this morning about the allegations of complaint or limitation of preclusion issues we think they've been adequately handle in the briefs and i'm happy to answer any questions you have of course about those either now or later but i'll proceed directly to the merits i'm going to begin with a summary cases now completely final for playing solution purposes that's right of course the state argued and the district court did not decide that it would preclude the entire case seems to me what it would clearly preclude is  expert has his and he is so strongly of the opinion that of course it's a non legal opinion that this is facially bad so to the extent you are simply parroting his arguments that well here here's what i do not accept then yeah well here's what i would say about that our expert clearly thinks that there are serious problems with lethal injection with lethal injection protocols across the board mr buckley's claim that we bring to you today is not that ok  that is not his claim his claim has to do with looking at the very specific nature of his rare and unique condition and trying to understand what's going to happen when and otherwise entirely permissible  this court's decision otherwise entirely permissible lethal injection protocol that could be used against anyone else who doesn't have this rare procedure will play out that's his claim and so that's why we think there's no issue preclusion here i know that's the claim but we're going to hold you to that in the air and the understood and i certainly want you to call attention if i if i crossed that threshold as a panel we would have to call it out call it out and i'll try and explain because i thought if i crossed that threshold i probably made a mistake and i don't address the discovery issue as well because i really think it's fundamental here whether we are entitled to a trial based on the evidence we have to put in or not this court i feel very strong should reach the discovery issues because it will go to the question of what happens at the trial we have to we are entitled to not only make the claim that we've made but to make the strongest possible claim we can and that claim concerns the degree and magnitude of the risks that mr buckley was facing and we simply cannot fully understand the f o extent of those risks if we were denied discovery into the problem is when the discovery goes to issues that relate would only relate to isolated myths that i understood and it's not it's not simply about making mistakes because what we're interested in here among other things but what we're interested in here is how at the testimony is clear that i am too an based in part on mr buck lose condition what he's his rare in any condition presents and we know that they don't know or at least we have no reason to believe that they understand anything about mr about his condition much less the really critical and especially rare features of his condition that matters it's not just about mistake it's about it's about not being able to address the concerns that are going to arise either because either as a matter of training experience or as a matter of  understanding the nature of mr buckley's condition but let me turn to the merits there is ample evidence that lethal injection will very likely involve excessive pain and suffering in mr buckley's case here let's start at the beginning the beginning when the execution procedure begins are going to try and obtain venous access that's how a lethal injection procedure is underdone and both experts agree it's very likely that just won't work it doesn't mean they won't try and in fact they may try and i didn't understand you to be the argument in the brief why didn't you why didn't you find out whether they're going to do it or not what we were denied this country in ten two and three around i mean that goes directly that goes directly to the discovery here's what we know about that it was done in the past that might be follow on discovery but where is the interactive terry requested are you we were not allowed to ask anything about m two and i'm three's decisions there were we were not given any discovery access to them at all in the citation to the order that  mean by both sides well one side wanting just to stretch it out as long as possible on the other side wanting to stonewall and neither party coming to grips with what you what what what real trying to lawyers would do and with a applied issues well if i did that's my view of the record i have studied it thoroughly understood your honor what what what we know is that when venus access is an unobtainable has been on obtainable in the past through peripheral veins of ones we're all familiar with elbows and arms and three has used and three has used the term procedure that's been done so this is a new argument judge philips general and this is i understand it on step one the risk of harm risk i don't think it's a new so so we think we do think the comparison is going to be the full risk of range of suffering needless suffering frankly that mr bucket was going to face from it not just from multiple efforts to access  down from being forced to lay flat either during the cut down or throughout the entire procedure which there's every reason to believe it's going to happen all it's the accumulated risks that he faces many of which simply vanish simply  entirely in a lethal in a lethal gas procedure because there's nobody's trying to gain venus access at all so that's why i was going to go through judge the full range of what he's facing what we're looking at because but it's not just the supplemental report of doctors it is page roughly pages four of ford for thirteen of our panics and if you look there what you see among other things is that someone who's in the like in mr buckley's condition is experiencing increased blood pressure from the increased stress of multiple attempts to access his brain certainly increase stress from carving into the leg with a substandard cut down procedure that should meet that neither dr antic nini nor doctors ever think should be done but m three nonetheless has done in the past under similar circumstances and all of that stress leads to both increased blood pressure and increased breathing and increased blood pressure doctors have it explains on sensitive tumors like mr buck who sleeps to bleeding and he's bleeding out of this tumor not just on his face but in his throat and he's starting to choke and gagged on his own blood all the while even before he's