory that will be able to tell long as working very well or not you're saying it doesn't it's not a good it doesn't serve that purpose because the symptoms that it creates won't really tell us that's exactly right so that's exactly right to the state has never indication the district court relied on that kind of analysis so the district court in rejecting this alternative relied primarily on the analysis that this alternative would also cause unconstitutional pain but i think that there are now this is either going through as is their whole argument contingent on them and as i'm not working absolutely there is there is that is what this case is about from the start to finish they said that the second and third drug would be painful both separate make of the tear well i would say a couple things about the tears at first the question is whether only produce new tears when he should have been under general anesthesia  this particular experience more emotional than the average clinical patient and so if and when is the question to make ten who stands above the head of ody testified that before the parent or before they  a minute after the anesthetic started but at that point remember given their timing argument sixty seconds after beginning anesthetic you're giving the anesthetic for almost two minutes and you're giving out a quite a rapid rate of  milligrams so neither of those points are particularly concerning the nurse duffus testifies that she saw tears continue until forty five seconds after the conscious check i find that testimony very hard to credit because team number ten who perform the consciousness checks in you're out of there and i think that's what happened here i think if there's anything else to address i wanted to briefly jump back to the point on psychological pain because i think it's important to look at the central nervous system are present and so psychological pain is the type of pain that you would least expect to have when given this type of sedative because it is a mental it's mental pain and you're giving a drug that specifically is a mental to present what if they could prove there was psychological pain unrelated to the paralytic i think the type of psychological pain that is left is the kind of anxiety that is either into super tori or in the moment that is  shared by every member of death row either in advance what if it's saying to the from the paralytic so i don't think that there that anxiety from the paralytic is something that is argued in this case i think air hunger does you could say a mental type of pain but what what if well used by hypothetical and tell me what the answer would be so the it would be i can and i could imagine in two spits ory pain that is i'm going to be given these three drugs that i don't think  eighth amendment violation it's not the same in the end the kind of the now excess i think you would make is you were compared to the type types of execution policies that have been used historically particular the time of the founding and determine what does the term cruel and unusual punishment mean and what kind of execution methods were that would they have in mind and it's it's nothing like that it's not going to be receiving these drugs and that is i don't know what those drugs will do it's unless i really missing the boat which is entirely possible is psychological pain that wouldn't be in till the administration of the paralytic is that right that's absolutely right and in fact not planning on time after yes so how would we distinguish between any kind of psychological pain that occurred because of the madame as a lamb and then the later paralytic is there any evidence to show how to do that that's right i think it would be very difficult testimony in the woods evans case the great case excuse me but doesn't it also prevents air hunger in a number of other ways in other words you're not going to get as dr anthony to explain that you're not going to get this kind of air hunger psychological pain from a dozen specifically because asthma doesn't is doing one causing one a fact for the same reason it's going to cause this other effect and it has a three fold effect in addressing your hunger first  and that's because the medallion reduces the drive to breathe it also acts on this kind of air hunger by acting as a brain to process it so you could think of it as kind of a front end prevention of air hunger by reducing the drive to breathe which is the only thing that could cause any kind of air hunger or any kind of anxiety but also on the back end because air hunger as the sensation of suffocation is by definition a mental thing so you have to have conscious mental awareness and i'm a dozen especially at this kind of dose prevents that from happening and third is what they call it has anxiety light it effects which means it reduces anxiety it's one of it's one of its primary effects in fact is as as an anti anxiety drug this is something i should know from having looked at the record but i'm not sure i got it straight in my head the madame is administered in is it then stopped and the paralytic is then administered or does the one of them one is touching the eye the two others that were used and philips and oduya were shouting their name is going for calm some kind of verbal response and a third one that involves applying significant pressure to the nail and there are a number of others that are hard uses that are meant to elicit some kind of response if the if the first drug has not worked in some way it is only after those conferences checks that the other two drugs are given and if there is any kind of response to the particle provides for an additional five hundred milligrams of the first drug and additional time to wait and i think that is another answer to judge the pars question which as we give these consciousness jackson specifically to see if the first drug has sudden  and at that point there's no reason to wait more time they're very robust consciousness checks in fact there are more robust and more likely to elicit a response than those consciousness checks that the days were unnecessary decided i'm curious how we got here isn't it true that if you go to a hospital and you have an operation and they change your heart i mean that you're out for for hours right the reason we can't do that or for capital punishment is that they use anesthesia which in in order to be certified by the f d a has to be applied by doctors who are ethically history is that the state uses a particular drug that they find effective as an anesthetic and then public interest groups pressure the manufacturer to not supply to the states and so ten years ago so many of these same arguments were being  ught before this court that they're used by states for other purposes that's that's absolutely right and if they can't be purchased is that that's that's correct we are if we are unable to attain the drugs such as the correct so there's two different people have open heart surgery the drugs are there in the hospital right i i completely agree with you and share your frustration the question i think specifically is if the hospital can get the barbiturates why can't the state because they won't sell it to us and that's frankly the long and short of it the manufacturers well the manufacturer won't sell it and justice alito what you're see that outlined in the gloss of opinion but the primary reason is because we can't acquire them so in closing in just a couple of seconds i would like to respectfully say that days in glossop set a very high standard intentionally this court  every time this court reminds them perhaps we still are not meaningfully