unconscious even before he's unconscious from the pen not even been introduced yet it's just what they're trying to introduce us that he's struggling to get and breathe struggling with the tumor position in his throat not happened with the m r i and pictures because because the degree of stress and  say we're about to execute you and he's going to start there's a crazy well that's that's anyone's believe in is throat and he won't be there is a huge difference a huge difference between many many minutes just think about how long we have it and we don't know about that time and you your record on the timing of therapy compared timing is there well there's two different kinds of time here on the first there's the time you before he's unconscious that's the timing when they're trying to gain venus access when they're pricking his body when they're carving into his leg during the cut  stress on each subsequent attempt which is harder and harder to succeed he's struggling through that for you however many messes in the in the in the confidential appendix we've indicated how long it is and you can find it there but it's going to be a substantial period of and he says it's several minutes and i understand that the defendants take issue with that they think oh well look at this horse study that doctors have it pointed to be doctors if it made clear in his deposition that the horse study was not the basis of his there is no severe risk serious risk of severe pain so as the stress will not be enough to cause the blood pressure to go up to cause the bleeding in the throat let's talk about the gas procedure right so let's just absolutely so here's the gas procedure right you just put a spending an extended period of time trying to gain venous access all of that time of struggling to to to to gag on your own blood disappears under a lethal gas procedure that's all the pre unconscious state that's all gone or is at a severe risk of pain i think that is a substantial certainly part of the equation in the gas procedures there they're sure very likely to suffer severe pain i think i think in the gas procedure it's very likely to of pain that's that's our point our point is you're comparing look this court has imposed upon us the burden of coming up with an alternative procedure that satisfies the glossop standard we ha standard is not find something that we think is some kind of platonic ideal of an execution it's find something that we think substantially and this clearly substantially reduces the risk by both by both wiping out all that pre unconscious state struggling or at least substantially wiping it out because he's going to he's going to be grieving for some period of time and that the obvious alternative in an answer klyde situation triggered by a specific medical condition is do it this way but a little different and you are expert witness and you are litigation position is no there is no way to do lethal injection period so you are forced to to come up with a speculative gas alternative as to which none of the experts can pin down but that's that's not the that's not the problem that's not the fault of the court with due respect your honor the law requires us to do two things one show that the lethal injection protocol they are proposing to use creates a substantial risk of excessive pain various a very high are very likely that mr buckle will experience excruciating pain we've done we've created a sufficient factual basis to conclude that's true and then we have to propose and then well well we maintain you got a decision by anybody we maintain the position that we have a sufficient factual basis to have a trial and that's what this appeal it circumvents becomes a legal question i was going to ask my researchers indicate pretty strongly that both strong prongs of the  the ultimate question is one of law you do you agree if it i mean i suppose in an ultimate ultimate sense yes but it's all but it's application of fact to law and there are factual disputes in this case so what you're applying to the law serial fact dispute in this situation is one that would affect the district court as fast as factfinder in making a conclusion of  all mean a bench trial because the the judges the determination of the issue of law is in doubt so if if if twenty or thirty or fifty two or two hundred forty seconds do not alternately affect the question of law under the first prong or by comparative to by comparison the gas the second prong then this is is a match her decision now because once you can feed the question well i think i think this court would have the opportunity to review that but it would be but there had to be a finding for this court to review you don't make findings of law you make well ok that i think at the end of the day at it's absolutely true that we maintain that that from the unconscious state several minutes of experiencing suffocation slow suffocation whil it's what was very likely to happen is meets the threshold for excessive pain or needless suffering then if that then then you have an eighth amendment violation i suppose you got the hearing or trial that you want and judge factual finding what's the legal conclusion that follows from that there's no pain is not sure very likely because that short you'd have to also take into consideration the full range of pre unconscious state because remember  there's no dispute about that prion conscious state i'm just talking about so just the just the the unconscious state if she concluded that you know you're talking about twenty to thirty seconds and then you're insensate to pain i don't think we'd have  of it as well so all of that is cumulative all of that plays a role in the first side of what you're comparing lethal gas to i want to return judge loken to your point about how normally you might just tweak tweak the process this way or that that might be true but i'm just stood that might be true in some cases but not supply challenge you craft your anyway my question is if they put on evidence like that that would change the situation were not because we didn't have that evidence and it would it would change the situation some but i don't think at the end of the day laying flat isn't the solution lank sitting upright isn't the solution because at the end of the day the testimony and this again is an sivits supplemental report is that when he sleeps he struggles he often wakes up anyway because he's still and just sitting upright isn't enough to get us there and we said let's find something that's really substantial really different and really going to make a big difference to someone with this rare and unique procedure it's authorized by missouri law risks you can't just grab something that the state could not possibly know minister for years to things that's that's your objective but that can't be that's not the base class of law our primary objective is to avoid a miserable execution for mr buckley our of our next objective is to make sure that he has one that is minimally excruciating for him now as for feasibility it's probably it's worth pointing out the district court noted state did not dispute the feasibility of lethal gas below he didn't even dispute it so i think that's wait a bit become up on appeal and they start making arguments about their gas chamber is and is in the is in a museum but the materials you'd need in the protocols you need so we think it could be right they could readily develop a protocol oklahoman louisiana are far down the path of doing so so that's what we think you know what we have in the in the record you know again as you said your primary goal court can affirm on any or all of five alternative grounds two of which concern the merits and three of which are procedural i'll begin first with the merits although i do intend to address each of those issues so begin with the merits and my my preliminary question shows my ignorance of the record where can i go to find a statement by the state of missouri on behalf of these of these defendants behalf of the state that will tell me the adjustments to this protocol that the state will make in executing buckley on account of his unusual medical conditions well judge logan i don't think it adjustments to the protocol because the protocol does not require for example for him to lie supine through the question i'm a member yes i know your position the protocol is just the rule blah blah blah yes in there in the record dave you advertise the i ask you where in the record can i go to find a commitment as to what you will do because of the concessions you made in the prior buckelew case that prompted us to conclude that the thate recognize this was a condition that required some attention in and as applied to execution ok now we're back on remand we told you to go get this laid out and negotiate or whatever it takes so i think the record does procedural i want to know what you're going to do we know you're not going to do the math lean stuff in the the two things that were concede before the end bank remains so what the state's going to do is they're going to follow that two a just would have the freedom to do that but that he never says we've studied the situation we understand the problem we're going to change the typical procedure and have him seated i don't give or says that free to do that if he were to make a first order decision that's a long way from saying we've studied this situation we've decided to do x and then i have a record cite for the courts i will say ellate court that's addressed one of these on the merits and has applied ok this is all this is all new in the world all you do is take pleading pleading quotes from from cases that were either pleading cases or preliminary injunction or stay of execution cases and assume that all that's all i have to do to address one on the merits when there's been enough to require a fact intensive resolution on the merits that's correct your honor this is a different stage of litigation in previous situations a person of record nothing other than well don't worry we'll do it right i can see the same thing you say in the in the facial you think that's in door my testimony i do now in any event there are many others understand why the state maybe you could address you want that you want this court to say assuming hill suffocate for four minutes we should the execution to proceed no no you're on a decision you're saying you don't think that's really what's going to happen that's not that's not what's going to hurt you didn't ask for factual findings on that you wanted to go on summary judgment and have us say even assuming he's going to suffocate for four minutes the execution should proceed why is that the state's way to gaining your heartbeat because because i knew you wouldn't just ask the dischord to make findings if you're so sure that there will be honor our position is that he's failed to submit evidence on either of those problems she was wrong on prong one correct say that there's a faction correct and here is the critical inquiry so this fifty two seconds this two hundred forty seconds this is all a red herring and here's why when doctors give it testifies about this fifty two seconds line of questioning he states that fifty two seconds or two hundred forty seconds or whatever have you is the time when he will cease producing detectable brain wave pages eighty one eighty six he says at this stage if it occurs is going to occur before that time before the fifty two seconds before the tune of forty seconds we repeatedly asked him well when is this going to occur and he said he could not say  in fact he said quote unquote at some point we asked him how long this twilight stage would occur if it did occur and he said he couldn't say he said that there was a wide range of time where it could be so that this whole situation about the fifty two seconds two hundred forty seconds that's not relevant to how long this twilight stage if it occurs will actually occur and that's important because for example if the twilight stage occurs for you know just half a second or two or three seconds there's nothing objective when intolerable about requiring somebody to hold their breath essentially for that short period of time so we surely do not concede that there's this issue of you know several minutes occurring where this twilight stage might occur submitted only evidence about the length of the e g stage which are two entirely different things what page are you citing pages eighty one to eighty six of of our joint or our appendix so this cut down about his veins whatsoever and so i don't think he i think buckley can do so for the first time on appeal before this court and in addition he hasn't presented evidence that emerging  six and one hundred twenty eight of his appendix so so that applies not only to the injection but also to the lethal gas now the cut down procedure again he's not even he's not even submitted evidence that they can't use peripheral to experience a cut down procedure so the second the