applying the high standard from glossop information we know from the questions we do not have thank you counsel i have a couple points that i'd like to clarify first regards the the pain that's being presented first of all the pain is not limited to air hunger in addition to the suffocation that you experience in air hunger paralysis also causes distinct psychological pain from being frozen but aware unable to move on able to communicate the district court didn't discuss any of that in addition presume they're aware of which i mean it  would not be like being poked with a stick but there's no doubt it would be suffering as a distinct psychological terror of knowing that you are on able to operate your muscles to move oxygen in and out in addition i'd like to  zero the type of respiratory depression that medallion causes is not forgetting to breathe it's impacting the ability to breathe so it's not that kind of situation defendants argued that we don't have to worry about this kind of this drive to breathe because my dad will get rid of it but gary o t has dot drive to breathe was intact he was gasping and convulsing that shows that the drive to breathe is there and that meant as one didn't work on that judge rogers to address some of your concerns about the alternatives first of all i'd like to make clear the record has no evidence that madame alone can be lethal is involved in deaths most often combined with opioids as we've  seen you know in the crisis that's current currently going on the january hearing testimony explains that there is not evidence of medan alone being lethal and in addition dr because he's testimony about just leave me there  instead of if you go back and look at that testimony he clarifies that he thought you meant without any respiratory support just lying on the table just being give him a dazzling experimental pharmacology maybe would eventually die but again if you're not trying to kill someone if the intent is to reverse it you have the reversal and then he says oh well if you can provide ventilation if you can into baby if you compare dr respiratory support that's a whole different situation in addition so it's not the case that no jurisdictions have considered this as far as the timing there's a couple factual corrections that needs to be made the quote from the package insert about my dad is taken out of context there is extensive testimony particularly from dr stephens and his testimony has expert report very clearly lays out that a drug's effectiveness timing is not dose dependent if you take one tylenol or you take ten tile and they don't work faster that has to do with the circulation delay in the body and you know physical properties of the drug if combined with something else like a narcotic pre medical or something like that then the time can vary so the m gives cannot work any faster than a clinical dose of modafinil but i think their point is if you have a minute and ten seconds it's really three minutes and ten seconds from when they started in men and that's why the ok here's why that's wrong that is anthony's testimony that within he said he wants to start the clock after receiving an induction dose thirty milligrams that's a clinical dose that's not the five hundred milligrams that defendants say can do what a clinical dose can't do there's never been an argument or testimony that thirty milligrams alone of madame can somehow push someone into being unaware and impervious to pain so that objection doesn't work to time in the whole theory is based on an overdose of a dazzling five hundred milligrams so you can't start the clock when you've only received a fraction of that so starting the clock appropriately when you've received a massive order to overdose that they say will work shows that the timing  too short and as far as concerns that have never been raised before understand or i but you just said if you take one tylenol or ten it doesn't make a difference on the time it doesn't make if you take thirty milligrams or five hundred it does make a difference on the time what i'm saying is defendants have argued that instead of starting the clock after all them a day as long as administered they said oh no you should start it a few seconds then because that's how long it will take to get thirty milligrams and so that's when it that's when we should start counting women as them starts being affected what they say is they administer consciousness checks and that those are more effective than anything else and they check it and they're not conscious of it i don't think they've argued they're more effect my monitoring well more effective i mean they are affected let's get rid of the word right i mean there's a lot of evidence that the consciousness checks aren't effective there's again i would refer you to dr stevens as expert report that talks about a couple things one that there's sort of a rank ordering of when you lose certain responses for court didn't find they were affected correct that that is correct right well the district court didn't find that it was constitutionally to have more effective consciousness checks and that's an important point that defendants say that you know nope no court has ever said that you have to remove a paralytic but we're not arguing that it's unconstitutional have a paralytic were arguing that removing the para substantially reduces the risk of when the the paralytic is present again it gets to the comparative point about the alternative so it's really it's the same thing using the monitoring is offered as something better that's reducing the risks from the less effective consciousness checks not that those are unconstitutional to rely on them but again we're trying to take down that risk from the states protocol in the alternative and so using something better than the the alternative and it not working so just to be clear you know we're talking about several kinds of distinct risks in the in ohio's protocol and the standard requires us to substantially reduce  i appreciate your point that will there still is a risk that's left from the potassium chloride but we had i think in our brief an analogy about you've got an intersection and both the traffic light and the street lamp are out well if you fix one of them yeah there is still a risk but you've eliminated a whole other kind of risk and that's what the standard requires us to do is not make a pain free alternative although we would love to could but to substantially reduce the risk and we've identified several types of risks the physical and i was concerned that it might increase some other risk and i hope it's hard to say reduces and i hope that what i told you clarifying dr because his testimony shows that there isn't evidence that it would increase that risk other than the sort of we don't use that would be like i said with using one drug barbiturate well there's a risk they could miss administer there's a risk they could mix up the drugs like oklahoma enough to increase the circulation like there are potentially ways that and i don't think there's any evidence that that is less likely than a risk that it wouldn't work my final point would be you know i appreciate the court's concern  that perhaps plaintiffs theory of of the district court's holding is is incorrect and would respectfully request that if so we would appreciate clarification of what of of what that whole dean  should be the district court has indicated that going forward guidance would help on that and at best i think it's ambiguous and if the court doesn't agree with how we have characterized it that would be extraordinarily helpful guidance to provide to the litigation