second reason this court can affirm is again because of what the judge or restating earlier there's no time there's no time element whatsoever as to how quickly  you don't think he at one point the record would support a finding that he equated the two and so they were about the same you're on even even if that's true a doctor or a doctors of in buckle  both somewhat similar but but but again your line of questioning relies on his assertion that the fifty two seconds two hundred forty seconds is actually relevant when i'm saying it's not relevant because that has nothing to do with the how long the twilight stage if it occurs will last or won't last so those are the first two reasons i think the score can affirm now i also think the the pre injection experience a cut down procedure again doctors it's never even looked at his legs we have no in we have no evidence in the record whatsoever about the state of his peripheral veins in his legs or get the cut down just that the argument this morning a undergone some kind of i v and undergone some kind of anesthesia in the asia now i would i would ask this court to consider also adjudicate in this case on alternative procedural grounds for a number of reasons first it shows that these rules are real and that they will be enforced even in cases where you know somebody brings a little bit of an unusual client but more importantly and this court stated in the twenty fifteen on bank opinion that this case has dragged on for quite some time and that  expediency is an extremely important value in this case and the procedural issues that we have raised to create finality in a way that the merits arguments alone do not and what i mean by that is every state that performs lethal injection has had to alter their protocol as as different chemicals become available or don't become available that's something that again every state runs the risk of and could happen in the future so for example if this court educated the statute of limitations argument what it would be what it would be stating is that his claim that any lethal injection by any chemical whatsoever that arose a leason early two thousand if not sooner so that would that would you to kate far more than just this merits claim it would also educate every potential claim concerning lethal injection with whatever chemical he brought whatsoever in the future so there would be substantially more finality value if this court also adjudicated the procedural claim specifically statue limitations in the  another facial challenge in here along with just dressed up as supposedly as applied then it seems to me you've got it right i think i think both your honor i think that they have both but i think i think in this  as applied challenges are not for because you joined in a mass they feel you know that well let me explain specifically because of the critical admission that they make on page four of their reply brief so there he states that his the his cause of action accrued in april two thousand and fourteen now we think it was much before that but even taken on its own terms of still barred by race you to caught it because this nick litigation was still ongoing zinc did not become final restatements judgments section twenty six would apply because the district court would have given him permission to split his actions but because he never asked the district court for that permission what if the pleading there was a scheduling order that said you can there after such and such a date does that trigger the restatement exception that you just mentioned because the dischord is by that standing order to not know they would they would have attacked they would have needed issues are pending at the same time when one becomes final race judicata applies if they do not attempt to try to get this other issue into that litigation so if you attempt to and failed to do so because of discord thought it was more appropriate for those to be  now i think we also have a separate statute of limitations argument now and he's essentially arguing that he had no opportunity to to file a complaint in two thousand and eight when he petition this court that's not true in fact what he didn't two thousand and eight is exactly the same thing he didn't two thousand and fourteen let me explain in in two thousand and eight he retained adam cohen a doctor and a medical expert to review his medical records dr cohen did so and then dr cohen opines that based on his review of those don't conduct any kind of comprehensive medical exam instead they both to firmly state that they want to conduct that exam but they don't conduct it and so they do the same thing they review his medical records both opine that he has a circulation based theory or circulation base claim that would render lethal injection unconstitutional so if retaining expert counsel to review your medical records was enough in two thousand and fourteen then there's no reason it should have been enough in two thousand and eight he did the same thing now to the extent to they're not outliers but they're they're not normal practice which is when discovery when discovery leads to new evidence and theories basically planes that were basically plea where the circuit is his rule that even if something was made it was arguably not within the scope of the pleading at the district court went on and considered on the merits that's the case we review i can't i can't give you specific number of cases i can only repeat the cases i cited here the general rule i haven't researched and i guess i would just point to the cases we cited in our brief the state that you cannot defeat summary judgment just by bringing a new claim that was not fairly in the complaint  wouldn't it be more than strange after the unborn court's at this back on the issues was that a back on would say sorry we shouldn't have done it there procedural bars that eliminate any of these claims no i don't think so your honor of course you don't what three months after and think remain yes your honor and and pages and pages of detail factual analysis by the majority written by justice alito who in basis said we don't we don't want the courts to have to micro manage all this stuff but he nonetheless goes in the clear view and a preliminary injunction the nile for pages and the dissent says yeah that was the right thing to do and then of course they disagree on the you're what you're asking us to do would get would get almost summary reversal by the supreme court no you're on the difference between this and what occurred in gloss up is in glossop we are at the next stage of the litigation when opposing counsel said he would do next which is a sort of abus discretion in the search clear error based on factual findings our position isn't that there are factual findings to be made it's that they haven't produced the evidence at all necessary to satisfy each of the predicates that they need to i think it i think it was but if there are you have the option of saying we think we could get summary judgment but we're so confident in our factual submission that we just want the judge to make findings and then we'll go up on a clear think you're correct this is a legal issue not a not a factual issue this court doesn't seem to have held it expressly but the fourth circuit has an m it be johnson's the fourth circuit has held that if there are no further questions we certainly possible for the state with and to identify and the plaintiff and plaintiff's counsel to to take shots at how we're going to do it i fine now we asked the right person in front of us and what we got was it's somebody else's call now you might be right that and precise could come in and testify and say i'm going to do i'm going to demand that they do a b and c and then this court c treat a b and c is something that's going to happen but what we have now isn't got that's not what we have and we tried to get it we tried to get it and then we couldn't get it from her we tried to get it from the people she said are going to be so the court so the court's ruling on the or this is that this is page five of the april eleventh two thousand and seventeen order on the motion to compel and it says it's at the top before the privilege of law and i'm page twenty three before the privilege log the court's ruling says there is no claim remaining that requires consideration of the execution team's qualifications and training this is the mistake that the district judge made that this only got went to that to that to claim to count to reading yeah so the court concludes i was just sorry apologies so the court concludes that the scope order sets proper limits on discovery plaintiff's requests for additional details about the execution team members and access to their depositions from other cases is denied in other words there had been testimony by him to read and if that's the best you've got it doesn't solve my problem well not just saying what we have that's just saying if we can that you didn't get your deposition discovery which is well we also but we also do we also didn't get the information that was present in the other case remember there's this peculiar circumstance in this case where prior counsel occurred who's still on the case of course he has has actually seen certain deposition testimony certain evidence about him to and i'm three that we haven't and that she has been barred your court counsel as absolutely right in terms of this court review of that that's but what we have been barred you asked what we were barred from doing we were barred from inquiring into or presenting any evidence that would be of in the execution chamber the anesthesiologist inserts the drug and leaves the room nobody's watching her first and her way in the execution chamber that's a huge difference and that's part of the problem with saying well he's been able to lie flat before the circumstances in the execution chamber completely different from what he's faced before and the and the risk of suffering here is so substantial twenty or thirty second different as well that goes of course there's the fact l i concede there's a factual dispute about how long he'll be able to experience that sense of suffocation after the drug is introduced and after he enters into the unconscious state for what it's worth  think is just not right about what pages eighty one through eighty six of doctors if it's testimony i commend it to you you'll see it's it's it's confused because quite frankly the questions put to doctors that were confused the questions were not precise and doctors it is clear that they're that they're using terms that don't have any meaning that there are understanding of about the way brain death works is wrong that the what happens when an e g e g stops revealing information doesn't tell you about full ability to experience a sense of suffocation in this quarter the fifty two to two hundred forty seconds argue message after divine says is a red herring that's right and your argument is that the evidence is clear enough a dick it should not be discarded i think it's a substantial additional factor in the degree of suffering that mr parlow is going to procedure itself i mean the cut down ers that they're not down as part of it could be carving straight into his like i mean the just the carbon right into his life that's what's going on and cut do we know is that if you use lethal gas there's no chance of this so that's it's not a nothing your honor it's not and it's not a detail it's a significant factor and at the end of the day what about he said that she has a footnote the dischord that you wave t hard yeah that's just not true it's in again if you look at if you look at the appendix ten forty four and that the whole the whole area so we opposed there we submitted a statement of  in opposition to their statement of undisputed facts and then we appended additional facts which we thought were undisputed and you read that document it's clear all of this is there we put it in front of her and she just didn't reach it and that's that's not a reason to deprive m buckle of the full scope of his claim again getting back to the details apart from the fifty two to forty seconds were part of that argument as well during that time it's got to be gasping to try to remain alive or gas or the human body's reaction is to just stay alive i don't know physically what it's going to look like from the outside what's important is what it's going to be experienced subjectively as from the inside and nap doctors if it is clear it's going to feel like the execution project process that type of pain that would be barred by cost yes we think that is excessive and needless pain and suffering several minutes of slowly choking to death especially on your own blood is unconstitutional if there are no further questions your honor there will always thank both sides of the argument the case is now submitted and we will take it under consideration it completes argument counter for this morning the  subject to call